Archive for September, 2010

Federal Case Law Update

Posted by admin on September 8th, 2010

Tuesday, June 29, 2010
Supreme Court SyllabiSears v. Upton

No. 09-8554

Decided June 29, 2010

Opinion Author: Per Curiam


Per Curiam.

According to an expert who testified during state postconviction relief, petitioner Demarcus A. Sears performs at or below the bottom first percentile in several measures of cognitive functioning and reasoning. The cause of this abnormality appears to be significant frontal lobe brain damage Sears suffered as a child, as well as drug and alcohol abuse in his teens. But because-in the words of the state trial court-his counsel conducted a penalty phase investigation that was “on its face . . . constitutionally inadequate,” App. to Pet. for Cert. 27B, evidence relating to Sears’ cognitive impairments and childhood difficulties was not brought to light at the time he was sentenced to death.

Continue reading Sears v. Upton …

Monday, June 28, 2010
Supreme Court SyllabiMcDonald v. City of Chicago

No. 08-1521

Argued March 02, 2010

Decided June 28, 2010

Opinion Author: Alito

Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners’ argument that the ordinances are unconstitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases- United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535 -which were decided in the wake of this Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36.

You can access the full text of the ruling at this link.

Friday, June 25, 2010
Supreme Court SyllabiSkilling v. United States

No. 08-1394

Argued March 01, 2010

Decided June 24, 2010

Opinion Author: Ginsburg

Founded in 1985, Enron Corporation grew from its headquarters in Houston, Texas, into the seventh highest-revenue-grossing company in America. Petitioner Jeffrey Skilling, a longtime Enron officer, was Enron’s chief executive officer from February until August 2001, when he resigned. Less than four months later, Enron crashed into bankruptcy, and its stock plummeted in value. After an investigation uncovered an elaborate conspiracy to prop up Enron’s stock prices by overstating the company’s financial well-being, the Government prosecuted dozens of Enron employees who participated in the scheme. In time, the Government worked its way up the chain of command, indicting Skilling and two other top Enron executives. These three defendants, the indictment charged, engaged in a scheme to deceive investors about Enron’s true financial performance by manipulating its publicly reported financial results and making false and misleading statements. Count 1 of the indictment charged Skilling with, inter alia, conspiracy to commit “honest-services” wire fraud, 18 U. S. C. §§371, 1343, 1346, by depriving Enron and its shareholders of the intangible right of his honest services. Skilling was also charged with over 25 substantive counts of securities fraud, wire fraud, making false representations to Enron’s auditors, and insider trading.

Continue reading Skilling v. United States …

Black v. United States

No. 08-876

Argued December 08, 2009

Decided June 24, 2010

Opinion Author: Ginsburg

Petitioners (hereinafter Defendants)-executives of Hollinger International, Inc. (Hollinger), a publicly held U. S. company-were indicted for mail fraud, 18 U. S. C. §§1341, 1346, and other federal crimes. At trial, the Government pursued alternative mail-fraud theories, charging that (1) Defendants stole millions from Hollinger by fraudulently paying themselves bogus “noncompetition fees”; and (2) by failing to disclose those fees, Defendants deprived Hollinger of their honest services. Before jury deliberations began, the Government proposed special-verdict forms that would reveal, in the event that the jury voted to convict on a mail-fraud count, the particular theory or theories accounting for the verdict. Defendants resisted, preferring an unelaborated general verdict. The Government ultimately acquiesced. The District Court instructed the jury on each of the alternative theories. As to honest-services fraud, the court informed the jury, over Defendants’ timely objection, that a person commits that offense if he misuses his position for private gain for himself and/or a co-schemer and knowingly and intentionally breaches his duty of loyalty. The jury returned general verdicts of “guilty” on the mail-fraud counts, found that one Defendant was also guilty of obstruction of justice, and acquitted Defendants on all other charges.

Continue reading Black v. United States …

Magwood v. Patterson

No. 09-198

Argued March 24, 2010

Decided June 24, 2010

Opinion Author: Thomas

Petitioner Magwood was sentenced to death for murder. After the Alabama courts denied relief on direct appeal and in postconviction proceedings, he sought federal habeas relief. The District Court conditionally granted the writ as to his sentence, mandating that he be released or resentenced. The state trial court sentenced him to death a second time. He filed another federal habeas application, challenging this new sentence on the grounds that he did not have fair warning at the time of his offense that his conduct would permit a death sentence under Alabama law, and that his attorney rendered ineffective assistance during the resentencing proceeding. The District Court once again conditionally granted the writ. The Eleventh Circuit reversed, holding in relevant part that Magwood’s challenge to his new death sentence was an unreviewable “second or successive” challenge under 28 U. S. C. §2244(b) because he could have raised his fair-warning claim in his earlier habeas application.

Continue reading Magwood v. Patterson …

Monday, June 21, 2010
Holder v. Humanitarian Law ProjectNo. 08-1498 *

Argued February 23, 2010

Decided June 21, 2010

Opinion Author: Chief Justice Roberts

*Together with No. 09-89, Humanitarian Law Project et al. v. Holder, Attorney General, et al., also on certiorari to the same court.

It is a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.” 18 U. S. C. §2339B(a)(1). The authority to designate an entity a “foreign terrorist organization” rests with the Secretary of State, and is subject to judicial review. “[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” §2339A(b)(1). Over the years, §2339B and the definition of “material support or resources” have been amended, inter alia, to clarify that a violation requires knowledge of the foreign group’s designation as a terrorist organization or its commission of terrorist acts, §2339B(a)(1); and to define the terms “training,” §2339A(b)(2), “expert advice or assistance,” §2339A(b)(3), and “personnel,” §2339B(h).

Continue reading Holder v. Humanitarian Law Project …

Thursday, June 17, 2010
Supreme Court SyllabiDillon v. United States

No. 09-6338

Argued March 30, 2010

Decided June 17, 2010

Opinion Author: Sotomayor

In 1993, petitioner Dillon was convicted of, inter alia, crack and powder cocaine offenses, which produced a base offense level of 38 and a Guidelines range of 262-to-327 months’ imprisonment. The court sentenced him at the bottom of the range for those counts. After the Sentencing Commission amended the Guidelines to reduce the base offense level associated with each quantity of crack cocaine, USSG Supp. App. C, Amdt. 706, and made that amendment retroactive, USSG Supp. App. C, Amdt. 713, Dillon moved for a sentence reduction under 18 U. S. C. §3582(c)(2). That provision authorizes a district court to reduce an otherwise final sentence pursuant to a Guidelines amendment if a reduction is consistent with the Commission’s policy statements. The relevant policy statement, USSG §1B1.10, precludes a court from reducing a sentence “to a term that is less than the minimum of the amended guidelines range” except in limited circumstances. In addition to the two-level reduction authorized by the amendment, Dillon sought a variance below the amended Guidelines range, contending that United States v. Booker, 543 U. S. 220, authorized the exercise of such discretion. The District Court imposed a sentence at the bottom of the revised range but declined to grant a further reduction. Finding Booker inapplicable to §3582(c)(2) proceedings, the court concluded that the Commission’s directives in §1B1.10 constrained it to impose a sentence within the amended Guidelines range. The Third Circuit affirmed.

