... and Justice for All

Sixth Circuit Judge Thapar has a book on Supreme Court Justice Clarence Thomas

Sixth Circuit Judge Amul Thapar has written a book extolling the judicial philosophy of Supreme Court Justice Clarence Thomas, as the New York Times reports: Federal Judge Defends Clarence Thomas in New Book. 

Robert L. Abell
www.RobertAbellLaw.com

"Extreme judicial malfunction" by Ohio state courts, Sixth Circuit grants writ of habeas corpus

"This case is the epitome of ... an extreme judicial malfunction." This the Sixth Circuit observes on its way to granting a writ of habeas corpus in Jackson v. Cool. The Sixth Circuit summarized the proceedings as follows:

Petitioner Nathaniel Jackson was convicted of a capital offense and sentenced to death. But Jackson’s sentencing proceeding was blatantly unconstitutional at its core due to the trialcourt judge’s bias and misconduct, as well as his exclusion at sentencing of relevant mitigating evidence. The prejudicial judicial bias and misconduct included numerous ex parte communications between the judge and prosecutor regarding substantive sentencing issues and the ghost writing by the prosecutor of the judge’s opinion sentencing Jackson to death. In state court, when this unethical conduct came to light, the Ohio appellate courts publicly reprimanded the trial judge and ordered him to conduct new sentencing proceedings: the judge was to
“personally review and evaluate the appropriateness of the death penalty” and “prepare an entirely new sentencing entry.”

On remand, Jackson moved to present three additional volumes of mitigating evidence. The trial judge denied the motion, and he orally resentenced Jackson based on the stale, ten-yearold mitigation record. A few hours after the resentencing hearing concluded, the judge issued a second opinion sentencing Jackson to death that was functionally identical to the original, corrupted opinion and contrary to the Ohio Court of Appeals’ specific instructions on remand. Nevertheless, the Ohio appellate courts affirmed Jackson’s sentence.

That mild description is a benign near-whitewash of the ugly breakdown of the Ohio state court system including its state Supreme Court. 

A bad crime started the case. Nathaniel Jackson and Donna Roberts conspired to kill Roberts's ex-husband. They left a trail of evidence and were quickly apprehended. They were separately indicted and tried on capital murder charges. The juries in both trials recommended the death penalty and Trumbull County Court of Common Pleas Judge John M. Stuard followed those recommendations and imposed the death penalty for both. And here the judical malfunction starts.

Roberts' death sentence was vacated by the Ohio Supreme Court "due to Judge Stuard's ex parte use of the prosecutor in preparing Roberts's sentencing opinion." "Judge Stuard conceded that he had engaged in ex parte communications with the prosecution in drafting the sentencing opinion -- apparently, Judge Stuard had given notes to the prosecutor outlining the sentence to be imposed with supporting reasons and tasked the prosecutor with drafting the opinion and making revisions." 

Jackson learned of the irregularities in Roberts's case and himself moved for new sentencing proceedings and Judge Stuard's disqualification. Ohio Supreme Court Chief Justice Thomas Moyer refused to disqualify Judge Stuard, asserting, in what is an instance of wilfull blindness, "[t]here is no evidence in the record before me, ...., to suggest that the judge has shown any hostility or bias toward either party, and there is no indication that he is unable or unwilling to resolve any remaining disputed matters with an open state of mind." In re Disqualification of Stuard, 863 N.E.2d 636 (Ohio 2006). 

Jackson's motion for a new sentencing hearing remained pending before Judge Stuard for over three years. Notwithstanding the decision by its chief justice, Thomas Moyer, not to disqualify Judge Stuard, the full court, in an unsigned per curiam opinion, "pubicly reprimanded Judge Stuard for violating two canons of Ohio's code of judicial conduct based on his ex parte communications with the prosecution[.]" Disciplinary Counsel v. Stuard, 901 N.E.2d 788 (Ohio 2009). 

