Wednesday, April 29, 2009

Discharge of Firearm Need Not Be Intentional to Trigger 10-Year Mandatory Minimum Under 18 U.S.C. § 924(c)*

Dean v. United States, No. 08-5274 (U.S. Apr. 29, 2009)

Title 18 U.S.C. § 924(c)(1)(A)(iii) requires a mandatory minimum sentence of 10 years if the firearm was "discharged." The question presented, which had divided the circuits, was whether the 10-year mandatory minimum requires that the defendant discharge the firearm intentionally.

Chief Justice Roberts, writing for a seven-Justice majority, answers that question "no." Even an accidential discharge suffices. The analysis, which I'll not summarize, relies entirely on the text and structure of the statute.

Justice Stevens dissented. Relying on both the structure and the legislative history of the statute, he concluded that "Congress intended §924(c)(1)(A)(iii) to apply only to intentional discharges."

Justice Breyer also dissented. Conceding the "strong arguments" in favor of the majority's holding, Justice Breyer nevertheless concluded that the rule of lenity weighed against it. Intriguingly, he argued that the rule of lentity has "special force in the context of mandatory minimum provisions[,]" in light of the "interpretive assymetries" that arise. That is, if lenity is applied and intentional discharge is required, a sentencing judge could still impose a sentence of 10 years or more. But if lenity is not applied, and even accidential discharges trigger a 10-year mandatory minimum, then a sentencing judge is bound to impose a sentence harsher than Congress would have intended.

Of course, Justice Breyer's take on the rule of lenity did not carry the day. But the rule did not escape the majority's mention. Although not directly addressing Justice Breyer's dissent, the majority opinion reminds that not just any ambiguity suffices to trigger the rule of lenity. Instead, lenity only kicks in when there is a "grievous ambiguity or uncertainty" in the statute.

*(Post title edited to correct mistaken reference to the ACCA.)

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Statement Obtained In Violation of Massiah Is Admissible at Trial for Impeachment Purposes

Kansas v. Ventris, No. 07-1356 (U.S. Apr. 29, 2009)

The question presented: "whether a defendant's incriminating statement to a jailhouse informant, concededly elicited in violation of Sixth Amendment strictures, is admissible at trial to impeach the defendant's conflicting statement."

The answer: yes.

How we got here: Ventris and an accomplice robbed a man at gunpoint. One of them shot and killed the victim. They both claimed that the other was the shooter. The accomplice copped a plea; in exchange for the State dropping the murder charge against her, the accomplice agreed to testify that Ventris was the shooter.
Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to "keep [his] ear open and listen" for incriminating statements. Accordingto the informant, in response to his statement that Ventris appeared to have "something more serious weighing in on his mind," Ventris divulged that "[h]e’d shot this man in his head and in his chest" and taken "his keys, his wallet, about $350.00, and . . . a vehicle."
Ventris testified at his trial, claiming that the accomplice was the shooter. The State, over Ventris's objection, called the informant to testify to Ventris's contrary statement in the jail cell. The jury wound up finding Ventris not guilty of felony murder and misdemeanor theft, but found him guilty of aggravated burglary and aggravated robbery.

From trial on up, the State conceded that Ventris's inculpatory statement to the informant was obtained in violation of Massiah v. United States, and therefore not admissible during the prosecution's case-in-chief. (Massiah held that one of the critical pretrial interactions triggering the Sixth Amendment right to the assistance and presence of counsel is when law enforcement officers—or their agents—interrogate a defendant concerning the charges against him.) But the State argued that the statement could nevertheless be introduced to impeach Ventris's contrary testimony on the stand.

"Without affirming whether [the State's] concession was necessary," the Court "accept[ed] it as the law of the case." And the Court went on to hold that the statement could be offered to impeach Ventris.

Justice Scalia, writing for a seven-Justice majority, framed the analysis thusly: "Whether otherwise excluded evidence can be admitted for purposes of impeachment depends upon the nature of the constitutional guarantee that is violated." Here, the violation was of Ventris's Sixth Amendment right to the assistance of counsel during pretrial interrogation concerning the charges against him. That right "is infringed at the time of interrogation."

The question then became, according to the Court, not how to prevent a constitutional violation, but how to remedy one that had already occurred. And to answer that question, the Court conducted a balancing that worked out the way such balancings ususally do: cost of exclusion high, benefit of exclusion low.

[P]reventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment. Not likely to happen—or at least not likely enough to risk squandering the opportunity of using a properly obtained statement for the prosecution’s case in chief.

In any event, even if "the officer may be said to have little to lose and perhaps something to gain by way of possibly uncovering impeachment material," we have multiple times rejected the argument that this "speculative possibility" can trump the costs of allowing perjurious statements to go unchallenged. We have held in every other context that tainted evidence—evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid—is admissible for impeachment. We see no distinction that would alter the balance here.

