Illegal Aliens - Aggravated Felony Enhancement (§2L1.2)
Guidelines -- Amendments - Retroactive, Clarifying or Substantive, Motion Pursuant to 18 U.S.C. § 3582(c)
United States v. Aquino, 02-2075 (July 2, 2003)
The defendant pleaded guilty to reentering the United States illegally as a deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326. The district court determined his sentence by applying the then existing version of §2L1.2(b)(1)(A), which called for a 16-level increase for a defendant previously convicted of an aggravated felony.
Effective November 1, 2001, the Sentencing Commission promulgated Amendment 632, which amended the aggravated felony enhancement to provide for an increase of 8 to 16 levels, according to the seriousness of the aggravated felony. The defendant filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582.
HELD: (1) The court reviews de novo a district court's
interpretation of the Sentencing Guidelines.
(2) Section 3582(c)(2) provides that a court may reduce a previously imposed sentence if the Commission has lowered the applicable guideline range, and such a reduction is consistent with applicable policy statements issued by the Commission. The relevant policy statement, §1B1.10(a), states that, if none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under § 3582(c)(2) is not consistent with this policy statement. Amendment 632 is not listed in §1B1.10(c).
(3) In this situation, a district court cannot give retroactive effect to Amendment 632, even if it is clarifying rather than substantive. The question of whether an amendment is clarifying or substantive goes to whether a defendant is correctly sentenced in the first place, not to whether a correct sentence has subsequently been reduced by an amendment to the guidelines and can be modified under § 3582. An argument that a sentence was incorrectly imposed should be raised on direct appeal or in a motion to vacate sentence.
Appellate Review - Incomplete Record - Exhibits, Fatal to Claim of Insufficient Evidence
Sufficient Evidence - Review Standard, Child Pornography
Child Pornography - Internet, Interstate Commerce, Real or Virtual Children
Witnesses - Expert - Testimony as to Real or Virtual Children
Plain Error Review
Rule 29 Motion to Dismiss - Only Preserves Specified Issues
Guidelines (§ 2G2) - Enhancements for Exploit and Abuse, and Involving Pre-Pubescent Minors
Conditions of Supervised Release - DNA Collection, Participation in Sex Offender Treatment Program
Statutes - Trump Guidelines
United States v. Kimler, 02-3097 (July 7, 2003)
(Timothy J. Henry, FPD, Wichita, Kansas)
Kimler was convicted of receiving or distributing, by computer, images of minors engaged in sexually explicit conduct, and possession and distribution of such images. He was sentenced to 87 months imprisonment. Two conditions of his supervised release were that he cooperate in collecting a DNA sample and participate in a sex offender treatment program.
HELD: (1) The appeal lacks a full record. The core of the government's case resides in 69 exhibits taken from Kimler's computer and introduced into evidence. The exhibits show the persons, acts and interstate transportation of images which form the basis of the case. Yet Kimler did not designate a single one of the exhibits for the record on appeal. Since many of Kimler's arguments constitute a claim of insufficient evidence, the fact that a central part of the record is not before the court is virtually fatal to those contentions.
(2) In assessing the sufficiency of the evidence, the court reviews the record de novo, viewing the evidence in the light most favorable to the government, and asks whether a reasonable jury could find the defendant guilty beyond a reasonable doubt. Congress can regulate an instant message that was both sent and received in Utah where there was evidence that, in route, from the sender to the recipient, the message traveled to another state over ordinary telephone lines. There was more than sufficient evidence to prove the interstate commerce element of the statute.
(3) The evidence supported the inference that Kimler was the one sending, receiving and possessing the images of minors engaged in sexually explicit conduct that were found on the family computer.
(4) Kimler claims that the Supreme Court's recent decision in Ashcroft v. Free Speech Collation requires either direct evidence of the identity of children in the images or expert testimony that the images are of real rather than virtual children. There was no evidence identifying the children. Free Speech Coalition is limited to the constitutionality of §§ 2256(8)(B) and (D). Free Speech Coalition did not establish a broad, categorical requirement that, absent direct evidence of identity, an expert must testify that the unlawful image is of a real rather than a virtual child.
