Judges in the District of Colorado, with the consent of the defendant after consultation with counsel, are continuing to use video teleconferencing during the pandemic. For your reference, here are go-to instructions for participating in these VTC hearings.
The Tenth Circuit will hear oral argument today September 22, 2020 at 2 p.m., in United States v. Maumau, No. 20-4056, a government appeal out of the District of Utah with potential implications for compassionate release litigation throughout the circuit. The issue is whether the district court has authority to determine for itself what constitutes an “extraordinary and compelling reason” that would justify compassionate release under 18 U.S.C. § 3582(c)(1)(A), notwithstanding the BOP and the Sentencing Commission have promulgated definitions. The case concerns both the language of Section 3582(c) and the validity of USSG 1B1.13, as well as its commentary. Former federal district court judge John Gleeson represent Mr. Maumau. You can learn more about Judge Gleeson here: https://www.debevoise.com/johngleeson You can listen to the argument in real time on the circuit’s YouTube channel by clicking here:https://www.youtube.com/watch?v=IaR1ZYqvC4A Audio recordings of the arguments can be found on the circuit’s website – with a time lag of about two days – by clicking here: https://www.ca10.uscourts.gov/oralargument/search/recent
The appellate briefs and district court order are available here:
This week, in United States v. Young, the Tenth Circuit held the district court erred in refusing to suppress defendant’s confession, finding the confession was involuntary because it was induced by a federal agent’s misrepresentations about the law and false promises of leniency, including a false promise about the agent’s access to the federal judiciary.
In an interview with local agents, Mr. Young admitted that a small amount of drugs found the morning of his arrest were his, but denied that a much larger quantity found later that day were his. He then revoked his consent to speak. When an FBI Special Agent later questioned Mr. Young, he told Mr. Young he had spoken to the judge, and that Mr. Young faced either a five-year or ten-year charge. The agent then told him that, with each truthful statement he made, he could “physically buy down” his sentence. Within moments, and in response to the agent’s first question, Mr. Young admitted the larger quantity of drugs were his as well.
Mr. Young moved to suppress his confession as involuntary. At the suppression hearing, the agent claimed he misspoke – he meant to say not judge but “prosecutor.” The agent also said he did not know the actual sentencing ranges for Mr. Young’s offenses and was just providing a tangible number to help make his case that “cooperation can pay dividends.” Although the court found the agent made false representations and improper promises of leniency, the judge concluded that Mr. Young’s confession was not involuntary and denied his motion to suppress.
Mr. Young appealed. He argued that, although the district court was correct to find as a factual matter that there was improper coercion, it was wrong in its legal conclusion that Mr. Young’s confession was voluntary.
The Tenth Circuit’s decision
The government did not challenge on appeal the district court’s factual findings. So the Tenth Circuit reviewed (de novo) only the trial court’s legal conclusion that Mr. Young’s confession was voluntary. The Court of Appeals recited the law applicable to determining whether a confession has been coerced, emphasizing the inquiry is based on a totality of the circumstances and requires consideration of “both the characteristics of the accused and the details of the interrogation.” (Opinion at 7).
The Court first addressed the agent’s conduct–his misrepresentations and promises of leniency. It was significant that the agent misrepresented the law to Mr. Young, “a factor that weighs in favor of concluding his actions were coercive.” (Opinion at 9). In addition, the agent did not merely inform Mr. Young the cooperation would be viewed favorably by a prosecutor, but said he had spoken with a federal judge who would reward him for his cooperation. “But that is not the way the federal system works,” the Court of Appeals held. Although the Court of Appeals acknowledged that some of aspects of the interrogation were not coercive, these factors were not dispositive.
Finally, the Court of Appeals did not agree with the trial judge that Mr. Young’s prior experience with the state criminal justice system would render him less susceptible to believing promises of leniency and misrepresentations by a federal law enforcement officer explaining his access to a federal judge.
The district court’s decision was reversed and the judgment against Mr. Young was vacated.
- Use this decision for its helpful recitation of the well-settled law governing involuntary confessions.
- Note the Court’s repeated emphasis of the totality of the circumstances test (mentioned at least 6 times in the opinion) as the operative framework for assessing voluntariness, making clear no single factor is determinative.
- But take care to view the holding in its factual context. Consider whether the nature of this particular agent’s misrepresentation–that he had personal access to a federal judge–significantly impacted the Court’s view of the ultimate merits.
The Senate Judiciary Committee is holding a hearing today, June 2, to examine best practices for incarceration and detention in the time of COVID-19.
Particularly noteworthy is the Joint Testimony of two BOP officials: Michael D. Carvajal, Director of BOP, and Dr. Jeffery Allen, the BOP’s Medical Director. Much of the testimony addresses the criticism of BOP’s pandemic response, which Carvajal and Allen claim has “been based on misinformation” about how BOP is actually handling things.
Take a close look at the last section, addressing how the BOP is handling home confinement:
“As the pandemic grew more widespread, the Bureau began aggressively screening the inmate population for inmates who were appropriate for transfer to RRC or Home Confinement for service of the remainder of their sentences. On March 26, 2020 and April 3, 2020, Attorney General Barr issued memoranda to the Bureau directing us to increase the use of Home Confinement, particularly at institutions that were markedly affected by COVID-19, for vulnerable inmates. The CARES Act, signed by President Trump on March 27, 2020, further expanded our ability to place inmates on Home Confinement by lifting the statutory limitations contained in Title 18 U.S.C. § 3624(c)(2) during the course of the pandemic. I am pleased to note that we currently have 6,120 inmates in RRC and 6,398 on Home Confinement. This is an 124% increase in HC from March 26, 2020. There are an additional 985 who are scheduled to transfer to Home Confinement in the coming weeks. While we continue to make robust strides in these placements to reduce risk of spread to the inmate population and staff, public health and safety must remain our highest priority. The Attorney General has issued guidance as to which inmates should be considered for home confinement. Staff are conducting individualized assessments to ensure inmates are appropriate for community placement both from a public safety perspective and given their own specific needs and circumstances. Additionally, we must ensure inmates who release to Home Confinement have a viable residence in which to reside.
It should go without saying that while we are dedicated to the protection of our inmates’ health and safety, we also have to consider—as the Attorney General’s guidance emphasized—that inmates who presented a risk of public safety because of their criminal acts or other factors cannot be released. Neither can we release inmates who would be worse off outside Bureau facilities than inside, such as those whose medical conditions could not be adequately cared for by health systems that are themselves overwhelmed by the response to COVID infections in the general community. Nor can we release inmates who do not have safe housing for themselves or housing that is not subject to appropriate safeguards for home confinement, which is still, after all, a form of incarceration for persons convicted of crimes whereby such persons are still serving a federal sentence.”
