Thursday, June 23, 2011

SCOTUS: Court May Not Impose or Lengthen Prison Term to Promote Defendant's Rehabilitation

Tapia v. United States, No. 10-5400 (U.S. June 16, 2011)

When imposing sentence, 18 U.S.C. § 3553(a)(2) requires a court to consider certain factors, including rehabilitative factors: the need "to provide the defendant with needed educational or vocational training, medical care, or other appropriate correctional treatment in the most effective manner." But a separate statute, § 3582(a), further provides that, "[t]he court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, 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 promiting correction and rehabilitation." (emphasis added).

These superfically contradictory commands led to a circuit split over the question presented in Tapia: "[W]hether the Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant's rehabilitation."

An easy question, as it turns out. Writing for a unanimous Court, Justice Kagan answered that question "no." She began by observing that, "Our consideration of Tapia's claim starts with the text of 18 U.S.C. § 3582(a)—and given the clarity of that provision's language, could end there as well." The statute is plain: "[W]hat Congress said was that when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation—because imprisonment is not an appropriate means of pursuing that goal."

Then there's the context: a separate provision in the Sentencing Reform Act, 28 U.S.C. § 994(k), "directs the Sentencing Commission to ensure that the Guidelines 'reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.'" The take-away? "Each actor at each stage in the sentencing process receives the same message: Do not think about prison as a way to rehabilitate the offender." Moreover, "when Congress wanted sentencing courts to take account of rehabilitative needs, it gave courts the authority to direct appropriate treatment for offenders[,]" as in the case of probation and supervised release. See 18 U.S.C. §§ 3562(a), 3583(e). "If Congress had similarly meant to allow courts to base prison terms on offenders' rehabilitative needs, it would have given courts the capacity to ensure that offenders participate in prison correctional programs. But in fact, courts do not have this authority." Only BOP can do that.

Finally, there's the legislative history. "[T]he key senate report concerning the SRA" reflects Congress' skepticism "that 'rehabilitation can be induced reliably in a prison setting.'"

Which brings us to the Court's holding: "[A] court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation." (Justice Sotomayor, joined by Justice Alito, wrote separately "to note my skepticism that the District Judge violated this proscription in this case." She otherwise joined the majority's opinion in full.)

Where was the Fifth Circuit on the split, you ask? In United States v. Giddings, the Fives said that, "[t]he legislative history of the Comprehensive Crime Control Act of 1984 . . . indicates that that the prohibition against considering rehabilitative needs relates to the decision of whether to impose imprisonment, not to the length of the term of imprisonment." 37 F.3d 1091, 1096 (1994). Tapia, of course, abrogates that line of precedent.


Thursday, June 16, 2011

An Important Lesson On Error Preservation, An Open Miranda Question, and Knowledge of Interstate Movement in FIP Cases

United States v. Potts, No. 10-10257 (5th Cir. June 15, 2011) (Smith, DeMoss, Owen)

A general rule of preserving error at trial (which I'm shamelessly stealing from someone else) is to keep asking for things until the court says no. Failure to do so, as Potts illustrates, lands you in the dark realm of plain error review.  Not a good place to be when, as in Potts, the question of whether there was error at all concerns an issue that remains open in the Fifth Circuit. Oh, and one more thing: to be guilty of being a felon in possession of a firearm, need a defendant know that the firearm had moved in interstate commerce? Important issues all.

So what happened here? Potts was stopped by Officer James (for reasons that aren't at all clear to me from the opinion). Thence,
James instructed Potts to park the car and shut off the engine. Potts began to reach under his seat, at which point James ordered Potts to show his hands. Potts did not immediately comply with that command and instead continued to reach under the seat. James approached the vehicle and ordered Potts to exit the car. Potts complied, and James was able to see that a firearm was protruding from under Potts’s seat.
James examined the firearm, handcuffed Potts, and sat him down on the street curb. James then asked Potts whether the gun belonged to him, but Potts did not respond. A search was conducted of the car, which yielded two additional firearms and some ammunition. Potts was then arrested.
(emphasis added). "At trial, the prosecution elicited testimony from James regarding Potts’s silence after being asked who owned the pistol." Potts objected to the testimony as a Fifth Amendment violation. The court did not rule on the objection, but suggested that it could instruct the jury that Potts had no obligation to answer the officer's question and that it's not against the law to do so. Potts agreed to the instruction, which the court then gave. "Potts did not reassert his objection to the testimony, object to the instruction, or move for a mistrial." When the prosecutor brought up Potts' silence again in closing argument, "Potts objected, not on any Fifth Amendment ground but on the ground that the prosecution was attempting to shift the burden of proof." The jury found Potts guilty.
On appeal, Potts argued first "that the government violated his Fifth Amendment right against self-incrimination by referencing, during trial, his silence in response to police questioning[.]" The court reviewed for plain error, because an objection alone was not sufficient to preserve the issue.
In Salinas, 480 F.3d at 755, we held that plain-error review was appropriate for a Fifth Amendment claim even though defense counsel “timely objected to each of the prosecutor’s references to [the defendant’s] post-arrest silence,” because “the trial court sustained all of those objections, and the trial court’s instructions to the jury made it clear that the jury was not to consider any of the challenged remarks.” Furthermore, we remarked that the defense “never took exception to the district court’s handling of his objections and, significantly, . . . never requested that the district court declare a mistrial.” Id. at 755-56. Plain error review was appropriate, because the defendant “effectively received all of the relief that he requested from the district court.” Id. at 756.
Salinas is not directly controlling, because the court did not explicitly sustain Potts’s objections, but the principles of Salinas inform us. As with the defendant in Salinas, Potts never raised any concerns with how the district court chose to handle his objection, and Potts explicitly agreed to the court’s proffered curative statement.
(emphasis added). Potts argued that the district court had implicitly overruled his objection, but the court of appeals didn't buy it:
Potts objected to testimony regarding his silence. The district court then offered a curative instruction, which Potts accepted. By accepting the instruction, Potts failed to obtain a definitive ruling on his objection—there was no implicit overruling, but rather no ruling at all. Following that failure to obtain a ruling, Potts accepted the court’s curative instruction without objection, thus failing to preserve error.
And that was a problem. Potts couldn't satisfy the second prong of plain-error review—that any error be clear or obvious— because the Fifth Circuit "has yet to address conclusively whether the use of pre-Miranda silence as substantive evidence of guilt is a Fifth Amendment violation."
On to Potts' next argument, the travelling gun one:
Potts contends that the government was required to prove, but did not, that he knew the firearm had traveled in interstate commerce. Potts was convicted pursuant to 18 U.S.C. § 922(g)(1)and sentenced pursuant to 18 U.S.C. § 924(a)(2). He argues that the word “knowingly” in § 924(a)(2) requires the government to prove that every element in § 922(g)(1), including that the firearm had traveled in interstate commerce, was known by the defendant.
That argument, however, is foreclosed by United States v. Rose, 587 F.3d 695 (5th Cir. 2009). There, the defendant raised the same argument as Potts does here, but we rejected it because the defendant had not been sentenced under § 924(a)(2). Id. at 705-06. Rather, he was sentenced under § 924(e)(1), which does not contain a “knowingly” requirement. We went on, however, to state that “[e]ven assuming arguendo that the ‘knowingly’ requirement in § 924(a)(2) applied throughout that section, there would be no corresponding impact on the elements of a crime listed in § 922(g)(1).” Id. at 706 n.9. That statement in Rose was not mere dictum; rather, it was an alternate holding that carries the force of precedent. Thus, Potts’s claim fails.

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Tuesday, June 14, 2011

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.

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