Category Archives: Supreme Court

U.S. Sentencing Guidelines: Eligibility for Lowered Sentencing Range

Published By Stephen Preziosi

Koons v. United States

U.S. Supreme Court

No. 17-5716

Decided June 4, 2018

Issue:

Whether petitioners qualify for a sentence reduction under § 3582(c)(2) where the sentences were “based on” mandatory minimums and not the Sentencing Guidelines ranges.

Holding:

The Supreme Court held that petitioners do not qualify for sentence reductions under § 3582(c)(2) because their sentences were not “based on” the lowered Guidelines ranges but, rather, they were based on their mandatory minimums and on their “substantial assistance” to the Government.

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Facts:

Five petitioners pled guilty to drug conspiracy charges that subjected them to mandatory minimum sentences under 21 U.S.C. § 841(b)(1). When the District Court calculated their advisory Sentencing Guidelines ranges, the top end of the ranges fell below the mandatory minimums. The court determined that the mandatory minimums superseded the Guidelines ranges and, thus the Guidelines ranges were discarded. However, because of the petitioners’ cooperation with the Government, the court departed downward from the mandatory minimums under 18 U.S.C. §3553(e).

The Sentencing Commission amended the Guidelines several years after the petitioners were sentenced. Among those amendments included a reduction of base offense levels for the same drug offenses for which petitioners were convicted. The petitioners sought sentence reductions under §3582(c)(2), which allows a defendant’s sentence to be reduced if that sentence was imposed based on a sentencing range that was later lowered by the Sentencing Commission. The lower courts held that the petitioners were not eligible for sentence reductions because they failed to demonstrate that their sentences were “based on” the lowered Guideline ranges.

Legal Analysis:

The primary function of the Sentencing Guidelines is to recommend to the judge an appropriate sentencing range by taking into account the seriousness of the offense and the defendant’s criminal history. However, these Guidelines are only advisory and can even be overridden in some cases. For instance, if there is a “mandatory minimum” sentence that must be imposed, the judge must consider the required minimum sentence over the sentencing range provided by the Guidelines where a conflict exists. Here, because the top end of the Guidelines range fell below the mandatory minimum sentences, the district court concluded that the statutorily required minimums superseded the Guidelines ranges for each petitioner, and the advisory ranges were discarded.

For a defendant to become eligible for a sentence within the lowered Guidelines range, the sentence must have been “based on” that lowed advisory range. Quoting Hughes v. United States, ante, at 14, the Court noted that a sentence is “based on” the lowered range when the range “played a relevant part in the framework the sentencing judge used’ in imposing the sentence.” By contrast, when the advisory ranges are tossed aside in the course of determining a sentence, the imposed sentence is not based on a Guidelines range.

The Court concluded that the petitioners’ sentences were not “based on” the lowered Guidelines range because the ranged played “no relevant part” in the district court’s sentencing determination. Therefore, the Court held that the petitioners were not entitled to §3582(c)(2) reductions.

The petitioners also asserted that, because the Guidelines range serves as the starting point for every federal sentencing calculation, all sentences are “based on” the Guidelines ranges. The Court made clear, however, that whether the Guidelines range played a part in the initial calculation is irrelevant and that it is, rather, the role the range played in the eventual calculation that should be considered. The Supreme Court disagreed with the petitioners’ remaining arguments.

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Due Process Clause Prohibits Vague Language in Defining a “Violent Felony”

Published By Stephen Preziosi

Johnson v. United States

13-7120

Supreme Court of the United States

Decided: June 26, 2015

ISSUE

Whether an increased sentence under the Armed Career Criminal Act’s (ACCA) residual clause violates the Constitution’s guarantee of due process where the language used in the statute is ambiguous and leaves too much room for interpretation. 

HOLDING

The Court held that the imposition of an increased sentence under the ACCA’s residual clause violates due process because the language used to define a “violent felony” is too vague to be properly enforced. The Act states, “…or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B).  The statute’s ambiguity brings into question how risk can be estimated and how much risk is takes for a crime to qualify as a violent felony. 

FACTS OF THE CASE

Samuel Johnson has a long history of criminal behavior.  Before pleading guilty to being a felon in possession of a firearm, the FBI began to monitor Johnson’s involvement in a white-supremacist organization that they believed was planning to commit acts of terrorism.  During the investigation, Johnson revealed his plans of attack to an undercover agent and disclosed that he manufactured explosives which he planned to use in the attacks.  He proceeded to showing the agents his AK-47 rifle, serval semiautomatic firearms and over 1,000 rounds of ammunition.       

