Talk to anyone lucky enough to earn his/her livelihood through criminal appellate practice, and youll likely hear some version of the following complaint: the Government is never held to the same standard as the criminal defendant on appeal.  Whether its waiver during the trial-level proceedings, or a purported waiver during oral argument or in the briefing, it often seems like appellate courts give the Government a degree of latitude that is not usually afforded to the defense.  This case is an exception and a refreshing reminder to the Government that not dotting is and crossing ts can have some meaningful consequences.

In United States v. Reyes-Rivas, the defendant/appellant argued during sentencing and on appeal that he did not meet the criteria for a career offender enhancement under section 4B1.1 of the Sentencing Guidelines.  Specifically, he argued one of his priors a Puerto Rico conviction for fourth degree aggravated battery  did not qualify as a crime of violence.  He also argued that the conviction could not qualify as a crime of violence under the residual clause of section 4B1.1.  He reasoned that the Supreme Courts decision in Johnson v. United States, 135 S. Ct. 2551 (2015) applied to the career offender enhancement because the residual clause language in the Armed Career Criminal Act was almost identical to the residual clause language in the Sentencing Guidelines.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He is a First Circuit CJA attorney and practices in federal appellate courts around the country.  He is also the founding member of The Brownlee Law Firm.  To learn more, visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com. 

In many jurisdictions, jurors receive pretrial questionnaires that let parties and attorneys get to know them.  But what happens when a juror forgets or lies in response to some of the questions and the inaccurate responses are discovered after trial?  That was the question for the First Circuit in United States v. French.

Malcolm French owned approximately 80,000 acres of land in Washington County, Maine.  Rodney Russell was an office manager of sorts.  It turns out people were using pieces of Mr. Frenchs land to grow considerable amounts of marijuana.  Mr. French and Mr. Russell both claimed they didnt know about the farming operation and were thus innocent.  A jury disagreed and found them both guilty.

Shortly after sentencing, defense counsel reported that they had just learned that a prisoner housed in the Somerset County Jail with another co-defendant told the co-defendant that Juror 86, who sat on the jury before which the case was tried, was the mother of a small-time marijuana trafficker.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

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Suppose a criminal defendant agrees to plead guilty and to waive the right to take an appeal or seek collateral review after being sentenced. Can the defendant nonetheless assert a claim of ineffective assistance at sentencing? A unanimous panel decision (Judges Srinivasan, Wilkins Sentelle) held that such a claim may be raised—at least where the defendant executed a “generic” waiver that didn’t preclude a later-asserted claim of ineffectiveness.

The appellant pleaded guilty under such a generic plea agreement to one count of conspiracy to distribute five kilograms or more of cocaine on board an aircraft registered in the United States and one count of conspiracy to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana. Unhappy with the sentence, Appellant claimed on direct appeal that his counsel below had failed to push for a minor role adjustment in the Sentencing Guidelines calculations and had rendered ineffective assistance. The Government was unsympathetic and urged that the waiver of appellate rights in the plea agreement precluded any assertion of ineffective assistance. (Slip Op. at 2-4).

The Court of Appeals looked first to United States v. Guillen, 561 F.3d 527, 529-30 (D.C. Cir. 2009), which upheld the validity of so-called “anticipatory waivers,” under which a defendant can validly waive her right to appeal a sentence that has not yet been imposed, as long as her decision is “knowing, intelligent, and voluntary.” (Slip Op. at 4). “As a general matter,” the Court of Appeals pointed out, ‘“an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretio is not subject to appeal in the face of a valid appeal waiver.’” (Slip Op. at 4-5) (quoting United States v. Adams, 780 F.3d 1182, 1184 -85 (D.C. Cir. 2015) (quoting United States v. Andis, 333 F.3d 886, 892 (8^th Cir.  2003) (en   banc))). Applying those principles, Judge Srinivasan wrote, the Circuit has held that an appeal waiver barred a  defendant from appealing her sentence on the grounds that the district court: imposed a substantively unreasonable sentence, erroneously declined  to permit  the  defendant  to  introduce  certain  evidence at  sentencing  or  in  limiting  cross-examination  of  the  government’s  sentencing  witnesses,  or abused  its  discretion in denying  a  downward  variance from the sentencing guidelines range. (Slip Op. at 5) (citing Adams, 780 F.3d at 1184-85, and United States v. Ortega-Hernandez, 804 F.3d 447, 451 (D.C. Cir. 2015)).

