In United States v. Reyes-Rivas, the defendant/appellant argued during sentencing and on appeal that he did not meet the criteria for a “career offender” enhancement under section 4B1.1 of the Sentencing Guidelines.  Specifically, he argued one of his priors – a Puerto Rico conviction for fourth degree aggravated battery – did not qualify as a “crime of violence.”  He also argued that the conviction could not qualify as a “crime of violence” under the residual clause of section 4B1.1.  He reasoned that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) applied to the career offender enhancement because the residual clause language in the Armed Career Criminal Act was almost identical to the residual clause language in the Sentencing Guidelines.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He is a First Circuit CJA attorney and practices in federal appellate courts around the country.  He is also the founding member of The Brownlee Law Firm.  To learn more, visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com. 

Malcolm French owned approximately 80,000 acres of land in Washington County, Maine.  Rodney Russell was an office manager of sorts.  It turns out people were using pieces of Mr. French’s land to grow considerable amounts of marijuana.  Mr. French and Mr. Russell both claimed they didn’t know about the farming operation and were thus innocent.  A jury disagreed and found them both guilty.

Shortly after sentencing, defense counsel reported that they had just learned that a prisoner housed in the Somerset County Jail with another co-defendant told the co-defendant that Juror 86, who sat on the jury before which the case was tried, was the mother of a small-time marijuana trafficker.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

The problem was that prior to trial, Juror 86, along with the other prospective jurors, filled out a questionnaire, which included the following prompt:

3. a.) Please describe briefly any court
   matter in which you or a close family member
   were involved as a plaintiff, defendant,
   witness, complaining witness or a victim.
   [Prospective jurors were given space to write]

b.) Was the outcome satisfactory to you?
[Prospective jurors were given “yes” and “no”
check boxes here]

1. c) If no, please explain. [Prospective jurors
   were given space to write]

Juror 86 wrote “n/a” after part (a), and left parts (b) and (c) blank. She also did not complete the second page of the questionnaire, which contained six additional prompts and a space to sign and declare under penalty of perjury that the prospective juror had answered all the questions truthfully and completely. And when jury selection began, the magistrate judge asked the prospective jurors a series of other questions Juror 86 should have answered, but Juror 86 remained silent.

In a motion for a new trial filed a week after sentencing, defendants argued that Juror 86’s answers to the questionnaire and her lack of a response to oral voir dire questions amounted to dishonest answers to material questions, and that had the answers been honest, there would have been a valid basis for a challenge for cause. They also asked for an evidentiary hearing to question Juror 86 about her answers. The district court denied the motion in all respects.  Mr. French and Mr. Russell appealed to the First Circuit.

The First Circuit reversed, explaining that the defendants came forward with factual information fairly establishing that Juror 86 likely gave an inaccurate answer to question 3 on the written questionnaire.  Further, the First Circuit held that the uncontested facts submitted by defendants also made it “quite likely — although not certain — that the juror’s inaccuracy was knowing.”  Defendants also showed that the correct answer to question 3 may well have been quite relevant to assessing the juror’s ability to fairly sit in judgment in this case. To wit, the mother of a drug user arrested for dealing to support his drug habit might have some strong thoughts about those who produce the drugs.

According to the First Circuit, the “defendants’ initial burden is only to establish that their claim of juror misconduct is ‘colorable or plausible.'”  Defendants “need not show at the outset that their claim is so strong as to render contrary conclusions implausible. Nor need the defendants support their claim initially with testimony from the juror.”  In the First Circuit, “counsel cannot even question the juror until the court gives permission.” See United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985). As a result, a court-supervised investigation aimed at confirming and then exploring further Juror 86’s apparent dishonesty was required.  The First Circuit vacated the denial of defendants’ motion for new trial and remanded for further proceedings on the motion for new trial.  Presumably, that would be an evidentiary hearing.  Mr. French and Mr. Russell are by no means off the hook, but for now, they have hope for a new trial.

The appellant pleaded guilty under such a generic plea agreement to one count of conspiracy to distribute five kilograms or more of cocaine on board an aircraft registered in the United States and one count of conspiracy to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana. Unhappy with the sentence, Appellant claimed on direct appeal that his counsel below had failed to push for a minor role adjustment in the Sentencing Guidelines calculations and had rendered ineffective assistance. The Government was unsympathetic and urged that the waiver of appellate rights in the plea agreement precluded any assertion of ineffective assistance. (Slip Op. at 2-4).