Continue reading Dillon v. United States …

Wednesday, June 16, 2010
Supreme Court SyllabiDolan v. United States

No. 09-367

Argued April 20, 2010

Decided June 14, 2010

Opinion Author: Breyer

Petitioner Dolan pleaded guilty to assault resulting in serious bodily injury and entered into a plea agreement, which stated that the District Court could order restitution for his victim. Dolan’s presentence report also noted that restitution was required, but did not recommend an amount because of a lack of information on hospital costs and lost wages. The Mandatory Victims Restitution Act provides that “if the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing,” the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” 18 U. S. C. §3664(d)(5). On July 30, the District Court held a sentencing hearing and imposed a sentence of imprisonment and supervised release. On August 8, the court entered a judgment, stating that restitution was “applicable” but leaving open the amount of restitution given that no information had yet “been received regarding possible restitution payments.” On October 5, 67 days later, an addendum documenting the restitution amount was added to the presentence report. The court did not set a hearing until February 4, about three months after the 90-day deadline had expired. At the hearing, Dolan argued that because that deadline had passed, the law no longer authorized restitution. Disagreeing, the court ordered restitution, and the Tenth Circuit affirmed.

Continue reading … Dolan v. United States

Holland v. Florida

No. 09-5327

Argued March 1, 2010

Decided June 14, 2010

Opinion Author: Breyer

Petitioner Holland was convicted of first-degree murder and sentenced to death in Florida state court. After the State Supreme Court affirmed on direct appeal and denied collateral relief, Holland filed a pro se federal habeas corpus petition, which was approximately five weeks late under the 1-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2244(d). The record facts reveal, inter alia, that Holland’s court-appointed attorney, Bradley Collins, had failed to file a timely federal petition, despite Holland’s many letters emphasizing the importance of doing so; that Collins apparently did not do the research necessary to find out the proper filing date, despite the fact that Holland had identified the applicable legal rules for him; that Collins failed to inform Holland in a timely manner that the State Supreme Court had decided his case, despite Holland’s many pleas for that information; and that Collins failed to communicate with Holland over a period of years, despite Holland’s pleas for responses to his letters. Meanwhile, Holland repeatedly requested that the state courts and the Florida bar remove Collins from his case. Based on these and other record facts, Holland asked the Federal District Court to toll the AEDPA limitations period for equitable reasons. It refused, holding that he had not demonstrated the due diligence necessary to invoke equitable tolling. Affirming, the Eleventh Circuit held that, regardless of diligence, Holland’s case did not constitute “extraordinary circumstances.” Specifically, it held that when a petitioner seeks to excuse a late filing based on his attorney’s unprofessional conduct, that conduct, even if grossly negligent, cannot justify equitable tolling absent proof of bad faith, dishonesty, divided loyalty, mental impairment, or the like.

Continue reading Holland v. Florida …

Monday, June 07, 2010
Supreme Court SyllabiBarber v. Thomas

No. 09-5201

Argued March 30, 2010

Decided June 07, 2010

Opinion Author: Breyer

The federal sentencing statute at issue provides that a “prisoner … serving a term of imprisonment of more than 1 year … may receive credit toward the service of [that] sentence … of up to 54 days at the end of each year” subject to the Bureau of Prison’s (BOP) “determination … that, during that year, the prisoner” has behaved in an exemplary fashion. 18 U. S. C. §3624(b)(1). Credit “for the last year or portion of a year of the term of imprisonment [is] prorated … .” Ibid. The BOP applies this statute using a methodology that awards 54 days of credit at the end of each year the prisoner serves and sets those days to the side. When the difference between the time remaining in the sentence and the amount of accumulated credit is less than one year, the BOP awards a prorated amount of credit for that final year proportional to the awards in other years.

Continue reading Barber v. Thomas …

United States v Juvenile Male

No. 09-940

Decided June 07, 2010

Opinion Author: Per Curiam


Per Curiam.

In 2005, respondent was charged in the United States District Court for the District of Montana with juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), 18 U. S. C. §5031 et seq. Respondent eventually pleaded “true” to knowingly engaging in sexual acts with a person under 12 years of age, which would have been a crime under §§2241(c) and 1153(a) if committed by an adult. In June 2005, the District Court accepted respondent’s plea and adjudged him delinquent. The court sentenced respondent to two years’ official detention and juvenile delinquent supervision until his 21st birthday. The court also ordered respondent to spend the first six months of his juvenile supervision in a prerelease center and to abide by the center’s conditions of residency.

Continue reading United States v Juvenile Male …

Tuesday, June 01, 2010
Supreme Court SyllabiCarr v. United States

No. 08-1301

Argued February 24, 2010

Decided June 01, 2010

Opinion Author: Sotomayor

Enacted in 2006, the Sex Offender Registration and Notification Act (SORNA) makes it a federal crime for, inter alia, any person (1) who “is required to register under [SORNA],” and (2) who “travels in interstate or foreign commerce,” to (3) “knowingly fai[l] to register or update a registration,” 18 U. S. C. §2250(a). Before SORNA’s enactment, petitioner Carr, a registered sex offender in Alabama, relocated to Indiana without complying with the latter State’s registration requirements. Carr was indicted under §2250 post-SORNA. The Federal District Court denied Carr’s motion to dismiss, which asserted that the §2250 prosecution would violate the Constitution’s Ex Post Facto Clause because he had traveled to Indiana before SORNA’s effective date. Carr then pleaded guilty and was sentenced to prison. Affirming the conviction, the Seventh Circuit held that §2250 does not require that a defendant’s travel postdate SORNA and that reliance on a defendant’s pre-SORNA travel poses no ex post facto problem so long as the defendant had a reasonable time to register post-SORNA but failed to do so, as had Carr.

Continue reading Carr v. United States …

Berghuis v. Thompkins

No. 08-1470

Argued March 01, 2010

Decided June 01, 2010

Opinion Author: Kennedy

After advising respondent Thompkins of his rights, in full compliance with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and another Michigan officer interrogated him about a shooting in which one victim died. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting. He moved to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied the motion. At trial on first-degree murder and other charges, the prosecution called Eric Purifoy, who drove the van in which Thompkins and a third accomplice were riding at the time of the shooting, and who had been convicted of firearm offenses but acquitted of murder and assault. Thompkins’ defense was that Purifoy was the shooter. Purifoy testified that he did not see who fired the shots. During closing arguments, the prosecution suggested that Purifoy lied about not seeing the shooter and pondered whether Purifoy’s jury had made the right decision. Defense counsel did not ask the court to instruct the jury that it could consider evidence of the outcome of Purifoy’s trial only to assess his credibility, not to establish Thompkins’ guilt. The jury found Thompkins guilty, and he was sentenced to life in prison without parole. In denying his motion for a new trial, the trial court rejected as nonprejudicial his ineffective-assistance-of-counsel claim for failure to request a limiting instruction about the outcome of Purifoy’s trial. On appeal, the Michigan Court of Appeals rejected both Thompkins’ Miranda and his ineffective-assistance claims. The Federal District Court denied his subsequent habeas request, reasoning that Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation, and that it was not unreasonable, for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U. S. C. §2254(d)(1), for the State Court of Appeals to determine that he had waived his right to remain silent. The Sixth Circuit reversed, holding that the state court was unreasonable in finding an implied waiver of Thompkins’ right to remain silent and in rejecting his ineffective-assistance-of-counsel claim.

