Habeas Relief Granted in Decision Construing Pennsylvania Law of Conspiracy

In Robertson v. Klem, No. 07-2581 (Aug. 28, 2009), the Court considers a state prosecution resulting in consecutive sentences of five to ten years’ imprisonment for each of two alleged conspiracies to commit murder. The Court grants habeas relief on the ground that the evidence was insufficient under Pennsylvania law to support conviction of more than one conspiracy.

In an opinion by Judge Sloviter, the Court explains that the evidence at the state trial sufficed to permit a reasonable jury to conclude beyond a reasonable doubt that the defendant had conspired with a second man in the shooting of two persons during a single visit to their home. Focusing on the fact that there were two victims, the Pennsylvania Superior Court upheld consecutive sentences for two conspiracies. The Third Circuit, however, finds that analysis insupportable under Section 903(c) of the Pennsylvania Crimes Code, which provides that if "a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship." Reviewing state law concerning how to determine whether there existed one or more than one conspiracy, the Court determines that "the Commonwealth failed to prove that the murders at issue, which involved the same conspirators, the same murder weapon, and occurred at the same time and place, were the result of separate agreements or conspiratorial relationships."

The Circuit finds the defendant stated a cognizable habeas claim: that he was denied his due process right "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." The Court then remands with directions that the district court fix a period of time within which state authorities must free Robertson unless he is resentenced on a single count of conspiracy.

"Departure" or "Variance," That is the Question

District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown, No. 08-1221, vacating a child pornography sentence when the record left ambiguous whether the district court had "departed" upward pursuant to a Guidelines application note or "varied" upward on the basis of its own statutory sentencing discretion. The remand follows the Court’s construction of the application note in a manner favoring the defendant.

Reaffirming that punctilious care in Guidelines calculations is essential even under an advisory regime – an approach from which the Second Circuit recently endorsed exceptions (opinion here) – the Court reminded that it "expressly distinguish[es] between departures from the guidelines and variances from the guidelines." "Departures are enhancements of, or subtractions from, a guidelines calculation based on a specific Guidelines departure provision," Senior District Judge Pollak’s opinion explains. "Variances, in contrast, are discretionary changes to a guidelines sentencing range based on a judge’s review of all the § 3553(a) factors." The distinction is of note because an "appellate court reviewing a variance for reasonableness does so by evaluating the district court’s analysis of the § 3553(a) factors, whereas an appellate court reviewing a departure must consult the relevant guidelines provision to determine whether the departure was appropriate."

Here, the defendant was convicted of possessing 6,350 photographs and 221 videos depicting children engaging in sexually explicit conduct. Under the Guidelines, this quantity of material called for the addition of five offense levels. While the range resulting from these and other adjustments was 97 to 121 months, the district court sentenced the defendant to 180 months after the government filed a "Memorandum Recommending Upward Variance." The record became confused as to whether the court was "departing" or "varying" due to the district court's consideration of Application Note 4 to U.S.S.G. § 2G2.2, which concerns how the number of images possessed by a defendant is to be calculated. The note contemplates circumstances where, for example, a single photograph depicts four different children, or a video is of significant length. The district court had read the note to direct that an "upward departure may be warranted if the Court determines the number of images substantially under represents the number of minors depicted."

The Circuit rules that the district court erred as a matter of law in its interpretation of the application note. Although the note uses the word "departure," the Court explains that this phrasing refers not to the "guidelines as a whole" but to "a procedure for counting images … in order to calculate a defendant’s Guidelines sentence." Thus, the note "could not have justified" a sentence above the correctly calculated range.

Even though the record might be read to show that the district court exercised independent discretion to select the 180-month term of imprisonment in furtherance of the sentencing purposes at 18 U.S.C. § 3553(a) -- i.e., that it varied rather than departed -- the Circuit holds that the erroneous interpretation of the application note cannot be deemed harmless. In "view of the possibility that the court intended to formulate a departure, rather than a variance … and given the court’s invocation of its erroneous interpretation … we cannot be confident that the court would have arrived at the same conclusion had it properly construed the Application Note." The Court thus vacates the sentence and remands.

