Counsel Not Ineffective for Advising Against Appeal.

In Fountain v. Kyler, No. 03-4777 (August 25, 2005), the Circuit held that counsel was not ineffective, when, out of fear the client might face death penalty again, counsel advised not to appeal adverse trial court ruling on ineffectiveness claim.

Fountain was capitally prosecuted and sentenced to death under a capital statute that the Pa. Supreme Court found unconstitutional. He was then resentenced to life. After that, he pursued an ineffectiveness claim against his trial counsel in the Court of Common Pleas which dismissed his claim. By that time Pennsylvania had a new death penalty statute. His attorney advised him, however, not to appeal the adverse Common Pleas Court ruling and Fountain acceded to her advice. Later, over three dissents, the Pa. Supreme Court ruled that the new death penalty statute could not be applied retroactively to people, like Fountain, prosecuted under the earlier statute.

Fountain then pursued ineffectiveness claims against his second lawyer for the advice not to appeal the ineffectiveness ruling. The state courts ruled against him. The Circuit held that the ruling of the Pa. Superior Court denying the claim was not contrary to or an unreasonable application of clearly established federal law. While Pennsylvania caselaw suggested that Fountain could not be capitally retried, a U.S. Supreme Court opinion suggested he could be.

Upholding Random Car Searches at Prisons

The Third Circuit has upheld the Pa Department of Correction's policy of subjecting prison visitors' cars to random searches against a constitutional attack made by the parents of a prisoner at SCI-Huntingdon. See Neumeyer v. Beard, No. 04-1499 (3d Cir. 8/25/05) (precedential opinion on website).

Convention Against Torture -- Standard to Apply

In Kamara v. Attorney General of the United States, No. 04-2647 (August 29, 2005), the Third Circuit set out the standard to be applied when an individual seeks asylum under the Convention Against Torture (CAT) from removal to a country occupied in part by a government power and in part by rebels. In Kamara's case, the INS sought to remove him to Sierra Leone. The Immigration Judge granted asylum holding that it was nearly certain that Kamara would be tortured by the rebels and there was a reasonable chance that he would be subject to abusive treatment from the Sierra Leone government. The Board of Immigration Appeals (BIA) reversed. Kamara filed a petition for writ of habeas corpus which the district court granted. The 3d Circuit vacated the district court's opinion and remanded to the BIA holding that the BIA should apply the proper standard for CAT asylum claims, namely that Kamara was entitled to CAT protection if he could show that the cumulative probability of torture by the government and the rebels exceeded 50%.

Brady violation - dismissal with prejudice

In US v. Jareem Fahie (No. 04-1567 8/16/05), the 3rd Cir explains when dismissal with prejudice is appropriate for a violation of the government's obligation under Brady v. Maryland to disclosed exculpatory information to the defense. The court concludes that dismissal with prejudice for a Brady violation is appropriate only in cases of deliberate or willful misconduct, since this remedy is needed in such cases for deterrence. In the absence of such misconduct, the retrial will cure any prejudice resulting from the Brady violation.

Mail Fraud - "Culpable participation" requirement

In US v. Marsha Dobson (No. 04-2169, 8/16/05), the 3rd Cir has written a very helpful decision regarding the "cuplable participation" requirement in the mail fraud statute. This decision is also very helpful on the issue of plain error in jury instructions. The court ruled, following its prior decision in US v. Pearlstein, that it is not enough for the government to show that defendant participated in a fraudulent scheme; "rather, it must show that the defendant did so knowingly and 'in furtherance of the illicit enterprise.'" Thus, "the relevant inquiry is not whether the defendant acted knowingly in making any misstatement, but whether she did so with respect to the overarching fraudulent scheme -- that is, the particular 'illicit scheme' charged in the indictment."
As the court explained, this case involved two layers of potential fraud or misrepresentation -- the defendant's misrepresentations as a salesperson for a fraudulent enterprise, and the fraudulent enterprise itself. The court found the district court's instruction on this issue constituted plain error because it did not convey the culpable participation aspect of the knowledge element. The instruction allowed the jury to convict based on the defendant's own misrepresentations, without proof that she knew about the the enterprise's broader illicit purpose.

