SCOTUS GVR's Breland In Light of SG's Position That Tapia Applies Equally to Revocation of Supervised Release

You'll recall that the Supreme Court held in Tapia v. United States that a court may not impose or lengthen a term of imprisonment in order to promote a defendant's rehabilitation. You'll also recall that the Fifth Circuit held in United States v. Breland that Tapia's holding does not apply when imposing a sentence on revocation of supervised release. That set up a circuit split with the First and Ninth Circuits.

Turns out the Fives are going to get another crack at it. Earlier this week the Supreme Court granted certiorari in Breland, vacated the Fifth Circuit's judgment, and remanded the case "for further consideration in light of the position asserted by the Solicitor General in his brief for the United States filed on December 19, 2011." The SG's position?

Although Tapia concerned a term of imprisonment imposed on initial sentencing rather than on revocation of supervised release, the United States now agrees with petitioner that Section 3582 (a), as construed in Tapia, precludes a court from lengthening the time a defendant must serve in prison based on the defendant's rehabilitative needs when supervised release is revoked.

(I can't find a free copy of the SG's brief anywhere on the intertubes, but those of you with Westlaw access can find it at 2011 WL 7051682.)

Cert Grant: May District Court Order Federal Sentence to Run Consecutively to Anticipated, But Yet-to-Be-Imposed State Sentence?

No longer will that question fester, with yesterday's cert grant in Setser. That's Setser v. United States, No. 10-7387, to be exact, a case out of our very own circuit.  The Court also granted cert on a second question concerning the proper interpretation of 18 U.S.C. § 3584(a): "Is it reasonable for a district court to provide inconsistent instructions about how a federal sentence should interact with state sentences?"

It's interesting that the Court has finally decided to resolve these issues, as it has denied cert many times before.  The denials have been particularly maddening because of the position the Government has been taking: it agrees that the Fifth Circuit is wrong, yet it has consistently opposed cert on various grounds that are, to put it charitably, unpersuasive.  Here's one example, from the Solicitor General's brief-in-opposition in this case:

Even if the question presented had some practical significance, in petitioner's case or others, there is reason to believe that the practice of anticipatory consecutive sentencing is becoming less common. Since this case arose, the government has taken steps to ensure that federal prosecutors act consistently with the interpretation of Section 3584(a) discussed above. On January 8, 2009, after the sentence was imposed in this case, the Executive Office for United States Attorneys informed all United States Attorneys' Offices that the Solicitor General, on behalf of the Department of Justice, had adopted that interpretation. In accompanying guidance, all federal prosecutors were directed to urge sentencing courts not to order that a sentence run consecutively to (or concurrently with) a yet-to-be-imposed sentence. Although some district courts have continued to impose such sentences even after the government expressed its position, the government will not defend such an order except where circuit precedent (or the plain-error standard of review) dictates otherwise.

As usual, you can find the cert-stage pleadings on SCOTUSblog's case page.  And don't forget to preserve the issue. Whether or not the SG is correct about the prevalence of consecutive-sentence orders, they're not exactly as rare as hen's teeth in our neck of the woods.

Cert Grant: Is Filing a False Statement on a Corporate Tax Return an Aggravated Felony?

Today the Supreme Court granted certiorari in Kawashima v. Holder, No. 10-577, which presents this question:

Whether, in direct conflict with the Third Circuit, the Ninth Circuit erred in holding that Petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and Petitioners were therefore removable.

Cert Grant: Under ACCA, Is Maximum Punishment for Prior Offense Determined By Current Law or By Law In Effect at the Time of That Offense?

Under the ACCA, a "serious drug offense" is one carrying a maximum term of imprisonment of at least 10 years.  In determining whether a prior offense is a serious drug offense, does the court look at the maximum punishment authorized at the time the defendant committed the offense, or at the time of sentencing for the new federal offense?

That is the question on which the Supreme Court granted certiorari last week in McNeill v. United States, 10-5258.  And no, the case does not involve the situation where the maximum punishment for an offense was increased after the defendant committed the offense; in McNeill, the maximum punishment was actually reduced.  As you can see, opinions on the correct answer to the question presented could depend on whose defendant is being gored.