(5) When a Rule 29 motion to dismiss has been made on specific grounds, all grounds not specified in the motion are waived. Because Kimler is deemed to have waived the issue, the court will not address it except for review for plain error.
affects substantial rights. If he satisfies these criteria, the circuit may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of jurisdictional proceedings.
(7) Kimler disputes the four-level increase pursuant to §2G2.2(b)(3), for materials that portray sadistic or machoistic conduct. He also disputes the two level increase of §2G2.2(b)(1), material involving pubescent minors. The circuit reviews the district court's interpretation and application of the guidelines de novo. The district court found that some of the images depicted anal or vaginal penetration of pre-pubescent children by adults causing pain and humiliation. Therefore, the district court did not err in imposing the enhancement. Nor is it necessary for there to be expert testimony to prove the images depicted pre-pubescent children for the enhancement under §2G2.2(b)(1).
(8) Kimler challenges the supervised release condition of cooperation and collection of a DNA sample. The mandatory statutory provisions passed in 2000 were not reflected in the sentencing guidelines until the November 2002 edition which, as the statutes direct, make the collection of DNA samples a mandatory condition of supervised release. Statutes trump the guidelines when the two conflict. The DNA Act, while implicating the Fourth Amendment, is a reasonable search and seizure under the special needs exception to the Fourth Amendment's warrant requirement, because the desire to build a DNA database goes beyond ordinary law enforcement needs. The mandatory nature of the governing statute renders irrelevant any discussion of Walser and related requirements for imposition of discretionary conditions of supervision. Alternatively, the district court did not err in finding that all the applicable conditions are satisfied relative to the DNA collection requirement.
(9) Kimler's claim, that §5D1.3(d)(7), participating in a sex offender program, does not apply because he did not actually perpetuate an offense against a minor, is meritless. The district court ruled that child pornography offenses are perpetrated against a minor within the meaning of the guideline.
Career Offender - Crime of Violence - Aggravated Incest, Categorical Approach, Factual Consent, Risk of Injury or Pregnancy
United States v. Vigil, 02-1367 (July 8, 2003)
(Lynn Hartfield and Charles Szekely, FPD, Denver, Colorado)
Vigil appeals his sentence for possession of a firearm by a previously convicted felon. He appeals the district court's determination that a prior state conviction for aggravated incest constituted a prior conviction for crime of violence.
HELD: (1) Whether a statute defines a crime of violence for purposes of §4B1.2, career offender, is a question of statutory construction which is reviewed de novo. In determining whether a particular felony constitutes a crime of violence, the circuit employs a categorical approach that omits consideration of the particular facts of the case. When the definition of the predicate offense is ambiguous, the court may look at the charging document and jury instructions, but this inquiry must never involve a factual inquiry into facts previously presented and tried. The circuit's inquiry focused on examining the Colorado statute under which Vigil was convicted in 1989 for aggravated incest. The question is whether the offense has, as an element, the use, attempted use, or threatened use of physical force, satisfying the first prong of §4B1.2, or otherwise involves conduct that presents a serious potential risk of physical injury to another, satisfying §4B1.2's second prong. The requisite threat of force is implied whenever a parent inflicts sexual penetration on his or her child. Psychological brutalization is inherent in an offense like this. The power asymmetry implicit in aggravated incest permits the inference of threat of force so that aggravated incest constitutes a crime of violence.
(2) In addition, aggravated incest involves conduct that presents a potential serious risk of physical injury. The circuit has previously employed the inability of a victim to legally consent to sexual encounters as a proxy for the coercive nature of sex crimes, and has held that the victim's age does not change the significance of the absence of consent - legal or factual. Thus, the possibility of a child-victim's sincere consent to aggravated incest is irrelevant. The Seventh Circuit has declined to adopt a per se inference that a serious risk of injury arises whenever a party violates a statutory rape statute. But these cases do not consider the aggravating factor of incest. And even under the Seventh Circuit precedent upon which Vigil relies, a father's digital penetration of his minor daughter was held to be a crime of violence, despite the absence of risk factors such as pregnancy and venereal disease.