Implying that it finds some credence in a mitigation argument, the Court also takes care to ensure the district court does not mechanically reimpose the same sentence on remand. "[W]e have certain reservations," the panel says, "about whether the District Court adequately addressed Brown’s argument that his personal history and characteristics – his age, poor health, lack of criminal history, strong family support, and admission of guilt – make his likelihood of recidivism minimal."

Felon’s Possession of Gun With Ammo Supports Conviction on One Count Only

Holding that possession of a firearm with ammunition is a "single unit of prosecution" under the felon-in-possession statute, 18 U.S.C. § 922(g), the Court in United States v. Tann, No. 08-2378, notices plain error in a judgment imposing a concurrent prison term and $100 special assessment on each of two counts charged against a Delaware man convicted of possessing (1) a handgun and (2) twenty-five rounds of ammunition. Along the way, the Court declines to follow its own 2002 decision concerning such error's effect on "substantial rights," concluding that pre-2002 Supreme Court precedent had already dictated a different conclusion.

With respect to the proper construction of 18 U.S.C. § 922(g), the Court explains in an opinion by Judge Chagares that "when Congress fails to set the unit of prosecution clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." Finding the statute ambiguous in its prohibition upon the possession of "any" firearm or ammunition, the Court holds that the defendant’s "possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under § 922(g)(1)."

The Court then confronts two previous decisions it acknowledges to be in "direct conflict" regarding whether dual punishments of the kind here affect a defendant’s "substantial rights," as required to support correction on plain error review. In 2008, the Court held in United States v. Miller (Blog post here) that the potential adverse collateral consequences resulting from each punishment, and the extra special assessment, make out the requisite effect. In its 2002 decision in United States v. Gricco, however, the Court had found no such effect when the district court erroneously failed to merge two convictions. Gricco’s rationale was that the "only immediate practical effects of the concurrent sentences" were "special assessments totaling $700 for each defendant."

Ordinarily, the Court’s Internal Operating Procedure 9.1 directs that the earlier Gricco decision be treated as controlling because it was decided first. But this week’s decision in Tann faults Gricco for not following, or even mentioning, two Supreme Court cases predating it. The Court therefore refuses to be bound by Gricco -- a decision authored by then Judge Alito -- and instead follows Miller, which it finds to have followed the high court’s precedents. Confronting IOP 9.1, the Court says that a "panel of our Court may decline to follow" a prior decision "without the necessity of an en banc decision whether the conflicting Supreme Court decision was rendered before or after our prior decision."

Concluding that the judgment imposing dual punishments on the same offense seriously affected the fairness and integrity of the proceedings, the court remands with instructions "to vacate the sentence on one of Tann’s convictions under 18 U.S.C. § 922(g) and to merge the two convictions under § 922(g) into one conviction."

Probation Sentence in Child Porn Case Falls as Procedurally and Substantively Unreasonable

Earlier this year, the en banc Circuit directed in United States v. Tomko (Blog post here) that "if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided." This week, in United States v. Lychock, No. 06-3311, a panel flunks a sentence under that standard. The defendant, following conviction for possessing between 150 and 300 images of child pornography, had been placed on five years' probation and fined $10,000 when the Guidelines range was 30 to 37 months’ imprisonment. The Court vacates the sentence as both procedurally and substantively unreasonable.

Two leading factors in the Court’s analysis appear to have been the sentence of probation and the defendant’s apprehension in a "wider investigation into an international child pornography enterprise," which has led to the sentencing of numerous defendants in the District of New Jersey for very similar offenses. In an opinion by Judge Roth, the Court did not offer any general remarks concerning how probation figures within the rubric of sentencing purposes identified in 18 U.S.C. § 3553(a). It did, however, repeatedly describe the defendant’s sentence with phrases such as "so far below the range suggested by the Guidelines." Considering the "significant deviation," the Court held the district judge’s explanation insufficient and the sentence therefore procedurally unreasonable. With respect to substantive unreasonableness as well, the Court explained that the "extent of any variance from the Guidelines range" must be taken into account.

