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Welcome to the New and Improved Rocky Mountain Defense Blog!

Welcome to the new and improved Rocky Mountain Defense Blog!  Started about a decade ago by Federal Public Defender Virginia Grady, the Blog is written and maintained by lawyers and interns at the Federal Public Defender’s Office for the Districts of Colorado and Wyoming.  We will keep you posted about federal criminal law developments in the Tenth Circuit and the United States Supreme Court.

Here’s what you’ll find:

(1) News You Can Use – case law summarizes with suggested takeaways for practical application.

(2) Practice Tips – strategies and suggestions for motions and appellate practice.

(3) Resources– links to helpful websites, blogs, and articles about federal criminal defense in the Tenth Circuit and nationally.

Please follow the Blog to receive notifications of new posts.

 

 

 

Resource: USSC releases new report on Revocations Among Federal Offenders

Check out the latest in the United States Sentencing Commission’s ongoing study of the criminal history of federal offenders.  A new report — Revocations Among Federal Offenders — explores a subset of the Commission’s criminal history rules—those regarding the revocation of terms of probation, parole, supervised release, special parole, and mandatory release.  The report analyzes the prevalence of revocations among federal offenders and the nature of the revocations. The Commission’s other research reports on criminal history are also worth a read.

Key findings include:

  • Only a minority of offenders (35.0%) with criminal history points under the federal sentencing guidelines had at least one scored conviction with a revocation. Most often such offenders had only one such conviction.
  • For the minority of offenders who did have at least one scored conviction with a revocation, it often increased their criminal history score and resulting Criminal History Category.
  • Among offenders with at least one scored conviction in their criminal history, three-fifths (60.2%) received additional criminal history points, and just under a third (30.9%) received an increase in Criminal History Category. For those offenders who received an increase into a higher Criminal History Category, the impact was generally limited to one Criminal History Category.
  • The rate at which offenders had at least one scored conviction with a revocation varied significantly depending on the type of federal offender. Firearms offenders were the most likely (54.3%) and immigration offenders the least likely (20.9%) to have at least one scored conviction with a revocation. However, the impact of such convictions on their criminal history scores and Criminal History Categories varied much less. Among offenders with at least one such conviction, firearms offenders were the most often (66.2%) and immigration offenders least often (55.9%) to receive additional criminal history points. Among offenders who received additional criminal history points, those points resulted in a higher Criminal History Category most often for drug trafficking offenders (53.1%) and least often for firearms offenders (42.9%).

 

Preserve This! Gorsuch and Sotomayor Express Interest in Applying Apprendi to Restitution Orders

Hester v. United States, an opinion by Justice Gorsuch (joined by Justice Sotomayor), flags an issue that defense counsel should be preserving in appropriate cases. Certiorari was denied in Hester, but the issue may attract enough votes for a grant of certiorari in the future.

The question presented in Hester was whether Apprendi v. New Jersey applies to restitution orders. Apprendi requires that a jury find beyond a reasonable doubt any fact that increases the maximum sentence for an offense. Mr. Hester maintained that Apprendi required a jury to find the facts supporting the amount of restitution that was ordered for his offense. The circuits, including the Tenth Circuit, have uniformly rejected this argument. The Supreme Court declined to review the issue in Hester, but Justices Gorsuch and Sotomayor dissented from the denial of certiorari.

Justices Gorsuch and Sotomayor not only opined that the issue was worthy of the Court’s consideration; they strongly suggested a view on the merits: that Apprendi should, indeed, apply to restitution orders. They reasoned that “the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss. And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.”

Justices Gorsuch and Sotomayor rejected the government’s assertion that restitution “isn’t a criminal penalty, only a civil remedy” as follows: “[T]he Sixth Amendment’s jury trial right expressly applies ‘[i]n all criminal prosecutions,’ and the government concedes that ‘restitution is imposed as part of a defendant’s criminal conviction. Federal statutes, too, describe restitution as a ‘penalty’ imposed on the defendant as a part of his criminal sentence, as do our cases.” As a coup de grâce, Justices Gorsuch and Sotomayor then invoked the Seventh Amendment: “Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to jury trial in civil cases.”

