Sisneros appeals an order detaining her pending trial. Sisneros was indicted in New Mexico. She was arrested in Arizona. The Arizona magistrate denied the government's request to detain her until trial, holding that the government had not proved by a preponderance that Sisneros was a serious flight risk, or that she was a danger to the community.
Sisneros appeared for arraignment before the New Mexico magistrate who adopted the release conditions earlier imposed. A month later, the government sought to revoke release stating that since the Arizona detention hearing, the government had learned about Sisneros' personal involvement in a conspiracy to murder. The New Mexico magistrate found that Sisneros' should be detained pending trial. Sisneros appeals to the New Mexico district judge who affirmed the detention order.
HELD: (1) Interpretation of a federal statute is de novo. Review of the detention order itself is de novo for mixed questions of fact and law and under the clearly erroneous standard for findings of fact.
(2) The Bailey format of 1984 provides two ways by which a release or detention order may be reconsidered prior to review on appeal. Subsection (f) applies to reconsideration by the same judicial officer who entered the initial order. Such review is only when there is new information that would materially influence the conditions of release. This second avenue is under § 3145(a) and (b), which permit the government or the defendant to file a motion to revoke the release or detention order. Such motion is only permissible if the person has been ordered released by a magistrate judge. Section 3145 also requires that the revocation motion be filed with the court having original jurisdiction over the offense. In this case the court having original jurisdiction was the District of New Mexico in which the indictment was returned. The government's properly filed revocation motion should have been ruled upon by the district judge. The results of the previous hearing and the results of her own hearing support the New Mexico magistrate's conclusion that Sisneros should be detained. The judge considered the serious charges, and the fact that when Sisneros was complying with Arizona terms of release, she thought she'd face three to four years whereas now she faced life imprisonment. Also Sisneros was now aware that the government had stronger evidence against her than may have been apparent under the Arizona release order. The evidence suggests that Sisneros was involved in murdering prospective witnesses.
United States v. Bly, 02-6034 (May 2, 2003)
Bly appeals from an order modifying his sentence on the government's motion for reconsideration in a § 2255 proceeding. The court applies civil rules to the timeliness of an appeal from a Rule 59 motion in a § 2255 proceeding.
Following conviction on drug trafficking offenses, Bly was sentenced to mandatory terms of life imprisonment based on quantity of drugs and prior drug offenses. On appeal, the circuit held that the government had failed to prove Bly was in fact the man convicted of the prior offenses and vacated Bly's sentence. The district court heard additional evidence and reimposed the life sentences and the circuit affirmed. Then the Supreme Court decided Apprendi. Bly commenced his § 2255 proceeding. The district court applied Apprendi retroactively (pre the circuit's decision in Mora holding that Apprendi does not apply retroactively on collateral attack). The government moved for reconsideration. The district court did not retract its application of Apprendi but held that under §5G1.2(d) and the Tenth Circuit's Price decision, the restructuring of the sentences had to be modified. Resentencing Bly to 20 years on each count to run consecutively for a total of 180 years.
HELD: (1) The government's motion was not barred by the strict constraints of the court's power to correct sentences under Rule 35. The government's motion was under Rule 59, F.R.Civ.P. Section 2255 is a distinct source of jurisdictional authority over sentencing and Rule 35 is not a guide.
(2) A defendant must be present whenever the severity of the original sentence is increased. This holding is set forth in cases based on Rule 43, F.R.Cr.P. None of the cases in which that proposition is stated involved correction of a sentence under § 2255. Is an attenuating correction of an initially favorable § 2255 remedial order, particularly a correction implementing a non-discretionary guideline directive, properly equated with the sentencing proceeding for purposes of the constitutional roots of the right to be present. Had the district court vacated Bly's sentences for de novo resentencing, and then imposed consecutive sentences under §5G1.2, his rights would be clear. Such an approach would clearly be a sentencing proceeding. This case is not clear cut but the circuit would not discount the central principal of criminal justice that a defendant has a right to be present at sentencing.
(3) The government's reliance on appeal on Rule 35 is inappropriate where the government had filed its motion under Rule 59, and where Rule 35 contemplates the court acting within 7 days of sentencing, and the district court increased Bly's Apprendi reduced sentences 49 days after imposition.
(4) The circuit noted the still unsettled tolling by-motion issue as to whether a motion under Rule 35(c) tolls the rule's 7 day deadline for correction of sentence.
