Defendants Convicted of Crack Offenses Who Received Cooperation Departures Below the Mando are not Barred From Seeking a Sentence Reduction Under Section 3582(c)(2)

In United States v. Savani, Nos. 11-4359/11-4494/12-1034, the Third Circuit held that Amendment 750 to the Sentencing Guidelines superseded United States v. Doe, 564 F.3d 305 (3d Cir. 2009), and allows defendants who were sentenced below their mandatory minimum sentences for substantial assistance to move for a sentence reduction under 18 U.S.C. § 3582(c)(2). The three appellants in Savani were in similar positions. All three were facing mandatory minimum sentences for crack offenses - Savani and Herbert were facing 10 years, and Roe was facing twenty years, due to his prior conviction. All three defendants entered into cooperation plea agreements with the government, and they all received sentences below the mandatory minimums.

After the Fair Sentencing Act ("FSA") was passed in August 2010, the Sentencing Commission amended U.S.S.G. § 2D1.1 by reducing the guidelines to correspond to the18:1 ratio that now triggers mandatory minimum sentences under the FSA. All three defendants filed motions to reduce their sentences under § 3582(c)(2). All three motions were denied by the district courts, citing Doe.

Doe held that the Sentencing Commission’s policy statement § 1B1.10(b)(2)(b), precluding sentence reductions if a defendant’s "applicable guideline range" is not reduced by the amendment, prevented reductions in cases like these. "Applicable guideline range" was not then defined, but the Doe Court ruled that it must mean the starting point for calculation of the sentence - in these cases, the mandatory minimum, not the crack guideline range. Thus, the defendants were ineligible under § 3582(c)(2), because even if their departures were somehow "based on" the now-lower crack guideline range, granting relief would be inconsistent with the Commission’s policy statement.

In 2011, however, when the Commission issued the most recent retroactive crack amendment, it also offered a definition of the term "applicable guideline range." According to Application Note 1(A) to U.S.S.G. § 1B1.10, the"applicable guideline range" is "the guideline range that corresponds to the offense level and criminal history category determined pursuant to U.S.S.G. § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance." U.S.S.G. § 1B1.10 cmt. n.1(A).

In a 2-1 decision, the Court determined that this language supersedes Doe, and that the defendants were eligible for relief. The majority reached this decision on rule of lenity grounds. It first examined multiple Guidelines provisions, seeking to clarify the definition and the Commission’s intent, but it concluded that it was unclear whether - in the context of cooperators receiving substantial assistance departures - the definition referred to the guideline range or the mandatory minimum guideline sentence.

Judge Fuentes filed a separate opinion concurring in the result, but expressing the opinion that the plain language of the emergency amendments rendered the appellants eligible for sentence reductions. His opinion relied primarily on an analysis of the language of the definition as compared with the eight-step sentencing process.

The government is considering whether to seek rehearing or to petition for certiorari.  However, in the meantime, the government may not oppose bail for defendants who might otherwise be eligible for immediate release under the amendment.

Congratulations to Sarah Gannett for an amazing job, and special thanks for her help on this post!

Erroneous application of sentencing enhancement is harmless when it had no effect on the sentence

Judge Hardiman opened United States v. Zabielski, No. 11-3288, (April 3, 2013) by noting that since United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines were no longer “diktats.” However, trial judges must still accurately calculate the Guidelines range and correctly rule on departure motions. Though failure to do so will usually result in the Court of Appeals vacating a sentence and remanding for a new sentencing hearing, a sentencing court’s omission in this regard might be so immaterial that the error will be held harmless.  The insignificance of such an error is why Mr. Zabielski’s sentence was left intact.

Mr. Zabielski pled guilty to a bank robbery. He handed a note to a teller demanding $10,000. When the teller asked him what account he wanted to withdraw the funds from, he made clear that he was robbing the bank. One of the clues the teller noticed was a bulge in his jacket that looked like it held a gun or knife; the other was his statement that he was in a hurry.  He made off with $4767.00. Later, he told several people about the robbery, including his mother, who told him to give the money back.  He mailed most of it back from another town.  Still, within two days of the robbery, when interviewed by law enforcement, he lied about his whereabouts at the time of the crime. He was indicted, and pled guilty. Although his motion for a downward departure was denied at first, his allocution persuaded the sentencing court he was remorseful, and he received a thirteen month downward departure, and a sentence of only twenty four (24) months. Mr. Zabielski then appealed. His central claim was that the sentencing court erroneously applied a two level enhancement for threat of death.

