Thursday, April 20, 2006

A Narrow Question of Anders Procedure

United States v. William Eskridge, No. 05-2808 (April 19, 2006): This case occupies an incredibly small piece of the legal landscape, but could lead to some difficulties down the road. Mr. Eskridge appealed revocation of his supervised release, arguing that the prison sentence imposed upon the revocation exceeded the statutory maximum available to the judge. His appointed counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). The Seventh Circuit decided that his case raised an issue that was not only non-frivolous, but meritorious. It vacated and remanded for further proceedings. It denied counsel’s request to withdraw and sent the case back to the district court for re-sentencing.

Normally, if appointed counsel files a compliant Anders brief, and the Court decides that there are non-frivolous issues, it appoints new counsel to brief those issues, receives a brief from the government, and then decides the case, either affirming or granting relief. In this case, the Court studied the record and granted relief without hearing from the government. Given the facts of the case (which are so detailed and so unique that it would serve no purpose to recite them here), the Court could not be faulted if it had merely explained that in order to appraise the Anders brief, it had put in enough work to know the correct outcome and did not need to trigger a new round of defense briefing and government reply, all performed while Mr. Eskridge served out a sentence short enough that his ultimate victory would be rendered academic.

But the Court did not take that approach. Instead, it reasoned that Mr. Eskridge, although he had a statutory right to appointed counsel, did not have a constitutional right to appointed counsel. It held that in supervised release revocations the prisoner has a constitutional right to appointed counsel only when he or she claims there was no violation of the conditions of supervised release or, if there was a violation, special conditions make revocation inappropriate. Mr. Eskridge was denying neither a violation nor the appropriateness of revocation. He argued solely that the prison term was in excess of the statutory maximum. Thus, under this construct, his right to counsel was purely statutory.

What does it mean to have a statutory, but not a constitutional right to appointed counsel? 18 U.S.C. sec. 3006A gives all defendants in federal criminal cases the right to appointed counsel on appeal, even in supervised release cases. There is no exception in the statute for frivolous appeals, and one might question whether the Anders doctrine, which originated in a state prisoner case, and was then refined in state probation revocation cases, has any application to federal prisoner cases so long as section 3006A remains in force. Certainly, the statute establishes no procedure regarding frivolous appeals.

If counsel wants to withdraw, may counsel file a conclusory statement far short of an Anders brief? It is hard to believe the Court wants to sanction that practice, since the Court would then have to do the work that counsel does when filing an Anders brief. If counsel must file an Anders brief, how does the Court proceed upon finding that there is indeed a non-frivolous issue? Will it seek a government brief, especially if it believes that there may be an issue, but cannot resolve it as decisively as it did in Mr. Eskridge’s case? Remember that these questions about procedure will arise only in this small slice of cases, as well as in probation revocations.(The opinion suggests in a very indirect way that this approach could also apply to actions under 28 U.S.C. sec. 2255, but the relatively recent requirement of a certificate of appealability would seem to winnow out at any earlier stage those appeals with no perceived merit).

Friday, April 14, 2006

Sawed-Off Shotguns

United States v. Modina Lim, No. 05-2419 (April 14, 2006): Mr. Lim entered a conditional plea to possession of an unregistered sawed-off shotgun (26 U.S.C. sec. 5861(d)). He had several constitutional challenges to the statute. The Court easily rejected the claim that the offense was beyond Congress' power to tax, just as it rejected the claim that the registration requirement ran afoul of the self-incrimination clause of the Fifth Amendment.

More interesting is the claim that the statute is vague. Section 5845(a)(2) of Title 26 defines a sawed-off shotgun as a shotgun with an overall length of less than 26 inches or a barrel of less than 18 inches. Mr. Lim complained that the statute provides no definition of "barrel" and no statutory direction on how to measure a barrel. The Court relied heavily on United States v. Powell, 423 U.S. 87 (1975), which held there was nothing vague about proscribing the mailing of a firearm "capable of being concealed on the person." Presumably, if a statute as vague as this can pass muster, almost anything else will pass. However, the Court did not comment on the key difference between the statute in Powell and the statute in Mr. Lim's case. The offense in Powell requires knowledge, but the offense in the instant case does not. The Court also pointed to a regulation, 27 C.F.R. sec. 479.11, that sets out a protocol for measuring barrels and the over-all lenghts of guns. The Court held that a regulation can save a statute from being vague. The Court did not quote the language of this regulation. Had it done so, it might have seriously undermined its argument. The regulation may make some sense to someone who knows about guns, but it is not enlightening to others. It is generally agreed that a statute must be intelligible to the public at large, not a special segment of the public. The same should hold true for regulations that are offered to fend off claims of statutory vagueness.

Thursday, April 13, 2006

Proposed Change for Unpublished Opinions

The Supreme Court has approved new Federal Rule of Appellate Procedure 32.1, which will take effect in December, 2006, unless Congress disapproves. Under the new rule, parties may cite unpublished opinions and orders of any federal court. This new rule will apply only to orders and opinions that have been issued after January 1, 2007. The Committee Note advises that the rule does not require a court to issue unpublished opinions, which could leave open the unattractive possibility of dispositions that contain nothing more than the word "AFFIRMED." (Other Circuits have employed this practice in the past.) The Committee Note also advises that each Court can decide what precedential weight to give unpublished opionions. For the answer to that question, we must await a local Circuit Rule.