The question has produced a 2-2 circuit split.  The Fifth Circuit has held—in a situation in which the maximum was reduced and the reduced penalty was not made retroactive—that the court must look at the law in effect at the time of the prior offense, not at the current law.  United States v. Hinojosa, 349 F.3d 200 (2003).

Pleadings, etc. available at SCOTUSblog.

TX Fleeing by Vehicle Is Aggravated Felony, for Largely the Same Reason It's an ACCA Violent Felony

United States v. Sanchez-Ledezma, No. 10-40451 (5th Cir. Jan. 7, 2011) (Garza, Stewart, Haynes)

Recall that, in United States v. Harrimon, the Fifth Circuit found that evading arrest or detention by use of a vehicle, in violation of Texas Penal Code § 38.04(a), is a "violent felony" under the ACCA.  Specifically, Harrimon held that the Texas offense falls within the violent felony definition's residual clause, which reaches offenses that "involve[ ] conduct that presents a serious potential risk of physical injury to another[.]"  To satisfy that standard, an offense must be purposeful, violent, and aggressive, and present a degree of risk similar to that of the enumerated violent felonies (like arson).  Fleeing-by-vehicle fits the bill, so Harrimon held, because it involves an intentional act, flouting lawful authority is aggressive, and "the use of a vehicle . . . to evade arrest or detention typically involves violent force which the arresting officer must in some way overcome."

Which brings us to Sanchez-Ledezma, in which the court holds that Texas fleeing-by-vehicle is also an aggravated felony.  Specifically, it's a "crime of violence" under 18 U.S.C. § 16(b)—a definition incorporated in the aggravated felony definition—which reaches felonies that "involve[ ] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."  As you'll note, this definition is different from the ACCA's violent felony residual clause, focusing on the risk of force rather than the risk of injury.  Doesn't matter:

Sanchez-Ledezma argues that Harrimon does not expressly evaluate the risk that an actor would intentionally employ force in the course of committing a violation of section 38.04(b)(1)and focuses on the incidental risk of injury to bystanders rather than the risk of the intentional use of force. As the passage quoted above makes quite clear, that argument fails. We explained in Harrimon that the crime at issue in both that case and this “typically involves violent force which the arresting officer must in some way overcome” and “will typically lead to a confrontation with the officer being disobeyed, a confrontation fraught with risk of violence.” Our ultimate conclusion was that evading arrest with a vehicle met the standard for aggressiveness” under Begay, which we characterized as involving “offensive and forceful [behavior] . . . characterized by initiating hostilities or attacks.” These conclusions bear directly on the question of the risk of the use of physical force against a person in the course of committing the offense.

Evading arrest with a motor vehicle is, by the logic of Harrimon, a “crime of violence” for purposes of § 16(b), and therefore an “aggravated felony” for purposes of § 1101(a)(43)(F).

(cites to Harrimon omitted).
 
Note that the issue of whether fleeing-by-vehicle qualifies as an ACCA violent felony is currently before the Supreme Court in Sykes v. United States, which is being argued today.

Cert Grant: May a District Court Give a Defendant a Longer Sentence to Promote Rehabilitation?

Such is the question presented in Tapia v. United States, No. 10-5400, in which the Supreme Court granted cert last Friday.  You may be familiar with the scenario presented in Tapia: the district court imposed a 51-month, top-of-the-guidelines sentence in part to ensure that Tapia would remain in prison long enough to be able to participate in BOP's 500-hour drug treatment program.

According to the petition, the Eighth and Ninth Circuits "allow rehabilitation to be used as a factor in deciding the length of a defendant's prison sentence, once the court decides that a prison sentence is appropriate."  The Second, Third, Eleventh, and D.C. circuits have held otherwise.  To my knowledge, there is no published Fifth Circuit decision addressing this question.