The Court of Appeals looked first to United States v. Guillen, 561 F.3d 527, 529-30 (D.C. Cir. 2009), which upheld the validity of so-called “anticipatory waivers,” under which a defendant can validly waive her right to appeal a sentence that has not yet been imposed, as long as her decision is “knowing, intelligent, and voluntary.” (Slip Op. at 4). “As a general matter,” the Court of Appeals pointed out, ‘“an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretio is not subject to appeal in the face of a valid appeal waiver.’” (Slip Op. at 4-5) (quoting United States v. Adams, 780 F.3d 1182, 1184 -85 (D.C. Cir. 2015) (quoting United States v. Andis, 333 F.3d 886, 892 (8^th Cir.  2003) (en   banc))). Applying those principles, Judge Srinivasan wrote, the Circuit has held that an appeal waiver barred a  defendant from appealing her sentence on the grounds that the district court: imposed a substantively unreasonable sentence, erroneously declined  to permit  the  defendant  to  introduce  certain  evidence at  sentencing  or  in  limiting  cross-examination  of  the  government’s  sentencing  witnesses,  or abused  its  discretion in denying  a  downward  variance from the sentencing guidelines range. (Slip Op. at 5) (citing Adams, 780 F.3d at 1184-85, and United States v. Ortega-Hernandez, 804 F.3d 447, 451 (D.C. Cir. 2015)).

On appeal the defendants argued that they were not on board the vessel when it was intercepted and that the district court lacked subject-matter jurisdiction over their prosecutions because Colombia’s assent to U.S.jurisdiction over individuals associated with the ship supposedly was limited to persons found on board the vessel. Second, appellants contended that their offense of conviction was covered by the so-called safety-valve provision, 18 U.S.C. § 3553(f), which exempts covered offenses from mandatory-minimum sentences such as the 10-year terms each of them received.

The panel (Circuit Judges Srinivasan, Millett & Sentelle) concluded that the district court had subject-matter jurisdiction under the terms of the applicable treaty between the United States and Colombia, although none of the defendants had been aboard the ill-fated boat.

Back in 2012, the Government began investigating a notorious drug dealer, Jermaine Washington, who had recently been released from prison. After employing traditional surveillance techniques, the Government successfully applied for two wiretaps on Washington’s cell phone. The evidence presented at appellants’ trial consisted largely of recorded conversations and Washington’s interpreting language in his conversations with the three defendants. A jury convicted Stoddard and Woodruff under 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846 for conspiracy to distribute and possess with intent to distribute heroin. It acquitted Jerome Cobble, Washington’s cousin, of those charges but convicted him on a separate charge of conspiracy to launder money in violation of 18 U.S.C. § 1956(h).

In an opinion authored by Circuit Judge Wilkins, the panel concluded that Cobble’s conviction of money laundering conspiracy was based on insufficient evidence. It overruled his colleagues’ merits-based appeals with one exception. It stated that for a defendant to be sentenced based on a mandatory minimum triggered by a certain quantity of drugs, a jury must find the drug quantity attributable to the defendant on an individualized basis, not just the drug quantity attributable to the conspiracy as a whole. And based on the intervening decision in Beckles v. United States, 137 S. Ct. 886 (2017), the panel instructed the district court on remand to re-examine the career-offender enhancement meted out to Woodruff. (Slip Op. at 1-2).

An examination of Brown’s cell phone text messages led to Matthews’ arrest, at which point the police learned that the takeover of Clifton’s apartment was no isolated event. Brown, Matthews and several of their chums had created a PCP operation that they called “Little Mexico.” Little Mexico’s modus vivendi involved using Woodberry Village apartments to stash guns and sell PCP. (Slip Op. at 4-5).

Brown, Matthews and four others were indicted for narcotics conspiracy-related offenses. One, Ira Adona, pled guilty to the conspiracy charge. He was supposed to be sentenced separately in the Superior Court for a shooting offense and in the federal court for the PCP conspiracy.  (Two others pled guilty but didn’t appeal their sentences.)   Brown, Matthews and Marquette Boston stood trial and were duly convicted of drug and/or weapons charges. (Slip Op. at 5-6).

At resentencing, Miller again received a life sentence. He appealed once more and claimed, inter alia, that plain error had infected the Firearms and Role-in-the Offense enhancements, and that the District Court erred in stating that the Guidelines range for the RICO conspiracy was life, when it was in fact 360 months to life.  The Circuit Court of Appeals, in a decision written by Senior Circuit Judge Edwards, agreed and his case remanded for resentencing.