Reviewing past cases, the Court found that Mr. Zabielski’s actions during the robbery— the bulge, the command to hurry (“you have two minutes”)— was not clearly a threat of death, as least by pre-Booker precedent. However, as a result of Booker, such enhancements are not as significant as they were before. Therefore, the Court went on to determine whether or not the error was harmless, which in this meant assessing whether or not the enhancement affected the sentence. Enhancements, the Court noted, are meant to highlight some particular set of facts from the crime. Sentencing errors are likely to be harmless when it is clear from the record that when the sentencing court decided to vary from the Guidelines, or even when an enhancement is erroneously applied, the sentencing court understood the facts of a case, grasped their significance, and incorporated them into a just sentence.

In this case, the Court found that the sentencing court demonstrated an awareness of the crime, including Mr. Zabielski’s demeanor, appearance, and statements when he robbed the bank. It appreciated the “context surrounding” Mr. Zabielski’s conduct. There was a thorough analysis of 18 U.S.C. §3553(e) factors, and Mr. Zabielski received a big break. The sentence was one that fell below the range that would have applied without the enhancement. All of this rendered any threat from the imposition of the enhancement harmless. The Court did warn that in the future, absent a statement from a sentencing court that the enhancement had no effect on the imposed sentence, it will be hard to state that any erroneous application was harmless.

Mr. Zabielski also challenged the “substantial reasonableness” of the sentence. He complained of the sentencing court’s reliance on unsubstantiated assumptions about his criminal record, unsubstantiated assumptions about his criminal background, mental health, and drug abuse, and his being sentenced to an increased term of imprisonment to facilitate his rehabilitation. Applying its deferential standard of review, it rejected these claims.  Though the sentencing court made stray and possibly speculative statements about Mr. Zabielski’s supposed drug abuse and mental health problems, the Court found that when viewed in the context of the sentencing court’s entire statement of reasons, those statements were not central to the explanation for the sentence.  Moreover, Mr. Zabielski did not dispute that he used illegal drugs and drank alcohol. Also, Mr. Zabielski had received treatment for mental illness. The sentencing court’s remarks on the subject were in response to his arguments that he would not receive proper treatment for mental illness in prison. Mr. Zabielski’s sentence of twenty-four months for a bank robbery therefore stood.

Photograph of 500,000th error in Major League Baseball from the New York Times.

Use of a drug-sniffing dog on a front porch is a Fourth Amendment intrusion

In Florida v. Jardines, 11-564 (March 26, 2013), in a 5-4 decision, the United States Supreme Court affirmed suppression of evidence of marijuana obtained in violation of the Fourth Amendment. After an unverified tip that Jardines was growing marijuana in his home, police observed the home for 15 minutes, saw no movement and could not see into the house through drawn blinds, and then brought a drug-sniffing dog onto the porch who ran around on a 6-foot leash and positively identified the odor of marijuana and the door to the home as the strongest point source of the odor. Based on those observations, officers obtained a search warrant. Justice Scalia, writing for the majority, found the case "straightforward." The porch is the curtilage of the home which enjoys protection as part of the home itself. Entry onto the porch with a trained drug-sniffing dog to find incriminating evidence was an unlicensed physical intrusion outside the scope of social custom. The officers’ purpose in entering the porch is relevant to whether they had an implied license to be there. Regardless of whether the investigation violated Jardines’ expectation of privacy under Katz v. United States, 389 U.S. 347 (1967), the officers’ conduct intruded upon the “property rights baseline” of the Fourth Amendment. Three concurring justices would have affirmed the suppression on privacy and property grounds.

