Sentencing Partners (June 2013) Part I

Posted by Chris Morales on Thu, Jul 04, 2013 @ 08:00 AM

Alleyne v. United States
2013 WL 2922116 (2013)
Any fact increasing mandatory minimum sentence is an “element,” not a “sentencing factor,” that must be submitted to jury

The Petitioner was charged with one count of robbery affecting interstate commerce and one count of using a gun during a crime of violence. The government also charged Petitioner with brandishing a firearm based on a robbery that occurred as a convenience store manager was carrying deposits to a bank. A jury convicted Petitioner of the robbery count and the firearm count, but specifically found that neither Petitioner nor his accomplice brandished a firearm. Despite the jury’s finding, the district court ruled that Petitioner should have foreseen that his accomplice would brandish a gun during the robbery. The judge then imposed an added 84 months on top of the forty-six months – as required under the federal law that imposes a mandatory minimum sentence for brandishing a gun. The Fourth Circuit affirmed. The Supreme Court reversed, holding that any fact that increases a mandatory minimum sentence for crime is an “element” of the crime, and not a “sentencing factor,” that must be submitted to jury, thus overruling Harris v. United States, 536 U.S. 545 (2002). “The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense. In Apprendi, we held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed. . . . Apprendi’s definition of ‘elements’ necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment. Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.” “It is indisputable that a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed. But for a finding of brandishing, the penalty is five years to life in prison; with a finding of brandishing, the penalty becomes seven years to life. Just as the maximum of life marks the outer boundary of the range, so seven years marks its floor. And because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.”

“In holding that facts that increase mandatory minimum sentences must be submitted to the jury, we take care to note what our holding does not entail. Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. * * * [E]stablishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different
things. Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the range authorized by law.” “Here, the sentencing range supported by the
jury’s verdict was five years’ imprisonment to life. The District Court imposed the 7–year mandatory minimum sentence based on its finding by a preponderance of evidence that the firearm was “brandished.” Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt.”

U.S. Supreme Court Decisions

Peugh v. United States 2013 WL 2459523 (2013) Use of current guidelines providing higher sentencing range than guidelines at time of offense violated Ex Post Facto Clause 

Petitioner and his cousin (Hollewell) ran two farming-related businesses in Illinois. When the business began experiencing cash-flow problems, Petitioner and Hollewell engaged in two fraudulent schemes. First, they obtained a series of bank loans by representing falsely the existence of contracts for future grain deliveries. When they failed to pay back the principal on these loans, the bank suffered losses of over $2 million. Second, they artificially inflated the balances of accounts under their control by “check kiting,” or writing bad checks between their accounts. This scheme allowed them to overdraw an account by $471,000. They engaged in their illicit conduct in 1999 and 2000. A jury found Petitioner guilty of five counts of bank fraud. At sentencing, over the Petitioner’s objection, the district court used the 2009 guidelines instead of the 1998 version in effect at the time of his offenses. The 2009 guidelines resulted in a sentencing range of 70 to 87 months, while the sentencing range under the 1998 version was 30 to 37 months. The district court imposed a sentence of 70 months, which was affirmed by the Seventh Circuit, relying on United States v. Demaree, 459 F.3d 791 (7th Cir. 2006).

The Court granted certiorari to “resolve a conflict among the Courts of Appeals over whether
the Ex Post Facto Clause may be violated when a defendant is sentenced under the version of the Sentencing Guidelines in effect at the time of sentencing rather than the version in effect at the time the crime was committed, and the newer Guidelines yield a higher applicable sentencing range.” “The post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines and that they remain a meaningful benchmark through the process of appellate review. [D]istrict courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process. Failing to calculate the correct Guidelines range constitutes procedural error. These requirements mean that ‘[i]n the usual sentencing, . . . the judge will use the Guidelines
range as the starting point in the analysis and impose a sentence within the range.’ Even if the sentencing judge sees a reason to vary from the Guidelines, ‘if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence.’ That a district court may ultimately sentence a given defendant outside the Guidelines range does not deprive the Guidelines of force as the framework for sentencing.”Petitioner cited “considerable empirical evidence indicating that the Sentencing Guidelines have the intended effect of influencing the sentences imposed by judges,” including the Sentencing Commission’s data that “indicate that when a Guidelines range moves up or down, offenders’ sentences move with it.” “The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” “When [Petitioner] committed his crime, the recommended sentence was 30 to 37 months. When he was sentenced, it was 70 to 87 months. Such a retrospective increase in the measure of punishment raises clear ex post facto concerns.”

