Over-rated, Under-rated, or Properly Rated?

Four Big Recent Cases from the Fourth Circuit and the Supreme Court United States v. Miller, 2013 WL 4441547, 2013 U.S. App. LEXIS 17494 (4th Cir.) United States v. Davis, 720 F.3d 215 (4th Cir. 2013) United States v. Alleyne, 133 S.Ct. 2151 (2013) United States v. Deschamps, 133 S.Ct. 2276 (2013)

Over-rated, Under-rated, or Properly Rated?

United States v. Miller • • • • •

Facts: Defendant was convicted in 2008 of being a felon-inpossession of a firearm. Under the relevant precedent at the time (Harp), his prior North Carolina convictions were federal felonies. Subsequent to his conviction, Simmons over-ruled Harp, and Mr. Miller had no predicate felonies. He filed a § 2255 claim, alleging actual innocence. The question before the Court was whether Simmons was applicable to provide habeas relief.

United States v. Miller Holding: • Simmons is a substantive, not procedural, rule. • It is, therefore, applicable to cases on collateral review. • Because there was no dispute that, under Simmons, Mr. Miller was actually innocent of being a felon-in-possession of a firearm, the Court ordered that his 2008 conviction be vacated.

United States v. Miller

•Over-rated? •Under-rated? •Properly Rated?

United States v. Miller

Over-rated

United States v. Miller Miller is a great case for Mr. Miller and for people like him, but it is not the panacea that many lawyers and many former clients think that it is. It will not open the jailhouse door for most former clients.

United States v. Miller • Many procedural hurdles remain for most former defendants hoping to file Simmons-based § 2255 petitions:

• Timeliness: The United States, to its credit, waived the statute of limitations in Miller. It may not do so in future cases. Nothing in Miller implies that the statute of limitations will not apply to Simmons petitions. • Appeal Waiver: The government chose not to enforce, or Mr. Miller did not sign, an appeal waiver. Especially for cases involving a Guidelines determination (i.e. Career Offender), the appeal waiver provides a significant hurdle to obtaining § 2255 relief based on Simmons. • Bad Facts: Mr. Miller did not have other predicate convictions that would have allowed the government to prove that he was a felon anyway.

United States v. Davis • • • • • •

Facts: Defendant committed numerous state robberies in 2004 and 2005. In 2005, he pleaded guilty in NC state court to six counts of robbery with a dangerous weapon. Consistent with his plea agreement, the charges were “consolidated” for judgment as one robbery and sentenced as a Class D felony. In 2010, he robbed a fast-food resturant and pleaded guilty to Hobbs Act robbery. He was sentenced as a Career Offender based on having two prior state robbery offenses. He appealed, arguing that his consolidated judgment was only one prior conviction.

United States v. Davis Holding: • In North Carolina a “Consolidated Sentence” is not merely a matter of procedural efficiency. It has real, substantive, effect. • “[W]here a defendant receives a ‘consolidated sentence’ (or ‘consolidated judgment’) under North Carolina law, it is one sentence.” • So, Mr. Davis was not a Career Offender.

United States v. Davis

•Over-rated? •Under-rated? •Properly Rated?

United States v. Davis

Properly Rated (though it could end up under-rated)

United States v. Davis There’s Some Good Stuff Here: • If you look at Mr. Davis’s past, he certainly meets the common sense test of someone who has spent a career offending. He has a history of robbing people and businesses with guns. But, under the law, he is not a career offender • The Fourth Circuit did not credit the government’s arguments that Mr. Davis’s crimes should have been punished more severely, or that it was not fair to let him not be a Career Offender when others in his position (without a consolidated sentence) would be. • You will have clients with pretty bad pasts who will benefit from this case.

United States v. Davis There’s Some Not-As-Good Stuff Here: • Nothing in this opinion prevents sentencing courts from upwardly departing or varying based on the defendant’s criminal history or the argument that he “should be” a career offender. In fact, the Fourth expressly notes those options at the end of the opinion. • This is a Guidelines-based case, so it does not help ACCA-exposed clients.

Alleyne v. United States • •

• •

Facts: Defendant was convicted by a jury of, among other things, using or carrying a firearm in relation to a crime of violence. At sentencing, he objected to the application of a seven-year mandatory minimum sentence for “brandishing” the firearm, arguing that the jury found only that he used it—which carries only a five-year minimum sentence. The district court, bound by Harris v. United States, held that it could find brandishing by a preponderance at sentencing, and applied the seven year mandatory minimum sentence. Mr. Alleyne appealed, arguing that allowing a judge to increase a mandatory minimum at sentence violates the Sixth Amendment and, therefore, that Harris should be overruled.

Alleyne v. United States • • •

•

Holding: Harris is expressly overruled. A district court cannot impose a mandatory minimum sentence based on facts found at sentencing. Any fact that increases a defendant’s mandatory minimum sentence must be admitted by the defendant or found by a jury beyond a reasonable doubt. So, the five year, not the seven year, mandatory minimum should have applied.

Alleyne v. United States

•Over-rated? •Under-rated? •Properly Rated?

Alleyne v. United States

Properly Rated

Alleyne v. United States There’s Some Good Stuff Here: • Harris was a worrying case. It stood as an outlier that called the other Sixth Amendment cases into some question. It is nice to have the Court on the right page concerning it. • Mandatory minimum sentences are probably the single biggest problem our clients have at sentencing. Anything that places constitutional limits on them is a very good thing. • And, hey, there will certainly be cases where the government will not be able to prove brandishing to a jury, but it might have been able to convince a district judge by a preponderance. The Sixth Amendment protects those clients.

Alleyne v. United States There are some limits, though:

• The maximum penalty for 924(c) is life, regardless of whether brandishing is found. Nothing (other than reasonableness review) prevents a judge from upwardly varying or departing to a sentence above five years based on a finding that your client brandished the firearm. • The government can always include brandishing in the indictment and/or any offered plea agreement. The Sixth Amendment allows the imposition of mandatory minimum sentences if they are found by a jury or admitted by a defendant.

Descamps v. United States Facts: • • • •

•

Defendant convicted of Felon in Possession Had a California conviction for “burglary.” However, California offense did not require element of unlawful entry which is one of the elements of “generic” burglary. 9th Circuit held that sentencing court could look to Shepard documents to see if D’s conviction “necessarily” included a finding of unlawful entry. If so, the conviction could be used as an ACCA predicate under the “modified categorical” approach.

Descamps v. United States Holding: • • • • • •

9th Circuit got it wrong! Modified categorical approach only applies to divisible statutes. That is, statutes that contain alternative elements. California burglary never requires proof of unlawful entry so it never qualifies as “generic” burglary. The fact that a particular defendant might have “broken and entered” in committing the offense is irrelevant. What matters are the elements of the offense, not the manner in which it was committed on a particular occasion.

Descamps v. United States

•Over-rated? •Under-rated? •Properly Rated?

Descamps v. United States

Under-Rated

Descamps v. United States Significance: • • • • • •

Finally clears up confusion about proper application of modified categorical approach. Reinforces that focus is on the elements, not the facts of the crime. Already has caused courts to revisit earlier decisions. Cabrera-Umanzor- child abuse Royal- Maryland assault Carthorne- assault and battery of police officer