Equally telling about the merits of the government’s argument against applying Apprendi to restitution is Justice Alito’s opinion concurring in the denial of certiorari. He does not defend the lower courts’ interpretation of Apprendi but, instead, suggests Apprendi should be overruled.

Takeaways 

  • In cases where the applicability or amount of restitution is disputed, preserve an argument that Apprendi requires that the applicability and amount of restitution be determined by a jury beyond a reasonable doubt. You can preserve the argument by filing a written objection to the PSR’s recommendation that restitution be ordered and by raising the argument again at the sentencing hearing.
  • Don’t be deterred from preserving a sound argument just because the circuits have uniformly rejected it. The circuits can be (and have been) uniformly wrong!

 

 

News You Can Use: SCOTUS decides more ACCA predicate cases (Part 1)

The Supreme Court recently decided the consolidated cases of United States v. Stitt (and United States v. Sims), No. 17-765, 2018 WL 6439818  (U.S. Dec. 10, 2018). The opinion holds that burglary of a vehicle adapted for overnight accommodation of persons is a generic burglary for purposes of the Armed Career Criminal Act.

The Stitt opinion is another in a line of cases that have asked whether certain burglary convictions qualify as predicate offenses under the Armed Career Criminal Act (ACCA). The defendants in these cases, Victor J. Stitt and Jason Daniel Sims, were each convicted in federal court of unlawfully possessing a firearm, in violation of 18 U. S. C. §922(g)(1). The sentencing judge in each case imposed the mandatory minimum 15-year prison term that the ACCA requires for §922(g)(1) offenders who have at least three previous convictions for certain “violent” or drug-related felonies, §924(e)(1), based in part on burglary convictions.

The Supreme Court has previously stated that burglary of a vehicle is not a valid ACCA predicate. But the narrower question in this case was whether statutes that cover burglaries of vehicles that have been adapted or customarily used for overnight accommodation should qualify as ACCA predicates because they fall within the “generic” definition of burglary.

The categorical approach

Recall that the categorical approach first adopted Taylor v. United States, 495 U.S. 575 (1990), requires courts to evaluate a prior state conviction by reference to the elements of the state offense, rather than to the defendant’s conduct. In other words, you can’t look at the underlying facts of the prior conviction to figure out whether the predicate counts. A prior state burglary conviction does not qualify under the ACCA where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 136 S.Ct. 2243 (2016). Burglary statutes that cover vehicles as one possible means of committing the crime are therefore excluded from being predicate ACCA offenses because the statutes are overbroad. See, e.g., Mathis, 136 S. Ct. at 2250. (holding that Iowa statute covering burglary of “any building, structure, [or] land, water, or air vehicle” was overbroad and indivisible and thus did not qualify as an ACCA predicate).

The nitty gritty

Stitt’s prior convictions were for violations of a Tennessee statute that defines “[a]ggravated burglary” as “burglary of a habitation.” Tenn. Code Ann. § 39–14–403(a) (1997). It further defines “[h]abitation” to include: (1) “any structure, including … mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.” §§ 39–14–401(1)(A), (B) (emphasis added).

Similarly, Sims’ prior convictions were for violations of an Arkansas statute that prohibits burglary of a “residential occupiable structure.” Ark. Code Ann. § 5–39–201(a)(1) (Michie 1997). The statute defines “[r]esidential occupiable structure” to include:  “a vehicle, building, or other structure: (A) [w]here any person lives; or (B) [w]hich is customarily used for overnight accommodation of persons whether or not a person is actually present.” § 5–39–101(1) (emphasis added).

In both cases, the District Courts found the state statutory crimes fell within the scope of the word “burglary” in the Armed Career Criminal Act and consequently imposed that statute’s mandatory sentence enhancement. In both cases, the relevant Court of Appeals held that the statutory crimes did not fall within the scope of the word “burglary,” vacated the sentence, and remanded for resentencing. The Government sought certiorari in both cases in part because of a circuit split that included an old Tenth Circuit case, United States v. Spring, 80 F.3d 1450, 1462 (10th Cir. 1996), which held that such burglary convictions would qualify as ACCA predicates.