Continue reading Berghuis v. Thompkins …

Monday, May 24, 2010
Supreme Court SyllabiUnited States v. Comstock

No. 08-1224
Argued January 12, 2010
Decided May 17, 2010
Opinion Author: Breyer

Federal law allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released. 18 U. S. C. §4248. The Government instituted civil-commitment proceedings under §4248 against respondents, each of whom moved to dismiss on the ground, inter alia, that, in enacting the statute, Congress exceeded its powers under the Necessary and Proper Clause, U. S. Const., Art. I, §8, cl. 18. Agreeing, the District Court granted dismissal, and the Fourth Circuit affirmed on the legislative-power ground.

Continue Reading United States v. Comstock …

Abbott v. Abbott

No. 08-645
Argued January 12, 2010
Decided May 17, 2010
Opinion Author: Kennedy

After the Abbotts, a married couple, moved to Chile and separated, the Chilean courts granted respondent wife daily care and control of their minor son, A. J. A., while awarding petitioner husband visitation rights. Mr. Abbott also had a ne exeat right to consent before Ms. Abbott could take A. J. A. out of the country under Chile Minors Law 16,618 (Minors Law 16,618), art. 49. When Ms. Abbott brought A. J. A. to Texas without permission from Mr. Abbott or the Chilean family court, Mr. Abbott filed this suit in the Federal District Court, seeking an order requiring his son’s return to Chile under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and the implementing statute, the International Child Abduction Remedies Act (ICARA), 42 U. S. C. §11601 et seq. Among its provisions, the Convention seeks “to secure the prompt return of children wrongfully removed or retained in any Contracting State,” Art. 1; provides that such “removal or retention … is to be considered wrongful where” “it is in breach of rights of custody attributed to a person … under the law of the State in which the child was [theretofore] habitually resident,” Art. 3 (a), and where “those rights [had been] actually exercised … or would have been so exercised but for the removal or retention,” Art. 3 (b); and defines “rights of custody” to “include … the right to determine the child’s place of residence,” Art. 5 (a). The District Court denied relief, holding that the father’s ne exeat right did not constitute a “righ[t] of custody” under the Convention and, thus, that the return remedy was not authorized. The Fifth Circuit affirmed.

Continue Reading Abbott v. Abbott …

Graham v. Florida

No. 08-7412
Argued November 9, 2009
Decided May 17, 2010
Opinion Author: Kennedy

Petitioner Graham was 16 when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham had violated the terms of his probation by committing additional crimes. The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except executive clemency. He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause, but the State First District Court of Appeal affirmed.

Continue Reading Graham v. Florida …

Sullivan v Florida

No. 08-7621
Decided May 17, 2010
Opinion Author: Per Curiam
The writ of certiorari is dismissed as improvidently granted.
It is so ordered.

Continue Reading Sullivan v. Florida …

United States v.Marcus

No. 08-1341
Argued February 24, 2010
Decided May 24, 2010
Opinion Author: Breyer

Respondent Marcus was convicted of engaging in forced labor and sex trafficking between January 1999 and October 2001. On appeal, he pointed out for the first time that the federal statutes he violated did not become law until October 2000. Thus, he claimed, the indictment and evidence permitted at trial allowed a jury to convict him exclusively on the basis of preenactment conduct in violation of the Ex Post Facto Clause. He conceded that he had not raised this objection in the District Court, but argued that because the constitutional error was plain, his conviction must be set aside. The Second Circuit agreed and vacated the conviction. In doing so, the court held that, even in the case of a continuing offense, retrial is necessary if there is “any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.” The court noted that this was “true even under plain error review.”

Continue Reading United States v.Marcus …

United States v. O’Brien

No. 08-1569
Argued February 23, 2010
Decided May 24, 2010
Opinion Author: Kennedy

Respondents O’Brien and Burgess each carried a firearm during an attempted robbery. Count three of their indictment charged them with using a firearm in furtherance of a crime of violence, which carries a mandatory minimum 5-year prison term. 18 U. S. C. §924(c)(1)(A)(i). Count four alleged use of a machinegun (here, a pistol that authorities believed operated as a fully automatic firearm) in furtherance of that crime, which carries a 30-year mandatory minimum term. §924(c)(1)(B)(ii). The Government moved to dismiss the fourth count on the basis that it could not establish the count beyond a reasonable doubt, but it maintained that §924(c)(1)(B)(ii)’s machinegun provision was a sentencing enhancement to be determined by the District Court upon a conviction on count three. The court dismissed count four and rejected the Government’s sentencing-enhancement position. Respondents then pleaded guilty to the remaining counts. The court sentenced O’Brien to a 102-month term and Burgess to an 84-month term for their §924(c) convictions. In affirming the District Court’s §924(c)(1)(B)(ii) ruling, the First Circuit looked primarily to Castillo v. United States, 530 U. S. 120, which held that the machinegun provision in an earlier version of §924(c) constituted an element of an offense, not a sentencing factor. The court found that Castillo was “close to binding,” absent clearer or more dramatic changes than those made by Congress’ 1998 amendment of §924(c) or a clearer legislative history.

Continue Reading United States v. O’Brien …

Robertson v. US ex rel. Watson

No. 08-6261
Decided May 24, 2010
Opinion Author: Per Curiam

This is a complicated case, but it raises a straightforward and important threshold issue. When we granted certiorari, we rephrased the question presented to focus on that issue: “Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.” 558 U. S ___ (2009). The answer to that question is no. The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government. The court below held otherwise, relying on a dissenting opinion in one of our cases, and on the litigating position of the United States, which the Solicitor General has properly abandoned in this Court. See Brief for United States as Amicus Curiae 12-13, n. 3. We should correct the lower court’s error and return the case to that court to resolve the remaining questions.

Continue Reading Robertson v. US ex rel. Watson …

Jefferson v. Upton

No. 09-8852
Decided May 24, 2010
Opinion Author: Per Curiam
Per Curiam.

Petitioner Lawrence Jefferson, who has been sentenced to death, claimed in both state and federal courts that his lawyers were constitutionally inadequate because they failed to investigate a traumatic head injury that he suffered as a child. The state court rejected that claim after making a finding that the attorneys were advised by an expert that such investigation was unnecessary. Under the governing federal statute, that factual finding is presumed correct unless any one of eight exceptions applies. See 28 U. S. C. §§2254(d)(1)-(8) (1994 ed.). But the Court of Appeals considered only one of those exceptions (specifically §2254(d)(8)). And on that basis, it considered itself “duty-bound” to accept the state court’s finding, and rejected Jefferson’s claim. Because the Court of Appeals did not fully consider several remaining potentially applicable exceptions, we vacate its judgment and remand.

Continue Reading Jefferson v. Upton …

Tuesday, April 20, 2010
Supreme Court SyllabiUnited States v. Stevens

No. 08-769
Argued October 06, 2009
Decided April 20, 2010
Opinion Author: Chief Justice Roberts

Congress enacted 18 U. S. C. section 48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct. It applies to any visual or auditory depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place,” section 48(c)(1). Another clause exempts depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” section 48(b). The legislative background of section48 focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish. Respondent Stevens was indicted under section48 for selling videos depicting dogfighting. He moved to dismiss, arguing that section48 is facially invalid under the First Amendment. The District Court denied his motion, and Stevens was convicted. The Third Circuit vacated the conviction and declared section48 facially unconstitutional as a content-based regulation of protected speech.

