Tuesday, December 28, 2021

Third Circuit reaffirms that sentencing courts must only give deference to Sentencing Commission's interpretation of genuinely ambiguous Guidelines' provisions

In United States v. Malik Nasir, Appeal No. 18-2888, the Third Circuit finally resolved defendant Malik Nasir's appeal after review before a merits panel in November 2019, En Banc review in June 2020, and remand from the United States Supreme Court in November 2021. 

On a tip, Malik Nasir was arrested near a storage unit in which he kept the marijuana he was selling. He was subsequently charged with, and convicted of, two drug offenses and a firearm offense. At sentencing, the District Court applied a career offender enhancement found in the United States Sentencing Guidelines. Nasir appealed his convictions and challenged the application of that enhancement. The Third Circuit rejected the challenge to his convictions and reiterated that the sentencing enhancement was not properly applied.The Court, therefore, affirmed Nasir's convictions, vacated his sentence, and remanded for resentencing.

(1) Sufficiency of the evidence: The Third Circuit found that the evidence was sufficient to convict Nasir of violating crack house statute for his use of storage unit, despite contention that provision under which defendant was convicted did not apply to defendant's storage of marijuana; even if provision did not apply to storage, jury was presented with more than ample evidence that defendant was distributing marijuana from rented place, including evidence that unit contained distribution paraphernalia like scales and packaging materials, and facility owner's testimony about defendant's frequent and suspicious trips to unit. 

(2) Probable cause: Police had probable cause to arrest Nasir and search his vehicle as a search incident to arrest, despite contention that police failed to corroborate tip from storage facility owner regarding Nasir's activities, where arresting officers knew Nasir had history of drug dealing, owner reported that Nasir engaged in suspicious activity in making numerous trips to storage unit and took picture of unit that showed items consistent with drug distribution, and narcotics dog had positively alerted to drugs at unit.

(3) Motion to strike juror:  District court did not manifestly err in denying Nasir's motion to strike juror who expressed concern about her partiality to police officers, where court emphasized juror's obligation to be fair and impartial and to weigh evidence equally, juror responded with assurances that she would follow court's instructions, and juror said that she “would think” and “would hope” that she could be impartial.

(4) EN BANC: No deference owed to Sentencing Commission's interpretation of career offender guideline where guideline provision was not ambiguous: Nasir was subjected to the career offender enhancement as a result of a prior conviction for attempt to possess with the intent to distribute cocaine. He argued that the the definition of "controlled substance offense" in U.S.S.G. §4B1.2(b) did not include inchoate offenses. Inchoate offenses appear, however, in the commentary to §4B1.2. The Third Circuit, en banc, ruled that the plain language of the guideline, rather than the more expansive commentary interpreting the guideline, should be given controlling weight. In so holding, the Court noted that, while deference is generally owed to an agency's interpretation of its own ambiguous rule unless the interpretation is plainly erroneous or inconsistent with the regulation, the rule the agency is interpreting must be genuinely ambiguous and the agency's interpretation of the ambiguous rule must reflect fair and considered judgment. Applying canons of statutory construction, the Court found that §4B1.2(b)'s definition of controlled substance offense was not ambiguous and, therefore, the plain text reading of the definition, which does not include inchoate offenses, controlled. Therefore, sitting en banc, the Court determined Nasir was entitled to be resentenced without being classified as a career offender.

Friday, December 17, 2021

When evaluating a motion for early termination of supervised release, a district court may not impute a probation officer's improper actions to the defendant

 In United States v. Sheppard, Appeal No. 20-3088 (Nov. 3, 2021), defendant moved for early termination of supervised release based on allegations that his probation officer developed a personal and intimate relationship with defendant's long-term, live-in girlfriend. The defendant contended that his probation officer's egregious and offensive conduct had a detrimental effect on his rehabilitation and warranted early termination. The district court denied the defendant's motion, finding that the defendant needed continued supervision and the probation officer's misconduct had little to do with whether the defendant should continue supervision with a different probation officer. 

The Third Circuit affirmed the district court's discretionary denial of early termination on appeal, but stressed that "when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer’s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight." Indeed, "imputing a probation officer’s misconduct to a defendant places the defendant in a vulnerable position – not just in terms of seeking relief for the probation officer’s misconduct, but also as to the defendant’s welfare and ability to integrate into the community." Thus, while the district court did not err in denying the defendant's motion, it should not have considered the possible effects of the probation officer's misconduct on the defendant's rehabilitation.

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