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, https://www2.ca3.uscourts.gov/opinarch/163820pen.pdf, -- 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,  https://www2.ca3.uscourts.gov/opinarch/191469p.pdf, 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.

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...