November 22, 2017

Tenth Circuit: Plaintiff’s Request for Immediate Release from Federal Custody Denied Under ACCA’s Enumerated Clause

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snyder on Thursday, September 21, 2017.

This case arose from Snyder’s request for immediate release from federal custody on the basis that he had already served more than the maximum sentence allowed by law. Snyder argues that the Supreme Court’s recent decision in Johnson v. United States invalidates his sentence enhancement under the Armed Career Criminal Act (ACCA). The district court denied Snyder’s motion, and the Tenth Circuit Court of Appeals affirmed the denial, concluding that Snyder was not sentenced based on the ACCA’s residual clause that was invalidated in Johnson.

In 2004, Snyder pled guilty to being a felon in possession of a firearm. A presentence report was prepared and concluded that Snyder was subject to an enhanced sentence as an armed career criminal because he had sustained two convictions for burglary of two residences, and had a conviction of a controlled substance offense. Snyder’s argument that his burglary convictions failed to constitute predicate offenses under the ACCA were rejected by the district court.

In 2015, the Supreme Court decided Johnson. Snyder subsequently filed a motion to vacate his sentence for immediate release, asserting that, following the Court’s decision in Johnson, his burglary convictions no longer qualify as predicate offenses under the ACCA, so he is not an armed career criminal, and his enhanced sentence exceeds the maximum authorized by law.

The Circuit first determined whether the district court erred in concluding that Snyder’s motion was not timely.  By the plain language of the statute in question, the statute allows a motion to be filed within one year of the date on which the rights asserted was initially recognized by the Supreme Court. The Circuit concluded that to be timely, a motion need only to invoke the newly recognized right, regardless of whether the facts of record ultimately support the claim, and found that Snyder’s motion did just that.

The court then discussed whether Snyder had overcome the procedural-default rule, which is a general rule that claims not raised on direct appeal may not be raised on collateral review unless the petitioner can show cause and prejudice.

Cause is shown if a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal. The Supreme Court has stated that if one of its decisions explicitly overrides prior precedent, then, prior to that decision, the new constitutional principle was not reasonably available to counsel, and defendant has cause for failing to raise the issue. The Johnson claim was not reasonably available to Snyder at the time of his direct appeal, and the Circuit found this sufficient to establish cause.

To establish actual prejudice, the Circuit held that Snyder must show that the error of which he complains is an error of constitutional dimensions and worked to his actual and substantial disadvantage. The Circuit found that Snyder has shown actual prejudice through his argument that the ACCA sentence enhancement is invalid after Johnson. The court concluded this by acknowledging that if Snyder is correct, he should have been sentenced to only ten years maximum, not eighteen as he had been sentenced. The sentence of eighteen years would then be unauthorized under law, creating an actual and substantial disadvantage of constitutional dimensions.

The Circuit next discusses the merits of Snyder’s claim. Snyder alleged that the sentence was imposed under an invalid legal theory and that he was, therefore, sentenced in violation of the Constitution. In order to make a determination, the relevant background of the legal environment at the time of sentencing must be evaluated. The Circuit held that the actual facts of record in this matter offered no basis whatsoever for the notion that the sentence Snyder received was based on the ACCA’s residual clause, rather than its enumerated offenses clause. The Circuit found no mention of the residual clause in the presentence report or any other pleading or transcript. Further, given the relevant background legal environment that existed at the time of Snyder’s sentencing, there would have been no need for reliance on the residual clause. The Circuit concluded that Snyder’s claim failed because the court’s ACCA’s determination at the time of sentencing rested on the enumerated crimes clause rather than the residual clause.

The decision of the district court denying Snyder’s motion is AFFIRMED by the Tenth Circuit Court of Appeals.

Tenth Circuit: Mandatory Minimum Sentence Provision in Child Pornography Statute Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in United States v. Haymond on Thursday, August 31, 2017.

This appeal comes from the district court’s decision to revoke Andre Haymond’s supervised release based, in part, on a finding that Haymond knowingly possessed thirteen images of child pornography, which were found on his phone by his probation officer. On appeal, Haymond argued that the evidence was insufficient to support a finding by a preponderance of the evidence that he knowingly possessed child pornography, and he argued that the sentence imposed upon him is unconstitutional because it violates his right to due process. The Tenth Circuit Court of Appeals affirmed the district court’s revocation of Haymond’s supervised release, but holds that the sentencing was unconstitutional.

