Appellate Law & Practice

CA1: Apprendi pipeline case sees briefly sees light in IAAC context

Martinez-Medina v. US, No. 06-1594 (unpublished).  This affirms a denial of a motion to vacate a sentence under 28 U.S.C. § 2255.  The grounds asserted are whether, in an “Apprendi Pipeline” case, the defendant was given ineffective assistance of counsel when she “misconstrued” Apprendi and conceded (to the First Circuit) that he would be subject to a higher sentence.  But the First says that in the underlying case, the higher sentence would have been warranted because the indictment did state enough (i.e. that there were “multi-kilograms” of cocaine in drug conpsiracy.)  Likewise, the First says that it had found in appeals of his codefendant’s cases that a failure of the jury to find drug quantity was harmless error.  Therefore, the statutory maximum was life, and there were no real Apprendi claims.  Therefore, appellate counsel’s concession didn’t make a difference.

The First ends by saying that 28 U.S.C. § 2255 motions can’t be used to make Booker retroactive.

CA1: First remands for a real resentencing when mandate not followed

US v. Pena-Gonzalez, No. 05-1402.  This case was first before the court in United States v. Rodríguez-Marrero, 390 F.3d 1, 32 (1st Cir. 2004) when it remanded for re-sentencing.  The District Court didn’t hold a sentencing hearing, and instead it “trimmed the original judgment without sentencing him anew” as the government told it to.  (This matters because Booker might allow the defendant to escape a life sentence).

But, the First resolves the issue on the “law of the case” doctrine (the “mandate rule”) part of it, and holds that the District Court didn’t really take the letter and spirit of the mandate seriously, and the District Court should have read the mandate “like a statute.” 

The First then points out that the prosecution – as much as the District Court – is at fault, because it seems to have tricked the court into thinking that it had made a finding (that the crime was in furtherance of a drug conspiracy) that would subject him to life sentence. The First says that this trick deprived the defendant of his ability to allocute at sentencing which is “scared.”

CA1: what hath Gall wrought

US v. Tom, No. 07-1074 (unpublished).  What do you do when the government says that a sentence for insider trading is too lenient, but the Supremes GVR in light of Gall?  First you ask for briefing, and then:

remand the sentence for reconsideration in light of the concerns we expressed in our prior decision, the Supreme Court's elucidation of district court sentencing procedure in Gall, and the issues the parties have raised in their briefs to us.

CA1: at sentencing, restitution amounts are different than intended loss amounts

US v. Innarelli, No. 06-2400. After pleading guilty to a “land-flipping” scheme (which seems to be more like a mortgage scheme) that was perpetrated by, amongst other people, a lawyer.  But, the First clarifies some areas of the guidelines that I thought were clear.

Where one starts with a base level of six under  U.S.S.G. § 2B1.1 (a)(2), one goes to the table in that guideline.  2B1.1 cmt. n.3(A) says that for purposes of the guidelines, this should be the greater of “intended loss” (or “the objectively reasonable expectation of a person in his position at the time he perpetrated the fraud, not on his subjective intentions or hopes”) and “actual loss.”  But this is not how to calculate restitution amounts under the Mandatory Victims Restitution Act ("MVRA") 18 U.S.C. § 3663A(a), (c).  The purpose of restitution, the First notes, is not to punish, but to make victims whole.  Their emotional hurt and stuff like that doesn’t factor into it.  So, it gets remanded for that recalculation. 

On top of that, the sentence was reasonable.

CA1: another “in furtherance” affirmance ending with an opaque sentencing discussion

US v. Rosado, No. 07-1465 (unpublished) affirms a conviction for distributing “cocaine base.”  The First turns back a sufficiency challenge saying that of course a jury could infer that someone knew how much drugs were in a car.  It also concludes that of course a jury could conclude that someone that resists arrest is as knowledge of guilt (as opposed to a legitimate fear of being framed). And, of course, the jury could infer that “Eight Balls” indicated distributive intent.

But then it strays into bending territory.  The First says that because“the evidence showed that both guns were loaded and located in close proximity to the defendant and to the drugs and therefore could easily have been used to resist any effort, by the police or others” that a jury could conclude that the guns were possessed “in furtherance” of his drug activities.  I mean, what gives, why does the First even bother saying that “mere presence” of a gun isn’t “in furtherance” of a crime, but then it always concludes that all guns are “in furtherance” of drug business.

Likewise, objections to sentencing (based on what seems to be judicial notice of what crack looks like) are turned away.  A reasonableness challenge fails, as his long sentence was still below the guidelines.  It concludes by saying “To the extent that defendant quibbles with the weight afforded to the guidelines as opposed to other factors, such balancing, absent abuse of its discretion, is for the district court.”  So does that mean that weight afforded the guidelines is now a matter of “discretion” as opposed to “reasonableness.”?

CA1: Big case on post-Gall sentencing procedure and substance

US v. Martin, No. 06-1983.  This case begins with “This appeal represents our first full-fledged application of the teachings of Gall.  At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda.”  The defendant, in this case sought to be sentenced at the statutory minimum for a career offender under 21 U.S.C. § 841(b)(1)(B), which would be ten years.  The defendant got twelve years.  The government appeals.  A year later, the Judge wrote a post-sentencing memorandum.   

