Friday, October 01, 2021

Spatial proximity of firearm to drugs is not necessary for enhancement under U.S.S.G. § 2D1.1(b)(1)

            Section 2D1.1(b)(1) provides for a Guidelines enhancement when “a dangerous weapon (including a firearm) was possessed.” Application note 11 further provides: “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”

            In U.S. v. Denmark, 20-2267, 2021 WL 4127257 (3d Cir. Sept. 10, 2021), the Court held that physical proximity between drugs (or paraphernalia) and guns is only one of the four factors to consider in making the “clearly improbable” determination. 

              Here, the defendant acted as a middle man in arranging meth deals by video calls (from home), and by delivering meth packages to the post office.  Law enforcement recovered firearms and paraphernalia, but no drugs from his home.  The guns and paraphernalia were in different rooms on different floors.  At sentencing, the defense objected to the firearm enhancement, arguing that the firearms could not have been connected with the offense because the meth had never been at the residence.  He argued that for the enhancement to apply, the guns needed to be present at the crime of transporting the meth to the post office.

           The Court reviewed the “mechanics” of applying the enhancement as set forth in United States v. Napolitan, 762 F.3d 297 (3d Cir. 2014).  The government must first prove, by a preponderance of the evidence, only that the defendant possessed the weapon. The burden then shifts to the defendant to “demonstrate that the connection between the weapon and the drug offense was clearly improbable,” with no burden on the Government to prove a relationship between the weapons and the drugs.  Rather, the “general rule” is that the enhancement should be applied if a firearm was present.  

          In determining whether it is clearly improbable that a weapon was connected with a drug offense, the Court looks to four factors, only one of which is proximity: “(1) the type of gun involved, with clear improbability less likely with handguns than with hunting rifles, (2) whether the gun was loaded, (3) whether [it] was stored near the drugs or drug paraphernalia, and (4) [ ] whether [it] was accessible.”

          Although the district court failed to make express findings on whether defendant met the clear improbability standard, the Court found nothing in the record to dispel the presumption of a connection.  In the house were two handguns, a semi-automatic assault rifle, and a shotgun.  One handgun and several magazines were loaded.  Although there were no drugs in the house, law enforcement observed Denmark make a drug deal over FaceTime from his home.  Finally, the firearms were sufficiently accessible.  Because none of the four factors weighed in favor of the defense, application of the enhancement was affirmed.

(Case reviewed and post written by Christy Martin)

Monday, September 27, 2021

Hobbs Act robbery is not a “crime of violence” under the Sentencing Guidelines

Hobbs Act robbery is not a “crime of violence” under the Sentencing Guidelines. So holds the Third Circuit in United States v. Scott, No. 20-1514, 2021 WL 4302516 (3d Cir. Sept. 22, 2021). Under Scott, Hobbs Act robbery is not a predicate for the career offender guideline, § 4B1.2(a), or its cross-referenced provisions, including the firearm guideline, § 2K2.1(a).

As Court-watchers will observe, Scott is far from breaking news. The opinion makes precedential a holding reached over two years ago in a not precedential opinion of a Third Circuit panel. Six other Courts of Appeals have held the same.

Scott should apply to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).

The outcome, however, is different under 18 U.S.C. § 924(c)(3)(A), which defines “crime of violence” slightly differently.  (Section 924(c) refers to force against “person or property”). Under § 924(c), Hobbs Act robbery is a crime of violence.  See United States v. Walker, 990 F.3d 316, 326 (3d Cir. 2021).

Walker notwithstanding, defendants should preserve an objection to Hobbs Act robbery as a § 924(c) predicate. This area of law remains unsettled pending a decision by the Supreme Court in United States v. Taylor (# 20-1459)—a case raising the question whether attempted Hobbs Act robbery is a crime of violence under § 924(c). The Supreme Court will hear argument in Taylor on December 7, 2021.

Finally, a note to appellate wonks: Scott granted relief on plain error review. Most importantly, the majority found that the Guidelines error was “plain” under prong two of the plain error test. Judge Phipps, dissenting, would have denied relief on prong two.

Wednesday, August 25, 2021

Limited waiver of Miranda rights invalidated when a defendant raised the subject he initially stated he did not want to discuss during his interrogation


U.S. v. James Eugene Rought, ___F.3d ___, No. 20-2667 (3d Cir. 8/24/2021


This opinion does not answer defense attorneys’ eternal question, “Why can’t they just shut up?” but gives the unsurprising answer when they don’t. 


The defendant twice sold fentanyl to a Mr. Carichner; a transaction witnessed by a Ms. Giberson. A few days later Giberson asked Carichner to get her fentanyl from the defendant. He defendant sold it to him and the two imbibed together. Later. Carichner gave some of the fentanyl to Giberson. Later that night, Giberson overdosed but was revived with Narcan. Carichner overdosed later that evening and died. 