After Johnson was eventually arrested, the Government attempted to enhance petitioner Johnson’s sentencing under the ACCA.  Under the ACCA, an increased prison sentence is given to a defendant with three or more prior convictions for a “violent felony.” The District Court determined that three of Johnson’s prior offenses, including the unlawful possession of a short-barreled shotgun, qualified as violent felonies under the ACCA and subsequently sentenced him to a 15-years in prison. The Circuit Court affirmed and the Supreme Court later granted certiorari in order to determine whether Minnesota’s offense of unlawful possession of a short-barreled shotgun ranks as a violent felony under the residual clause of the ACCA.  

COURT’S ANALYSIS

The Court held that the imposition of an increased sentence under the ACCA’s residual clause violates due process because the language used to define a “violent felony” is too vague to be properly enforced.  The Fifth Amendment states, “no person shall . . . be deprived of life, liberty, or property, without due process of law.”  In this case the Supreme Court found that the Government is in violation of the Due Process Clause of the Fifth Amendment under a criminal law so vague that it does not give “ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 – 358, 103 S.Ct 1855, 75 L.Ed.2d 903 (1983).  The prohibition of vagueness in criminal statutes is a principle applied not only to statutes defining crime but also to statutes determining sentencing; it is a “well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law…” Connally v. General Costr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (926).

The residual clause says that any prior conviction can count as a violent felony, even if it does not require violence or attempted violence as an element, if the offense nevertheless “involves conduct that presents a serious potential risk of physical injury to another.”  Thus, non-violent offenses that still have a “serious potential risk” of violence can count. The problem with the clause is that federal judges cannot agree as to what non-violent offenses should “categorically” fit this general definition. 

In Taylor v. U.S., it was held that the ACCA required courts to use a categorical approach when deciding whether an offense “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”  Under this approach, a court determines if a crime qualifies as a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay, supra, at 141, 128 S.Ct. 1581.

Given this definition, the Court is required to picture the kind of conduct that the crime involves in “the ordinary case” and to judge whether that abstraction presents a serious potential risk of physical injury.  Since the residual clause asks whether the crime “involves conduct” that presents too much risk of physical injury rather than whether the crime “has as an element the use… of physical force,” as part of the definition of a violent felony does, the court must go beyond its task of deciding whether creation of risk is an element of the crime.  Moreover, the inclusion of burglary and extortion preceding the residual clause further confirms the court’s duty to evaluate beyond the chance that the crime will injure someone based on the physical acts that make it up.  The act of extortion or breaking and entering in one’s dwelling does not, in and of itself, normally result in physical injury.  Rather, the extortionist might engage in violence after their demands were made or the burglar might confront a resident of the home after the crime of breaking and entering has already occurred. 

Two Features within the Residual Clause that Make it Unconstitutionally Vague

There are two main features within the residual clause that make it unconstitutionally vague: (I) the uncertainty of how to estimate the risk (II) the uncertainty of how much risk it takes for a crime to qualify as a violent felony. 

With regard to “how to estimate the risk,” courts are challenged by the statute to imagine an “ordinary case” of a crime rather than assess real-world facts or statutory elements.  However, the question of how one goes about deciding what conduct the “ordinary case” of a crime involves is risen.  As United States v. Mayer, 560 F.3d 948 asks are the courts to rely on “ . . . a statistical analysis of the state reporter?  A survey?  Expert evidence?  Google?  Gut instinct?”   The Court presents the example of witness tampering.  In an “ordinary case” would the person tampering with the witness offer a bribe or threaten a witness with violence?  It is inevitable that forcing the courts to imagine an ordinary case would be met with some form of conflict.  The use of “ordinary case” in the statute is not definitive enough to be used as a basis as the use of “asportation” in larceny laws around the country.     

Pertaining to “how much risk it takes for a crime to qualify as a violent felony,” the courts are not being asked to apply a general “serious potential risk” standard to real-world facts; instead they are being asked to apply such a standard to a theory imagined by the judge.  In asking whether the crime “otherwise involves conduct that presents a serious potential risk,” the residual clause further forces the courts to interpret “serious potential risk” considering the four given crimes of burglary, arson, extortion and crimes involving the use of explosives.  These offenses are “far from clear in respect to the degree of risk each poses.” Begay, 553 U.S., at 143, 128 S.Ct. 1581.  For example, does the typical burglar invade an occupied home at night or an unoccupied home during the day?  Does an ordinary extortionist threaten his victim with bodily harm or simply blackmail them with embarrassing personal information? 

