... and Justice for All

Does presence of a gun inside a vehicle mean that a passenger possessed it?

Does the presence of a gun inside a vehicle mean that a passenger possessed it? No, not without more the Sixth Circuit has ruled in United States v. Wilson (December 6, 2022).

The defendant pleaded guilty to possessing methamphetamine with intent to distribute. The district court applied a two-level enhancement for possession of a firearm during the offense under section 2D1.1(b)(1) of the sentencing guidelines. This was a big mistake and was vacated by the appeals court. 

The defendant was involved in two drug-related incidents. In the first, he was identified as the driver of a car that fled and police later recovered drugs and a handgun from the car. Almost four months later, the defendant was seen exiting the backseat of a vehicle, a Ford F-150, on the driver's side. Meth and other evidence was found on his person. Police found a revolver under the front passenger seat, a handgun in the back pocket of the front passenger seat and a rifle underneath the rear passenger seat, although it was not visible "without first lifting the seat." 

The Sixth Circuit ruled that the district judge clearly erred in finding that the defendant constructively possessed any of the three firearms recovered from the Ford F-150. First, "something more than proximity is required to show constructive possession." Second, a "defendant's mere presence in a car where a gun is found and proximity to a gun are insufficient proof of constructive possession," a quote taken from an earlier Sixth Circuit decision United States v. Newsom, 452 F.3d 593, 609 (6th Cir. 2006). Third, the government "did not present evidence that the rifle was visible or that [the defendant] knew it was under the seat." Finally, there was no other incriminating evidence such as a connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise or a statement of ownership is needed in combination with proximity to show constructive possession. 

Circuit Judge John Nalbandian dissented and went far, far out of his way to conjure up some basis to prop up the district court's clearly erroneous finding. One was that even though the district court did not find and the government did not argue in either the district court or to the Sixth Circuit, the enhancement could still be supported by the gun recovered in the first drug-related incident. The main rationale that Judge Nalbandian offered was that the defendant had some ownership interests in the vehicle. That, of course, cut against the defendant's possession of the gun the district court erroneously found and the government argued he possessed involved in the second incident. This "heads I win, tails you lose" logic cannot stand, the majority responded in a pithy footnote, "[e]ither ownership and sole occupancy of a vehicle matters for constructive possession, or it does not." 

Heads the government wins, tails the defendant loses pretty much sums up federal criminal law nowadays. Rare is the instance where it is called out and rejected. Circuit Judge Karen Nelson Moore joined by Circuit Judge Eric Clay deserve special mention for doing so. 

Robert L. Abell
www.RobertAbellLaw.com

$4000 Fine Imposed on Indigent Defendant Affirmed by Sixth Circuit

The Sixth Circuit has upheld a fine of $4000 imposed on an indigent defendant. United States v. Godoy-Valles. The defendant, who pleaded guilty to illegally re-entering the United States after being deported previously based on a felony conviction, was also sentenced to 30 months in federal prison. 

Congratulations to Sixth Circuit Judges Bernice Donald, John Bush and John Nalbandian for rising in the federal judiciary to adjudicate cases with $4000 in issue. 

We note also this finding by the Brennan Center:

A wealth of evid­ence has already shown that this system works against the goal of rehab­il­it­a­tion and creates a major barrier to people reen­ter­ing soci­ety after a convic­tion.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Trump, John Eastman and the Crime-Fraud Exception to the Attorney-Client Privilege

The attorney-client privilege is a vital cornerstone of American law. It is founded on the notion that attorney-client communications must be and remain confidential in almost all circumstances, so as to encourage the client to be truthful and transparent to the attorney so that the client might get the best legal advice. One limited exception, however, is where the apparent purpose of the attorney-client communications is to plan or commit a crime; this is known as the crime-fraud exception to the attorney-client privilege. In a thorough, well-reasoned opinion, a federal district judge has ruled that the crime-fraud exception applied to at least some of the attorney-client communications between former President Donald Trump and John Eastman, an attorney and law professor engaged in what even Eastman admitted was a scheme thoroughly unsupported by any valid legal argument or position to obstruct the electoral certification that Joe Biden won the 2020 presidential election. The case is John Eastman v. Bennie G. Thompson, Select Committee to Investigate the January 6 Attack on the U.S. Capitol.