In United States v Neugin, __F.3d__, 2020 WL 2091842 (10th Cir. May 1, 2020) (published), the Tenth Circuit limited the use of the community caretaking exception and refused to apply the inevitable discovery doctrine to a search of an automobile. Judge Matheson authored, joined by Judge Ebel. Judge Hartz dissented.
Facts: An officer spotted ammunition while lifting the lid of a truck’s camper; he ran a background check and the driver was a felon.
Officers responded to a domestic dispute between Mr. Neugin and his girlfriend, Ms. Parrish, that was taking place at a restaurant. While mediating the dispute, one officer, without permission, opened the lid of the truck’s camper to get Ms. Parrish’s belongings. In doing so, he looked inside the camper and saw a large bucket containing several rounds of ammunition. Officers ran a background check on Mr. Neugin, which showed that he was a felon. An officer asked Ms. Parrish whether Mr. Neugin had a firearm. She said he had a shotgun in the truck and had threatened her with it the evening before. Ms. Parrish consented to the search of the vehicle, and one officer saw the stock of a firearm protruding from the truck. It turned out to be a shotgun, and Mr. Neugin was arrested. Mr. Neugin pleaded guilty to being a felon in possession of a firearm and ammunition, but preserved the suppression issues for appeal.
The community caretaking exception did not excuse the warrantless search.
The community caretaking exception applies only when an officer’s actions are warranted by (1) state law or sound police procedure, and are (2) justified by concern for the safety of the general public. The officer’s actions must also outweigh the individual’s privacy interests. Here, opening the camper wasn’t necessary to protect anyone, even Ms. Parrish. While the search was intended to facilitate the retrieval of Ms. Parrish’s belongings from the scene of the dispute, an officer’s “benign motive” is not enough, and the search was not “de minimis.”
The inevitable discovery doctrine didn’t apply because there would have been no reason to impound the car absent the warrantless search that led to Mr. Neugin’s arrest.
The government argued that even if opening the camper was unconstitutional, the evidence should not have been suppressed because the truck inevitably would have been impounded and searched. The Tenth Circuit disagreed. Instead, the Court reasoned that, if officers had not opened the camper, they wouldn’t have necessarily seen the ammunition, run a criminal history check, or found the gun. Without the violation, therefore, Mr. Neugin would not inevitably have been arrested. And without the arrest, the truck would not inevitably have been impounded and searched. Even though the truck was broken down, Mr. Neugin could have called his own towing company or a mechanic.
Notes from the notes.
Some other key points appear in footnotes, but are worth noting.
- The plain-view exception did not apply because the officer was not lawfully positioned when he found the ammunition.
- The officer could not rely on Ms. Parrish’s consent to search because any consent came after the warrantless search that uncovered the ammunition.
- The automobile exception didn’t apply because the officer did not have probable cause to believe that contraband would be found inside.
Judge Hartz would have affirmed the district court’s decision that the community caretaking exception applied. He reasoned that the community caretaking exception extended to the officers’ attempts to keep the disputing couple under control and keep an eye on Ms. Parrish while she retrieved her belongings from the truck. He thus thought it was proper for the officer to lift the lid of the camper shell, so as to mediate any further argument.
The community caretaking exception is limited. Non-investigatory searches of automobiles under the community caretaking function are only justified if warranted by state law or sound police procedure, and are justified by concern for the safety of the general public.
Use this case for its good language on inevitable discovery. The Court reaffirms that “the inevitable discovery exception to the exclusionary rule cannot be invoked because of [a] highly speculative assumption of ‘inevitability.’” United States v. Owens, 782 F.2d 146, 153 (10th Cir. 1986).
The United States Sentencing Commission has just released a number of reports on federal sentencing practices in fiscal year 2019.
Particularly useful are the data reports compiling federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. You can find all of the reports here.
Data specific to the Tenth Circuit is available here, see USSC Data for Fiscal Year 2019.
And, a short Overview of Federal Criminal Cases for Fiscal Year 2019 is also worth your time.
In Kansas v. Glover, the Supreme Court considered the narrow question “whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked license.” Kansas v. Glover, No. 18-556, 2020 WL 1668283, at *2 (U.S. April 6, 2020). The Court held that “the stop is reasonable,” unless the officer learns “information negating an inference that the owner is the driver of the vehicle.” Id.
The case essentially came down to whether, in the context of an investigative detention based on reasonable suspicion, an officer can infer that the owner is the person driving the car, even though their license has been revoked. An eight-judge majority concluded that inference was reasonable.
The majority began with the premise that it is reasonable to infer that a car’s owner is the one driving, and under the circumstances here, no evidence rebutted that reasonable inference. “The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate” that inference because the “reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy.” Id. at *3. Neither does the fact that the owner’s license was revoked negate it because, according to the Court, common sense and statistics demonstrate that drivers with revoked licenses often continue to drive. Moreover, under Oklahoma’s license revocation scheme, only “drivers who have already demonstrated a disregard for the law or are categorically unfit to drive” may have their license’s revoked. Id. at *4. Thus, it is not unreasonable to infer that they may continue to drive in violation of the law.
The majority rejected Justice Sotomayor’s concerns in her dissent that the Court was doing away with the requirement that reasonable suspicion be based an officer’s training and experience rather than data and probabilities. The majority countered that officers may apply common sense, not only expertise, and that reliance on data-driven probabilities is wholly appropriate (although, relying “exclusively” on probabilities might not be).
Finally, the Court “emphasize[d] the narrow scope of [its] holding.” Id. at *5. Not only is the holding limited to revoked licenses (as opposed to suspended licenses), but the inference that the owner is driving can be easily rebutted. “For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not ‘raise a suspicion that the particular individual being stopped is engaged in wrongdoing.’” Id.
- This decision does not change Tenth Circuit law. The Tenth Circuit, in a decision by then-circuit-judge Gorsuch, has already held that an officer has reasonable suspicion to stop a vehicle where a database indicates the owner does not have insurance, notwithstanding that the non-owner driver might be independently insured. See United States v Cortez-Galaviz, 495 F.3d 1203, 1207-08 (10th Cir. 2007) (“[C]ommon sense and ordinary experience suggest that a vehicle’s owner is, while surely not always, very often the driver of his or her own car.”). And, at least one district court has relied on Cortez-Galaviz to find reasonable suspicion to stop a car where the owner had their license revoked, which was the fact pattern in Glover. See United States v Wissiup,2013 WL 4430872, at *4 (D. Utah Aug. 16, 2013).
