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Plain-Error Relief Following Rehaif Decision

Published By Stephen Preziosi

Greer v U.S.

Supreme Court

Decided on June 14, 2021

Issue:

Unpreserved Claims On Appeal: Plain Error Review

Whether defendants Greer and Gary are entitled to a plain-error review following the Court’s Rehaif decision where, prior to Rehaif, the district court judge did not instruct the jury of the mens rea requirement to prove that each violated 18 U.S.C. § 922(g)(1) when he 1) knew he possessed a firearm and 2) knew his status as a felon at the time of possession.

Holding:

Plain Error Review On Appeal: Defendants Carry Burden on Appeal to Prove They Did Not Know They Were Felons

The Court held that in felon-in-possession cases, a Rehaif error is not a basis for a plain-error review unless defendant argues on appeal that he would have presented evidence at trial that he did not in fact know his status as a felon barred possession.

Facts:

Prior to Rehaif, Gregory Greer and Michael Gary were separately convicted of being felons in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Greer’s conviction resulted from a jury trial during which Greer did not request—and the District Court did not give—a jury instruction requiring the jury to find that Greer knew he was a felon when he possessed the firearm.

Gary pled guilty to being a felon in possession of a firearm. During Gary’s plea colloquy, the District Court did not advise Gary that, if he went to trial, a jury would have to find that he knew he was a felon when he possessed the firearms. On appeal, both Greer and Gary raised new mens rea arguments based on Rehaif. Greer requested a new trial based on the court’s failure to instruct the jury that he had to know he was a felon to be found guilty. The Eleventh Circuit rejected that argument.

Meanwhile, Gary argued that his plea guilty must be vacated because the court failed to advise him that if he went to trial, a jury would have to find that he knew he was a felon. The Fourth Circuit agreed with Gary, holding that the failure to advise him of that mens rea element was a structural error that required automatic reversal even though Gary had not raised the argument in District Court.

Analysis:

Three-Prong Test Applied In Plain-Error Review

Under Rule 51(b) of the Federal Rules of Criminal Procedure, a defendant who has “an opportunity to object” to an alleged error and fails to do so forfeits the claim of error. If, as with Greer and Gary here, a defendant later raises the forfeited claim on appeal, Rule 52(b)’s plain-error standard applies. To establish eligibility for plain-error review a defendant must show i) that there was error, ii) that the error was plain, and iii) that the error affects “substantial rights,” and that there is “a reasonable probability that, but for the error, the outcome of the proceeding would have been different” (Rosales-Mireles v. U.S., 585 U.S. 138 S. Ct. 1897, 1904-05). If the defendant satisfies those three prongs, an appellate court may grant relief only if it also concludes the error had a serious effect on “the fairness, integrity or public reputation of judicial proceedings” (Ibid).

Plain Error Review: “Substantial Rights” Prong is Difficult to Meet for Felon-in-Possession

It is undisputed that Rehaif errors occurred during Greer and Gary’s district court proceedings and the errors were plain. For the third “substantial rights” prong, Greer must show that, if the court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability that he would have been acquitted. Gary must show that, if the court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty. The Court explained that this third prong is difficult to meet in felon-in-possession charges, because “felony status is simply not the kind of thing that one forgets.” 963 F.3d 420, 423 (C.A.4 2020) (Wilkinson, J., concurring in denial of reh’g en banc).

Generally Speaking: Felons Know They Are Felons

The Court held that Greer and Gary failed to meet the third prong of the plain-error review. Both men had been convicted of multiple felonies prior to their respective possession offenses, and those prior convictions are substantial evidence that they knew they were felons. Neither defendant argued or made a representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon when he possessed a firearm. At trial, Greer stipulated to the fact that he was a felon, and Gary admitted that he was a felon when he pled guilty. The men cannot show, therefore, that but for the Rehaif errors, there is a “reasonable probability” that their proceedings would have been different.

The Court held that in felon-in-possession case, a Rehaif error is not a basis for plain-error belief unless a defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that did not in fact know he was a felon. When a defendant advances such an argument on appeal, the court must determine whether the defendant has carried the burden of showing a “reasonable probability” that the outcome of the district court proceeding would have been different. The Supreme Court affirmed the judgment of the Eleventh Circuit and reversed the judgment of the Fourth Circuit.

