United States v. Vargas - Fast-Track Disparity Case - Denied Rehearing

The Third Circuit has denied rehearing in United States v. Vargas, where the Court rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. (panel opinion here) In a concurring opinion, Judge Ambro elaborated on the “limited scope” of the Court’s panel opinion, its two holdings and how it is consistent with United States v. Gunter. First, Vargas held that “a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable.” Although Gunter held that a court errs when it believes it has no discretion to consider an infirmity in the guidelines, it did not establish a rule that the court must consider it. Sentencing courts may, however, do so if “they are persuaded that the Guidelines do not sufficiently effect the goals of sentencing.” Second, Vargas held that a sentencing court “may not, in the fast-track context, rely on § 3553(a)(6)’s reference to ‘unwarranted sentence disparities’ to justify a sentence that varies from the advisory Guidelines range.” This does not preclude other factors - - such as ‘the history and characteristics of the defendant’ - - from serving as a basis for variance in the fast-track context. For example, an individual defendant may enter an early plea and waive various procedural rights, considerations permissible in Gunter’s third step.

Court affirms conviction for attempted support of terrorists, rejecting claims of entrapment, outrageous government conduct, and juror misconduct

In United States v. Lakhani, No. 05-4276 (3d Cir. Mar. 16, 2007), the Third Circuit affirmed the defendant’s conviction and 47-year sentence. Lakhani, a now-71-year-old trader of Indian descent, was convicted of attempting to provide material support to terrorists and other offenses following a jury trial for his role in the attempted importation of shoulder-fired surface-to-air missiles. Much of the evidence at trial consisted of Lakhani’s recorded conversations with a government informant who asked the defendant to procure missiles for his terrorist group, and who Lakhani "enthusiastically" agreed to help. Over the course of almost two years, Lakhani made various assurances to the informant that a missile would soon be available. In the end, however, the only weapon that the defendant "obtained" was a mock missile designed by cooperating Russian and American authorities.

The Court of Appeals denied each of Lakhani’s arguments on appeal. First, it rejected his defenses of entrapment and outrageous government conduct. The Court held that the government proved Lakhani’s predisposition by showing his "ready response to the inducement" through numerous examples of his "multiple, self-financed trips to the Ukraine in search of a missile" and other evidence. The fact that the government was on both sides of the transaction, buyer and seller, was not sufficiently outrageous to merit a dismissal because "where the Government is investigating ‘fleeting and elusive crime[s],’ it may require more extreme methods of investigating, including the supply of ingredients.’"

Lakhani’s third point on appeal involved juror misconduct. Several months after the verdict, one of the jurors stated on a Chicago public radio program, This American Life, that she believed that Lakhani was entrapped and that she was pressured by another juror to vote guilty (click here to listen to program). The juror’s comments prompted the defendant to move for further investigation of the jury deliberations and for a new trial, which the district court denied. The Court of Appeals affirmed, finding that the juror’s statements, "though . . . hardly heartening," do not qualify as competent evidence to impeach a verdict under Fed.R.Evid. 606(b).

Finally, the Court affirmed Lakhani’s 47-month sentence, which represented the statutory maximum on each count. Although the district court would have been entitled to consider the government’s "pervasive role in this case," it did not, and the Court of Appeals found no reason to disturb this conclusion. The Court also rejected Lakhani’s argument that the district court’s general deterrence justifications for the sentence were "inapt," since no sentence would be long enough to deter a true terrorist. To accept this argument, the Court explained, would require the courts "to abandon their sworn duty in the face of an irrational enemy."

Court clarifies earlier opinion: "We have never held that an arrest that is unlawful under state law is unreasonable per se under the 4th A."

In United States v. Laville, No. 06-1577 (3d Cir. Mar. 16, 2007), the Third Circuit—in a decision authored by Judge Barry, with a concurrence by Judge McKee and dissent by Judge Stapleton—reversed the district court’s grant of a motion to suppress post-arrest statements, explaining that the district court misinterpreted the Third Circuit’s holding in United States v. Myers, 308 F.3d 251 (3d Cir. 2002)(authored by Judge McKee, joined by Judge Barry, with a dissent by Judge Alarcon, from the Ninth Circuit). The district court found that the officer who arrested the defendant only had probable cause that the defendant had committed a misdemeanor offense (illegal entry), which, under the territorial law of the Virgin Islands, must be committed in the presence of an officer to justify a warrantless arrest. The district court read Myers as holding that local law governed the constitutionality of the defendant’s arrest; therefore, since the offense had been completed before the officer arrived at the scene, he had no authority to arrest Laville.