The upshot

The Supreme Court surveyed state statutes from 1986 and earlier and determined that “a majority of state burglary statutes covered vehicles adapted or customarily used for lodging.” Stitt, 2018 WL 6439818, at *4. As a result, such burglary convictions were included within the definition of “generic burglary.” In so doing, the Supreme Court reversed the decisions below of the Sixth and Eighth Circuits, and also abrogated contrary precedent in the Fourth and Ninth Circuits. See United States v. White, 836 F.3d 437, 446 (4th Cir. 2016); United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). Justice Breyer wrote the opinion for a unanimous Court.

Takeaways

  • Burglary convictions/statutes that cover vehicles plain and simple are still out, but statutes that cover vehicles “adapted for overnight accommodation of persons” will now qualify as ACCA predicates—as long as they are not overbroad and indivisible in some other way.
  • For a refresher on the categorical approach, see Mathis v. United States, 136 S.Ct. 2243 (2016), available here.
  • Remember: burglary convictions are NEVER crimes of violence under the career offender provisions of the Guidelines (this case affects only potential ACCA clients).

 

 

News You Can Use: Tenth Circuit Holds Kansas Aggravated Robbery Isn’t a Violent Felony

In United States v. Bong, the Tenth Circuit held that Kansas aggravated robbery isn’t a violent felony for purposes of the Armed Career Criminal Act. Mr. Bong was convicted of being a felon in possession of a firearm and sentenced to more than 24 years in prison. He was sentenced under the ACCA based on at least seven prior convictions that the district court believed qualified as violent felonies: three Kansas simple robberies, three Kansas aggravated robberies, and one Kansas attempted robbery. On appeal, Mr. Bong argued that none of those prior convictions qualified as violent felonies that could trigger the ACCA, and the Tenth Circuit agreed.

By statute, Kansas defines robbery as “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” The statute defining aggravated robbery defines that offense as “a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person during the course of such robbery.” At first blush, these statutes would seem to qualify as violent felonies. But a closer look revealed that they don’t qualify.

 Although the Kansas statutes seem to require force, the Kansas Supreme Court has interpreted them to require no such thing. In one case, the Kansas Supreme Court held that mere purse snatching constitutes robbery and, in a different case, held that mere possession of a weapon (absent use or brandishing) can elevate a robbery conviction to aggravated robbery.

Based on the Kansas Supreme Court’s interpretation of its robbery statutes, the Tenth Circuit held that Mr. Bong’s prior convictions did not count as violent felonies. First, as to simple robbery, the “mere snatching of a purse” — “without any application of force directly to the victim” and “without any resistance by or injury to the victim” — “falls short of the ‘violent force’ required” to qualify as a violent felony under the ACCA. Bong, Slip op. at 19-20. Second, as to aggravated robbery, “nothing about [a] defendant’s mere possession of a firearm (or another deadly weapon) would . . . necessarily cause[] the crime to involve” the use, attempted use, or threatened use of violent force required to trigger the ACCA. Id. at 23-24.

 

TAKEAWAYS

 1. Robbery offenses that can be committed by mere purse snatching don’t qualify as violent felonies under the ACCA (and likely don’t qualify as crimes of violence under the sentencing guidelines).

 2. Offenses that require simply possessing a weapon, as opposed to using or brandishing a weapon, don’t qualify as violent felonies under the ACCA (and likely don’t qualify as crimes of violence under the sentencing guidelines).

3. Even when an offense sounds like it would be a violent felony or crime of violence (Aggravated Robbery With a Deadly Weapon!), it may not qualify. Even when the statute defining an offense sounds like it defines a violent felony or crime of violence, it may not qualify. You must always look to see how the state courts have construed the statute.

 

News You Can Use: SCOTUS considers eliminating the “separate sovereigns” double jeopardy exception

This week, the Supreme Court hears argument in Gamble v. United States, a case asking whether the Court should overrule the “separate sovereigns” exception to the double jeopardy clause. Gamble has significant practical implications, but also raises interesting issues of constitutional interpretation, historical practice, and adherence to precedent.

Following a 2015 traffic stop in which police found a gun, the state of Alabama prosecuted Mr. Gamble for being a felon in possession of a firearm. He pleaded guilty and was sentenced to a year in prison. But the federal government then pursued its own case against him for the same crime (being a felon in possession of a firearm), and based on the same conduct (possessing the firearm found during the traffic stop).