‘Use of a minor’ enhancement and footnote about Feeney Amendment

In United States v. Pojilenko, No. 03-4446 (3d Cir. 7/27/05), the Third Circuit determined that, in order to apply the ‘use of a minor’ enhancement under U.S.S.G. § 3B1.4, the district court must find an affirmative act, rather than just mere participation in a crime with a minor.

Also, the Court disagreed with the Eleventh Circuit, and ruled that where a defendant participates in a conspiracy, and a member of that conspiracy "used a minor" as described in § 3B1.4, such use could not be attributed to the defendant, even if the co-conspirator's ‘use of a minor’ was foreseeable. This holding may have greater ramifications upon the government's ability to assign relevant conduct where the justification is simply vicarious liability under conspiracy law.

Interestingly, as noted on www.sentencing.typepad.com, the Court also dropped the following footnote:
Relying on United States v. Detweiler, 338 F.Supp.2d 1166 (D.Or., 2004), Pojilenko also challenges on separation of powers grounds the constitutionality of the Sentencing Reform Act as amended by the "Feeney Amendment," Pub.L. No. 10821, § 401, 117 Stat. 650 (2003). He asks us to direct that only the Sentencing Guidelines in effect before the Feeney Amendment be applied on remand in an advisory capacity. We decline to do so. This argument was not advanced in the District Court, and our review is confined to plain error. The Supreme Court rejected a separation of powers challenge to the Act in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). While the Feeney Amendment's change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta, the District Court clearly did not commit plain error in applying the post-Feeney Amendment guidelines in this case. Even if an argument is "plausible," any error is not "plain" when it was not "clear under current law." United States v. Clark, 237 F.3d 293, 298-99 (3d Cir.2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993).

Because the Court seems to only reject the defendant's argument due to its plain error posture, it appears that the Court may find some merit to the very valid argument that the Feeney Amendment so changed the Sentencing Reform Act (SRA) and the Sentencing Commission that the resulting sentencing scheme is wholly unconstitutional, or that the SRA is only constitutional as in effect prior to the Feeney Amendment. Perhaps, if the Supreme Court or the Third Circuit were presented with a Mistretta argument, post-Feeney, the outcome would be different.

Rodriguez and Gov c.a.v. letters in Booker remand cases

In a number of 3rd Cir. appeals pending likely remand for resentencing in light of Booker, the government over the last month has filed letters requesting that the Circuit hold the cases under advisement ("curia advisari vult" or "c.a.v.") pending a decision from the Supreme Court in Rodriguez v. US, No. 04-1148.

Rodriguez is a case in which the 11th Circuit applied a very difficult plain error test to Booker pipeline cases, holding that remand would be granted for Booker plain error only if the defendant showed a reasonable probability that the judge would have granted a lower sentence under the an advisory guideline system. (The 3d Cir. plain error test is the most reasonable of all the circuits -- see Davis post on blog below.) The defendant petitioned for cert in Rodriguez, and the government in response basically agreed cert should be granted, since the circuits are split on the plain error standard.

These government c.a.v. request letters should now come to a quiet end, and the ones that were filed should be denied, since the Supreme Court yesterday (6/20/05) denied cert in Rodriguez. This denial of cert completely undercuts the government's argument for delaying the remands.

Alternative Sentences Constitute Harmless Error Under Booker

In United States v. Jaheed Hill, No. 04-3904 (3d Cir. 6/14/05), (click to open), the Third Circuit joined several sister circuits in holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the Guidelines, any error that may attach to a defendant's sentence under Booker is harmless.

Recent 3rd Cir decisions on Booker

The 3rd Circuit has issued two decisions recently regarding US v. Booker, one relating to retroactivity for 2255 purposes, and the other relating to waivers of appeal:

In US v. Garry D. Lloyd, No. 04-3549 (3d Cir. 5/17/05), (click to open) the Circuit followed other circuits in holding that Booker is not retroactive for purposes of collateral attack under section 2255. The Court ruled that although Booker states a new rule, it is not a "watershed" rule for Teague purposes, and therefore is not retroactively applicable to cases which became final before Booker was issued.