John Eastman is a law professor at Chapman University in California and somehow or another became engaged with former Trump and his efforts to overturn the results of the 2020 presidential election. The suit was an effort by Eastman to block the House of Representatives Select Committee investigating the January 6, 2021, attack on the US Capitol from obtaining emails sent or received by Eastman on his University email account. This particular ruling concerned only 111 documents, all of which were apparently generated between January 4 – 7, 2021.

The court’s opinion includes significant discussion of factual history. It portrays former President Donald Trump as attempting unsuccessfully to first bully the Department of Justice into taking some kind of action to overturn the election results. The court’s opinion describes one of those efforts on January 3, 2021, the day after Trump had telephoned Georgia Secretary of State Brad Raffensberger and urged him “to find 11,780 votes” as follows:

The next day, President Trump attempted to elevate Jeffrey Clark to Acting Attorney General, based on Mr. Clark statements that he would write a letter to contested states saying that the election may have been stolen and urging them to decertify electors. The White House Counsel described Mr. Clark’s proposed letter as a “murder-suicide pact” that would “damage everyone who touches it” and commented “we should have nothing to do with that letter.” President Trump eventually did not promote Mr. Clark after multiple high-ranking members of the Department of Justice threatened mass resignations that would leave the department a “graveyard.”

This comes from sworn deposition testimony by Jeffrey Rosen, the actual Acting Attorney General, and Richard Donoghue, the Acting Deputy Attorney General.

            The same day, January 3, 2021, that Trump abandoned his plan to elevate Jeffrey Clark, Eastman released and later disclosed to the media a purported legal memorandum that the court described as follows:

            On January 3, 2021, Dr. Eastman drafted a six-page memo expanding on his plan and analysis, which he later disclosed to the media. This memo “war gam[ed]” for potential scenarios for January 6, only some of which would lead to President Trump winning reelection. Claiming that “[t]he stakes could not be higher,” Dr. Eastman concludes his memo stating that his plan is “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”

            The next day, January 4, 2021, having abandoned the plan to elevate Jeffrey Clark and Eastman having generated his “war memo,” although it is doubtful that Trump had read it or ever read it, Trump called Vice President Mike Pence to a meeting and tried to bully him to obstruct certification of the electoral count scheduled for January 6. The court describes as follows:

            On January 4, President Trump and Dr. Eastman invited Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Mark Short to the Oval Office to discuss Dr. Eastman’s memo. Dr. Eastman presented only two courses of action for the Vice President on January 6: to reject electors or delay the count. During that meeting, Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.

The source of this information is the sworn deposition testimony of Greg Jacob, the Vice President’s lawyer.

Another meeting occurred the following day, January 5, 2021, this one attended by Eastman, Jacob and Short. The court recites as follows:

The Vice President’s counsel and Chief of Staff were then directed to meet separately with Dr. Eastman the next day to review materials in support of his plan. Dr. Eastman opened the meeting on January 5 bluntly: “I’m here asking you to reject the electors.” Vice President’s counsel Greg Jacob and Dr. Eastman spent the majority of the meeting in a Socratic debate on the merits of the memo’s legal arguments. Over the course of their discussion, Dr. Eastman’s focus pivoted from requesting Vice President Pence reject the electors to asking him to delay the count, which he presented as more “palatable.” Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court, and violated the Electoral Count Act on four separate grounds.

This description comes from sworn deposition testimony of the Vice President’s counsel, Greg Jacob. It sounds very much like a concession by Eastman that his plan had no legal validity or merit and that, therefore, perhaps the most “palatable” course for the Vice President to take so as to not outright violate the law would be to delay.

Apparently seeing that the efforts had not brought Pence around, Trump resorted to public bullying and attempted coercion the next day, January 6, 2021. The court recites:

Despite receiving pushback, President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan. At 1:00 a.m. on January 6, President Trump tweeted, “If Vice President @ Mike Pence comes through for us, we will win the Presidency … Mike can send it back!” At 8:17 a.m., the President tweeted again, “States want to correct their votes … All Mike Pence has to do is send them back to the states, AND WE WIN. Do it Mike, this is a time for extreme courage!”