Judge Barry’s opinion explained that the district court’s ruling was based on a misinterpretation of Myers. "We did not hold in Myers and, indeed, have never held that an arrest that is unlawful under state and local law is unreasonable per se under the Fourth Amendment." Rather, "the validity of an arrest under state law is at most a factor that a court may consider in assessing the broader question of probable cause." The Court emphasized that reasonableness is the central inquiry under the Fourth Amendment and, under that standard, Laville’s arrest was supported by probable cause.

Judge McKee concurred with this analysis, but wrote separately to note his concern that the government is not allowed to take an interlocutory appeal merely because it disagrees with a suppression ruling. Moreover, this case could be decided entirely on the basis of the Third Circuit’s analysis of when the offense of illegal entry is completed in Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995).

In dissent, Judge Stapleton agrees with the district court that Myers requires application of the misdemeanor presence rule to determine the validity of Laville’s arrest. Even apart from Myers and the misdemeanor presence rule, however, Judge Stapleton would affirm the lower court because the information available to the arresting officer was insufficient to supply probable cause for an arrest.

Court finds information alleging prior felony properly filed and served

In United States v. Rivas, No. 05-3380, (3d Cir. Mar. 12, 2007), the Third Circuit affirmed the defendant’s conviction for conspiring to distribute crack cocaine, finding no reversible trial error. The Court also affirmed the defendant’s 240-month sentence, rejecting Rivas’s claim that the government improperly filed and served the information charging a prior felony drug conviction pursuant to 21 U.S.C. § 851.

Rivas raised four trial errors on appeal. First, he argued that the district court erred in failing to strike a police officer’s testimony that Rivas was the target of a drug investigation. Rivas argued that the testimony was improper because it suggested to the jury that there was unseen evidence that the defendant had committed earlier, uncharged crimes. The Court held that because the government "at least suggested a possible legitimate reason for the question (to put the controlled buys in context)," any error was not plain, and because the government never referred back to the testimony, Rivas could not show that it affected the outcome of the trial. Second, Rivas claimed that the trial court erroneously allowed the prosecution to improperly vouch for its witnesses in opening and closing argument by arguing that they were telling the truth. The Court found no plain error because the prosecution did not refer to information outside the record to suggest that it knew its witnesses had testified truthfully.

The Court also rejected Rivas’s argument that by instructing the jury that the guilty pleas of alleged accomplices were not evidence of others’ guilt, the district court suggested that the pleas were evidence of the accomplices’ guilt, and, therefore, evidence of Rivas’s guilt since the accomplices pleaded guilty to conspiring with Rivas. The Court did not find the instruction to be plainly erroneous because the instruction explicitly informed the jury that the guilty pleas were not evidence of the defendant’s guilt, and Rivas had failed to demonstrate that the jury adopted his roundabout reasoning. Finally, the Court held that the district court did not abuse its discretion in failing to order a mistrial following the prosecutor’s comment that defense counsel’s "job is to take your focus off the issue." The Court explained that the rationale behind the rule against personal attacks on attorneys is similar to the rationale for the prohibition against vouching, and is therefore only implicated where the prosecution improperly argues about the defense counsel’s mental state "in a way not supported by the record evidence."

Rivas’s sentencing challenge was based on the district court’s denial of his motion to strike an information charging him with a prior drug felony conviction. Rivas argued that the information was not "filed" and "served" within the meaning of 21 U.S.C. § 851 because it did not bear an electronic signature and because his counsel had never received a mailed copy. The Court affirmed the trial court’s findings that any technical noncompliance with the local electronic filing rules was excusable and that the prosecutor had, in fact, mailed a copy of the information to defense counsel.

Child Support Recovery Act does not Exceed Congressional Power Under Commerce Clause

In United States v. Kukafka, No. 05-1955 (3d Cir. Mar. 6, 2007), defendant was found guilty of two counts of failure to make child support payments in violation of 18 U.S.C. §228(a)(1) and (3). Kukafka argued that the Child Support Recovery Act of 1992, as amended by the Deadbeat Parents Punishment Act of 1998, ("the Act"), exceeds the scope of Congress’s power under the Commerce Clause and violates the Tenth Amendment of the U.S. Constitution.

