As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely provided an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984).  Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.

Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity).  Here is how the Chaidez majority characterized the law:

A rule is said to be new when it was not “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301 (emphasis in original). . . . Thus, the Court has explained that Teague“validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Saffle v. Parks, 494 U.S. 484, 488 (1990) (quoting Butler v. McKellar, 494 U.S. 407, 414 (1990)). The pertinent inquiry here is whether Padilla’s outcome was “susceptible to debate among reasonable minds.” Butler, 494 U.S. at 415. Put differently, “our task is to determine whether a . . . court considering [Chaidez’s] claim at the time [her] conviction became final”—pre-Padilla—“would have felt compelled by existing precedent to conclude that [Padilla] was required by the Constitution.” Saffle, 494 U.S. at 488.  (7-8)

With the question framed this way, it is hard to disagree with the majority’s bottom-line conclusion.  The fact that the lower courts had been overwhelming lined up against the  Padilla rule seems almost dispositive of the question — under those circumstances, how can one conclude that this was not an issue over which reasonable jurists might have differed?

Writing in dissent, though, Judge Williams argued that the majority’s “reasonable jurists” test did not accurately reflect the governing law:

[T]his narrow conception of the “dictated” language fromTeague is not the relevant inquiry in the Strickland context. “The often repeated language that Teague endorses ‘reasonable, good-faith interpretations’ by state courts is an explanation of policy, not a statement of law.” Williams v. Taylor, 529 U.S. 362, 383 (2000) (plurality) (quoting Butler, 494 U.S. at 414). As the Court has stated, and as the majority today recognizes, “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims,” id. at 391 (opinion of the Court) (emphasis added). “[W]here the starting point is a rule of general application such as Strickland, “it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent,” Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy, J., concurring). (23)

Judge Williams did not see Padilla as one of those “infrequent cases” referred to by Justice Kennedy, but rather as a straightforward application of Strickland:

The analytical mechanism by which the Court applied Strickland does not detract from the fact that Strickland is the general test governing ineffective assistance claims, and that the Padilla Court did no more than recognize that removal is the type of consequence that a defendant needs to be informed of when making the decision of whether to plea.  (24)

The clash between majority and dissent in Chaidez highlights what is so analytically unsatisfactory about the ”new rule” test of Teague.  Because every case presents a fact pattern that is in some respects unique, every holding can in some sense be thought of as articulating a new rule.  But because every case also purports to rely on established legal principles, every case can also be thought of as mere application.  Rather than an either-or question, the “newness” question is really one of degree, and it is not clear how and where to draw a line on the spectrum for purposes of retroactivity.

Given the emerging split in the lower courts, Chaidez might be a good case for Supreme Court review.  And, if the Court does take the case, I hope the Court will use it as an occasion to revisit the wisdom of Teague itself.  I appreciate that Teague was intended to preserve the finality of state judgments by making it harder for state defendants to take advantage of favorable new Supreme Court decisions in federal habeas proceedings.  But, since Teague, Congress has erected a host of new barriers to habeas relief that accomplish the same end, e.g., the one-year statute of limitations for habeas petitions, restrictions on second and successive habeas petitions, and the “clearly established law” requirement of 28 U.S.C. § 2254(d)(1).  Add to that the forfeiture and procedural bar doctrines, which predated Teague, and there is a formidable obstacle course for habeas petitioners to traverse before they are able to take advantage of new Supreme Court decisions.  Teague is an unnecessary overlay that complicates habeas litigation to no good effect.

To make this a little more concrete, Chaidez received the fateful counsel from her lawyer in 2003.  There was nothing that happened between 2003 and 2010, when Padilla was decided, that transformed what might have been good advice into bad advice — her legal representation fell below professional norms in 2003 as much as it would have in 2010.  The question we should be asking is not the unanswerable question of whether Padilla announced a new rule, but the question of whether Chaidez was so prejudiced by the bad counsel she received that she should be given an opportunity to withdraw her guilty plea.

Cross posted at Life Sentences Blog.