Justice Stevens dissented, joined by Justice Ginsburg. To him, "[t]he use of ill-gotten evidence during any phase of criminal prosecution does damage to the adversarial process—the fairness of which the Sixth Amendment was designed to protect."
Today’s decision is lamentable not only because of its flawed underpinnings, but also because it is another occasion in which the Court has privileged the prosecution at the expense of the Constitution. Permitting the State to cut corners in criminal proceedings taxes the legitimacy of the entire criminal process. . . . Although the Court may not be concerned with the use of ill-gotten evidence in derogation of the right to counsel, I remain convinced that such shabby tactics are intolerable in all cases. I respectfully dissent.

I'll add another criticism of the majority's opinion: the Court shouldn't have used such a poor vehicle to decide such an important question. There's no indication in the opinion that Ventris denied making the statement that the informant claimed he did, and the jury apparently didn't give much weight to the informant's testimony anyway since it acquitted Ventris of the murder charge. If you think those things didn't make at least some difference in the outcome, consider that the majority justifies its holding in part by "'the need to prevent perjury and to assure the integrity of the trial process.'" Consider also this footnote near the end of the opinion:
Respondent’s amicus insists that jailhouse snitches are so inherently unreliable that this Court should craft a broader exclusionary rule for uncorroborated statements obtained by that means. Our legal system, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid "establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure." It would be especially inappropriate to fabricate such a rule in this case, where it appears the jury took to heart the trial judge’s cautionary instruction on the unreliability of rewarded informant testimony by acquitting Ventris of felony murder.

Then why grant cert in this case, especially given the majority's not-so-veiled suggestion that there might not have been a Massiah violation here in the first place? You have to wonder if the outcome would have been different, or at least if the vote would have been closer, if the case actually involved a conviction based on questionable informant testimony that the defendant disputed.

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Monday, April 20, 2009

Guidelines Calculation Error Doesn't Require Reversal If Sentence Didn't Result From That Error, Plus More on Plain Error

United States v. Ruiz-Arriaga, No. 08-40242 (5th Cir. Apr. 9, 2009) (Jones, Wiener, Benavides)

We know that, when imposing sentence, the district court must correctly calculate the advisory Guidelines range. Let's say the court gets the Guidelines calculation wrong, but says something along the lines of, "Even if the Guidelines range was different, I would still impose a sentence of X months, for the following reasons . . . ." Does the procedural error require vacation of the sentence?

Not necessarily. The Fifth Circuit recently clarified that a procedural error does not require reversal if the error was harmless, meaning that the error did not affect the sentence imposed. That's essentially what Ruiz-Arriaga holds, although it couches the matter in slightly different terms.

In this case, Ruiz pleaded guilty to illegal reentry. He had a prior Texas conviction for sexual assault of a child. The PSR recommended a 16-level COV enhancement for that prior conviction, producing an advisory range of 46 to 57 months. Ruiz objected to the enhancement (the details of which the opinion doesn't explain), arguing that the correct range was 10 to 16 months (presumably based on treating the sexual assault prior as a 4-level "any other felony" under §2L1.2(b)(1)(D), although the opinion doesn't explain that, either). The district court overruled the objection and sentenced Ruiz to 46 months, explaining that,
in the event that the court is incorrect about the guideline range, that a sentence at certainly something more than 10 to 16 months, which if the court were wrong is what—I haven’t recalculated, but that’s what [defense counsel] says would be the range. The court believes that a sentence of 46 months in custody would be reasonable, even if the court is not correct about the guideline range.

Ruiz appealed. Without addressing whether the district court erred in applying the 16-level enhancement, the court of appeals concluded that any error was harmless:
As we noted in United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008), “[n]ot all errors in determining a defendant’s guideline sentence require reversal.” Id. at 656. Where the district court “considered the possible guideline ranges that might apply to the defendant with and without a disputed enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting sentence does not result from an incorrect application of the Guidelines. Id. Here, the district court considered the 46 to 57-month range with the crime of violence enhancement and the 10 to 16-month range advocated by the defense.

Of course, this brings up the question of just how much 3553 explanation is necessary to avoid a causal link between a Guidelines-calculation error and the sentence imposed. It must be more than the above quote from the district court, because the opinion also mentions that "[d]uring the sentencing hearing, the district court stated that it had considered the non-enhancement range offered by the defense and would have imposed the same sentence independently of the Guidelines in light of the seriousness and recent nature of the statutory rape conviction." So an explanation stating simply that "this court would impose the same sentence even if it is wrong about the applicable Guidelines calculation" shouldn't cut it. The district court must still address the defendant's argument, and provide 3553-based reasons for the alternative non-Guidelines sentence.