The Third Circuit previously held the Deadbeat Parents Punishment Act constitutional in United States v. Parker, finding that failure to pay child support is a local activity which is part of a national economic problem "substantially affecting interstate commerce," fitting within the third category of activity that Congress may regulate as identified in United States v. Lopez. Kukafka argued that Parker was overruled by United States v. Morrison, in which the Supreme Court struck down portions of the Violence Against Women Act. Morrison held that Congress could not regulate non-economic conduct "based solely on that conduct’s aggregate effect on interstate commerce." The Morrison framework for determining whether a law regulates an activity that has a substantial effect on interstate commerce looks at four factors: (1) the economic nature of the regulated activity, (2) a jurisdictional element to limit the law’s reach, (3) the existence of express congressional findings regarding the effect on interstate commerce, and (4) the link between the activity and interstate commerce. Based upon these factors, the Third Circuit held that the Act regulates an activity with a substantial effect on interstate commerce, it is economic in nature with an explicit jurisdictional element and followed extensive legislative findings about its effect on interstate commerce. The Act therefore falls within Congress’s power under the third Lopez category.

The court went on to find that the Act also falls under the second Lopez category, regulation of persons or things in interstate commerce. Child support payments are "things" in interstate commerce because they are normally transmitted through instrumentalities of interstate commerce and the "persons" targeted by the act are those who intentionally avoid payment by travelling across state lines.

Maximum 60-month Sentence on Revocation of Supervised Release Reasonable

In United States v. Bungar, No. 05-5519 (3d Cir. Mar. 5, 2007), the Third Circuit found reasonable a 60-month sentence upon revocation of supervised release for drug-related violations. Bungar was originally charged with conspiracy to possess with intent to deliver heroin, distribution and possession with intent to distribute heroin and distribution and possession with intent to distribute cocaine. Pursuant to a cooperation agreement, he entered a guilty plea to the first two charges. The mandatory guideline range at the time was 292 - 365 months. The government filed a §5K1.1 motion and the court departed to 96 months’ imprisonment and 5 years’ supervised release.

Two years into supervised release, Bungar admitted to four violations of release: twice testing positive for cocaine, failure to submit verification of drug program attendance, failure to report change of address, and failure to report questioning by police about an alleged assault on his girlfriend. Each are grade C violations with an advisory guideline range of 8 -14 months’ imprisonment. Bungar requested 12 months’ house arrest and the government did not object. Instead, the district court found that admitted use of cocaine was sufficient to find possession, a grade B violation with a range of 21 - 27 months. The court then went even further, finding that a sentence above the range was warranted and sentencing Bungar to the maximum 60 months’ imprisonment. In doing so, the court cited Bungar’s continuing use of drugs, his return to illegal conduct despite the large downward departure he received, his long history of violent offenses and Criminal History Category of VI, his prior drug involvement which resulted in the deaths of two people, that drug counseling had proven ineffective and that he had been questioned regarding an assault on his girlfriend. These demonstrated a continuing threat to the community and a significant breach of the trust given in granting the downward departure.

Holding that the post-Booker reasonableness standard of review applies to a sentence imposed upon revocation of supervised release, the Third Circuit declined to find the sentence unreasonable. In setting the sentence, the district court properly considered the §3553(a) factors as well as application note 4 to §7B1.4, which allows the court to consider the circumstances informing the original sentence resulting in supervised release and states further, "[w]here the original sentence was the result of downward departure, ... an upward departure may be warranted."

Court finds it has jurisdiction to hear § 2255 petition despite waiver of right to mount collateral attack

In United States v. Shedrick, No. 04-2329 (3d Cir. Feb. 28, 2007), the Third Circuit found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.

Shedrick was charged with being a felon in possession of a gun. After police arrested him, two people approached the police and said that Shedrick had shot at their van. Police later arrested the original owner of the gun, who admitted that he had given the gun to Shedrick and implicated Shedrick in dealing crack. Shedrick entered an open guilty plea to the felon-in-possession charge, but at no time did he admit to shooting the van or dealing drugs. In the written plea agreement, Shedrick waived not only his right to direct appeal, but to collateral attack of the proceedings. In pertinent part, the plea agreement permitted Shedrick to raise a direct appeal if the sentencing judge erroneously departed upwards from the Sentencing Guidelines.