922(g)(1) is a continuing offense so possession must be relinquished to support two convictions; constructive possession of gun and drugs; parole status was “helpful background” under 404(b)

In United States v. Benjamin, 11-2906 (3d Cir. March 26, 2013), Benjamin was convicted of possession with intent to distribute crack and marijuana and two counts of being a felon in possession. The same weapon supported the two felon-in-possession convictions: Benjamin used it at a gun range and it was also found in his house. On appeal, Benjamin did not challenge that he possessed the gun at a gun range. The Third Circuit affirmed that there was sufficient evidence for the drugs and gun possession under a theory of constructive possession. Constructive possession is established by dominion and control (“more” evidence), not mere proximity. The gun was found in the basement where Benjamin worked, a gun box was found under a shared bed, and ammunition was found in a shared closet. The government also argued evidence Benjamin was involved in the drug trade strengthened his connection to the gun. The drugs were found in a secreted location in the basement, an expert testified a book next to Benjamin’s bed was a drug ledger, and nitrile gloves (that an expert testified parolees use to avoid detection when packaging narcotics) were found in the kitchen and in Benjamin’s car. The Court found that entry of two convictions for being a felon in possession was error and the second conviction had to be vacated. The Court held that 18 U.S.C. § 922(g)(1) is a continuing offense so there must be an interruption in continuity and possession – relinquishment of actual and constructive possession – to charge it twice. There was no evidence that Benjamin’s constructive possession was ever interrupted, and evidence that Benjamin and his fiancée were not always home at the same time was insufficient. The Court also found this error was plain, affected Benjamin’s substantial rights because there are adverse consequences even when a defendant is sentenced to concurrent terms, and it was appropriate for the Court to use its discretion and grant relief. The Court found that continued reference to Benjamin’s parole status was admitted for the proper purpose of being “helpful background” under Federal Rule of Evidence 404(b). The references were essential to the trial and were also relevant to Benjamin’s motive for using an alias, using gloves to hide drug trafficking, and to explain Benjamin’s fiancée’s testimony about hiding the gun. Moreover, the court minimized the prejudice by precluding evidence that Benjamin had underlying drug trafficking convictions.

Reviewing for abuse of discretion, no attorney's fees under the Hyde Amendment for defendant after prosecution dismissed

In United States v. Manzo, 12-2294 (3d Cir. March 25, 2013), Manzo appealed the District Court’s denial of his request for attorney’s fees, which he had sought after a prosecution for violations of the Hobbs and Travel Acts was dismissed. Manzo had been a candidate for mayor of Jersey City and allegedly took campaign contributions with the promise he would help the contributor once elected. Under the “Hyde Amendment,” a statutory note to 18 U.S.C. § 3006A, a prevailing party may seek reasonable attorney’s fees if the position of the United States was “vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” Reviewing for abuse of discretion, the Third Circuit affirmed denial of attorney’s fees. The Third Circuit explained a petitioner shows a prosecution was: (1) vexatious if the criminal case was objectively deficient and the government’s conduct “when viewed objectively, manifests maliciousness or an intent to harass or annoy”; (2) frivolous if the action was “groundless, with little prospect of success”; and (3) pursued in bad faith, meaning “not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity.” The Court found the government had not acted vexatiously, frivolously, or in bad faith: (1) it had continued to prosecute under the Travel Act when the Hobbes Act counts were dismissed after the District Court’s first ruling that the New Jersey bribery statute clearly encompassed Manzo’s conduct, and (2) Manzo’s brother’s testimony that Manzo had not received cash from the cooperator, even if true, did not establish that the facts alleged in the indictment were blatantly false. The Court also rejected arguments based on conflict of interest and miscellaneous allegations of prosecutorial misconduct.

Third Circuit Weighs in on SORNA Interim Rule: Failure to Follow APA Procedures Means SORNA Cannot Apply Retroactively

In United States v. Reynolds, No. 08-4747, the Court held that the DOJ’s interim rule applying SORNA retroactively to defendants convicted before its enactment, is invalid due to DOJ’s failure to follow proper APA procedures. (The case was on remand from the Supreme Court, which ruled that Reynolds had standing to raise the APA issue.)

The Court considered three questions in Reynolds: (1) the proper standard of review — abuse of discretion or de novo — for reviewing an agency’s decision to forego notice and comment; (2) whether the Attorney General had "good cause" to waive the notice and comment requirement in promulgating the interim rule; and (3) if the Attorney General lacked "good cause," whether the failure to comply with the APA prejudiced Reynolds. There are Circuit splits on each of these issues (carefully described in the opinion)making it possible, if not probable, that the Supreme Court will take up some or all of the questions at some point.

The Court did not decide the first question on standard of review (which appears to be a thorny question on which even prior Third Circuit opinions are in tension). It concluded that even under the most deferential standard, the Attorney General’s decision to forego APA procedures did not pass muster.