The Government fought Miller tooth-and-nail.  First, it raised two procedural defenses, the first centered around a theory that Miller had waived the enhancement claims by not making then before, and thus was barred by the law of the case doctrine from raising them at this point. These preliminary contentions, Judge Edwards retorted, were “seriously misguided.” (Slip Op. at 3-4). Miller’s “looming mandatory life sentence for his CCE conviction [had] rendered his present sentencing challenges fruitless” and “[g]iven this situation, Appellant was not obliged to raise arguments on his first appeal that were merely contingently relevant.” (Slip Op. at 4).

Winning an ineffective assistance of counsel claim on direct appeal is not an occurrence that happens frequently, much less through a decision that issued just seven weeks after oral argument. Aumbrey Winstead, a man with a (to be gentle) checkered past, was convicted of possession of a firearm (by a person convicted of a crime punishable by imprisonment of more than one year), possession with intent to distribute cocaine, and possession of a firearm during a drug trafficking offense. The evidence against him was, in the appellate panel’s word, “overwhelming.” (slip op. at 2). Thanks to nimble footwork by the Federal Defender’s Office, on direct appeal his thirty-year sentence as an Armed Career Criminal was found improper and his case remanded for resentencing.

First, a digression for a merits-based issue that crops up with sufficient frequency that defense counsel should place this case in their trial toolbox. Based on the Circuit’s decision in United States v. Sheffield, 832 F.3d 296, 307-08 (D.C. Cir. 2016), Mr. Winstead protested that pointed out that district judge’s decision to admit prior crimes as evidence of knowledge under Federal Rules 403 and 404(b) was error because the offenses were more than a decade old. The government, invoking out-of-circuit authority, responded that the staleness of old crimes is lessened if part of the time between the defendant’s old crime and a new case was spent in prison. The panel (Garland, C.J., Edwards and Silberman JJ), found that distinction intellectually troubling but concluded that the error – if any – of admitting this evidence was harmless given the overwhelming evidence of Winstead’s guilt. (Slip Op. at 7-9).

The Government charged Mr. Lopez-Pastrana with two drug crimes and two weapons crimes.  He entered into a plea agreement.  Mr. Lopez-Pastrana would plead guilty to possession of marijuana with intent to distribute (Count III) and possession of a firearm in furtherance of drug trafficking (Count IV).  In exchange, the Government would dismiss Counts I and II.  The agreed-upon (but non-binding) sentencing range was zero to six months imprisonment for Count III, and a 60 month mandatory-minimum on Count IV.  Of course, there was an appeal waiver in the plea agreement.

At sentencing, Mr. Lopez-Pastrana explained he has Chronic Obstructive Pulmonary Disease (“COPD”), which, if you believe the commercial, makes you feel like an elephant or some other large animal is sitting on your chest.  His sentencing attorney told the district court that Mr. Lopez-Pastrana had a 20% chance of surviving the next four years.  The Government thought he was overstating the matter.  According to the Government, the Bureau of Prisons represented that “his medical condition is not an end-stage disease” and that his condition had improved during the four months he was incarcerated and awaiting sentencing.  (Aside: BOP has a very high opinion of its ability to care for sick people.  Check out the 11th Circuit’s opinion in United States v. Seecharan, where a defendant’s doctor opined the defendant would die of infection if he went to prison, and the district court ordered incarceration based on BOP’s response was that it “could handle anything.”  Happily, the 11th Circuit reversed for resentencing).

Back to Mr. Lopez-Pastrana. The district court sentenced him to 60 months in a prison medical facility on Count IV, with 5 years of supervised release.  But the sentence on Count III engendered some debate.  The district court basically gave Mr. Lopez-Pastrana an ultimatum.  Option 1: 12 months of home confinement with federally funded medical care as a condition of supervised release, and no time in prison.  Option 2: 6 months in prison.  Mr. Lopez-Pastrana took the 12 months of home confinement and appealed.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

The First Circuit’s opinion begins with a lengthy analysis and ultimate rejection of the Government’s appeal waiver argument.  The First Circuit also discusses at great length, and ultimately rejects, the Government’s argument that Mr. Lopez-Pastrana invited the error he complained of on appeal by taking the deal offered by the district court.  On page 15 of the opinion, the First Circuit reaches the merits of Mr. Lopez-Pastrana’s argument.