And in keeping with a recent theme, the opinion offers another sign that the Fifth Circuit is getting stricter about plain error review. Although Ruiz argued in the district court that the correct advisory range was 10 to 16 months, he argued on appeal that it was actually 8 to 14 months due to an error in the criminal history calculation. As Ruiz didn't make the argument below, plain error review applied. Quoth the court:
First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel now disavows. Trial counsel’s misstatement essentially waives the argument for any other sentencing range in this appeal. It is well established that appellate courts may correct errors of law under a plain standard where trial counsel simply stood mute at sentencing and failed to object to the PSR. . . . This is because a “plain” error is one that the district court, in its oversight of sentencing, should have been alert to correct. Sentencing under the Guidelines is so complex, however, that the court should not be faulted for “plain” error when counsel’s affirmative statements allay any possible concern.

(emphasis added). Plus, no prejudice: "It is hardly likely that the court would have responded differently to a two month difference in range when it so clearly rejected the slightly higher range."

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Friday, April 10, 2009

Prior Conviction for Conduct In Furtherance of Drug Conspiracy Can Be Used to Enhance Sentence for Later Conviction In Same Conspiracy

United States v. Moody, No. 07-11222 (5th Cir. Apr. 6, 2009) (Smith, Southwick, Engelhardt)

Let's say a defendant gets convicted of a charge arising out of his participation in a drug conspiracy, serves his sentence, rejoins the same conspiracy, and gets convicted of conspiring to possess more than 50 grams of crack with the intent to distribute it. Under 21 U.S.C. § 841(b)(1)(A), does the prior conviction elevate the statutory minimum from 10 years to 20 years? Yes:
Our sister circuits have held that prior convictions for conduct in furtherance of a conspiracy can be used to enhance the statutory penalty for a later arrest under the same conspiracy. We agree and also conclude that an earlier conviction from the same conspiracy can be used to enhance mandatory minimums. A defendant should not benefit in sentencing because he continued in a criminal enterprise even after he was already arrested and convicted for the same enterprise. “[T]he purpose of the mandatory minimum enhancement is to target recidivism . . ., [and] it is more appropriate to focus on the degree of criminal activity that occurs after a defendant’s conviction for drug-related activity is final rather than when the conspiracy began.” United States v. Garcia, 32 F.3d 1017, 1019-20 (7th Cir. 1994) (citation omitted).

The opinion does not address the potential double jeopardy implications of this holding.

By the way, there's some inaccurate language about reasonableness review that you need to be aware of. Before addressing the § 841 enhancement issue, the opinion says this:
Sentencing guideline decisions are reviewed for abuse of discretion. See United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). “Though we review a sentence for abuse of discretion, we review the district court’s application of the guidelines de novo and its findings of fact at sentencing for clear error.” Klein, 543 F.3d at 213(citation omitted). “An error in applying the guidelines is a significant procedural error that constitutes an abuse of discretion.” Id. (citation omitted).

That's incorrect for a couple of reasons. First, reasonableness review has nothing to do with whether § 841 authorizes an enhanced sentence in these circumstances. That's simply a matter of statutory interpretation to be reviewed de novo (assuming the issue was preserved below, which it appears to have been). Second, it is an incorrect statement of how reasonablness review operates. Rowan did not say that sentencing guideline decisions are reviewed de novo; it said "We review District Court sentencing decisions for abuse of discretion. Gall, 128 S. Ct. at 597[,]" before going on to explain the bifurcated review process Gall established (and which another panel explained again recently in Delgado-Martinez). Moreover, it doesn't make sense to say that guideline decisions are reviewed for abuse of discretion and to then say that guideline application issues are reviewed de novo (for legal issues) and for clear error (for factual issues). So the first sentence should just say "sentencing decisions," rather than "sentencing guideline decisions."

Unfortunately, the court makes the same mistake a few paragraphs later when it addresses a guideline issue that the same defendant raised:
We review guideline decisions, whether inside or outside the guideline range, for abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 597 (2007). “In performing that review, we are ‘first [to] ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.’” United States v. Williams, 517 F.3d 801, 808 (5th Cir. 2008) (citing Gall, 128 S. Ct. at 597) (quotations and ellipses omitted). Findings of fact are reviewed for plain error; legal conclusions, de novo. See United States v. Villanueva, 408 F.3d 193, 202 (5th Cir. 2005).

Although the court cites Gall in this paragraph, rather than Rowan, it's still incorrect. Here's what Gall said:
Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.

Thus, abuse-of-discretion is the standard of review at step two when the court of appeals evaluates the substantive reasonableness of the sentence, it is not the standard for determining whether a district court committed procedural error in the Guidelines calculation.