- The holding is narrow. Officers may stop cars if the owner has a revoked license, unless they have reason to believe that someone other than the owner is driving (for example they look different, or the non-owner driver shows their ID).
- And the result appears to depend on the state’s particular statutory scheme. The holding is at least somewhat dependent on Oklahoma’s scheme allowing revocation for only relatively serious offenses. Thus, in another state where revocation could be based on more minor conduct, an officer may not be able to infer that the owner is driving on a revoked license.
As we make release arguments in light of COVID-19, consider using data visualizations in your filings to advance the cause.
But there is good reason to believe the numbers reported by the BOP understate the actual number of tested-positive cases. When using BOP data, make sure to keep in mind that just because a facility isn’t listed on the BOP website does not mean there are no presumptive positive or clinically confirmed cases in that facility.
The Prison Policy Initiative is aggregating information about the criminal justice system and COVID-19.
Other sources of COVID-19 data and statistics can be found here. This is a website maintained by Johns Hopkins University Center for Systems Science and Engineering; they are tracking the COVID-19 spread in real time on an interactive dashboard with data available for download.
The Centers for Disease Control and Prevention also provides daily updates on the cumulative numbers of COVID-19 cases in the United States.
Data about COVID-19 cases in Colorado is updated daily by the Department of Health.
The District of Colorado continues to respond to the ongoing impact of COVID-19 on the functioning of federal courts.
On April 6, 2020, Chief Judge Philip A. Brimmer entered a General Order, pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), authorizing judges in the district, with the consent of the defendant after consultation with counsel, to use video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available, for a number of criminal proceedings. The specific hearings covered are listed in the General Order, and include felony pleas under Rule 11 and felony sentencings under Rule 32 “if judges in individual cases find, for specific reasons, that felony pleas or sentencings in those cases cannot be further delayed without serious harm to the interests of justice[.]”
This General Order will remain in place for 90 days “unless terminated earlier.”
A previously-entered General Order describing COVID-19-related changes to court operations (in place through May 1, 2020) can be found here.
The number of positive-COVID-19 cases in the BOP continues to rise.
As of this morning the BOP reports 138 inmates and 59 staff have tested positive for the virus. The BOP updates this data every afternoon.
On March 26, 2020, Attorney General Barr issued a memorandum to the Director of BOP, outlining a new policy by the United States Department of Justice to deal with confined inmates who are most vulnerable to the COVID-19 virus. Barr directed BOP to use home confinement “where appropriate, to protect the health and safety of BOP personnel and the people in our custody.”
Despite that step, barriers remained to release.
On April 1, 2020, the Federal Public & Community Defenders Legislative Committee wrote a letter to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.”
On April 3, 2020 (after 7 deaths in BOP custody and uncontained spread in multiple facilities), AG Barr made a CARES-Act finding that “emergency conditions are materially affecting the functioning of the Bureau of Prisons.” He told the BOP to review all inmates with COVID-19 risk factors, starting with FCI Oakdale, FCI Danbury, and FCI Oakton (and “similarly situated” facilities), and to transfer “suitable candidates for home confinement” to home confinement.
The memo directs the BOP to “be guided by the factors in [Barr’s] March 26 Memorandum,” which drastically limits the number of people prioritized for home confinement. But it also says all inmates with “a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.”
On April 5, 2020, the BOP issued a press release responding to AG Barr’s April 3 memorandum. BOP says it is reviewing all inmates to determine which ones meet the criteria established by the Attorney General. While inmates do not need to apply to be considered for home confinement, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager.
If you have a client who might be a candidate for home confinement, don’t wait for the BOP to identify them. Now is the time to figure out a release plan and bring eligibility to the attention of the Case Manager.
The BOP is using the eligibility criteria established by AG Barr as a benchmark for home-confinement determinations:
(1) The age and vulnerability of the inmate to COVID-19;
(2) The security level of the facility;
(3) The inmate’s conduct in prison;
(4) The inmate’s score under PATTERN;
(5) The inmate’s release plan; and
(6) The inmate’s crime of conviction and assessment of danger posed to the community.
But remember that list of criteria is not exhaustive; the BOP must consider the “totality of the circumstances.”
Inmates deemed suitable for home confinement must be immediately processed for transfer out of BOP, but there is still a required 14-day quarantine before the transfer can happen. Note that AG Barr (in the April 3 memorandum) gave the BOP discretion “on a case-by-case” basis to allow an inmate to quarantine outside the BOP facility “in the residence to which the inmate is being transferred.”
The Administrative Office of the United States Courts, Defender Services Office Training Division has announced that a newly recorded presentation is currently available for viewing on www.fd.org.
This pre-recorded session, COVID-19 & Pretrial Release, is presented by Miles Pope, Assistant Federal Defender, Federal Defender Services of Idaho.
This presentation reviews core principles of constructing effective bail strategies to obtaining our clients’ release from custody during the novel coronavirus (COVID-19) pandemic. As this is a rapidly evolving area of law – and as we are constantly improving our arguments as courts issue rulings and we learn how to deal with the government’s responses to our arguments on protecting our clients’ health – viewers are encouraged to explore the resources regularly being posted on fd.org.
REGISTRATION, VIEWING VIDEO & MATERIALS
To view the presentation, you will need to register for the video. To register, you will need log in credentials for the password protected part of www.fd.org.
For panel attorneys, if you have already applied and been approved for log in credentials, you also have access to the password protected portions of www.fd.org.
For panel attorneys who have not already applied for log in credentials, you will need to do so before you can view the video. In order to apply for credentials, fill out the online application available at this link: http://cjaresources.fd.org/pl_cjaverify.aspx.
Once your application has been approved you will receive an email from “Defender Services Office” with instructions on how to set your password. Once you have taken those steps, you will be able to log in and view the video. It may take several days for you to receive the email.
LINKS TO VIDEO AND MATERIALS
Please use this password-protected link to view the video: https://www.fd.org/program-materials/tips-getting-your-client-released-detention-during-pandemic-covid-19-pretrial.
Materials associated with this presentation and other COVID-19 issues, can be found by clicking here.