The answer lies in the interplay between two provisions of the Sentencing Reform Act.  Section 3553(a)(2)(D) requires the sentencing court to consider the need "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]"  Section 3582(a) then instructs the court that, both when determining whether to impose a sentence of imprisonment and when determining the length of an imprisonment term, it "shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation." (emphasis added).

Information about the case, including links to the pleadings, is available at SCOTUSblog.  And you should check out the cert petition itself.  It's very good: clear, concise, and (as we now know) effective.  Not a bad model to follow.

Cert Grant On Derivative Citizenship Statute's Disparate Treatment of Out-of-Wedlock Birth to U.S. Citizen Father vs. U.S. Cititzen Mother

This post was written by Matthew Wright, Legal Research & Writing Specialist in the Amarillo office of the Federal Public Defender for the Northern District of Texas.

Everyone who has raised an acquired or derivative citizenship defense to a prosecution for illegal reentry understands that it is more difficult to establish citizenship through an unwed U.S. citizen father than through an unwed U.S. citizen mother. Today, the Supreme Court agreed to decide whether one of the added difficulties—a length-of-residence requirement for the father—is constitutional (and in an illegal reentry case, no less).

The requirements for transmitting citizenship are described in 8 U.S.C. §§ 1401 and 1409 (alias: INA §§ 301 and 309), and those statutes have been amended a number of times. Typically, these cases involve a child born outside the United States when one parent is a U.S. citizen and the other parent is not.

When a child is born out-of-wedlock to a U.S. citizen mother, the child acquires U.S. citizenship at birth "if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year." 8 U.S.C. § 1409(c). But if the child is born out-of-wedlock to a U.S. citizen father, the child must prove 1) that the father was present in the U.S. for a certain number of years before the child's birth, and 2) that the father took certain official steps acknowledging or legitimating paternity. § 1409(a). The Supreme Court first considered the constitutionality of this scheme in Miller v. Albright, but the Court failed to reach a majority opinion. In Nguyen v. INS, the Court upheld the legitimation requirement against an equal protection challenge.

Today, the Supreme Court granted certiorari in Flores-Villar v. United States, No. 09-5081, to address the unequal residency requirements for citizenship transmission. Prior to an amendment in 1986, an alien seeking citizenship through a citizen father had to show that the father was present in the United States for ten years prior to his birth, at least five of which were after the father reached the age of 14. Under current law (applicable to anyone born after November 14, 1986), the alien needs to show the father was present for five years, two of which were after 14.

Enter Flores, who wanted to raise a derivative citizenship defense to an illegal reentry charge. The old law applied to him, and his father was only 16 when Flores was born, so it was impossible for his father to transmit U.S. citizenship. On this basis, the government moved to exclude any derivative citizenship defense. The district court granted that motion and overruled Flores's constitutional attack. Flores was then convicted of illegal reentry on stipulated facts.

The petition raises a number if interesting issues, such as whether a defendant has standing to raise a violation of his father's equal protection rights, and whether the intermediate scrutiny normally applied to gender discrimination claims should give way to the deference normally afforded Congress in immigration matters.

This is an extraordinarily complex area of immigration law, and if you think your client may have a derivative citizenship defense (or would have a valid defense absent the unequal residency requirements), you may want to consider consulting someone who has litigated these cases before. Also note that the Fifth Circuit has already rejected an equal protection challenge to the more-severe residency requirements for unwed fathers in United States v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002). Even so, in light of today's grant, the issue should be preserved in any pending cases.

If you'd like to read more about the case, SCOTUSblog has helpfully collected the Ninth Circuit's opinion, petition for certiorari, brief in opposition, and reply.

3/23/10 UPDATE: Check out some additional coverage from the AP.

SCOTUS To Decide Whether Court May Impose Sentence Below Revised Range in § 3582(c)(2) Resentencings

Speaking of sentence reductions pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive amendments to the crack guidelines, the Supreme Court in December granted cert on questions that have divided the circuits in this area. Dillon v. United States, No. 09-6338, presents the questions:

I. Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582.

II. Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence based on an admittedly incorrectly calculated guideline range.