The Attorney General had cited two main reasons as "good cause" for foregoing notice and comment. First, that delaying adopting of the rule would mean that the law effectively would not be retroactive; and second, that public safety required making the rule retroactive immediately. The Court rejected both. The first put the cart before the horse: the purpose of the notice and comment period would have been to seek input on whether retroactivity was the right result at all. The second was too generic: Congress knew that sex offenders were a threat to public safety when it enacted the law, but chose neither to legislate retroactivity nor to grant DOJ permission to evade the APA’s requirements. DOJ offered no additional evidence to support its "perception of urgency" in enacting the interim rule without notice and comment.

Because of the liberty interest at stake in a criminal proceeding, the Court placed the burden on the government to show that Reynolds was not prejudiced by the failure to follow the APA procedures. Here, given the complete failure to follow procedure, the government cannot meet that burden. There was no opportunity to develop a record, test the regulations, and ensure fairness to affected parties by the process, and there is no evidence that the Attorney General maintained a flexible and open-minded attitude toward the rulemaking.

Congratulations to the W.D. Pa. team (especially Candace Cain, Jay Finkelstein, Christopher Brown, and Lisa Freeland) on a great win!

Discovery of contraband in a shared cell is sufficient to warrant loss of good time credits

In Denny v. Schultz, Docket No. 11-1450 (3d Cir. Feb. 15, 2013), the Third Circuit considered the question of what limit the Due Process Clause places on the constructive possession theory in the prison context. Inmate Denny shared a cell with one other inmate. During a routine search of the cell, a corrections officer found two metal shanks located in the duct work of a ceiling vent. The duct was accessible from both Denny's cell and the adjacent cell, which housed an additional three inmates. Denny and his cell mate were both charged with possession of a weapon, but the inmates in the adjacent cell were not charged. Denny was sanctioned and received sixty days in disciplinary segregation and the forfeiture of forty days good time credit.

After exhausting his administrative remedies, Denny filed a 28 U.S.C. § 2241 petition. The district court sua sponte dismissed the petition, finding that the Disciplinary Hearing Officer's (DHO) findings were supported by "some evidence," including the fact that the contraband weapons were found in the duct work of Denny's assigned cell (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)). Denny appealed.

On appeal, the Third Circuit agreed that the "some evidence" standard applied and that it need only find that the DHO's decision had "some basis in fact" in order to affirm the decision as comporting with the Due Process Clause. The Court then noted that other courts to have considered this question have uniformly held that the discovery of contraband in a shared cell constitutes "some evidence" of possession sufficient to uphold a prison disciplinary sanction, including the loss of good time credits, against each inmate in the cell under a theory of collective responsibility or collective guilt. Applying this theory, the Court concluded that the undisputed discovery of two shanks in a space accessible within Denny's cell constituted "some evidence" that Denny possessed the weapons in question. Accordingly, the DHO did not violate Denny's due process rights by finding he had committed the prohibited act and sanctioning him with a loss of good time credit.

Judge Rendell filed a dissenting opinion, arguing that constructive possession required either the exercise of dominion or control, or the power and intention to exercise dominion or control, over the property. Because such evidence was absent, Judge Rendell would have reversed the district court's sua sponte dismissal of Denny's habeas petition and remanded for resolution on the merits.

General appellate waiver does not bar appeal of subsequent modification of terms of supervised release

Deciding a matter of first impression, the Third Circuit, in United States v. Wilson, Docket No. 12-1881 (3d Cir. Feb. 14, 2013), ruled that a defendant's broad, general waiver of appellate rights encompassed only his original sentence, not the subsequent modification of the terms of his supervised release.

Wilson pled guilty to two federal drug charges. His plea agreement contained a waiver of his right to appeal or collaterally challenge his conviction and sentence. After sentencing, Wilson filed a Notice of Appeal, but the Third Circuit enforced the waiver and affirmed his conviction and sentence. Wilson was eventually released from prison and began serving a six year term of supervised release. About three months into his term, his Probation Officer filed an application to modify the terms of Wilson's supervised release to include participation in a mental health program as an additional condition. The district court agreed to the requested modification and ordered Wilson to undergo a mental health assessment and, if necessary, to participate in an approved mental health treatment program.