The Lopez-Pastrana Court held that the sentence on Count III was improper.  First, the home confinement was imposed as a condition of supervised release, but Mr. Lopez-Pastrana did not receive any prison time on Count III.  This arrangement violates 18 U.S.C. § 3583(a), which states that a term of supervised release is appropriate if it follows a term of imprisonment.  In other words, you can’t get supervised release on a count that did not result in prison time.  The Government argued harmless error, contending that the district court had discretion to impose home detention as an alternative to confinement under 18 U.S.C. § 3563(b)(19).  The First Circuit rejected that argument because section 3563(b)(19) afforded the district court discretion to impose home detention as an alternative to confinement only as part of a sentence of probation.  Mr. Lopez-Pastrana’s PSR stated he was ineligible for probation on Count III because he was sentenced at the same time to a mandatory prison term on Count IV.

The First Circuit reversed for resentencing, but it’s hard to say whether it will benefit Mr. Lopez-Pastrana.  There is also a possibility he’ll be worse off after resentencing.  As the First Circuit noted in the opinion, the district court could simply sentence Mr. Lopez-Pastrana to prison on Count III.  But the First Circuit also noted that the district could (and probably should if you’re reading the opinion’s tea leaves) simply tack the year of home confinement onto the sentence for Count IV as a term of supervised release, and give Mr. Lopez-Pastrana a zero-month sentence on Count III.  The end of the opinion is a cautionary tale: the First Circuit invited the district court to reevaluate Mr. Lopez-Pastrana’s health at the time of resentencing to (channeling Kenny Rogers here) see what condition his condition is in.  If Mr. Lopez-Pastrana’s health improved while the First Circuit pondered his case, he may be in for a harsher sentence.  Then again, if he’s worse, perhaps he gets a break.

This opinion is a good reminder that if a district court gives your client a decent result at sentencing, there is risk associated with upsetting upsetting the apple cart, even if you have the best legal argument in the world.

The facts: Rivera was in a fight with Williams and it was not going well.  Williams was much bigger than Rivera and the fight quickly became lopsided.  When fellow partygoers realized Williams was in full control and showing no signs of relenting, a group went outside to break up the fight.  Soon after, Williams keeled over on top of Rivera, and one witness said Williams remarked as he fell, “I think he [Rivera] stabbed me.”  But it happened fast and no one was willing or able to identify who stabbed Williams.  Rivera ran and a police officer saw him and ordered him to stop, but Rivera kept going.  When the officer drew his gun and told Rivera to get down, Rivera complied.  With Rivera still on the ground and the officer’s gun drawn, the officer asked Rivera a few questions, but did not issue Miranda warnings.  Rivera responded with some indirect, but inculpatory answers.  Backup arrived soon after, Rivera refused to talk further, and he was brought to the police station.

After a trial, Rivera was found guilty and sentenced to 9-10 years and 5 years of supervised release.  While his appeal was pending, he filed a motion for new trial, arguing his trial attorney was ineffective for failing to move for suppression of his inculpatory statements to the police officer.  The Massachusetts trial court denied the motion for new trial without comment or a hearing.  Rivera pressed his ineffective assistance argument on appeal.  The appellate court rejected it, stating that “it was not ineffective assistance for counsel not to move to suppress the defendant’s initial statements to the police where the questions did not constitute interrogation for purposes of Miranda warnings.” Id. at 11.  The Massachusetts Supreme Judicial Court denied review, and Rivera was off to federal habeas land.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

The district court denied Rivera’s ineffective assistance argument, but gave him a sprinkle of hope by granting a certificate of appealability.  On review, the First Circuit began its analysis with the typical “it is impossible to win under AEDPA and it’s supposed to be impossible” language.  That’s when things get interesting.  The First Circuit’s holding was simple.  According to the panel opinion, the Massachusetts Court of Appeals’ conclusion that “the questions did not constitute interrogation for the purposes of Miranda warnings” was “clearly contrary to the Supreme Court’s definition of interrogation for Miranda purposes.”  The First Circuit relied on Rhode Island v. Innis almost exclusively for its holding.  The Rivera Court also rejected the State’s suggestion that the “Routine Booking Exception” might have explained why Rivera’s trial counsel did not move to suppress his comments.  Id. at 15-16.  Finally, in the absence of any physical evidence or conclusive eyewitness testimony regarding the identity of the stabber, the First Circuit had little trouble determining Rivera was prejudiced by his counsel’s ineffectiveness.

This is a refreshing read.  The First Circuit handled AEDPA as it is meant to be handled.  Most opinions denying habeas relief perseverate over factual differences between the case sub judice and the cases the habeas petitioner relies on as clearly established.  The First Circuit avoided the typical nonsense about requiring “identical” details to a holding (Innis) which clearly applied.  We know what Innis stands for, it applied in Rivera, and the First Circuit didn’t get lost in details that don’t matter.