Resource: Defending Clients in a Time of Coronavirus – Webinar Today 3/13/2020 and Other Resources – CORRECTED!

Coronavirus illustration (CDC)

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.

 

News You Can Use: SCOTUS clarifies ACCA’s “serious drug offense” definition

In Shular v. United States, the Supreme Court held that “serious drug offense” in 18 U.S.C. § 924(e)(2)(A)(ii) requires only that the state offense involve the conduct specified in the statute; it does not require that the state offense match generic offenses. A prior state law conviction qualifies so long as, under the categorical approach, it necessarily “involves manufacturing, distributing, or possessing with intent to manufacture or distribute” a federally controlled substance. Therefore, the defendant’s prior conviction was a “serious drug offense” notwithstanding his assertion it was broader than the generic definition because it did not require knowledge that the substance possessed was illicit. Shular v. United States, No. 18-6662, 2020 WL 908904 (U.S. Feb. 26, 2020).

Background on ACCA and the categorical approach

Felon in possession of a firearm usually carries a statutory maximum sentence of 10 years in prison. 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act (ACCA) provides a 15-year mandatory minimum sentence where the defendant has three previous convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e). To determine whether a defendant’s prior conviction qualifies as an ACCA predicate, courts must apply the “categorical approach.” That is, they look only at the elements of the prior offense (not the defendant’s actual conduct) and determine whether those elements categorically qualify as a violent felony or serious drug offense. See generally Mathis v. United States, 136 S. Ct. 2243 (2016).

Most of the Supreme Court’s jurisprudence on predicate offenses and the categorical approach involves ACCA’s definition of “violent felony,” which can be satisfied in one of two ways: (1) under the “force” or “elements” clause, it means any offense that “has as an element the use, attempted use, or threatened use of physical force,” or (2) under the “enumerated offenses” clause, it means any offense that “is burglary, arson, or extortion.” 18 U.S.C. § 924(e)(2)(B). A “serious drug offense” includes most federal drug offenses and any state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute” a federally controlled substance. Id. § 924(e)(2)(A) (it also must be punishably by at least 10 years in prison).

The Supreme Court has held that the enumerated offenses clause refers to the contemporary, generic version of that offense; that is, the definition used by most state codes. Thus, for example, after analyzing state codes and criminal treatises, the Supreme Court determined that the generic definition of burglary is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990).

Shular

In Shular, the defendant argued that the definition of “serious drug offense” referred to the names of drug-related crimes in the same way that the definition of violent felony refers to burglary, arson, and extortion. For example, “possession with intent to distribute,” while descriptive, is also just the shorthand name of that offense. Mr. Shular also argued, most states’ drug offenses require a mens rea element that the defendant must know that the substances involved are illicit; therefore, that mens rea must be part of the generic definition implicitly referenced in the ACCA’s definition of “serious drug offense.” Mr. Shular’s offense of conviction, however, did not have that mens rea. It was therefore broader than the generic definition and did not qualify as a “serious drug offense.”

The government argued that the definition of “serious drug offense” was not referring to the names of offenses; rather it was describing what conduct must be proscribed by the state statutes to qualify as a predicate. In other words, it was more like the violent felony definition’s “elements” clause than the “enumerated offenses” clause. Under this interpretation, no inquiry into the mens rea of the generic definition of any drug offense is required—Mr. Shular’s prior conviction qualified because it necessarily involved: (1) manufacturing, distributing, or possessing with intent to manufacture or distribute; and (2) a federally controlled substance.

In a unanimous decision, the Supreme Court agreed with the government. It found compelling two features of the definition, particularly when compared against the definition of “violent felony.” First, the Court thought that the definition of “serious drug offense” was more descriptive and would be “unlikely names for generic offenses.” Burglary, arson, and extortion, on the other hand, unambiguously name offenses and therefore refer to the generic definitions of those offenses. Second, the “serious drug offense” definition spoke of offenses that involve manufacturing or distribution, which again suggested that they were descriptive terms identifying conduct, not generic offenses. Had Congress intended to refer to generic offenses, it would have used the term “is,” not “involving,” as it did in the violent felony definition. Because the statute uses the term “involving” followed by descriptive conduct, it is not referring to the generic definition of, for example, a “manufacturing” offense.

Basic Takeaways

  • The categorical approach applies to the ACCA’s definition of “serious drug offense.”
  • “Serious drug offense” does not enumerate offenses that must be given their generic definitions.
  • A prior conviction is a “serious drug offense” so long as it necessarily involves manufacturing, distributing, or possessing with intent to manufacture a federally controlled substance—regardless of any potential overbreadth with another element of the generic definition, such as mens rea.
  • It is more like the “force” clause in violent felony than it is the enumerated offenses clause.