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More On Reasonableness Review, Plain Error, Failures to Explain, Policy-Based Variances, and the Presumption of Reasonableness

United States v. Mondragon-Santiago, No. 07-41099 (5th Cir. Mar. 26, 2009) (King, Dennis, Elrod)

Our circuit's really been on a sentencing tear lately, issuing a lot of opinions explaning the ins-and-outs of reasonableness review. This one's especially dense, covering:
  • a failure to adequately explain a within-Guidelines sentence (which nevertheless doesn't merit vacation of the sentence on plain error review),
  • a circuit split over how to apply the third plain error prong in sentencing appeals,
  • district courts' ability to vary from the Guidelines based on policy disagreements, and
  • whether a guideline's lack of empircal basis deprives the resulting within-Guidleines sentence of a presumption of reasonableness.

Let's set the stage: Mondragon pleaded guilty to illegal reentry. A prior aggravated assault conviction earned him a 16-level COV bump, and several criminal history points, ultimately producing a Guidelines range of 46 to 57 months. Mondragon sought a below-Guidelines sentence, arguing 1) that the range overstated the seriousness of his criminal history and "exaggerated his propensity to commit crimes[,]" and 2) several facts relevant to § 3553(a) considerations also warranted a lower sentence.

The district court heard these arguments, engaged in a brief colloquy with defense counsel regarding Mondragon-Santiago’s failure to observe the conditions of his probation, and then allowed the defendant to speak for himself. After hearing Mondragon-Santiago state that he needed to be with his family, the district court asked him how he would accomplish that goal without entering the United States illegally. Mondragon-Sandiago responded that he would not be able to see his family if the government would not let him enter the country. The district court suggested that maybe his family could visit him, and then imposed a sentence of fifty months of imprisonment followed by three years of supervised release. Mondragon-Santiago’s attorney objected on the grounds that the sentence was “greater than necessary.” The district court overruled the objection. Mondragon-Santiago appealed.

Procedural Error: District Court's Failure to Adequately Explain Sentence Was Error, That Error Was Plain, But Mondragon Did Not Show That the Error Affected His Sentence

Mondragon argued that the district court's explanation of the sentence was inadequate. But what standard of review to apply? After the sentence was imposed, Mondragon objected that it was greater than necessary. But he did not object to the inadequate explanation of the sentence. Hence, plain error review of this claim of procedural error. (So remember folks: an objection that the sentence is greater than necessary will not preserve a claim of procedural error.)

Moving on to the first prong of plain error review, the court found the district court's explanation inadequate:

In Rita, Rodriguez, and Gomez-Herrera, the sentencing court acknowledged that § 3553(a) arguments had been made and devoted a few words to rejecting them. In Bonilla, the sentencing court referred to arguments previously made and to the report, thereby incorporating that reasoning into her decision, in which she explicitly noted her consideration of the sentencing factors. Unlike in these cases, the district court in this case did not give any reasons for its sentence beyond a bare recitation of the Guideline’s calculation. This despite the fact that Mondragon-Santiago raised arguments before the district court concerning his family, his work history, and his prior convictions, all of which are relevant considerations under § 3553(a). The district court did not mention Mondragon-Santiago’s arguments, and the court’s statement of reasons did not further illuminate its reasoning. The total explanation of the court was as follows: “This is an Offense Level 21, Criminal History Category 3 case with guideline provisions of . . . 46 to 57 months. The defendant is committed to the Bureau of Prisons for a term of 50 months. He will be on supervised release for a term of three years . . . .” The district court then overruled without explanation Mondragon-Santiago’s objection that the sentence was “greater than necessary.” We conclude that the district court failed to adequately explain its reasons for the sentence imposed as required by § 3553(c), which is error under Rita.

What's more, the error was plain because "the law requiring courts to explain sentences is clear." But did it affect Mondragon's substantial rights? The Mares standard, which the Fifth Circuit borrowed from the Eleventh, requires "the defendant to show that the error actually did make a difference [in the sentence]: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mondragon argued "that the district court’s error affected his substantial rights because it makes meaningful appellate review impossible." Although two circuits have adopted that argument when reviewing outside-the-Guidelines sentences, "our circuit precedents foreclose this argument so far as within-Guidelines sentences are concerned." Mondragon could not show that a better explanation would have changed his sentence, so the error did not affect his substantial rights.

(Note that the court highlights a possible circuit split on the third plain error prong. The Fifth Circuit requires the error to affect the outcome, but according to the court, "other circuits have relaxed this requirement in the sentencing context[.]" Query whether the Supreme Court's recent decision in Puckett has any effect on that split.)