The fact that district courts are free to consider the current version of the guidelines when determining a sentence did not alter the Court’s reasoning. “District courts must begin their sentencing analysis with the Guidelines in effect at the time of the offense and use them to calculate the sentencing range correctly; and those Guidelines will anchor both the district court’s discretion and the appellate review process . . . . The newer Guidelines, meanwhile, will have the status of one of many reasons a district court might give for deviating from the older Guidelines, a status that is simply not equivalent for ex post facto purposes.” “[T]he Ex Post Facto Clause forbids the [government] to enhance the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range. That is precisely what the amended Guidelines did here. Doing so created a ‘significant risk’ of a higher sentence, and offended ‘one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice.’ For these reasons, we reverse the judgment of the Seventh Circuit and remand the case for further proceedings.”

McQuiggin v. Perkins
133 S. Ct. 1924 (2013)
Plea of actual innocence can overcome habeas statute of limitations, but timing is relevant in evaluating reliability of proof

Respondent was charged with the murder of Henderson, who was found stabbed to death after leaving a party with Respondent and Jones. Jones, the key prosecution witness, testified that Respondent alone committed the murder while Jones looked on. Respondent testified that Jones and Henderson left him during the evening, and that he later saw Jones with blood on his clothing. Respondent was convicted of first-degree murder and sentenced to life in prison without parole. His conviction became final in 1997. On June 13, 2008, Respondent filed his federal habeas corpus petition alleging, inter alia, ineffective assistance of trial attorney. To overcome AEDPA’s time limitations, Respondent asserted newly discovered evidence of actual innocence in the form of three affidavits, each pointing to Jones as the murderer. The affidavits, dated January 30, 1997, March 16, 1999, and July 16, 2002, presented claims that Jones bragged about the murder, confessed to the murder, took his blood-stained clothing to a cleaners the day after the murder. The District Court found the affidavits insufficient to entitle habeas relief, characterizing them as “dubious” and found that the petition was untimely under §2244(d)(1)(D). Further, the court found that Respondent “ha[d] failed utterly to demonstrate the necessary diligence in exercising his rights” and had not shown that, taking account of all the evidence, “it is more likely than not that no reasonable juror would have  convicted him,” or even that the evidence was new.

The Sixth Circuit granted a certificate of appealability limited to a single question: “Is reasonable diligence a precondition to relying on actual innocence as a gateway to adjudication of a federal habeas petition on the merits?” The appeals court reversed, holding that Respondent’s gateway actual-innocence allegations allowed him to present his ineffective assistance claim as if it were filed on time. The Supreme Court granted certiorari to resolve a Circuit conflict on whether AEDPA’s statute of limitations can be overcome by a showing of actual innocence. The Court began by noting that Respondent was not asserting any excuse for filing after the statute of limitations has run. Instead, he maintained that a plea of actual innocence can overcome AEDPA’s one-year statute of limitations; thus seeking “an equitable exception to §2244(d)(1), not an extension of the time statutorily prescribed.” Relying on past habeas cases, the Court stated: “a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a procedural bar to relief. This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.”