The ABA is hosting a Zoom webinar tomorrow, April 1, 2020 at 4 pm Eastern / 2 pm Mountain time exploring efforts to seek expanded release, in response to COVID-19, for those detained pretrial. The webinar is sponsored by the ABA Standing Committee on Legal Aid and Indigent Defendants, the ABA Section of Civil Rights and Social Justice, and the ABA Criminal Justice Section.
You can register for it here.
The Due Process Institute is hosting a webinar tomorrow, March 31, 2020 at 3 pm ET (1 pm Mountain Time) to address criminal justice litigation challenges during the COVID-19 pandemic.
According to its website: “The mission of the Due Process Institute is to honor, preserve, and restore those Constitutional rights intended to protect individuals and organizations against the arbitrary exercise of government power. This mission of procedural fairness is a vital one given the erosion of these rights in recent decades. Importantly, due process concerns transcend liberal/conservative labels and therefore we focus on achievable results based on core principles and values that are shared by all Americans.”
Click here to register for the webinar.
On March 11, 2020, the World Health Organization officially classified COVID-19 as a pandemic. COVID-19 is impacting jails and prisons all over the United States. Check out this recent collection of links on the subject from The Sentencing Law and Policy blog. Notably, the BOP is now operating under modified procedures to prevent the spread of the virus. But, commentators have observed that responding to COVID-19 in jails and prisons will be extraordinarily challenging.
Given these rapidly-changing developments, and the direct impact of this health crisis on correctional systems, here are Some Release Arguments in the Time of COVID19.
Also, some courts have found the COVID-19 pandemic to be a new circumstance warranting reopening of detention and/or directly relevant to determining what bail conditions are necessary to reasonably ensure the defendant’s appearance and to protect the community. Take a look at these orders from the Southern District of New York, the District of Columbia, the Central District of California, and the Alaska Court of Appeals.
And consider these cases, finding the public health crisis relevant to release decisions in a wide range of contexts, including home confinement, self surrender, extradition, etc.:
- Xochihua-James v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (unpublished) (sua sponte releasing detainee from immigration detention “[I]n light of the rapidly escalating public health crisis”)
- United States v. Jaffee, No. 19-cr-88 (D.D.C. Mar. 26, 2020) (releasing defendant with criminal history in gun & drug case, citing “palpable” risk of spread in jail and “real” risk of “overburdening the jail’s healthcare resources”; “the Court is . . . convinced that incarcerating the defendant while the current COVID-19 crisis continues to expand poses a greater risk to community safety than posed by Defendant’s release to home confinement”)
- United States v Garlock, No. 18-CR-00418-VC-1, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (citing “chaos” inside federal prisons in sua sponte extending time to self-surrender: “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”)
- United States v. Perez, No. 19 CR. 297 (PAE), 2020 WL 1329225, at *1 (S.D.N.Y. Mar. 19, 2020) (releasing defendant due to the “heightened risk of dangerous complications should he contract COVID-19”)
- United States v. Stephens, 2020 WL 1295155, __F. Supp. 3d__ (S.D.N.Y. Mar. 19, 2020) (releasing defendant in light of “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic”)
- In re Manrigue, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) (“The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”)
- In re Request to Commute or Suspend County Jail Sentences, Docket No. 084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in county jail “in light of the Public Health Emergency” caused by COVID-19)
- United States v. Matthaei, No. 1:19-CV-00243-BLW, 2020 WL 1443227, at *1 (D. Idaho Mar. 16, 2020) (extending self-surrender date by 90 days in light of COVID-19)
- United States v. Barkman, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020) (suspending intermittent confinement because “[t]here is a pandemic that poses a direct risk if Mr. Barkman . . . is admitted to the inmate population of the Wahoe County Detention Facility”)
- United States v. Copeland, No. 2:05-cr-135-DCN (D.S.C. Mar. 24, 2020) (granting compassionate release to defendant in part due to “Congress’s desire for courts to release individuals the age defendant is, with the ailments that defendant has during this current pandemic”).
Finally, here is a brief filed in the Eastern District of California with a detailed statement of facts about COVID-19.
Don’t forget to check for updates on the Defender Services Office resource page – we linked to it here: Resource: Defender Services Office Creates Website On COVID-19
Many of you are eager to explore community corrections options for clients who are incarcerated during the COVID-19 pandemic.
To that end, The Sentencing Resource Counsel for the Federal Public and Community Defenders offers up a great resource–Community Corrections Basics. This document contains ideas and options about how to transfer clients to community corrections (halfway house/reentry centers or home confinement) to serve the remainder of their sentences so that they are not incarcerated during the pandemic. Note: we are not talking here about compassionate release, which is an actual reduction of sentence under 18 U.S.C. § 3582(c)(1). If a person is granted compassionate release, they are no longer serving their term of imprisonment.
The potential beneficiaries for increased time in community corrections are clients who are eligible for community corrections but are scheduled to receive less than the maximum statutory time available under 18 USC 3624(c). Section 3624(c) provides that eligible clients can receive up to one year of community corrections in reentry centers, with the lesser of six months or ten percent of the sentence in home confinement. Notably, the Senate just passed the CARES Act to permit the BOP Director to lengthen the time of permitted home confinement. It is expected to also pass the House tomorrow and be signed by the President.
The coronavirus (COVID-19) is impacting almost all sectors and areas of the United States. The Defender Services Office and the Administrative Office of the United States Courts have created a website with resources concerning the new COVID-19, including: (1) Courts Orders and procedures regarding Judiciary operations from various districts; (2) motions and pleadings addressing concerns and sharing best practices for mitigating the harm of COVID-19 for those impacted by the Federal criminal justice system; (3) links to other resources and information concerning COVID-19. Note: The resources on the DSO website are not specific to judicial districts in the Tenth Circuit but serve as a good point of departure for best practices during this challenging time.
This is a great opportunity to learn how to better represent non-citizen clients and earn CLE credit – all while maintaining proper social distancing.
Space is still available in the Defender Service Office Training Division’s live webinar, Defending Noncitzens in Today’s Harsh Environment: Considerations for Undocumented Persons, Asylum Seekers, and Legal Permanent Residents. The one-hour webinar will be a live repeat and will take place on Thursday, March 19 at 11:00 Mountain Time (1:00 pm Eastern Time).
This session will address when non-citizens – with a focus on asylum seekers and lawful permanent residents – may be eligible to remain in the United States and explain which types of offenses disqualify such individuals from immigration relief. This session will also address how to put clients in the best possible position to minimize immigration consequences and provide practical tips for plea negotiations. Finally, the session will explain what the immigration process looks like for asylum seekers and LPRs who are facing deportation, and provide practical tips for preparing clients for that process.
