Federal Criminal Sentences May Be Enhanced by Acquitted Conduct

January 27, 2009 by Kish & Lietz

Did you know that, even after a jury has acquitted a criminal defendant of charged crimes, a federal court judge may still consider that conduct at sentencing? This unfair and disrespectful-to-juries rule of law is barred by nearly every state, but is permissible in federal courts. We hope the U.S. Supreme Court will soon correct the situation on appeal from a recent Sixth Circuit case.

The Eleventh Circuit Court in Atlanta, Georgia has addressed this injustice and permitted it to continue. In July 2006, the court issued an opinion in U.S. v. Faust, a case in which Nathan Faust had been convicted of possession with the intent to distribute cocaine, but acquitted of possession with the intent to distribute ecstasy and two gun charges. In calculating Faust’s sentence, the District Court determined the initial Sentencing Guidelines range by including the 94 grams of ecstasy that Faust had been acquitted of possessing. The Court then added two more levels to his sentence for possession of a dangerous weapon, despite his acquittal on the gun charges. Faust objected on the basis of his acquittal, but the Court overruled his objection, stating that the Guidelines were advisory and its calculations were based on a preponderance of the evidence.

Faust appealed his sentence on several grounds, one of which being the Sixth Amendment right to a jury trial. He argued that even when the Sentencing Guidelines are applied in an advisory manner, the Sixth Amendment right to a jury trial prohibits courts from considering relevant conduct for which a defendant was acquitted when making sentencing calculations. The Eleventh Circuit rejected his argument because both Eleventh Circuit and Supreme Court precedent allowed such consideration when the relevant conduct was proved by a preponderance of the evidence. Judge Barkett wrote a lengthy special concurrence stating that she concurred in the decision only because she was bound by Eleventh Circuit precedent, further saying that she “strongly believe[s] this precedent is incorrect” and that the Supreme Court precedent cited by the majority opinion has no bearing on this case. She concludes her concurrence with, “I do not believe the Constitution permits this cruel and perverse result.”

The Faust opinion is available here.

In the recent Sixth Circuit case, Roger Clayton White was the getaway driver for a bank robbery committed by his brother and an accomplice. He led the police on a lengthy car chase, which ended when White crashed into a roadblock. White was convicted of armed robbery and possessing a firearm with the serial number removed. The court considered acquitted conduct in calculating his sentence, including discharging a firearm during the robbery and assaulting a law enforcement officer during flight. This consideration of acquitted conduct resulted in White’s sentence nearly tripling, from 8 years in prison to 22. The Sixth Circuit, sitting en banc, affirmed the sentence, stating that the sentence passed constitutional muster because it did not increase the sentence beyond the statutory maximum for the convicted crime.

The White opinion is available here.

White’s attorney has said that the case will be appealed to the United States Supreme Court. Let’s hope they take the case and correct this shocking and unconstitutional rule of law.


United States Supreme Court Affirms Eleventh Circuit Federal Criminal Case

January 27, 2009 by Kish & Lietz

In a case arising out of the Eleventh Circuit Court of Appeals in Atlanta, Georgia, the Supreme Court of the United States limited the exclusionary rule by holding that where an unlawful search results from isolated police negligence, the evidence obtained from that unlawful search may still be used against a criminal defendant.

The exclusionary rule generally protects citizens against violations of their rights under the search and seizure provisions of the Fourth Amendment. The Fourth Amendment provides people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It doesn’t expressly provide for any remedies when that right is violated, but the Courts established the exclusionary rule, which forbids the use of improperly obtained evidence at trial. The rule is useful for it’s deterrent effect: the police are less likely to violate citizens’ rights if they won’t be able to use evidence found as a result of their violation.

In this case, Herring v. United States, police in Alabama arrested and searched Bennie Dean Herring under the mistaken belief that a warrant for his arrest existed. During that search, they found methamphetamine and a pistol, which he was not allowed to possess because he was a convicted felon. Soon after the search, the police discovered that the warrant had been recalled 5 months earlier, but their computers had not been updated.

Because there was no warrant or probable cause for the search, it was a violation of Herring’s Fourth Amendment rights. Herring argued that the exclusionary rule required suppression of the drugs and pistol found during the search. The judges in the Middle District of Alabama, however, denied his motion to suppress because in this case, where the police acted under a good faith belief that a warrant was outstanding, there was “no reason to believe that application of the exclusionary rules here would deter the occurrence of any future mistakes.” Herring appealed and the Eleventh Circuit agreed, noting that the police error was negligent, rather than deliberate, and the benefit of excluding the evidence “would be marginal or nonexistent.”

The United States Supreme Court took this case because other courts have excluded evidence in similar cases. They resolved the conflict in favor of the Eleventh Circuit’s judgment, stating that “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’” The Court divided along ideological lines, with Chief Justice Roberts writing the opinion and joined by Justices Alito, Kennedy, Scalia, and Thomas. Justice Ginsburg dissented, joined by Justices Stevens, Souter, and Breyer.

The Court's opinion can be found here.

United States Supreme Court Limits Definition of “Violent Felony” under Federal Armed Career Criminal Act

January 15, 2009 by Kish & Lietz

The United States Supreme Court issued an opinion on Tuesday resolving a split in the circuits regarding whether failure to report for prison is a violent felony for the purposes of the Armed Career Criminal Act (ACCA). This federal law provides for a mandatory minimum sentence of fifteen years or up to life imprisonment for possession of a firearm by an individual with three previous convictions for violent felonies or serious drug offenses.

In the case decided this week, Deondery Chambers pleaded guilty to a charge of being a felon unlawfully in possession of a firearm. Chambers conceded that two of his prior convictions qualified under the ACCA, but disputed the third conviction, which was for failure to report to a penal institution. This conviction resulted from his failure to report to a local prison for weekend confinement on four occasions.

The District Court treated this conviction as a form of “escape from a penal institution” and held that it qualified as a violent felony. Mr. Chambers appealed from this decision, but the Seventh Circuit Court of Appeals agreed with the District Court. The First Circuit has also held that failure to report is a violent felony, but the Ninth Circuit has held that such a crime does not qualify. The Supreme Court granted certiorari to resolve this split in the circuits.

The statutory definition of “violent felony” in the ACCA includes crimes “punishable by imprisonment for a term exceeding one year” that also involve “conduct that presents a serious potential risk of physical injury to another.” The Department of Justice argued that failure to report for prison is such conduct and that “a failure to report reveals the offender’s special, strong aversion to penal custody.” The Court was not convinced by this argument.

The Court stated that this type of crime, which “amounts to a form of inaction,” is a “far cry from the ‘purposeful,’ ‘violent,’ and ‘aggressive’ conduct potentially at issue” in the specific crimes enumerated as violent felonies in the ACCA. Addressing the District Court’s analogy of failure to report to escape, the Court said that the behavior underlying failure to report is less likely to involve risk of physical harm than the more aggressive behavior underlying escape. The Court reviewed a United States Sentencing Commission report that “strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury.”

Justice Breyer delivered the opinion of the Court, which held that failure to report falls outside the scope of the ACCA’s definition of “violent felony.”