Motion to Vacate Sentence (28 U.S.C. § 2255);

Jury - Unanimity;

Indictment - Richardson;

Retroactivity;

Procedural Bar - Cause and Prejudice, Waiver, Novel Claim, Actual Innocence;

Initial or Successive

United States v. Barajas-Diaz, 01-2298 (December 3, 2002)

Barajas appeals from the denial of his § 2255 motion. At the close of trial, he moved to dismiss the CCE count on the ground of insufficient evidence as to the three felonies required to constitute the continuing series of violations. The district court denied the motion.

On direct appeal, Barajas challenged the sufficiency of the indictment. This court held that references to his participation in the overt acts sections was sufficient, and that the evidence was sufficient to support the CCE conviction.

Before Barajas filed his § 2255 motion, the Supreme Court decided Richardson. In that case, the Court held that the jury must unanimously agree, not only that the defendant committed some continuing series of violations, but also that the defendant committed each of the individual violations necessary to make up that continuing series.

HELD: (1) Under Teague v. Lane, the court generally does not apply new constitutional rules of criminal procedure retroactively to cases on collateral review. The question is whether Richardson falls under the Teague bar or may be applied retroactively. Teague only comes into play when the new rule is procedural rather than substantive. Every circuit to consider the issue has held that Richardson announced a new rule of substantive law. Therefore, Teague does not bar application of Richardson retroactively.

(2) Nonetheless, failure to raise an issue at trial or on direct appeal imposes a procedural bar to habeas review under United States v. Frady, in which the Supreme Court held that to obtain collateral relief based on trial errors to which no objection was made, a convicted defendant must show both cause and actual prejudice.

(3) Barajas contends he raised a Richardson style-claim at trial and on direct appeal. At best, he attacked the evidence supporting his personal commission of the three predicate violations, and not the requirement of jury unanimity. There is nothing new about the requirement that a jury find a defendant committed the predicate violations.

(4) Although the government did not raise procedural bar in the district court, this does not amount to a waiver. The district court applied the bar sua sponte, and alternatively, disposed of the Richardson claim on the merits. Procedural bar may be raised sua sponte in the interests of judicial efficiency, conservation of scarce judicial resources, and the orderly and prompt administration of justice.

(5) Although this court's decision in Daniels stated that the AEDPA amendment to § 2255 eliminated the two-part analysis of Teague and cause and prejudice, this decision dealt with second or successive § 2255 motions, and not an initial habeas petition as is Barajas. Initial habeas petitions, based upon a new rule of constitutional law, are not guided by the gatekeeping language of the AEDPA. Mora. Teague generally comes into play before Frady.

(6) In terms of cause, Barajas continues to argue that his sufficiency of the evidence or of the indictment claims incorporated a Richardson claim. The court had already rejected this argument earlier in the opinion.

(7) The court also rejected Barajas' argument that he could not have anticipated the decision imposing a unanimity requirement in Richardson. To constitute cause, a claim must be so novel that its legal basis was not reasonably available to counsel. But by the time of Barajas' trial, the unanimity issue had been litigated in a number of federal courts, and at least one court had decided that a specific unanimity instruction on the CCE count was required. Therefore, the circuit held that Barajas has failed to show cause for procedural default.

(8) Barajas can overcome the Frady bar by showing that the constitutional error he raises has probably resulted in the conviction of one who is actually innocent. He must show that in light of all the evidence, it is more likely than not that no jury would have convicted him. To the extent a petitioner argues that a particular jury would not have unanimously found each of the predicate violations, that argument is for legal rather than actual or factual innocence. To

the extent he argues that no reasonable jury could have found him guilty unanimously, this is a claim of actual innocence. The direct appeal panel held that both the indictment and evidence were sufficient to support Barajas' CCE conviction. Out of an abundance of caution, the circuit conducted an actual innocence inquiry without reference to any preclusive effect of the direct appeal. After examining the record, the court found it did not demonstrate Barajas' actual innocence. Therefore, Barajas is not entitled to bypass the Frady bar.

Guideline Interpretations;

Illegal Alien - Aggravated Felony, Not Limited to Immediately Preceding Felony;

Apprendi - Not Extend to Prior Convictions;

Rule of Lenity

United States v. Soto-Ornelas, 01-6411 (December 3, 2002)

(June E. Tyhurst, FPD, Oklahoma City, Oklahoma)

Soto-Ornelas was convicted of illegal reentry after a 1994 conviction for unlawful possession of cocaine, an aggravated felony justifying an 8 level enhancement. In 1992, he had been convicted of burglary of a dwelling, a crime of violence carrying a 16-level enhancement. The question on appeal is whether the burglary conviction could be used, or whether the enhancement must be based on the drug charge, as it was the conviction listed in the indictment and the conviction immediately preceding the defendant's last deportation. The circuit held that the district court correctly relied on the burglary conviction. Soto-Ornelas was sentenced under the 2001 version of the guidelines.