While the Fifth Amendment’s Double Jeopardy Clause prohibits any person from being tried twice for the same offense, the Supreme Court has long recognized an exception to that principle. Prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are considered separate sovereigns. See Abbate v. United States, 359 U.S. 187, 195 (1959).

This “separate sovereigns” exception (also called the “dual sovereignty” exception) would seem to countenance both prosecutions of Mr. Gamble. That’s what the Southern District of Alabama and the Eleventh Circuit both held below. As the circuit court put it, “unless and until the Supreme Court overturns Abbate, [this type of] double jeopardy claim must fail based on the dual sovereignty doctrine.” 694 F. App’x at 750-51.

But Mr. Gamble had an opening to argue for that very overruling. Two terms ago, in Puerto Rico v Sanchez Valle, the Supreme Court held that Puerto Rico was not a separate sovereign from the United States because it derived its authority from Congress. So, Puerto Rico and the United States could not both prosecute a person for the same conduct under equivalent criminal laws.

Notable here, however, was Justice Ginsburg’s concurrence, joined by Justice Thomas, in which she wrote to “flag a larger question that bears fresh examination in an appropriate case”—that is, whether the Court’s separate sovereigns doctrine served the Double Jeopardy Clause’s goal “to shield individuals from the harassment of multiple prosecutions for the same misconduct.” 136 S. Ct. 1877. The concurrence suggested it did not, and that the issue warranted the Court’s attention. 

The Court decided Sanchez-Valle on June 9, 2016.  About a week later, Mr. Gamble moved to dismiss the indictment, the motion predicated on Justice Ginsburg’s concurrence and call to revisit the separate sovereigns doctrine. Two years later, the Supreme Court granted granted certiorari.

SCOTUSblog has an excellent argument preview here: http://www.scotusblog.com/2018/11/argument-preview-justices-to-reconsider-potentially-far-reaching-double-jeopardy-exception/

For a fascinating historical perspective on the question, check out the amicus brief filed by law professors contending that dual sovereignty is a historical accident, and not part of the constitutional design.

 

Takeaways:

  • Be on the lookout for any dual-sovereignty issues in current cases, and preserve that challenge by filing a motion to dismiss the indictment.
  • Remember to pay attention to concurrences and dissents (including dissents from the denial of certiorari). Gamble finds its roots in Justice Ginsburg’s Sanchez-Valle concurrence. Shortly after that concurrence, Mr. Gamble moved to preserve the issue, and two years later the Court granted certiorari on the question.
  • Stare decisis is not always decisive. Even long-standing legal doctrines may be reconsidered, and Mr. Gamble argued persuasively in his petition for certiorari that both the doctrinal and factual premises supporting the separate sovereigns exception have eroded significantly since its adoption. (See Petition at 7-17.)

 

 

News You Can Use: Tenth Circuit reaffirms constructive possession requires intent to exercise control over an object, in a published decision involving 18 U.S.C. § 924(c)

The Tenth Circuit just decided United States v. Giannukos, reaffirming that constructive possession requires intent to exercise control over an object, and not just knowledge and ability to exercise control over the object.

Recall, the Supreme Court recently held that “[c]onstructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015). In United States v Little, the Tenth Circuit adopted this holding, and explained that both the power and intent to exercise dominion or control over the object are essential to establish constructive possession. In Giannukos, the Tenth Circuit held that the post-Little definition of constructive possession must apply to a 924(c) charge for possession in furtherance of a drug trafficking crime.

The defendant in Giannukos went to trial on drug and gun charges. The government alleged he was distributing drugs out of his residence, and that he possessed two firearms in furtherance of that crime. The two firearms were found in a house he shared with a friend and his girlfriend.  One gun was found in a hutch in a common area of the house, and the other was found next to a pink bag in the bedroom that the defendant and his girlfriend shared.  DNA testing of the first gun turned up DNA from three unspecified people, at least one of them male. The major DNA contributor to the second gun was female.  A holster fitting the second gun was found inside the pink bag.