More information and registration information available here.
The emerging coronavirus/COVID-19 pandemic is having a major impact on us all, and is sure to impact how we practice and defend our clients.
This is an emerging situation, and we are all still figuring out best practices. In the meantime, here are some resources to help you advocate for your clients in these challenging times:
- The Justice Collaborative is hosting an emergency webinar on COVID-19 and Criminal Legal and Immigrant Detention Systems for Friday, March 13, at 1:30 pm Mountain Time. Participants will include U.S. Representative Ayanna Pressley and Federal Defender David Patton, among other leaders in criminal justice community. Information and registration available here.
- They have also set up a COVID-19 Response & Resources Page, which is available here. The page currently includes an explanation of why prisons and jails are particularly vulnerable to outbreaks (link here), as well as guidance on COVID-19 release advocacy (link here). The page will be updated with new developments.
The Mandatory Victim Restitution Act authorizes restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction. United States v. Mendenhall, 945 F.3d 1264 (10th Cir. 2019).
Restitution can be an afterthought at sentencing. The parties are, understandably, far more concerned with incarceration. However, appropriately limiting restitution is important because a large restitution order can follow a client for 20 years and make it difficult for them to get back on their feet, and stay there. See 18 U.S.C. § 3613.
As the Tenth Circuit has recognized, “The most important thing at sentencing is determining whether the defendant will be incarcerated and, if so, for how long. Other matters, such as restitution and conditions of supervised release, are, appropriately, of secondary concern. But they are not inconsequential and deserve focused attention.” United States v. Martinez-Torres, 795 F.3d 1233, 1234 (10th Cir. 2015)
Recently, in United States v. Mendenhall, the Tenth Circuit reiterated a fundamental aspect of restitution under the Mandatory Victim Restitution Act (MVRA): a district court can order restitution only to a victim of an offense of conviction, and “only for loss caused by the specific conduct that is the basis of the offense of conviction.” Mendenhall, 945 F.3d at 1267.
In Mendenhall, an indictment charged the defendant with unlawful possession of three specific stolen firearms, each identified by serial number. The firearms were stolen from a pawnshop during a burglary in which a total of 62 firearms were stolen, and substantial evidence implicated Mendenhall in the burglary. Only a dozen or so firearms, including the three identified in the indictment, were recovered and returned to the pawnshop.
The district court ordered Mendenhall to pay the pawnshop restitution in the amount of $33,763.23 for “the loss of firearms not recovered, wages for employees to conduct inventory, loss of revenue for closing of business . . . and cleanup/repairs.” Id. at 1266. Mendenhall did not object to the restitution order. On plain error, the Tenth Circuit reversed.
The Tenth Circuit explained that “[d]istrict courts lack inherent powers to order restitution.” Id. They may only do so as authorized by statute, and the MVRA authorizes restitution only to “a person directly and proximately harmed as a result of the commission of an offense.” Id. (quoting 18 U.S.C. § 3663A(a)(2)). Moreover, the Supreme Court has interpreted this language as limiting restitution “only for losses caused by the conduct underlying the offense of conviction.” Id. at 1267 (quoting Hughey v. United States, 495 U.S. 411, 416 (1990)). Based on these limitations, Mendenhall did not owe any restitution at all.
The elements of Mr. Mendenhall’s offense of conviction were: (1) knowing possession of the firearms; (2) interstate commerce; and (3) knowing or having reasonable cause to believe the firearms were stolen. “None of these elements caused the losses cited as the basis for the restitution order” because the “three firearms listed in the indictment were recovered and returned.” Id. at 1268. That Mendehall did not object to the PSR’s assertion that he was involved in the burglary was irrelevant: “Restitution must be based on the offense of conviction, not relevant conduct.” Id. (quoting United States v. Frith, 461 F.3d 914, 916 (7th Cir. 2006)).
Finally, the Tenth Circuit panel was reluctant to find that the fourth prong of the plain error test was met—that is, whether the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings”—calling it “not an easy question in a case like this one where everybody knows that Mendenhall stole the firearms and pocketed the cash from the theft.” Id. at 1270. However, it acknowledged that a restitution order that exceeds the amount authorized by statute “amounts to an illegal sentence,” just as a term of imprisonment above the stat max does. Accordingly, the Tenth Circuit was bound by precedent to conclude that all four prongs of plain error were met, and it reversed the order of restitution.
- Restitution can be very burdensome for our clients.
- Because restitution is a secondary concern for everyone—the defense, the government, probation, and the court—the orders often contain errors.
- Restitution can be ordered only for loss caused by the specific conduct that is the basis of the offense of conviction. In other words, restitution must be based on the offense of conviction, not relevant conduct.
- Caveat: in a plea agreement, a defendant can agree to restitution beyond what is otherwise authorized by statute.
- An excessive restitution order is an illegal sentence
Holding: Multiple devices ≠ multiple counts: child pornography discovered at the same time, and in the same place, is a single offense, regardless of how many devices that material is stored on.
This fall, the Tenth Circuit limited the number of charges the government can bring for possessing child pornography, at least where that material is discovered at the same time and same place.
In United States v. Elliott, 937 F.3d 1310 (10th Cir. 2019), the defendant was charged with four possession counts, in violation of 18 U.S.C. § 2252A(a)(5)(B), which penalizes “possess[ing]” . . . any . . . material that contains an image of child pornography.” The charges were based on child pornography discovered on a computer, external hard drive, phone, and cloud storage account linked to the phone. All the items were located in the defendant’s bedroom during execution of a search warrant.
The government’s theory was that it could charge on a “per device” basis, i.e., that every device on which child pornography was located constituted a separate offense. The defendant argued that this charging theory was multiplicitous: that it imposed multiple punishments for the same offense of simply possessing child pornography.
To answer the question, the court of appeals had to determine what the unit of prosecution was for § 2252A. This is an inquiry of statutory interpretation—the unit of prosecution is the minimum amount of activity a defendant must undertake to commit each new and independent violation of a criminal statute.
Ultimately, the Tenth Circuit held that § 2252A(a)(5)(B) does not permit multiple possession charges based solely on the number of electronic devices a defendant simultaneously possessed. That means that child pornography discovered at the same time, and in the same place, is a single offense, regardless of how many devices that material is stored on. And because multiplicity is never harmless error, the Elliott court vacated all but one the defendant’s possession convictions.