Monday, April 10, 2006

"Fast Track" Departures

United States v. Alejandro Galicia-Cardenas, No. 05-3093 (March 24, 2006): This opinion consolidates two appeals. It was originally an unpublished order, but the Court has now published it at the government's request.

Mr. Galicia-Cardenas, prosecuted in the Eastern District of Wisconsin, received a below guidelines sentence for his illegal re-entry offense. Mr. Vega-Lopez, prosecuted in the Western District of Wisconsin, received a within the guidelines sentence for the same offense. In both cases the question was whether the "fast track" program operating in other districts could be the basis of a below the guidelines sentence. The Seventh Circuit answered "no" to this question. Since Congress has authorized the Attorney General to create the program, there can be no unwarranted disparity in allowing lower sentences for defendants in some districts. As might be expected, there is little analysis in this formerly unpublished opinion, other than a reference to the Court's recently published opinion in United States v. Martinez-Martinez, 2006 WL 722140 (7th Cir. March 23, 2006). Martinez held that a court was not required to go below the guidelines to equalize defendants who are sentenced in non-fast track districts. The instant case takes us to a new level in holding that a district court errs when it uses fast track to exercise discretion and sentences below the guidelines. The instant case does not acknowledge that in some districts defendants receive lower sentences because of charge bargaining. It remains to be seen what the Court will say when it confronts that issue.

Friday, April 07, 2006

Sentencing Disparity between Co-Defendants

United States v. Pisman, No. 05-1625 (April 7, 2006): Wilkerson and Pisman were indicted for interstate travel sex offenses. Wilkerson made a deal with the government and testified against Pisman. The guidelines range for these offenses was 108-135 months. Wilkerson received a sentence of 68 months in return for his co-operation. At Pisman's sentencing the district court viewed Wilkerson as more culpable and sentenced Pisman to 60 months. The court believed that, in order to avoid unwarranted disparity, any sentence of Pisman should reflect Wilkerson's greater culpability. Had Wilkerson received a harsher sentence, the court would have imposed a harsher sentence on Pisman. The Seventh Circuit remanded for re-sentencing. Although it held open the possibility that a 60-month sentence might still pass muster, it disapproved the district court's rationale of avoiding unwarranted disparity. A reward to Wilkerson for his co-operation would not create unwarranted disparity.

The opinion also contains a discussion of the inconsistent verdict rule. Pisman was acquitted of two counts, but convicted of the third count. Although these verdicts were logically inconsistent, Pisman could receive no relief, since inconsistency is not a basis for setting aside the guilty verdict.

Monday, April 03, 2006

Aiding and Abetting Use of a Gun

United States v. Todd Andrews, No. 05-1974 (March 30, 2006): Mr. Andrews was convicted of bank robbery and use of a firearm during a crime of violence. Both convictions rested on a theory of aiding and abetting. By his own statements to law enforcement, he agreed to loan his auto and his shoes to the robbers, knowing they were planning to rob a credit union (the opinion does not reveal why there was a need to borrow his shoes). He also knew that the robbers had guns. Other than loaning these two items to the robbers, he did not participate in the robbery. He argued that the district court should have granted his Rule 29 motion on the gun count.

The Court acknowledged that a defendant must intentionally facilitate the possession of the weapon; merely aiding a crime and knowing that the principal has a gun is not enough to aid the use of a firearm. In upholding the conviction, the Court emphasized Mr. Andrews' knowledge that the robbers had guns, yet it presented little analysis of what he did to facilitate their use of the guns.

Enhancement for Firearm Possessed "In Connection with" Another Offense

United States v. Markovitch, No. 05-3296 (April 3, 2006): Mr. Markovitch pleaded guilty to possession of a firearm by a felon. At sentencing he received a 4-level enhancement under 2K2.1(b)(5) for possessing the firearm in connection with another felony offense, that is, possession of controlled substances with intent to distribute. At the time of his arrest for a DUI offense, he was found in possession of 4 grams of cocaine, 5.5 grams of marijuana, and a small scale, in addition to the firearm. His argued that he was a user, not a dealer, and that he carried the scale to make sure that when he purchased for his personal consumption, he was not cheated. Employing the clearly erroneous standard, the Court affirmed the finding that he was a dealer and that his possession of the gun "facilitated or potentially facilitated" the offense of possession with intent to distribute. Since there was no evidence that he was actually distributing drugs or attempting to distribute drugs at or near the time of his arrest, the Court's holding was based more on the expanded definition of facilitation it found in cases from other Circuits: the possession of the gun "had some potentially emboldening role" in drug distribution. In finding that he was a dealer, the Court relied on the presence of the cocaine and did not consider the marijuana. It also relied on the presence of the scale and on a previous conviction for distribution.