By some apparent coincidence, the Eighth and Tenth Circuits last month both addressed the use of uncounseled tribal-court convictions under 18 U.S.C. § 117(a), which makes domestic assault by a habitual offender a federal crime. Both courts approved use of such convictions to satisfy the criminal-history element of the offense.

The Eighth Circuit decision, which actually drew a dissent, seems the more carefully reasoned.

In United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011), the court reviewed Burgett and its progeny, and recognized a basic tension in the caselaw. Some of the Supreme Court decisions focus on the unreliability of uncounseled convictions as the reason why they must not be used against the defendant in later cases. But other (generally more recent) decisions disregard reliability concerns and instead adopt a more formalistic approach: it is because the earlier conviction was unconstitutional that makes its later use improper. Using the older reliability-based approach, any uncounseled conviction should be off-limits. Using the newer constitutionality-based approach, however, uncounseled tribal-court convictions should be fair game.

As the Eighth Circuit noted, the Supreme Court has never satisfactorily addressed the tension in its cases. It is unclear whether the reliability approach has been entirely replaced by the constitutionality approach, or whether both approaches still have a role to play. The Eighth Circuit did not squarely resolve the tension, but ultimately laid great emphasis on the constitutionality approach: “[W]e believe it is necessary to accord substantial weight to the fact that Cavanaugh’s prior convictions involved no actual constitutional violation.” (603-04)

That “substantial weight” proved dispositive in Cavanaugh itself, but the court did leave open the door for a different outcome in future cases in which there were “other allegations of irregularities or claims of actual innocence surrounding the prior convictions.” (605) This suggests there may still be a backdoor by which defendants may press reliability concerns on a case-by-case basis.

By contrast, in United States v. Shavanaux, 2011 WL 3087015 (10th Cir.), the Tenth Circuit adopted a sweeping bright-line rule: “Use of tribal convictions in a subsequent prosecution cannot violate ‘anew’ the Sixth Amendment because the Sixth Amendment was never violated in the first instance.” (*3) In the same spirit, the court also held that “tribal convictions obtained in compliance with the [Indian Civil Rights Act, which has a limited right to counsel] are necessarily compatible with due process of law,” and hence do not violate the Fifth Amendment. (*5) The court did not give any attention to the reliability concerns that so troubled the Eighth Circuit.

However, the Tenth Circuit did raise another issue: comity. The court found “compelling” the concern that “failing to fully recognize convictions from individual tribal courts also risks imposing inappropriately sweeping standards upon diverse tribal governments, institutions and cultures.” (*4) I think the Eighth Circuit was right to dismiss this concern:

Precluding the use of an uncounseled tribal conviction in federal court would in no manner restrict a tribe’s own use of that conviction: it would simply restrict a federal court’s ability to impose additional punishment at a later date in reliance on that earlier conviction.

643 F.3d at 605.

It is not clear whether either court’s decision can be reconciled with an earlier Ninth Circuit decision, United States v. Ant, 882 F.2d 1389 (9th Cir. 1989). The majority in Cavanaugh tried to distinguish Ant, but the dissenting judge found this effort unpersuasive. Meanwhile, Shavanaux squarely rejected the reasoning in Ant.

Both courts also turned aside Equal Protection challenges to the convictions.

Hat tip to Scott Idleman for drawing these cases to my attention.

Cross posted at Life Sentences Blog.

Earlier this week, the Seventh Circuit had another in its increasingly long line of post-Begay decisions holding that this or that specific offense does not fit the new definition of “crime of violence.”  More specifically, in United States v. McDonald (No. 08-2703) (Sykes, J.), the court held that first-degree reckless injury (in violation of Wis. Stat. § 940.23) and second-degree sexual assault of a child (what would be colloquially called “statutory rape,” in violation of Wis. Stat. § 948.02(2)) do not count as crimes of violence. 

To be precise, McDonald dealt with the application of § 2K2.1 of the sentencing guidelines, not the Armed Career Criminal Act.  However, as the court observed, the guideline’s definition of crime of violence is ”materially identifical” to that of the statute, so it seems safe to assume that the holdings of McDonald would also apply to ACCA.