Instances of the Residual Clause’s Hopeless Indeterminacy

A combination of the ambiguity from “how to estimate the risk” and “how much risk it takes for a crime to qualify as a violent felony” results in more unpredictability and arbitrariness than the Due Process Clause can handle.  The Court has acknowledged that the failure of “persistent efforts… to establish a standard” provides sufficient evidence of vagueness. United States v. L. Cohen Grocery Co., 255 U.S. 81, 91, 41 S.Ct. 298, 65 L.Ed. 516 (1921).  All four previous cases brought about a different question confirming the residual clause’s hopeless indeterminacy. 

In James, the Court asked whether “the risk posed by attempted burglary is comparable to that posed by its closest analogy among the enumerated offenses” for which they determined it was which serves only to help with attempted burglary.  The dissent posed the argument: “Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion or a crime involving explosives?” Id., at 215, 127 S. Ct. 1586 (Scalia, J., dissenting). 

In Chambers, the Court focused on whether an offender who fails to report to prison is more likely to attack, or physically resist, an arrest which relied heavily on statistical reports prepared by the Sentencing Commission in order to conclude that an offender who fails to report to prison is “significantly more likely than others to attack, or physically resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.”  555 U.S., at 128 – 129, 129 S. Ct. 687.  This took care of a failure to report to prison but what about the many crimes with no comparable reports in existence?  The dissent argued that even statistical studies in existence run the risk of suffering “methodological flaws, be skewed toward rarer forms of the crime, or paint widely divergent pictures of the riskiness of the conduct that the crime involves.”  Sykes, 564 U.S. at ____ _ ____, 131 S.Ct., at 2285 – 2287 (Scalia, J., dissenting).

In Sykes, the Court focused on whether Indiana’s vehicular flight crime constitutes a violent felony which, again, relied heavily on statistics to “confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Id., at ___, 131 S. Ct., at 2274 (majority opinion).  The Indiana statute includes everything from a high-speed car chase a simple failure to stop the car immediately after seeing a police signal.  As the dissent pointed out, common sense is an ineffective tool in determining where along the spectrum an “ordinary case” of vehicular flight would fall.  After all, common sense has not even been able to provide for a consistent standard of the degree of risk the four enumerated crimes possess, and it is unreasonable to expect it to perform any better concerning the many unenumerated crimes.

All three cases failed to create a universal standard to help avoid the risk comparison required by the residual clause from developing into supposition and speculation.  Unlike the aforementioned, in Begay, the Court needed to determine whether drunk driving is qualified as a violent felony under the residual clause.  It found that it is not because it does not “resemble the enumerated offenses ‘in kind as well as in degree of risk posed.’” 553 U.S., at 143, 128 S. Ct. 1581.  Typically, drunk driving does not involve “purposeful, violent and aggressive conduct” Id., at 144 – 145, 128 S. Ct. 1581 as the enumerated crimes do.  Begay, unfortunately, did not help to bring clarity to the meaning of the residual clause; it did not, nor could it, eliminate the need for imagination.  The concept of “aggressive conduct” in far from clear; it ranges from risking an accident by driving recklessly and actually killing people by driving recklessly.

Void for Vagueness (Arguing the Dissent)

The Government and the dissent argued that despite the vagueness in the residual clause there will be straightforward cases because “some crimes clearly pose a serious potential risk of physical injury to another.” post, at 2562 – 2563 (opinion of Alito, J.).  Contrary to their argument, the courts have found that many of the cases deemed easy were in fact more complicated than they seemed.

Take the Government’s example of Connecticut’s offense of “rioting at a correctional institution.”  United States v. Johnson, 616 F.3d 85 (C.A.2 2010). It seems like it would be a violent felony until it is brought to light that Connecticut defines this offense to include taking part in “any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations” of prison. Conn. Gen.Stat. §53a-179b(a) (2012).  Courts, again, are forced to imagine which the ordinary disorder most closely resembles: is it a full-fledged riot? A food-fight in the prison cafeteria?  Disregarding an order given by a guard? Johnson, 616 F.3d, at 96 (Parker, J., dissenting).