The Fair Sentencing and First Step Acts: When Do They Apply?

Published By Stephen Preziosi

Terry v. U.S.

No. 20-5904

Supreme Court

Decided on June 14, 2021

Issue:

Entitled to Sentence Reduction under First Step Act?

Whether defendant Terry is entitled to receive a sentence reduction for his 2008 crack cocaine conviction under the First Step Act, which makes retroactive the provisions in the Fair Sentencing Act that increased the crack quantity threshold for mandatory minimum penalties, where the defendant’s offense did not trigger a mandatory minimum penalty.

Holding:

Reduction Entitlement for Mandatory Minimum Sentences Only

The Supreme Court held that a defendant is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. Terry’s conviction was not a “covered offense” and therefore not eligible for reduction.

Facts:

Defendant Tahahrick Terry was convicted for possession with intent to distribute 3.9 grams of crack cocaine and sentenced as a career offender to 188-months’ imprisonment under 21 U.S.C. § 841(b)(1)(C) in 2008. After Congress enacted the First Step Act of 2018, which made retroactive the provisions of the 2010 Fair Sentencing Act, Terry sought resentencing on the ground that he was convicted of a crack offense modified by the Fair Sentencing Act. The District Court denied his motion, and the Eleventh Circuit affirmed. The Supreme Court granted certiorari.

Analysis:

Fair Sentencing Act Addresses Sentencing Disparities in Crack v. Powder Cocaine

As enacted in 1986, legislation defined three tiers of statutory penalties for possession with intent to distribute crack cocaine, creating a 100-to-1 ratio between the amount of powder and crack cocaine necessary for conviction. The first two tiers authorized enhanced penalty ranges, carrying mandatory minimum sentences based on drug quantity: a 5-year mandatory minimum (triggered by either 5 grams of crack cocaine or 500 grams of powder cocaine) and a 10-year mandatory minimum (triggered by either 50 grams of crack or 5 kg of powder). 100 Stat. 3207-2, 3207-3. The third penalty differed from the first two: it did not carry a mandatory minimum sentence, did not treat crack and powder cocaine offenses differently and did not depend on drug quantity. The statutory penalties for that offense were up to 20 years’ imprisonment, up to a $1 million fine, or both, and a period of supervised release.

The United States Sentencing Commission incorporated the 100-to-1 ratio into the Sentencing Guidelines, including a “Drug Quantity Table” that sets “base offense levels” that correspond to various ranges of weights for each drug type. Because the drug quantity tables are keyed to the statutory minimums, selling a given weight of crack cocaine would lead to the same base offense level as selling 100 times as much powder cocaine. Street-level crack dealers could thus receive significantly longer sentences than wholesale importers of powder cocaine. Additionally, crack cocaine sentences were about 50 percent longer than those for powder cocaine, and Black people bore the brunt of this disparity. Around 80 to 90 percent of those convicted of crack offenses between 1992 and 2006 were Black, while Black people made up only around 30 percent of powder cocaine offenders in those same years (USSC, Report to the Congress: Cocaine and Federal Sentencing Policy 13 (May 2007) (2007 Report)).

The Fair Sentencing Act of 2010 addressed the 100-to-1 crack-to-powder ratio sentencing disparity by increasing the crack quantity thresholds from 5 grams to 28 for the 5-year mandatory minimum and from 50 grams to 280 for the 10-year mandatory minimum, affecting convictions under §§ 841(b)(1)(A) and 841(B)(1)(B), thereby reducing the crack-to-powder ratio to 18-to-1. § 2(a), 124 Stat. 2372. The Sentencing Commission, in turn, quickly revised the drug quantity tables to reflect that new ratio. USSG App. C, Amdt. 748 (Nov. 2010). The act did not affect the penalty for subparagraph (C), as this statute never differentiated between crack cocaine and powder cocaine offenses. Congress made these changes retroactive in 2018 with the First Step Act.

Fair Sentencing Act Affects Only ‘Mandatory Minimum’ Sentences

Before 2010, §§ 841(a) and (b) together defined three crack offenses relevant here:

  • The elements of the first offense were (1) knowing or intentional possession with intent to distribute (2) crack, of (3) at least 50 grams. §§ 841(a), (b)(1)(A)(iii). This subparagraph (A) offense was punishable by 10 years to life, in addition to financial penalties and supervised release.