Continue reading United States v. Stevens …

Wednesday, March 31, 2010
Padilla v. Kentucky, No. 08-651In postconviction proceedings arising from a drug distribution prosecution, after which petitioner faced deportation based on his guilty plea and claimed that his counsel failed to advise him of the consequences of the plea, denial of postconviction relief is reversed and remanded where, because counsel must inform a client whether his plea carries a risk of deportation, petitioner sufficiently alleged that his counsel was constitutionally deficient.

Read more …

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Monday, March 15, 2010
Supreme Court SyllabiBloate v. United States

No. 08-728
Date Argued October 06, 2010
Decided March 08, 2010
Opinion Author: Thomas

The Speedy Trial Act of 1974 (Act) requires a criminal defendant’s trial to commence within 70 days of his indictment or initial appearance, 18 U. S. C. §3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2). As relevant here, the Act automatically excludes from the 70-day period ‘delay resulting from … proceedings concerning the defendant,” 18 U. S. C. A. §3161(h)(1) (hereinafter subsection (h)(1)), and separately permits a district court to exclude “delay resulting from a continuance” it grants, provided the court makes findings required by §3161(h)(7) (hereinafter subsection (h)(7)). Petitioner’s indictment on federal firearm and drug possession charges started the 70-day clock on August 24, 2006. After petitioner’s arraignment, the Magistrate Judge ordered the parties to file pretrial motions by September 13. On September 7, the court granted petitioner’s motion to extend that deadline, but on the new due date, September 25, petitioner waived his right to file pretrial motions. On October 4, the Magistrate Judge found the waiver voluntary and intelligent. Over the next three months, petitioner’s trial was delayed several times, often at petitioner’s instigation. On February 19, 2007-179 days after he was indicted-he moved to dismiss the indictment, claiming that the Act’s 70-day limit had elapsed. In denying the motion, the District Court excluded the time from September 7 through October 4 as pretrial motion preparation time. At trial, petitioner was found guilty on both counts and sentenced to concurrent prison terms. The Eighth Circuit affirmed the denial of the motion to dismiss, holding that the period from September 7 through October 4 was automatically excludable from the 70-day limit under subsection (h)(1).

Continue reading Bloate v. United States …


Johnson v. United States

No. 08-6295
Date Argued October 06, 2009
Decided March 02, 2010
Opinion Author: Scalia

Petitioner Johnson pleaded guilty to possession of ammunition by a convicted felon. 18 U. S. C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, inter alia, an offense that “has as an element the use … of physical force against the person of another,” §924(e)(2)(B)(i). Among the three prior felony convictions the Government proffered was Johnson’s 2003 Florida conviction for simple battery, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but was a felony conviction for Johnson because he had previously been convicted of another battery, Fla. Stat. §784.03(2). Under Florida law, a battery occurs when a person either “[a]ctually and intentionally touches or strikes another person against [his] will,” or “[i]ntentionally causes bodily harm to another person.” §784.03(1)(a). Nothing in the record permitted the District Court to conclude that Johnson’s 2003 conviction rested upon the “strik[ing]” or “[i]ntentionally caus[ing] bodily harm” elements of the offense. Accordingly, his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). Concluding it does, the District Court enhanced Johnson’s sentence under §924(e)(1), sentencing him to a term of 15 years and 5 months. The Eleventh Circuit affirmed.

Continue reading Johnson v. United States …

Friday, February 26, 2010
Supreme Court SyllabiMaryland v. Shatzer

No. 08-680
Date Argued October 5, 2009
Decided February 24, 2010
Opinion Author: Scalia


In 2003, a police detective tried to question respondent Shatzer, who was incarcerated at a Maryland prison pursuant to a prior conviction, about allegations that he had sexually abused his son. Shatzer invoked his Miranda right to have counsel present during interrogation, so the detective terminated the interview. Shatzer was released back into the general prison population, and the investigation was closed. Another detective reopened the investigation in 2006 and attempted to interrogate Shatzer, who was still incarcerated. Shatzer waived his Miranda rights and made inculpatory statements. The trial court refused to suppress those statements, reasoning that Edwards v. Arizona, 451 U. S. 477, did not apply because Shatzer had experienced a break in Miranda custody prior to the 2006 interrogation. Shatzer was convicted of sexual child abuse. The Court of Appeals of Maryland reversed, holding that the mere passage of time does not end the Edwards protections, and that, assuming, arguendo, a break-in-custody exception to Edwards existed, Shatzer’s release back into the general prison population did not constitute such a break.

Continue reading ‘Maryland v Shatzer’ …

Monday, February 22, 2010
Supreme Court SyllabiWilkins v. Gaddy

No. 08-10914

Decided February 22, 2010

Opinion Author: Per Curiam



Per Curiam.

In Hudson v. McMillian, 503 U. S. 1, 4 (1992), this Court held that “the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury.” In this case, the District Court dismissed a prisoner’s excessive force claim based entirely on its determination that his injuries were ” de minimis.” Because the District Court’s approach, affirmed on appeal, is at odds with Hudson’s direction to decide excessive force claims based on the nature of the force rather than the extent of the injury, the petition for certiorari is granted, and the judgment is reversed.

Continue reading ‘Wilkins v. Gaddy’ …

Thaler v. Haynes

No. 09-273

Decided February 22, 2010

Opinion Author: Per Curiam



Per Curiam.

This case presents the question whether any decision of this Court “clearly establishes” that a judge, in ruling on an objection to a peremptory challenge under Batson v. Kentucky, 476 U. S. 79 (1986), must reject a demeanor-based explanation for the challenge unless the judge personally observed and recalls the aspect of the prospective juror’s demeanor on which the explanation is based. The Court of Appeals appears to have concluded that either Batson itself or Snyder v. Louisiana, 552 U. S. 472 (2008), clearly established such a rule, but the Court of Appeals read far too much into those decisions, and its holding, if allowed to stand, would have important implications. We therefore grant the petition for certiorari, grant respondent’s motion to proceed in forma pauperis, and reverse the judgment of the Court of Appeals.

Continue reading Thaler v. Haynes …

Friday, January 22, 2010
Supreme Court News UpdatesJudges CAN Disagree with the Career Offender Guideline

Today, the Supreme Court GVR’d Vazquez v. United States (Case No. 09-5370), an 11th Circuit case.  Judge Presnell originally sentenced Vazquez to 110 months’ incarceration, down from the 210-262 month range for the career offender guideline.  The Eleventh Circuit reversed, finding the sentence procedurally unreasonable because it rested on the district court’s “disagreement with the guidelines, which was impermissible.”

At resentencing, J. Presnell found that “it may be” that the career offender guideline “is immune from the policy criticisms otherwise permissible” because the crack guidelines involved an “implied congressional policy” while the career offender guideline “is a product of direct congressional expression.”  The court resentenced Mr. Vazquez to 180 months’ imprisonment, concluding: “[I]f I were allowed to consider what I consider to be the unjust application of 4B1.1 in this case, I would impose a sentence lower than 180 months.”

On appeal (by Mr. Vazquez), the Eleventh Circuit held that the district court’s refusal to consider its policy disagreement with the career offender guideline was not procedurally unreasonable.  The court believed itself bound by United States v. Williams, 456 F.3d 1353 (11th Cir. 2006), which held that the district court impermissibly ignored congressional policy by generally disagreeing with the career offender guideline.  The court stated that district courts may vary from guidelines based on policy disagreements only “where Sentencing Commission policy judgment, not Congressional direction, underlies the Guideline at issue,’” and “‘where that policy judgment did not arise from the Commission’s exercise of its characteristic institutional role.’”