The significance of the international investigation’s netting of numerous New Jersey child pornography defendants relates to § 3553(a)(6)’s directive that district courts consider the need to avoid potential sentencing disparities among similarly situated individuals. The Third Circuit notes that the government "highlighted the within-Guidelines sentences several RegPay defendants had already received from other judges of the District Court." Because the sentence here was "far below the sentences given to similar offenders, consideration of this disparity deserves particular care." In this connection, the Court finds still to be instructive its 2007 child pornography precedent in United States v. Goff (Blog post here), quoting that opinion in concluding that the district court "did not give the Guidelines the consideration they are due."

Lychock also emphasizes that district judges must offer greater than usual elaboration when imposing non-Guidelines sentences on the basis of policy disagreements with the Sentencing Commission. Such disagreement "is permissible only if a District Court provides sufficiently compelling reasons to justify it." Here, the core of the district court’s policy analysis appears to have been that the "kind of psychological problem in persons who are drawn to this kind of material … is not going to be deterred by a jail term for an internet porno observer." The Circuit dismissed that analysis as a "conclusory statement of personal belief."

PA Escape (M2) is not a Crime of Violence

In US v. George Hopkins, No. 06-5091 (3d Cir. Aug. 21, 2009), the 3rd Circuit ruled that escape as a second degree misdemeanor in Pennsylvania does not count as a "crime of violence" for purposes of the Career Offender enhancement in the Guidelines, USSG 4B1.1. In so ruling, the Circuit recognized that its prior decision to the contrary in US v. Luster, 305 F.3d 199 (3d Cir. 2002), has been effectively overruled.

Hopkins was convicted of drug trafficking. At sentencing the district court concluded he qualified as a career offender because he had two qualifying predicate offenses under USSG 4B1.1. One of the prior convictions was for escape under Pennsylvania state law. The escape occurred when local police went to Hopkins' home to arrest him for failure to appear for a traffic violation. Hopkins ran out the back and was caught as he tried to jump over a fence.

Hopkins challenged the sentence on appeal, and the Circuit initially affirmed on the basis of its prior decision in Luster, which held that all escape crimes are crimes of violence. Hopkins filed a cert petition, however, and the Supreme Court vacated the judgment and remanded for reconsideration in light of its decision in Chambers v. US, 129 S. Ct. 687 (Jan. 13, 2009). Chambers held that the crime of failure to report to prison, which is defined as escape under Illinois law, does not count as a "violent felony" for purposes of the Armed Career Criminal Act, 18 USC 924(e).

On reconsideration, the 3rd Circuit concluded that Chambers "is in conflict with" Luster, and that the Court would have to "undertake to determine anew" whether the escape counted as a crime of violence. Examining the PA escape statute, the Court determined that as a second degree misdemeanor, escape consists of "unlawfully removing" oneself from official detention, and does not require force, threat or the use of a weapon. The Court then compared escape to the other crimes listed in USSG 4B1.1 as crimes of violence -- burglary, arson, extortion -- and concluded that it does not pose the same degree of risk of physical injury to another. Finding that escape involves conduct "materially less violent and aggressive than the enumerated offenses," the Court held that as a misdemeanor, it does not qualify as a crime of violence. The effect of this holding is to overrule Luster. The effect is also to reject Luster's "powder keg" theory, under which the potential for an offense to explode into violence was enough to qualify it as a crime of violence.

(See also the post below regarding US v. Polk, No. 08-4399 (Aug 12, 2009), in which the 3rd Cir held that possession of a weapon in prison is not a crime of violence, overruling its prior decision in US v. Kenney, 310 F.3d 135 (3d Cir. 2002).)