A couple months after being publicly reprimanded for his handling of Jackson's case and sentencing, Judge Stuard denied Jackson's motion for a new sentencing hearing. That decision was reversed. State v. Jackson, 941 N.E.2d 1221 (Ohio Ct. App. 2010). Two years later, Judge Stuard again sentenced Jackson to death after a hearing in which he refused to allow Jackson to put in evidence "three volumes of mitigating evidence that he had not proffered at his first sentencing hearing." Only a few hours after the second sentencing hearing, Judge Stuard issued his sentencing opinion, one which "[a]part from adding some introductory paragraphs explaining the additional procedural history, making minor typographical and grammatical changes, and rewriting a few paragraphs describing the trial evidence, ... was 'almost identical' to the first." Nevertheless, the Ohio Supreme Court upheld the death sentence, ruling that Judge Stuard was not biased, did not err in failing to consider Jackson's allocution at the sentencing hearing and did not err in barring from evidence the proffered mitigation evidence. 73 N.E.3d 414.

The Sixth Circuit found the evidence of Judge Stuard's bias to be compelling, observing in part as follows:

... Judge Stuard secretly recruited the prosecutor to draft the entirety of an opinion sentencing Jackson to death: he left the prosecutor to turn his two pages of incomplete, handwritten notes into a twelve-page opinion outlining the facts and procedural history, weighing the aggravating and mitigating factors (while characterizing Jackson's mitigating evidence as "self-serving," "not convincing," and "lacking sincerity"), and ultimately imposing the death penalty. Although "ex parte contact is not, in itself, evidence any kind of bias," it is hard to imagine a more "extreme" case of bias from ex parte contact then this one.

And Judge Stuard's conduct evidencing bias did not stop there. After his improper ex parte contacts came to light, he refused to accept responsibility, stating that he did "nothing wrong." During his disciplinary proceedings, Judge Stuard downplayed his conduct by claiming that the prosecution was simply performing a ministerial task and purportedly gained no tactical advantage from writing the opinion.

... And at [Jackson's second sentencing] hearing, he took the time to express his disagreement for the need to hold a rate sentencing hearing, claiming that the higher courts "misunderstood what occurred" but that he was nonetheless required to abide by the rulings.

...

... After his unethical behavior was exposed, he delayed Jackson's resentencing; decline to accept responsibility for his impropriety; and refused to issue an untainted, personally crafted sentencing opinion. Judge Stuard could impose the death penalty, but he could not be bothered to draft an opinion explaining why. These actions show a "deep-seated" favoritism toward the prosecution and antagonism toward Jackson, "making fair judgment impossible"

The failures of the Ohio state court system did not end there. The Sixth Circuit engaged in an extended discussion of case law regarding a capital defendants clearly-established right to present any and all mitigating evidence including at a subsequent sentencing hearing evidence that had not previously been available. The Sixth Circuit framed the question as follows:

In light of this clearly established federal law, the question then becomes whether the Ohio Supreme Court's decision affirming the trial court's exclusion of additional mitigating evidence at Jackson's resentencing was an unreasonable application of, or contrary to, this clearly established law. Unquestionably, the answer is yes.

The case does show extreme judicial malfunction. Jackson's crime was a terrible crime. The trial court judge, Judge Stuard, who retired in 2013 shortly after Jackson's second sentencing hearing, could not be bothered to do his job properly, perhaps because he was so disgusted and appalled by the crime or perhaps because he should already have retired. But he was given a second chance to do it right, and it appears went out of his way not to do so. The Ohio Supreme Court then through egg on its own face by choosing to ignore these breakdowns in the lower courts. As the Sixth Circuit observed, "this case is the epitome of ... an extreme judicial malfunction."

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

The Government Cannot Lose in the Sixth Circuit

The Sixth Circuit's majority opinion in United States v. Carter is an embarassment and illustrates how far some members of that court will go to assure that the government can never lose a case in the court, no matter what it argues (or fails to argue) in its brief. 

Carter is a routine enough sentencing appeal. The defendant was sentenced to 108 months in a meth-trafficking case. He raised two points in support of a variance in the district court: (1) a policy argument that the sentencing guidelines as to methamphetamine overstate a defendant's culpability based on an archaic and incorrect theory that the greater the purity level of the relevant meth, the greater the defendant's culpability and, therefore also, his sentence; and, (2) his difficult personal circumstances. At the sentencing hearing, according to the Sixth Circuit majority, Judges Joan Larsen and John Nalbandian, the defendant "made only passing reference to his policy argument" and "focused primarily on his life experience and characterisistics." Also according to the majority, the district court also "focused on Carter's primary argument, his life experience and characteristics." The district court did state that it read Carter's sentencing memorandum, so it was aware and said it did presumably consider his policy argument. The district court announced the sentence and then asked: "Pursuant to United States v. Bostic, is counsel satisfied that I've addressed on the record all non-frivolous arguments asserted?" Parties for both counsel answered: "Yes, your Honor."