The First ends by saying it does not like really late-filed sentencing opinions – that were filed after the case was briefed on appeal.  The First says: 1) 18 U.S.C. § 3553(c) requires that the reasons for the sentence be stated in open court; 2) after the notice of appeal the District Court lacked jurisdiction; and 3) when the district court files a tardy sentencing memorandum after an appeal has been taken, it runs a risk of creating an unwelcome appearance of partisanship.  But, still there might be some cases where a late-filed memorandum might be good. 

After the appeal, Gall v. U.S., No. 06-7949 (Dec. 10, 2007)  came down.  The First sees Gall as adopting its way of sentencing, “A sentencing determination should begin with the calculation of the particular defendant's GSR. As a final step in arriving at a defendant's GSR, the district court must assess the appropriateness vel non of any departures.”  On appeal, “Once the appellate court has satisfied itself that the sentence is procedurally sound, it must proceed, under the same abuse of discretion rubric, to review the substantive reasonableness of the sentence, taking into account the totality of the circumstances.”

CA1: en banc court holds that 32(h) notice at sentencing is required sometimes based on vague yet easy-to-understand standard

US v. Vega-Santiago,  06-1558 (en banc).  Panel Decision here.  Our coverage here.  The First granted rehearing to determine whether  “the district judge must provide "notice" to litigants before imposing a sentence outside the guideline range--a requirement that the panel found satisfied in this case.”  The First says that notice is required under Federal Rule of Criminal Procedure 32(h)“when proposing to adopt a variant sentence relying on some ground or factor that would unfairly surprise competent and reasonably prepared counsel, a judge must either provide advance notice or, on request, grant a continuance in order to accommodate a reasonable desire for more evidence or further research.”  Oh, great. a non-decision.  Unfair surprise is unfair surprise.

See, the First says that 32(h) codified Burns v. United States, 501 U.S. 129 (1991), and since Booker is a judicial creation, Burns shouldn’t be automatically applied to variances.  Moreover, in post-Booker sentencing, the process is a lot more “fluid” than before, but competent counsel should be able to tell when a variance is at issue.  So, there won’t be too many issues of unfair surprise.  Moreover, in this case, any additional mitigating evidence would have been relevant regardless of this variance.  (I think the First might be missing the fact that if a variance is on the table, different strategic concerns come into play.)

If you list Klingon as a second language on your resume, you can read on.
 

CA1: supervised release revocation doesn’t get Booker or Blakely protection

US v. Eirby, No. 07-1062.  As usual, Selya uses big words when sending someone to a hole.  This is a supervised-release revocation case based on a guilty plea in state court.  The judge “imposing an additional thirty-three months of immurement.”  Apparently “jail time” or “incarceration” is not specific enough. 

Selya says that “It is settled law that once a court imposes a fixed sentence in a criminal case, subsequent proceedings in regard to that sentence are not subject to the full panoply of Sixth Amendment protections.”  I don’t know if it is “well-settled” or not.  If it was so well-settled, he Selya could have cited to one post-Blakely (or even post-Apprendi) from the Supreme Court saying that.  But, he didn’t.  Instead, he says that United States v. Work, 409 F.3d 484 (1st Cir. 2005) (our coverage here) applies.

CA1: another drug seaman appeal sinks

US v. de la Cruz, No. 05-2210 (unpublished).  This case summarily affirms yet another drug “seaman” case.  This guy got was denied a downward adjustment for being a “minor participant” but got a safety valve adjustment.

Even though it is unpublished, there are some weighty issues. 

The first one shows the difference between a change of plea hearing and an actual guilty plea, namely and concludes that “Even assuming that at the time of the initial change-of-plea hearing in October of 2004 there existed an "informal agreement" that the defendant would be permitted to plead guilty without waiving the right to appeal from the denial of the suppression motion, he does not argue that the actual plea, entered three months later, was pursuant to such an agreement.”

Since the defendant was charged with “charged with possession with intent to distribute and with conspiring to import drugs” as opposed to distribution, the First says that determining his role must be assessed not with regard to the role of the buyers and sellers, but with regard to the much more modest elements of “possession with intent.”

A challenge to a failure to get“downward departure on the ground of duress, as was granted to several of his co-defendants” is waived because it wasn’t raised below!

A Booker error argument – that the facts needed to go to the jury – is summarily rejected.

CA1: First rejects just about all challenges to fast-track program disparities

US v. Andujar-Arais,  06-1189.  Oh boy.  In this sentencing (for illegal re-entry) appeal, the First Circuit holds that the “Fast Track” program for quick guilty pleas doesn’t create the kind of disparities that a judge address under 18 U.S.C. § 3553(a)(6).  Moreover, the existence of the program in some districts doesn’t violate his 14th amendment equal protection rights.

The defendant apparently just wants a re-sentencing with the District Court being told to consider the disparities.  But the First isn’t going to give it to him.  (“In essence, he asks us to find that district courts must, as a matter of law, account for such disparities.”) The First finds that the statute authorizing the fast-track program is facially constitutional.  It rejects an “as-applied” challenge (based on statistical evidence), and then looks at the Feeney Amendment (which, if I recall correctly is what gave teeth to argument that won the day in Booker), and concludes that the DOJ can allocate its resources however it wants.  Moreover, “charge-bargaining” programs are also facially okay and constitutional as applied.

And, in a gentlemanly way (without being a jerk about it like some Circuits I could mention), the First rejects a “Almendarez-Torres is no longer good law” argument.

The opinion quotes an article by Rebecca K. Schendel Norris as background about fast-track programs.