Further, the Court noted that it had applied the miscarriage of justice exception to overcome
various procedural defaults and that the miscarriage of justice exception “survived AEDPA’s passage.” “AEDPA’s time limitations apply to the typical case in which no allegation of actual innocence is made. The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner].’” Addressing the existence of a threshold of diligence by a habeas petitioner, the Court explained that while “2244(d)(1)(D) requires a habeas petitioner to file a claim within one year of the time in which new evidence ‘could have been discovered through the exercise of due diligence,’ [i]t would be bizarre to hold that a habeas petitioner who asserts a convincing claim of actual innocence may overcome the statutory time bar § 2244(d)(1)(D) erects, yet simultaneously encounter a courtfashioned diligence barrier to pursuit of her petition.” The Court rejected the State’s argument that habeas petitioners asserting convincing actualinnocence claims must prove diligence: “we hold that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of a petitioner’s proof of innocence.

To invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we repeat, a petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing.” “Focusing on the merits of a petitioner’s actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception - i.e., ensuring that federal constitutional errors do not result in the incarceration of innocent persons.” The Court stressed the demanding standard in cases such as this one: “The gateway should open only when a petition presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.”

Descamps v. United States
2013 WL 3064407 (2013) Courts may not apply modified categorical approach when prior crime has a single, indivisible set of elements

Petitioner was convicted of being a felon in possession of a firearm, which carried a maximum sentence of 10 years. However, the government sought an enhanced sentence under ACCA, based on Petitioner’s prior state convictions for burglary, robbery, and felony harassment. Petitioner argued that his prior California burglary conviction could not count as an ACCA predicate under the categorical approach because California Penal Code §459 does not require the entry to have been unlawful in the way most burglary laws do. The district court disagreed, believing that it could use the modified categorical approach to examine certain documents to determine whether Petitioner had “admitted the elements of a generic burglary” when entering his plea. The district court imposed a sentence of 262 months, more than twice the term the Petitioner would otherwise have received. The

Ninth Circuit affirmed, relying on United States v. Aguila-Montes de Oca, 655 F.3d 915 (2011) (enbanc). The Supreme Court granted certiorari to resolve a Circuit split on whether the modified categorical approach applies to statutes like § 459
that contain a single, “indivisible” set of elements
sweeping more broadly than the corresponding
generic offense.

The Court began by explaining: “To determine whether a past conviction is for one of those
[ACCA] crimes, courts use what has become known as the ‘categorical approach:’ They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime – i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.” Further, in certain circumstances, the “modified categorical approach” may be used, such as when a prior conviction is for violating a socalled “divisible statute.” “That kind of statute sets out one or more elements of the offense in the alternative – for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and
jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.

The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” “The modified approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant’s conviction. So understood, the modified approach cannot convert [Petitioner’s] conviction under § 459 into an ACCA predicate, because that state law defines burglary not alternatively, but only more broadly than the generic offense.” “The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in § 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers simple shoplifting, as even the Government acknowledges.”

The California statute at issue in this case “define[s] burglary more broadly than the generic offense. And because that is true – because California, to get a conviction, need not prove that Petitioner broke and entered – a § 459 violation cannot serve as an ACCA predicate. Whether Petitioner did break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. Our decisions authorize review of the plea colloquy or other approved extrastatutory documents only when a statute defines burglary not (as here) overbroadly, but instead alternatively, with one statutory phrase corresponding to the generic crime and another not.

In that circumstance, a court may look to the additional documents to determine which of the statutory offenses (generic or non-generic) formed the basis of the defendant’s conviction. But here no uncertainty of that kind exists, and so the categorical approach needs no help from its modified partner. We know [Petitioner’s] crime of conviction, and it does not correspond to the relevant generic offense. Under our prior decisions, the inquiry is over.” In this case, Petitioner “may (or may not) have broken and entered, and so committed generic burglary. But § 459 – the crime of which he was convicted – does not require the factfinder (whether jury or judge) to make that determination. Because generic unlawful entry is not an element, or an alternative element, of § 459, a conviction under that statute is never for generic burglary. And that decides this case in [Petitioner’s] favor; the District Court should not have enhanced his sentence under ACCA.”

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys 

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We would like to thank our friends Joaquin & Duncan, L.L.C for sharing this information with us. 



Tags: punishment, fraud, gun, murder, robbery, violated, death, violence, sentencing