Carter argued on appeal that his sentence was procedurally unreasonable since the district court did not address or sufficiently consider his policy argument about the meth guidelines. The Sixth Circuit panel majority held that Carter had either waived the argument or had invited the district court's error and was foreclosed. Neither hold water; both are contrivances intended to nail shut even tighter the courthouse doors barring relief for criminal defendants in the Sixth Circuit. The contrivance is so extreme that Senior Circuit Judge Ronald Gilman was moved to author a concurring opinion in what otherwise was a flyspeck of a case. 

The majority's contrivance is on such shaky ground that it could not decide what it was, whether a waiver or invited error. It relied on the district court's reference to Bostic, although the majority allowed that the "Bostic preface is somewhat out of place because the question that immediately followed was not the Bostic question, though that question came later." Waiver is, as the majority noted, that intentional relinquishment or abandonment of a known right. But it is beyond the pale to find waiver on this record as Judge Gilman noted:

In the present case, the district court expressly stated tha tits quesiton was "[p]ursuant to United States v. Bostic" immediately before asking a question that, as the majority acknowledges, "was not the Bostic question." I fully agree with the majority that the invocation of Bostic was "somewhat out of place," which makes one hard-pressed to characterize counsel's response as an intentional relinquishment or abandonment of Carter's right to object. The doctrine of waiver, therefore, is simply beyond the pale based on the record before us.

This seems simple enough: a party can't be judged to have waived an argument on point A, if it is asked about something other than point A. 

But neither did the majority decide that Carter had invited the district court's error. Instead, it dodged that question and asserted that it only considered arguments where a party had invited error below where there would otherwise be a manifest injustice. Apparently, the majority concluded that there would be no manifest injustice because the government could not be sufficiently faulted for not insisting the district court address Carter's policy argument ("the government is not equally at fault for the alleged error"). 

Notably and as Judge Gilman's concurrence observed, "the government did not argue that Carter either waived his policy-based argument or invited the district court's error." In other words, the majority contrived wholly its squishy we're really not sure why we're deciding defendant loses but he does because the government can't rationale. 

Remember the rule in the Sixth Circuit: the government can't waive or forfeit an argument, but a reason can always be contrived that the defendant can and did. 

The majority's opinion is an embarassment and an abomination; the best thing about it is that it will be largely if now wholly ignored in the future. 

Robert L. Abell
www.RobertAbellLaw.com

 

Judge that told defendant he "looks like a criminal to me" should have recused, Sixth Circuit rules

District Judge Stephen J. Murphy of the United States District Court for the Eastern District of Michigan became exasperated with a defendant and remarked:

This guy has got my attention, Mr. Arnone [defense counsel]. What do you want me to do? This guy looks like a criminal to me. This is what criminals do. This isn't what innocent people, who want a fair trial do. He's indicted in Kentucky. He's indicted here. He's alleged to be dealing heroin, which addicts, hurts and kills people, and he's playing games with the Court. Do you agree?

About a year and a half later, after numerous pretrial hearings and proceedings, Judge Murphy presided over the trial where the defendant was found guilty and then imposed a sentence of 127 months. 

The Sixth Circuit ruled that Judge Murphy should have recused, vacated the conviction and sentence and remanded the case for trial before another district judge. First, Judge Murphy's remark that the defendant "looks like a criminal to me" would indicate to a reasonable observer that the judge had prejudged the defendant's guilt based on his physical appearance. Second, Judge Murphy's remarks that "I'm tired of this case" and "I'm tired of this defendant" also indicated prejudgment of guilt. Third, that the defendant went through a series of lawyers did not make Judge Murphy's impatience understandable to the Sixth Circuit, although the government, of course, saw it otherwise:

To the contrary, we do not find the district judge's conduct understandable in the least. The complexity or long duration of a criminal case gives no license to a district court to prejudge the defendant's guilt or otherwise dispose of the case in any manner except through fair proceedings. And if [defendant] was more persistent than most defendants in pursuing his constitutional right to  proceed to a jury trial on the merits, the district judge had ample means available to him to rule on any issues [defendant] raised and to keep the proceedings on track. 