While the PSR set Shedrick’s Guidelines range at 46-57 months, the government asked the district court to enhance Shedrick’s offense level by four levels for possessing a firearm in connection with dealing crack, and to depart upward eight levels for shooting the van. At the sentencing hearing, the previous owner of the gun and the driver of the van testified against Shedrick. The district court found them credible, applied the enhancement and the departure, and imposed a 96-month sentence.

Shedrick failed to timely appeal. He filed a § 2255 habeas petition with the district court, alleging that ineffective assistance of counsel caused his failure to timely appeal and stripped him of his right to challenge the departure. The district court denied the petition. The Third Circuit granted a certificate of appealability. The government contended that the waiver deprived the Third Circuit of jurisdiction. The Third Circuit rejected the government’s argument. It held that "[e]nforcing a collateral attack waiver where constitutionally deficient lawyering prevented him from a direct appeal permitted by the waiver would result in a miscarriage of justice. Thus, we have jurisdiction to consider an ineffective-assistance-of-counsel issue."

The Court then reached Shedrick’s two ineffective assistance claims. It rejected the claim that counsel was ineffective at trial for erroneously predicting Shedrick’s likely sentence, as the plea agreement and plea colloquy made clear the statutory maximum and the court’s discretion. The Court then held that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), Shedrick’s counsel rendered ineffective assistance on appeal because (1) Shedrick’s desire to appeal was clear and (2) counsel failed to consult with Shedrick about the appeal.

The Third Circuit consequently granted Shedrick a direct appeal of his sentence. It then heard the merits of the direct appeal and affirmed the sentence, holding that the district court had not erred by applying the departure after finding by a preponderance of the evidence that Shedrick had fired his gun at the van.

Guidelines enhancement for bartering drugs for gun

In US v. Charles Navarro, No. 05-4102 (3d Cir. 2/14/06) (click to link) the 3rd Circuit upheld a 4-level enhancement under USSG section 2K2.1(b)(5) for possession of a gun "in connection with another felony offense."

Navarro, who was charged with being a felon in possession of a gun, had told police he had bartered three rocks of crack cocaine for the gun. At sentencing, the defense objected to a 4-level enhancement under USSG 2K2.1(b)(5) for possession of the gun in connection with a felony -- drug trafficking -- because in the context of the bartering arrangement here, the drug delivery was not sufficiently distinct from the offense of possession of the gun. The district court applied the enhancement.

On appeal, the Circuit interpreted two prior cases, Fenton, 309 F.3d 825 (3d Cir. 2002), and Lloyd, 361 F.3d 197 (3d Cir. 2004), in an effort to "distill" a rule applicable to a bartering situation such as this one. The Circuit concluded that these cases taken together establish a two-part test: 1) "Whether the predicate offense and the firearms offense each have an element not shared by the other." (The Blockburger test.) 2) "Whether more than mere possession of the firearm (such as brandishment or other use) was an integral aspect of the predicate offense." If the answer to both is yes, the enhancement applies.

Applying this test here, the Circuit found first that drug delivery and firearms possession each have an element not shared by the other. Second, the Circuit found that since drug dispensation does not require an exchange of something of value, Navarro's possession of the firearm was not an integral aspect of the offense. The Court thus concluded that the enhancement applied; under this test, the drug dispensation was sufficiently distinct to count as "another felony offense."

Judge Bright (from the Eighth Circuit, sitting by designation) wrote a persuasive dissent. As Judge Bright points out, "In this case, firearm possession was integral to Navarro's drugs for guns exchange" since this exchange was the means through which he came into possession of the gun. The gun was not brandished or used in any other way beyond mere possession, and thus the facts do not meet the second part of the test. Thus, Judge Bright would hold that the enhancement should not have applied.