Following his tweets, President Trump placed two calls to Vice President Pence directly. After not being able to connect with the Vice President around 9:00 a.m., they spoke at approximately 11:20 a.m. Vice President Pence’s National Security Advisor General Keith Kellogg, Jr. was present and described President Trump as berating the Vice President for “not [being] tough enough to make the call” to delay or reject electoral votes.

Not long after this, both Eastman and Trump spoke to the crowd assembled around the White House. Both told the crowd that Pence had the legal authority to reject the electors and President Trump incited and urged the crowd to go down to the Capitol building and do something to make Pence come around. The court quotes Trump as follows:

Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, were going to walk down, were going to walk down … [W]e’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We're going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.

Trump, as we know, was successful in inciting crowd to storm the Capitol building and watched it unfolding on television with the rest of the nation. He was unabashed, as the court noted:

Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth.”

During the riot, Greg Jacob, the Vice President’s counsel, finding himself and the other public officials endangered by the attacking mob emailed Eastman as follows:

“… thanks to your bullshit, we are now under siege.”

The court noted that Eastman had asserted his Fifth Amendment privilege against self-incrimination against producing any documents requested by the Select Committee and had asserted his Fifth Amendment privilege 146 times during his deposition.

As to application of the crime-fraud exception, the court considered whether President Trump and lawyer Eastman appeared to have committed three offenses: (1 obstruction of an official proceeding – Congress’ certification of the electoral votes on January 6, 2021 – in violation of 18 U.S.C. § 1512(c)(2); (2) a conspiracy to defraud the United States by interfering with the election certification process in violation of 18 USC § 371; and, (3) common law fraud in connection with the efforts of the president and his campaign to overturn the 2020 election results. The first two are the most convincing of these and the most important, since they are federal criminal statutes.

The key to the court’s analysis of the apparent 1512 violation is the analysis of “corrupt intent.” 1512 isn’t a strict liability offense; in other words, President Trump had to likely know “that the plan to disrupt the electoral Count was wrongful [.]” The court concluded this evidence was present based on the absence of any legal or factual justification or basis for the plan stating as follows:

President Trump and Dr. Eastman justified the plan with allegations of election fraud – but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent, the Select Committee points to numerous executive branch officials who publicly stated and privately stressed to President Trump that there was no evidence of fraud. By early January, more than 60 courts dismissed cases alleging fraud due to lack of standing or lack of evidence, noting that they made “strained legal arguments without merit and speculated of accusations” and that “there is no evidence to support accusations of voter fraud.” President Trump’s repeated pleas for Georgia Secretary of State Raffensberger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.” The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.” In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states. In the meeting in the Oval Office two days before January 6, Vice President Pence stress his “immediate instinct [] that there is no way that one person could be entrusted by the Framers to exercise that authority.”

The court also pointedly rejected the argument that any good faith belief regarding the merits or validity of Eastman’s legal theory or belief in the unconstitutionality of the Electoral Count Act excused the obstruction:

Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump new how to pursue election claims in court – after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

On much the same grounds, the court concluded there was an apparent violation of 18 U.S.C. § 371.

Additional coverage found here: Federal Judge Finds Trump Most Likely Committed Crimes Over 2020 Election; Trump "Likely" Committed Crimes Trying to Stay in Power, Judge Says in Record Dispute. 

Robert L. Abell
www.RobertAbellLaw.com

 

Does a hand, confined in a bag, amount to brandishing or possessing a dangerous weapon? The Sixth Circuit ignores plain statutory language and holds that it does.

Section 2B3.1(b)(2) of the United States Sentencing Guidelines imposes a three-level enhancement if a “dangerous weapon was brandished or possessed” during a bank robbery. But what if there is no weapon? What if the conduct amounts only to placing a hand into a shoulder bag in a manner that led a bank teller to believe that the robber was about to pull a gun? Doesn’t matter, as the Sixth Circuit is held in United States v. Tate that a hand in a bag is a “dangerous weapon.”

The defendant in Tate entered a bank with “an opaque shoulder bag across his body,” handed the teller a note demanding money and threatening harm before placing “his right hand into a shoulder bag in a manner that led the teller to believe the robber was about to pull out a gun.” There was no gun; there was only a hand, and so the question was “whether one’s hand, confined in a bag, amounts to a ‘dangerous weapon [] brandished or possessed’ during [a] bank robbery.”