(5) The circuit also rejected the government's argument that Bly received the same sentence. But the government ignores that the sentence at the time the district court heard the government's motion was for 20 years imprisonment. After granting the motion, Bly was committed to prison for 180 years. The court rejected the government's assumption that once a defendant's sentence has been reduced it may thereafter be similarly increased up to the initial level without implicating any constitutional or procedural rights of the defendant.
(6) The circuit distinguished between simply vacating an erroneous ruling that had a favorable affect on a defendant's sentence and revisiting a previously reduced sentence and increasing it for some other reason. The consecutive-term restructuring of Bly's Apprendi reduced sentence under §5G1.2 falls into the latter category, which possesses enough of the character of traditional sentencing to invoke the constitutional and procedural guarantees discussed.
(7) The district court had jurisdiction to consider the government's motion for reconsideration, but in granting relief, involving increasing Bly's modified sentence, the district court should have afforded Bly the procedural guarantees criminal sentencing traditionally entails.
United States v. Heredia-Cruz, 02-2009 (May 15, 2003)
Heredia was convicted and sentenced for illegally reentering the country after previously being convicted of an aggravated felony.
HELD: (1) Heredia claims he is entitled to the additional one point adjustment for acceptance of responsibility under §3E.1(b)(1). He received two points for acceptance of responsibility at the sentencing. He did not object to not receiving the three level reduction proposed in the addendum to the PSR. So review is for plain error. Whether Heredia is entitled to the additional reduction is a question of fact which the district court had no opportunity to consider. Therefore failure to grant an additional reduction does not rise to the level of plain error. Heredia had admitted to law enforcement that he is a Mexican national and unlawfully reentered after being convicted of a felony. At trial, his attorney challenged the sufficiency and validity of the government's evidence. To resolve the inconsistency between Heredia's pretrial admissions and the positions taken at trial, the district court needed to develop a factual record.
(2) The court lacks jurisdiction to consider the denial of motions for downward departure where the trial court understood it had discretion. At sentencing the trial judge said "In my discretion, I decline to grant a motion for downward departure under §5K2.0." When the record is ambiguous concerning the district court's awareness of its discretion to depart, the circuit will presume the court was aware of its authority.
(3) Effective November 1, 1997, the sentencing commission amended §2L1.2(b) by deleting the definition of aggravating felony and directing the user to the definition under § 1101(a)(43), 18 U.S.C. That section defines aggravated felony to include offenses related to alien smuggling. The ex post facto clause is intended to restrain legislature and courts from arbitrary and vindictive action and to prevent prosecutions and punishment without fair warning. In order for a violation of the ex post fact clause to occur, a law must apply two events occurring before its enactment and must disadvantage the offender. The circuit has held that the sentencing enhancement in §2L1.2 does not unconstitutionally punish a defendant for a felony conviction that occurred before the enactment of §2L1.2 or its relevant amendments because the defendant is being punished for the illegal reentry, not the underlying aggravated felony. The circuit's holdings establish a framework for evaluating all ex post facto challenges under §2L1.2.
(4) The rule of lenity has no application because the reference to § 1101(a)(43), makes clear that the Sentencing Commission intended felony convictions for alien smuggling to be subject to the enhancement.
United States v. Alcorn, 02-3198 (May 21, 2003)
(Cyd Gilman, Federal Public Defender, Wichita, Kansas)
Alcorn was driving his pickup truck at 11:00 p.m. He encountered two barricades. He drove around the barriers and proceeded towards a construction project involving rebuilding an 80 foot section of the railroad crossing. As he approached the railroad crossing his truck became stuck in a trench. He walked over to a large excavator which the crew had left. The excavator had an arm with a large bucket attached at the end. Alcorn had previously worked at construction jobs so he knew how to use the machine. He pushed the truck out of the trench with the arm of the excavator. He backed the excavator up, dropped the arm and bucket to the ground, wiped his fingerprints off the inside of the cab and returned the key to the compartment where it had been hidden. The bucket lay partially across one of the railroad tracks. As Alcorn walked towards his truck he passed the bucket. His truck had two flat tires. He got stuck again. He pulled behind a barricade as a car approached. He left his truck in front of the house of Kathy Willis, left a note saying he would be back to pick it up. He called a friend on his cell phone. While waiting for his friend to arrive, Alcorn heard the crash of a train as it hit the excavator bucket, causing more than 3.2 million dollars in damage.