Substantive Reasonableness: District Court May Vary from Illegal Reentry Guideline Based on Policy Disagreement, But That Guideline's Lack of Empirical Basis Doesn't Deprive It of a Presumption of Reasonableness

Mondragon also asked the court for a summary remand so that the district court could reconsider his sentence in light of Gall and Kimbrough, which were decided after he was sentenced. Those cases make clear that a court may disagree with the Guidelines based on policy, and also when the particular circumstances warrant it (even if the circumstances aren't extraordinary). Prior to Gall and Kimbrough, the Fifth Circuit had held both that a sentencing court may not vary from the Guidelines based on a factor that the Guidelines already take into account (Sanchez-Ramirez), and that a district court may not vary based on policy disagreements with the Guidelines (Tzep-Mejia, Rodriguez-Rodriguez). The court acknowledges that "[w]ith some justification, [Mondragon] claims that the district court was not free to accept his argument that the Guidelines double-counted his prior felony conviction because the court was not free to depart from the Guidelines for policy reasons." Nevertheless, the court concludes that Mondragon "fail[ed] to show how this influenced his case[,]" because nothing in the record indicated that the district court wanted to vary on policy grounds, but felt constrained by then-controlling precedents. "Thus, on this record, we refuse to convert a hypothesis into evidence of an abuse of discretion. Accordingly, Mondragon-Santiago is not entitled to relief on that basis."

(That's very questionable. It would make sense if the court were reviewing the substantive reasonableness of Mondragon's sentence for plain error, but it wasn't. Mondragon preserved his argument, and the court reviewed for abuse of discretion. If the district court was operating under what we now know were incorrect precedents, don't we have more than a merely hypothetical abuse of discretion, particularly given the district court's clearly erroneous failure to address the arguments Mondragon made for a lower sentence?)

Mondragon next argued that a sentence imposed under guideline §2L1.2 should not enjoy a presumption of reasonableness, because, just like the crack guideline at issue in Kimbrough, the illegal reentry guideline lacks an empircal foundation. The court, as it has done before, refused to read Kimbrough as having anything to do with the presumption of reasonableness: "Even if the Guidelines are not empirically-grounded, the rationale of Rita undergirding the presumption still holds true: by the time an appeals court reviews a Guidelines sentence, both the Sentencing Commission and the district court have fulfilled their congressional mandate to consider the § 3553(a) factors and have arrived at the same conclusion."

But significantly, the court recognized that Kimbrough is more than it's cracked up to be, as it "allow[s] district courts, in their discretion, to consider the policy decisions behind the Guidelines, including the presence or absence of empirical data, as part of their § 3553(a) analyses." Also, "[i]n appropriate cases, district courts certainly may disagree with the Guidelines for policy reasons and may adjust a sentence accordingly."

Of course, that brings up the elephant in the living room: what about varying based on fast-track disparity? The Fifth Circuit held that such variances are verboten in United States v. Gomez-Herrera. Look at it this way: Gomez-Herrera was decided after Kimbrough, but before Spears, in which the Supreme Court said, "Remember Kimbrough? We meant it." So in light of Spears and Mondragon-Sanchez, it may be time to start taking another run at the fast-track-disparity issue (not to mention the fact that there's a circuit split on it).

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Thursday, April 09, 2009

Has the Fifth Circuit's Approach to Plain Error Review Been Too Permissive?

United States v. Ellis, No. 07-11276 (5th Cir. Mar. 26, 2009) (Higginbotham, Elrod, Haynes)

We all know that plain error review is not your friend. Nevertheless, there have been more than a few cases, particularly in the COV arena, in which the Fifth Circuit has vacated sentences on a finding of plain error. But has the court been too quick to pull the plain error trigger? That's the view of the panel in Ellis. Which is all the more reason, as if any more was necessary, to properly preserve issues for appellate review.

This case involved a particularly thorny COV issue (and, to be fair, one that doesn't exactly leap off the pages of the PSR). Ellis, who was convicted of three counts of bank robbery, also had prior North Carolina convictions for common law robbery and attempted common law robbery. At sentencing, the district court found Ellis to be a career offender, based on a determination that the NC priors were COVs under guideline §4B1.2. Ellis did not object to that finding. (Or as the opinion puts it, "without any whisper of [an objection] uttered in the district court[,]" "[d]espite the fact that Ellis’ criminal history was the most salient factor in his sentence[.]" You can see where this is going.)

On appeal, Ellis conceded that NC common law robbery is a §4B1.2 COV, but argued that "in North Carolina, attempted robbery is not a crime of violence because state law defines that offense—specifically the 'overt act' requirement—more broadly than most other states." And for that reason, said Ellis, his attempt conviction fell outside all three prongs of the §4B1.2 COV definition.