The sentencing guidelines do not include a definition of “dangerous weapon.” Instead, definition of the term is provided by commentary stating that the term “dangerous weapon” means what a dangerous weapon actually is, “an instrument capable of inflicting death or serious bodily injury” and also something that is not “an instrument capable of inflicting death or serious bodily injury” but looks like it could be, that is, something that “closely resembles” an actual dangerous weapon. U.S.S.G. § 1B1.1 cmt. n.1(E); § 2B3.1 cmt. n.2.

The Sixth Circuit has recently held in two different cases, one sitting en banc, that commentary to the sentencing guidelines may not be used to expand the scope of terms used in the guidelines. United States v. Havis, 927 F.3d 382 (6^th Cir. 2019)(en banc), and, United States v. Riccardi, 989 F.3d 476 (6^th Cir. 2021). The rationale for these decisions being that the sentencing commission is the equivalent of an administrative agency and lacks the power to make laws or expand laws through use of commentary, since Congress does not review commentary. That seems to be exactly what is happening when the term “dangerous weapon” is construed to include something that can actually cause harm and something that merely resembles closely something that could cause harm. Nevertheless, the Sixth Circuit majority ruled that the Supreme Court holding in McLaughlin v. United States, 476 U.S. 16 (1986), that the term “dangerous weapon” extended to the use of an unloaded gun during the robbery control the issue and the sentencing commission had merely followed this lead. So, an actual but unloaded gun is the equivalent of a mere hand? Not something the prototypical “ordinary English speaker” would think possibly true, but, in the end, what does that really mean?

Tate, most obviously, is a decision intended to limit the scope of Havis. It also errs in disregarding the directives in 18 U.S.C. § 994 that the sentencing guidelines are to be consistent with “all pertinent provisions of any Federal statute,” 18 U.S.C. § 994(a), and “all pertinent provisions of title 18, United States Code.” The error being that “dangerous weapon” is defined in title 18 of the United States Code at § 930(g)(2) as follows: “a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length." Title 18 of the United States Code has spoken to the question of whether a “dangerous weapon” can mean also something that merely resembles one or even someone’s hand; the Sixth Circuit has ignored this express statutory definition and its analysis is incorrect and flawed.

Robert L. Abell
www.RobertAbellLaw.com

A Defendant Has a Right to Be Heard as to His Rule 35(b) Resentencing, Sixth Circuit Rules

A defendant, who has rendered substantial assistance to the government and been subject of a Rule 35(b) motion to reduce his sentence, must be allowed "the opportunity to express his position on the Government's motion through a response as long as the response was timely," the Sixth Circuit has ruled in United States v. Redacted Party. The case was remanded to the district court for re-sentencing.

The defendant, who was already serving a sentence in federal prison, helped "the Government solve [a] murder case and have a prosecutable case." In consideration, the Government filed a motion pursuant to Rule 35(b) that the defendant's sentence be reduced and recommended a reduction of 12 to 18 months. The same day that the government's motion was filed, the district court granted the motion and reduced defendant's sentence by 12 months. Defendant appealed and argued he should've been allowed opportunity to present evidence and argument that a greater reduction of his sentence was warranted.

The Sixth Circuit agreed and vacated the district court's order. After a brief review of other cases, the court concluded that the defendant "was entitled to have the opportunity to express his position on the government's motion through a response as long as the response was timely." The Sixth Circuit noted that the defendant was capable of presenting some material evidence to support his argument. A request that the case be reassigned to another district judge, however, was denied.

Judge John Rogers authored the Sixth Circuit's opinion and was joined by Judge Karen Nelson Moore; Judge Alice Batchelder dissented.

Robert L. Abell
www.RobertAbellLaw.com

Compassionate Release and the First Step Act; The Sixth Circuit and Appellate Review - "Just Give Us Something to work with"

Although the number of cases in which the Sixth Circuit reverses a district court's denial of compassionate release under the First Step Act will be very, very few -- it will take decades before the number has two digits -- you do have to give the court some credit for elevating form over substance as shown in its recent decision, United States v. Hampton.

