Tuesday, February 28, 2006

Miranda Does Not Apply at Sentencing

US v. Nichols: Nichols was charged with bank robbery, armed bank robbery, and possession of a firearm during a crime of violence after he robbed a bank. During the robbery, he threatened to shoot the teller, but nobody saw a gun. Nichols and his father made arrangements to turn himself in to the police shortly after the robbery, at which time Nichols said he wanted an attorney. He reiterated that request when arrested. Nevertheless, the police secured a Miranda waiver and a statement from Nichols, in which he admitted possessing a gun during the robbery. Nichols motion to suppress the statement was granted, leading the Government to drop the armed robbery and firearm counts and Nichols to plead guilty only to bank robbery. At sentencing, the district court refused to consider Nichols's statement in calculating the Guidelines, resulting in a 46-month sentence.

The Government appealed, arguing that Miranda and its exclusionary rule do not apply in sentencing proceedings. The Fourth Circuit agreed and vacated the sentence. After reviewing the goals of Miranda and the purposes of suppression (deterrence of police misconduct), the court concluded that that purpose was not advanced by suppression of the statement at sentencing. Suppression also would run headlong into the traditional prerogative of the district court to consider any reliable evidence at sentencing. A statement might be suppressed at sentencing, the court suggested, if there was evidence that the Government violated Miranda in order to increase the defendant's sentence or if the statement was actually involuntarily given.

Friday, February 24, 2006

District Courts Cannot Categorically Reject 100:1 Crack/Powder Ratio

US v. Eura: Eura was convicted by a jury of possession with intent to distribute more than five grams of crack and possession of a firearm during a drug trafficking offense. The calculations in the PSR produced an advisory Guideline range of 78 to 97 months on the crack count. At sentencing, the district court concluded that this "is not the kind of case that the guideline does not provide -- the crack guideline does not provide an appropriate, fair, and just punishment, and so the Court will not impose a sentence within the guidelines in this case." The court then imposed the mandatory minimum sentence of 60 months on the crack count, consecutively with the mandatory 60-month sentence on the gun count. The Government appealed the sentence.*

The court vacated Eura's sentence, due to what it saw as the district court's wholesale rejection of the 100-to-1 crack/powder ratio and the advisory Guideline range resulting from it. Specifically, the court noted that:

we are of the opinion that the district court did not adequately and properly consider 18 USC 3553(a)(6) in sentencing Eura. Had the court done so, it most assuredly would have concluded that it could not rely on the Sentencing Commission's recommendations to narrow the 100:1 ratio in imposing sentence.
Allowing district courts to substitute their own ratios for the Guidelines's would result in unwarranted sentencing disparities, the court concluded (citing to the number of district courts that had applied various ratios post-Booker). The court did not deal with the argument that the 100:1 ratio itself causes unwarranted disparities and may, therefore, violate 3553(a)(6), as well. The court did not foreclose the possibility of variances from the Guideline ranges produced by the 100:1 ratio:

We certainly envision instances in which some of the 3553(a) factors will warrant a variance from the advisory sentencing range in a crack cocaine case. However, a sentencing court must identify the individual aspects of the defendant's case that fit within the factors listed in 18 USC 3553(a) and, in reliance on those findings, impose a non-Guidelines sentence that is reasonable.
(emphasis in original). The Sentencing Commission's "recommendations," however, "cannot be used as a basis to vary from the advisory sentencing range." Because the court in this case "did not mention any facts concerning Eura as an individual that would have warranted a sentence outside the sentencing range," his sentence was unreasonable. As with Moreland, the court vacates the sentence and remands "For resentence at the low end of the sentencing range."

Judge Michael concurred in the judgment and opinion, but wrote separately to explain the value of the Sentencing Commission's findings regarding the 100:1 ratio. He specifically endorses using those findings in support of arguments that specific individuals in unique cases should receive below the Guidelines sentences.

* Eura appealed the denial of a suppression motion prior to trial. Officers search his home pursuant to a warrant, finding several guns but no drugs. An "unspecified woman at the residence" told the officers that two cars parked out front belong to Eura. A dog sniff uncovered crack and ecstasy in the center console of one of the cars. Eura argued that the officers should not have been allowed to do the dog sniff after coming up empty on the search of the house. The Fourth Circuit rejected that argument, without (somewhat staggeringly) ever mentioning Caballes.

Doug Berman's thoughts on Eura can be found here.

Wednesday, February 22, 2006

20-year Variance from Career Offender Guideline Not Reasonable

US v. Moreland: Moreland was convicted by a jury of two counts of possession of cocaine base with intent to distribute.* The PSR correctly showed that Moreland was a career offender and subject to an advisory Guideline range of 360 months to life in prison. The Government also filed a section 851 information, triggering a 10-year mandatory minimum. Nonetheless, the district court varied from that range and imposed a sentence of 120 months -- 20 years less than the advisory Guideline minimum and equal to the statutory mandatory minimum.