Following a Coast Guard interdiction of the Mistby, a Colombian vessel which was bringing cocaine and marijuana to Panama, the three defendants pleaded guilty to conspiring to distribute, and possess with intent to distribute, the drugs on board, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. § 70501 et seq., and the Controlled Substances Import and Export Act, 21 U.S.C. § 951 et seq.

On appeal the defendants argued that they were not on board the vessel when it was intercepted and that the district court lacked subject-matter jurisdiction over their prosecutions because Colombia’s assent to U.S.jurisdiction over individuals associated with the ship supposedly was limited to persons found on board the vessel. Second, appellants contended that their offense of conviction was covered by the so-called safety-valve provision, 18 U.S.C. § 3553(f), which exempts covered offenses from mandatory-minimum sentences such as the 10-year terms each of them received.

The panel (Circuit Judges Srinivasan, Millett Sentelle) concluded that the district court had subject-matter jurisdiction under the terms of the applicable treaty between the United States and Colombia, although none of the defendants had been aboard the ill-fated boat.

Every May and June the black-robed folks down at 3^rd and Constitution like to shake off DeeCee’s early summertime torpor by reversing some matters and announcing some new legal principles. This was Circuit Judges Griffith, Srinivasan and Wilkins’ turn.

Back in 2012, the Government began investigating a notorious drug dealer, Jermaine Washington, who had recently been released from prison. After employing traditional surveillance techniques, the Government successfully applied for two wiretaps on Washington’s cell phone. The evidence presented at appellants’ trial consisted largely of recorded conversations and Washington’s interpreting language in his conversations with the three defendants. A jury convicted Stoddard and Woodruff under 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846 for conspiracy to distribute and possess with intent to distribute heroin. It acquitted Jerome Cobble, Washington’s cousin, of those charges but convicted him on a separate charge of conspiracy to launder money in violation of 18 U.S.C. § 1956(h).

In an opinion authored by Circuit Judge Wilkins, the panel concluded that Cobble’s conviction of money laundering conspiracy was based on insufficient evidence. It overruled his colleagues’ merits-based appeals with one exception. It stated that for a defendant to be sentenced based on a mandatory minimum triggered by a certain quantity of drugs, a jury must find the drug quantity attributable to the defendant on an individualized basis, not just the drug quantity attributable to the conspiracy as a whole. And based on the intervening decision in Beckles v. United States, 137 S. Ct. 886 (2017), the panel instructed the district court on remand to re-examine the career-offender enhancement meted out to Woodruff. (Slip Op. at 1-2).

Every time you are convinced you’re read it all, another one pops out of the hopper. Chief Judge Garland and Circuit Judges Kavanaugh and Millet’s’ eyeballs must have been bulging when they learned how the Government came across Dawayne (“Goon”) Brown and his associates in the PCP distribution trade. It turns out that one Louis Clifton walked into an MPD station and related what the per curiam decision describes as “an extraordinary story” that “[a]rmed men had taken over his apartment and were using the apartment to manufacture and sell PCP – all while Clifton continued to live there.” Mr. Clifton presented an account of enduring his unwelcome roommates, Mr. Brown and his friend, Keith Matthews, who were using his apartment for several weeks to make “dippers” of PCP-laced cigarettes and store the proceeds from selling dippers. The gendarmes then pounced and surprised Brown inside the apartment. They arrested him, seizing an Uzi, a .38-caliber revolver and PCP. (Slip Op. at 3-4).

An examination of Brown’s cell phone text messages led to Matthews’ arrest, at which point the police learned that the takeover of Clifton’s apartment was no isolated event. Brown, Matthews and several of their chums had created a PCP operation that they called “Little Mexico.” Little Mexico’s modus vivendi involved using Woodberry Village apartments to stash guns and sell PCP. (Slip Op. at 4-5).