  • The elements of the second offense were (1) knowing or intentional possession with intent to distribute, (2) crack, of (3) at least 5 grams. §§ 841(a), (b)(1)(B)(iii). This subparagraph (B) offense was punishable by 5-40 years, in addition to financial penalties and supervised release.
  • The elements of the third offense were (1) knowing or intentional possession with intent to distribute, (2) some unspecified amount of a schedule I or II drug. §§ 841(a), (b)(1)(C).

Defendant was convicted of the third offense, subparagraph (C) as a “career offender” because of two prior drug convictions committed when he was a teenager. As a result, his Guidelines range went from about 3-4 years (for just 3.9 grams of crack) to 15 to 20 years, and he received a sentence of 188 months at the bottom of the range. If he had been charged under either of the other subparagraphs (A) or (B), which require larger quantities of drugs, he would be eligible for resentencing. Similarly, if his Guidelines range had been calculated like that of a non-career offender, he would have been eligible for a sentence reduction when the USSC retroactively reduced the amount of crack cocaine necessary to trigger higher Guidelines range.

Under the First Step Act of 2018, everyone with a pre-August 3, 2010 crack conviction under § 841(b)(1)(A) or § 841 (b)(1)(B), including career offenders, has a “covered offense” and is eligible for resentencing. But the Court holds that no one convicted under § 841(b)(1)(C) has a covered offense, even though their sentences were also based on the 100-to-1 crack-to-powder ratio that was retroactively lowered, and though the law now treats the offense as a far less serious crime.

APPEAL WAIVER PRECLUDES RIGHT TO APPEAL SENTENCE ENHANCEMENT

Published By Stephen Preziosi

U.S. v. Solis

784 Fed. Appx. 202

Fifth Circuit Court of Appeals

Decided on August 9, 2019

Issue:

Whether an appeal waiver is valid when the defendant claims the Government breached the plea agreement where it promised to move for a one-level sentence reduction for conspiracy to transport an undocumented alien if the defendant qualified under U.S.S.G. § 3E1.1(b) for Acceptance of Responsibility, but the district court instead imposed an offense level enhancement because the defendant assaulted a prisoner and was not eligible for the reduction under U.S.S.G. § 3E1.1(b).

Holding:

The Fifth Circuit held that the appeal waiver is valid as the Government did not breach the agreement where they imposed a sentence level enhancement. Solis did not qualify for a sentence reduction under U.S.S.G. § 3E1.1(b) despite Acceptance of Responsibility because he assaulted a prisoner. The plea agreement was knowing and voluntary, and the waiver precludes the defendant’s right to appeal based on the sentencing issue he attempts to raise here.

Fact:

Josue Osvaldo Solis pled guilty to conspiracy to transport an undocumented alien within the US, and was sentenced to 97 months’ imprisonment based on an offense level enhancement.

In Solis’s plea agreement the Government (1) promised to move for the additional one-level reduction under U.S.S.G. § 3E1.1(b) if the district court determined that Solis qualified for the two-level § 3E1.1(a) reduction for acceptance of responsibility and his offense level exceeded the relevant threshold and (2) reserved the right to present facts and argument relevant to sentencing.

The Government presented facts and argument that Solis assaulted “another prisoner,” which resulted in an offense level enhancement, rather than a reduction. Solis appealed, claiming the district court breached the plea agreement.

Analysis:

Appeal Waiver Precludes Appeal of Sentence that Imposed Offense Level Enhancement

The court dismissed Solis’s appeal based on the waiver in his plea agreement and found his sentence was consistent with a reasonable understanding of “the plain language of the agreement.” Solis knowingly and voluntarily agreed to the appeal waiver which precluded his right to appeal except on the basis of ineffective assistance of counsel.

U.S.S.G. § 3E1.1 reads:

  • If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
  • If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

The Government presented evidence that Solis did not qualify for a § 3E1.1 sentence reduction because he assaulted another prisoner.