Hampton in 2009 pleaded guilty on a cocaine charge, was sentenced to 204 months, which was later reduced to 180 months following amendments to the sentencing guidelines. He moved pursuant to the First Step Act for a further sentence reduction; the grounds for his motion are not clear, since the Sixth Circuit did not discuss those reasons at all. In any event, the district court, Hon. Patricia Gaughan of the Northern District of Ohio, turned down the motion "'for the reasons stated' in the government's brief, without further explanation." 

This wasn't enough for the Sixth Circuit to be able to conclude without question that the motion had been denied for a sound reason, since "the order here fails to identify which specific aspect(s) of the government's brief the district court found compelling [and could possibly have] impermissibly denied relief based solely" on irrelevant factors. Usually, the court added a "barebones form order" would be sufficient for "meaningful" appellate review but not in this instance and so the case was remanded "for further consideration in light of our recently announced precedent." 

Judge Chad Readler authored the opinion and was joined by Circuit Judges Raymond Kethledge and Amul Thapar. Principia uber Alles.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Compassionate Release Test Clarified by Sixth Circuit; Sentencing Guideline section 1B1.13 Does Not Apply to Motions filed by Defendants

The Sixth Circuit issued Friday a significant decision regarding the process and applicable factors for consideration of motions for compassionate release filed by defendants pursuant to the First Step Act in United States v. Jones.

The most important point resolved in this case is "that U.S. Sentencing Guidelines § 1B1.13 is not an 'applicable' policy statement in cases where incarcerated persons file their own motions in district court for compassionate release." Section 1B1.13 has not been updated "to reflect the First Step Act," and "district courts have full discretion in the interim to determine whether an 'extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion." 

First, "[t]he first sentence of § 1B1.13 predicates the entire policy statement on the Director of the BOP's filing a motion for compassionate release." Furthermore, the "commentary's fourth application note" grants to the BOP Director sole authority to determine the existence of extraordinary and compelling circumstances, a catch-all provision that "does not reflect the First Step Act's procedural reforms to compassionate release[.]"

Second, Congressional intent was to expand the granting of compassionate release, as "the First Step Act's main co-sponsors were displeased that a mere trickle of compassionate releases occurred under the BOP's supervision." Accordingly, "[i]t would make little sense for the courts to operate as if the BOP remains the sole gatekeeper of compassionate release, which would reflect a bygone era that Congress intentionally amended in the First Step Act." 

Third, in 2016, the Sentencing Commission broadened the criteria for eligibility for compassionate release. "Thus, enforcing the as-written catch-all provision both contravenes Congress's motivation for reforming compassionate release in the First Step Act and ignores the Sentencing Commission's grounds for augmenting § 1B1.13's application notes in 2016." 

And so the new rule is as follows:

In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define "extraordinary and compelling" without consulting the policy statement of § 1B1.13.

Robert L. Abell
www.RobertAbellLaw.com

Sentence 486% Above Top Guideline Range Substantively Unreasonable, Sixth Circuit Rules

The government could not prove to a reasonable jury that the heroin sold by Joshua Ewing resulted in the death of another person, and the Sixth Circuit was compelled to vacate the jury's erroneous and wrongful verdict. United States v. Ewing, 749 Fed.Appx. 317 (6th Cir. 2018). So the case was sent back to the District Court, the United States District Court for the Eastern District of Kentucky, Hon. Joseph M. Hood presiding, for resentencing on Ewing's lesser conviction of distributing a controlled substance, a violation of 21 USC § 841.

Ewing’s revised total offense level under the sentencing guidelines was determined to be 12, but his criminal history category was VI, which yielded a guideline range of 30 – 37 months. Although the government had not proven that the drug sold by Ewing had resulted in a death, it requested an 18 level upward departure under USSG § 5K2.1, a provision reserved for cases in which “death resulted.” The government attempted to support this request with testimony from an agent, who said nothing at all about whether the drugs Ewing sold caused any death, and from a toxicologist, who testified that cocaine alone had not caused the death in question. Nevertheless, the district judge concluded that a “death resulted” and imposed a sentence of 15 years.