Brown, Matthews and four others were indicted for narcotics conspiracy-related offenses. One, Ira Adona, pled guilty to the conspiracy charge. He was supposed to be sentenced separately in the Superior Court for a shooting offense and in the federal court for the PCP conspiracy.  (Two others pled guilty but didn’t appeal their sentences.)   Brown, Matthews and Marquette Boston stood trial and were duly convicted of drug and/or weapons charges. (Slip Op. at 5-6).

Frederick (“Toby”) Miller was sentenced to terms of life imprisonment following RICO and narcotics conspiracy-related convictions that are reported in United States v. Eiland, 738 F.3d 338 (D.C. Cir. 2013) and, thanks to a hung jury in the first trial, in United States v. Miller, 738 F.3d 361 (D.C. Cir. 2013). On appeal from the first trial, the D.C. Circuit vacated various unlawful-use-of-a-communications-facility counts and affirmed the remaining counts. Miller, 738 F.3d at 387. On appeal from the second trial, the Circuit concluded that, although sufficient evidence supported Miller’s narcotics conspiracy conviction, the evidence failed to establish that he had organized or supervised five people as required for a CCE conviction. Eiland, 738 F.3d at 356–58. After affirming and reinstating Miller’s narcotics conspiracy conviction, the court vacated his sentence, and remanded the case for resentencing. Id. at 361. (Slip Op. at 7-8).

At resentencing, Miller again received a life sentence. He appealed once more and claimed, inter alia, that plain error had infected the Firearms and Role-in-the Offense enhancements, and that the District Court erred in stating that the Guidelines range for the RICO conspiracy was life, when it was in fact 360 months to life.  The Circuit Court of Appeals, in a decision written by Senior Circuit Judge Edwards, agreed and his case remanded for resentencing.

The Government fought Miller tooth-and-nail.  First, it raised two procedural defenses, the first centered around a theory that Miller had waived the enhancement claims by not making then before, and thus was barred by the law of the case doctrine from raising them at this point. These preliminary contentions, Judge Edwards retorted, were “seriously misguided.” (Slip Op. at 3-4). Miller’s “looming mandatory life sentence for his CCE conviction [had] rendered his present sentencing challenges fruitless” and “[g]iven this situation, Appellant was not obliged to raise arguments on his first appeal that were merely contingently relevant.” (Slip Op. at 4).

Ineffective Assistance of Counsel–When the Sentencing Guidelines’ Language Controls the Commentary: United States v. Winstead, _ F.3d _ (D.C. Circuit, No. 12-3036 (May 25, 2018) 2018).

Winning an ineffective assistance of counsel claim on direct appeal is not an occurrence that happens frequently, much less through a decision that issued just seven weeks after oral argument. Aumbrey Winstead, a man with a (to be gentle) checkered past, was convicted of possession of a firearm (by a person convicted of a crime punishable by imprisonment of more than one year), possession with intent to distribute cocaine, and possession of a firearm during a drug trafficking offense. The evidence against him was, in the appellate panel’s word, “overwhelming.” (slip op. at 2). Thanks to nimble footwork by the Federal Defender’s Office, on direct appeal his thirty-year sentence as an Armed Career Criminal was found improper and his case remanded for resentencing.

First, a digression for a merits-based issue that crops up with sufficient frequency that defense counsel should place this case in their trial toolbox. Based on the Circuit’s decision in United States v. Sheffield, 832 F.3d 296, 307-08 (D.C. Cir. 2016), Mr. Winstead protested that pointed out that district judge’s decision to admit prior crimes as evidence of knowledge under Federal Rules 403 and 404(b) was error because the offenses were more than a decade old. The government, invoking out-of-circuit authority, responded that the staleness of old crimes is lessened if part of the time between the defendant’s old crime and a new case was spent in prison. The panel (Garland, C.J., Edwards and Silberman JJ), found that distinction intellectually troubling but concluded that the error – if any – of admitting this evidence was harmless given the overwhelming evidence of Winstead’s guilt. (Slip Op. at 7-9).