HELD: (1) A challenge to the manner in which the district court applies and interprets the guidelines is a question of law reviewed de novo.

(2) A burglary conviction is an aggravated felony for purposes of the statute or as a crime of violence.

(3) The claim that the burglary conviction could not be used to enhance the sentence, because it was not charged in the indictment, is foreclosed by Almendarez-Torres.

(4) The relevant statutory subject matter of § 1326(b) is recidivism. There is no nothing to support the defendant's argument that only the immediately preceding felony is relevant.

(5) The rule of lenity does not apply as the statute is not ambiguous.

Admission of Evidence - Discretion Standard, Rule 404(b), Foundation;

Felon With Firearm - Sufficient Evidence, Elements;

Criminal History - Plea in Abeyance

United States v. Gorman, 01-4249 (December 3, 2002)

Gorman was convicted of possession of a firearm by a convicted felon.

HELD: (1) Admission of evidence is reviewed for abuse of discretion. Rule 404(b) forbids use of other bad acts to prove the character of the defendant. But acts intrinsic to, or intertwined with, the charged acts are not Rule 404(b) acts. The testimony relating to discovery of marijuana was intertwined with the discovery of the firearm, and therefore necessary to understand the flow of events and put police conduct in context. It was not Rule 404(b) evidence.

(2) Testimony is sufficient to establish foundation for evidence that is readily identifiable and relatively resistant to change. Deficiencies in the chain of custody go to the weight of the evidence and not its admissibility.

(3) Claims of insufficient evidence prompt de novo review. For a § 922(g) conviction, the government must prove the defendant was previously convicted of a felony, knowingly possessed a firearm, and the possession was in or affecting interstate commerce. The government may satisfy the element of knowing possession by showing constructive possession of the weapon. When a defendant jointly occupies the premises, the government must show some connection between the defendant and the firearm. Gorman did not have exclusive possession of his truck, but there was a sufficient nexus between Gorman and the firearm because the gun was located on the driver's side of the vehicle where Gorman was sitting immediately prior to the search. In addition, Gorman was an auto-mechanic who owned and worked on the truck.

(4) The district court added two points to Gorman's criminal history score due to a plea in abeyance. Whether Utah's plea in abeyance has the necessary supervisory component to make it a criminal justice sentence is a legal interpretation subject to de novo review. The plea in abeyance was both an adjudication of guilt and a conviction. But the full consequences of conviction are not visited upon a defendant who completes the conditions associated with a plea in abeyance. The circuit has determined that Oklahoma's and Colorado's deferred judgment statutes are criminal justice sentences. Utah's plea in abeyance is similar to Colorado's deferred judgment. The Utah court's power to terminate the agreement if Gorman violated the law is sufficient to establish a criminal justice sentence. This is sufficient to add two points to the defendant's criminal history score under §4A1.1(d).

Amount of Loss;

Grouping - Mail Fraud and Tax Evasion, Double Counting

United States v. Peterson, 02-3076 (December 9, 2002)

(David J. Phillips, Marylyn Trubey, FPD, Topeka, Kansas)

Peterson was convicted of mail fraud and tax evasion, and was sentenced to 30 months on each count to run concurrently.

HELD: (1) The district court is required to calculate the total amount of loss. Factual determinations are reviewed for clear error. The district court did not group the tax evasion and mail fraud counts under the multiple count adjustment of §3D1.2(c).

(2) The court reviews de novo the district court's interpretation and application of the sentencing guidelines. The circuits are divided over whether to group mail fraud and tax evasion under §3D1.2(c). The circuit has held that mail fraud and tax evasion do not involve substantially the same harm, and should not be grouped under §3D1.2(d).

(3) In addition, the enhancement under the tax evasion guideline serves a different purpose than the enhancement in the mail fraud guideline. Therefore, there is no impermissible double counting. The purpose for the increase under §2F1.1(b)(1)(k) is to account for the seriousness of the crime in terms of amount of money involved. The purpose for the increase under §2T1.1(b)(1) is to avoid understating taxes. Tax evasion and mail fraud are not closely related because the victims of tax evasion and mail fraud are not the same, the offenses involve distinct behaviors, the purposes of the enhancements are different, and the harms attributable to each crime are dissimilar.