Police connected the defendant to the crimes, and he was indicted for distributing and possessing fentanyl with intent to distribute resulting in serious bodily injury and death. Before his initial appearance the FBI spoke to him. The defendant signed a Miranda waiver but after freely answering questions for several minutes orally stated he did not want to speak about Carichner’s death. The agents moved to different topics, but the defendant on his own brought up Carichner’s death by saying the agents were trying to pin it on him. The agents used that opening to go into Carichner’s death and obtain incriminating statements. 


The defendant’s motion to suppress the statements about Carichner was denied and a jury convicted him of the death and other crimes charges in a superseding indictment.


On appeal the defendant first maintained that all questioning should have ceased when the defendant said he did not want to talk about Carichner. The panel rejected that contention, describing a line of cases that allow a limited waiver of Miranda rights. The defendant however only made a “limited invocation” of his right to remain silent, and the agents honored up to the point he brought up Carichner by accusing the agents of setting him up for the death.  


The panel also rejected the defendant’s contention that he did not bring up Carichner’s death. Accusing the agents of trying to place blame for the murder for him was enough to allow the agents to discuss the matter. The accusation occurred during a conversation between the defendant and the agents on the poor state of Wilkes-Barre due to the drug trade. That initiated a discussion about how drugs and drug dealers were haring the community subject the defendant had previously asked be excluded from the interrogation, and the agents were free to pursue the subject. The panel acknowledged an appeal to the defendant’s conscience might elicit a response about Carichner’s death, but it refused to impute such motivation or foreknowledge to the agent who made the comment.  


Finally, the panel peremptorily rejected the defendants’ contention that the waiver was invalid because he did not see all the potential consequences. A defendant does not have to know every possible consequence of a waiver of his right to remain silent. 


In short, a defendant can make a limited waiver of Miranda rights, but if in conversation with law enforcement he in any way raises the topic he wanted to avoid, he voids his waiver, and law enforcement can continue to question him unless he reinvokes his right to remain silent. 


Judge Roth dissented, being of the view that the agents tricked the defendant into invalidating his limited invocation of Miranda rights.  




Saturday, August 21, 2021

Miller does not preclude sentencing juvenile offender to de facto life in prison without parole, even if he is not "incorrigible."

The en banc decision in United States v. Grant, No. 3820,, -- F.4th ----2021 WL 3611764 (Aug. 16, 2021), considers whether, under Miller v. Alabama, a juvenile offender may be sentenced to de facto life without parole, even when all concede he is not incorrigible. Those practicing in this or related areas will want to give Grant a close read, but we summarize the issues here. For appellate practitioners, note the discussion of preservation and plain error related to the sentencing package doctrine—all issues seen in more ordinary cases.

Despite the multiple opinions here, the Court unanimously affirms Grant’s sentence under Miller. The majority holds that Miller guarantees only a “sentencing process” under which the sentencer has discretion to impose a lesser punishment based on the offender’s youth at the time of the offense. Since Grant received that process, the Court affirms his newly imposed 65-year sentence, even though it incarcerates him to his life expectancy. To reach this conclusion, the Court contrasts the Miller opinion with the categorical bars in Roper and Graham and the Supreme Court’s recent decision in Jones v. Mississippi, which—like Miller—emphasized “discretionary sentencing procedure.” The Court observes that the sweeping language of Montgomery v. Alabama, which made Miller retroactive to cases on collateral review, did not expand Miller’s holding.

The Court notes, citing Jones, that although there is no guaranteed outcome for juvenile homicide offenders. “If a sentencer imposes de jure or de facto LWOP after finding—gratuitously—that a defendant is corrigible, the vehicle for challenging the sentence is an as-applied Eighth Amendment claim, based on disproportionality of the punishment to the crime and criminal.” Grant had not pursued such a challenge. Grant’s complaint that the sentencing judge failed adequately to explain the de facto life sentence vis-à-vis Miller was dismissed by the Court, since the sentencing judge considered Grant’s youth and related factors in mitigation. The Court emphasized that no specific script is required and that consideration may be brief.

The Court found that Grant failed to preserve a sentencing package doctrine argument to vacate and reconsider concurrent sentences (the district court had resentenced Grant only on the two RICO counts involving the homicides). Counsel missed the mark by pitching this as required by “the spirit of Miller,” instead of the sentencing package doctrine. To preserve an argument, counsel must have raised the same argument, not merely an issue that encompasses the appellate argument. On plain error review, the Court held that the law did not clearly require de novo sentencing when certain sentences (as opposed to convictions) are vacated.