Practice tips:
This ruling means two things for practitioners:

1) PA escape as a misdemeanor does not count as either a "crime of violence" under USSG 4B1.1, or a "violent felony" under the Armed Career Criminal Act, 18 USC 924(e). The definitions of the two terms are almost identical, and the Supreme Court has made clear that the case law applying to the ACCA applies also to the Career Offender provision.

2) Practitioners should look back over their closed cases to identify any sentences in which the Career Offender or ACCA enhancement was applied based on a prior escape offense. In any such cases, the defendants should be contacted and advised to file petitions under 28 USC 2255 to vacate their sentences. These petitions should be filed by January 12, 2010 -- within one year of Chambers, otherwise they will likely be time-barred.

Materiality and filing of false claims with IRS

In United States v. Saybolt, Nos. 07-4392 & 4429 (Aug.18, 2009), the 3rd Circuit held (1) that filing false claims with the IRS, in violation of 18 USC sect 287, does not require proof that the false claims or statements were "material." But the Court also held (2) that conspiracy to defraud the US by filing false claims with the IRS, in violation of 18 USC sect 286, does require proof of materiality in that the government must prove that the conspirators "agreed that those false statements or representations would have a material effect on the Government's decision to pay a false, fictitious, or fraudulent claim." The Court went on to hold (3) that that indictment was nonetheless sufficient, in spite of its failure to use the term "material," because the factual allegations implied materiality, and (4) that the district court's failure to instruct on materiality was harmless in light of the evidence which showed beyond a reasonable doubt that the conspirators agreed to make materially false statements as part of the conspiracy.

Defendants were convicted of conspiring to defraud the US by obtaining payment of false tax refunds, in violation of Sect 286, and of multiple counts of making and presenting false and fraudulent tax returns to the IRS, in violation of Sect 287. On appeal they challenged the government's failure to allege materiality under either section.

(1) The Court held that Sect 287 does not require proof of materiality because the statute applies to the filing of a claim, "knowing such claim to be false, fictitious or fraudulent." While the word "fraudulent" implies the materiality must be proved, the use of the disjunctive "or" means that separate meaning should be given to the other terms in the list. Thus, the Court reads Sect 287 "to demand a showing that the claim was known to be either 'fraudulent,' which would require proof of materiality, or 'false' or 'fictitious,' which would not require proof of materiality. This means that materiality is not always required to establish a Sect 287 violation."

(2) The Court also held, however, that Sect 286 does require proof of materiality because it requires proof of a "conspiracy to defraud." Although this section does not require proof that the defendants actually made or presented any falsehoods, let alone material ones, the requirement that there be proof of conspiracy to "defraud" incorporates a materiality requirement. Sect 286 thus requires the government to prove an agreement to make false statements that would have a material effect on the government's decision to pay false claims.

(3) Turning to the sufficiency of the indictment, the Court held that although it did not specifically mention "materiality," the facts alleged in support of the allegation of fraud warrant an inference that the false statements the conspirators agreed to make as part of the conspiracy were material.

(4) Last, the Court held that the district court's failure to mention "materiality" in the jury instruction regarding Sect 286 was harmless error since the misrepresentations of names, addresses, and gross income on the fraudulent tax forms were unquestionably material.

The Court accordingly upheld the convictions and sentences.

Post-Begay, Possession of a Weapon In Prison Is Not Considered a “Crime of Violence” Under the Career Offender Guidelines

In United States v. Polk, No. 08-4399 (August 12, 2009), Terrell Polk appealed his sentence of 37 months’ imprisonment for possession of a "shank" in prison. While an inmate at USP Lewisburg, a correctional officer performed a search of Polk's cell and discovered a "six-inch plastic homemade shank in an envelope containing his personal papers." Polk was charged with one count of possession of a prohibited object designed to be used as a weapon, in violation of 18 U.S.C. § 1791(a)(2), and pleaded guilty. At sentencing, the District Court determined that Polk’s offense constituted his third predicate "crime of violence" under the Career Offender Guidelines, resulting in a Sentencing Guidelines range of 37-46 months. Without the career offender enhancement, the Guidelines range would have been 27-33 months. Polk did not object to his career offender designation despite the fact that Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581 (2008), had been decided six months prior to his sentencing. The Third Circuit reviewed the District Court’s decision under the plain error standard.

