... 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

Sentence in Gun Case Too High and Substantively Unreasonable

Defendant Erich Storck was found guilty by a jury of two counts of unlawful possession of a firearm because of a prior felony conviction and possession of a small quantity of marijuana. He had offered to plead to these charges prior to trial, but the government refused, a decision that wasted much time and judicial resources, because it wanted to go forward on a greater charge of possession of marijuana with intent to distribute and possession of a firearm in furtherance of that drug trafficking felony.

Storck, however, bore the brunt of the government’s obtuseness. Although the applicable sentencing range under the United States Sentencing Guidelines was only 51-63 months, Chief Judge Danny C. Reeves of the Eastern District of Kentucky imposed a sentence of 120 months. Finding this upward variance unjustified and substantively unreasonable, the Sixth Circuit vacated Storck’s sentence and remanded for resentencing. United States v. Storck, No. 23-5684 (May 16, 2024).

Storck got in a lot of trouble as a young man and racked up assault convictions in 1994, 2000 and 2001. He straightened up after that, however, for about 18 years until sustaining in 2019 a conviction for violating the terms of the no contact order. The record indicated that Storck had become overburdened, from time to time, by mental health issues, and had resorted to drug use which produced erratic and, at times, violent behavior.

The genesis of the case was in May 2020. Then Storck was found asleep next to his motorcycle and subsequently failed a field sobriety tests. A loaded pistol was found in his motorcycle. About 18 months later, Storck holed up in an upstairs bathroom closet of his residence, fired some shots through the upstairs window of the house next door, then had a standoff with the police for an hour or so during which he fired off approximately 35 additional rounds. Once police entered the residence they found two firearms, ammunition marijuana and marijuana growing materials.

The Sixth Circuit determined that the 120-month sentence imposed by the district court was substantively unreasonable. First, the court, while referencing sentencing statistical data compiled by the sentencing commission, concluded that Storck’s was a mine-him run case, one residing in the guidelines’ heartland. Second, the court concluded that the district court had “unduly weighed Storck’s history and characteristics, the nature of the offense, and the needs for specific deterrence.” Furthermore, the district court erred by allowing too little consideration of the need to avoid unwarranted disparities among defendants with similar records who have been found guilty of similar conduct. Storck’s criminal history was already accounted for in the guidelines, including the 18 year gap between convictions. His base offense level had been increased four levels because he had fired into the adjoining house. Accordingly, “the guidelines account for those aggravating factors.” Storck’s medical history does not justify such an extreme variance, since he had remained sober and the good standing from 2002 to 2019. The case was remanded for resentencing.

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

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 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

Is Swinging a Shovel at the Cops When They're Closing In a Use of Violence? Maybe or Maybe Not Says the Sixth Circuit

A guy in a marijuana patch realizes that he’s been found out and the cops are closing in; he takes a wild swing with a shovel and tries to flee on foot but apparently not being fleet of foot is caught. From such modest origins comes the question: was the swing and miss with the shovel a use of violence triggering a two-level enhancement under § 2D1.1(b)(2) of the United States Sentencing Guidelines. Maybe but maybe not the Sixth Circuit has answered in United States v. Pineda-Duarte.

A farm suspected of growing marijuana came under surveillance of the Kentucky State Police. The defendant, Reynaldo Pineda-Duarte, was seen tending to the crop. Here’s what happened next:

The officers headed in Pineda’s direction, strategically surrounded him, announced their presence, and ordered Pineda to “get on the ground.” But Pineda did not get on the ground, nor did he surrender. Instead, he apparently swung a shovel he was holding. He then dropped the shovel and attempted to flee.

The district court, Hon. Joseph M. Hood of the Eastern District of Kentucky, held that the enhancement under § 2D1.1(b)(2) applied because “swinging a shovel ‘qualifies as a threat or attempted use of violence.’”

On appeal, the Sixth Circuit concluded that the “used violence” clause in § 2D1.1 (b)(2) means to exert physical force with the intent to injure another person, an interpretation, the Court assured, “consistent with … dictionaries of contemporary vintage [and] .. common-sense understanding [.]”

That would seem clear enough but the Sixth Circuit cannot leave well enough alone and explained further on “the law”:

Where one acts forcefully with intent to harm, but the attempt to harm fails that act would likely be deemed violent.

But on the other hand:

But now think about the force aspect of a violent act. Where one attempts to act forcefully, but fails to engage in a forceful act, the act is likely not violent.