Judge Hardiman (joined by Jordan, Bibas, and Porter) writes a concurrence discussing the problems with the Eighth Amendment “evolving standards of decency” test applied in Miller, which he believes displaces the text of the Bill of Rights in favor of a “nebulous test” that gives judges unbounded discretion.

Judge Greenaway (joined by Restrepo) writes a concurrence arguing that Jones is not helpful in this case because it doesn’t resolve what happens when—as happened here—a judge makes an affirmative finding that an offender is “corrigible.” He explains how Miller, Graham and Montgomery require evaluation whether an offender has a “meaningful opportunity to obtain release” and what that entails. (Judge Krause joins for this part only.) He concludes the evidence presented at Grant’s sentencing established a meaningful opportunity to obtain release.

Judge Ambro (joined by Mckee) concurs in part and dissents in part. Judge Ambro believes that Jones overruled Miller and Montgomery as to the guarantee of meaningful opportunity for release. He dissents (and Restrepo joins him and McKee for this section) on the sentencing package issue. He finds the issue preserved by counsel’s statement that the sentences were “all part and parcel of one sentence” and that “it should be clear that really it is a whole knew sentencing,” which alerted the sentencing judge to the substance of the sentencing packaging doctrine argument. The sentencing judge appeared to understand the argument, as well. He finds no reason to distinguish between convictions and sentences under the doctrine. Because it is unclear whether Grant got a full resentencing, he would have remanded.

Tuesday, August 17, 2021

Rebuttable presumption that firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items, justifying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B)

In United States v. Lesandro Perez,, Appeal No. 19-1469, --- F.4th ---, 2021 WL 3087672 (3d Cir. July 22, 2021), the Third Circuit created a rebuttable presumption that a firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items, justifying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B).

Perez sold two firearms to an undercover officer. During the transaction, the undercover officer observed drugs and drug paraphernalia. Perez pled guilty to sales of guns and drugs. At sentencing, the District Court applied the four-level enhancement in U.S.S.G. § 2K2.1(b)(6)(B), which applies when a defendant “used or possessed any firearm…in connection with another felony offense.” When the other felony offense is drug trafficking, Note 14(B) creates a special rule that the enhancement applies as long as the firearm “is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.” § 2K2.1 cmt. n.14(B). The enhancement raised the guideline range from 84 to 105 months to 121 to 151 months.

Perez argued the enhancement did not apply because he possessed the firearms to sell them, not in connection with a drug-trafficking offense. He further argued that 2K2.1(b)(6)(B) itself is unambiguous and therefore should be controlling rather than the Guidelines’ commentary, Note 14(B). The Third Circuit reversed because the District Court was under the false impression that the enhancement was automatic, but disagreed that the guideline was unambiguous.

First, the Third Circuit decided the commentary here deserved deference. Under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), a court should afford deference to the Guidelines’ Commentary when (1) the Guidelines’ language is ambiguous, (2) the Commentary itself is reasonable, and (3) the character and context of the Commentary entitle it to controlling weight.

(1)   Here, the phrase “in connection with” is notable for its vagueness: the Sentencing Commission added Note 14B precisely to address a growing conflict among circuits about whether that language encompassed cases in which the firearm’s presence was merely accidental or coincidental.

(2)   Note 14B was reasonable based on Supreme Court and Third Circuit precedence. In Smith v. United States, 508 U.S. 223 (1993), the Supreme Court clarified that the defendant’s use of the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. In United States v. Loney, 219 F.3d 281 (3d Cir. 2000), the Third Circuit held that the “in connection with” requirement would exclude situations in which “the presence of the gun was merely ‘accidental,’ had no ‘purpose or effect with respect to’ [the defendant’s] drug offense, or did not ‘facilitate or have the potential of facilitating’ [the defendant’s] drug dealing.”  In United States v. West, 643 F.3d 102 (3d Cir. 2011), the Third Circuit held that “in a simple possession case, the sentencing court must make a specific finding that the firearm facilitated or had the potential of facilitating possession of the drugs.” 

      Thus, “physical proximity alone may be insufficient in some cases” to establish that the firearm had the potential to facilitate drug activity and (2) the Guideline excludes those cases in which the firearm’s presence is “the result of accident or coincidence.” The Court concluded that the Note incorporates certain “boundaries” laid out in Smith, and those boundaries require a relationship between drug-trafficking activities and firearms under Loney. Hence the enhancement does not apply merely because Perez possessed firearms and drugs together in the same room.