“Closely-regulated industry” exception to warrant requirement, as applied to PA Liquor Control Board, requires that Board officials conduct search

In a civil action under section 1983 alleging that a warrantless search of their tavern violated plaintiffs’ Fourth Amendment rights, defendants moved for summary judgment on the ground that the search had been conducted lawfully pursuant to the closely-regulated industry exception. That exception "requires that the search or seizure actually be carried out in accordance with a regulatory scheme that provides a constitutionally adequate substitute for a warrant." The defendants argued that the search was authorized under the Pa. Liquor Control Board’s regulations. Because the record showed that the search had been conducted by local police and not by any officials of the Board, the court examined Pa. law to determine whether the search met the requirements of the exception. Reviewing the state statutes and caselaw, the court determined that the regulatory scheme in Pa. only permits warrantless inspection by specified categories of individuals connected to the Board or working under their direction. Because the plaintiffs alleged that the search was performed by local police acting without any grant of authority by the Board, the court reversed the grant of summary judgment and allowed the case to proceed. Watson v. Abington Township, http://www.ca3.uscourts.gov/opinarch/054133p.pdf, 2/16/07.

“Fast-track” programs in other districts do not create “unwarranted” disparities with non-fast-track districts

In a decision that appears to create a conflict with the court’s decision in U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Third Circuit has rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. U.S. v. Vargas, http://www.ca3.uscourts.gov/opinarch/061368p.pdf, 2/16/07. At sentencing for illegal reentry by an alien, the defense requested that the court consider the disparity between his guideline range and the range he would fall in if he were being sentenced in one of the many districts that has a fast-track program. In those districts, where the Attorney General has granted the U.S. Attorney’s office authority to institute a fast-track program, defendants who plead guilty under the program receive a downward departure under U.S.S.G. § 5K3.1. The district court refused to consider the disparity argument and the Third Circuit affirmed. The court reasoned that the refusal to consider the disparity did not render the sentence unreasonable because the disparity was warranted in light of legislative and executive action in fast-track districts. The court left open a window of possibility in cases in which the defense can show that a defendant under exactly parallel circumstances would have received a lower sentence. The court’s legal reasoning is difficult to reconcile with Gunter, where the court held that section 3553(a) requires courts to consider all circumstances in imposing sentence, including the crack/powder cocaine differential approved by Congress and the Sentencing Commission.

“Indecent assault” is a “crime of violence” under the guidelines, categorical approach does not apply and court can look to underlying facts

In U.S. v. Siegel, http://www.ca3.uscourts.gov/opinarch/054537p.pdf, (3d Cir. 2/16/07), the defendant had a prior Pa. conviction for "indecent assault." Under U.S.S.G. § 4A1.1(f), an extra criminal history point is awarded under certain circumstances for prior crimes of violence, as defined under section 4B1.2(a). The question on review was whether the indecent assault conviction qualified as a "forcible sexual offense," one of the enumerated crimes of violence under section 4B1.2(a). The Pa. statute has numerous subsections, some of which have an element of force and some of which do not. The charging information did not identify any particular subsection, but rather listed all of them. Also, the government did not introduce a plea agreement or colloquy from the prior case. Therefore, under a strict categorical approach, the conviction would not qualify. However, applying its 2004 decision in Singh v. Ashcroft, 383 F.3d 144, the court decided that it was not bound by the categorical approach to an analysis of the elements of the offense, because "the disjunctive phrasing of the particular state statute . . . invites inquiry into the specifics of the conviction." The court then looked to the PSR, which contained a factual description of the offense that included the application of force. Because the defense had not objected to the PSR, the court took that as an admission of the facts and concluded that the admission was sufficient for application of the additional criminal history point. This case present a potentially significant inroad into application of the categorical approach to prior conviction enhancements.

Proof Beyond Reasonable Doubt Not Necessary To Apply Sentencing Enhancements That Don't Increase Sentence Beyond Stat Max

[The Third Circuit’s decision in United States v. Grier includes the majority’s opinion, two concurrences and two dissents. The majority opinion, which is fairly straightforward, is summarized below. Summaries of Judge Ambro’s concurrence, Judge Sloviter’s dissent and Judge McKee’s dissent, will follow in a separate post.]

Brief Background: Defendant pled guilty to one count of 18 U.S.C. § 922(g)(1). District Court, employing preponderance standard, applied 4-point enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) (use of firearm in connection with another felony offense), based on finding that defendant committed aggravated assault. Enhancement raised range from 84 to 105 months to 120 to 150 months. Stat max was 10 years. District Court granted 2-level downward departure, lowering advisory range to 100 to 120 months, and imposed sentence of 100 months. Defendant appealed, and initial appellate decision was vacated for rehearing en banc.