Other Implications; Potential Future Arguments

  • A “serious drug offense” still must categorically involve a federally controlled substance, so arguments that state schedules are overbroad are still valid. Cf. Mellouli v. Lynch, 135 S. Ct. 1980, 1989-91 (2015)
  • Arguments that a statute is overbroad because it applies to “offers to sell” should likewise still be valid because they do not categorically involve distributing or possessing with intent to distribute. See United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017); United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017).
  • Inchoate crimes might be ripe to challenge again. The Tenth Circuit’s prior justification for including inchoate crimes is that it “read[s] the ‘involving manufacturing’ language broadly to include attempts to manufacture or conspiracy to manufacture.” United States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014). However, in Shular, the parties agreed “that ‘involve’ means ‘necessarily require.’” Shular, 2020 WL 908904, at *5. This narrower definition potentially undermines the Tenth Circuit’s justification for expanding the definition of “serious drug offense” to inchoate crimes.
  • More arguments may come to light as the impact of Shular becomes more clear in the coming months, so be on the lookout for updates.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

News You Can Use: Tenth Circuit reaffirms that restitution must be based on the offense of conviction, not relevant conduct.

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.

Takeaways

  • 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

News You Can Use: Tenth Circuit Reverses First Degree Murder Conviction (and reaffirms important principles of appellate law along the way)

The Tenth Circuit reversed appellant Brian Tony’s first-degree murder conviction this week and remanded the case for a new trial.  Not only is this an amazing defense victory with an incredible remedy (kudos to AFPD Josh Lee in Denver), but the relatively short appellate decision is packed with important information, particularly for appellate lawyers. This decision also should send a clear message to trial courts: take extra care before excluding defense evidence.

FACTS: Mr. Tony’s defense at trial was that he acted in self-defense or at least without premeditation.  It was a plausible defense because the killing occurred during a knock-down, drag-out fight.  In support of this defense, Mr. Tony wanted to put on evidence that the decedent was high on methamphetamine at the time of the killing.  His theory of relevance was straightforward: meth makes people behave erratically- they can become crazy and violent- which supported the notion that the decedent was the first aggressor.  The trial judge, however, excluded the methamphetamine evidence on the ground that the defense had not proffered a proper, non-propensity purpose under Federal Rule 404(b).

HOLDING: The judge erred in excluding the defense evidence because defense counsel had proffered a proper purpose. But there are lots of other interesting points of law involving appellate procedure that the Tenth Circuit discusses in reaching its holding.

KEY TAKEAWAYS

Use this case if you are looking for law on the scope of permissible affirmance on alternative grounds

The government asked the court of appeals to affirm the conviction on the alternative ground that the meth evidence wasn’t relevant without expert testimony that (1) the decedent was actually high at the time of the fight and (2) meth makes people violent.  The defense responded with a legal argument: because any decision on evidentiary relevance is committed to the district court’s (not the appellate court’s) discretion, the Tenth Circuit could affirm on that ground only if it would be an abuse of the district court’s discretion to rule for the defense on the relevance issue.  This principle has long existed in the Tenth Circuit’s case law, but it was buried by dozens of cases that ignored it and affirmed evidentiary rulings on alternative grounds with no discussion of the discretionary nature of the decision.  This principle is now revived.

Use this case if you are looking to police the government’s burden of proof on harmless error

The government argued that excluding the meth evidence was harmless because the evidence at trial overwhelmingly established Mr. Tony had not acted in self-defense. On this point, the court first clarified that the government bears the burden of demonstrating that a preserved, non-constitutional error is harmless.  While the government had argued that the error was harmless with respect to self-defense, it had not argued that it was harmless with respect to the lack of premeditation.  The government’s failure to make this argument operated as a waiver.  This too is an important point of law – that the government waives harmless error by not arguing it.

Use this case if you are looking for law on why a new trial is the appropriate remedy for evidentiary error

The government argued that instead of remanding for a new trial, the circuit should have remanded the case to the district court to make findings on whether it would have excluded the meth evidence under Rule 403 as substantially more prejudicial than probative.  The court said no for two reasons.  The first was the trial had happened two years earlier, which would make it hard for the district court to put itself back in the position of making pretrial rulings.  The second reason was that remanding for findings would give the district court, eager to avoid a retrial, “an overwhelming temptation to rationalize the exclusion of the meth evidence under Rule 403.”  Op. at 11.  This is another principle that existed but was moribund in the circuit’s case law until this case reaffirmed it.

News You Can Use: Tenth Circuit limits the unit of prosecution for child pornography possession offenses

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.

Key takeaways.

  • 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.

Resource: Changes to Local Rules of Practice for the District of Colorado, Effective December 1, 2019

Just a reminder that the United States District Court for the District of Colorado has issued revised Local Rules of Practice effective December 1, 2019.  You can visit the Local Rules page here.

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.

Resource and Practice Tip: Update on Granted First Step Act Sentence Reductions and Some Thoughts on the Compassionate Release Eligibility Framework

 

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

Background

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.