Then the Court created a rebuttable presumption that a firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items. A defendant may present evidence that the firearm had no relationship to drug-related activities and thus did not have the potential to facilitate a drug-trafficking offense. This Court rejected dicta from other Circuits that the enhancement “necessarily” or “automatically” applies when drugs and guns are physically near each other, as contrary to Loney and an  impermissible “expan[sion of] the substantive law set forth in the [G]uidelines themselves.” Here, because Perez was not given a chance to prove that the firearm’s presence was mere accident or coincidence (rebutting the presumption), the Third Circuit vacated the District Court’s judgment and sentence and remanded for the Court to reconsider whether there was a relationship between Perez’s firearms and his drug-trafficking activities.

Judge Bibas issued a concurring opinion that Note14B is invalid as written because it substitutes proximity for a connection to a drug crime. He criticized the majority for “misreading the Note to create a rebuttable presumption and then defers to its own creation.” The rebuttable presumption creates problems by putting the burden of proof on the defendant, forcing him to disprove a connection between the gun and the drugs. (1) The burden is on the government to prove, by preponderance of the evidence, that possession of gun was “in connection with” drug offense, (2) the “in connection with” element may be proved by way of inference, but (3) advancing a valid inference is part of the government's burden of proof.


Monday, August 16, 2021


Sixty-five-year sentence for a juvenile convicted under RICO predicated on murder upheld/ Upon resentencing, the “sentence-package doctrine” must be clearly raised or risk being waived 


United States v. Corey Grant, ___F.3d___, No. 16-3820 (8/16/2021)



In the wake of last term’s Supreme Court holding that neither Miller v. Alabama, 567 U.S. 460 (2102) nor Montgomery v. Louisiana, 577 U.S. 190 (2016) requires a court sentencing a juvenile to a sentence of less than life without parole to consider a  particular set of factors regarding the juvenile, the Third Circuit held,  “The Miller  bar on mandatory LWOP sentencing regimes is a prophylactic that entitles a juvenile homicide offender to a certain sentencing process, but not a particular sentencing outcome—a result that follows from the Supreme Court’s decision in Jones v. Mississippi, 593 U.S. --, 141 S. Ct. 1307 (2021).”


Mr. Jones joined a drug gang at the age of thirteen and soon became one of its enforcers. He was arrested twice when he was fifteen and released about a year later. Not long after that, he participated in shootings of two men who worked sold drugs in Mr. Jones’ gang’s territory. One of them died. Mr. Jones was soon indicted for racketeering and drug violations. He was found guilty, the predicate for one of the RICO convictions being the murder. (He was acquitted of another RICO predicate murder, and the jury hung on a third.)  The sentencing guidelines, which in 1992 were mandatory, required he receive a life sentence. He also received concurrent and consecutive sentences on other counts. 


Mr. Jones was allowed to file a second §2241 petition following Miller, which invalidated mandatory life sentences for juveniles. When finally resentenced, the District Court found “that Grant’s upbringing, debilitating characteristics of youth, and the post-conviction record showed that he was “not that rarest [] exception referenced in Miller, where the lifetime without parole is appropriate.”  It imposed concurrent sixty-year sentences on all charges but for his 18 U.S.C. §924(c) conviction, for which he received a consecutive five years. (The district court inadvertently increased a forty-year concurrent sentence to sixty years.) With good time, Mr. Jones is eligible for release when he reaches 72 in 2045. 


He appealed. Mr. Jones did not allege that his sentence was disproportionate or unreasonable under the 8th Amendment, and the Government conceded that the sentence could be de facto life without parole. The Government also did not say that Mr. Jones deserved a life sentence. 


The Court concluded that neither Miller nor Montgomery (which made Miller retroactive to cases pending on direct or collateral review) granted any right to juvenile offenders other than the guarantee that no conviction would automatically lead to a sentence of life without parole. Especially following Jones, which rejected an argument that any particular set of factors listed in Miller had to be applied before sentencing a juvenile whose range of sentences potentially included life without parole, the en banc panel found that the “[Supreme] Court has guaranteed to juvenile homicide offenders only a sentencing procedure in which the sentencer must weigh youth as a mitigating factor.” As the district court considered Mr. Grant’s youth at the time of his offense, the sixty-year sentence was not improper.


The Court also rejected Mr. Grant’s contention that according to the “sentencing-package doctrine,” he was entitled to resentencing on the concurrent forty-year sentences imposed with the life sentence. The Court found he had waived the issue by not clearly raising it before the District Court. The sentencing-package doctrine recognizes “a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an over-all plan.” Mr. Grant conceded he did not clearly raised the issue below. Plain-error did not apply, as the drug sentences were not affected by Miller. (The Court did vacate the District Court’s erroneous increase of the forty-year sentence to sixty years and remanded with instructions to correct the error.) 