The court analyzed the broader-than-generic-attempt issue at length, ultimately concluding that "the question is close as to whether Ellis’ North Carolina attempted common law robbery falls within the generic, contemporary meaning of attempt in this context[,]" and that "[t]he question as to whether the attempt falls under one of the other catchall provisions of § 4B1.2 is also close[.]" But the court declined to pursue the question any further than that:
Our narrative of the decisional path this court would have to traverse to resolve the merits of defendant’s objection to his sentence, an objection never made to the trial court, makes plain beyond peradventure that any error was not plain. As Ellis would have it, all of the close calls fall his way, and that is enough. Yet, the error said to be plain was never the subject of objection by able trial counsel. Putting aside its obscurity at trial, even now after full briefing and oral argument the error is not plain or obvious, indeed it is most uncertain whether there was any error at all.

Ellis, of course, pointed to a number of other COV plain-error reversals. But the court concluded that the issue here was far less clear than in those cases, whose "brief analyses turn[ed] on the elements of the crime sustaining the conviction or upon other straightforward applications of case law to correct what would be more promising candidates for clear error." The court also found support in the Supreme Court's recent explication of plain error review in Puckett v. United States, which "reaffirmed the principle that to satisfy the second prong of plain error inquiry, 'the legal error must be clear or obvious, rather than subject to reasonable debate.'"

And here's where the court really starts calling into question its recent approach to plain error:

This emphasis on the second prong of plain error analysis is particularly important given the development of this court’s case law on the third and fourth prongs of the plain error test in the sentencing context, where the court has been generous with remand, often finding that errors leading to substantial increases in sentences, even those errors not raised until appeal and thus subject to plain error review, merited remand, although we are not convinced that the case law on this point is settled or as categorical as language in some cases might make it seem. To our eyes, the lack of any clear error here means that Ellis’ sentence should stand.

Even if we were inclined, this is no occasion to offer metrics for the severity of an increase worked by decisions later found to have been error and such a departure as to summon our discretion to correct an injustice. Not every error that increases a sentence need be corrected by a call upon plain error doctrine. It bears emphasis that all defendants’ appeals challenging a sentence rest on the practical premise that the sentence should be less. The doctrine of plain error serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance, as opposed to a body charged to make recommendations to appellate courts. And even if an increase in a sentence be seen as inevitably “substantial” in one sense it does not inevitably affect the fairness, integrity, or public reputation of judicial process and proceedings. To conclude that not correcting the error claimed here casts doubt upon the fairness, integrity, or public reputation of the proceeding drains all content from the doctrine of plain error.

There's no way to tell right now whether the Fives will crack down on plain error review going forward. We've already seen the court requiring pretty specific arguments and objections in the district court just to avoid plain error review in the first place. So yes, the plain error bar will probably get higher. Better to avoid finding out for sure.

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Tuesday, April 07, 2009

Break Out Your Dancin' Boots: Fives Clarify That Reasonableness Review Is Two-Step Process: Review Procedure First, Then Substance

United States v. Delgado-Martinez, No. 08-50439 (5th Cir. Apr. 6, 2009) (Smith, Garza, Clement)

Have you found our circuit's pronouncements on post-Gall reasonableness review a little unclear? Then rejoice, for Delgado-Martinez explains cleanly and crisply just how sentences are reviewed these days. Here 'tis (with citations omitted for readability's sake):

Prior to the Supreme Court’s decision in Gall, as long as a sentence fell within the properly calculated range, we applied a “presumption of reasonableness” to the sentence regardless of any calculation error. Under this framework, we required the party complaining of the calculation error to rebut the presumption of reasonableness, and we applied a high degree of deference to the district court’s initial decision. The government contends that this framework survived Gall. We disagree.

Gall unequivocally established a bifurcated review process: At step one, the appellate court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range . . . .” If the sentence is determined to be “procedurally sound,” then the appellate court moves on to step two—reviewing the sentence for substantive reasonableness. Our pre-Gall analysis conflates these two distinct steps. By applying a presumption of reasonableness to sentences involving acknowledged procedural errors, our prior approach contravenes Gall’s directive to treat the two steps as sequential, dispositive inquiries. In most cases, a significant procedural error will prevent our review of the sentence for substantive reasonableness.

Nonetheless, not every procedural error will require outright reversal. While Gall itself is silent on this point, we agree with several of our sister circuits that certain “harmless” errors do not warrant reversal. A procedural error during sentencing is harmless if “the error did not affect the district court’s selection of the sentence imposed.” [The familiar Williams standard.] The burden of establishing that an error is harmless rests on the party seeking to uphold the sentence: The proponent of the sentence “must point to evidence in the record that will convince us that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error made in arriving at the defendant’s guideline range.”