Vazquez sought rehearing en banc.  In his petition, Mr. Vazquez showed that the Eleventh Circuit was alone in its position (as none of the cases cited by the court really supported its position).  Additionally, Mr. Vazquez cited to the fact that the Solicitor General had taken a position inconsistent with the Eleventh Circuit’s opinion.  The Eleventh Circuit denied rehearing.

In his petition for writ of certiorari, Mr. Vazquez reiterated the points raised in his petition for rehearing.  The Solicitor General agreed that the Eleventh Circuit opinion was wrong, and asked that the Supreme Court remand the case to the Eleventh Circuit so it could affirmatively know the Solicitor General’s position.  Today, the Supreme Court granted cert, vacated the Eleventh Circuit opinion, and remanded for further proceedings based on the Solicitor General’s position.

Carrying a Concealed Weapon Not a Violent Felony

In Hunter v. United States (Case No. 09-122), the S Ct GVR’d another case from the 11th Circuit.  Hunter was sentenced to 188 months as an Armed Career Criminal, based in part on two prior convictions for carrying a concealed weapon.  To make another long procedural story short, the Solicitor General agreed that Hunter’s claim (on a 2255) presented a “substantial showing” that his sentence under the ACCA, in light of Begay and Archer, violated due process because it was in excess of the ten-year statutory maximum otherwise applicable in 18 U.S.C. 922(g) cases.  And today the Supreme Court vacated the Eleventh Circuit’s order denying Hunter’s certificate of appealability and remanded “for further consideration in light of the position asserted by the Solicitor General in her brief.”  Hunter v. United States, No. 09-122 (Jan. 19, 2010).

Tuesday, January 19, 2010
Supreme Court SyllabiPresley v. Georgia

No. 09-5270

Decided January 19, 2010

Opinion Author: Per Curiam



Per Curiam.

After a jury trial in the Superior Court of DeKalb County, Georgia, petitioner Eric Presley was convicted of a cocaine trafficking offense. The conviction was affirmed by the Supreme Court of Georgia. 285 Ga. 270, 674 S. E. 2d 909 (2009). Presley seeks certiorari, claiming his Sixth and Fourteenth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. The Supreme Court of Georgia’s affirmance contravened this Court’s clear precedents. Certiorari and petitioner’s motion for leave to proceed in forma pauperis are now granted, and the judgment is reversed.

Continue reading Presley v. Georgia …

Wellons v. Hall

No. 09-5731

Decided January 19, 2010

Opinion Author: Per Curiam



Per Curiam.

From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioners constitutional claims. We know that the Court of Appeals committed the same procedural error that we corrected in Cone v. Bell, 556 U. S. ___, ___ (2009) (slip op., at 1718). We do not know how the court would have ruled if it had the benefit of our decision in that case.

Continue reading Wellons v. Hall …









Copyright © 1997 - 2010 - Brian H. Brunelle

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Posted in Case Law Update | 13 Comments »

Federal Crack Amendment

Posted by admin on September 8th, 2010

Over the past several years progress has been made in reducing the harsh sentences for crack cocaine offenses. Most recently, on August 3, 2010 the Fair Sentencing Act of 2010 was signed into law, reducing to 18 to 1 the sentencing ratio amount of powder cocaine versus crack cocaine that triggers the same sentence. The legislation also eliminates the mandatory minimum for simple possession of crack.

On November 1, 2007, the Sentencing Commission amended the crack guidelines, lowering the penalties for most crack cocaine offenses in USSG §2D1.1 by two levels. On December 11, 2007, the Commission voted to make the amended guidelines retroactive to cases sentenced before November 1, 2007, with an effective date of March 3, 2008. The Commission also significantly modified USSG §1B1.10, which addresses the retroactive application of amendments. Through an amendment effective May 1, 2008 (Amendment 715), the Commission further modified USSG §2D1.1, revising the way in which combined offense levels are determined in cases involving crack and other drugs. The amendment, which was also made retroactive, provides that 1 gram of cocaine base equals 20 kilograms of marijuana and provides for a two-level reduction in the combined offense level for polydrug cases unless certain exceptions apply.

The resources on this page help explain the new law as well as the application of the 2007 crack cocaine guidelines.

  • Legislative Developments
    • Historic Crack Reform Law Enacted: On August 3, 2010 President Obama signed the Fair Sentencing Act of 2010, reducing sentences for crack cocaine offenses. The 100 to 1 sentencing ratio has been reduced to 18 to 1. Twenty-eight grams of crack cocaine will now trigger a five-year prison sentence and 280 grams of crack will trigger a ten-year sentence. The five-year mandatory minimum for simple possession of crack cocaine has also been eliminated. The Fair Sentencing Act does not appear to apply retroactively. The Sentencing Commission has issued proposed amendments to implement the directives of the new legislation. The notice and comment period for the proposed amendments is 30 days, to accommodate the Act’s mandate that the Commission promulgate temporary amendments by November 1, 2010. For details on the Act, including the issue of retroactivity, see the FAMM website and the Sentencing Law and Policy Blog. Also, this sample pleading may be helpful in arguing for application of the Act to pending cases with offenses committed before August 3, 2010.
    • Testimony of Assistant United States Attorney General Lanny Breuer Supporting Elimination of Crack/Powder Disparity (April 30, 2009)
      In testimony before the Senate Judiciary Subcommittee on Crime and Drugs yesterday, Assistant United States Attorney General Lanny Breuer declared that “Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” This is the first time that the Department of Justice has supported equalization of cocaine sentencing. Noting that a complete end to the sentencing disparity cannot occur without Congressional action, Mr. Breuer offered hope for defendants currently facing sentencing for crack cocaine offenses:

      [W]e recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.

      Mr. Breuer was one of several witnesses who testified at the April 30th hearing on “Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity.” On May 21, 2009, Mr. Breuer reiterated the Administration’s position before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security’s Hearing on: Unfairness in Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity?