Not satisfied with affirming the District Court, Judge Hardiman, joined by Judges Jordan, Bibas, and Porter, wrote to complain about what they saw the displacement of traditional 8th Amendment jurisprudence by the yardstick of “evolving standards of decency.” He wrote, “That approach displaces the text of the Eighth Amendment in favor of a nebulous test. And it requires courts to divine the prevailing moral sentiment at the time of sentencing, which has led to the different approaches to the Eighth Amendment issue in this case. I hope to explain how that confusion made its way into our case law—and why it leaves courts without adequate guidance.” His explanation followed. 


Judge Greenaway, joined by Judges Restrepo and Krause, joined only the judgment of the Court. He wrote briefly to state his belief that Jones did not affect what he believed was a requirement that courts sentencing juveniles consider whether they would or should be released in time to have a meaningful life. He also thought that the sentencing-package issue had been adequately preserved and should always apply to vacated sentences, which had occurred in non-precedential decisions.

Tuesday, June 29, 2021

70,000 images of child pornography will not be suppressed.

The government prevailed last week in the Third Circuit on an interlocutory appeal of a suppression grant.

In United States v. Caesar, No. 19-3961, 2021 WL 2559471 (3d Cir. June 23, 2021), the police searched the defendant’s home pursuant to a search warrant and recovered child pornography.

Litigating a motion to suppress, the defendant challenged the search warrant affidavit, which alleged not child pornography crimes, but sexual abuse of children—different offenses that are not automatically linked.  See Virgin Islands v. John, 654 F.3d 412 (3d Cir. 2011); United States v. Zimmerman, 277 F.3d 426 (3d Cir. 2002).

The Third Circuit rejected the defense argument.  Factually distinguishing the defense-favorable precedent, the Court noted three averments in the affidavit that strengthened the case to search the home for child pornography: (1) that the defendant committed prolonged child sexual abuse in his home; (2) that he used a computer to solicit images of partially-clothed children; and (3) that the experienced affiant knew of a link between child pornography crimes and child sexual abuse.

On these facts, it was “a close question” whether there was probable cause to search the home for child pornography.  The Third Circuit declined to reach the issue.  Instead, it reversed the grant of suppression under the good faith exception to the Fourth Amendment exclusionary rule.

Bottom line: Probable cause or not, the officers were not entirely unreasonable in relying on the search warrant.

Thursday, June 24, 2021

Conviction and sentence for embezzlement upheld over challenges for speedy trial violation, and to evidentiary rulings, jury instructions, and loss calculation.

In United States v. David T. Shulick, 994 F.3d 123 (3d Cir., April 13, 2021), the Third Circuit affirmed convictions and sentence for embezzling funds from a federally funded program, conspiracy, bank fraud, and making false statements. Shulick operated a for-profit education company that, among other things, contracted with the School District of Philadelphia to manage its Southwest School, which served at-risk students. Shulick received $2 million to put in place specific services: 6 teachers with set salaries and benefits, security workers, and counselors. Shulick only spent $1.186, did not provide these full services or positions, and directed the money instead to pay off liabilities for other businesses. He was convicted by a jury and appealed on speedy trial grounds, errors in evidentiary rulings, faulty jury instructions, and sentencing miscalculations. The Third Circuit Court rejected all these challenges:

 I. There was no statutory speedy trial violation. The Speedy Trial Act’s requirement that trial begin within 70 day of indictment or initial appearance can be extended where a judge grants an “ends of justice” continuance because a “case is so unusual or complex.” See 18 U.S.C. §3161(h)(7)(A). Here, the case was complex: the prosecution stemmed from a multi-year investigation involving millions of pages of documents. Shulick alleged that even if the case was complex, the government made a mistake during discovery (untimely production due to misfiling under the wrong case number), and thus this error should categorically bar them from an ends-justice continuance because it constituted a lack of diligent preparation. Where it was only a one-time administration mishap that the government had appropriately remedied, Shulick failed to meet his burden of showing that the government’s error rose to the level of “lack of diligent preparation.” As the court emphasized, the “Speedy Trial Act was not intended to provide defendants with tactics for ensnaring the courts into situations where charges will have to be dismissed on technicalities.”

 There was also no Sixth Amendment speedy trial violation. Shulick failed to establish any of the four factors - the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant - led to a violation.

II. The evidentiary rulings were not erroneous. The District Court rightfully excluded an agency clause in the contract and other irrelevant evidence. While the contract explicitly said the “contractor does not function as an agent of the School District,” the Court ruled this clause irrelevant because the parties “cannot bind the federal government in a criminal trial by simply saying they’re not agents of one another.” Indeed, Shulick was given significant managerial control over the administration of the school, which clearly showed he was an agent of the organization receiving federal funds under §666(a)(1)(A). Further, the district court properly excluded certain expert testimony because he was an untimely-disclosed expert witness.