(3) Vigil heavily relies on the possibility that a parent could engage in prohibited conduct without a serious risk of physical injury to the child-victim. The statute governs scenarios in which an older child sincerely consents to aggravated incest. Vigil's argument ignores the text of the statute and misses the point of the categorical approach. Physical injury need not be a certainty for a crime to possess a serious risk of physical injury. Even assuming an older child could meaningfully consent to aggravated incest and that such encounter could transpire without greater risk of physical injury to the victim then that inherent in ordinary sexual intercourse, that scenario is irrelevant. This is because the possibility of factual consent does not obviate risk of physical injury, and the age of the victim is immaterial when considering the relationship between lack of consent and risk of physical injury.
Prosecutorial Misconduct - Accusing Defendant of Lying in Closing Argument
New Trial - Witness' Surprise Testimony About Threat
Evidence - Other Acts (Rule404(b))
Restitution - Notice, Required Findings in Writing
Guidelines - Enhancement for Involving Others Under 18, No Direct Conflict Between Guideline and Congressional Directive
Supervised Release - Reasons Requirement, Remand
United States v. Kravchuck, 02-5067 (July 9, 2003)
Kravchuck was convicted of violating 18 U.S.C. § 2113(b), theft from an automatic teller machine.
HELD: (1) The court reviews the district court's denial of a motion for mistrial for abuse of discretion. The court applies a two-part test in reviewing claims of prosecutorial misconduct. First, the court decides whether the conduct was improper. Second, the court decides whether the conduct, if improper, warrants reversal. The prosecutor stated in closing argument that Kravchuck had lied and lied and lied. The prosecutor may have been responding to the credibility battle that defense counsel had been waging for the vote of the jury. Although the prosecutor's statement may have been improper, it was not reversible error. The district court's instructions cured any potential defect. Also, the evidence of Kravchuck's participation in the burglary was overwhelming, so that any error would be harmless.
(2) As to the surprise testimony of Kravchuck's co-participant that Kravchuck had threatened them, the district court found that Kravchuck was not entitled to a new trial because the statement had been spontaneous and in the context of all the evidence was not overly prejudicial. The notice requirement of Rule 404(b) is triggered only when the government intends to solicit testimony of prior bad acts. Kravchuck's argument under Rule 403, that the testimony was unfairly prejudicial and should be grounds for a mistrial, also fails. A mistrial should only be granted when a defendant's fundamental right to a fair and impartial trial has been impaired.
(3) The court reviews the decision to admit evidence under Rule 404(b) for abuse of discretion. The evidence was properly admitted for proof of Kravchuck's plan. Kravchuck was on trial for burglary of ATMs. The prior bad acts also involved burglary or attempted burglary of ATM machines, the same group of co-participants, and the two prior bad acts occurred within seven months of the instant case.
(4) In evaluating an award of victim restitution, the court reviews fact findings for clear error and the ultimate award of restitution for abuse of discretion. Defendants are entitled to notice of an estimate of victim restitution amounts prior to sentencing. At no point did either party contend that a victim's loss from the burglary was not ascertainable, so 18 U.S.C. § 3664(d)(5) does not apply. Even if that statutory provision did apply, its ten day notice provision was satisfied.
(5) The court reviews a district court's legal interpretation of the sentencing guidelines de novo. The Violent Crime Control and Law Enforcement Act of 1994 directed the Sentencing Commission to promulgate sentence enhancements for a defendant 21 years of age or older, if the defendant involved a minor, less than 18 years old, in the commission of the offense. The guideline that was promulgated made no mention of what age the defendant needed to be. Kravchuck was 18 at the time of the offense and the people with whom he committed the crimes were minors. This court gives great deference to the plain language of the guidelines and interprets them as if they were statutes. There is no direct conflict in the wording of the guideline with Congress' directive that it apply to a defendant age 21 and over. Section 3B1.4 is valid as applied to defendants aged 18 to 20.