The McDonald holdings seem to flow quite logically from earlier Seventh Circuit cases that, in light of Begay, restrict crimes of violence to crimes with a mens rea of purposefulness.  Interestingly, though, the question of whether statutory rape counts has produced a post-Begay circuit split, with the Second Circuit taking the opposite position from McDonald.  See United States v. Daye, 571 F.3d 225 (2d Cir. 2009).  The Fourth and Ninth Circuits, on the other hand, take the same position that the Seventh has now adopted.  (I wonder how often the Fourth and Ninth Circuits — by reputation the nation’s most conservative and liberal, respectively — are on the same side of a circuit split.  I would think any position agreed to by both of those circuits should be regarded as presumptively correct!)

The district court denied Mann’s motion to suppress the images found on his hard drives.  Mann then pled guilty, but preserved the right to litigate his Fourth Amendment claim on appeal.  In United States v. Mann (No. 08-3041) (Rovner, J.), the Seventh Circuit affirmed.  Although the scope of the warrant was limited by its terms to a search for “images of women in locker rooms or other private areas,” the court held that police did not exceed the scope of the warrant when they collected and viewed Mann’s collection of child pornography. 

Three aspects of the court’s opinion strike me as significant.  First, the court approved the use of forensic software “to index and catalogue [] files into a viewable format,” even if the software has a feature that flags known child pornography files and police do not have a warrant to search for child pornography.  This seems to break with the Ninth Circuit, which recently admonished that ”sophisticated hashing tools . . . that allow the identification of well-known illegal files . . . and similar search tools may not be used without specific authorization in the warrant.”  United States v. Comprehenisve Drug Testing, Inc., 579 F.3d 989, 999 (9th Cir. 2009).  To be sure, the Seventh Circuit did hold that files specifically flagged as known child pornography from Mann’s hard drve should not have been opened without a separate warrant.  However, the police were within the scope of the warrant they had when they opened the other files collected by the forensic software.

Second, the Seventh Circuit also declined to follow the Ninth Circuit’s rejection of the plain view doctrine in connection with searches and seizures of computers.  See Comprehensive Drug Testing, 579 F.3d at 998, 1006.

Finally, the Seventh Circuit interpreted United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), as narrowly limited to its particular facts.  In Carey, the Tenth Circuit held that police searching the defendant’s hard drive for evidence of drug dealing exceeded the scope of their warrant when they opened JPG files containing child pornography.  The Seventh Circuit distinguished Carey in two respects.  First, the warrant in Carey authorized a search solely for “documentary” evidence, whereas the warrant in Mann specifically mentioned “images.”  Second, the officer conducting the search in Carey admitted that he was not looking for evidence of drug dealing when he opened the JPG files, whereas the officer in Mann maintained that his intent throughout the search was to look for the evidence of voyeurism that was the focus of the warrant.  The intent of the officer conducting the search thus seems relevant now in determining whether the search remained within the scope of the warrant.

Although the term “career offender” may conjure up images of a hardened criminal with a rap sheet down to your knees, the guidelines require only two prior felony convictions of either a crime of violence or a controlled substance offense in order to trigger the career-offender sentence enhancement. 

Even at that, Gregory hardly seems the sort of defendant that the Sentencing Commission must have had in mind when it drafted the career-offender guideline.  In particular, one of his two qualifying convictions was a $30 robbery he committed when he was only fifteen (he is now in his mid-20′s) — a robbery for which he was sent, not to prison, but to a juvenile detention facility.  Although it is not clear that the conviction should have counted under the plain terms of the career-offender guideline, the Seventh Circuit nonetheless affirmed his sentence last week in United States v. Gregory (No. 09-2735). 

The relevant guidelines provision (the commentary to § 4A1.2) indicates that an offense committed prior to age eighteen counts against a defendant if it “resulted in [an] adult sentence[] of imprisonment exceeding one year and one month.”  Gregory’s robbery conviction was obtained in adult court, but he actually served the resulting sentence in a juvenile detention facility, not an adult prison.  The question, then, is whether he had an “adult sentence.”  He was sentenced in adult court, but he did not serve his time in an adult facility.  It seems that the language could plausibly be interpreted either way.

Indeed, this question has produced a circuit split, with the Fourth Circuit favoring Gregory’s interpretation of “adult sentence” and the Third, Ninth, and Eleventh favoring the government’s interpretation.