 III. The District Court did not err in instructing the jury that an intentional misapplication within the meaning of § 666(a)(1)(A) can be found even if the misuse of funds still benefited the victim, in this case the School District of Philadelphia. A federal program theft occurs when the defendant “embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property.” 18 U.S.C. § 666(a)(1)(A). Consistent with sister circuits, the Court held that the disjunctive “or” shows that “intentionally misapplies” is a separate way of satisfying the statute, apart from the previous limiting phrase regarding conversion. If Congress meant for the limiting conditions to apply to “intentionally misapplies,” it would have included parallel language after that phrase and so “intentionally misapplies” is meant to be interpreted broadly.

 IV. The District Court rightfully found Shulick did not prove he was entitled to the safe harbor provision, excluding from criminal liability “bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.” A defendant is entitled to an instruction on a theory of defense “if (1) he proposes a correct statement of the law; (2) his theory is supported by the evidence; (3) the theory of defense is not part of the charge; and (4) the failure to include an instruction of the defendant's theory would deny him a fair trial.” Shulick merely asserted, without providing any evidence, that he exceeded the budget for some items, and some of his spending benefited the school.

 V. The District Court properly calculated the fraud loss by taking the difference between the amount that the defendant spent on various budgeted items and the amount that the budget required him to spend. Although the defendant claims that he exceeded the budget for some items, the defendant was not entitled to offsets against the district court's calculation of fraud loss for the expenses claimed because he did not provide enough evidence to show that the additional money was spent for the benefit of the school.

 VI. Finally, the District Court did not err in supplementing the record to include a binder relied upon by the defendant’s accounting expert. While the binder was inadvertently omitted from the record, the binder was not new evidence and was material to the case, as it contained information supporting the fraud loss calculation.





Fifth Amendment/Double Jeopardy Clause does not bar the government from retrying a defendant who succeeds post-conviction in getting his conviction set aside due to prosecutorial misconduct.


In United States v. Gregory Brown, Jr., 994 F.3d 147 (3d Cir., April 13, 2021), the Third Circuit Court affirmed the District Court's denial of Brown’s motion to dismiss on Double Jeopardy grounds. Brown was convicted in Pennsylvania and sentenced to life in prison for arson, second-degree murder, and insurance fraud. Brown unsuccessfully sought post-conviction relief in Pennsylvania and federal court alleging the prosecution had paid people to testify about the fire. Nearly a decade later, a FOIA request to the ATF revealed two canceled checks showing payment of $5,000 and $10,000 relating to the fire. Brown then located the witnesses who received these checks and successfully won post-conviction relief in Pennsylvania based on prosecutorial misconduct. The court granted him a new trial. 

Upon remand to the state trial court, Brown moved to dismiss the charges on double-jeopardy grounds. While that motion was pending, a federal grand jury indicted Brown, charging him with destruction of property by fire resulting in death under 18 U.S.C. § 844(i). The state dismissed its charges. Brown moved to dismiss the federal indictment, alleging, among other things, that the Double Jeopardy Clause barred the second prosecution. The District Court denied his motion to dismiss the federal indictment.


The Third Circuit agreed, holding that the narrow exception from Oregon v. Kennedy did not apply and so the federal prosecution was not barred by the Double Jeopardy Clause. In Kennedy, the Supreme Court held that the Double Jeopardy Clause forbids retrial only where the (1) defendant successfully moved for a mistrial, and (2) prosecutorial misconduct was intended to prejudice the defendant’s right to have his trial completed by the first jury empaneled. The Kennedy exception does not apply here, where Brown made no motion for a mistrial, and he raised the issue of prosecutorial misconduct post-conviction. Without a successful mistrial motion, it cannot be said that the government intentionally “goaded” the defendant into seeking a mistrial. Further, the court noted that the government’s failure to disclose the witnesses’ compensation was merely an “overzealous” effort to gain a conviction from the first jury and not an attempt to subvert Brown's rights. 

Wednesday, June 16, 2021

When resentencing a defendant pursuant to the First-Step Act, a court must recalculate the Sentencing Guidelines and consider all §3553(a) factors anew, but it cannot reexamine or reevaluate facts established and accepted at the time of the original sentencing.