Moreland's two prior convictions (which triggered the career offender sentence) were (1) for delivering a marijuana cigarette to a prison inmate and (2) possessing with intent to distribute 6.92 grams of crack. Examining the "nature and circumstances of the offense and . . . the defendant," the district court concluded that Moreland's offenses of conviction involved a relatively small amount of crack (7.85g), did not involve violence, and did not involve a firearm. Looking at the prior convictions, the district court came to the same conclusion. The district court concluded that Moreland "has the ability and potential to become a productive member of society." Turning to the 3553(a)(2) factors, the district court concluded that the career offender classification swept too broadly and that Moreland's offenses "hardly constitute the type and pattern of offenses that would indicate that Mr. Moreland has made a career out of drug trafficking."

The Fourth Circuit reversed, employing a two-step analysis: (1) was it reasonable for the district court to vary from the advisory Guideline range? and (2) if so, was the amount of the variance reasonable?

To the first question, the court answered "yes," a variance in this case was reasonable (the Government apparently admitted as much at oral argument).

To the second question, however, the court answered "no." The court noted that "to the extent that the sentence imposed by the district court rests on a rejection of congressional policy with respect to repeat drug offenders, it is subject to reversal on that basis alone." However, even assuming that no "outright rejection occurred," the variance was still too large to be reasonable. While the court admitted that Moreland appears to be a small-time dealer, he is "nonetheless, a repeat drug offender who appears to have come to West Virginia for the sole purpose of selling cocaine base." The court also discounted Moreland's "desultory pursuit of his education and his spotty employment history."

The court concludes,
[i]f Moreland's circumstances are so compelling as to warrant a two-thirds reduction from the bottom of the advisory guideline range, it is difficult to imagine any meaningful limit on the discretion of the district court.
The court vacated Moreland's sentence and remanded the case for the imposition sentence of "no less than 20 years imprisonment."

* Moreland also made three challenges to his conviction - (1) that police lacked consent to enter the home in which he was arrested, (2) that the district court erred in admitted the drugs bought and recovered from Moreland because of chain of custody issues, and (3) that the district court should have struck the testimony of the Government's expert witness as to drug type and weight - all of which were quickly rejected by the court.

Monday, February 06, 2006

Guideline Sentence = Presumptively Reasonable

US v. Green: Finally, nearly a year after Booker, the Fourth Circuit decides to discuss exactly what "reasonableness" means in the context of sentencing appeals. Sort of.

The bottom line is this:
  • To sentence a defendant, the district court must: (1) properly calculate the Guideline sentencing range; (2) determine whether a sentence "within that range and within statutory limits serves the factors set forth in [18 USC] 3553(a) and, if not, select a sentence that does serve those factors; (3) implement the mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a non-Guideline sentence is appropriate.
  • The Fourth Circuit joins several others (see Doug Berman's discussion here) in holding that a sentence within the advisory Guideline range is "presumptively reasonable." That doesn't mean that a non-Guideline sentence is therefore "ipso facto unreasonable."
  • A sentence will be unreasonable if it is (a) within the advisory Guideline range but there was an error in applying or construing the Guidelines, or (b) if the sentence is imposed outside of the Guideline range "and the district court provides an inadequate statement of reasons or relies on improper factors in departing from the Guidelines' recommendation."
  • Finally, when reviewing an outside the Guidelines sentence to determine "whether a sentence . . . serves the purpose of sentence established by Congress in [18 USC 3553(a), 28 USC 991 (a), and 28 USC 994], we defer to the district court's sentencing judgments, correcting only for an abuse of discretion.
Having said all that, the court is able to deal with the sentence in this case simply by concluding that the Guidelines were improperly applied. Green pleaded guilty to conspiracy to distribute more than 50 grams of crack. The PSR showed, and the parties agreed, that Green was a Career Offender. Nevertheless, the district court concluded that while Green "technically fit the definition of Career Offender, the label "did not fit Mr. Green." On the request of defense counsel, the district court calculated the Guideline range without the Career Offender enhancement, then reduced the offense level for acceptance of responsibility and substantial assistance. Green received 87 months in prison (down from a Career Offender range of 262-327 months).

The Fourth Circuit vacated that sentence, finding it unreasonable because it was based on an improper application of the Guidelines. Specifically, the court found that the district court erred in several ways to conclude that the Career Offender label did not fit Green. The court did not reach the issue of whether an 87-month sentence was reasonable under the 3553(a) factors or whether a sentence within the Career Offender-fueled Guideline range would have been reasonable.

Doug Bermans's thoughts on Green can be read here.