In Gregory, the Seventh Circuit joined the majority position, reasoning as follows:

People serve their sentences in many different places: some are moved to private prisons; some wind up spending time in the facilities of another state or the federal government; some are lodged in county jails.  The location is unimportant.  What does matter is the nature of the underlying conviction.

This approach is certainly a reasonable one, but I wonder why no mention was made of the Rule of Lenity, which seems to me an appropriate way of resolving the ambiguity in the guidelines.  (For a couple of recent posts on the Rule of Lenity in the Supreme Court, see here and here.)

I also wonder why a fifteen-year old was prosecuted in adult court and sentenced to six years of confinement (as Gregory was) for a $30 robbery.  The case may illustrate an important problem with the use of juvenile offenses in order to enhance later federal sentences: the same juvenile offenses can be handled dramatically differently depending on differences in state law and highly discretionary decisions made by prosecutors and judges.  Giving as much weight to juvenile offenses as the guidelines called for in Gregory guarantees dramatic disparities between similarly situated offenders — precisely what the guidelines were intended to prevent.

Finally, I wonder why the distict court judge sentenced Gregory at the very top of a very severe guidelines range — especially when Gregory at most only just barely qualified for a career-offender range.  If anything, this would seem an appropriate scenario for a district judge to exercise his post-Booker discretion to impose a below-range sentence.

Crowder’s appeal raised an issue that has divided other circuits.  The Ninth Circuit prohibits double punishment for attempt and conspiracy under § 846 if both convictions arise from a “single course of action.”  By contrast, the Sixth, Eighth, and Tenth Circuits permit double punishment in these circumstances.

In United States v. Crowder (No. 08-3320) (Kanne, J.), the Seventh Circuit sided with the Sixth, Eighth, and Tenth Circuits, and affirmed Crowder’s conviction and sentence. 

The court’s analysis was brief and focused on administrability concerns with the Ninth Circuit’s test; the court preferred an approach that “does not lend itself to a fact-specific inquiry that inevitably will lead to unnecessary appeals and leave parties and courts ‘without much hope of guidance.’” 

It’s not clear to me, though, why the Ninth Circuit’s test was viewed as so hopeless.  Its application to Crowder’s case, for instance, would seem straightforward enough.  Perhaps there are other cases that would present complicated scope-of-the-conspiracy problems, but this merger issue does not appear to present itself very often — § 846 has been around since 1970, but the issue had apparently only been addressed previously in four circuits.  It’s hard to see a crush of “unnecessary appeals” suddenly arising because one test or another is adopted.

Crowder, though, is consistent with the tendency of the federal courts not to recognize that conspiracy is truly an inchoate offense (just like attempt).  The Model Penal Code has it right: attempt, solicitation, and conspiracy are all simply points along a single inchoate spectrum, and a defendant should not be punished for more than one of these offenses “for conduct designed to commit or culminate in the commission of the same crime.”  MPC § 5.05(3).

By the statute’s literal terms, there can be no doubt that the prosecutor in United States v. Williams (No. 09-1924) failed to comply.  In the § 851 notice he served on Williams, the prosecutor identified only one prior conviction (not the requisite two) and then merely stated, “Further information concerning the defendant’s criminal history can be obtained from the United States Probation Office and specifically the Pretrial Services Report in this matter . . . .”  The Pretrial Services Report, which listed a second drug conviction, was not actually served on the defendant until after trial.  Indeed, it appears that the prosecutor himself had not even received and read the Report before his attempt to incorporate it by reference into the § 851 notice.  This was very sloppy work, and the Seventh Circuit righly chastised both the individual prosecutor and his office (the Northern District of Indiana), which lacked any protocol on how to make § 851 notices.  But sloppiness, even inexcusable sloppiness, is not the same thing as reversible error, and the court (per Judge Posner) affirmed Williams’ life sentence. 