Open question: whether the government might be able to sustain multiple possession charges with proof that a defendant received the child pornography at different times, or stored it in entirely separate locations.
- Be on the lookout for multiplicity. Whenever an indictment charges multiple violations of the same statute, be sure to ask what the unit of prosecution is for that statute. If it is unclear, query whether lenity may apply. Elliott and the Tenth Circuit’s en banc decision in United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015) are good places to start your research.
- Don’t let other circuits’ decisions prevent you from making novel arguments. Here, the Fifth Circuit previously had accepted the government’s “per device” charging theory, and at least four other circuits had suggested in dicta that such charging might be permissible. The Tenth Circuit found none of this authority persuasive in ruling the other way.
- The unit of prosecution for child pornography possession under § 2252 is an open question, but it should be the same as § 2252A. There are two federal statutes that independently criminalize possessing child pornography: 18 U.S.C. § 2252A(a)(5)(B) and § 2252(a)(4)(B). And while § 2252 is charged less frequently, it still shows up from time to time. Elliott’s analysis applies only to § 2252A, but its discussion of § 2252 and the slight difference in wording between the two statutes should be helpful in arguing that the unit of prosecution under of § 2252 is the same as § 2252A.
The Criminal Rules start at page 30.
One of the most notable changes is to the rule on Motions for Departure or Variance (D.C.COLO.LCrimR 32.1(c)). It now provides: “A motion for departure or variance shall not be included in a sentencing statement or other sentencing-related document. A motion for departure or variance shall be filed as a separate motion.”
The purpose of this rule change is to make sure a sentencing statement does not implicitly or explicitly move for a variance or departure. The sentencing statement can refer to such a motion, but cannot, itself, be the vehicle for the request. Put simply: in the District of Colorado, file your sentencing statements and your departure or variance motions separately.
Relatedly, U.S. District Judges Christine M. Arguello, William J. Martínez, R. Brooke Jackson, and Daniel D. Domenico have published revised criminal and civil practice standards. Be sure to check those out here.
By Ashley Cordero
Ashley is a fall intern at the Office of the Federal Public Defender for the Districts of Colorado and Wyoming. She is a second-year law student at the University of Denver, Sturm College of Law. Prior to law school, she managed an employment program for previously incarcerated individuals in her hometown Los Angeles, California. She hopes to remain in Colorado to pursue a career in public defense.
FIRST STEP ACT UPDATE
Summary of the USSC Resentencing Provisions Retroactivity Data Report
In October 2019, the U.S. Sentencing Commission released the Retroactivity Data Report collecting data on sentence reductions granted pursuant to Section 404 of the First Step Act. Section 404 expanded the pool of individuals eligible for a sentence reduction for previous crack-cocaine convictions by retroactively applying sections 2 and 3 of the Fair Sentencing Act of 2010. Now, under the First Step Act, the courts were to consider granting a sentence reduction as if the Fair Sentencing Act was in effect when the defendant was originally sentenced.
Sections 2 and 3 increased the quantity of crack cocaine that triggered mandatory minimum penalties and eliminated mandatory minimum sentences for simple possession of crack cocaine. This retroactive application of the Fair Sentencing Act guidelines had the potential to ameliorate some of the racial inequity stemming from the disparate crack-cocaine conviction rates between Black (83.0%) and White (5.8%) defendants. The report includes motions granted through September 30, 2019.
Key Findings from the USSC Retroactivity Report
- Nationwide, district courts have granted 1,987 motions for sentence reduction under section 404. The Tenth Circuit has granted 1.7% (35) of these motions. The Districts of Colorado and Wyoming have granted four sentence reductions within the Tenth Circuit.
- Of the defendants granted a sentence reduction, 91.2% are Black, 4.2% Hispanic, 3.8% White.
- 98% of defendants granted a sentence reduction are male.
- Nationally, on average defendants saw a 26.2% decrease from their current sentence. In the Tenth Circuit, defendants saw an average 30% decrease.
COMPASSIONATE RELEASE ARGUMENTS IN 924(c) CASES
Section 403 of the First Step Act eliminated the archaic stacking provision that previously mandated minimums for individuals who were convicted of possessing a firearm in the commission of a crime of violence or drug trafficking offense –even if the charges arose from a singular criminal incident. The First Step Act revised 18 U.S.C. § 924(c)(1)(C) by providing that the higher penalty for a “second or subsequent count of conviction” under section 924(c) is triggered only if the defendant has a prior section 924(c) conviction that has become final. See generally USSC First Step Act Summary. However, Section 403 was not made retroactive. This prompts the question, where do defendants with previous mandatory minimums under 924(c) fall within the First Step Act compassionate release eligibility framework?
Federal courts may reduce a defendant’s sentence if they find an “extraordinary and compelling reason” to warrant a reduction and that reduction is consistent with policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A)(i) (2018). This is known as “compassionate release.”
The Sentencing Commission Policy statement dated November 1, 2018, lists four eligibility criteria including “other reasons” where there exists an “extraordinary and compelling reason other than or in combination with reasons” described in the report. While the report has not been updated since the passage of the First Step Act, district courts continue to refer to the policy statement as helpful guidance. United States v Bucci, 2019 WL 5075964, at *1 (D. Mass. Sept. 16, 2019); See also United States v Shields, 2019 WL 2645028, at *2 (N.D. Cal. June 27, 2019).
While a sentence reduction must be consistent with the Commission’s policy statements, federal courts are not bound to these prescriptive categories. Courts have not found the policy report circumstances list to be exhaustive. See United States v Overcash, 2019 WL 1472104 (April 3, 2019) (stating the court may make an independent determination). Even if eligibility is established, reduction is not required. Federal courts have the discretion to reduce the defendant’s sentence, considering the 3553(a) sentencing factors to make their determination. See United States v Cole, 2019 WL 3406872, *5 (N.D. Ind. July 29, 2019).
If Making Compassionate Release Argument, Consider Reading Shon Hopwood’s article, Second Looks and Second Chances
- Shon Hopwood is an Associate Professor of Law at Georgetown Law. In June 2019, as part of a series on federal sentencing, Cardozo Law Review published his essay, “Second Looks and Second Chances,” which outlines the history of second looks provisions and suggests litigation tactics for certain defendants, such as those with previous 924(c) convictions.
- Before the First Step Act, Congress did not define what constituted an “extraordinary and compelling reason” for sentence reduction. Congress intended this provision to act as a safety valve.
