Forget the Motion--Write the Brief

United States v. Danny D. Fortner, No. 05-4104 (July 31, 2006): Mr. Fortner appealed his 288-month sentence. Five days before its appellee brief was due, the government filed a motion for summary affirmance, as well as a motion to suspend briefing. Although it did not have all the formal apparatus of a brief, the motion was in substance a brief on the merits. The Court denied this motion and emphatically declared that appellees should not waste everyone’s time with this type of filing. If the appellee thinks the appellant has a weak case, it should say so in an appellee brief.

The Court recognized three instances in which a motion for summary affirmance might be appropriate: (1) when time is of the essence, and the Court can decide the case on the papers; (2) when the opening brief is "incomprehensible or completely insubstantial"; or (3) when a recent appellate decision directly resolves the appeal. But the overall tenor of the Court’s opinion is to discourage such motions.

Calculating Relevant Conduct

United States v. Karl Bullock, No. 05-2655 (July 18, 2006): Mr. Bullock pleaded guilty to five counts of heroin distribution, which involved a total of 110 grams. The PSR added another 8 kilos of heroin as relevant conduct, and the government requested the addition of 1.5 kilos of crack as still more relevant conduct. These amounts had been alleged in a conspiracy count brought against him, to which he refused to plead guilty and which was later dismissed. With all this relevant conduct, the guidelines range was natural life, but the government recommended a sentence of 30 years. Instead, the district judge imposed a sentence of 100 years, 20 years on each count, with all sentences to be served consecutively. The district judge, although obviously accepting that the 8 kilos of heroin and 1.5 kilos of crack were relevant conduct, made no explanation of how he came to that conclusion.

The Seventh Circuit reversed the finding of relevant conduct. A series of drug sales, without more, are not relevant conduct, and the Court is particularly wary of alleged relevant conduct that is remote in time. The alleged relevant conduct in this case occurred two years before the charged offenses. Although acknowledging that the earlier conduct could be relevant conduct, the Court stressed that the district judge must set out this finding explicitly and may not assume the existence of the relationship. The district judge in this case did not make any findings on this score.

The government asserted that Mr. Bullock (or those working for him) had sold the 8 kilos of heroin. He did not sell the crack, but it was the government’s theory that Mr. Bullock benefitted from the security at the building where he sold heroin and others sold crack. Although the crack dealers' main concern was protecting their crack operation, he was an incidental beneficiary of their efforts, and so crack sales by others should be treated as his relevant conduct. The Court flatly rejected this theory of relevant conduct. Mr. Bullock could be held accountable only for conduct that was directly related to his small sales of heroin two years later.

The Court also ruled that it was error to deny him acceptance of responsibility based on his challenging the government’s claims of relevant conduct.

Although the opinion dealt mostly with the calculation of the guidelines, it also suggested that a sentence of 100 years was unreasonable, even if it would have been within the guidelines. The court noted that defendants in a companion case before another judge (the case with the crack dealers) had received much lower sentences, and a 100-year sentence would seem to create the sort of disparity that section 3553(a) disfavors.

Sentence below Guidelines Found Reasonable

United States v. Hewlett, No. 05-2532 (July 10, 2006): Mr. Hewlett’s guidelines called for a life sentence. The statutory minimum was 20 years; the maximum, life. The government recommended 30 years in prison; the district court imposed a sentence of 20 years. The government cross appealed on the ground that 20 years was unreasonable.

The panel gave short shrift to this argument. Since the government had asked for 30 years, the Court did not see 20 years as unreasonable. The sentencing judge’s references to Mr. Hewlett’s "redeeming qualities," his "family history," and his age were sufficient explanation of the variance.

In a concurring opinion, Judge Easterbrook noted that the government did not file an information under 21 U.S.C. sec. 851 regarding Mr. Hewlett’s prior convictions, which would have mandated a life sentence. Judge Easterbrook also noted that by statute, 28 U.S.C. sec. 994(h), the district judge should have imposed a sentence at or near life, since Hewlett was a career offender and the current conviction was for a drug offense. A sentence of 20 years did not satisfy this directive. But since the government never made that argument, it had forfeited the point. This discussion emphasizes that Booker does not change the message of 28 U.S.C. sec. 994(h).

Crime of Violence under ACCA

United States v. Presse D. Matthews, No. 05-1665 (July 7, 2006): Mr. Matthews was sentenced under the Armed Career Criminal Act (ACCA). The government relied on an Illinois conviction for possession of a weapon by a felon. In the state case he had pleaded guilty to carrying a "dangerous knife," with the intent to use it unlawfully against another.

ACCA has two branches: (1) crimes in which an element of the offense is use, attempted use, or threatened use of physical force; or (2) certain enumerated crimes, as well as crimes that present "a serious potential risk of physical injury to another."

Mr. Matthews argued that intended use was not the same as use, attempted use, or threatened use. The Court expressed relief that it could avoid deciding whether the conviction fell under the first branch. Instead, it concluded that the conviction satisfied the second branch.

Matthews argued that a person could have the intent to use a knife to harm another, but might not necessarily carry out the intent or even come close to carrying out the intent. The Court responded that the test is probability, not certainty, of injury. In its view, one who has the intent of using a knife always presents a serious risk of potential physical injury to another.

In rejecting hypothetical scenarios not involving violence, the Court seemed to say that as long as there is a hypothetical scenario that does involve violence, then the offense is categorically a crime of violence. Notice that the inquiry does not focus on the facts of the particular conviction; rather, the Court asks whether it can imagine a situation in which the prohibited conduct has potential for violence. In elaborating on this approach, the Court has demonstrated that it has a fairly active imagination and can deftly conjure up a hypothetical scenario involving violence.

Matthews’ state conviction was under a section that requires bad intent as well as possession of the prohibited item. The bad intent seemed to tip the scales. Another section of the Illinois statute prohibits felons from carrying guns and makes no requirement of bad intent. It remains to be seen whether a conviction under this section can become a predicate conviction under ACCA. Even though the felon has no intent to use the gun against anyone, is there still enough potential for violence that it becomes a violent felony under federal law? Although felons might carry guns because they are on their way to a shooting range or a day of hunting, they might carry them because they are on their way to a robbery. Is the latter hypothetical enough to expose a defendant to ACCA?

One interesting sidenote: the government conceded error. But the Court invited the Attorney General of Illinois to file an amicus brief on the issues of Illinois law involved.

Venue in Illegal Re-Entry Cases

United States v. Alberto Rodriguez-Rodriguez, No. 05-4786 (July 6, 2006): Mr. Rodriquez was deported back to Mexico. He illegally re-entered in Texas, where he was arrested by state police for speeding. He was then extradited to Wisconsin on a state charge, where he was later turned over to federal authorities. He argued that venue was proper in Texas (which gives fast-track sentences), not in Wisconsin (which does not).

The Court held that a defendant in this type of case is "found" in every district that he or she enters. The alien "makes himself a form of contraband: the offense occurs wherever he is. and in every district through which he passes." The defendant can be prosecuted in each district where he or she is "found."

The Court put to one side the question of when the statute of limitations begins to run for this offense.

As for the second issue, the Court re-iterated that Mr. Rodriquez had no right to a fast track sentence in the Western District of Wisconsin.