In regards to Haymond’s sufficiency of the evidence argument, the Tenth Circuit found that the district court abused its discretion by relying on a clearly erroneous finding of fact that Haymond knowingly took some act related to the images that resulted in the images being on his phone in a manner consistent with knowing possession, as testimony supports only a finding that the images were accessible on Haymond’s phone, not that Haymond necessarily saved, downloaded, or otherwise placed them there. Nonetheless, the court found that the remaining evidence in the record was sufficient to support a finding that Haymond knowingly possessed the child pornography. The information the court relied on was (1) Haymond had nearly exclusive use and possession of his password-protected phone; (2) at some point, thirteen images of child pornography were accessible somewhere on Haymond’s phone; and (3) the sexual acts depicted in the images are consistent with the images forming the basis of Haymond’s original conviction. The court found the evidence supported a finding that it is more likely than not that Haymond downloaded the images and knowingly possessed child pornography, in violation of his release.

The Circuit then moved on to the constitutional question. Haymond’s original conviction, a class C felony, included a supervised release statute that requires a mandatory term of supervised release of five years to life under 18 U.S.C. § 3583(k), which may be revoked if a court later finds that the defendant has violated the conditions of that release. If not for the mandatory sentence required by § 3583(k), the sentence Haymond would have received following revocation of his release would have been significantly lower — two years at the most. The Circuit concluded that § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range; and (2) it imposes heightened punishment on sex offenders, expressly based not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished. The Circuit found that § 3583(k) violates the Sixth Amendment because it punishes the defendant with reincarceration for conduct of which he or she has not been found guilty by a jury beyond a reasonable doubt, and it raises the possibility that a defendant would be charged and punished twice for the same conduct, in violation of the Fifth Amendment.

The Circuit noted that the court must refrain from invalidating more of the statute than is necessary. There are two sentences under § 3583(k) that the court found to violate the Constitution by increasing the term of imprisonment authorized by statute based on facts found by a judge, not by a jury beyond a reasonable doubt, and by tying the available punishment to subsequent conduct, rather than the original crime of conviction. The court concluded that without the unconstitutional provision, all violations of the conditions of supervised release would be governed by a different statute, which the court finds to be more appropriate. The sentences at issue under § 3583(k) are found to be unconstitutional and, therefore, unenforceable.

The Tenth Circuit Court of Appeals AFFIRMED the revocation of Haymond’s supervised release, VACATED his sentence following that revocation, and REMANDED for resentencing without consideration of § 3583(k)’s mandatory minimum sentence provision or its increased penalties for certain subsequent conduct.

Colorado Court of Appeals: Predicate Offense Must Be Felony at Time of Current Offense for Habitual Offender Designation

The Colorado Court of Appeals issued its opinion in People v. Kadell on Thursday, October 5, 2017.

Habitual Criminal—Sufficiency of Evidence—Prior Felony Conviction—Collateral Attack—Excusable Neglect—Extended Proportionality Review.

A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. The prosecution filed habitual criminal counts, and Kadell moved to suppress his prior felony convictions as a way to collaterally attack those convictions. The motion was untimely, but Kadell argued that his failure to timely file was the result of excusable neglect. The trial court did not rule on the excusable neglect claim. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions, including, as relevant here, one in 1997 for attempted cultivation of marijuana. In accordance with the habitual criminal statute, the trial court imposed a 24-year sentence in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony.

On appeal, Kadell contended that the trial court erred in imposing a sentence under the habitual criminal statute because there was insufficient evidence that he was convicted of three qualifying felonies before his current convictions. He argued that his 1997 conviction for attempted cultivation of marijuana did not count as a felony under the habitual criminal statute because when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants, and the trial court had no evidence of how many plants were involved in the 1997 conviction. As a matter of first impression, the Colorado Court of Appeals concluded that for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. The prosecution did not present sufficient evidence of this fact at Kadell’s sentencing hearing.

Kadell next argued that the trial court erred by finding that his failure to timely file a collateral attack on his prior convictions was not the result of excusable neglect. The issue of excusable neglect is a question of fact to be resolved first by the trial court. The record does not reflect that the trial court ruled on Kadell’s excusable neglect claim.

Kadell further sought an extended proportionality review of his sentence. This argument is moot at this juncture.

The sentence was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Presentence Confinement Credit Only To Be Given for Charge Being Sentenced

The Colorado Supreme Court issued its opinion in People v. Torrez on Monday, October 2, 2017.