The case was remanded for a finding as to Pineda’s intent. The Sixth Circuit suggested two alternatives: Pineda could have swung the shovel reflexively with no intent to cause harm, or he could have swung it with intent to harm. There is a third alternative in the one probably closer to reality: Pineda swung the shovel to have the officers step back and gain himself more time and space to flee successfully; no one is going to think a single shovel swing at one of a group of law enforcement officers is going to put the issue to rest.

The Sixth Circuit’s opinion was authored by Judge Chad Readler and joined by Judges Karen Nelson Moore and Judge Deborah Cook.

Robert L. Abell
www.RobertAbellLaw.com

Commentary to the Sentencing Guidelines Going Beyond Interpretation; Amount of Loss in Fraud Cases and Knowledge a Firearm is Stolen

A recent post, Can the Sentencing Commission Expand the Guidelines' Reach Through Commentary? "Yes" Says the Sixth Circuit At Least for Now, discussed the Court's conclusion that the Sentencing Commission had unconstitutionally expanded the meaning of "controlled substance offense" under § 4B1.2 of the guidelines by adding in commentary that the term also embraced "offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. § 4B1.2 cmt. n. 1. This was a problem, because "a comment that increases the range of conduct that the Guidelines cover has clearly taken things a step beyond interpretation." Nevertheless, the Court concluded it was bound by a prior decision and could do nothing.

There appear to be (at least) two other frequently-used  Guidelines sections where the Sentencing Commission has similarly increased the range of conduct that the Guidelines cover. U.S.S.G. § 2B1.1(b)(1) provides for enhancements based on the amount of "loss" involved in fraud cases, healthcare fraud cases being one example. The commentary expands that range of conduct that "loss" is supposed to cover by asserting that "loss" includes not just "actual loss" but also "intended loss." U.S.S.G. § 2B1.1 cmt. n. 3(A).

Another example can be found in U.S.S.G. 2K2.1(b)(4)(A) which provides a two-level enhancement if any involved firearm "was stolen." Commentary note 8(b) provides that the enhancement applies "regardless of whether the defendant knew or had reason to believe that the firearm was stolen[.]" This increases the range of conduct that the Guidelines cover. The Sentencing Commission’s abolition of a mens rea requirement distinguishes the enhancement from the federal statute, 18 U.S.C. § 922(j), that prohibits possession of a stolen firearm and also has an explicit mens rea requirement. As such, it is contrary to the statutory directive in 28 U.S.C. § 994(a) that the guidelines be “consistent with all pertinent provisions of any Federal statute.” Furthermore, the strict liability of the enhancement departs from the historical requirement for mens rea as a basis for culpability. See United States v. Handy, 570 F.Supp.2d 437, 474-78 (E.D.N.Y. 2008)(discussing and collecting authorities). 

There surely are other instances and we will make further posts consistently.

Robert L. Abell
www.RobertAbellLaw.com

 

Can the Sentencing Commission Expand the Guidelines' Reach Through Commentary? "Yes" Says the Sixth Circuit At Least for Now

An analog to axiom that bad facts make bad law is bad judging makes bad law. The Sixth Circuit's recent decision in United States v. Havis, where a three-judge panel issued four opinions illustrates slightly how far the Sixth Circuit has gone off the rails.

Havis pleaded guilty to being a felon in possession of a firearm, which seems straight-forward enough. But the district court, Hon. Travis R. McDonough of the Eastern District of Tennessee at Chattanooga, ruled that Havis' 20 year old conviction for selling or delivering cocaine was a "controlled substance offense" under the guidelines and increased his sentence. So Havis appealed.

Here's the issue: did Havis' drug conviction in Tennessee state court qualify as a "controlled substance offense" under the Guidelines? A categorical approach is used for this inquiry, which means that what Havis actually did is beside the point but whether the statute under which he was convicted criminalizes the same (or even less) or more conduct than that constituting a "controlled substance offense" under the Guidelines. If the state statute is broader, then there is no match and no enhancement.

The state statute, Havis argued, "includes attempting to transfer drugs, while the Guidelines only include completed controlled substance offenses." This seems a solid argument since and as the Sixth Circuit acknowledged in Judge Thapar's opinion for the panel majority (not to be confused with Judge Thapar's separate concurring opinion) "the Guidelines' actual text says nothing about attempt, and the Sentencing Commission cannot add to the text in commentary."

The problem, however, and the reason why Havis lost is that the Sixth Circuit in a very-poorly reasoned prior decision, United States v. Evans, 699 F.3d 858 (6th Cir. 2012), authored by Judge Julia Gibbons and joined by Judge Jeffrey Sutton and a district judge, held that the Guidelines commentary said that an attempt to engage in a controlled substance transaction was also a "controlled substance offense" even though the actual Guidelines' text said otherwise.