    • Joint Statement of Thomas W. Hillier, II and Jon Sands at the April 29, 2009 U.S. Senate Hearing on Restoring Fairness to Sentencing: Addressing the Crack-Powder Disparity
      Thomas W. Hillier, II, Federal Public Defender, Western District of Washington, Chair, Federal Defender Legislative Expert Panel; Jon Sands, Federal Public Defender, District of Arizona, Federal Defender Sentencing Guidelines Committee, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
      This testimony urges the following reforms: (1) penalties for offenses involving the same quantity of crack and powder cocaine should be equalized at a level no greater than the current level for powder cocaine; (2) differences among offenses and offenders should be taken into account by the sentencing judge in the individual case, and aggravating circumstances should not be built into every sentence for crack cocaine; (3) the mandatory minimum for simple possession of crack cocaine should be repealed; (4) mandatory minimums should be repealed; (5) recidivist sentencing enhancements should be narrowly tailored to minimize their disparate impact on people of color; (6) enhanced penalties for drug distribution near protected zones should be repealed.
    • Statement of A.J. Kramer at the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity
      A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
      This testimony urges Congress to make the following reforms: equalize the penalties for crack and powder cocaine at the current powder cocaine quantity levels; direct the USSC to review and, if appropriate, amend the guidelines applicable to all drug types, to account for aggravating and mitigating circumstances that may or may not be present in individual cases; repeal the mandatory minimum for simple possession of crack cocaine; repeal the mandatory minimum for all drug offenses; establish a pilot program for federal substance abuse courts; authorize the appropriation of additional funds for the defense of drug trafficking cases in the event Congress authorizes increased salaries and expenses for the prosecution of such cases. In A.J. Kramer’s Supplemental Statement he also addresses DOJ’s arguments against retroactive application of the crack cocaine amendments and refutes DOJ claims regarding the rates of violence and recidivism of crack cocaine offenders.
    • Statement of Michael S. Nachmanoff at the February 26, 2008 U.S. House of Representatives Hearing – Cracked Justice: Addressing the Unfairness in Cocaine Sentencing
      Michael S. Nachmanoff, Federal Defender, Eastern District of Virginia, on behalf of the Federal Public and Community Defenders, before the Judiciary Committee of the House of Representatives Subcommittee on Crime, Terrorism and Homeland Security
      This testimony provides additional support and statistics for many of the same arguments made in A.J. Kramer’s Testimony & Supplemental Testimony (described above on this page) before the Senate Subcommittee on Crime and Drugs of the Senate Judiciary Committee.
  • DOJ and USSC Support of Equalization
    • DOJ Memo of May 1, 2009 on Department Policies and Procedures Concerning Sentencing for Crack Cocaine Offenses
      This memo from the Deputy Attorney General to all United States Attorneys directs prosecutors to “inform courts that the Administration believes Congress and the Commission should eliminate the crack/powder disparity, but that Congress has not yet determined whether or how to achieve a more appropriate sentencing scheme for crack and powder offenses. Until Congress acts, courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a). Prosecutors should be governed by the facts and circumstances of individual cases and existing law. They may indicate that they will not object to a reasonable variance in an average case.”
    • 2007 USSC Report to Congress on Cocaine and Federal Sentencing Policy
      In this report, the Commission urges reform of the crack cocaine sentencing laws. Facts and arguments contained in the report may be very useful to practitioners defending crack cocaine cases.
  • Mathematical Anomalies Resulting from Drug Equivalency and Quantity Tables
    When the USSC amended the crack cocaine guideline to reduce the base offense levels in November 2007, two separate types of mathematical anomalies resulted: (1) within range-anomalies and differing ratios between crack and powder cocaine in the drug quantity table; and (2) false equivalencies in poly-drug cases resulting from a new crack-to-marijuana equivalency table, resulting in base offense levels no different than pre-amendment levels. The first of these anomalies remains. With Amendment 715, effective May 1, 2008, the Commission remedied the second of these anomalies.

    • Present Anomalies Resulting from Drug Quantity Table: Currently, the lowest ratios incorporated into the amended Drug Quantity Table of §2D1.1 only operate at base offense level 26. This results in within range-anomalies and wildly disparate ratios between crack and powder cocaine. See Kimbrough v. United States, 128 S.Ct. 558, 573 (2007)(“[a]s a result of the 2007 amendment,. . .the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1″). When the Commission promulgates a guideline that is based on “unsound judgment,” such as the arbitrary crack/powder ratios animating the drug quantity table, courts may exercise discretion to reject that provision. See Rita v. United States, 127 S.Ct. 2456, 2468 (2007); Spears v. United States, _ S.Ct._, 2009 WL 129044 (Jan. 21, 2008) (per curiam) (reaffirming holding in Kimbrough that sentencing judges are entitled to reject and vary from crack cocaine guidelines based on policy disagreements, i.e., that 100:1 crack/powder ratio creates unwarranted disparity); see also U.S. v. Taylor, 586 F. Supp. 2d 1065, 1069. (E.D.Wis. Oct. 29, 2008) (finding that continued flaws and disparity in crack to powder ratio supports non-guideline sentence where had defendant possessed only powder cocaine, his base offense level would have been 22 rather than 30, and his range 46-57 months rather than 108-135). This analysis should find support in the new legislation that reduces the disparity to 18:1.

      For a more thorough discussion of present anomalies and suggestions on how to argue against unwarranted disparity still existing between the guidelines treatment of crack and powder cocaine offenses see Good Math to Fight the Bad Math: Avoiding Unwarranted Disparity by Applying the Commission’s Lowest Accepted Ratios to All Offense Levels.

    • Remedy to False Equivalencies in Poly-Drug Cases: Through amendment 715, the Commission modified the Drug Equivalency Tables in Application Note 10(E) of §2D1.1, to provide that 1 gram of cocaine base equals 20 kilograms of marijuana. It also amended Application Note 10(D) to provide for a two level reduction to the combined offense level for a case involving crack and one or more other drugs, subject to some exclusions. A corresponding amendment to §1B1.10 renders the change to §2D1.1 retroactive. Attorneys who are challenging §2D1.1 on its face may wish to study the history of the prior mathematical problems with the equivalency table.
  • Guidance to CJA Panel Attorneys
  • Sample Motions, Briefs, Petitions and Orders
  • Chart Comparing Amended Version of USSG §1B1.10 with Previous Version
    by National Federal Defender Sentencing Resource Counsel
    This chart compares the November 1, 2007 amended version of USSG §1B1.10 against the previous version, pointing out new potential limitations on eligibility for relief. For additional comparisons of the previous and amended versions of USSG §1B1.10 see Redline Version of §1B1.10, Old Version of §1B1.10 and Amended Version of §1B1.10.
  • Supreme Court Holds That Booker Does Not Apply to Resentencings Under 18 U.S.C. § 3582
    In Dillon v. United States (No. 09-6338), issued on June 17, 2010, the Court held that Booker does not apply to sentencing modifications under 18 U.S.C. § 3582(c)(2). Percy Dillon had moved for a sentence reduction after the crack cocaine guidelines were amended, arguing both for the two-level reduction set forth in the amended guidelines as well as a sentence below the amended guideline range based on application of the 3553(a) factors. The Third Circuit held that Booker did not apply to section 3582 sentencing modifications; instead, the court treated the amended guideline range as mandatory and held that the defendant was only eligible for the two-level reduction. In affirming the Third Circuit’s judgment, the Supreme Court first determined that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Based on this determination, “we conclude that proceedings under that section do not implicate the interests identified in Booker.” For further analysis of Dillon see this SCOTUSblog post. For briefs filed in the case see SCOTUSwiki. For orders cited within petitioner’s reply brief see fact-finding orders and appointment of counsel orders.
  • Commission Clarifies Meaning of USSG §1B1.10(b)(2)(B): Clients Who Received Non-Guideline Sentence Under Booker Still Eligible for Crack Retroactivity Sentence Reduction
    The amended guideline retroactivity policy statement, USSG §1B1.10, states at §1B1.10(b)(2)(B) that “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, a further reduction generally would not be appropriate.” This appears to suggest that clients are not entitled to relief under the amendment if they received a non-guideline sentence under Booker. However, Sentencing Resource Counsel, as well as many Federal Defenders, report that at the Crack Summits in Charlotte and St. Louis, and at the Defender conference in Seattle, the Commission explained that §1B1.10(b)(2)(B) applies only if the original sentencing judge did not consider the guidelines at all. This acknowledgment is good news because there should be no instances in which judges ignored the guidelines. A sentencing judge must consider the guidelines, even if she then rejects them as unsound policy, and to do otherwise is reversible error under Gall v. United States, 128 S.Ct. 586, 596 (2007); Kimbrough v. United States, 128 S.Ct. 558, 564, 570 (2007); Rita v. United States, 127 S.Ct. 2456, 2465, 2468 (2007); Booker, 543 U.S. 220, 245-46 (2005). For comments relevant to this issue made at the St. Louis Crack Summit, view the Transcript of Portions of the Crack Amendment Retroactivity Summit.
  • Crack Retroactivity: Questions, Answers, Caselaw, Argument Outlines (February 18, 2008)
    by Federal Public & Community Defenders
    This memorandum addresses a variety of procedural and substantive issues arising in crack retroactivity cases including: the right to counsel; the right to a hearing and for the defendant to be present; whether a court must order a new presentence report upon motion; whether a court may amend a sentence under § 3582(c)(2) where the original sentence was imposed pursuant to a binding plea agreement; application of §3582(c)(2) to defendants who originally received a non-guideline sentence; application of safety valve or the substantial assistance statute in §3582(c)(2) proceedings; application of §3582(c)(2) relief to career offenders; relief where the defendant was incarcerated beyond the expiration of his sentence under the amended guideline range; and whether a court may impose a sentence below the minimum of the amended guideline range. For a more recent update on several issues raised in this article, see Crack Retroactivity Caselaw (May 11, 2009).