Criminal Law—Sentencing—Presentence Confinement Credit.

The Colorado Supreme Court reviewed the Colorado Court of Appeals’ opinion crediting defendant for a confinement period after a not guilty by reason of insanity verdict on an unrelated  charge. Under C.R.S. § 18-1.3-405, credit is to be given only where the presentence confinement is caused by the charge on which the defendant is being sentenced. Considering Massey v. People, 736 P.2d 19 (Colo. 1987), and People v. Freeman, 735 P.2d 879 (Colo. 1987), the court concluded that defendant was not entitled to presentence confinement credit for her confinement before or after the not guilty by reason of insanity verdict. Accordingly, the court affirmed the judgment of the court of appeals in part and reversed in part, and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Erred in Calculating Defendant’s Presentence Confinement Credit

The Colorado Court of Appeals issued its opinion in People v. Jim on Thursday, September 21, 2017.

Sentencing—Presentence Confinement Credit—Residential Community Corrections Placement.

Defendant was sentenced to 18 months in community corrections. He escaped two months after reporting to community corrections. Following his arrest, the district court resentenced him to 18 months in the custody of the Department of Corrections (DOC), and he was given 67 days of presentence confinement credit (PSCC) for the time he was confined in the county jail before his initial sentencing and 23 days of PSCC for the time he spent in jail between his arrest and resentencing. The court denied defendant’s request for PSCC related to the time he spent in community corrections because he had escaped.

On appeal, defendant contended and the People conceded that the court erred by not awarding him PSCC for the time he spent in the residential community corrections program. Time spent by a defendant in jail, in a DOC facility, or as a resident in a community corrections facility constitutes confinement under C.R.S. § 18-1.3-405, because those facilities limit an individual’s liberty. Thus, when a defendant is resentenced to DOC custody after revocation of a direct sentence to community corrections, he is entitled to credit for time served in a residential community corrections placement. Here, defendant is entitled to 62 days of PSCC for the 62 days he spent in a residential community correction placement. Further, his escape from community corrections did not negate his right to PSCC because C.R.S. §18-1.3-301(1)(k) does not apply to PSCC awards.

The order was reversed and the was case remanded for the district court to correct the mittimus to reflect that defendant is entitled to a total of 152 days of PSCC.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Not Required to Impose Consecutive Sentences for Attempted Murder Counts

The Colorado Court of Appeals issued its opinion in People v. Espinoza on Thursday, September 21, 2017.

Arson—Attempted Murder—Custody—Motion to Suppress—Consecutive Sentences—Identical Evidence—Crime of Violence—Concurrent Sentences—Discretion.

Espinoza set fire to an apartment complex. As part of the investigation, police transported Espinoza to the police station, where he waited for several hours before being interviewed. Police ended the interview when Espinoza invoked his right to counsel. Espinoza filed a motion to suppress his statements from the videotaped interview with police, alleging that he was in custody and police failed to give him Miranda warnings. The trial court denied the motion. A jury found Espinoza guilty of 10 counts of attempted murder, 23 counts of first degree arson, 10 crime of violence counts, and multiple misdemeanors.

On appeal, Espinoza contended that the trial court failed to consider several factors in finding that he was not in custody at the police station, including the several-hour wait in the interview room, the presence of two armed detectives during the interview, and the confrontational question near the end of the interview. The record showed that Espinoza agreed to speak with the detectives, consented to a pat-down search, and rode unrestrained to the police station. The detectives told Espinoza that he was not under arrest and was free to leave, Espinoza was not physically restrained, and the tone of the interview was conversational. The trial court’s detailed factual findings, supported by the record, show that Espinoza was not in custody when interviewed by the detectives.

Espinoza next contended that the trial court misapprehended the applicable law when it ruled that it was required to impose consecutive sentences for his attempted first degree murder convictions. Despite naming different victims, Espinoza’s 10 attempted murder convictions were supported by identical evidence because the same evidence (the single act of fire-setting) formed the basis of each conviction. The court of appeals held that separately named victims do not create separate crimes of violence under C.R.S. § 18-1.3-406(1)(a) when identical evidence supports each conviction, and in such circumstances, a court has discretion to impose concurrent sentences under C.R.S. § 18-1-408(3). Here, the trial court imposed consecutive sentences under the mistaken belief that it had no discretion to impose concurrent sentences.