(6) The court reviews the district court's decision on supervised release for abuse of discretion. A sentence for supervised release should be remanded if a district court fails to give its reasons for imposing the sentence on the record. A district court must impose a term of supervised release on a defendant when his term of imprisonment is for more than one year. The appropriate term of supervised release for class C felonies, such as Kravchuck's crime, is two to three years. The condition of home confinement is only to be substituted for imprisonment. The government concedes that the three months home detention was improper, in the absence of an explicit departure upward from the guideline. The court remanded for resentencing on the matter of post-incarceration home detention. The government also concedes that the district court failed to provide reasons for the terms and conditions of the remainder of the supervised release term. A remand is necessary.
(7) The court reviews the district court's compliance with the Federal Rules of Criminal Procedure de novo. Rule 32 mandates, not only that findings regarding contested parts of the presentence report be made on the record, but that they also be reduced to writing. The court remanded on this issue as well.
Miranda - Public Safety Exception
United States v. Lackey, 02-1255 (July 11, 2003)
(Madeline S. Cohen, FPD, Denver, Colorado)
Lackey appeals his conviction of possession of a firearm by a restricted person. He appeals the denial of his motion to suppress.
HELD: (1) The defendant's challenge to the district court's ultimate ruling is reviewed de novo. The issue is whether officers violated the defendant's constitutional rights by asking him about the presence of guns or sharp objects on his person after he was informed of his Miranda rights. The question was proper under the public-safety exception to Miranda set forth in Quarles. The focused question of the officers addressed a real and substantial risk to their safety and the defendant. Because officers have the right to search the person of an arrestee, they will learn soon enough whether the arrestee is carrying a dangerous object. The purpose of the question is not to acquire incriminating evidence, but is solely to protect the officers as well as the arrestee from physical injury. The risk of incrimination is limited to a non-responsive answer, such as in this case, when the suspect provides more information than requested. This is not a risk particularly worthy of a prophylactic rule.
Motion to Suppress - Review Standard
Police Encounters - Consensual, Detentions Requiring Reasonable Suspicion, Arrests Based on Probable Cause, Factors to Consider, Incriminating Questions, Right to Refuse
Search - Consent
United States v. Ringold and Brown, 02-3251, 02-3254 (July 15, 2003)
(Timothy J. Henry, FPD, Kansas City, Kansas)
Ringold and Brown were indicted for possession with intent to distribute marijuana. They filed a joint motion to suppress. Each entered a guilty plea conditioned on the right to appeal the suppression ruling.
HELD: (1) In reviewing the denial of a motion to suppress, the court views the evidence in the light most favorable to the district court. The court will uphold fact findings unless clearly erroneous, and the ultimate determination is a question of law reviewed de novo.
(2) Consensual encounters do not implicate the Fourth Amendment. Investigative detentions, which are Fourth Amendment seizures of limited scope and duration, must be supported by reasonable suspicion. Arrests are reasonable only if supported by probable cause. The court considers all the circumstances to determine whether police conduct would have communicated to a reasonable person that he was not free to decline the officers' requests or otherwise terminate the encounter. The inquiry is an objective one. As long as a reasonable innocent person, as opposed to a person knowingly carrying contraband, would feel free to leave, such encounters are consensual. Various factors, which are non-exhaustive, include threatening presence of several officers, brandishing of a weapon, some physical touching, use of aggressive language, prolonged retention of personal effects, a request to accompany the officer to the station, interaction in a non-public or small enclosed place, and absence of other members of the public. No one factor is dispositive.
(3) The officers approached the defendants after their vehicle was already stopped and in the public space outside of the service station in full view of other patrons. Although the officers were in uniform and armed, they were roughly the same size as Brown and Ringold, and neither touched nor brandished his weapon. The patrol car was not blocking the defendants or their car. The conversation was friendly in tone. The officers did not pull the defendants over on the interstate. Instead, the defendants chose to leave the highway and voluntarily stopped their vehicle at the service station. Although the officers were standing on either side of Ringold and the gas pump, nothing prevented Ringold from entering his car and driving away.