Stated colloquially, the first question is whether § 3582(c)(2) allows full "Booker" resentencings, complete with the ability to depart or vary below the reduced Guidelines range. As you know, the Fifth Circuit has held that the crack amendments bar any reduction below the revised Guidelines range.

Cert Grant: Whether Lawyer's Nonadvice or Misadvice About Immigration Consequences of Guilty Plea Constitutes Ineffective Assistance of Counsel

As a commenter to an earlier post points out, the Supreme Court granted cert last week in Padilla v. Kentucky, No. 08-651, a case concerning a defense lawyer's obligation to advise an alien client about the immigration consequences of pleading guilty to a criminal offense. The formal questions presented are available here, but an amicus brief in support of the petition frames the questions in a way that is much easier to understand:

1. Does the Sixth Amendment's guarantee of effective assistance of counsel require a criminal defense attorney to advise a client who is not a citizen that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation?
2. If a criminal defense attorney misadvises his noncitizen client that a guilty plea will not lead to deportation, and that misadvice induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

Both questions have produced lopsided splits among the federal and state appeals courts. According to the amicus brief, a large majority answer question one "no," and question two "yes." (By the way, all of the cert-stage pleadings are available at ScotusWiki.) Where does our fair circuit fall, you ask? It just so happens that the Fives addressed these questions, among others, in a decision handed down last November: Santos-Sanchez v. United States, No. 07-40145 (5th Cir. Nov. 6, 2008) (Reavley, Clement, Prado).

Santos-Sanchez presented a procedural scenario you don't see every day: an appeal from the denial of a petition for a writ of coram nobis. Santos, a legal resident alien, pleaded guilty to aiding and abetting the illegal entry of an alien, in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 2(a) (known colloquially as misdemeanor alien smuggling). As a result, DHS sought to remove Santos from the United States. While the removal proceedings were still ongoing, Santos filed his petition for a writ of error coram nobis, seeking vacation of his conviction. The petition was ultimately denied, and Santos appealed.

Santos presented three arguments, all of which the court of appeals rejected. First, "he argue[d] that his defense counsel rendered ineffective assistance by affirmatively misrepresenting the immigration consequences of his guilty plea." Specifically, Santos claimed that he was misled into believing that removal was only a possibility---rather than a certainty---because 1) one of his attorneys advised him that deportation is a possible consequence of a guilty plea to a criminal charge, and for that reason that he may want to consult an immigration lawyer, and 2) his other attorney gave him an immigration lawyer's business card "and suggested that Santos-Sanchez call the lawyer if he had any problems with immigration." The court held that the attorneys' advice was not objectively unreasonable under the Strickland standard, given the circumstances: neither attorney claimed to be an expert in immigration law, they did not answer any questions concerning deportation, and "[w]hile [the] statement that deportation was 'possible' might indicate that deportation was not a certainty, it is not so inherently misleading in this context that it constitutes an affirmative misrepresentation of the law."

Second, Santos argued, in the alternative, that his attorneys were ineffective "due to [their] failure to warn him of the immigration consequences of a guilty plea." That ran smack into the Fifth Circuit's prior decision in United States v. Banda, which held that "counsel’s failure to inform a defendant of the collateral consequences of a guilty plea"---and deportation is a collateral consequence---"is never deficient performance under Strickland." Santos tried to get around Banda by arguing that certain deportation---as opposed to the mere possibility of deportation---is a direct consequence of a guilty plea, not a collateral consequence, particularly after IIRIRA. The court disagreed, observing that "[t]he likelihood that a defendant would be deported was irrelevant to" Banda's holding. As for IIRIRA, the court

agree[d] with the First and Tenth Circuits that the changes wrought by IIRIRA have not so altered the nature of deportation as to wholly undermine our holding in Banda. We, like our sister circuits, have drawn a bright line between the direct and collateral consequences of a guilty plea and require that counsel advise a defendant of only the former. And also like our sister circuits, we have limited the direct consequences of a guilty plea to “the immediate and automatic consequences of that plea such as the maximum sentence length or fine.” Under Banda, regardless of certainty, deportation is a collateral consequence of a guilty plea. Consequently, Santos-Sanchez’s counsel was not required to inform him of the immigration consequences of his guilty plea for counsel’s assistance to be effective.