The judgments of conviction were affirmed. The sentence was vacated, and the case was remanded for resentencing.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Unlawful Sexual Contact is Lesser Included Offense of Sexual Assault

The Colorado Supreme Court issued its opinion in Page v. People on Monday, September 11, 2017.

Double Jeopardy—Lesser Included Offenses.

In this case, the supreme court considered whether unlawful sexual contact is a lesser included offense of sexual assault. Because establishing the elements of sexual assault by means of penetration necessarily establishes the elements of unlawful sexual contact, the Court concluded that unlawful sexual contact is a lesser included offense of sexual assault. Accordingly, the court reversed the judgment of the court of appeals and remanded the case with instructions to vacate defendant’s conviction for unlawful sexual contact.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Sexually Violent Predator Designation Can Be Challenged in Crim. P. 35 Motion

The Colorado Court of Appeals issued its opinion in People v. Baker on Thursday, July 27, 2017.

Sexually Violent Predator Designation—Illegal Sentence—Correction—Crim. P. 35—Timeliness.

Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust and was designated a sexually violent predator (SVP). He was sentenced in 2012. Baker’s counsel did not file an objection to the SVP designation and Baker did not file a direct appeal challenging any aspect of the judgment, including the SVP designation. About a year later, Baker’s counsel filed a Crim. P. 35(b) motion to reconsider Baker’s sentence, which was denied. In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional 19 days of presentence confinement credit (PSCC). The prosecution conceded that Baker was entitled to an additional 18 days of PSCC and the court issued an amended mittimus that included the additional 18 days. In early 2016, defendant filed a motion to vacate his SVP status. The prosecution argued that the court could not reconsider the SVP designation under Crim. P. 35(b) because it is not part of a criminal sentence. The motion was denied.

On appeal, Baker contended that his 2016 motion to vacate his SVP status was cognizable under Crim. P. 35.  It was not cognizable under 35(a) or (b) because an SVP designation is not part of a criminal sentence. However, it was cognizable under Crim. P. 35(c), because Crim. P. 35(c) allows a collateral attack on a conviction or sentence and also on any part of the judgment in a criminal case. A criminal “judgment” includes “findings” made by the district court and any statement that the defendant is required to register as a sex offender. An SVP designation is a finding and part of a criminal “judgment” under Crim. P. 35(c)(2)(VI). And Baker’s postconviction motion can be properly characterized as a collateral attack on the SVP designation. Although Baker did not file a direct appeal challenging his SVP designation, under Crim. P. 35(2)(c) he is not foreclosed from challenging the designation in a postconviction proceeding. Further, Baker’s motion was not time barred because the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c) is renewed when an illegal sentence is corrected pursuant to Crim. P. 35(a), which was done in Baker’s case in 2015. Therefore, the district court erred by denying Baker’s postconviction motion without considering whether the motion was cognizable under Crim. P. 35(c).

The order was reversed and the case was remanded for the district court to reconsider Baker’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Within-Guidelines Sentence Presumably Reasonable Even if it Contains Serious Flaws

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wireman on February 28, 2017.

The issue in this case was whether the Defendant’s sentence was procedurally reasonable when the district court failed to address Defendant’s non-frivolous arguments for a downward variance from his within-Guidelines sentence.

Defendant pled guilty to five counts of distributing child pornography and one count of possessing child pornography. Defendant had also emailed a friend non-pornographic images of children that he personally knew and claimed at the time he had sexually abused. Defendant had prior sexual offenses that involved children, including being convicted of five different sexually based crimes involving minors, four of which included physical sexual conduct with a minor.

Section 2G2.2 of the United States Sentencing Guidelines (USSG), set Defendant’s base level offense for his crimes and applied several other Specific Offense Characteristics (SOCs) under § 2G2.2 to Defendant, which increased his offense level. These SOCs included increases because (i) the material involved prepubescent minors; (i) he distributed material involving the sexual exploitation of a minor; (iii) the material involved sadistic or violent depictions; (iv) he engaged in a pattern of activity involving sexual abuse or exploitation of a minor; and (v) because he used a computer to distribute the material. The corresponding USSG range for Defendant’s crimes and the added SOCs was 210-262 months’ imprisonment.