First, the Court held that the District Court erred in sentencing Polk as a career offender because possession of a weapon in prison is not considered a "crime of violence." In United States v. Kenney, 310 F.3d 135 (3d Cir. 2002), the Third Circuit held that possession of a weapon in a prison is considered a "crime of violence" under the "otherwise involves" clause of that definition in the Career Offender Guidelines. After the Supreme Court’s decision in Begay, however, Kenney is no longer good law. In Begay, the Supreme Court considered the "violent felony" provision of the Armed Career Criminal Act (ACCA) and held that "to qualify as a ‘violent felony’ under the ‘otherwise involves’ clause of this provision, an offense must (1) present a serious potential risk of physical injury and (2) be ‘roughly similar, in kind as well as degree of risk posed to the examples [burglary, arson, extortion, or use of explosives] themselves.'"

In Polk, the Third Circuit determined that Begay’s analysis of the "violent felony" provision of ACCA also applies to the "crime of violence" provision of the Career Offender Guidelines. In light of Begay’s applicability, the Court held that "possession of a weapon, even in prison, is not ‘roughly similar, in kind as well as in degree of risk posed," to the enumerated crimes of burglary, arson, extortion, or use of explosives." The Court rejected the government’s argument that Polk’s conduct constituted a crime of violence because the possessory crime occurred in the prison context where no permissible use exists for the possession of a weapon. The Court did not deny the inherent dangers of possessing a shank in prison, but concluded that possession "alone cannot transform a mere possession offense into one that is similar to the crimes listed" in the "otherwise involves" clause of the Career Offender Guidelines. Possession of a weapon is neither aggressive nor violent per se because only the potential exists for aggressive or violent conduct. But not even the serious potential for injury is enough to constitute a crime requiring a career offender enhancement.

Second, although the District Court erred in sentencing Polk as a career offender, that error alone was not sufficient to be characterized as "plain" because Polk did not object to the career offender designation at sentencing. The Court did not need to reach the issue of whether the error was plain, however, because it agreed with Polk’s secondary argument that his attorney was ineffective for failing to raise the Begay issue at sentencing. While defendants generally are not permitted to raise the claim of ineffective assistance of counsel on direct appeal, an exception is allowed where "the record is sufficient to allow determination of ineffective assistance of counsel, [and thus] an evidentiary hearing to develop the facts is not needed." In Polk, Polk's sentencing attorney "freely concede[d] that at sentencing he missed the arguable effect of Begay." Such an admission satisfies the Strickland test. Begay had been decided six months prior to Polk’s sentencing and prejudiced him because the result of the proceeding would have been different if Begay had been considered.

Child Porn: Circuit upholds use of relevant conduct and conditions of release

In United States v. Thielemann, No. 08-2335, the defendant was indicted and pleaded guilty to one count of receiving child pornography. He was sentenced to the statutory maximum of 240 months of imprisonment. He appealed the district court’s consideration of non-charged relevant conduct in calculating his offense level and two special conditions of supervised release restricting computer use and viewing of sexually explicit material.

The district court at sentencing determined Thielemann’s offense level under § 2G2.1, an increase of 10 levels, (offenses causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction), using a cross-reference to uncharged relevant conduct—codefendant’s molestation of a minor carried out at defendant’s inducement via the internet. The Third Circuit affirmed the use of relevant conduct in determining the offense level.

The Court also upheld both special conditions of supervised release. The restriction on possession and viewing of sexually explicit material, as defined in 18 U.S.C. § 2256(2)(A), does not violate the Constitution where the purpose is to rehabilitate, protect, and deter future conduct, because the offense conduct demonstrated that defendant previously used legal adult pornography to further his sexual interest in children. The restriction on defendant’s access to computers and the internet was also upheld, given the limitations of the restrictions and the fact that Thielemann’s utilized the internet to facilitate actual molestation of a child.