Death Penalty;

Habeas Corpus (28 U.S.C. § 2254) - AEDPA;

Standard of Review - De Novo When State Court Does Not Decide, Fact Findings Entitled to Deference;

State Evidentiary Rulings - Not Ordinarily Cognizable, Fair Trial;

Jury - Presumed to Follow Instructions;

Sanity

Ellis v. Mullin, 01-6004 (December 10, 2002)

(Scott W. Braden, FPD, Oklahoma City, Oklahoma)

Ellis is a schizophrenic who went on a 90-minute killing spree that left three people dead and four wounded in Oklahoma in 1986. He received three death sentences. The circuit concluded that the trial court improperly excluded critical evidence of Ellis' insanity.

HELD: (1) Because Ellis filed his habeas petition after the effective date of the AEDPA, the AEDPA applies.

(2) Because the OCCA upheld the exclusion of the Garcia report without any reference to the Chambers v. Mississippi claim, the OCCA did not consider Ellis' federal constitutional claim, so review is de novo. But the state court's determination that nothing in the Garcia report was directed at the issue of sanity is entitled to deference under § 2254(d)(2)(basing review on an unreasonable determination of the facts in light of the evidence presented).

(3) Ordinarily, state evidentiary determinations do not present federal constitutional claims. However, under some circumstances, if a state court applies the state's evidentiary rules unfairly to prevent a defendant from presenting evidence critical to his defense, habeas review is appropriate. The OCCA unreasonably determined the facts in light of the evidence presented when it concluded that the Garcia report did not bear upon Ellis' sanity at the time of the incident. The Garcia report was exculpatory and implicated the fundamental fairness of the trial, because it would have created a reasonable doubt that did not exist without it. The circuit rejected the district court's view that the value of the Garcia report was outweighed by the danger of misleading the jury and confusing issues of competency and sanity. Instead, a jury is presumed to follow instructions, and even if an instruction could not cure the risk of confusion regarding competency and sanity, Ellis alone bore that risk. The state's interest in excluding the report was outweighed by Ellis' interest in presenting it.

Search - Knock and Announce (18 U.S.C. § 3109), Reasonableness of Fourth Amendment, Refusal of Entry, Opportunity to Admit Officers

United States v. Gallegos, 02-4012 (December 11, 2002)

Gallegos entered a conditional guilty plea to possession of methamphetamine with intent to distribute, and one § 924(c) firearm count. He preserved the question of whether law enforcement officers violated the knock and announce rule of 18 U.S.C. § 3109. Even if the officers properly announced their presence and purpose, Gallegos submits that he lacked sufficient time to either grant or refuse entry. The circuit held that the officers failed to comply with the requirements of § 3109, and any evidence obtained during the ensuing search should be suppressed.

HELD: (1) On appeal from denial of a motion to suppress, the court reviews fact findings for clear error and conclusions of law de novo. The Supreme Court has held that the "knock and announce" principle in § 3109 forms a part of the reasonableness inquiry under the Fourth Amendment. Therefore, the court reviews the district court's legal conclusion that the officers complied with § 3109 de novo, and the factual determinations underlying that conclusion for clear error.

(2) The purpose of § 3109 is to decrease the potential for violence, protect the privacy rights of individuals, and avoid unnecessary destruction of property. The privacy interests advanced by the rule include permitting individuals to comply with the law by peaceably permitting officers entry, avoiding unnecessary destruction of property that accompanies a forceable entry, and providing an opportunity for occupants to prepare themselves by pulling on clothes or getting out of bed.

(3) The district court's fact finding that the officers announced their presence and purpose before entering is not clearly erroneous. The circuit also agreed with the district court that no exigent circumstances attended the search of the Gallegos' residence. The question becomes whether an objectively reasonable officer would believe he was refused admittance based on the facts and circumstances known to him at the time of entry. It is well established that an occupant of a home need not affirmatively refuse admittance to trigger the right of the police to enter by force. Refusal may be constructive or reasonably inferred. But at least where there are no exigent circumstances justifying a shorter interval, the central inquiry is whether an objectively reasonable officer would believe the occupants had a reasonable opportunity to voluntarily admit the officer, thereby supporting a conclusion that the occupants had refused admittance. It is clear that the amount of time officers must wait after knocking and announcing depends on the particular facts and circumstances of each case. Given the time of day the warrant was executed, 4:00 a.m., the absence of any indication of activity within the house, the known upstairs location of the bedroom, no objectively reasonable officer would believe that Gallegos refused admittance within 5 to 10 seconds. Even without considering these three factors, the 5 to 10 second interval pushes the limits of what the circuit has held to be reasonable in previous "knock and announce" cases.