While it may seem like the Court’s opinions suggest that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp, the holding squarely contradict this.  Take L. Cohen Grocery Co. for example.  A law prohibiting grocers from charging an “unjust or unreasonable rate” was deemed void for vagueness, although charging someone a thousand dollars for a pound of sugar would definitely be considered unjust and unreasonable. L. Cohen Grocery Co,, 255 U.S., at 89, 41 S.Ct. 298.  Similarly, in Coates, a law prohibiting people on sidewalks from “conducting themselves in a manner annoying to persons passing by” was deemed void for vagueness despite the fact that spitting in someone’s face would surely be annoying.  Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).        

Protecting the Right to Preserve an Appeal Regardless of Plea Agreement Language

Published By Stephen Preziosi

Garza v. Idaho
No. 17-1026
U.S. Supreme Court
Decided: February 27, 2019

ISSUE

Whether counsel is deemed ineffective where a defendant requests that counsel file a Notice of Appeal and, even in light of a signed  waiver of appeal, defense counsel fails to file the notice of appeal. 

HOLDING

The U.S. Supreme Court held that counsel is ineffective where counsel declines to file a Notice of Appeal at the defendant’s request even where the defendant has signed a waiver of appeal. 

FACTS OF THE CASE

Garza signed a waiver of appeal upon pleading guilty to criminal charges in the state of Idaho. Following Garza’s sentencing, he informed counsel that he wished to pursue an appeal. Counsel advised Garza not to appeal because he had signed a waiver of appeal. After the time to file a notice of appeal expired, Garza sought post-conviction relief on ineffective assistance of counsel grounds. The trial court denied relief and the Idaho Court of Appeals affirmed the state court’s decision. Thereafter the Idaho Supreme Court affirmed, holding that counsel could not be deemed deficient nor did counsel’s performance prejudice Garza. The Court also held that where a defendant has signed a waiver of appeal, the presumption of prejudice, under Roe v. Flores-Ortega, 528 U.S. 470, does not apply. 

COURT’S ANALYSIS

Strickland v. Washington, 466 U.S. 668 set forth a two-prong test a defendant must meet to demonstrate ineffective assistance of counsel: (1) counsel’s performance must be ineffective, and (2) counsel’s deficient performance must have prejudiced the defendant so much as to have deprived him of a right to a fair trial. However, when counsel’s performance is so ineffective that it “deprives a defendant of an appeal that he otherwise would have taken,” prejudice is presumed. Flores-Ortega, 528 U.S., at 484.

Commonly included in a defendant’s plea agreement is a waiver of appeal. At face, a defendant has signed away his right to pursue an appeal. However, the Supreme Court recognizes that the waiver does not prevent the defendant from pursuing appellate claims outside the scope of the plea agreement.

As noted in Flores-Ortega, effort on the part of counsel required to file a Notice of Appeal is “purely ministerial” and “imposes no great burden.” 528 U.S., at 474. Whether an appeal is worth pursuing is not up to counsel; the defendant has the “ultimate authority.” Jones v. Barnes, 463 U.S. 745, 751.

Here, Garza’s attorney clearly disregarded his persistent requests to file a notice of appeal when it was not up to counsel to decide. Because Flores-Ortega has determined that a presumption of prejudice applies when a defendant is “denied counsel at a critical stage,” the Court held that a presumption of prejudice also applies when counsel’s ineffectiveness has deprived the defendant of an “appellate proceeding altogether.” 528 U.S., at 483. Therefore Garza’s attorney deprived him from a critical proceeding to which Garza had the right. 

Contrary to the Government’s argument, Garza need not demonstrate that his claims would have won on appeal. The defendant’s right to this procedure overrides any conditions proposed by the Government and, in any case, it would be improper to require a defendant to determine which arguments he would have made on appeal.
The U.S. Supreme Court reversed and remanded the Idaho Supreme Court’s decision.

government breached plea agreement

Fourth Amendment Search and Seizure: The Origin of the “Terry Stop” – Temporary Stops and Searches

Published By Stephen Preziosi

Terry v. Ohio

88 S.Ct. 1868

U.S. Supreme Court

Decided June 10, 1968

More information on Federal Appeals and Petitions to the United States Supreme Court 

Fourth Amendment Search and Seizure: The Origin of the “Terry Stop” – Temporary Stops and Searches

This week’s Throw-Back-Thursday blog is the case that established the infamous Terry Stop where police were authorized to stop and frisk a suspect when the police believe that there is reasonable suspicion that the person is committing, has committed or is about to commit a crime and the person may be armed.  This case eventually would lead to the recent controversy of “stop and frisk” in many State jurisdictions.