Why was it error for the Sixth Circuit in Evans to rely on the Guidelines' commentary? The Supreme Court held in Mistretta v. United States, 488 U.S. 361 (1989), that the Sentencing Commission and the Guidelines passed constitutional muster for two reasons: (1) Congress may review amendments to the Guidelines' text before they become effective; and, (2) the Commission, like other administrative agencies, must comply with the notice-and-comment requirements of the Administrative Procedure Act.

So what's the problem? "A problem thus arises when the Commission bypasses these procedures by adding offenses to the Guidelines through commentary rather than through an amendment," explains Judge Thapar's panel opinion. Commentary may be used to "interpret the [Guidelines] text that is already there ... [but] a comment that increases the range of conduct that the Guidelines cover has clearly taken things a step beyond interpretation."

But it is no matter; the Evans case has already decided the issue, and so Havis is stuck with the mistake and the longer sentence that goes with it, which, of course, is par for the course.

Judge Stranch both joined Judge Thapar's opinion for the panel and offered her own concurrence. As to the issue presented by Havis, she observes that "by attempting to add offenses to the Guidelines through commentary rather than by amendment, the Commission changed lanes inappropriately, driving in the interpretive lane of commentary when it was bound to proceed in the notice and comment lane of amendment." The main focus of Judge Stranch's opinion deals with issues of administrative law, particularly the Supreme Court's decision in Auer v. Robbins, 519 U.S. 452 (1997).

Judge Thapar's concurrence, which seems a Supreme Court audition, is also focused on Auer and replete with citations to non-majority opinions of Justices Scalia, Thomas, Gorsuch, as well as Marbury v. Madison, the Federalist Papers and Montesquieu's Spirit of the Laws. This too is part of a conversation that coincidentally touches on Havis' sentencing issues.

Judge Daughtrey dissents and views Evans as not a binding precedent since it merely "assumed that the commentary ... could expand the definition of "controlled substance offenses" to include attempts to commit those crimes" and "such assumptions ... are not binding" in cases that squarely raise the issue. Judge Daughtrey agrees that the Commission has engaged in "the improper expansion of the class of crimes that can be considered controlled substance offenses."

All four opinions request en banc review as to which no action has yet occurred.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

 

The Supreme Court Reverses and Chastises the Fifth Circuit (Again); Plain Error and the Sentencing Guidelines

"The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect."

This the Supreme Court observed in reversing the Fifth Circuit (again!) in Molina-Martinez v. United States.

The defendant, Molina-Martinez, pleaded guilty to an immigration offense; his advisory sentencing guidelines range was calculated to be 77-96 months without objection, and the district court imposed a sentence of 77 months.  On appeal, it was determined that the guidelines range had been mis-calculated, the correct range being 70-87 months. But the Fifth Circuit didn't care, ruling that the defendant had to present some "additional evidence" that his sentence would be different.  This approach was incorrect the Supreme Court ruled holding as follows: 

When a defendant is sentenced under an incorrect Guidelines range -- whether or not the defendant's ultimate sentence falls within the correct range -- the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.

No great shakes here: the sentencing guidelines are the basic touchstone in federal sentencing. If there is error in the guidelines' calculation, the error in sentencing will almost surely follow.

Interestingly, the Fifth Circuit's opinion was non-precedential and per curiam from a panel composed of Chief Judge Carl Stewart, Judge Edith Jones, and Judge Stephen Higginson.

Douglas Berman has a good discussion on the case at Sentencing Law and Policy blog: Lots of Interesting Post-Booker Guideline Talk as Federal Defendant Gets Another Sentencing Win from SCOTUS. 

Molina-Martinez was represented in the Supreme Court by assistant federal public defender Timothy Crooks.

Robert L. Abell
www.RobertAbellLaw.com

Notwithstanding the Fifth Circuit's jurisprudential difficulties in the Supreme Court it has what I believe to be the most distinguished looking building of all the federal courts of appeal:

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I have to give both some credit.

Robert L. Abell
www.RobertAbellLaw.com

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Federal Sentencing Guidelines: "Sometimes the Guidelines Are Conceptually Hard to Follow"

"Sometimes the guidelines are conceptually hard to follow" is the understatement offered by U.S. District Judge Amul Thapar in a very unusual opinion granting a pro se defendant's request for an explanation as to why she was not eligible for a sentence reduction based on Amendment 782 to the U.S. Sentencing Guidelines that became effective November 1, 2014. No relief was granted or allowed, but Judge Thapar did offer a fair and earnest explanation, one whose effort deserves some plaudits. The case is United States v. Deborah Helton. 

Robert L. Abell
www.RobertAbellLaw.com

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