- There is no indication that Congress intended to limit the compassionate release safety valve to only medical or elderly release. If a defendant can establish extraordinary and compelling circumstances, compassionate release could be used to justify a reduction of an unusually long sentence.
- By eliminating the stacking provision, Congress has acknowledged that the original sentencing scheme for 924(c) was overly punitive and unfair.
- Unlike section 404 which established categorical eligibility, section 403 was not retroactive. Those sentenced under the stacking provision and now seeking relief under compassionate release must establish “extraordinary and compelling reasons” individually.
- However, simply because Congress did not create a retroactive categorical eligibility for sentence reduction does not suggest that Congress foreclosed other options of relief.
- Consider using the “other reasons” provision to demonstrate that the defendant has a compelling and extraordinary reason for compassionate release.
The Tenth Circuit recently issued an important decision in United States v Anthony concerning restitution in conspiracy cases. The facts are unlikely to reoccur very often, but the opinion contains some broadly applicable and helpful points of law.
Mr. Anthony was convicted after trial of conspiracy to entice a child. The evidence showed that he called an “escort service” which sent two minors to his place of business. He touched them both and had sex with one of them. The girls had been ensnared by a pimp, and Mr. Anthony was one of over a hundred customers they had seen.
In ordering restitution, the district court held Mr. Anthony accountable for all the harm the girls suffered during the time they spent working for the pimp. One of the girls had earlier been involved with another pimp in an enterprise wholly unrelated to the later one. The court made no attempt to disaggregate the harm caused during the girl’s involvement with the first pimp from the harm caused during her involvement with the second.
18 U.S.C. § 2259 generally requires proof of “but for” causation
Mr. Anthony’s first claim on appeal was that the district court should have disaggregated the harm caused during the first enterprise. The circuit agreed. And along the way, it ruled that 18 USC 2259, the statute governing restitution for most federal sex crimes, requires a showing of “but for” causation. In doing so, the court rejected the government’s claim that the statute allowed liability based on a theory of multiple independent causes, which would have greatly expanded restitution liability. Using but for causation–a familiar concept in restitution analysis generally–resolution of the claim was easy. Mr. Anthony was obviously not a but for cause of the harms that were caused before his crime was even committed.
Restitution is limited to the harm established by the trial evidence
Mr. Anthony’s second claim was that the court shouldn’t have held him accountable for all the harm that happened during the time the girls were involved with the second pimp. This argument rested on conspiracy law. Conspiracy, of course, is an agreement, and he argued that his only agreement, if any, was to have sex with the girls on that one night. The circuit also agreed with this argument (although Mr. Anthony ultimately lost because the claim wasn’t preserved). The circuit had long held that a conspiracy conviction makes a defendant “liable in restitution for all losses that proximately result from the conspiracy itself, including losses attributable to coconspirators.” And historically, the court had looked to the indictment to define the scope of the conspiracy and hence a defendant’s restitution liability. But here the court held, at least in the case of a trial, that restitution has to be limited to what the evidence actually proved, not what was alleged in the indictment.
Conspiracy liability is limited to the defendant’s own agreement
Here, the evidence only showed, at most, that Mr. Anthony joined a conspiracy to obtain the girls for sex on the night he met with them. The reason? Mr. Anthony’s sole purpose was to “have sex.” Although he likely knew that his decision to pay for sex furthered the overall enterprise, that knowledge was not enough to make him a conspirator in that enterprise. As the circuit put it, “mere knowledge” that his actions furthered an illegal enterprise, even in conjunction with his participation in a small part of the enterprise, doesn’t by itself establish that Anthony “joined in the grand conspiracy.” Id.
- Be sure to take a careful look at restitution in sex offense cases. Except child pornography crimes, Anthony teaches that restitution in the sex offense context is limited to harm that would not have occurred but for the defendant’s offense.
- The evidence, not the indictment, controls, at least when there’s a trial. Restitution is limited to harm established by the evidence at trial, even if the indictment’s allegations are broader.
- Traditional concepts of conspiracy liability apply in the restitution context. Conspiracy liability (including for restitution) is limited to the defendant’s own agreement, even if she knows of the wider conspiracy.
Earlier this fall, in United States v Malone the Tenth Circuit confronted a special condition of supervised release that directed the defendant to participate in mental health treatment while on supervision. Conditions of this sort are fairly routine, but this condition included a particularly problematic feature – it required Mr. Malone to “take prescribed medication as directed.” In imposing the condition, the trial court gave no justification for it.
There was no objection to the condition in the district court, but the Tenth Circuit reversed for plain error. The court explained that requiring a person to take psychotropic drugs – which this requirement, as part of a mental health condition, plainly did – intrudes on a significant liberty interest. And when a court wants to impose a condition of supervised release that “invades a fundamental right or liberty interest,” it must make particularized findings that set out “compelling circumstances” that justify the condition. The district court didn’t do so here, and because the record would not have supported the necessary findings in any event, the court directed the district court to strike the “offending language” from the judgment.
- Keep an eye out for conditions like this in PSRs that come your way. As the circuit recognized, this condition was being “broadly imposed as a ‘stock’ special condition” in Kansas. Similar conditions have also cropped up in other judicial districts.
- To that end, take note of this language in Malone:
“When “stock” special conditions are proposed and the defendant does not object, it is easy to overlook the constitutional implications at stake. But even when the defendant does not object, the district court must ensure that its conditions conform to the Constitution.”
- To that end, take note of this language in Malone:
- Carefully review proposed conditions to see whether they infringe on fundamental rights or liberty interests. Lots of conditions fit this description. Examples include: occupational restrictions, restrictions on familial association, and possessing of legal, sexually explicit material.
- Develop your record at sentencing. Ask the district court to make the requisite findings and establish the compelling reasons to justify the condition.
Today, the United States Supreme Court granted certiorari in Walker v United States, out of the Sixth Circuit, to decide whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e).
As the petition for certiorari explains, there is a deep and widely recognized conflict in the courts of appeals over that question.
The Tenth Circuit takes the view, like the Sixth Circuit, that offenses that can be committed recklessly can nevertheless qualify as violent felonies under ACCA’s force clause. See, e.g., United States v Hammons (for purposes of determining whether an offense constitutes a valid ACCA predicate, “it makes no difference whether the person applying the force had the specific intention of causing harm or instead merely acted recklessly”).
Make sure to preserve this issue!