In US v. Rogers Lockett, III, No. 04-2244 (3d Cir. 5/5/05), (click to open), the Circuit affirmed the denial of a motion to suppress evidence. The Circuit also refused to remand for resentencing in light of Booker because appellant had waived the right to raise sentencing issues on appeal, having reserved only the right to appeal the motion to suppress. The Court reasoned that the waiver of appeal was not rendered unknowing or involuntary by the unanticipated ruling in Booker, since a defendant pleading guilty and waiving the right to appeal always takes the risk that there will be future developments in the law that he or she will not be able to take advantage of.

3rd Cir Decision on Booker Remands

In US v. Kevin Davis (No. 02-4521, 4/28/05), the 3rd Circuit has finally issued a published opinion articulating its position regarding remands for resentencing in light of Booker. The Court held that in cases now on appeal that were sentenced before Booker in which there was no objection made to sentencing under the guidelines, for purposes of review for plain error, prejudice will be presumed and the cases will be remanded for resentencing. Thus, the test for plain error is met in any case in which the court followed the mandatory guidelines in imposing sentence. As the Circuit explained,

[W]e cannot ascertain whether the District Court would have imposed a greater
or lesser sentence under an advisory framework. But the mandatory nature
of the Guidelines controlled the District Court’s analysis. Because the
sentencing calculus was governed by a guidelines framework erroneously believed
to be mandatory, the outcome of each sentencing hearing conducted under this
framework was necessarily affected. Although plain error jurisprudence generally
places the burden on an appellant to demonstrate specific prejudice flowing from
the District Court’s error, in this context– where mandatory sentencing was
governed by an erroneous scheme– prejudice can be presumed.

The Court also concluded (quite reasonably) that from the standpoint of judicial economy, it makes much more sense to remand such cases for resentencing rather than to spend judicial resources endlessly litigating plain error issues, as other circuits are doing. The Court stated,

This approach results in uniform treatment of post-Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources. Moreover, as the Court of Appeals for the Second Circuit has noted, “correction of error in the context of sentencing does not precipitate . . . burdensome and often lengthy consequence[s]” on remand. United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005).

New Booker Resources

The Federal Defender Office for the Eastern District of Pennsylvania has two new resources available for litigating Booker sentencing issues:
1) Booker Litigation Strategies Manual (April 20, 2005)
2) Model Sentencing Memorandum (post-Booker)

In addition, Fran Pratt, Research and Writing Attorney, Federal Defender Office, Alexandria, VA, has updated her Outline of post-Booker decisions. (April 17, 2005).

3rd Cir withdraws King

On April 19, 2005, the 3rd Circuit withdrew its unpublished decision in King, mentioned in the post below, and on April 25, 2005, the Court reissued the King opinion without the intriguing footnote 2. (But the new King opinion does include an interesting concurrence by Judge McKee regarding his concern that the district court may have been biased against tax offenders.) (King available here.)

Fascinating Footnote re Booker

As noted on Prof. Berman's blog, the Third Circuit in a not-precedential opinion, US v. King (No. 03-4715, 4/14/05), has attached a fascinating footnote about Booker which seems to say that the district courts cannot apply enhancements unless they were found by the jury beyond a reasonable doubt or admitted by the defendant. (The Circuit remanded for resentencing in light of Booker.) Here is the footnote:

FN. 2 Our discussion of the sophisticated means enhancement in no way suggests that a sentencing court must apply such an enhancement even where it might otherwise have been appropriate. It is clear that in the post Booker universe,
the district court is free to reject all such enhancements in the appropriate exercise of its discretion. Moreover, to the extent the sentencing court may decide to enhance a sentence based upon factors such as those incorporated into the sophisticated means enhancement, it must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable. That fact finder must be a jury unless a defendant waives his/her right to a jury trial.