The government’s theory of the case was the defendant possessed the guns in furtherance of a drug trafficking crime and charged him with a 924(c) offense. The judge instructed the jury that it could find constructive possession of the guns if it determined the defendant “knowingly had the power” to “exercise dominion and control over” them.  Op. at 6.  As the Tenth Circuit would later hold in Little, this instruction misstates the law.  The jury convicted on all counts, including the 924(c) count, which meant the jury found Mr. Giannukos possessed the firearms “in furtherance of” his drug trafficking crimes. Op. at 14.  The jury had been instructed that “in furtherance of” means “for the purpose of assisting in” the drug crimes.  The government argued that if the jury found (as it did) that Mr. Giannukos intended the guns to further his drug dealing, it necessarily – or at least quite likely – thought he also intended to exercise control over the guns, so the Little error was harmless.

The Tenth Circuit disagreed. It first held that the constructive possession instruction was erroneous and that the error was plain, satisfying the first and second prong of the plain error analysis. The Tenth Circuit also held that the error was prejudicial, even as to the 924(c) count. It reasoned the defendant could have known the guns were in the house and believed they would help fend off robberies to protect his stash (possession in furtherance) without intending to exercise control over the guns himself. In other words, the Tenth Circuit held that, under the third prong, there was a “reasonable probability” that a properly instructed jury (one that had been given the post-Little instruction) would not have convicted Mr. Giannukos of constructively possessing firearms. There is also some good fourth-prong plain error law in the opinion.  The Circuit holds that any prejudicial error in a jury instruction on the elements will meet the fourth prong in light of the “revered status of the beyond-a-reasonable-doubt standard in our criminal jurisprudence.”  Op. at 17.


TAKEAWAYS:

  1. There is a relatively new Tenth Circuit Pattern Jury Instruction that adopts the post-Little definition of constructive possession.
  2. The post-Little constructive possession instruction applies to any crime where possession is an element: constructive possession requires both the power and the intent to exercise dominion and control over an object
  3. Where there is prejudicial error in a jury instruction that affects one of the elements of the crime charged, the fourth prong of the plain error test will almost always be satisfied.

 

 

News You Can Use: SCOTUS grants cert in Haymond — why that might matter to your clients facing revocation of supervised release in the Tenth Circuit

The Supreme Court has granted certiorari in United States v. Haymond, in which the Tenth Circuit struck down as unconstitutional 18 U.S.C. § 3583(k)’s provision requiring a mandatory minimum of five years of imprisonment following revocation of supervised release based on certain sex crimes.

Generally, a defendant faces a supervised release term of no more than 5 years, and upon revocation for a violation, a term of imprisonment of no more than 5 years. That’s where the underlying offense of conviction is a class A felony. The potential penalties are progressively less severe for less serious offenses.

However, 18 U.S.C. § 3583(k) carves out a special, and especially extreme, exception for certain sex offenses and revocations based on the commission of new sex offenses—a supervised release term of 5 years to life, and upon revocation, a term of imprisonment of 5 years to life. So, what is usually the ceiling (a 5-year max for class A felonies) becomes the floor (a mandatory minimum of 5 years for certain sex offenses).

In Haymond, the Tenth Circuit held that the mandatory minimum of five years of imprisonment is unconstitutional because it changes the mandatory sentencing range based on a court’s finding by a preponderance of the evidence, instead of a jury’s finding beyond a reasonable doubt.

In so holding, the Court primarily relied on a trio of Supreme Court cases: (1) Apprendi, which held that any fact that increases the stat max must be submitted to a jury and proven beyond a reasonable doubt; (2) Alleyne, which applied Apprendi to mandatory minimums; and (3) Booker, which extended the substance of these 6th Amendment principals to the sentencing context.

The government petitioned for certiorari, and the Supreme Court granted it, even though the Tenth Circuit is the only court to have even considered the issue (so, no circuit split; the government’s pitch was error correction on a “significant and recurring question of federal law”), and § 3583(k) does not appear to be a frequently invoked statute. That might not bode well for Haymond’s survival.

Takeaway: If you have a client facing revocation based on § 3583(k), or want to make an argument based on an extension of Haymond, move quickly. Do not let the government stay the proceedings pending resolution of Haymond in the Supreme Court. See Yong v. I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (“[O]nce a federal circuit court issues a decision, the district courts within that circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before applying the circuit court’s decision as binding authority . . . .”).