Alcorn was convicted of willfully and unlawfully wrecking a train in violation of 18 U.S.C. § 1992. The court gave several instructions to the jury
on willfulness and intent. The jury asked questions during deliberation and the court responded. The jury asked another question and Alcorn requested that the court instruct the jury: "Do you find or not find that Ricky Alcorn knew that he placed the bucket of the backhoe on the railroad track?" The court refused to give that instruction. The court proposed giving a modified Allen instruction. The jury resumed deliberations and returned a guilty verdict later that day. Alcorn moved for judgment of acquittal which the district court denied in a written order. The court denied a request for downward departure.
HELD: (1) Alcorn's defense was that he did not realize he had left the excavator arm's bucket on the railroad track and therefore it did not willfully derail the train. The jury's questions indicated confusion about the term "willfulness". The court failed to eliminate the confusion, and the jury's confusion was exacerbated by the modified Allen instruction and by denial of Alcorn's requested theory of defense instruction. The court reviews jury instructions de novo to determine whether as a whole, the instructions correctly state the governing law. The district court's decision to give a particular jury instruction is reviewed for abuse of discretion. The court will review whether an Allen instruction was erroneously given on a case by case basis with a view of determining whether the instruction was coercive, considering language of the instruction, whether the instruction is presented with other instructions, timing, and the length of the jury's subsequent deliberations. The court reviews de novo whether a district court committed reversible error in failing to submit a requested theory of defense instruction.
(2) In Youts, a § 1992 prosecution, the circuit argued that the willfulness language is best understood as a knowledge requirement. In Youts, the court held that by sending a driver less locomotive down curving tracks at full speed, Youts knowingly set in motion the events which caused the train to wreck and that is all § 1992 requires. The instructions given to the jury adequately defined the term willful in this case. The jury's questions do not indicate confusion but rather that they were focusing on the crucial issue in the case. While this is a very close case, there was sufficient evidence to support the conclusion that Alcorn willfully and knowingly left the bucket on the train track.
(3) This court has long sanctioned the use of Allen instructions providing that neither the content or the context is coercive. This instruction conforms to those previously upheld. It was a modified Allen instruction in that it was directed to all members of the jury and not just those holding the minority view. While it is preferable for an Allen instruction to be given along with other jury instructions, it may be given after the jury has commenced deliberations.
(4) A criminal defendant is entitled to an instruction on his theory of defense provided that theory is supported by some evidence and the law. The requested instructions were just another way to express the willful and knowing requirement.
(5) As to downward departure, the court did not have jurisdiction where the denial of a departure was discretionary and the jury was aware of his or her authority.
United States v. Bennett, 01-8101 (May 22, 2003).
Bennett entered a conditional plea to possessing a firearm silencer and was sentenced to 37 months imprisonment.
HELD: (1) When reviewing a district court's decision on a motion to suppress, the court accepts the trial court's findings of fact unless clearly erroneous and considers the evidence in the light most favorable to the government. The district court held that when the police ordered Bennett to lie on the ground and pointed a gun at him, these actions did not amount to an arrest and the police acted reasonably in securing Bennett before searching the premises. The officers had a warrant to search the premisses for drugs and paraphernalia. The police took actions they thought were necessary for their safety and protection. A confidential informant had said that Bennett was dealing drugs and carrying a firearm. Bennett had disobeyed orders to stop and entered his garage. Bennett's detention did not become an arrest while the police questioned him. The police did not restrain him after they determined he did not have any weapons. They said he was not under arrest and he did not have to answer questions. He agreed to accompany them to the police department. When Bennett indicated he did not want to answer further questions, the police returned him to his home and did not question him about the firearm silencer until after they dropped him off at his residence. Bennett willingly talked to the police because he did not think his conduct with regard to the firearm silencer was illegal. The district court held the police did not need to re-administer Miranda warnings prior to questioning Bennett about the firearm silencer. The circuit concluded that Miranda did not apply to the facts of the case and did not decide whether Bennett invoked his right to silence or whether the police should have re-administered Miranda warning. The two requirements for Miranda are that the suspect must be in custody and the questioning must meet the legal definition of interrogation. Bennett was not in custody.
(2) The PSR author recommended an offense level of 20, considering Bennett a prohibited person, that being an unlawful user of or addicted to controlled substances. Bennett objected. The court reviews legal questions concerning the guidelines de novo and factual determinations for clear error. The circuit held that the phrase "addicted to any controlled substance" is different from the phrase "unlawful user of any controlled substance." Status as a prohibited person is at the time the defendant committed the offense and not while on bond.
(4) The sentencing guidelines are not unconstitutionally vague as applied to Bennett's conduct. There is a conflict among the circuits as to whether the guidelines may be challenged on vagueness grounds. The circuit has not yet decided a question.