Relying on prior cases, the court characterized the legal standard this way: “[A]s long as the defendant has actual notice of the intended use of a prior conviction to enhance his sentence, the statute has been substantially complied with and that is good enough.”  And Williams could not prevail on this “substantial compliance” test:

[T]he notice says that the government would rely on all “applicable” convictions in the pretrial services report, and it was apparent that the second felony drug conviction was “applicable,” that is, a basis for enhancement.  It was the only other felony drug conviction in the list of 19 dispositions [contained in the report]; . . . a lawyer reading the list would notice that in about fifteen seconds; and if the defendant’s lawyer had had any doubt about which conviction the prosecutor was planning to rely on for an enhancement he could have sought clarification from the prosecutor, and he didn’t — doubtless because it was clear.

Although Williams lost on his § 851 claim, the court made clear that it was not adopting a rule that any attempt at notice would always be sufficient:

We can imagine a notice and a list of convictions that were so confusing that the defendant and his lawyer could not be expected to pick out the one or ones that the government might try to use to enhance the defendant’s sentence. . . .

The government takes a risk by sloppy compliance . . . : the risk that either the court will hold that the government failed to provide the defendant with adequate notice or that the defendant will have a claim that by failing to interpret a confusing notice correctly his lawyer rendered ineffective assistance of counsel.

Interestingly, the Eleventh Circuit seems to be taking a very different view of § 851 compliance.  For instance, United States v. Bowden, No. 08-11935, 2009 WL 32755 (11th Cir. Jan. 7, 2009), apparently employs a strict compliance standard and holds that a failure to meet the standard deprives the sentencing court of jurisdiction to impose the mandatory life sentence.  Williams reports that the Solicitor General recently filed a petition for certiorari in Bowden, so the § 851 issue may be in the news again soon.

But now the court has significantly limited the significance of Head in United States v. Anderson (No. 09-1958). 

For conditions of supervised release, 18 U.S.C. § 3583 (in its pre-2008 form) authorized a sentencing court to select just about any of the permissible conditions of probation (except assignment to a halfway house) and “any other condition it considers to be appropriate.”  In Anderson, the Seventh Circuit (per Judge Wood) held that this latter language, the “catch-all provision,” permits assignment to a halfway house.  In Head, the court had rejected this reading of the catch-all provision, reasoning that the inclusion of the halfway-house condition in the probation statute and the lack of specific authorization for the condition in the supervised release statute decided the question; a general catch-all provision could not overcome the negative implication created by the statute’s failure to authorize the condition expressly. 

Anderson downplayed this aspect of Head:

Head indicated in a footnote that the catch-all provision did not recapture the power to impose the halfway-house condition . . . . This theory, however, had not been pressed by the Government . . . .

In effect, Anderson seems to treat Head’s analysis of the catch-all provision as mere dicta and adopts a quite different interpretation: the “any other condition” language means what it says, “confer[ring] broad discretion on the district courts to fashion appropriate conditions of release that compl[y] with the broad goals of sentencing.”  Thus, it turns out (per Anderson) that Head only held that the halfway-house condition was not expressly authorized by the supervised-release statute; Head did not really decide whether the condition was prohibited.  Anderson now tells us that the condition is not prohibited.

Anderson‘s interpretation of Head strikes me as rather strained.  But the Anderson panel circulated its opinion to the full court, and not one judge voted to hear the case en banc.  It seems odd that the court has so thoroughly undermined such a recent decision as Head, which is only nine months old, without a single voice raised in protest.  I suppose this is a rather arcane aspect of sentencing law, and perhaps no one really cares.  Or perhaps something in the new cases convinced the judges that Head had sacrificed too much by way of sound corrections policy in the name of textualist purity.  Perhaps the overwhelming weight of contrary precedent in the other circuits also contributed to the judges’ discomfort with Head.

But the intermediate federal appellate courts have been slow to follow Booker to its logical conclusion — which is why Kimbrough was necessary in the first place.  Even after Kimbrough, several circuits, including the Seventh, have maintained that policy choices contained in § 4B1.1, the career offender guideline, remain binding on district court judges.  This is particularly important, and unfortunate, to the extent that § 4B1.1 contains the infamous 100:1 disparity in the treatment of crack and powder forms of cocaine.  That is a policy choice that district court judges ought to reject, and many doubtlessly would reject, if they were free to do so.