Wilson appealed. The government moved to dismiss the appeal on the basis of the appellate waiver, arguing that the word "sentence" in Wilson's appellate waiver encompassed any challenge to the terms and conditions of that sentence, including subsequent modifications of the terms of his supervised release. The Third Circuit rejected this argument and adopted the reasoning of several other Circuits holding that a general waiver of appellate rights with respect the original sentence does not foreclose a challenge to a post-sentencing order modifying the terms and conditions of the original sentence. The Court found that, while Wilson's appellate waiver could reasonably be understood to encompass a waiver of  his right to appeal the "sentence" imposed at sentencing and memorialized in the judgment and commitment order, it did not waive a right to appeal a later modification of his "sentence."

After concluding that Wilson's appeal was not barred by the appellate waiver, the Third Circuit considered the merits of Wilson's appeal and affirmed the modification of Wilson's terms of supervised release.

Intended Loss Not Necessarily Potential Loss in Credit Card Fraud

In United States v. Diallo, ___ F.3d ____, 2013 WL 150125 (3d Cir., Jan. 15, 2013), the defendant pled guilty to possessing over 15 counterfeit credit cards. The government calculated an actual loss amount of $160,000. However, at sentencing, the government argued that the defendant should receive a 16-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(1), based upon the intended loss. Specifically, the government asserted that the counterfeit credit cards provided the defendant with access to a combined credit limit of $1.6 million. However, there was no evidence presented that the defendant actually knew the credit limits of the counterfeit cards. Nonetheless, the district court accepted the government’s argument and sentenced the defendant to 70 months, at the bottom of the 70-87 month guideline range. However, the Third Circuit refused to endorse a blanket rule that the intended loss amount should be the cards’s credit limit in every credit card fraud case. Citing United States v. Geevers, 226 F.3d 186 (3d Cir. 2000) and United States v. Titchell, 261 F.3d 348 (3d Cir. 2001), the court reiterated the general rule that the potential loss is not necessarily the intended loss in all fraud cases. Therefore, it would be error for the district court to presume that the aggregate credit limit alone is sufficient to constitute a prima facie case of intended loss in a credit card fraud case. Instead, the district court must conduct a "deeper analysis" to determine whether it is proper to equate potential loss with intended loss. After reviewing the district court’s analysis, the Third Circuit ruled that it was not sufficiently "deeper." The Third Circuit concluded that, based upon the district court’s limited analysis, it appeared that the district court simply equated potential loss with intended loss, which it had instructed against in Geevers and Titchell. The Third Circuit ultimately vacated the sentence and remanded the case for resentencing.

S.Ct.: Conspiracy SOL and Burden on Defense of Withdrawal

SUPREME COURT: Smith v. United States, --- S.Ct. ----, 2013 WL 85299 (U.S. Jan. 9, 2013). Held: A defendant bears the burden of proving a defense of withdrawal from a charged conspiracy. Allocating this burden to the defendant does not violate the Due Process Clause. Withdrawal does not negate an element of the conspiracy crimes charged here, but instead presupposes that the defendant committed the offense, thus the government has no constitutional duty to overcome the defense beyond a reasonable doubt.

Absence of Proof on Element of the Offense Overcomes Appellate Waiver

United States v. Castro, --- F.3d ----, 2013 WL 69214 (3d Cir. Jan. 08, 2013).  Former Philadelphia Police Department official Castro was indicted in connection with debt collection extortion schemes. Following a trial, a jury convicted Castro on one count of making a material false statement to federal agents (18 U.S.C. § 1001), acquitted him on one count of conspiracy to commit extortion (18 U.S.C. § 894) and hung on eight other counts. Castro then pled guilty to a single count of conspiracy to commit extortion (18 U.S.C. § 1951) and the government dismissed the remaining charges. The plea agreement contained an appellate waiver provision. At sentencing, the district court imposed 18 months imprisonment for the false statements count and 60 months concurrent for his plea for conspiracy to commit extortion.  Castro appealed, arguing that: (1) the false statement conviction should be vacated because when he lied to the FBI, denying he had received any money from the victim in repayment of a lost investment, in fact, he had not received any repayments from the victim because he had instead received money from the FBI in a sting operation, therefore his denial was not "knowing" or "false"; (2) his sentence was procedurally unreasonable because the district court denied the government's motion for the third acceptance of responsibility point under the sentencing guidelines, as the government’s discretion is entitled to deference; and (3) the 60–month sentence is procedurally and substantively unreasonable because the advisory range suggested a sentence of 33 to 41 months, the court did not adequately take into account evidence of his good character and failed to explain why an upward variance was necessary to fulfill the proper purposes of sentencing.

