Monday, December 08, 2014

Miscalculation Of Mandatory Minimum That “Has An Impact” On Sentence Is Plain Error


United States v. Sanchez, No. 11-2429-CR (2d Cir. Dec. 4, 2013) (Cabranes, Straub, and Livingston), available here

Defendant pleaded guilty to possession with intent to distribute more than 1 kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), an offense that carries a 10-year mandatory minimum.  The government filed a prior felony information pursuant to 21 U.S.C. § 851, arguing that defendant’s prior Connecticut narcotics conviction increased his mandatory minimum to 20 years.  Defendant did not object.  Without making any reference to the mandatory minimum, the district court (D. Conn.; Nevas, J.) sentenced defendant to 288 months, a downward variance from the Guidelines range of 360-life.
On appeal, the Circuit accepted the government’s concession that it was clear error to treat defendant’s prior as a qualifying predicate because the Connecticut and federal narcotics laws are not coterminous.  However, the Circuit rejected the government’s argument that the error was harmless in light of defendant’s 288-month sentence, which was well above the miscalculated mandatory minimum.  In the Circuit’s view, the miscalculation had an impact on defendant’s sentence because “the assumption of a 20-year minimum sentence permeates the record.”  (slip op, at 8).  For example, defendant’s counsel argued that the proper range for the district court to consider was 20 to 30 years (the government had agreed not to seek a sentence greater than 30 years).  Likewise, the government urged the district court, if it imposed a below-Guidelines sentence, to impose a sentence above the mandatory minimum, and not to “reward” defendant with a sentence of 20 years.  Finally, the 288-month sentence was closer to 20 years than 30 years.  Consequently, the error affected defendant’s substantial rights as well as the fairness and integrity of judicial proceedings.
Notably, the Circuit rejected the government’s position (based on United States v. Deandrade, 600 F.3d 115 (2d Cir. 2010)), that a sentence in excess of a miscalculated mandatory minimum is not plain error.  Rather, the Circuit distinguished Deandrade on the ground that there, the sentencing court expressly disavowed reliance on the mandatory minimum.  Similarly, the Circuit declined to address defendant’s argument that miscalculation of the mandatory minimum is always prejudicial under Alleyne v. United States, 133 S. Ct. 2151 (2013).  Thus, the Circuit takes the middle position that miscalculation of the mandatory minimum is plain error where, as here, the error “has an impact” on the actual sentence -- even if that sentence is greater than the miscalculated minimum and within the Guidelines range.

Thursday, December 04, 2014

Appeal from Supervised Release Revocation Not Rendered Moot By Completion of Prison Sentence

United States v. Wiltshire, No. 13-3590-cr (2d Cir. Dec. 1, 2014) (Kearse, Straub, and Wesley), available here

The district court found that defendant violated her supervised release by making false statements to her probation officer and by leaving the district of her supervision without permission. She was sentenced to 90 days in custody, to be served on weekends, to be followed by five years of supervised release.

During the pendency of her appeal, defendant completed her custodial sentence, but her term of supervision had not yet run.

Did the expiration of defendant's custodial sentence render her appeal moot? The Court said no, because the district court's judgment directly exposed defendant to two additional years of supervised release. The appeal was thus not moot because a favorable appellate ruling might prompt the district court to reduce defendant's term of supervised release.

Unfortunately for defendant, however, the Circuit ruled on the merits that the district court properly found her to have violated the conditions of her supervised release. Accordingly, the Court affirmed.

Monday, November 24, 2014

Defendant Not Entitled To Suppression Of Evidence Obtained In Violation Of Wife’s Substantive Due Process Rights



United States v. Anderson, No. 13-4152-CR (2d Cir. Nov. 24, 2013) (Parker, Lynch, and Carney), available here 