The defendant moved for Judge Murphy's recusal right before his trial started. In fairness to Judge Murphy, he did apologize, more or less, for his earlier remarks and assured the defendant he would get a fair trial. That didn't cut any ice with the Sixth Circuit which observed that Judge Murphy "could have acted sua sponte to address the issue of recusal, or at least to convene a hearing to discuss with the parties the need for recusal." 

The case is United States v. Liggins. See also Appeals court scolds federal judge for saying defendant 'looks like a criminal'; After federal judge says Black man "looks like a criminal to me," appeals court tosses man's conviction.

Robert L. Abell
www.RobertAbellLaw.com

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

"Safety-valve" relief; a Circuit-split on the meaning of "and"

The First Step Act of 2018 amended 18 U.S.C. § 3553(f)(1) to broaden substantially the eligibility criteria for “safety valve” relief. Previously, a defendant was ineligible for “safety valve” relief if he or she had more than 1 criminal history points. The First Step Act expanded the eligibility criteria and made a defendant eligible for safety valve relief if he had (A) “more than 4 criminal history points” excluding those resulting from a 1-point offense; (B) a prior 3-point offense; and (C) a prior 2-point violent offense.

A circuit split has developed centered upon the meaning of “and” in the amended statute. In other words, the question is whether, as the Sixth Circuit has described in United States v. Haynes, No. 22-5132 (6^th Cir., December 19, 2022), “whether … this provision requires the defendant to show that he has none of the criminal history described in subsections (A) – (C); or whether instead … the defendant must show only that he lacks the criminal history described in any one of those subsections. The answer to that question, everyone agrees, depends on the meaning of the word “and” as used in § 3553(f)(1).”

The Sixth Circuit ruled in Haynes that “and” doesn’t mean “and” but means “or,” as described in the dissenting opinion of Judge Richard Griffin, a jurist not known for seeing anything in favor of a criminal defendant. The Sixth Circuit joins the Eighth Circuit, United States v. Pulsifer, 39 F.4^th 1018 (8^th Cir. 2022), Seventh Circuit, United States v. Pace, 48 F.4^th 741 (7^th Cir. 2022), and, of course, the Fifth Circuit, United States v. Palomares, 52 F.4th 640 (5th Cir. 2022), in that holding. 

On the opposite side of the fence and holding that “and” means “and” is the en banc Eleventh Circuit, United States v. Garcon, __ F.4^th ___ (11^th Cir., Dec. 6, 2022)(en banc), and the Ninth Circuit, United States v. Lopez, 998 F.3d 431 (9th Cir. 2021). The en banc Eleventh Circuit, in an opinion authored by Tulane Law School grad and Chief Judge William J. Pryor, described the question presented as “whether, in the First Step Act, the word ‘and’ means ‘and.’”

This issue, given this circuit split, seems destined for the Supreme Court, where the plain language reading followed by the Eleventh and Ninth Circuits will likely carry the day.

Robert L. Abell
www.RobertAbellLaw.com

Defining Hearsay: The truth of “the matter asserted” means “the matter asserted by the statement,” not the matter asserted by the party offering the testimony

The defendant was charged after having been filmed by an informant selling methamphetamine. The informant, who is identified as “B.B.”, passed away before trial. Nevertheless, the government played B.B.’s videos of the transactions to the jury, although recordings of statements from B.B. to law enforcement personnel were excluded. The defendant was found guilty and challenged on appeal the admission of the redacted videotapes, arguing that they were hearsay, and their admission violated his rights under the Confrontation Clause.

The Sixth Circuit rejected this contention and affirmed the convictions in United States v. Harrison, No. 21-6146 (6^th Circuit, December 1, 2022).

When a witness cannot testify at trial and has not been cross-examined, the confrontation clause prohibits entry of the witness’s statements that are: (1) testimonial, and (2) hearsay. United States v. Gibbs, 506 F.3d 479, 486 (6^th Cir. 2007). A statement is testimonial when its purpose is to be used against the defendant.

Federal Rule of Evidence 801(c) defines hearsay to be a statement “offered in evidence to prove the truth of the matter asserted.” The key, however, as explained by the Sixth Circuit is that “the matter asserted” refers to or means “the matter asserted by the statement, not the matter asserted by the government. United States v. King, 865 F.3d 848, 850-51 (6^th Cir 2017).

This is a good way to understand whether or not a statement is in fact “hearsay”: is the statement being offered toward proving its truth? If the statement is merely being offered in support of the position of the party offering it but not because it is true or not, the statement is not hearsay.

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

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