Issue: Whether a police officer’s “stop and frisk” of an individual violates of the Fourth Amendment of the United States Constitution.

Holding: The Supreme Court held that when an officer acts “reasonably” in performing a search and seizure, even without probable cause, the search and seizure is not a violation of the Fourth Amendment when the if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

The Stop and Frisk and Arrests of Terry and Chilton

A detective patrolling downtown Cleveland spotted two men, John Terry and Richard Chilton, on a street corner and suspected that something was amiss based on the behavior of the men. The detective observed Terry and Chilton repeatedly walking back in forth on the same street, pausing to look into the same store window each time they passed by. Suspecting that the men were about to perform a “stick up,” the detective approached Terry and Chilton along with a third man who had met them named Katz, identified himself as an officer, and proceeded to pat down Terry. The detective felt a revolver on Terry’s person and, after leading the three men inside the store, he ordered Terry to remove his coat so he could retrieve the weapon. The officer went on to perform a complete pat down of Terry, Chilton, and Katz. Another revolver was discovered on Chilton’s person and Terry and Chilton were subsequently charged with carrying concealed weapons.

Fourth Amendment Issue at Trial

The defense counsel of Terry and Chilton moved to suppress the weapons as evidence, arguing that the seizure violated the Fourth Amendment. The court denied the motion and admitted the revolvers into evidence on the grounds that the detective had reason to believe that Terry and Chilton were acting suspiciously and that because the officer had reason to believe the men might be armed, he was allowed to frisk them for his own safety. After the trial court denied the motion to suppress, Terry and Chilton pled guilty.

When is a Search or Seizure “Reasonable”?

Under the U.S. Constitution, the Fourth Amendment provides that citizens have the right against unreasonable searches and seizures by police. While the Court conceded that petitioner Terry was generally entitled to protection under the Fourth Amendment as he walked the streets, the Court questioned whether, under the circumstances as described by the arresting officer, the search and seizure was unreasonable. How, then, the Court questioned, do we know when a search or seizure is reasonable and when a search or seizure violates an individual’s Fourth Amendment rights?

When an intrusion occurs without a warrant, courts look to the testimony of the arresting officer to see whether the actions taken were justified and whether the officer’s specific, articulated accounts “taken together with rational inferences from those facts, reasonably warrant the intrusion.” The Court urged lower courts to ask these questions and to require evidence of reasonableness that is based on more than just a “hunch”— evidence that the officer acted in “good faith” would not be enough. The Court held that if mere “good faith” requirement were all that was necessary to determine that the search and seizure was legal, “the protections of the Fourth Amendment would evaporate.”

Was Terry’s “Stop and Frisk” Reasonable under the Fourth Amendment?

After establishing that courts must assess the context and facts of a warrantless search or seizure, the Supreme Court was called to determine whether Terry’s “stop and frisk” was unreasonable and in violation of his Fourth Amendment rights. The Court didn’t doubt that Terry was “seized” and subjected to a “search” when the detective patted him down for weapons on the outside of his clothing. However, the question remained: did the circumstances preceding the detective’s “stop and frisk” render his decision to perform the search and seizure reasonable according to the Court’s principles?

Following its own guidelines, the Court analyzed the facts of Terry’s case and concluded that the detective’s warrantless search and seizure was reasonable. The Court rationalized that because the detective’s observations of Terry and his two companions (pacing up and down the street, continuously stopping in front of the store, etc.) led him to believe Terry and his crew were about to execute a stick-up, the detective acted reasonably. Also noting that the detective initially limited his search to a pat down of the outside clothing, the Court concluded that his decision was a reasonable in order to protect himself and others from possible danger. Subsequently, the Court held that the weapon was properly admitted into evidence.

The Controversy that Followed

Since the decision of Terry v. Ohio, controversy over the constitutionality of “stop and frisk” searches has remained prevalent throughout the United States. In 2013, the United States District Court for the Southern District of New York axed the “stop and frisk” policy. That Court held that the “stop and frisk” rule violated the Fourth Amendment, noting that officers too often take advantage of the policy by unfairly target minorities.