(internal cite removed).

Santos's third argument---as well as the court's rejection of it---mirrored the second one:

• Santos argued that his guilty plea was ineffective because the magistrate judge failed to advise him of the immigration consequences of his guilty plea.
• The Fifth Circuit has "previously held that neither due process nor Federal Rule of Criminal Procedure 11 require that a court advise a defendant of the collateral consequences of a guilty plea[,]" and deportation is one such collateral consequence.
• Santos said things are different after IIRIRA.
• The court agreed with other circuits that have held that the post-IIRIRA certainty of deportation doesn't make it a direct consequence of a conviction, meaning it's still a collateral consequence, meaning a court need not admonish a defendant of the immigration consequences of a guilty plea.

(One last thing from Santos-Sanchez for all of you procedure wonks out there: the case holds that magistrate judges lack statutory jurisdiction to hear a petition for writ of coram nobis. Read the opinion if you want to know why.)

Another Cert Grant on ACCA "Violent Felony" Definition: Does a Nonconsensual Touching Constitute the Use of Physical Force?

Yesterday the Supreme Court granted cert in Johnson v. United States, No. 08-6925. The two questions presented are:

1. Whether, when a state's highest court holds that a given offense of that state does not have as an element the use or threatened use of physical force, that holding is binding on federal courts in determining whether that same offense qualifies as a ''violent felony" under the federal Armed Career Criminal Act, which defines ''violent felony" as, inter alia, any crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another."

2. Whether this court should resolve a circuit split on whether a prior state conviction for simple battery is in all cases a "violent felony" - a prior offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Further, whether this court should resolve a circuit split on whether the physical force required is a de minimis touching in the sense of "Newtonian mechanics" or whether the physical force required must be in some way violent in nature - that is the sort of force that is intended to cause bodily injury, or at a minimum likely to do so.

I don't know off the top of my head if there's any Fifth Circuit case law on question one. As for question two, the Fifth Circuit has held that "force," for purposes of use-of-force clauses, is "synonymous with destructive or violence force." United States v. Dominguez, 479 F.3d 345, 345 (5th Cir. 2007). Plus, in Leocal v. Ashcroft, the Supreme Court interpreted the use-of-force clause in 18 U.S.C. § 16 to "suggest[] a category of violent, active crimes." 543 U.S. 1, 11 (2004).

By the way, the offense in question is simple battery on a police officer, which happens to be a felony under Florida law, and which can be committed merely by a nonconsensual touching (such as spitting on a police). The Florida Supreme Court has held that---under a Flordia statute parallelling the use-of-force clause in the ACCA's "violent felony" definition, and elsewhere---the offense does not involve the use of physical force or violence. The Eleventh Circuit, in Johnson, held that it wasn't bound by the Florida Surpeme Court's determination of whether the offense involves physical force, and also that simply touching a person without that person's consent constitutes the type of physical force necessary to qualify the offense as an ACCA "violent felony" under that defintion's use-of-force clause.

Interestingly (depending on what you find interesting, of course), the Supreme Court declined to grant cert on the third question presented, which was a should-Almendarez-Torres-be-overruled issue: "Whether the district court lacked the authority to sentence Mr. Johnson as an Armed Career Criminal, given that Mr. Johnson did not admit the predicate offenses for such a classification when he pled guilty."

Cert Grant: To Be Guilty of Aggravated ID Theft, Must Defendant Know That ID Actually Belonged to a Real Person?

Today the Supreme Court granted cert in Flores-Figueroa v. United States. As SCOTUSblog summarizes the case,

[t]he issue is whether the law enhancing the sentence for identity theft[, 18 U.S.C. § 1028A(a)(1),] requries proof that an individual knew that the identity card or number he had used belonged to another, actual person — that is, a knowledge requirement. The Circuit Courts have split 3-3 on the issue. The dispute centers on the meaning of the word “knowingly” in the 2004 statute.