United States v. Murphy, No, 20-1411 (3d Cir. 5/27/2021)



In 2009 Mr. Murphy was convicted by a jury of two counts of possession of cocaine and heroin and received 360 months incarceration. In 2019 he sought resentencing under the First Step Act. The Probation officer filed an addendum to the pre-sentence report decreasing the guidelines range to 262 -327 months. However, it retained the previously attributed drug amount as well as the career offender designation, both of which Mr. Murphy objected to. The Court overruled both objections, finding that the First Step Act did not allow reconsideration of either factor. It did however vary downward from the Guidelines range and sentenced him to 210 months incarceration. Mr. Murphy appealed. 


         The panel rejected Mr. Murphy’s contention that Alleyne v. United States, 570 U.S. 99 (2013) required a reassessment of the amount of drugs, as his verdict complied with that decision. However, the panel found that since the court was “imposing” a sentence, and it must therefore apply the § 3553(a) factors as they stand at the time of resentencing. The new assessment must include any relevant facts that did not exist at the time of the original sentencing, but not a reconsideration of the facts as they stood at the time of the original sentencing. Therefore, the District Court could not reconsider the prior drug-quantity finding.


The panel also concluded that the District Court did not err by refusing to reconsider the career offender calculation. The government conceded that a change in Maryland law since the time of sentencing meant that a Maryland conviction used to classify Mr. Murphy as a career offender would if he was sentenced now, no longer do so. The panel though adopted the approach of the Sixth Circuit that holds that under ¶404(b) of the First Step act, resentencing “includes an accurate calculation of the amended guidelines range at the time of resentencing and a thorough renewed consideration of the §3553(a) factors.” The judge at the new sentencing is also free to depart or vary from the Guidelines range as she sees fit. The panel rejected different approaches by other circuits. The panel also rejected the government’s contention that failure to reconsider the §3553(a) factors was harmless error.   


Judge Bibas’s dissent took note of the three-way split among the circuits on recalculation of the Guuidelines range at the time of sentencing. He would not allow the Guidelines to be recalculated. 

Image from

Thursday, May 27, 2021

Fourth Time is the Charm: Successive §2241 petition may succeed in overturning a twenty-year old conviction 

Jeffrey Holland v. Warden Canaan USP. No. 19-1800 (Third Cir., 5/19/2021), 2021 U.S. App. LEXIS 14899 *


       Judge Bibas, writing for a panel including Judges Restrepo and Porter, penned an opinion holding that a defendant’s challenge to his twenty-year old conviction for violating 18 U.S.C. §924(c) not only could go forward, but on remand should probably be granted. Congratulations to James Feldman for a well-plotted appeal.  

       In 1999 Holland was charged with (1) manufacturing, possessing, (2) distributing cocaine; conspiring to do the same; (3) using a gun to murder someone during those crimes;  and (4) of violating 18 U.S.C. §924(c) by use of a firearm in relations to a drug trafficking crime and aiding and abetting that crime. The latter charge was based on Holland’s accepting an offer to purchase a gun from one of his customers for drugs and money. About seven years after Holland’s conviction, following the publication of Watson v. United States, 552 U.S. 74, 83 (2007), that trade was no longer considered a crime. 

       Prior to 2007, Holland unsuccessfully challenged his conviction on direct appeal and in a 28 U.S.C. §2255 petition. After Watson he filed a petition under 28 U.S.C. §2241, but the District Court said he should have filed under §2255, and in any event, his petition was untimely. He filed two more petitions under §2241 raising actual innocence, but they were dismissed too, All the dismissals were affirmed by the Third Circuit. His fourth §2241 petition is the one that formed the basis for this opinion. Neither the Government nor the District Court treated it as successive, and the District Court further found that “a §2255 motion would be ‘inadequate or ineffective’ to test the legality of Holland’s detention.” Still the District Court denied the motion because even if Holland did not use the gun in the transaction, the person he bought it from did by trading it for drugs, and Holland aided and abetted the transaction. Holland appealed. 

       The panel first found it had jurisdiction to hear the matter under §2255(e)’s savings clause, which allows a §2241 petition when a §2255 petition would be "inadequate or ineffective to test the legality of [the petitioner’s] detention." Though the AEDPA and “the equitable abuse-of-the-writ doctrine limit second or successive petitions,” that law and the history of habeas corpus does not treat those limits as jurisdictional. The Court can choose to hear them, especially when, as in this case, the Government did not raise the bar on successive habeas petitions in the District Court. “[L]imits on successive §2241 petitions are discretionary and equitable—not mandatory and jurisdictional,” Judge Bibas wrote.