In his sentencing memorandum to the district court, Defendant argued that he was entitled to a downward variance from the USSG range because § 2G2.2 was inherently flawed. Defendant argued that the Sentencing Commission did not depend on empirical data when drafting § 2G2.2, that the range for his crimes was “harsher than necessary,” and that the SOCs in § 2G2.2 were utilized so often that they applied in nearly ever child-pornography case and therefore fail to distinguish between various offenders. The district court never specifically mentioned this memorandum at sentencing, but alluded to it.

The district court ultimately sentenced Defendant to concurrent terms of 240 months’ imprisonment on each of the six counts against him. The district court addressed the personal nature of the non-pornographic images the Defendant emailed to his friend as well as Defendant’s prior criminal history. After handing down the sentence, the district court asked Defendant if they had “anything further,” to which Defendant’s counsel stated that they did not.

On appeal, Defendant claimed that his sentence was procedurally unreasonable because the district court did not adequately address his critiques of § 2G2.2. Because Defendant did not contemporaneously object in the district court to the method by which the district court arrived at a sentence, including that the sentencing court failed to explain adequately the sentence imposed, the Tenth Circuit applied the plain error standard of review, rather than de novo review. The Tenth Circuit explained that it finds plain error only when there is “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

The Tenth Circuit first addressed the first prong of the plain error standard, whether the district court committed error. The Tenth Circuit first noted that a district court must explain its reasons for rejecting a defendant’s non-frivolous argument for a more lenient sentence. Further, the Tenth Circuit held that Defendant’s critiques of § 2G2.2 were non-frivolous. In fact, the Tenth Circuit addressed how many of its sister circuit courts, along with itself, have described arguments criticizing § 2G2.2 as “quite forceful.”

However, the Tenth Circuit stated the principle that whether a district court can functionally reject or instead must explicitly reject a defendant’s arguments depends on whether the sentence imposed is within or outside of the USSG range. If the sentence is varied upwards of the USSG range, the district court must specifically address and reject the defendant’s arguments for a more lenient sentence. If it is within the USSG range, then the district court does not need to specifically address and reject each of the defendant’s arguments, so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the USSG sentence actually conforms in the circumstances to the statutory factors.

In the Tenth Circuit, a within-guideline range sentence by the district court is entitled to a rebuttable presumption of reasonableness on appeal. The Tenth Circuit stated that this was true even if the USSG at issue arguable contains serious flaws or lacks an empirical basis.

In this case, the Tenth Circuit held that the district court was at least aware of Defendant’s arguments because the district court explicitly referenced Defendant’s sentencing memorandum at the sentencing hearing. Because the district court’s ultimate sentence was within the USSG range, the Tenth Circuit held that the district court did not need to explicitly reject Defendant’s arguments. The district court needed only to indicate that it did not rest on the guidelines alone, which the district court did. The district court stated that it relied on the USSG as well as Defendant’s extensive criminal history and the personal nature of the emailed images in determining Defendant’s sentence. The Tenth Circuit held that this acted as a functional rejection of Defendant’s policy disagreement with § 2G2.2. Therefore, the Tenth Circuit held that the district court did not err by not explicitly responding to Defendant’s arguments for a more lenient sentence. Because the district court did not err, the Tenth Circuit did not address the three remaining prongs of the plain error review.

The Tenth Circuit affirmed the district court’s sentence of Defendant.

Tenth Circuit Judge McKay wrote a concurrence to this decision. Judge McKay expressed his view that precedence requires a district court rejecting a defendant’s non-frivolous arguments to provide at least a general statement of its reasons for rejecting such arguments. If the defendant’s arguments are that the USSG reflect an unsound judgment, Judge McKay states that the sentencing judge should go further to explain why he rejected those arguments. Here, the district court did not do as much.

Further, Judge McKay questioned the wisdom of applying the “reasonable” presumption to within-Guidelines sentences, regardless of a particular Guideline’s alleged lack of empirical support. The Sentencing Commission did not use an empirical approach when developing § 2G2.2, and therefore Judge McKay believes that the Tenth Circuit should not presume the sentence’s reasonableness. Regardless, he agrees that the Majority followed the rules of the Tenth Circuit in applying the “reasonable” presumption as it stands.

Judge McKay believed that the district court erred, but he concurred in judgment because the Defendant still could not satisfy the requirement that the error affected his substantial rights. There was nothing on the record to suggest that the district court would have imposed a different sentence even if he explicitly considered Defendant’s arguments.