The First Circuits decision in United States v. Lopez-Pastrana, 15-1894 (1st. Cir. May 4, 2018) is long, but can be summed up simply: federal courts cant impose a term of supervised release on a charge that resulted in no prison time, even if the sentencing court is trying to help the defendant obtain federally-subsidized medical care for a serious condition.  Heres what happened in Lopez-Pastrana:

The Government charged Mr. Lopez-Pastrana with two drug crimes and two weapons crimes.  He entered into a plea agreement.  Mr. Lopez-Pastrana would plead guilty to possession of marijuana with intent to distribute (Count III) and possession of a firearm in furtherance of drug trafficking (Count IV).  In exchange, the Government would dismiss Counts I and II.  The agreed-upon (but non-binding) sentencing range was zero to six months imprisonment for Count III, and a 60 month mandatory-minimum on Count IV.  Of course, there was an appeal waiver in the plea agreement.

At sentencing, Mr. Lopez-Pastrana explained he has Chronic Obstructive Pulmonary Disease (COPD), which, if you believe the commercial, makes you feel like an elephant or some other large animal is sitting on your chest.  His sentencing attorney told the district court that Mr. Lopez-Pastrana had a 20% chance of surviving the next four years.  The Government thought he was overstating the matter.  According to the Government, the Bureau of Prisons represented that his medical condition is not an end-stage disease and that his condition had improved during the four months he was incarcerated and awaiting sentencing.  (Aside: BOP has a very high opinion of its ability to care for sick people.  Check out the 11th Circuits opinion in United States v. Seecharan, where a defendants doctor opined the defendant would die of infection if he went to prison, and the district court ordered incarceration based on BOPs response was that it could handle anything.  Happily, the 11th Circuit reversed for resentencing).

Back to Mr. Lopez-Pastrana. The district court sentenced him to 60 months in a prison medical facility on Count IV, with 5 years of supervised release.  But the sentence on Count III engendered some debate.  The district court basically gave Mr. Lopez-Pastrana an ultimatum.  Option 1: 12 months of home confinement with federally funded medical care as a condition of supervised release, and no time in prison.  Option 2: 6 months in prison.  Mr. Lopez-Pastrana took the 12 months of home confinement and appealed.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

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The First Circuit rarely reverses, particularly in criminal cases.  You can read First Circuit opinions for months without coming across a defense-friendly opinion.  And a federal grant of a 2254 habeas petition by any court is a unicorn, in and of itself. See, e.g., Nancy J. King, Non-capital Habeas Cases after Appellate Review: An Empirical Analysis, 24 Fed. Sent. Rptr. 308, 310 (2012) (observing that, after both district and circuit court review, habeas relief was granted in only .8 percent of noncapital habeas cases).  Thats what makes the First Circuits decision in Rivera v. Thompson, 879 F.3d 7 (1st Cir. 2018) such a welcome surprise.

The facts: Rivera was in a fight with Williams and it was not going well.  Williams was much bigger than Rivera and the fight quickly became lopsided.  When fellow partygoers realized Williams was in full control and showing no signs of relenting, a group went outside to break up the fight.  Soon after, Williams keeled over on top of Rivera, and one witness said Williams remarked as he fell, I think he [Rivera] stabbed me.  But it happened fast and no one was willing or able to identify who stabbed Williams.  Rivera ran and a police officer saw him and ordered him to stop, but Rivera kept going.  When the officer drew his gun and told Rivera to get down, Rivera complied.  With Rivera still on the ground and the officers gun drawn, the officer asked Rivera a few questions, but did not issue Miranda warnings.  Rivera responded with some indirect, but inculpatory answers.  Backup arrived soon after, Rivera refused to talk further, and he was brought to the police station.

After a trial, Rivera was found guilty and sentenced to 9-10 years and 5 years of supervised release.  While his appeal was pending, he filed a motion for new trial, arguing his trial attorney was ineffective for failing to move for suppression of his inculpatory statements to the police officer.  The Massachusetts trial court denied the motion for new trial without comment or a hearing.  Rivera pressed his ineffective assistance argument on appeal.  The appellate court rejected it, stating that it was not ineffective assistance for counsel not to move to suppress the defendants initial statements to the police where the questions did not constitute interrogation for purposes of Miranda warnings. Id. at 11.  The Massachusetts Supreme Judicial Court denied review, and Rivera was off to federal habeas land.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

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