Habeas Masters Newsletter, Week Ending Apr 21, 2023
I figured I’d give a rundown of some notable cases I found this week, along with some of my comments. I used to do this but switched to analyzing one case a week to help people apply the case for relief. However, there’s too much good stuff out there to only focus on one case. If you want to know more about a case, let me know and I’ll dig into it a little more. I read each case. I don’t just paste a synopsis someone else wrote in a digest (like most other firms do….). Let me know in a new email what you think is best. (DC)
United States v. Perez, 61 F.4th 623 (8th Cir. 2023)
Sex Offender Enhancement Improperly Applied
Appellant argued he wasn’t convicted of a “covered sex crime” to allow the sentencing court to impose what’s known as the sex-offender “career offender” provision under U.S.S.G. § 4B1.5, adding 5 offense levels to the offense level. That provision is titled Repeat and Dangerous Sex Offender Against Minors and says it “does not include receipt or possession of child pornography” offenses – which was what the appellant was convicted of. With the penalty, his guideline range was 262 to 327 months; without it, his range was 180 to 188 months. He got 262 months, so the sentencing error was deemed a “plain error” and the Eighth Circuit vacated and remanded for resentencing without the enhancement.
Dale’s take: A “plain error” on appeal is a rather high bar to get over. While it’s a different kind of error than ineffective assistance of counsel, the courts say it’s the same degree of error. Showing that counsel missed an obvious error that the court of appeals says is “plain” strong grounds for a successful IAC claim. But the argument must be done in the right way, or it will get tossed.
United States v. Kousisis, 2023 U.S. App. LEXIS 9548 (3d Cir. Apr. 21, 2023)
Forfeiture Order was Unconstitutional
A forfeiture order was deemed excessive by the Third Circuit and was remanded so the district court could apply the Supreme Court’s rule on determining whether forfeiture exceeds the Eighth Amendment’s bar on excessive punishments and fines. Those factors are: (1) the essence of the crime and its relation to other criminal activity; (2) whether the defendant fits into the class of persons for whom the statute was principally designed; (3) the maximum sentence and fine that could have been imposed; and (4) the nature of the harm caused by the defendant’s conduct. However, the sentencing judge here merely “encouraged” the government not to go overboard and simply signed the forfeiture order. That was wrong and the Third Circuit remanded to apply these four factors.
Dale’s take: Forfeiture is an often-overlooked punishment in criminal cases. Maybe it’s because few people realize that there’s a limit on what the government can take from someone who’s convicted of a crime. If the court allows them to take too much, it’s unconstitutional. That’s a serious error in a criminal case!
United States v. Puzey, 2023 U.S. App. LEXIS 9174 (4th Cir. Apr. 18, 2023)
District Court’s Errors in Denying Compassionate Release, “Considered in Combination,” Required Reversal
A district court’s denial of compassionate release was reversed because three errors, taken as a whole, led to an abuse of discretion. The first error was the judge’s finding that the movant “was a danger to the safety of another person or the community.” The Fourth Circuit said that this was an error because this criterion is found in U.S.S.G. § 1B1.13, which does not apply when a prisoner files for compassionate release. The second error was that the judge only considered the movant’s criminal history to deny relief. The third error happened when the judge failed to consider the movant’s rehabilitation.
Dale’s take: What got my attention here was that the Court said the district judge had failed to consider rehabilitation as a factor for compassionate release. Yes, rehabilitation alone is not a sufficient factor, and the courts have said so, but it’s still a factor that must be considered.
United States v. Coleman, 2023 U.S. App. LEXIS 9395 (3d Cir. Apr. 20, 2023)
District Court Wrongly Denied FSA Relief Based on Drug Amount
District court’s determination that a person was not eligible for § 404 relief under the First Step Act because of the “actual quantity of drugs” he possessed was improper at the eligibility stage of the proceedings. Instead, the Third Circuit said that the judge should have taken the quantity into consideration during the merits phase. The Court also found several other errors and reversed the denial of relief and remanded.
Dale’s take: Almost five years after the First Step Act was passed and we’re still seeing judges wrongly denying First Step Act relief. I’ve written numerous articles in Criminal Legal News magazine on the eligibility for FSA relief under § 404. It’s sad to see that the government continues to (wrongly) convince judges to deny relief in cases where people are eligible.
United States v. Johnson, 2023 U.S. App. LEXIS 8526 (D.C. Cir. Apr. 11, 2023)
Wife Was Not Under Drug Dealer’s Control to Warrant “Manager” Role Enhancement
An enhancement under U.S.S.G. § 3B1.1 for being a “manager or supervisor” in a drug ring was error where defendant’s wife was not under his “control,” even though she helped with the offense at his urging. The D.C. Circuit found that the facts in the record did not show the defendant had control over five or more people, and definitely not over his wife – who the court said stood her ground despite giving in to his demands that she help him. The case was reversed and sent back to the district court.
Dale’s take: The Court noted that the “evidence of control [over a wife] is particularly weak given the spousal relationship.” It didn’t say much else on this but cited a few cases in support. Does being married to a partner in crime take that person out of the realm of being an underling? It seems there’s a connection there.
United States v. Raines, 2023 U.S. App. LEXIS 8065 (11th Cir. Apr. 5, 2023)
Denial of FSA Relief Reversed Because Would Not be a Career Offender if Sentenced Today
The district judge said that “even if Raines were sentenced today,” he would still be a career offender, and denied his § 404 motion for FSA relief. But this was wrong: United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023), recently held that a conspiracy to distribute a controlled substance doesn’t qualify under the career offender guideline. That was the defendant’s conviction here and, if sentenced today, he couldn’t be a career offender under current law. The Eleventh Circuit reversed the denial of relief and remanded for consideration of this fact.
Dale’s take: The text of the First Step Act statute applying the old Fair Sentencing Act retroactively expressly says that a court may reduce a sentence as if the FSA were in effect at the time the offense was committed. And the Court here says it’s the current law that applies to resentencing under the FSA. It’s all about what would happen today if sentenced. Nice.
United States v. Thomas, 2023 U.S. App. LEXIS 9306 (7th Cir. Apr. 19, 2023)
Landlord Cannot Consent to a Search of a Renter’s Property
The law has always been that a landlord cannot consent to a search of a renter’s property. But what about if the renter entered into the lease in a fraudulent way? The Seventh Circuit said his Fourth Amendment rights were still protected and reversed the district court’s denial of his motion to suppress the evidence. It wasn’t discovered until after the search that the renter had given the landlord false information to obtain the lease. The Court said what matters for Fourth Amendment purposes is what law enforcement knew at the time of the search, and they “knew” back then that the renter was there legitimately. The landlord’s consent was invalid.
Dale’s take: At the time of the search, the renter had an expectation of privacy in his apartment. That’s all that mattered for Fourth Amendment purposes. Such a claim can be raised in a § 2255 motion, but only as an IAC claim.
That’s about all for this week. Don’t forget about our new docket tracking service. You’ll always know what’s being filed in your case, long before you get it in the mail, because we email you the entry. Add firstname.lastname@example.org for more info.
Much respect from all of us at Habeas Masters
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