The Sixth Circuit reversed and vacated Ewing sentence. First, the court observed both that the government failed to prove a causal link beyond reasonable doubt between the drug sold and the death, and that the “District Court on remand unjustifiably assumed, without deciding, that” the drug sold by Ewing caused the death. Second, the district judge had limited consideration of the 3553 factors only to seriousness of the offense, giving no weight to “the residual uncertainty as to whether the drugs [the decedent] procured from Ewing caused his death.” Finally, “and perhaps most glaringly, the District Court failed to address Ewing’s explicit warning to [the decedent] that the drugs were unusually potent,” which the court regarded as a mitigating factor.

The latest decision in the Ewing saga, one that illustrates the federal appeals courts main job – considering application of the advisory sentencing guidelines – is United States v. Ewing.

Circuit Judge John K. Bush, who distinguished himself and earned a judicial post from Senator Mitch McConnell for racist blog posts directed at President Obama, dissented.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Is Some Semblance of Justice Coming to New Orleans Criminal District Court?

Rarely do former public defenders run for elected judicial positions (even more rarely are they appointed to judicial positions). But something may be happening way down South in New Orleans as reported in Slate: A Down-Ballot Revolution is Brewing in New Orleans. Imagine criminal justice. 

Robert L. Abell
www.RobertAbellLaw.com

Is a "different location" a different place? Yes, it can be, says the Sixth Circuit

"Context is the key to meaning," says the Sixth Circuit and this drove its decision in United States v. Hill, where it decided that a district court erred in applying a sentencing enhancement requiring that robbery victims be taken to a different place than the robbery when all that happened was they were moved from the front of a store to its back store room.

The defendant and another man robbed a Universal Wireless store of cash and cellphones. To facilitate the robbery the two led the store employees at gun-point from the sales floor to store room in back of the store's building, where they bound their wrists and ankles with zip ties and duct-taped their mouths. Hill pleaded guilty. Over Hill's objection, the district court, Hon. Gordon J. Quist of the Western District of Michigan at Grand Rapids, applied a four-level enhancement under U.S.S.G. § 2B3.1(b)(4)(A) on the notion that the "victims were 'abducted to facilitate commission of the offense or to facilitate escape.'" Hill argued that only the two-level enhancement under § 2B3.1(b)(4)(B) should be applied, since it requires only that victims be "physically restrained to facilitate commission of the offense or to facilitate escape." 

The key to the argument was the guidelines' commentary definition of "abducted" as meaning "that a victim was forced to accompany an offender to a different location." So, is a different location the back room of the store being robbed or some different place all together? 

"Different location," the Sixth Circuit concluded, refers to a place other than the store being robbed, not to a separate area or spot within that store and drew that conclusion from the following five rationales. First, in the context of the sentencing enhancement, the "common sense meaning of 'different location' ... is anywhere in the world that is not the place being robbed." Second, "different location" must be interpreted to comport with the rest of the guidelines' "abducted" definition and give the phrase independent meaning, which could only be done by interpreting it to mean movement from one place to another. Third, interpreting "different location" to mean a different place is consistent with the guidelines' commentary. Fourth, "abducted" most usually means that "a victim has been taken away," which would most naturally indicate to a different place. Fifth, the guidelines' structure also supports the conclusion that "different location" means "different place." Accordingly, the sentence was vacated, and the case remanded for resentencing for application of a two-level but not a four-level enhancement. 

Senior Circuit Judge Eugene Siler dissented from the majority opinion by Judge Eric Murphy that was joined by Chief Judge Guy Cole. 

The opinion is a well-reasoned and well-written work, but one might question why so much effort to decide an issue that is merely advisory? The guidelines are not binding, and the district judge would be almost completely free to impose the exact same sentence by reciting that it was justified by the factors listed in 18 U.S.C. § 3553(a). So what's been accomplished? Good question. On other hand, sentencing guidelines appeals -- the judicial calibration of two or four or some other level enhancement or reduction -- are the lifeblood of the federal appellate courts. That's a lot of talent put to not much use.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Senator McConnell and Other Republican Senators File Brief Supporting Admitted Liar

Our senior Senator, Mitch McConnell, has taken up the cause of an admitted liar and, along with other Republican Senators, filed a brief on the liar's behalf. The disgraced Michael Flynn is the beneficiary of this effort. Here's the Brief; read it and choke on it. Who knew these Senators had so much concern and time to take up for an admitted liar.

Robert L. Abell
www.RobertAbellLaw.com