The Third Circuit held today in United States v. Grier that facts relevant to sentencing enhancements, even when those facts constitute a separate offense, need not be established beyond a reasonable doubt, so long as the sentence remains within the statutory maximum set by the statute of conviction. The Court reasoned that the jury trial and reasonable doubt guarantees apply only to the facts constituting elements of the charged crime. Once a defendant is convicted by proof beyond a reasonable doubt as to all of the elements, thereby triggering a statutory maximum penalty, "a court may impose any sentence on the individual up to that maximum." That maximum is the one set by Congress in the United States Code. Judicial factfinding for the purpose of setting a sentence within that range does not offend the Constitution. In the course of its decision, the Court distinguished United States v. Jones as involving statutory interpretation rather than a statement of constitutional doctrine and United States v. Cunningham as involving a mandatory sentencing regime.

Turning to the standards of review, the Court held that it will continue to review factual findings for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.

The Court remanded for more specific findings both as to the District Court’s finding that the conduct constituted an aggravated assault and as to its reasoning for the sentence imposed. It emphasized the need for "thorough explication of sentencing decisions" in the wake of Booker.
The Court declined to address the continued viability of United States v. Kikumura, given that the sentence in the instant case was within the guideline range.

Judge Rendell concurred in the judgment, writing separately to add that "due process concerns regarding the standard of proof at sentencing are minimal, if not non-existent, when the sentence is below the statutory maximum, as it was here." She noted the possibility, however, that due process concerns could be implicated when and if a defendant's sentence is "in fact based predominantly on conduct wholly collateral to his convicted crime."

Judge Ambro concurred in the judgment but only because he considers the matter controlled by Supreme Court precedent, namely, McMillan v. Pennsylvania and Harris v. United States. He wrote that while joining the result, he did not join the opinion "because, among other things, I do not agree with its suggestion that the Due Process Clause has no force in criminal sentencing."

More to come...

Large Upward Variance Rejected in First Substantive Sentencing Reversal, as Third Cir. Clarifies That Rehabilitation Is Not Grounds for Imprisonment

The Third Circuit broke new ground today by reversing, as unreasonably long, a 30-month sentence for counterfeiting checks when the Guidelines range was 2-8 months.

The bulk of the Court's opinion in United States v. Manzella deals with the threshold procedural issue of whether district courts may use imprisonment to promote rehabilitation, in this case drug treatment. The Court says "no," based on 18 U.S.C. 3582(a), which states that "imprisonment is not an appropriate means of promoting correction and rehabilitation." The Court explains that this is perfectly consistent with 18 U.S.C. 3553(a)(2)(D), which directs district courts to consider rehabilitation in determining sentence, because "imprisonment" and "sentence" do not mean the same thing. Thus, defendants "[can]not be sent to prison or held there for a specific length of time for the sole purpose of rehabilitation. Instead, that legitimate goal of sentencing is to be accomplished through other authorized forms of punishment." Manzella, slip op. at 21.

But another potentially far-reaching ruling in Manzella is the reasonableness holding. While the primary rationale the district court gave for the 30-month sentence was its belief that this was the minimum to qualify the defendant for BOP's 500-hour drug treatment program, the court also cited the defendant's many violations of her pre-trial release conditions. These were substantial: failure to report to drug treatment, breaking home confinement, and testing positive for cocaine. Manzella, slip op. at 4-5. Additionally, the court made a rote recitation of the other Section 3553(a) factors.

Despite the seriousness of these violations, the Third Circuit held that they "cannot alone justify in this case a sentence nearly four times the advisory Guidelines range." Manzella, slip op. at 24. Nor did it matter that the district court recited the other sentencing factors.

In a final twist, the Court seems to raise the bar regarding the level of explanation of sentence district courts must put on the record. The Third Circuit has always required post-Booker that the record reflect the district court's consideration of all non-frivolous arguments advanced by the parties, but Manzella goes a step further by faulting the district court for failing to state "why [it] disagreed with defense counsel's argument that an alternative sentence [of halfway house detention coupled with intensive drug treatment] would have accomplished the district court's rehabilitative goals." Manzella, slip op. at 24. This is a significantly heightened explanation requirement.

It bears remembering that Manzella presents a quite sympathetic defendant. As the Court's affirmance in Colon earlier this week shows, dramatic upward variances are sometimes approved. So far, it is difficult to tell when the seemingly-tougher review afforded in Manzella will apply.