The Circuit first held that although Castro was convicted by a jury of the false statements count before entering into the plea and accepting the waiver, the appellate waiver covered his conviction for making material false statement to federal agents. The Court focused on the language of the waiver, "voluntarily and expressly waives all rights to appeal . . . any other matter relating to this prosecution," finding that this language clearly encompassed the earlier conviction on the false statement charge. The Court also found that the waiver was entered into knowingly.

But moving to the miscarriage of justice analysis, the Court agreed with Castro that he did not make a false statement when he stated that he received no payment from the victim. In evaluating for the first time a claim of miscarriage of justice based on insufficiency, the Court looked to the plain error context for guidance. Under the plain error standard, a "manifest miscarriage of justice" occurs where the record is "devoid of evidence pointing to guilt." Section 1001, the false statement statute, requires the accused knowingly and willfully make a material false statement in a federal matter. Because Castro’s statement that he did not receive any payments from the victim was actually, if unintentionally, true (because it was FBI sting money), the government could not establish that he made a statement that was untrue. The defense of literal truth applies. The Court rejected the government’s suggestion of a "sting operation exception," because there is simply is no exception in the statute. The court concludes that the complete failure of proof on this element meets the miscarriage of justice standard, requiring reversal on the false statements count.

With respect to Castro’s argument that the district court's rejection of the government's motion for the third acceptance point was error, the Court found the issue covered by the appellate waiver and declined to reach the merits. Finally, the Court’s reversal of the false statements count requires remand for resentencing and the Court did not need to otherwise reach the reasonableness of the sentence.

Collateral Consequences Not Presumed on SR Revocation

United States v. Huff, --- F.3d ----, 2013 WL 93165 (3d Cir. Jan. 09, 2013). The district court revoked Huff's supervised release and sentenced her to ten months’ imprisonment with no supervised release to follow. Huff was released from custody while her appeal was pending. The Circuit held that the presumption of collateral consequences did not apply to a defendant's challenge to a revocation of supervised release. Because Huff's unconditional release from prison rendered the case moot, the appeal was dismissed for lack of jurisdiction.

Under the Modified Categorical Approach, Sentencing Courts May Only Consider the Charging Documents and the Jury Instructions When Determining if a State Offense is a Predicate Offense Under ACCA.

    After pleading guilty to violating 18 U.S.C. § 922(g)(1), Dantey Tucker was sentenced to fifteen years imprisonment based on the sentencing enhancement set forth in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).  His classification as an armed career offender was based on one prior state conviction for a violent felony, a conviction for possession of a controlled substance with intent to deliver in violation of 35 PA. STAT. ANN. § 780-113(a)(30), and a conviction for conspiracy to sell drugs in violation of 18 PA. CONST. ANN. §903.  Only the district court’s classification of the prior drug offenses as serious drug offenses was in dispute at sentencing and on appeal.  Specifically, Tucker argued that the district court erred in finding that his two state drug convictions were serious drug offenses within the meaning of the ACCA.  Applying the  “modified categorical approach,” in United States v. Tucker, No 12-1482 (3d Cir., December 21, 2012), the Third Circuit held that the conspiracy charge was not a serious drug offense, but the possession conviction was a serious drug offense because it was based on a finding that the offense involved cocaine. 

    At sentencing, Tucker had argued neither of his prior drug convictions required a factual finding as to what type of drug was involved and therefore did not trigger the ACCA enhancement.  Since the language of the applicable state statutes was broad and not equivalent to a federal predicate offense, Supreme Court precedent -Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005)- required the sentencing court to apply the modified categorical approach.  This approach allows for a limited inquiry into the elements of an offense that a jury is required to find in order to convict a defendant. In conducting such a review, courts are limited to looking at the charging documents and the jury instructions.    

