Sunday, February 10, 2019
Failure to postpone sentencing contravened the principles underlying the right to allocution, codified in Fed.R. Crim. P. 32(i)(4)(A)
In United States v. Chapman, Appeal No. 17-1656 (Feb. 7, 2019), https://www2.ca3.uscourts.gov/opinarch/171656p.pdf, the Third Circuit vacated a
criminal sentence because the District Court had failed to postpone the sentencing hearing. Chapman’s lawyer did not notify Chapman of the court date, and so, on the day of sentencing, Chapman asked the District Court to give him at least a week to collect letters from his family. For his role in a cocaine distribution conspiracy, Chapman was found to be a career offender with an advisory guideline range of 188 to 235 months. As part of the plea, the government would recommend a sentence of 188 months, and Chapman could seek a variance no lower than 144 months. The District Court sentenced him to 192 months. The Third Circuit found that Chapman’s request for a continuance sufficiently preserved the issue for appeal and reviewed the District Court’s denial for abuse of discretion/harmless error. The Third Circuit found that the District Court's denial of the request to postpone sentencing to give Chapman time to collect family letters and mitigate his sentence contravened the principles underlying the right to allocution, codified in Fed. R. Crim. P. 32(i)(4)(A), and also “improperly compromised the appearance of fairness.” The Third Circuit took the rare step of ordering resentencing by a different judge.
Candace Cain of the Federal Public Defender (WDPa) argued for Chapman.
924(e)’s definition of “serious drug offense” (ACCA) encompasses attempt, and the attempt and accomplice provisions of Pennsylvania’s possession with intent to distribute statute, 35 Pa. Stat. Ann § 780-113(a)(30), are co-extensive with federal law for purposes of the categorical approach
In United States v. Daniels, Appeal No. 17-3503 (Feb. 7, 2019), https://www2.ca3.uscourts.gov/opinarch/173503p.pdf, the Third Circuit affirmed a 15-year mandatory minimum sentence under ACCA, 18 U.S.C. § 924(e)( 2)(A)(ii), based on Daniels’s three Pennsylvania convictions for possession with intent to distribute, 35 Pa. Stat. Ann § 780-113(a)(30). Subsection (a)(30) prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance.” The Pennsylvania and federal definitions of delivery are nearly identical and both Pennsylvania and federal law include provisions for attempt and accomplice liability. United States v. Glass, 904 F.3d 319 (3d Cir. 2018) (citing 21 U.S.C. § 802(8) and 21 U.S.C. § 846).
Although the definition of “serious drug offense” in the ACCA does not include attempts, as does the definition of “violent felony” in (e)(2)(B), the ACCA’s use of the term “involving” sufficiently expands the meaning of a serious drug offense beyond the simple offenses of manufacturing, distributing, and possessing a controlled substance to include attempt. The Court left open whether mere offers to sell sweep more broadly than the federal counterpart.
The Court also found that Pennsylvania and federal law similarly criminalize conduct under an attempt and accomplice framework. Pennsylvania’s and the federal approaches to attempt liability for drug offenses “are essentially identical.” Both follow the Model Penal Code’s requirements of intent and a substantial step. Likewise, Pennsylvania and federal law base their respective approaches to accomplice liability on the Model Penal Code: all three define an accomplice as a person who had the specific intent to facilitate a crime and acted to facilitate it. The Court rejected that Pennsylvania courts would hold a defendant liable under subsection (a)(30) for offers to sell, mere preparation, or a buyer’s solicitation.
In United States v. Garner, Appeal No. 17-1181 (Feb. 8, 2019), https://www2.ca3.uscourts.gov/opinarch/171181p.pdf, the Third Circuit found sufficient evidence to affirm Garner’s convictions for conspiracy to commit armed bank robber, attempted bank robbery, and possession of a firearm in furtherance of a crime of violence. Garner had planned to rob a bank, but the person he asked to help him was an FBI informant who immediately told the FBI about Garner’s offer. Garner was arrested while the robbery was still being planned. Most of the short opinion reiterated settled law and analysis: (1) sufficiency of the evidence is reviewed in the light most favorable to the government; (2) the informant’s surveillance of a bank and three men’s detailed discussion to plan to rob it after that were sufficient to establish conspiracy even if the final details still had to be set; and (3) a defendant may commit an attempt even where he stops short of “the last act necessary” for the actual commission of the crime. The Court joined other Circuits (citing the Seventh and Tenth) and held that a defendant cannot be criminally liable for conspiring with a government informant.
The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.
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