(4) Facts discovered subsequent to the forceable entry cannot justify an unreasonably short waiting period on the grounds that to wait longer would have been useless.

Guideline Interpretation - Review Standard;

Felon With a Firearm (§ 922(g)) - Consider Possession for Lawful Sporting Purposes Within Entire Context, Actual or Intended Use

United States v. Collins, 01-4196 (December 20, 2002)

(Stephen B. Killpack, Scott Keith Wilson, FPD, Salt Lake City, Utah)

Collins pled guilty to one count of felon in possession of a firearm in violation of § 922(g). He appeals the calculation of his sentence, where the district court did not reduce his base offense level because ammunition and firearms were possessed for lawful sporting purposes or collection and the defendants did not unlawfully discharge the firearms. See §2K2.1(b)(2).

HELD: (1) The circuit reviews the district court's factual determinations for clear error, and its interpretation of the guidelines de novo.

(2) The government argues that because Collins used his rifle as collateral in two isolated instances to secure repairs to his automobile, he used his firearm in a manner inconsistent with possession solely for lawful sporting purposes. Under this reading, any legal non-sporting use would preclude application of §2K2.1(b). The circuit disagreed with the government's view. The provision makes a distinction between possession and use. The guideline does not indicate whether the purpose to be considered is at a particular moment or within the entire context of the defendant's possession. But the commentary indicates that lawful sporting purposes should be determined by reference to the surrounding circumstances. There would be no need to look at surrounding circumstances if any instance of legal, non-sporting use would automatically render the provision inapplicable.

(3) Actual or intended use is an important factor. Momentary exploitation of a rifle's inherent monetary value within the broader context of possession for lawful sporting purposes should not preclude application of the provision. This provision is clearly intended to punish innocent possession and use of a firearm less severely than improper use.

Search - Nighttime Search of Home, Rule 41(c)(1), § 879, 21 U.S.C., Gives Authority in Drug Cases

United States v. Tucker, 01-3243 (December 20, 2002)

Tucker and co-defendants were indicted on conspiracy and substantive offenses involving methamphetamine. A motion to suppress evidence was denied, and Tucker entered into a conditional plea. Tucker urges that the nighttime execution of the warrant for search of his trailer was unconstitutional.

HELD: (1) Rule 41(c)(1) F.R.Cr.P., directs that a search warrant must be executed in the daytime, unless a federal or state judicial officer specifically authorizes execution of the warrant at night for reasonable cause shown. But 21 U.S.C. § 879, dealing with controlled substance crimes, provides that a search warrant relating to such offenses may be served at any time of the day or night, if the state judge or federal magistrate is satisfied there is probable cause to believe that grounds exist for the warrant and for its service at such time. The Supreme Court has held that this statute requires no special showing for a nighttime search, and that the more restrictive provisions of Rule 41(c)(1) are not applicable to searches governed by the more specific narcotic search statues. Therefore, the showing under § 879 was proper.

(2) On appeal, Tucker urges that § 879 is unconstitutional based upon the Supreme Court's decision in Richards v. Wisconsin. The Court had previously ruled, in Wilson v. Arkansas, that the Fourth Amendment incorporates the "knock and announce" principle established at common law. Yet in Richards, the Court considered the validity of a court-made rule authorizing a "no-knock" entry for execution of a search warrant involving drugs. The Court held that this blanket exception violated the Fourth Amendment, and that the circumstances in each individual case should be evaluated. The defendant argues for an analogous approach with regard to nighttime execution of warrants. The circumstances here did not require the circuit to decide whether § 879's blanket authority for nighttime searches in all drug cases is constitutional. Tucker is really arguing that a narrowing construction of the statute is necessary to avoid a constitutional problem. The district judge reasoned that § 879 would be unconstitutional if construed as a blanket authorization for execution of search warrants at night in all drug cases. The government in its brief expresses its agreement with the district judge's view, saying that probable cause must be present to justify the nighttime execution of a warrant. This circuit held, in Gibbons, that the element of night time intrusion is one element in considering the reasonableness of a search. The district court found the nighttime search was justified because the residents of the trailer might be starting a methamphetamine cook, given the purchase of the materials during the late night-trip to Wal-Mart, and such activity would endanger nearby residents. These facts provide the necessary justification for the nighttime search. There was a risk, not just of destruction of evidence, but also of personal injury and property damage.