(4) The mere fact that officers ask incriminating questions is not relevant to the totality of the circumstances inquiry. What matters is the manner in which the questions are asked. The questioning did not reach the level of implied coercion. The lack of notification of a right to refuse consent may be a relevant factor to consider.
(5) The circuit wrote that all of this may seem unduly formalistic and does not give sufficient play to the natural tendency of any person to feel somewhat cowed when a police officer approaches and asks questions. But the circuit said that apart from the difficulties that a more restrictive approach would pose, the law is too firmly established to form a more demanding test for a non-custodial encounter.
(6) An officer may conduct a warrantless search if the challenging party has consented.
Civil Rights Action (42 U.S.C. § 1983) -Qualified Immunity
Hatheway v. Thies and McGuire, 02-2168 (July 18, 2003)
This is a civil rights action brought pursuant to 42 U.S.C. § 1983.
Hatheway's claim arises out of a detention and interrogation by detectives who work for the city of Albuquerque. The officers contended that a reasonable official would have concluded that Hatheway consented to the detention and interrogation. The circuit disagreed, and affirmed the district court's denial of qualified immunity.
Habeas Corpus (28 U.S.C. § 2254) - Death Penalty
Evidentiary Hearing
Ineffective Assistance of Counsel - Insanity Defense, Defendant's Wishes, Strategic Choice, Consistency Between Guilt and Penalty Phases
Bryan v. Mullin, 00-6090 (July 21, 2003)
Bryan was convicted in Oklahoma of first degree murder and sentenced to death. A panel of the court concluded that Bryan was not entitled to relief on his evidence-sufficiency, conflict of interest, and competency claims. Judge Henry concurred in part and dissented in part. The panel also held that the trial counsel had not been ineffective by failing to present mental health evidence. A majority of the active judges ordered the case reheard en banc, and requested briefing on whether trial counsel was ineffective in failing to present evidence of Bryan's mental illness. The circuit vacated that portion of the panel opinion addressing the claim of ineffective assistance of trial counsel and affirmed for other reasons.
HELD: (1) The district court decided to take evidence on Bryan's claim that counsel was ineffective in failing to present mental health evidence. The district court was correct in affording him an evidentiary hearing.
(2) An ineffective assistance claim presents a mixed question of law and fact. The circuit accepts the district court's fact findings unless they are clearly erroneous, and reviews de novo whether counsel's performance was deficient and whether defendant was prejudiced. The proper measure of attorney performance is that of reasonably effective assistance. Judicial scrutiny of counsel's performance must be highly deferential. Bryan lacked the medical evidence to present an insanity defense at the guilt stage. Bryan did not want his attorney to present evidence that he was mentally ill, and he was unwilling to accept a guilty plea to avoid a possible death sentence. Although trial counsel has an independent duty to investigate, he has to be responsive to the wishes of his client. The attorney had two options during the guilt phase. He could put the prosecution to its burden of proof, as the defendant specifically instructed. Or he could present a non-viable insanity defense as foundation for a mitigation case during the penalty phase. That very strategy had led to Bryan's termination of prior counsel. Counsel was concerned that such testimony might play into the prosecution's claim that Bryan was a continuing threat to society. Mental health evidence has the possibility of being a two-edged sword. And counsel was concerned that an about-face during the penalty phase might compromise Bryan in the jurors' eyes. So the decision not to present mental health evidence during the penalty phase was strategic. The question is whether that was a reasonable strategic decision. It was not unreasonable for counsel to utilize a mercy approach during the penalty phase. (Judge Henry concurred in part and dissented in part. Judges Seymour, Ebel and Lucero joined him.)
Arrest - House, Exigent Circumstances
United States v. Flowers, 02-5149 (July 22, 2003
(Paul D. Brunton, FPD, Tulsa, Oklahoma)
Flowers entered a conditional plea of guilty to possession of a firearm by a felon. The district court ruled that the defendant did not have an expectation of privacy that society would recognize.