    For prior articles raising similar issues, see Sentence Reductions Under the Retroactive Crack Amendment , Selected Retroactivity Caselaw, Retroactive Crack Amendment: Practice Tips and Other Lessons Learned in Charlotte and Crack Summit II: Practice Tips and Lessons Learned in St. Louis.

  • Appointment of Counsel in Crack Retroactivity Cases (June 25, 2008)
    by the Training Branch of the Office of Defender Services
    This memo to the participants of the National Sentencing Policy Institute presents ten reasons why counsel should be appointed to handle § 3582(c)(2) motions. For a prior memorandum addressing this issue, see Providing Counsel to All Potentially Eligible Beneficiaries of the Retroactive Crack Guideline Amendment Makes Sense and Is Constitutionally Required (by National Federal Defender Sentencing Resource Counsel) and Effective, Efficient, and Fair Implementation of the Retroactive Amendment.
  • BOP Communications Affecting Inmates Eligible for Sentence Reductions Under the Amended Crack Cocaine Guidelines
  • Letter from Defenders to the United States Sentencing Commission (November 21, 2007)
    This letter outlines the Defender community’s opposition to the Commission’s decision to amend USSG §1B1.10 (concerning retroactive application of amendments). Practitioners may find this letter useful in arguing, for example, that courts are not bound by the limitations set forth in the amendments to USSG §1B1.10.
  • Supplemental Statement of A.J. Kramer for the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity
    A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
    This supplemental testimony responds to several DOJ assertions about retroactive application of the crack cocaine amendments, and corrects DOJ inaccuracies concerning alleged “dangerousness” of defendants convicted of crack cocaine offenses. It includes statistics showing lack of violence and recidivism in crack cocaine cases, urges judicial discretion, and directly contradicts DOJ testimony. Practitioners can use this supplemental statement, as well as A.J. Kramer’s original testimony, and the testimony of Michael Nachmanoff before the House, when disputing prosecutorial allegations that crack cocaine offenses, and those who are convicted of them, are “dangerous.”
  • Families Against Mandatory Minimums
    Check FAMM’s web site for updated information on legislative developments regarding punishment for cocaine related offenses.
  • FJC Crack Cocaine Retroactivity Guideline Information Exchange
    The Federal Judicial Center hosts this intranet web page to provide a forum for sharing information and ideas on policy and practice with regard to crack cocaine sentencing guideline retroactivity. Those with access to the site include all federal court judges and employees, federal defenders, personnel from the Administrative Office of the U.S. Courts (such as Probation), the Sentencing Commission and the Federal Judicial Center.

Office of Defender Services/Training Branch, Administrative Office of the United States Courts * One Columbus Circle, N.E. * Suite G-430 * Washington, DC 20544 Phone (202) 502-2900 * Hotline (800) 788-9908 * Fax (202) 502-2911

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Posted in Case Law Update | 13 Comments »

Posted by admin on September 8th, 2010


This outline summarizes United States Supreme Court decisions published between

September 29, 2009 and March 31, 2010, and those cases pending review. For up-to-date

summaries of all decided cases and cases pending review, see the


Division, Office of the Federal Public Defender, S.D. Fla., and available at

United States Supreme Court, updated weekly by Paul M. Rashkind, Chief of the Appellate

direct any email questions about this outline or the websites listed above to


A. Cases Granted Review

, or the U.S. Supreme Court Blog at

Skilling v. United States

F.3d 529 (5th Cir. 2009); Honest Services Fraud; 18 U.S.C. § 1346.

, 130 S.Ct. 393 (cert. granted Oct. 13, 2009); decision below at 554

Issues: (1) Whether the federal “honest services” fraud statute, 18 U.S.C. § 1346, requires

the government to prove that the defendant’s conduct was intended to achieve

“private gain” rather than to advance the employer’s interests, and, if not, whether

§ 1346 is unconstitutionally vague. (2) When a presumption of jury prejudice

arises because of the widespread community impact of the defendant’s alleged

conduct and massive, inflammatory pretrial publicity, whether the government

may rebut the presumption of prejudice, and, if so, whether the government must

prove beyond a reasonable doubt that no juror was actually prejudiced.

Holder v. Humanitarian Law Project

below at 552 F.3d 916 (9th Cir. 2007); Material Assistance to Terrorist Organization; 18

U.S.C. § 2339B(a)(1).

, 130 S.Ct. 48 (cert. granted Sep. 30, 2009); decision

Issue: Whether 18 U.S.C. § 2339B(a)(1), which prohibits the knowing provision of “any

*** service, *** training, [or] expert advice or assistance,” 18 U.S.C. §

2339A(b)(1), to a designated foreign terrorist organization, is unconstitutionally


Carr v. United States

578 (7th Cir. 2009); Sex Offender Registration and Notification Act (“SORNA”); 18 U.S.C.

, 130 S. Ct. 47 (cert. granted Sept. 30, 2009); decision below at 551 F.3d


2250(a).Issues: (1) Whether 18 U.S.C. § 2250(a), which imposes criminal penalties on certain sex

offenders who travel in interstate commerce and knowingly fail to register or

update a registration as required by SORNA, 42 U.S.C. § 16901, et seq., applies

to petitioner, whose interstate travel occurred after his conviction for a sex offense

Page 4 of 8

that triggers a registration requirement, but before SORNA’s enactment. (2)

Whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a

person whose underlying offense and interstate travel predated SORNA’s

enactment, but whose failure to register occurred well after SORNA’s

requirements became applicable to him.

Robertson v. United States, ex Rel. Watson

decision below at 940 A.2d 1050 (D.C. Cir. 2008); Criminal Contempt; D.C. Code 1981,

, 130 S.Ct. 1011 (cert. granted Dec. 14, 2009);§


Issue: Whether, consistent with this Court’s cases and the Due Process Clause of the

Fifth Amendment to the United States Constitution, an action for criminal

contempt in a congressionally created court may be brought in the name and

pursuant to the power of a private person, rather than in the name and pursuant to

the power of the United States.