Third Circuit Upholds Large Upward Variance, Explaining that Ratcheting Procedure Not Required

The Third Circuit clarified yesterday, in United States v. Colon, that the ratcheting procedure district courts must employ when departing upward under the Guidelines for criminal history -- i.e., individually and sequentially considering each next-higher criminal history category -- does not apply to upward variances in consideration of the Section 3553(a) factors. The Court has previously held that ratcheting is still required post-Booker when district courts are departing under the Guidelines, United States v. King, 454 F.3d 187, 193 (3d Cir. 2006), but to require a similarly Guidelines-centric methodology for variances impermissibly "tie[s] the courts hands" by giving the Guidelines undue primacy in the Section 3553(a) calculus. Colon, slip op. at 7. Booker "doubly diminished" the Guidelines, the Court says, first by rendering them advisory and second by putting them on an even plane with the other Section 3553(a) factors. Colon, slip op. at 4.

Here, the demotion of the Guidelines worked to the defendant's detriment. The Third Circuit affirmed a 180-month sentence on a Guidelines range of 70-87 months (offense level 25, criminal history category III). The variance was far in excess of even the Guidelines range for a level 25 offender assuming a category VI criminal history (110-137 months), but was reasonable, the Court held, given the circumstances of the defendant's prior crimes. It remains to be seen whether the Third Circuit will take such a broad view of reasonableness when considering a similarly drastic variance below the Guidelines range.

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Third Circuit Blog
In United States v. Korey, 2007 WL 14686, No. 05-3840, filed 1/4/07, the 3d Circuit vacated the defendant's conviction because the conspiracy instruction given to the jury contained an impermissible mandatory presumption that was not harmless. The instruction foreclosed the jury's consideration of an essential element of conspiracy: that the defendant shared a common goal, which in this case was to advance the cocaine distribution scheme.

65-year sentence affirmed for first offender convicted of 924(c) in triplicate.

Nope, not a typo . . . In United States v. Walker, No. 04-4405 (1/16/07), the Third Circuit affirmed a 65-year sentence for two armed robberies a jury said Mr. Walker committed in late 2004, as well as his possession of a firearm in connection with three crack-related offenses. The sentence consisted of a 10-year concurrent sentence for the drug offenses, and consecutive sentences, totaling 55 years, for three violations of 18 U.S.C. § 924(c).

At issue on appeal was "whether the 55-year consecutive mandatory minimum portion of [Mr. Walker's] sentence . . . violate[d] the Fifth and Eighth Amendments. op. at *1. Mr. Walker argued that 924(c)'s sentencing scheme violated due process and the separation of powers by limiting a court's sentencing discretion and preventing individualized sentencing. Reaffirming its decision in United States v. MacEwan, 445 F.3d 237 (3d Cir. 2006), the Court dismissed this claim, noting again that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion." op. at *3. The Court also reaffirmed that "there is no due process right to individualized sentencing." Id.

Mr. Walker also argued his sentence violated equal protection in that it was irrational when compared with the punishments for other more serious federal crimes. Specifically, he noted that his sentence for offenses involving only the potential for violence was more severe than some sentences for offenses involving actual violence. The court dismissed this argument noting that the potential sentences for the referenced violent offenses could also be longer than the one Mr. Walker received.

Mr. Walker also argued that his sentence was irrational because 924(c)'s scheme of escalating sentences for subsequent convictions failed to differentiate between a true "recidivist" and a first time offender who is convicted all at once of more than one 924(c) offense. The Court dismissed this claim, noting that the Supreme Court's decision in Deal v. United States, 508 U.S. 129 (1993), held that 924(c)'s consecutive sentencing provision need not be limited to "recidivists."

Mr. Walker next argued that his sentence constituted cruel and unusual punishment. Applying the three part test set out in Solem v. Helm, 463 U.S. 277 (1983), for determining Eighth Amendment violations, the Court explained that the first step - a disproportion between "the gravity of the offense and the harshness of the penalty" - acts as a gateway, and if the first step does not exist there can be no Eighth Amendment violation. op. at ** 7-8. Noting that it must "grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishment for crimes," the Court found that the relationship between the harsh penalties under 924(c) and Congress' purpose for the penalties (to protect society "from violent criminals who repeatedly demonstrate a willingness to employ deadly weapons") was reasonable. op. at *9. Thus, the Court found that Mr. Walker's sentence was not grossly disproportionate from the gravity of his crimes, and accordingly found no Eighth Amendment violation.