HELD: (1) The ultimate determination of reasonableness of a warrantless search or seizure is reviewed de novo. The arrest within Flowers' home violated his Fourth Amendment rights. In Payton, the Supreme Court has drawn a firm line at the entrance to a house. Unless there were exigent circumstances, the arrest of Flowers and subsequent search of his home violated the Fourth Amendment. At the time, Flowers was inside his home. Police need either a warrant or probable cause, plus exigent circumstances, to lawfully enter a home. The circuit found that the instant case is different from the Supreme Court's decision in Santana and the circuit's decision in McKinnon. Unlike the situations in those cases, Flowers was not exposed to public view. He was not in a place sufficiently public, so as to have no legitimate expectations of privacy. While the court accepts fact findings unless clearly erroneous, the determination whether those facts satisfy the legal test of exigency is subject to de novo review. Even an officer's warrantless entry on a domestic call into a home is not exempt from the requirement of showing exigent circumstances.
(2) The government bears a heavy burden when attempting to demonstrate an urgent need to justify a warrantless search or arrest. The fact that a misdemeanor offense is involved has an effect in the determination of exigency. The information the officers had was corroborated.
Appellate Review - Waivers, Motion Under 18 U.S.C. § 3582(c)
Guideline Interpretation - Amendments, Retroactivity Under §1B1.10, Clarifying or Substantive, §3582(c)Motion
Collateral Attack
Plea Agreement
United States v. Chavez-Salais, 02-2138 (July 29, 2003)
(Vicki Mandell-King, FPD, Denver, Colorado)
Chavez-Salias pleaded guilty to reentry of a previously deported alien. He was sentenced to 57 months imprisonment. He waived his right to appeal or to collaterally attack his sentence. Later he filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a post-sentencing amendment to §2L1.1.
HELD: (1) A defendant's knowing and voluntary waiver of the statutory right to appeal is generally enforceable. The court construes a plea agreement according to contract principles. It is by no means obvious that a defendant's § 3582 motion would be understood as a collateral attack on his sentence, as opposed to a motion prospectively to modify a sentence based on events occurring after the original sentence was imposed. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The language of the plea agreement did not clearly reach a motion under § 3582. Nor did the Rule 11 colloquy. Therefore, the circuit held that the defendant did not waive his right to bring the § 3582 motion.
(2) The circuit held that the amendment to §2L1.2 does not apply retroactively. Amendment 632 is not listed in §1B1.10(c), and therefore the defendant is not entitled to relief. The substantive or clarifying argument under Kissick should be raised on direct appeal or in a § 2255 motion.
Habeas Corpus (28 U.S.C. § 2254)
Certificate of Appealability-Debatable Among Jurists
Ex Post Facto - Prior Conviction to Enhance Present Sentence, § 2L1.2
Illegal Aliens - Aggravated Felony
United States v. Springfield, 03-8010 (July 29, 2003)
HELD: (1) When a district court has denied a motion for COA on procedural grounds without reaching the underlying constitutional claim, a COA should issue if the movent demonstrates that jurists would find it debatable whether the motion states a valid claim of denial of a constitutional right. In deciding whether the district court's resolution was debatable among jurists of reason, courts should not undertake a full consideration of the factual or legal bases. Rather, the COA determination requires an overview of the claims in the habeas petition and a general assessment of their merits. Mr. Springfield has not shown that jurists of reason would find it debatable whether his motion states a valid claim of denial of a constitutional right.
(2) In order for a law to violate the ex post facto clause, the law must apply to events occurring before its enactment and must disadvantage the offender affected by it. There is no ex post facto problem in using a prior conviction to enhance a sentence, so long as the offense for which the sentence is being imposed was committed after the effective date of the statutory provision setting forth the conditions for the enhancement. Springfield's enhanced sentence is not an additional retroactive punishment for the 1973 escape. Instead, it is a stiffened penalty for his latest crimes committed in 1998.
(3) The sentencing enhancement in §2L1.2 does not unconstitutionally punish a defendant for a felony conviction that occurred prior to the enactment of that guideline or its amendments. This is because the defendant is being punished for the illegal reentry, not the underlying aggravated felony.