In summary, regardless of whether the selected sentence happens to fall within the properly calculated Guidelines range, we adhere to the following review process: We first consider whether the district court committed a significant procedural error as defined by Gall. If the court has committed such an error, we must remand unless the proponent of the sentence establishes that the error “did not affect the district court’s selection of the sentence imposed.” If we are satisfied that the error was in fact harmless, we then (and only then) proceed to Gall’s second step and review the substantive reasonableness of the sentence imposed.

Let's take a gander at how that played out here. The district court incorrectly calculated the advisory Guidelines range---a "significant" procedural error per Gall---as 30 to 37 months. The correct range was 24 to 30 months. Delgado was sentenced to 30 months. The Government argued that the error was harmless because that sentence falls within both the correct and incorrect ranges. Not so, said the court:
[T]he crux of the harmless-error inquiry is whether the district court would have imposed the same sentence, not whether the district court could have imposed the same sentence. While the fact that the actual sentence falls within the properly calculated Guidelines range may at times be relevant to the harmless-error inquiry, it is not dispositive.

Here, the district court said a sentence at "the bottom of the guidelines" would be fair and reasonable, indicating that it "consciously selected from the low end of what it believed to be the available range." Nothing otherwise suggested that the district court would have imposed the same sentence had it been working with the correct range, so the Guideline calculation error was not harmless. Thus vacation and remand.


McNabb-Mallory Rule Survives, Subject to Six-Hour Safe Harbor Provision in 18 U.S.C. § 3501(c)

Corley v. United States, No. 07-10441 (U.S. Apr. 6, 2009)

Remember the McNabb-Mallory rule? That's the one that says a confession obtained during a period of unnecessary delay in presenting an arrestee to a magistrate is inadmissible, even if the confession was voluntary. Congress, evidently dissatisfied with both McNabb-Mallory and Miranda, later enacted 18 U.S.C. § 3501. Subsection (a), targeted at Miranda, declared that "a confesssion . . . shall be admissible in evidence if it is voluntarily given." Subsection (c), targeted at McNabb-Mallory, provides that a voluntary confession is not inadmissible solely because of a presentment delay if the confession was made within six hours of arrest, or even beyond six hours if the additional delay was "reasonable considering the means of transportation and the distance to be traveled to the nearest available . . . magistrate judge or other officer."

Which brings us to the question presented in Corley: "whether Congress intended § 3501(a) to sweep McNabb-Mallory's exclusionary rule aside entirely, or merely meant § 3501(c) to provide immunization to voluntary confessions given within six hours of a suspect's arrest." The answer, per Justice Souter for a five-Justice majority:

We hold that §3501 modified McNabb-Mallory without supplanting it. Under the rule as revised by §3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was "reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]"). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was "made voluntarily and . . . the weight to be given [it] is left to the jury." If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.

Why? Primarily because of what the Court dubs the "antisuperfluousness canon." If § 3501(a) really means that voluntariness is the sole criterion of admissibility of a confession, then subsection (c) would have no application whatsoever. That would run counter to "one of the most basic interpretive canons, that 'a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.'" (alterations and quotation marks omitted).

Indeed, the Government conceded as much. Which is why the Goverment "attempt[ed] to mitigate its problem by rewriting (c) into a clarifying, if not strictly necessary, provision:" providing a "bright-line rule" explaining that "delay alone does not make a confession involuntary unless the delay exceeds six hours." To which the Court replied: Congress didn't write the statute that way. The Government's argument assumes that "inadmissible" and "involuntary" mean essentially the same thing in the statute. But McNabb and Mallory make clear that they are two different concepts, and the Court presumes Congress was aware of the distinction.

The Government also argued that "reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory" creates a conflict between the two provisions. Not so. Even if there is a conflict, the more specific (c) would control over the more general (a). Also, reading (a) literally would itself creates conflicts between the statute and various rules of evidence, an absurd result.

In what may prove to be the most controversial portion of the opinion, the Court read § 3501's legislative history as "strongly favor[ing]" the view that (a) was intended to effectively overturn Miranda, and that (c) meant to address McNabb-Mallory. In particular, the Court cited "the debate on the Senate floor immediately before" the vote on the bill, and revisions made as the bill passed through the Senate. The Court even declared that "a sponsor's statement to the full Senate carries considerable weight[.]"

Next, the Court observed that the Government's reading of the statute would leave Rule 5's presentment requirement toothless, a result that fails to reflect the practical importance of presentment: informing the defendant of the charges against him and a number of important rights, offering him the opportunity to consult with counsel, and deciding whether to grant bail. And in a couple of paragraphs that are clearly about more than just this case, the Court said:

In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to. No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. "[C]ustodial police interrogation, by its very nature, isolates and pressures the individual," and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed.