Last year, in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), a panel of the Seventh Circuit suggested that the court might be willing to reconsider its precedent on § 4B1.1.  But then Friday’s decision in United States v. Welton (No. 08-3799) slammed the door shut. 

Writing for the Welton panel, Judge Bauer expressly disavowed Liddell “to the extent that Liddell is inconsistent with [earlier holdings] that a district court may not rely on the 100:1 crack/powder disparity embedded in  § 4B1.1 as a basis for imposing a non-Guidelines sentence.”  Moreover, because of the avowed overruling of Liddell, Welton was circulated to the entire court, and only three judges voted to rehear the case en banc.  (On behalf of these three dissenters, Judge Williams wrote what seems to me a quite persuasive opinion in Welton arguing the basic “advisory means advisory” point.)

The majority’s position seems to boil down to this: the Sentencing Commission did not come up with § 4B1.1 on its own, but instead followed a directive contained in 28 U.S.C. § 994(h) that the guidelines “specify a sentence to a term of imprisonment at or near the [statutory] maximum” for career offenders.  The court thus sees  § 4B1.1 as embodying a congressional policy choice, which is binding on district judges because it is not merely a Commission policy choice.

There is no question that Congress could write a statute requiring district judges to sentence career offenders “at or near the statutory maximum.”  But Congress has not written such a statute.  By its terms, § 994(h) is a directive to the Sentencing Commission, not district judges.  And, if there is anything we have learned from Justice Scalia and his New Textualism, it is that Congress’s mere “policy choices” are not binding on anyone; it is only through the written law, as contained in statutes enacted through constitutionally mandated procedures, that Congress can make binding policy decisions. 

Instead of issuing a directive on career offenders to district judges, Congress chose to issue its directive to the Sentencing Commission, recognizing that its policy choice regarding career offenders would be embedded within, and necessarily qualified in all sorts of uncertain ways, by a larger structure of sentencing guidelines.  Rather than pass a stand-alone mandatory minimum statute, Congress evidently believed that it was best for the specifics of career-offender sentencing to be worked out in a way that cohered with the rest of the federal sentencing system.  Post-Booker, such coherence means that the career offender guideline should be treated as no less advisory than any other guideline.

Moreover, treating § 994(h) as binding on judges risks reversing Booker by the back door.  Section 994(h) is not the only congressional directive to the Sentencing Commission; the whole of § 994 is chock full of them.  Indeed, very nearly all of the guidelines could be fairly characterized as embodying one congressional policy choice or another.  (There is, in fact, an interesting debate in the scholarly literature over whether the worst features of the federal guidelines are due more to Congress’s or the Commission’s policy choices.)  Once we start saying that congressional policy choices embodied in the guidelines are binding, it is not clear where a principled line is to be drawn to save Booker.

In fact, the whole point of Booker is that Congress does not get to have its way when it comes to sentencing guidelines.  The Sixth Amendment trumps congressional preferences.  And the Sixth Amendment prohibits courts from treating the policies contained in sentencing guidelines as binding in the absence of jury fact-finding.

Judge Williams concluded her dissent with a call for the Supreme Court to address the § 4B1.1 problem in light of the disagreement it has sparked within the lower courts.  I heartily agree.

In the meantime, I take solace in the fact that there remains some interest and ability on the part of the Seventh Circuit to impose other sorts of limits on the mandatory application of the § 4B1.1 100:1 ratio, as evidence by the court’s recent decision in United States v. Knox, which held that the ratio is not binding on defendants convicted merely of conspiracy to commit a crack offense.  (My post on Knox is here.)

When a person is caught in a lie, we normally assume that he is covering something up.  But, if a defendant in a criminal case lies on the witness stand, is it fair to assume that he actually did what he was accused of doing?  Such was the question in United States v. Edwards (No. 08-1124).