Tenth Circuit: Jury Instructions Sufficient to Apprise Jury of Elements of Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wright on Tuesday, February 21, 2017.

Bruce Carlton Wright was convicted on one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1349 and 1344, and on eleven counts of bank fraud in violation of 18 U.S.C. § 1344. Wright was sentenced to thirty-three months imprisonment and ordered to pay restitution to the bank involved. Wright appealed, claiming the district court erred by: (1) not including intent to defraud as an element of conspiracy to commit bank fraud in the jury instruction; (2) responding to a written question from the jury by directing the jury to consider each count of the indictment separately; (3) denying Wright’s motion for new trial based on a Brady violation; (4) improperly calculating of the bank’s loss amount under USSG § 2B1.1(b)(1); and (5) improperly calculating of the restitution amount.

Because Wright did not properly object during his original trial in relation to his first, second, fourth, and fifth claims on appeal, the court reviewed them under the plain-error standard, which requires a plaintiff to establish an “error, that is plain, which affects substantial rights, and seriously effects the fairness, integrity, or public reputation of judicial proceedings.” The court stated that a plain error affects a defendant’s substantial rights if there is a reasonable probability that, if the error had not occurred, the result of the proceeding would have been different.

Concerning Wright’s first claim, that the court erred by not including the necessary element of intent to defraud to convict on a charge of conspiracy to commit bank fraud in the jury instruction, the court reviewed the jury instructions in light of the context of the entire trial to see if the instructions accurately stated the law and provided the jury with a correct understanding of the facts of the case. The court rejected this claim, saying that Wright could not show error because, while the court did not list intent to defraud in the instruction, the omission was cured because the instruction relating to committing bank fraud did incorporate “intent to defraud” by requiring an agreement to commit bank fraud.

During deliberations, the jury asked the judge if it they had to find Wright guilty on count 1 in order to convict him on any of the subsequent counts. Over objection of counsel, who agreed with the legal answer provided by the court but requested different phrasing, the judge responded, “No, you must consider each count separately.” On appeal, Wright contends that the answer should have been “Yes,” because, citing Pinkerton v. United States, the conviction would have been based on the acts of a co-conspirator and not his own acts (as his co-conspirator was testifying at his trial). The court stated that Wright had waived his ability to assert error under Pinkerton by failing to object on that basis at the district court level.  Instead, because Wright had generally objected to the instruction, the court reviews for plain error. However, because Wright argued under an abuse of discretion, and not plain error he waived his right to argue the claim.

In support for his motion for new trial, Wright argued that the government withheld a victim impact statement that the bank president had prepared for his coconspirator’s sentencing. Wright claimed that the information would have helped him to impeach his co-conspirator at his own trial. In their assessment of Wright’s motion, the court stated that Wright would have to show the prosecution suppressed material evidence that was favorable to Wright.  While the court determined the statement was not given to Wright prior to the trial, and that it was favorable to him, he failed in showing that the information included in the impact statement was material enough that it could have undermined confidence in the outcome of the case because Wright already attacked his co-conspirator’s credibility extensively at trial.

In calculating Wright’s sentence and amount of restitution he would be required to pay to the victims, the district court looked to the amount of Wright’s fraudulent draw requests, and determined he owed to be $1,094, 490. Wright was provided the sum in the presentencing report, which he accepted. Because the Bank recovered sums due to its sale, the sales price should be subtracted from the outstanding loan balance to calculate restitution to avoid a windfall to the victim. However, because the amount of restitution and sentence is a factual question, Wright was required to object at the district court level for it to rise to the level of a plain error reviewable on appeal. Wright accepted the amount in the pre-sentencing report, and the court held that Wright had accepted the calculation of restitution and his sentence as correct.

The Tenth Circuit Court of Appeals affirmed the district court’s rejection of Wright’s motion for new trial and rejected Wright’s other claims as to the amount and length of his sentence.

Tenth Circuit: 18 U.S.C. § 3583 Allows Sentences Greater than One Year for Violations of Terms of Supervised Release

The Tenth Circuit Court of Appeals issued its opinion in United States v. Collins on Tuesday, February 14, 2017.

The Tenth Circuit Court of Appeals had to determine if the maximum allowable term of incarceration following a second violation of the terms of supervised release under 18 U.S.C. § 3583(e)(3) refers to the original crime or the violation of the terms of the supervised release. Howard Collins was originally convicted of a Class B felony for knowingly and intentionally distributing more than five grams of (in this case) crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). After his initial period of incarceration, he was granted supervised release. After violating his supervised release once before, upon his second violation of the terms of his release, the court sentenced him to one-year re-incarceration under the belief that § 3583(e)(3) permitted a one-year maximum term.