Justice Frankfurter’s point in McNabb is as fresh as ever: "The history of liberty has largely been the history ofobservance of procedural safeguards." McNabb-Mallory is one of them, and neither the text nor the history of §3501 makes out a case that Congress meant to do away with it.

(cites not presented).

Finally, the Government argued that FRE 402---declaring that relevant evidence is admissible---eliminated whatever might have remained of McNabb-Mallory after the enactment of § 3501. After chastizing the Government for not raising this argument below, the Court declared it without merit. Not only do the Advisory Committee's Notes to Rule 402 "expressly identif[y] McNabb-Mallory as a statutorily authorized rule that would survive Rule 402[,]" but "the Government has previously conceded before this Court that Rule 402 preserved McNabb-Mallory. . . . The Government was right the first time, and it would be bizarre to hold that Congress adopted Rule 402 with a purpose exactly opposite to what the Advisory Committee Notes said the rule would do."

Justice Alito, joined by the Chief and Justices Scalia and Thomas, dissented. In his view, the threshold question is "'whether the statutory text is plain and unambiguous,' and 'if it is, we must apply the statute according to its terms.'" (clutter eliminated). Section 3501(a) is unambiguous, so that's that. As for the antisuperfluousness canon,
Canons of interpretation "are quite often useful in close cases, or when statutory language is ambiguous. But we have observed before that such ‘interpretative canon[s are] not a license for the judiciary to rewrite language enacted by the legislature.’" Like other canons, the antisuperfluousness canon is merely an interpretive aid, not an absolute rule. There are times when Congress enacts provisions that are superfluous, and this may be such an instance.

(superfluous cites omitted). Plus, subsection (c) is not superfluous if it is read to mean "that a confession is admissible if it is given within six hours of arrest and it is otherwise voluntary—that is, if there is no basis other than prepresentment delay for concluding that the confession was coerced. Read in this way, §3501(c) is not superfluous."

Moreover, the specific-over-general canon doesn't apply here because there is no conflict between (a) and (c).
What the Court identifies is not a conflict between two statutory provisions but a conflict between the express language of one provision (§3501(a)) and the "negative implication" that the Court draws from another (§3501(c)). Because §3501(c)precludes the suppression of a voluntary confession based solely on a delay of less than six hours, the Court infers that Congress must have contemplated that a voluntary confession could be suppressed based solely on a delay of more than six hours. The Court cites no authority for a canon of interpretation that favors a "negative implication" of this sort over clear and express statutory language.

As for the majority's concern of having a right without a remedy, 1) there's no reason to exclude "voluntary confessions made during a period of excessive prepresentment delay[,]" 2) the Court has never held that the Fourth Amendment's prompt presentment requirement "is backed by an automatic exclusionary sanction" (ominously citing Hudson v. Michigan), and 3) "the McNabb-Mallory rule provides no scation for excessive prepresentment delay in those instances in which no confession is sought or obtained." Moreover, it's not clear what purpose McNabb-Mallory serves in a post-Miranda world, especially since an arrestee can waive both his Miranda rights and his right to prompt presentment. And in fact, "[m]ore than a few courts of appeals[,]" including, apparently, the Fifth, "have gone so far as to hold tha ta waiver of Miranda rights also constitutes a waiver under McNabb-Mallory[,]" although the dissent dodges the question of whether those decisions are correct.

Turning to legislative history, the dissent finds some to support its side. The Senate Report on the bill "clearly says that §3501(a) was meant to reinstate the traditional rule that a confession should be excluded only if involuntary, a setp that obviously has consequences beyond the elimination of Miranda." As for the floor statements on which the majority relies,
there is no evidence that a majority of the House and Senate shared [those views], and any Member who took a few moments to read subsections (a) and (c) must readily have understoodthat subsection (a) would wipe away all non-constitutionally based rules barring the admission of voluntary confessions, not just Miranda, and that subsection (c) did not authorize the suppression of any voluntary confessions. The Court unjustifiably attributes to a majority of the House and Senate a mistake that, the legislative history suggests, may have been made by only a few.

Finally, the majority's suggestion that the Government's reading of the statute would require admission of statements otherwise excluded by the rules of evidence doesn't hold up, as there's no reason to think Congress intended such a result, and the statute doesn't supersede the Federal Rules of Evidence.

Like the recent line of cases interpreting the ACCA, the dueling opinions here in Corley show just how malleable the canons of statutory interpretation can be. And even though the vote in this case broke down along the simplistic conservative-liberal lines with Kennedy in the middle, if one were to read the two opinions without knowing who wrote or joined either one, neither the lineup nor the tally would be obvious, just like the ACCA cases.

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