Figuring out how your client’s criminal history impacts their sentencing exposure is often no easy task. This is particularly so when you’re dealing with prior convictions that could be counted as “crimes of violence” or “controlled substance offenses” under the career offender guideline, § 4B1.2. Take a felon-in-possession sentencing, for example, where a single prior “crime of violence” will increase a client’s base offense level from 14 to 20—and potentially add years to his sentence.
That’s why it’s worth looking closely at every supposed “crime of violence” or “controlled substance offense,” and objecting to the characterization of that prior conviction if possible. Challenging priors might help your client now, or it might help later (read on for ideas about how to preserve arguments for appeal). Remember, a district court commits procedural error when it fails to properly calculate the correct Guidelines range. See, e.g., United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011).
Here are some arguments to consider if the prior conviction is for an inchoate offense such as conspiracy, aiding and abetting, or attempt.
Is the prior conviction a categorical match for the generic offense?
When determining whether a particular conviction constitutes a “crime of violence” or “controlled substance offense” under § 4B1.2, courts apply the categorical approach and “look to the statute under which the defendant was convicted.” United States v Martinez-Cruz, 836 F.3d 1305, 1309 (10th Cir. 2016). That includes determining whether the elements of the generic, contemporary version of the relevant inchoate offense match up with the elements of the prior conviction. In Martinez-Cruz, for example, the Tenth Circuit found that the defendant’s prior conviction for federal conspiracy to possess with intent to distribute was not a “controlled substance offense” because—unlike generic conspiracy—that offense does not require proof of an “overt act.” See 836 F.3d at 1310-11.
To conduct this type of analysis, begin by taking a look at the underlying inchoate offense and figuring out what it requires the government to prove, and then compare it to similar offenses in other jurisdictions. In Colorado, for example, conspiracy is “unilateral,” which means it is “committed when the defendant agrees with another person to act in a prohibited manner; the second party can feign agreement.” People v Vecellio, 292 P.3d 1004, 1010 (Colo. Ct. App. 2012). But in other jurisdictions, conspiracy is “bilateral” and requires two co-conspirators to actually agree to commit a crime—you can’t “conspire” with an undercover law enforcement agent who is only pretending to agree. See, e.g., United States v Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985); People v Foster, 457 N.E.2d 405, 415 (Ill. 1983).
If there seems to be a real split in authority, it’s worth digging deeper to suss out the majority approach to the question—i.e., what counts as the generic form of the crime. If your client’s prior is broader than that generic crime, then it is not a categorical match for the offense, and cannot be counted as a “crime of violence” or “controlled substance offense” under § 4B1.2.
FORECLOSED BUT MIGHT BE WORTH PRESERVING
There are a couple of arguments in this vein that are foreclosed by Tenth Circuit precedent, but may be worth raising for preservation.
- Does Application Note 1 unlawfully expand the definition of “crime of violence” to include inchoate offenses?
The practice of counting inchoate offenses as “crimes of violence” or “controlled substance offenses” is not actually rooted in the text of § 4B1.2. Rather, it is based entirely on Application Note 1 to that guideline, which states that the definitions of “crime of violence” and “controlled substance offense” “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”
That raises the question: Since when can the Sentencing Commission expand the scope of a guideline through its commentary? Unlike the guidelines themselves, the commentary are not subject to the Administrative Procedures Act. And while the Sentencing Commission is free to interpret the guidelines through commentary, the expansion of the guideline to include inchoate offenses arguably exceeds that interpretive authority. At least, that’s what the D.C. Circuit held in United States v Winstead, 890 F.3d 1082 (2018), and what a panel of the Sixth Circuit seemed to believe in United States v Havis, 907 F.3d 439 (2018). The Havis panel was bound to affirm the sentence by prior circuit precedent—but were apparently able to persuade the entire court to take the issue en banc. See United States v. Havis, 921 F.3d 628 (2019) (granting petition for rehearing en banc).
The Tenth Circuit previously rejected a version of this argument in United States v Martinez, 602 F.3d 1166 (2010). However, the issue may nevertheless be worth raising, in light of the new (and growing?) circuit split on the issue.
- Is Colorado attempt broader than generic attempt, insofar as it defines “substantial step” to mean any conduct that is strongly corroborative of the actor’s criminal purpose?
The Tenth Circuit has held that generic attempt liability requires “the commission of an act which constitutes a substantial step toward commission of that crime,” United States v Venzor-Granillo, 668 F.3d 1224, 1232 (10th Cir. 2012), a formulation that derives from the Model Penal Code. The Model Penal Code, in turn, states that “[c]onduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor’s criminal purpose.” Model Penal Code § 5.01(2). In other words, it suggests that strongly corroborative conduct may constitute a substantial step—but not that it necessarily does.
By contrast, Colorado law provides that “[a] substantial step is any conduct . . . which is strongly corroborative of the firmness of the actor’s purpose to complete the offense.” Colo. Rev. Stat. § 18-2-101(1) (emphasis added). Under Colorado law, strong corroboration of criminal purpose is not merely necessary but rather sufficient to establish a substantial step, unlike the “unadulterated Model Penal Code approach.” People v Lehnert, 163 P.3d 1111, 1114 (Colo. 2007). In this way, Colorado attempt arguably sweeps more broadly than generic attempt.
The Tenth Circuit recently rejected this argument in United States v. Mendez, No. 18-1259 (10th Cir. 2019). This is another argument that may be worth raising for preservation purposes, in case the law changes in the future.
- Look closely at any conviction that is classified as a “crime of violence” or “controlled substance offense.” It could make a big difference to your client’s sentence!
- Be creative. The elements of the inchoate offenses—conspiracy, aiding and abetting, and attempt—vary across jurisdictions. Compare the elements of your client’s prior offense against those in other jurisdictions, and consider whether there’s a viable challenge under the categorical approach.
- Focus on the text of the guideline. As the D.C. Circuit and several judges on the Sixth Circuit have noted, § 4B1.2 says nothing about inchoate offenses—and the Sentencing Commission lacks the authority to expand the reach of its guidelines through its commentary. While this argument is arguably foreclosed in the Tenth Circuit, it may be worth preserving in your client’s case.
- Brush up on the categorical approach. This sentencing doctrine is hyper-technical and obscure—and it can produce real results for our clients. For a good overview of the categorical approach in general, take a look at United States v Titties, 852 F.3d 1257 (10th Cir. 2017). For an example of its use in the guidelines context, take a look at United States v Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016).
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.
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