You'll definitely want to keep an eye on this one. The Fifth Circuit has not yet weighed in on the question, but the feds are pursuing more and more of these cases so it's bound to come up in your neck of the woods, if it hasn't already.

The cert-stage filings are available at this link. And for additional discussion of the issue, check out this paper by Massachusetts AFPD Martin Richey.

Cert Grant Involving Brady Violations

As SCOTUSblog reports, the Supreme Court granted cert today in a case that may further outline the scope of a prosecutor's discovery obligations under Brady v. Maryland:

The new case on prosecutorial immunity (Van De Kamp, et al., v. Goldstein, 07-854) does not involve line prosecutors. Rather, it tests whether supervisory officials in the chain of command on prosecution may be sued for damages for failure to develop policies to ensure that evidence favorable to the defense is shared with defense counsel. Basicially, the appeal by two former Los Angeles officials — a district attorney and his chief deputy – seeks immunity for all actions within a prosecution team that relate to the obligations imposed by the 1963 Supreme Court decision in Brady v. Maryland.

SCOTUSblog has also collected cert-stage filings in the case here.

Cert Grant: Is Domestic Relationship an Element of "Misdemeanor Crime of Domestic Violence" Under § 922(g)(9)?

Today the Supreme Court granted cert in United States v. Hayes, No. 07-608, to consider whether, in order to qualify as a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9), the domestic relationship required by § 921(a)(33)(A)(ii) must be an element of the predicate offense.

As discussed here, Hayes, a Fourth Circuit opinion, answered that question "yes." That holding conflicted with the decisions of every other circuit that had addressed the question, including the Fifth Circuit. So if you haven't already been preserving this issue in light of the circuit split, you'll probably want to do so now.

As usual, SCOTUSblog has collected the filings here.

Cert Grant: Are Forensic Lab Reports "Testimonial" and Thus Subject to Crawford?

Today the Supreme Court granted certiorari in Melendez-Diaz v. Massachusetts (No. 07-591), which presents the following question:

Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).

The Court's resolution of the question may extend beyond lab reports. As the cert petition notes, "courts holding that forensic reports are testimonial . . . reason that such reports are created solely for use in criminal prosecutions and present ex parte attestations aimed at helping to prove the defendant's guilt." That sounds an awful like like the certificate of non-existence that is commonly presented, in lieu of live testimony in illegal reentry cases, to establish that an alien had not received permission to reenter the United States. Or perhaps the use of a grand jury transcript to establish the predicate for the admission of a business record at trial. So think broadly, and preserve accordingly.

If you'd like to read the papers in the case for yourself, SCOTUSblog has helpfully collected the opinion of the Appeals Court of Massachusetts, cert petition, brief in opposition, petitioner's reply, and two amicus briefs in support of the petitioner.

Supreme Court Grants Cert in Fifth Circuit Case Concerning Scope of "Concealment" Element of Money Laundering Statute

Does 18 U.S.C. § 1956(a)(2)(B)(i), which prohibits transporting the proceeds of illegal activity "to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds," apply to situations where the proceeds are physically concealed during the transportation, even if the concealment does nothing to disguise the source, ownership, etc. of the proceeds? Sparks flew when the Fifth Circuit considered that question en banc in United States v. Cuellar. The majority essentially held that concealing money while transporting it is sufficient to satisfy the concealment element of the offense. The strongly-worded dissent argued that the statute only reaches "transporting money to conceal it," not "concealing money to transport it."

Our initial coverage of the case remarked that "[i]t'll be interesting to see what happens with the inevitable cert petition in this case." Wonder no more. As SCOTUSblog reports here, the Supreme Court granted cert in Cuellar today. The question presented is "whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction." SCOTUSblog has also helpfully collected the petition for certiorari, the Solicitor General's brief in opposition, the petitioner's reply, and and amicus brief in support from the National Association of Criminal Defense Lawyers.

This should be a very interesting case to watch. And as always, don't forget to preserve the issue if it crops up in any of your cases.