Edwards was arrested after making arrangments to sell crack to a government informant.  The intended sale did not actually take place, but that is no barrier to conviction for drug trafficking.  And, once convicted, a drug dealer becomes responsible under the federal sentencing guidelines for the entire quantity of drugs he has ever sold that counts as “relevant conduct.”  (For an earlier post on the pitfalls of relevant conduct, see here.)  In order to establish the amount that Edwards sold, the sentencing judge relied on, among other things, $765 in cash that Edwards was carrying at the time of his arrest.  Edwards tried to explain away the cash with an unsubstantiated and seemingly implausible story about selling his minivan, but the judge was not convinced.  If the minivan story was fabricated, then Edwards must have earned the money from selling crack, right?  The sentencing judge concluded as much, and increased Edwards’ drug quantity accordingly.

On appeal, however, the Seventh Circuit held that the judge moved to this conclusion too quickly.   Judge Posner, writing for the panel, sensibly observed,

The falsity of the defendant’s testimony makes reasonably clear that the $765 was proceeds of an illegal transaction of some sort, but does not show that it was proceeds from selling crack.  For all one knows, the defendant sold other illegal drugs (he had been convicted in the past of possession of marijuana) or other contraband, such as guns, but did not want to acknowledge other illegal behavior, which he might have thought would get him into even worse trouble than he was in.

In light of these possibilities, it appeared that too much crack might have been attributed to Edwards when his guidelines sentence was calculated.  The Seventh Circuit thus vacated Edwards’ sentence and remanded for resentencing.

It is true that Edwards’ false testimony does not logically require an inference that the $765 came from crack sales, but it is still surprising to see the Seventh Circuit not permit the inference.  After all, what was at issue was a district court’s finding of fact, to which appellate courts are supposed to show some deference.  Indeed, the First Circuit upheld a district court’s decision on similar facts in United States v. Jackson, 3 F.3d 506 (1st Cir. 1993).  However, the Seventh Circuit felt that Jackson was inconsistent with other cases that reject “the automatic inference from disbelief in one part of a witness’s testimony to disbelief in the rest.”

Although the Seventh Circuit may not have shown its typical deference to district-court fact-finding in Edwards, the lower court’s piling on of relevant conduct is a reminder of why the drug sentencing guidelines have provoked so much criticism.  Quantity tends to overwhelm other considerations in drug sentencing, and the determination of quantity under the guidelines makes no distinction between what was proven to a jury beyond a reasonable doubt and what was proven to a judge by a preponderance of the evidence.  The diminished burden of proof under the guidelines invites dramatic increases in punishment on the basis of the sort of flimsy inferences used in Edwards.  This is especially troubling when the defendant is being sentenced under the crack guideline, which is widely recognized to be unjustifiably harsh.

In United States v. L.E. Myers Co. (No. 07-2464), the defendant corporation was convicted of criminal OSHA violations in connection with the electrocution death of one its employees.  The Seventh Circuit (per Judge Sykes) reversed and remanded for a new trial in light of erroneous jury instructions.  The errors related to mens rea issues.  Myers was convicted under a statute that bases liability on the knowing creation of a hazardous condition in knowing violation of an OSHA requirement. 

The problem is that a corporation, as a legal construct, cannot really know anything; the only way a corporation knows something is to the extent the law is willing to impute the knowledge of particular employees to the corporation.  Seventh Circuit precedent indicated that “corporations ‘know’ what their employees who are responsible for an aspect of the business know.”  More specifically, the corporation was said to know what an employee knows if the employee has a duty to report that knowledge to someone higher up in the corporation.

In light of this precedent, the Seventh Circuit determined that the knowledge instruction in Myers was too broad.  The instruction permitted the jury to convict based on any knowledge obtained by any employee within the scope of his or her employment, regardless of whether there was a duty to report the knowledge up the corporate ladder.

The trial court also erroenously gave an ”ostrich” instruction.  Such an instruction permits conviction where a defendant has “affirmatively avoided” obtaining information that would otherwise provide a basis for liability.  The Seventh Circuit determined that the instruction should not have been given because there was no evidence that Myers affirmatively acted to avoid learning the truth: “there is evidence of deliberate indifference to the facts, but there is no evidence of deliberate avoidance, and the latter is required for the ostrich instruction.”