Release From Custody (18 U.S.C. § 4243(e)) - Dangerousness, Standard of Review;

Threat Against President (18 U.S.C. § 871) - Substantial Risk of Bodily Injury

United States v. Gilgert, 02-4021 (December 27, 2002)

(Scott Keith Wilson, Kevin L. Sundwall, FPD, Salt Lake City, Utah)

Gilgert pleaded not guilty by reason of insanity to making a threat against the President in violation of 18 U.S.C. § 871. After a hearing, the district court found that Gilgert had failed to prove that his release into the community would not create a substantial risk of bodily injury to another, and committed Gilgert to the custody of the Attorney General. The district court relied on the complete file presented, and found that the defendant's release would create a substantial risk of bodily injury to another, or serious damage of property due to present mental disease or defect.

HELD: (1) This circuit has never decided the standard of review applicable to a finding of dangerousness. The weight of relevant authority decisively favors clear error review. A finding of dangerousness is a finding of fact. The circuit noted that competency to stand trial is reviewed under the clearly erroneous standard.

(2) Review is de novo as to what evidentiary standard applies under 18 U.S.C. § 4243. Section 4243(d) provides that a person, found not guilty by reason of insanity, has the burden of proving by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another, or serious damage of property due to present mental disease or defect. This standard applies when the offense involves bodily injury to or serious damage to another. As to any other offense, the person has the burden of such proof by a preponderance. Thus, the question is whether the crime of making a threat against the President involves bodily injury to, or serious damage to the property of, another person, or a substantial risk of such injury or damage. A threat is a communicated intent to inflict physical or other harm on any person or property. A threat against the President is a crime that is qualitatively different from a threat against a private citizen, or even another public official, because the spector of a President's death has worldwide repercussions. 18 U.S.C. § 871 was passed in February 1917, as the United States prepared to enter World War I. Accordingly, the crime of making a threat against the President of the United States involves a substantial risk of bodily injury to another person or damage to another person's property. Therefore, a defendant who pleads not guilty by reason of insanity to making a threat against the President is required in a § 4243 hearing to prove by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another, or serious damage to the property of another person due to mental disease or defect.

(3) So, the question is whether the district court clearly erred in finding that Gilgert failed to prove by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person. The burden is on Gilgert. And under clear error review, the circuit's role is not to reweigh the evidence. The district court did not clearly err.

Government Appeal - Incorrect Application of Guidelines, Attorney General Approval, Jurisdiction, Late Submission of Proof;

Statutory Interpretation;

Illegal Aliens - Plea in Abeyance Constitutes a Conviction, Distribution of Marijuana is Aggravated Felony

United States v. Zamudio, 02-4006 (December 31, 2002)

The United States appealed the sentence imposed, urging the district court erred in not imposing a 16-level sentencing enhancement under §2L1.2(b)(1)(A). The circuit reversed and remanded for resentencing.

HELD: (1) Section 3742(b), 18 U.S.C., permits the government to file a notice of appeal for a sentence it believes was imposed as a result of an incorrect application of the guidelines. However, the government may not prosecute such appeal without the personal approval of the Attorney General, the Solicitor General or a Deputy Solicitor General designated by the Solicitor General. The government filed its notice of appeal within 30 days, establishing jurisdiction under 28 U.S.C. § 1291. Later, the government obtained approval from the Solicitor General. The circuit held that the late submission of proof of approval from the Solicitor General does not deprive the court of jurisdiction to hear the appeal. Proof of approval is not of jurisdictional dimension. Where the government obtained permission from the Solicitor General and produced a copy of that approval in its reply brief, § 3472(b) is satisfied.

(2) The government urges that the district court should have found that Zamudio's plea in abeyance constituted a conviction under 8 U.S.C. § 1101(a)(48)(A), thereby triggering the enhancement provisions of § 1326(b)(2). The court reviews de novo the district court's interpretation of a criminal statute. The court begins with its plain language. When statutory language is clear, the court's analysis ordinarily ends. Whether a particular disposition counts as a conviction in the context of a federal statute is a matter of federal determination. Zamudio's plea in abeyance satisfies the definition of conviction in § 1101(a)(48)(A), where the alien has entered a plea of guilty and the judge has ordered some form of punishment, penalty, or restraint.

(3) Zamudio's Utah conviction also fulfills the aggravated felony requirement. The term includes illicit trafficking in a controlled substance. Zamudio's conviction was for distribution of marijuana. The district court erred in not imposing the 16-level enhancement.