Section 3583(e)(3) stipulates the maximum allowable period of re-incarceration where supervised release has been revoked is the length of the supervised release authorized by statute for the offense that resulted in the supervised release. On appeal, the government asserted that the district court improperly read the statute to preclude a re-incarceration period over one year. The government argued that the language of the statute relating to the “offense that resulted in such term of supervised release” referred to the original offense for which Collins was convicted (which would allow for a three year maximum), not the violation of his supervised release. In interpreting the statute, the court noted that revocation of supervised release, while often leading to incarceration, is not in and of itself a crime and is only subject to a preponderance of the evidence standard. As incarceration for a criminal offense under a standard less than beyond a reasonable doubt would be a violation of the Due Process Clause, the court reasoned that the “offense” referenced in the statute was the original offense for which Collins was charged.

Looking to the holding in the Supreme Court case of Kellogg Brown & Root Servs. Inc. v. United States ex rel. Carter, the court stated that the interpretation of the term “offense” to be the original offense for which someone was convicted is applicable to the entirety of Title 18, (at issue here). At the outset, Collins argues that the court’s interpretation of the term original must, in his case, relate to his violation of the terms of supervised release because the phrase “resulted in” requires actual causation, and “but for” his first violation of supervised release he would no longer be on a term of supervised release to violate. The court rejects this contention, stating that Collins’ reading of the statute and the holding in Burrage v. United States to require actual and proximate cause, if adopted, would require the court to to over look the aforementioned due process issues. Furthermore, the court states that ‘but-for’ his original conviction, he could not have been sentenced to a term of supervised release upon either revocation.

In further opposition to the court’s interpretation, Collins supports his own interpretation by asserting that the statutory history of § 3583(e)(3) and (h), including its cross-reference to § 3553(a)(1) leads to an interpretation that the term ‘offense’ means violation of his supervised release. The court, again citing Kellogg to reject Collins’ interpretation, said that because the term ‘offense’ under Title 18 has been interpreted to mean the original offense for which he was convicted, the cross-reference to § 3553 (a)(1) would also carry that interpretation. In Collins’ final challenge to the court’s interpretation, he asserted that because prior to a 1994 amendment the statute referred to “the offense for which the person was convicted” (emphasis added), as opposed to the current iteration that replaced ‘convicted’ with ‘offense’, Congress specifically intended to include violations of the terms of statutory release. The court also rejected these arguments under Kellogg, stating that because Title 18 refers to crimes as the original ‘offense’, the term must be given the same meaning throughout the statutory scheme. Furthermore, the court added, the amendment worked to actually expand the sentencing court’s authority, and an interpretation that limited the court’s ability to sentence a term of imprisonment for revocation of supervised release would be inconsistent with that intention.

The Tenth Circuit Court of Appeals reversed the sentencing order of one-year, and remanded the case with the instruction that the court vacate its revocation judgment and resentence Collins.

Tenth Circuit: Sentencing Enhancement Properly Applied When Defendant Conceded to Crime of Violence

The Tenth Circuit Court of Appeals published its opinion in United States vSnyder on Tuesday, March 28, 2017.

Mr. Snyder pleaded guilty to possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) while on probation. The probation officer recommended a base offense level of 20 pursuant to United States Sentencing Guidelines (USSG) § 4B1.2(a)(2), because Mr. Snyder had a prior conviction of a crime of violence. Mr. Snyder sought a reduction to the base offense level pursuant to USSG § 2K2.1(b)(2). The district court held that Mr. Snyder’s prior conviction of voluntary manslaughter was a crime of violence and he was not entitled to a reduced sentence. Mr. Snyder appealed.

The Tenth Circuit ordered supplemental brief to determine whether the residual clause of USSG § 4B1.2(a)(2) provided a basis for Mr. Snyder’s sentencing enhancement if his prior conviction of voluntary manslaughter was a crime of violence. Mr. Snyder’s supplement brief conceded that his prior conviction was a crime of violence. Further, the Supreme Court reasoned in Beckles “the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence with the statutory range.”

The court concluded that the district court properly applied the sentencing enhancement and affirmed Mr. Snyder’s sentence.