Finally, Mr. Walker argued that 924(c)'s mandate of consecutive 25-year sentences conflicts with the parsimony clause in 18 U.S.C. § 3553(a) that courts "impose a sentence sufficient, but not greater than necessary." Based on this conflict, Mr. Walker argued that the rule of lenity mandated a lower sentence. The Court dismissed this claim, explaining that the rule lenity only applies where there is doubt about a statute's scope and that there was no doubt about the scope of 924(c).

Third Circuit Blog

Third Circuit Blog
In US v. Williams, 2007 WL 14684 (C.A.3(Pa.)), No. 05-4292, filed 1/4/07, the 3d Circuit reiterated the standard for when double jeopardy bars a retrial following a government-provoked mistrial. The district court had granted a mistrial for prosecutorial misconduct (after the prosecutor questioned the defendant about prior convictions despite the court's order not to do so) and then granted the defendant's motion to dismiss the indictment on double jeopardy grounds after finding that the prosecutor intended to provoke the mistrial. The 3d Circuit disagreed, finding that the record evidence did not sufficiently establish that the government intended to goad the defendant into requesting a mistrial. It reversed and remanded for a new trial.

Cross Examination: Prosec can't ask Def if police are lying

In US v. William Harris, No. 05-2016 (3d Cir. 12/29/06), the 3rd Circuit held as a matter of first impression in the Circuit that "asking one witness whether another is lying is inappropriate." But since there was no objection in this case to the prosecutor's questions of defendant regarding whether the police witnesses were lying, the issue was reviewed for plain error. Since the Circuit had not yet ruled until this case, the error was not "plain." Nearly all other circuits have ruled that such questions are improper and may constitute reversible error if a timely objection is made.

These sorts of cross-examinantion questions are particularly common whenever a defendant testifies. Thus, in light of Harris, it is now especially important to object anytime the prosecutor asks the defendant (or any other defense witness) if the police witnesses must be lying.

Sentencing and the Parsimony Provision

In US v. Shalon Dragon, No. 05-4906 (12/29/06), the 3rd Circuit ruled that district courts need not expressly apply the "parsimony provision" when sentencing.

Dragon pleaded guilty to identity theft and faced a guideline range of 37 to 46 months in prison. The judge imposed 44 months, and Dragon appealed arguing that the judge failed to articulate why a lower sentence within the guideline range would not have been sufficient. Dragon argued that this omission violated the "parsimony provision" in 18 usc 3553(a), which states:

The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this
subsection [which lists the four basic purposes of sentencing].

The Circuit ruled that "district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in section 3553(a)(2)." Instead, the judges need only state adequate reasons for the sentence, give due consideration to the 3553(a) factors, and consider any arguments properly presented by the parties which have legal merit and a factual basis.

As Prof. Berman aptly sums it up in his blog (click here): "So, to review, after Booker district courts must still precisely and accurately calculate advisory guideline ranges, but they need not explain how their sentences comply with the one mandatory directive that Congress set forth in § 3553(a). Might one suggest this is another example of activist judges putting their policy preferences over the express text enacted by Congress?"

On the other hand, note that this issue was not expressly raised before the sentencing court, and thus the review before the Circuit was for plain error. The parsimony provision argument may fare better if expressly raised legally and factually before the sentencing court, since then it is an argument "properly presented by the part[y] which [has] legal merit and a factual basis in the record." For this reason, defense counsel should certainly continue to press this argument in the district courts.

Fraud - Insufficiency of Evidence

In US v. Aimee Jones, No. 05-4898 (12/28/06), the 3d Circuit reversed the defendant's conviction for health care fraud (18 usc 1347(2)), finding that the evidence was insufficient. The Court ruled that although the government may well have established that defendant stole money from the federally funded methadone clinic where she worked, the government did not establish that defendant used false or fraudulent representations to get the money.

Defendant's role as a clerk in the clinic was to collect fees for services provided. Evidently she kept some of the fees instead of depositing them. But these acts did not involve any misrepresentation, and nothing defendant did affected the delivery of or payment for the health care services. In the absence of any such evidence, the elements of health care fraud were not established. To read the health care fraud statute any more broadly than this would be to allow it to cover simple theft, which is already covered by a separate statute. Statutes should not be read in a manner that would render other statutes superfluous.