Appellate Update May 2018 Jacob Schuman Research & Writing Specialist Federal Community Defender Office, E.D. Pa.
Supreme Court Decisions
Sessions v. Dimaya 138 S.Ct. 1204 (2018)
Facts Dimaya is an LPR convicted of burglary in California. Ordered removed for committing an aggravated felony. List in 8 U.S.C. 1101(a)(43) Includes a crime of violence. 18 U.S.C. 16
Crime of violence (18 U.S.C. 16 ) 16(a): An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.. Elements clause 16(b): Any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Residual clause
Question Presented Is 16(b) void for vagueness?
Legal Backdrop Johnson v. United States, 135 S.Ct. 2551 (2015) struck down ACCA s residual clause as unconstitutionally vague. Any crime that otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B). Cert. granted in Sept. 2016, first argued in Jan. 2017. Court split 4-4 and set for reargument in the fall
Held 16(b) is void for vagueness!
Majority (Kagan) 16(b) is just as vague as ACCA s residual clause, struck down in Johnson. Removal is subject to the same vagueness standard as criminal punishment.
Concurrence (Gorsuch) Originalist justification for the vagueness doctrine. The same vagueness standard for criminal punishment should apply not only to removal, but also to civil commitment, business license revocation, property forfeiture etc.
Dimaya Takeaways Raise Dimaya/Johnson challenge anytime statute uses COV definition from 16. Argue no force element under 16(a). E.g., illegal reentry stat. max. bump. 8 U.S.C. 1326(b)(2). Challenge as vague residual clause in 18 U.S.C. 924(c), which is identical to 16(b). Bad 3d Circuit precedent (Robinson/Galati), but preserve via MTD and conditional plea.
Marinello v. United States 138 S.Ct. 1101(2018)
Facts Marinello didn t pay taxes, destroyed records, paid employees in cash, etc. But didn t know he was under investigation or audit! Charged with corruptly obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code]. 26 U.S.C. 7212(a)
Question Presented Does 7212(a) apply to Marinello?
Held No, 7212(a) does not apply. Due administration means specific, targeted acts of administration, not routine administrative procedures. Statute only covers obstruction of investigations, audits, etc., Not the agency s day-to-day review of tax returns. Prosecution must show (1) that a proceeding was pending or reasonably foreseeable, (2) a nexus between the defendant s conduct and that particular proceeding.
Non-Tax Takeaways Argue for narrowly construing criminal statutes to ensure fair notice and avoid unfairness. E.g., Government s theory could criminalize giving large cash tips. Court s lack of faith in the responsible exercise of prosecutorial discretion. [T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute s highly abstract general statutory language places great power in the hands of the prosecutor. Doing so risks allowing policemen, prosecutors, and juries to pursue their personal predilections.
District of Columbia v. Wesby 138 S.Ct. 577(2018)
Facts Peaches throws awesome house party. Police show up, Peaches isn t there.also its someone else s house. Police arrest 21 partygoers for unlawful entry.
Question Presented Did the police have probable cause to arrest the partygoers?
Held Yes, the police had probable cause to believe that the partygoers knew or should have known that they had entered the house against the homeowner s will. Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized. Holistic analysis that includes innocent conduct. Concurrence (Ginsburg): Time to reconsider objective standard? Whren v. United States, 517 U.S. 806 (1996)
Class v. United States 138 S.Ct. 798 (2018)
Facts Class charged with carrying firearms on the grounds of the U.S. Capitol. Moves to dismiss on Second Amendment grounds. Pleads guilty, but does not expressly waive the right to appeal his constitutional claim.
Question Presented Does a guilty plea automatically waive the right to appeal on the ground that the statute of conviction violates the Constitution?
Held No, a guilty plea does not by itself waive the right to appeal on the ground that the statute violates the Constitution. Guilty plea admits factual guilt, but not that the government may prosecute you based on those facts. No waiver of double jeopardy, vindictive prosecution, constitutional claims. Guilty plea does waive claims of case-related constitutional defects prior to entry of the plea (e.g., Fourth Amendment violations, grand jury defects).
Class Takeaways Unclear if rule applies to state defendants. EDPA USAO has added Class waivers to plea agreements. Even with Class waiver, possible to raise constitutional claim via 2255 IAC argument.
Supreme Court Cert Grants
Categorical Approach Stokeling v. United States: Is state robbery that includes an element of overcoming victim resistance, but requires only slight force to do so, categorically a violent felony under ACCA? United States v. Stitt: Is burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation categorically burglary under ACCA?
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Resentencing Hughes v. United States: Is a defendant who enters into a plea agreement under FRCP 11(c)(1)(C) eligible for a sentence reduction if there is a later, retroactive amendment to the guidelines range? Koons v. United States: Is a defendant who receives a sentence below the mandatory minimum due to substantial assistance eligible for a sentence reduction if there is a later, retroactive amendment to the guidelines range that would have applied in the absence of the mandatory minimum?