The Fifth Circuit was not persuaded by the argument that Solis reasonably understood the language of the agreement to include “an additional promise that the Government would refrain from advocating against his qualification for the two-level § 3E1.1(a) reduction.” The sentencing was consistent with the agreement, therefore the Government did not breach the agreement. The Fifth Circuit dismissed Solis’s appeal.

Adequacy of Wiretap Applications: Title III of the Omnibus Crime Control and Safe Streets Act in the First Circuit Court of Appeals

Published By Stephen Preziosi

Wiretap Application was More Than Minimally Adequate to Justify the Authorization of a Wiretap

United States of America v. Hugo Santana-Dones

United States Court of Appeals for the First Circuit

920 F.3d 70 (1st Cir. 2019)

Decided on March 29, 2019

Federal Appeals Lawyer in the First Circuit Court of Appeals

Boston Federal Appeals Lawyer

Massachusetts Federal Appeals Lawyer

ISSUE:

Whether the district court erred in concluding that the court which issued the wiretap warrant could have found the facts in the application to be at least minimally adequate to support the a wiretap warrant and whether any reasonable view of the evidence supports the district court’s finding under both Title III of the Omnibus Crime Control and Safe Streets Act and the Fourth Amendment.   

Federal Criminal Appeals After Trial

HOLDING:

The Court held that the wiretap application, read in tandem with its supporting affidavit, was more than minimally adequate to justify the authorization of a wiretap because the Court’s inquiry is guided by Title III.  Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials.

FACTS OF THE CASE:

Following several other methods of investigation and surveillance, Drug Enforcement Administration (DEA) agents then went a step further and made use of a wiretap of Vasquez’s cellular telephone, which had been authorized and periodically renewed by a federal district judge.  A month later, a federal grand jury in the District of Massachusetts charged all defendants on multiple counts of distributing heroin and cocaine under 21 U.S.C. §§ 841 (a)(1) and 846.  After maintaining their innocence for an extended period of time, the defendants pleaded guilty to all the charges, reversing the right to challenge the district court’s suppression-related rulings and to claim ineffective assistance of counsel.   

Federal Appeals: Drug Convictions and Conspiracy to Distribute

COURT’S ANALYSIS:

The First Circuit Court of Appeals held that the wiretap application, read in tandem with its supporting affidavit, was more than minimally adequate to justify the authorization of a wiretap.  When examining a district court’s ruling on a motion to suppress wiretap evidence, this Court reviews its factual findings for clear error and its legal conclusions de novo.  To find clear error, the Court must form a strong, unyielding belief, based on the whole of the record, that a mistake has been made.  In this instance, the Court’s inquiry is guided by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, which governs the rules for federal telephone wiretaps.  Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials.

The law’s main purposes: (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.  It follows that wiretapping is an exception, not a rule.  The law imposes a set of statutory requirements on top of the constitutional requirements applicable to ordinary search warrants.  A wiretap application must contain, in addition to the foundational showing of probable cause, a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.  Necessity must, therefore, be viewed through the lens of what is pragmatic and achievable in the real world.  Since drug trafficking is inherently difficult to detect and presents formidable problems in pinning down the participants and defining their roles, investigative personnel must be accorded some latitude in choosing their approaches.

Federal Appeals of Firearm Convictions: 18 U.S.C. §§ 921, 922, 924

The Supreme Court has warned that a wiretap is not to be routinely employed as the initial step in criminal investigation.  A reviewing court must examine whether reasonable procedures were attempted, or at least thoroughly considered, prior to seeking a wiretap.  The inquiry into whether the government has sufficiently demonstrated necessity does not hinge on whether it already has garnered enough goods to pursue criminal prosecution.  After all, an application for a wiretap will always have to disclose some meaningful level of previous success in order to satisfy the probable cause requirement and justify further investigation.  To be sure, the level of success achieved through a given procedure will vary in relation to the scope of the investigation as established by the government.  It follows that, in seeking a wiretap, the government cannot be permitted to set out goals that are either unrealistic or overly expansive.

            In this case, the defendants argue that the government made a Gadarene rush to employ electronic surveillance and that its attempt to show necessity in the affidavits supporting the warrant were unconvincing.  The First Circuit found that the affidavit was sufficient to allay reasonable concern that the wiretap was being sought prematurely.  It demonstrated that the government had employed and exhausted a number of traditional investigative measures over the course of more than six months.