In United States v. Ozuna (No. 07-2480), the defendant was convicted of drug trafficking based on the discovery of cocaine in his truck by DEA agents.  Ozuna argued that the search of his truck violated the Fourth Amendment.  At a suppression hearing, the government relied on a written consent to the search that was allegedly signed by Ozuna.  The defendant, however, denied the signature was his, and the district court initially granted his motion to suppress.  Following this decision, the government requested reconsideration based on a new handwriting analysis of the signature.  At a second suppression hearing, handwriting experts testified for both the government and the defense, and the court ultimately reversed its earlier suppression ruling.  On appeal, Ozuna argued that the government should not have been given a second hearing and that the court should have performed a Daubert analysis regarding scientific reliability before admitting the testimony of the government’s handwriting expert.

The Seventh Circuit (per Judge Kanne) affirmed.  The court acknowledged that at least three other circuits impose special requirements for the government to justify a second hearing on suppression.  (Such a standard would have been hard for the government to satisfy in Ozuna, as there was no apparent reason why the government could not have performed a handwriting analysis before the first suppression hearing.)  The Seventh Circuit, however, joined two other circuits that leave the matter more squarely within the discretion of the trial court.

Turning to the Daubert question, the Seventh Circuit held that the court need not conduct a special analysis of the reliability of scientific evidence in the context of a suppression hearing.  Daubert was intended to keep junk science from being presented to juries, but there is no jury at a suppression hearing.  It makes little sense to require a judge to act as a gatekeeper with respect to evidence that will be presented only to that judge.

In United States v. Huffstatler (No. 08-2622), the defendant was convicted of producing child pornography and given a sentence above that called for by the federal sentencing guidelines.  He appealed the sentence, arguing that the child pornography guidelines should not be followed because they were not the product of empirical research by the Sentencing Commission.  Although the child pornography guidelines do indeed reflect politics more than research (a topic covered in the most recent issue of the Federal Sentencing Reporter), and although sentencing judges are authorized to take such considerations into account under Kimbrough v. United States, 128 S. Ct. 558 (2007), Huffstatler’s argument was an odd one.  After all, the judge in his case did not follow the guidelines.  Huffstatler thus seemed to be advancing the facially dubious claim the because the child pornography guidelines are poorly designed, child pornography defendants must always get a sentence below the guidelines level.  Not surprisingly, the Seventh Circuit rejected this argument in a short per curiam opinion.

With uncertainty still surrounding whether sentencing judges may issue Kimbrough variances in child pornography cases, I imagine that many Seventh Circuit defense lawyers were concerned about Huffstatler presenting a challenge to the child pornography guidelines in such an unfavorable procedural and factual context.  In rejecting the proposition that the sentencing judge must vary downward in child pornography cases, the Seventh Circuit might have (intentionally or unintentionally) said things that would discourage sentencing judges from using their Kimbrough discretion in such cases.  It appears, however, that the Seventh Circuit was careful not to send such signals: “Even assuming that district courts may exercise their discretion based solely on policy disagreements with the child-exploitation guidelines (an issue we need not decide here), Huffstatler’s argument is without merit” (emphasis added). 

Indeed, there is even some language in the opinion that is helpful to defendants:

Huffstatler correctly submits that the child-pornography sentencing guidelines, U.S.S.G. §§ 2G2.1-.2, like the drug guidelines at issue in Kimbrough v. United States, 128 S. Ct. 558 (2007), are atypical in that they were not based on the Sentencing Commission’s nationwide empirical study of criminal sentencing.

Finally, in United States v. Kingcade (No. 08-2447), the Seventh Circuit considered whether the defendant properly preserved his Fourth Amendment issue for appeal notwithstanding his guilty plea.  Federal Rule of Criminal Procedure 11 permits defendants to enter conditional guilty pleas that preserve the ability to appeal particular rulings by the trial court.  Such a conditional plea must include a written agreement between the defendant and the government stating which issues are preserved.  Kingcade’s problem was that he and his attorney made several pretrial suppression motions, and the conditional plea agreement referenced a different set of pretrial rulings than the ones Kingcade actually pursued on appeal.  The Seventh Circuit (per Judge Kanne) cut him no slack.  The court relied on principles of contract law to determine the scope of the conditional plea agreement.  Because the court found no ambiguity in the language of the agreement, the court was unwilling to consider extrinsic evidence of any different intent than that which was expressed in the agreement.