A. Case Granted Review

McDonald v. City of Chicago

2008 WL 5111112 (N.D. Ill. 2008); Second Amendment.

, 130 S.Ct. 48 (cert. granted Sep. 30, 2009); decision below at

Issue: Whether the Second Amendment right to keep and bear arms is incorporated as

against the States by the Fourteenth Amendment’s Privileges or Immunities or

Due Process Clauses.


A. Case Granted Review

City of Ontario v. Quon

F.3d 892 (9th Cir. 2009); Fourth Amendment and Expectation of Privacy.

, 130 S. Ct. 1011 (cert. granted Dec. 14, 2009); decision below at 529

Issues: (1) Whether a SWAT team member has a reasonable expectation of privacy in text

messages transmitted on his SWAT pager, where the police department has an official

no-privacy policy but a non-policymaking lieutenant announced an informal policy of

allowing some personal use of the pagers. (2) Whether the Ninth Circuit contravened this

Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether

the police department could have used “less intrusive methods” of reviewing text

messages transmitted by a SWAT team member on his SWAT pager. (3) Whether

individuals who send text messages to a SWAT team member’s SWAT pager have a

Page 5 of 8

reasonable expectation that their messages will be free from review by the recipient’s

government employer.


A. Decided Cases

Maryland v. Shatzer


, 559 U.S. ___ (2010); Questioning Following Invocation of Right to

Issue: Can an extended passage of time (here two and a half years) between a person’s

invocation of the right to counsel and officer’s subsequent attempts to question that

person nullify the proscription against further police-initiated questioning.

Held: Yes, the rule enunciated in

person’s invocation of right to counsel only applies to a period of 14 days after such


Edwards v. Arizona which precludes interrogation following aFlorida v. Powell

of Counsel.

, 559 U.S. __ (2010); Sufficiency of

Miranda’s Advice of Right to PresenceIssue: Whether prior to questioning a person, the interrogating officer must expressly advise

him/her of the rights to consult with counsel prior to questioning and at any time during


Held: No, so long as the

custodial interrogation, the warnings need not expressly state that a person has the right to

consult with an attorney prior to answering questions and has a related right to consult

with counsel in the middle of interrogation. Here, the warning of a “right to talk to a

lawyer before answering any questions” along with the right to use this right at any time,


Miranda warning reasonably conveys rights which attach during aPadilla v. Kentucky

, 559 U.S. __ (2010); Right to Effective Assistance of Counsel.

Issue: Whether failure to correctly inform client of guilty plea’s immigration consequences

constitutes ineffective assistance of counsel.

Held: As a matter of federal law, counsel must inform a client when his or her plea carries a risk

of deportation.

B. Cases Granted Review

Page 6 of 8

Michigan v. Bryant

Mich. 132 (2009); Confrontation Clause and

, 130 S. Ct. __ (cert. granted March 1, 2010); decision below at 483

Crawford.Issue: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and

circumstances of the shooting are nontestimonial because they were “made under

circumstances objectively indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency,” including not only aid to a

wounded victim, but also the prompt identification and apprehension of an apparently

violent and dangerous individual.


A. Decided Case

Johnson v. United States


, 559 U. S. __ (2010); Armed Career Criminal Act (“ACCA”)

Issues: (1) Whether a simple battery conviction involving merely de minimis physical contact

categorically meets ACCA’s “violent felony” definition. (2) Whether a state’s highest

court holding that predicate state conviction does not have as an element the use or

threatened use of physical force against another is binding on federal court applying


Held: Because the Florida offense of battery by offensive touching does not require the use of

physical force, it does not qualify as an ACCA predicate under § 924(e)(2)(B)(i).

B. Cases Granted Review

United States v. O’Brien

F.3d 921 (1st Cir. 2009); Mandatory Minimums.

, 130 S. Ct. 49 (cert. granted Sept. 30, 2009); decision below at 542

Issue: Section 924(c)(1) of Title 18 of the United States Code provides for a series of escalating

mandatory minimum sentences depending on the manner in which the basic crime (viz.

using or carrying a firearm during and in relation to an underlying offense, or possessing

that firearm in furtherance of that offense) is carried out. The question is whether the

sentence enhancement to a 30-year minimum when the firearm is a machine gun is an

element of the offense that must be charged and proved to a jury beyond a reasonable

doubt, or instead a sentencing factor that may be found by a judge by the preponderance

of the evidence.

Barber v. Thomas

800 (9th Cir. 2008); Good Time Credit.

, 130 S. Ct. 737 (cert. granted Nov. 30, 2009); decision below at 533 F.3d

Page 7 of 8

Issues: (1) Does “term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act,

enacting 18 U.S.C. § 3624(b), unambiguously require the computation of good time

credits on the basis of the sentence imposed. (2) If “term of imprisonment” in the federal

good time credit statute is ambiguous, does the rule of lenity and the deference

appropriate to the United States Sentencing Commission require that good time credits be

awarded based on the sentence imposed.

Abbott v. United States


Cir. 2009) and 329 Fed. Appx. 569 (5th Cir. 2009), respectively; Consecutive Mandatory

Minimums with § 924(c).

, 130 S. Ct. 1284 (cert. granted Jan. 25, 2010) and

Gould v. United, 130 S. Ct. 1283 (cert. granted Jan. 25, 2010); decisions below at 574 F.3d 203 (3rdIssue: The cases have been consolidated to determine whether 18 U.S.C. § 924(c)(1)(A)’s

prefatory phrase “[e]xcept to the extent that a greater minimum sentence is otherwise

provided by this section or by any other provision of law” encompasses the underlying

drug trafficking offense or crime of violence, and if not, whether it includes another

offense for possessing the firearm in the same transaction.

United States v. Dolan

F.3d 10 (10th Cir. 2009); Timeliness of Order of Restitution.

, 130 S. Ct. 1047 (cert. granted Jan. 8, 2010); decision below at 571

Issue: Whether a district court may enter a restitution order beyond the time limit prescribed in

18 U.S.C. § 3664(d)(5).

Dillon v. United States

572 F.3d 146 (3rd Cir. Jun 10, 2009); 18 U.S.C. § 3582(c).

, 130 S.Ct. 797 (cert. granted December 7, 2009); decision below at

Issues: (1) Whether the Federal Sentencing Guidelines are binding when a district court imposes

a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582. (2)

Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence

based on an admittedly incorrectly calculated guideline range.

Carachuri-Rosendo v. Holder

below at 570 F.3d 263 (5th Cir. 2009); Federal Misdemeanor as an Aggravated Felony.

, 130 S.Ct. 1012 (cert. granted December 14, 2009); decision

Issue: Whether a person convicted under state law for simple drug possession (a federal

misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could

have been prosecuted for recidivist simple possession (a federal felony), even though

there was no charge or finding of a prior conviction in his prosecution for possession.


A. Case Granted Review

Page 8 of 8

United States v. Marcus

538 F.3d 97 (2 Cir. 2008); Ex Post Facto Prohibitions

, 130 S.Ct. 393 (cert. granted October 13, 2009); decision below atnd and Standard of Review.

Issue: Whether the Second Circuit departed from the Court’s interpretation of Rule 52(b) of the

Federal Rules of Criminal Procedure by adopting as the appropriate standard for

plain-error review of an alleged ex post facto violation whether there is any possibility

that the defendant could have been convicted based exclusively on conduct that took

place before the enactment of the statutes in question.

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