End of the Administrative State? Gundy v. United States: Did Congress violate the non-delegation doctrine by granting authority to the AG to decide whether pre-sorna sex offenders must register under the statute? No clear circuit split, but Judge Gorsuch expressed concern. United States v. Hinckley, 550 F.3d 926, 948 (10th Cir. 2008) (Gorsuch, J., concurring). 83 years since the Supreme Court last struck down a statute on non-delegation grounds. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
Still Waiting Carpenter v. United States: Whether the government needs a warrant to seize/search historical cell phone records revealing the location and movements of the user over 127 days? Collins v. Virginia: Whether the automobile exception to the warrant requirement permits the police to enter private property and search a car parked near a house? Byrd v. United States: Whether a driver has a reasonable expectation of privacy in a rental car when he has the renter s permission to drive it but is not listed as an authorized driver on the rental agreement? Dahda v. United States: Whether suppression is required when a wiretap order is facially insufficient because it exceeds the judge s territorial jurisdiction? City of Hays, Kansas v. Hoyt: Whether the Fifth Amendment applies to statements used at a probable cause hearing, rather than a criminal trial? Rosales-Mireles v. United States: Whether the fourth prong of plain error review requires that the error be one that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge?
Third Circuit Decisions
United States v. Douglas 885 F.3d 124 (3d Cir. 2018)(en banc)
Facts Douglas worked at airport, used special security access to smuggle cocaine. Two-level enhancement for abus[ing] a position of public trust. U.S.S.G. 3B1.3
Question Presented Does the abuse of a position of trust enhancement apply to Douglas?
Held No, the enhancement does not apply. En banc court refines application of the abuse of a position of trust enhancement. Pardo factors
Old Test (1) Did defendant occupy a position of trust? Did the position allow the defendant to commit a difficult-to-detect wrong? How much authority did the position vest in the defendant vis-à-vis the object of the wrongful act? Has there been reliance on the integrity of the person occupying the position? (2) Did the defendant abuse that position to facilitate the crime?
New Test (1) Did defendant occupy a position of trust? Did the defendant have the power to make decisions free from supervision? Was there a fiduciary or fiduciary-like relationship? Did the defendant have authoritative status that led his actions or judgment to be presumptively accepted? (2) Did the defendant abuse that position to facilitate the crime? Did the position allow the defendant to commit difficult-todetect wrong? How much authority did the position vest in the defendant vis-à-vis object of wrongful act? Has there been reliance on the integrity of the person occupying the position?
United States v. Metro 882 F.3d 431 (3d Cir. 2018)
Facts Metro gives inside information to Tamayo, who tells Eydelman to trade on it. Eydelman also trades for other people. Metro says he only learned of Eydelman s existence after the last tip. Court sentences Metro based on total value of Eydelman s trades.
Question Presented Is Metro liable for all Eydelman s trades?
Held No, the court did not make sufficient findings to sentence Metro based on Eydelman s trades. A defendant is only liable for the acts of others if they are (1) within the scope of jointly undertaken criminal activity, (2) in furtherance of that activity, and (3) reasonably foreseeable. U.S.S.G. 1B1.3(a)(1)(B) No strict liability for tippers. Just because Metro pled guilty to conspiring with Eydelman does not mean he can be punished for all Eydelman s trades. Criminal liability sentencing accountability.
United States v. Huynh 884 F.3d 160 (3d Cir. 2018) Plea agreement stipulates to several enhancements and agrees on TOL of 20. At sentencing, the court suggests another enhancement. The government recites the evidence but remains neutral about whether the enhancement should apply. Held: The government did not violate the plea agreement.
United States v. Ley 876 F.3d 103 (3d Cir. 2017) Criminal history is based on the number of prior sentences. U.S.S.G. 4A1.1 Multiple sentences imposed on single day count as single sentence, unless the underlying offenses were separated by an intervening arrest. U.S.S.G. 4A1.2(a)(2) Held: Arrest means formal, custodial arrest. Not traffic stop or issuance of summons.
United States v. Ferguson 876 F.3d 512 (3d Cir. 2017) Court may not sentence a defendant based on his bare arrest record. Held: Court may refer to bare arrest record, but not rely on it. Context matters. Express reliance not necessary to establish error.
Categorical Approach Generic burglary requires de minimis force and North Carolina burglary qualifies. United States v. Graves, 877 F.3d 494 (3d Cir. 2017). Circuit split! Unarmed bank robbery is a crime of violence. United States v. Wilson, 880 F.3d 80 (3d Cir. 2018). Georgia forgery is a crime relating to forgery and is therefore an aggravated felony. Williams v. Att y General, 880 F.3d 100 (3d Cir. 2018). 8 U.S.C. 1101(a)(43)
Confirmed: New Judges! Stephanos Bibas, former professor of criminal law at the University of Pennsylvania. Nominated: David Porter, civil litigator in private practice in Pittsburgh, PA. Previously nominated by President Obama for district court. Paul Matey, general counsel at University Hospital in Newark, NJ.
Resources Federal Defender Third Circuit Blog, http://circuit3.blogspot.com/ FCDO Website http://pae.fd.org/ DefenseLink (CJA Newsletter) & Case Summaries http://pae.fd.org/cja.html Defender Services / Training Division http://www.fd.org/ Sentencing Law and Policy Blog http://sentencing.typepad.com/ How Appealing http://howappealing.abovethelaw.com/ SCOTUSblog http://www.scotusblog.com/ First Mondays http://www.firstmondays.fm/