       Next the panel found insufficient proof the purchaser of the drugs violated §924(c). Buying dugs for personal with a gun does not violate §924(c) if it does not aid felonious drug trafficking activity— the purchaser’s crime might only have been a misdemeanor, and if so, Holland was not “aiding and abetting” a felony. (The opinion noted a Further, on the record before the panel, Holland’s possessing the gun at some point in the transaction was not use of the gun in furtherance of the felony. Holland was convicted solely on evidence of using the gun at the end of the transaction, not using it during and in relation to drug trafficking crime. His conviction was not based on his possession of it. (The opinion notes a Circuit split on the issue of whether possession of a gun under these circumstances violates §924(c), but did not address it, as Holland was not convicted on the basis of possession.) 

       In the end, the panel remanded the matter to the district court for a further inquiry into whether the person who purchased the drugs with the gun violated §924(c). This summary by the way, does not do justice to Judge Bibas’ compact and well-written opinion. It deserves a read. 






Wednesday, May 05, 2021

When calculating intended loss, the question is not whether the defendant could have sold the items at the prices claimed by the government but whether the defendant intended to do so

The defendant in United States v. Kirschner,  __ F.3d __, 2021 WL 1570250 (3d Cir. April 22, 2021), imported counterfeit coins and bullion and then, posing as a federal law enforcement agent, sold them as genuine articles to unsuspecting customers. While most of the counterfeit coins and bars were common collector items, priced at approximately $100 each, a small minority of the coins were counterfeits of exceptionally rare coins. Despite the extreme rarity of the coins, the government attempted to estimate the fair market value of the rare coins as it had the fair market value of the common collector coins. The government estimated that the intended loss of the rare coins accounted for approximately 97 percent of the total estimated intended loss.

On appeal, Kirschner argued that the district court never found that he purposely sought to inflict the losses the government argued he intended to inflict on the rare coins because he never had access to the markets presupposed by the government's fair market value methodology, i.e., ultra-wealthy collectors like King Farouk of Egypt, never attempted to access such markets, had no knowledge of the prices for which genuine versions of the rare coins had sold, and never would have attempted to sell the coins at those prices.

The Third Circuit agreed. While the district court focused on what Kirschner intended to do with the rare coin counterfeits, it never found Kirschner intended to sell the rare coin counterfeits for the prices the government claimed. The principal question for the Third Circuit was not whether Kirschner could have sold the high-value counterfeits at the prices claimed by the government. The question is whether he intended to. Indeed, the District Court admitted that it did not know “[w]hat [Kirschner] intended to do specifically, logistically, with these valuable coins,” only that, “by a preponderance of the evidence, at some point he was going to try to sell those coins as legitimate coins.” 

The Third Circuit held that, in order to estimate the losses a defendant intended to cause his victims under U.S.S.G. § 2B1.1 cmt. n.3(C), a district court must conduct a “deeper analysis” to make sure the defendant purposely sought to inflict each component of the losses the government claims he intended to inflict. In conducting that analysis, the court is free to make reasonable inferences about the defendant's mental state from the available facts. The government need only prove a defendant's intent by a preponderance of the evidence, and the court need only make a “reasonable estimate” of the intended loss. If the losses associated with the defendant's past conduct are easily extrapolated to losses the defendant intended to cause in the future (as in stealing credit cards and charging the same amount on each before discarding), the district court is free to estimate intended losses using one governing methodology (say, number of stolen but unused cards times dollar amount charged on used and discarded cards). But if the losses associated with the defendant's past conduct do not neatly map to intended future losses, the district court must finely tune its methodology to ensure it does not underestimate or overestimate a defendant's intended losses. Accordingly, the Third Circuit vacated Kirschner's sentence and remanded for reconsideration of the intended loss.

Kirschner also challenged two other enhancements, for abuse of position of trust and sophisticated means. The Third Circuit rejected both challenges. First, the Court found that Kirschner's impersonation of federal law enforcement officer played a significant role in execution of his scheme, for purpose of application of abuse-of-trust enhancement, since impersonation protected his counterfeits or money earned from them from robbery. Second, the Court found that Kirschner's offense level could be increased for use of sophisticated means because although Kirschner did not create counterfeits he sold or intricate packaging in which he sold them and his conduct could have been more sophisticated, he deployed various other strategies to conceal his fraud by using pseudonym to conceal his identity, and he created fake businesses, social media accounts, and sale invoices to give his scheme veneer of legitimacy and played major roles in commission and concealment of his crimes

** Note: The Third Circuit noted that only Application Note 3(A) to §2B1.1, not the Guidelines' text, says that defendants can be sentenced based on the losses they intended. By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.” United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring). However, Kirschner assumed the comment was correct, so the Circuit did too. 

Spatial proximity of firearm to drugs is not necessary for enhancement under U.S.S.G. § 2D1.1(b)(1)

               Section 2D1.1(b)(1) provides for a Guidelines enhancement when “a dangerous weapon (including a firearm) was possessed.” Appl...