3rd Cir Remands in light of Booker, even with appellate waiver

In US v. Herman Foman, No. 04-2508 (Apr. 7, 2005) (not-precedential), the Circuit remanded for resentencing in accordance with United States v. Booker, 125 S. Ct. 738 (2005). Although the opinion does not make any mention of it, the record reveals that the case involved a conditional guilty plea in which the defendant waived all of his appellate rights, except for the right to appeal the denial of his motion to suppress evidence. The appellate waiver language in Foman's plea agreement is identical to the broad appellate waiver language used in all plea agreements in the E.D. Pa. The Foman plea agreement reads in pertinent part as follows:

9. In exchange for the undertakings made by the government in entering this plea
agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, . . . except as provided in paragraph 8 above [relating to defendant's right to appeal from the denial of the motion to suppress].

United States v. Herman Foman, Crim. No. 03-486, "Guilty Plea Agreement" p. 8. (entered on docket for E.D. Pa. Feb. 19, 2004).

The government in Foman, moreover, argued in its letter response commenting on the applicability of Booker that "Foman waived his right to raise any Booker claim in the appellate waiver in his plea agreement." (Gov. Booker letter in US v. Foman, Mar. 24, 2005).

In spite of the appellate waiver covering sentencing issues, this Court nonetheless remanded Foman for resentencing in accordance with Booker. The Court did not address the appellate waiver, but instead only stated,

Having determined that the sentencing issues appellant raises are best
determined by the district court in the first instance, we will vacate the
sentence and remand for re-sentencing in accordance with Booker.

Although it is difficult to know how much, if anything, to read into a not-precedential opinion which does not give the court's reasoning, it would appear the Circuit quite reasonably concluded that the Booker issue fell within the "miscarriage of justice" exception to appellate waivers carved out in United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001).

3rd Cir Issues More Booker remands

In two not-precedential cases, the 3rd Cir has continued its policy of remanding for resentencing under Booker where the district court, in sentencing before Booker, treated the guidelines range as mandatory.

In US v. Spivey, (No. 04-2057, 3/22/05), the Circuit issued its most extensive (although still brief) discussion of plain error. The Court stated that plain error analysis applies since no Sixth Amendment objection was raised at sentencing. The Court then noted that it was "at least arguable" that the sentence did not violate the Sixth Amendment since defense counsel admitted to the enhancement in question which increased the defendant's criminal history.

Even without the Sixth Amendment violation, however, the Court found remand was required under Booker because "the District Court's mandatory application of the Guidelines to Spivey's sentence was in error, and we cannot say from the record before us whether that error 'had a substantial and injurious effect or influence in determining the [sentence].'" (Citing Kotteakos). The Court then concluded with the language used in all its Booker remands: "Therefore, having determined that the sentencing issues Spivey raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker." This case thus continues the Circuit's policy of remanding for resentencing in any case where the district court viewed the guidelines as mandatory, regardless of whether there was an objection and regardless of whether there was a Sixth Amendment violation.

In US v. Simmons (No. 03-2013 3/22/05), the Circuit remanded for resentencing under Booker even though the defendant had received an upward departure. The defendant there, prior to Blakely, had originally appealed his sentence of 48 months on the ground that the judge improperly departed upward from the guideline range based on underrepresentation of criminal history. Defense counsel sought to supplement after Blakely, and the Court held the case under advisement pending Booker. In remanding, the Court said only that the Booker sentencing issues "are best determined by the district court in the first instance." This case makes clear that remand is appropriate even when the sentence was pursuant to an upward departure.

3rd Cir rejects challenge to BOP good time calculation

The 3rd Cir., in O'Donald v. Johns, (No. 04-2990, 3/22/05), rejected a habeas challenge to the way the Bureau of Prisons calculates the 54 days of good conduct time ("GCT"). The BOP has been interpreting the statute, 18 U.S.C. 3624(b), as allowing for 54 days of GCT "for each year served," which takes into account the fact that an inmate's time actually served becomes shorter each year as he is awarded GCT. The prisoner argued that the statutory language requires the BOP to calculate GCT based on the sentence imposed, not the time actually served. The Circuit found that the statutory language is unclear and ambiguous, and that the Court should therefore defer to the BOP's interpretation since it is an reasonable one. In so ruling, the Court joins the 1st, 7th, and 9th Cir.s in upholding the BOP on this issue.