Following a traffic stop of defendant’s car, Vermont state troopers arrested defendant’s wife Crystal, a passenger, believing that she had drugs hidden on her person.  The troopers brought Crystal to the state police barracks, handcuffed her to a chair, and told her that they were applying for a warrant for a body cavity search.  A state judge denied the application, but the troopers concealed this fact from Crystal.  Instead, over several hours of detention and interrogation, the troopers falsely told Crystal that she would be taken to a hospital where the body search would be performed, falsely told her that her husband had incriminated her in drug trafficking, and refused her repeated requests to see a signed warrant.  Ultimately, Crystal signed a Miranda waiver, admitted that there were drugs hidden in her vagina, removed the drugs, and surrendered them to the troopers.
Prior to defendant’s trial in D. Vt. (Crystal pleaded guilty), the district court (Reiss, C.J.) granted defendant’s motion to suppress the drugs, ruling that their admission would violate defendant’s substantive due process rights because they were obtained by law enforcement conduct that shocked the conscience. 
On appeal, the government conceded that the troopers’ conduct violated Crystal’s Fifth Amendment substantive due process rights, but argued that defendant could not base a substantive due process claim for suppression on what happened to his wife.  Relying on United States v. Payner, 447 U.S. 727, 735-37 n.9 (1980) (“[T]he limitations of the Due Process Clause ... come into play only when the Government activity in question violates some protected right of the defendant.”), the Circuit agreed and reversed.  In the Circuit’s view, Payner “precludes suppression, on substantive due process grounds, of physical evidence obtained through a flagrantly illegal search directed at someone other than the defendant.”  (slip op., at 11).
The Circuit left open the possibility that substantive due process might sometimes require suppression of physical evidence obtained through outrageous government conduct against a third party.  Such conduct, however, would have to be “torture” or otherwise “so beyond the pale of civilized society that no court could countenance it.”  (slip op, at 12).  Finally, rejecting defendant’s alternative argument for affirmance, the Circuit held that suppression was not authorized in the exercise of the district court’s supervisory powers, where suppression was not compelled by the Fifth Amendment.

Sunday, November 23, 2014

Plain Error For District Court To Consider Non-Shepard Documents In Determining Whether Prior Offenses Were Committed On "Different Occasions" Under ACCA


United States v. Dantzler, No. 13-2930-cr (2d Cir. Nov. 14, 2014) (Cabranes, Carney and Droney), available here

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates a 15-year minimum sentence for certain firearms offenses if a defendant “has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another.”  In this case, the Circuit held that in determining whether prior offenses were “committed on occasions different from one another,” a district court is limited to consulting documents approved in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).  That is, a district court may consider the fact of the prior conviction, the statutory definition of the offense, the charging document, the jury instructions, the written plea agreement, the transcript of plea colloquy, and any explicit factual finding by the trial court to which the defendant assented.  However, it is plain error for a district court to consider (as the court did here) non-Shepard court records, parole records, local PSRs, arrest reports, criminal complaints, or a federal PSR that incorporates information drawn from these sources.
Defendant pleaded guilty to felon in possession.  He had three prior New York State robbery convictions, two of which arose from conduct that occurred on the same day.  After reviewing non-Shepard materials -- in particular, criminal complaints attached to defendant’s sentencing submission -- indicating that the two robberies occurred an hour and a half apart, in different boroughs, and involved different victims, the district court (Garaufis, J.) determined that the robberies had been committed on “different occasions” for ACCA purposes.  Defendant did not raise a Shepard objection.
On appeal, the Circuit found plain error and reversed.  The Circuit noted that under Taylor/Shepard, a district court is limited to conclusive judicial records in determining whether a prior conviction is a “violent felony” for ACCA purposes, and saw no reason to apply a different rule in determining whether prior convictions were committed on “different occasions.”  On the contrary, maintaining the same rule would minimize judicial fact-finding and avoid the Sixth Amendment problems that would result from enhancing a sentence based on judge-found facts about the nature of prior convictions.  The error affected defendant’s substantial rights, as well as the fairness and integrity of judicial proceedings, because it increased his mandatory minimum sentence from 0 to 15 years and his Guidelines range from 92-115 to 168-210 months.  Defendant’s submission of and reliance on the New York criminal complaints was immaterial because the government always bears the burden of proving the applicability of an ACCA enhancement with Shepard-approved documents.
The Circuit did not foreclose the possibility that a district court could consider a PSR “derived in whole, or in large part,” from ­Shepard-approved documents.  Likewise, the Circuit acknowledged that materials provided in the parties’ sentencing submissions or incorporated into the PSR might be analogous to Shepard-approved documents, and remanded for the district court to consider that possibility in this case.  
[Disclosure: Federal Defenders of New York, Inc., represents the defendant, Zephaniah Dantzler, in this case.]