    The charging document for Tucker’s conviction for possession with intent to distribute (§ 780-113(a)(30)) explicitly listed cocaine as the controlled substance.  The conviction specifically required a finding that he possessed cocaine.  Therefore this prior qualified as a serious drug offense.  Also, since the district court’s finding was consistent with Supreme Court precedent and the modified categorical approach, the Third Circuit rejected Tucker’s argument that the district court’s determination that this was serious drug offense conflicted with the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the Sixth Amendment. 
                                               
    However, it was unclear if Tucker’s conviction for conspiracy to sell drugs (§903) was for conspiracy to sell cocaine (which would trigger the ACCA) or conspiracy to sell marijuana (which would not trigger the enhancement).  Applying the modified categorical approach, the Third Circuit reversed the sentencing court’s finding that this prior conviction qualified as a serious drug offense, because neither the Bill of Information nor the jury instructions required the jury to find that the offense involved a conspiracy to sell cocaine in order to convict Tucker.  In fact, the type of drug was never specified in the charging document or jury instructions which simply referred to a “conspiracy to sell drugs.”  The appellate court further found that the district court erred in considering transcripts from the charging conference and sentence hearing, which fell outside what the court was allowed to consider under Taylor.  Also, although the circuit court agreed with the government that the jury most likely convicted Tucker for conspiracy to sell cocaine rather than marijuana, the modified categorical approach does not allow for an enhancement based on speculation.  As such, this prior was not a predicate offense for ACCA enhancement and the case was remanded for sentencing. 

The First Paragraph of 18 U.S.C. § 1546(a) Prohibits the Possession or Use of Authentic Immigration Documents Obtained Fraudulently

In United States v. Kouevi, No. 10-3529 (October 24, 2012), the Third Circuit addressed the issue of whether the defendant’s conduct was criminalized by the first paragraph of the visa fraud statute, 18 U.S.C. § 1546(a). This appeal raises a question of statutory construction that is an issue of first impression in our Circuit.

Kouevi was born in Lome, Togo. The Government contends that he conspired with others to use fraudulent means to obtain authentic visas for at least 34 people through the American Embassy in Togo, and that those persons then used those visas to enter the United States.

The schedule involved “diversity visas”, which are made available to citizens of countries who send relatively low number of immigrants to the United States each year. The visas are a means of promoting diversity within the annual pool of immigrants entering the United States.

According to the evidence at trial, Kouevi and his co-conspirator worked with individuals in Togo who were actually eligible for diversity visas, but were unable to either complete the necessary paperwork, pay the required fees, or afford the airfare to travel to the United States.

A co-conspirator paid the required fees of persons who were eligible for the diversity lottery and assisted them in completing their paperwork. In exchange, the applicants were required to falsely represent that other unrelated individuals were their spouses and/or children, so that those individuals could also obtain visas to enter the United States under the program.

Kouevi was responsible for coordinating the preparation of false documents used to support the fraudulent visa applications, and he tutored participants in the details of their false identities to prepare them for their interviews at the American Embassy in Togo. He also accompanied visa applicants to government offices in Togo and helped them acquire false passports, marriage certificates and similar documents required to support their visa applications. This included obtaining additional false evidence of purported relationships including fake wedding rings and fake wedding pictures. He quizzed the applicants about the details of their identities and otherwise coached them in how to successfully interview at the American Embassy. He then took them to the American Embassy for their interviews. In return, his co-conspirator helped him fraudulently obtain his own visa and paid his costs for the visa and airfare to the United States.

Kouevi was subsequently charged in a two-court indictment with conspiracy to commit visa fraud, in violation of 18 U.S.C. § 37, and visa fraud, in violations of 18 U.S.C. § 1546(a). He was convicted on both counts and sentenced to 26 months imprisonment.
Kouevi contends that his conviction for violating 18 U.S.C. § 1546(a) should be reversed because the first paragraph of the statute he was convicted of violating does not criminalize activities involving authentic immigration documents. His argument attempts to distinguish between producing a counterfeit or fraudulent passport or visa and obtaining an authentic passport or visa by fraudulent means.

The Court held that the plain language of the statute reveals that the first paragraph of 18 U.S.C. § 1546(a) prohibits the possession or use of authentic immigration documents which are obtained by fraud.

Government may object to timeliness of appeal at any point up to and including its merits brief

In United States v. Muhammud, 10-3138 (Decided: Sept. 28, 2012; Published Nov. 5, 2012), the Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief.

Appellant Muhammad's guilty plea contained an appellate waiver and a collateral attack waiver. He did not directly appeal his conviction, but did file a 28 U.S.C. § 2255 petition nearly one year after his conviction became final, arguing that his guilty plea had been entered under duress. The district court enforced the waiver, dismissed the petition and denied a Certificate of Appealability (COA). The Third Circuit also denied Mr. Muhammad's request for a COA.