3rd Cir upholds DNA collection as condition of SR

In US v. Sczubelek, (3/21/05, No. 03-2173) the 3rd Cir., following other circuits, upheld the constitutionality under the Fourth Amendment of the DNA Act. This law requires those in custody or on supervised release, parole or probation to give a DNA sample if they have been convicted of a qualifying federal offense such as bank robbery. The Court applied a reasonableness analysis under US v. Knights, 534 U.S. 112 (2001). The Court concluded that the intrusion was reasonable based on the following factors: the intrusion of a blood test is minimal, those on supervised release have a reduced expectation of privacy, the government has a compelling interest in the collection of identifying information on offenders, probation officers have no discretion regarding who is required to give a sample, the uses of the samples are limited, and the samples can be expunged if the conviction is reversed. Judge McKee dissented.

3rd Cir Continues Remands Under Booker

Continuing its broad approach to remands for resentencing in light of Booker, the 3rd Circuit in yet another not-precedential opinion, remanded for resentencing in a case involving a defendant sentenced at the bottom of his guideline range as a career offender -- US v. Mitchell (No. 03-3862, 3/11/05). This remand is a striking demonstration of just how broad the 3rd Circuit's approach is, since appellate counsel had filed a no-merit brief under Anders, but defendant in an informal pro se brief raised the Booker issue himself. The Court found that counsel had fulfilled all the requirements of Anders (and thus implicitly found that there were no meritorious issues for counsel to raise on appeal) but then remanded for resentencing stating only the following:

Mitchell challenges his sentence on the basis of United States v. Booker. . . Having determined that the sentencing issues appellant raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for re-sentencing in accordance with Booker.

3rd Cir rejects Brady claim

In US v. Leonardo A. Pelullo, No. 02-2710 (3d Cir. 2/25/05), the Circuit reversed a district court's finding of a Brady violation concerning two sets of exculpatory documents. In a very fact intensive opinion, the Court ruled that because the first set of exculpatory material consisted of the defendant's own documents, and because defendant had access to them, the failure of the government to turn them over to the defense did not constitute "suppression" of the exculpatory material for purposes of the rule of Brady v. Maryland.

The Court ruled that the second set of exculpatory material consisted of documents in the possession of a government agency that was not part of the "prosecution team," and that therefore under Brady the government's failure to turn these document over to the defense also did not constitute "suppression." As the Court explained, "[T]he prosecution is only obligated to disclose information known to others acting on the government's behalf in a particular case."

Addressing a separate habeas challenge to the jury instructions, the Court ruled that defendant had defaulted this claim and had not established "cause" for his failure to raise it at the trial or on the direct appeal.

More 3rd Cir Booker remands

The Third Circuit is continuing to take a broad approach to remanding cases for resentencing under Booker, without the need for any express consideration of plain error or harmless error. The Circuit appears to have concluded implicitly that most sentencings that took place before Booker (and therefore under the binding guidelines) meet the test for plain error since one can never know what sentence the district court judge would have imposed under the now advisory guideline system implemented by Booker.

In each case involving a Booker remand, the Court has included some variation of the following statement: "In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker." In addition to the Ordaz and Davis decisions discussed below, the Circuit has recently remanded for resentencing in the following unpublished and not precedential cases (click on case to pull up the decision): US v. Nayef Yousef (2/22/05); US v. Arthur Able (2/24/05); US v. Edwin Marquez (2/28/05); US v. Vivian Wells (3/3/05).

US v. Able is particularly noteworthy since it does not appear to have involved any Sixth Amendment violation under Booker, and the defendant was sentenced at the top of the guideline range of 18 to 24 months. Nonetheless, the Circuit, noting that "the district court clearly treated the Sentencing Guidelines as mandatory rather than advisory," did not find that the error of applying the mandatory guideline range was harmless, but instead remanded so that the district court could determine the sentencing issues "in the first instance."