One year after the denial of his request for a COA and two years after his conviction became final, Mr. Muhammad filed a notice of appeal from his judgment of conviction. The government, believing the notice of appeal was challenging the dismissal of the § 2255 petition, did not move to dismiss the appeal as untimely. Instead, one month after the notice of appeal was filed, the government moved to enforce the appellate waiver and for summary affirmance.

The Court directed the parties to brief the issue of timeliness under Rule 4(b). The government challenged the appeal as untimely. The Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief and dismissed Mr. Muhammad's appeal as untimely. However, the Court "strongly encouraged" the government to file a motion to dismiss a criminal as untimely at the outset of the appeal in order to save the time and costs associated with ordering transcripts and preparing full briefs. Finally, the Court also noted, in dicta, that it also agreed with other courts of appeals that a court may sua sponte raise untimeliness under Rule 4(b).

Successive § 3582 Motions Not Jurisdictionally Barred; Defendant Whose C Plea Not Explicitly Based on Guidelines Is Not Eligible for Relief

United States v. Weatherspoon, --- F.3d ----, 2012 WL 4800974 (3d Cir. Oct. 10, 2012). After the Sentencing Commission made retroactive the amended crack offense levels in 2008, Weatherspoon sought a sentence reduction, which was rejected because he was sentenced pursuant to a binding plea agreement. Following the Supreme Court's decision in Freeman v. United States, 131 S.Ct. 2685 (2011), holding that a defendant sentenced pursuant to a C plea agreement that recommends a sentence "based on" the Sentencing Guidelines is eligible for relief, Weatherspoon filed a second motion for sentence reduction.

The Circuit first addressed jurisdiction. The government argued for the first time on appeal first that § 3582(c)(2) only permits one motion for a sentence reduction and that the district court lacked jurisdiction to consider the second motion, and second, that the Law of the Case Doctrine precluded review. The Circuit found it had an independent duty to determine its own and the district court’s jurisdiction., but otherwise deemed the government’s arguments waived. It held that a district court has subject matter jurisdiction to consider a second motion for relief pursuant to 18 U.S.C.A. § 3582(c)(2), based on a retroactive Guidelines amendment, as Congress did not clearly state its intent to limit jurisdiction to one motion.

Reaching the merits of Weatherspoon’s appeal, the Circuit found that his sentence, stated in the "c" plea, was not explicitly based on his Sentencing Guidelines range so as to permit a sentence reduction under Freeman v. United States. Here, the agreement provided for a fixed sentence of 120 months’ imprisonment. Looking to the "four corners of the plea agreement," the Court concluded that the agreement was not clear that the sentence was based on the Guidelines. The agreement did not in any way identify or rely on the range. Because the agreement was not explicitly based on his Guidelines range, the district court properly denied Weatherspoon’s motion.

Sentence Procedurally Unreasonable Where Court Failed to Address Variance Argument

United States v. Begin, --- F.3d ---, 2012 WL 4784362 (3d Cir. Oct. 9, 2012).   Begin appealed from his 240-month sentence for using the internet and a cellular phone to "attempt to persuade a minor to engage in any sexual activity for which a person can be charged" - in this case statutory rape.

Begin argued that the sentence was unreasonable because the district court failed to consider his argument that a variance was warranted based on the disparity between a sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.   Although at sentencing the district court acknowledged and heard argument on Begin’s request, the court did not ask any questions and did not discuss or actually rule on the variance request.  In its final review of the sentencing factors the court simply stated:  "This sentence also takes into account the need to avoid unwarranted disparities in sentencing among defendants with similar records who have been found guilty of similar conduct."

 The Circuit first determined that Begin's claim that his sentence for attempting to induce statutory rape, (18 U.S.C. § 2422(b)), should not exceed the maximum penalty for actually committing (federal) statutory rape, (18 U.S.C. § 2422(b), was an argument with colorable legal merit, citing United States v. Ausburn, 502 F.3d 313 (3d Cir. 2009).   The district court here failed to make a sufficient record to demonstrate its consideration of that argument, or even specifically rule on the request for a variance. Accordingly, the sentence was procedurally unreasonable.

With respect to Begin’s state-federal disparity argument, the Circuit found that state-federal disparities are NOT relevant under § 3553(a)(6), and the district court was not required to address that part of Begin’s argument.