Articles Posted in U.S. Court of Appeals for the Sixth Circuit

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Baker pled guilty to participating in a drug trafficking conspiracy. Baker had a criminal history category of IV; the plea agreement stipulated that 100-200 grams of cocaine be attributed to Baker and that his total offense level be set at 12, resulting in an agreed Guidelines range of 21-27 months’ imprisonment. The government explained that it could not prove an amount in excess of 172 grams of cocaine attributable to Baker, but the court was unconvinced and reviewed Baker’s confidential proffer statement, developed after Baker agreed to provide information about the conspiracy. The court found Baker responsible for 500 grams to two kilograms of cocaine, significantly increasing Baker’s offense level. The court acknowledged that it could not use information found only in Baker’s confidential proffer statement to determine the applicable Guidelines range, but based its finding on a post-arrest recorded phone call in which Baker stated that officers missed “twelve-five” when they searched his home; a codefendant’s proffer statement that Baker was given a “large” amount of cocaine; and a codefendant’s proffer that discussed drug transactions but did not specify any amount. The court determined that the appropriate range was 51-63 months’ imprisonment and sentenced Baker to 50 months. The Sixth Circuit affirmed, acknowledging that the court’s methodology “raises concerns,” but finding the sentence neither procedurally nor substantively unreasonable. View "United States v. Baker" on Justia Law

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In 2014, Defendant was arrested on an outstanding warrant. Pursuant to a search incident to arrest, police found on Defendant’s person 17 rounds of ammunition. Defendant pleaded guilty as a felon in possession of ammunition, 18 U.S.C. 922(g)(1), without a plea agreement. The probation office classified Defendant as an armed career criminal under 18 U.S.C. 924(e), due to Defendant’s two prior robbery convictions and one prior attempted-aggravated-robbery conviction. The designation enhanced Defendant’s sentencing range to 15 years to life imprisonment. At sentencing, Defendant’s only objection was that his convictions for robbery and attempted aggravated robbery on May 24, 2000, should be considered a single event under ACCA.. Each indictment listed a distinct business as the victim; the corresponding judgment cross-referenced the relevant indictment. The district court found that, despite possibly being connected by one conspiratorial agreement, the two robberies were “legally and factually distinct,” and therefore were “properly considered separate offenses,” but granted the government’s motion to reduce Defendant’s sentence (U.S.S.G. 5K1.1 and 18 U.S.C. 3553(e), and sentenced Defendant to 110 months’ imprisonment. The Sixth Circuit affirmed, noting that Defendant admitted under oath that he and his partner “planned to hit two stores.” View "United States v. Southers" on Justia Law

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Andrews was charged with conspiring to possess cocaine with intent to distribute, 21 U.S.C. 841(b)(1)(A) and 846; conspiracy to interfere with commerce by robbery and threats of physical violence, 18 U.S.C. 1951; aiding and abetting the possession of firearms in furtherance of a drug-trafficking crime, 18 U.S.C. 924(c)(1)(A); and being a felon in possession of a firearm, 18 U.S.C. 922(g). Andrews moved to dismiss, claiming outrageous government conduct. He argued that he was recruited to participate in an “all-too-easy stash-house robbery” by undercover ATF agents, who engineered and directed the scheme. The court denied the motion, crediting an agent’s testimony that a defendant first approached a confidential informant to find “drug dealers he could take down” and that ATF had provided multiple opportunities to withdraw. The court made clear that it was not deciding the strength of an entrapment defense. The court “preliminarily” accepted his conditional guilty plea, pending preparation of a presentencing report. Andrews later moved to withdraw his plea as a matter of absolute right under Rule 11(d)(1). The court denied the motion, reiterated that Andrews had made an informed, voluntary, and valid guilty plea, and sentenced Andrews to 180 months, pursuant to the agreement. The Guidelines range was 200-235 months. The Sixth Circuit reversed, noting that the district court had expressly not accepted the plea. View "United States v. Andrews" on Justia Law

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Statute is not unconstitutionally vague for providing a stiffer penalty for receipt than for possession of child pornography A Kentucky Detective used Nordic Mule, a law enforcement software package, to search for IP addresses that had recently shared child pornography on the peer-to-peer file-sharing network eDonkey, then obtained a search warrant for Dunning’s residence, where police seized electronic devices, containing over 22,000 images and videos depicting the sexual exploitation of minors. Dunning moved for discovery, seeking the source code for the software that the detective relied on for the warrant. The government responded: The program … is part of the Child Rescue Coalition, which is a private non-profit organization. The source code and program are proprietary and are not in the possession of the United States. The court denied Dunning’s discovery motion and his motion to suppress evidence, which argued that the warrant application was not supported by probable cause because the detective used software of uncertain reliability and that he had a reasonable expectation of privacy in his computer files. Dunning then pled guilty under 18 U.S.C. 2252(a)(2) and was sentenced to 165 months’ imprisonment. The Sixth Circuit affirmed, rejecting arguments that the statute is unconstitutionally vague and that his sentence was unreasonable, and upholding denial of his motions. View "United States v. Dunning" on Justia Law

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Sixth Circuit upholds allowing jury questions in online extortion case. Using the pseudonym “Dr. Evil,” an extortionist demanded $1 million in Bitcoin in exchange for an encryption key to Mitt Romney’s unreleased tax returns, which he claimed to have stolen from an accounting firm. He posted an image of Mike Myers’s Dr. Evil, from an Austin Powers movie, in the accounting firm’s Franklin, Tennessee office lobby. Agents traced the scheme to Brown, who had not actually stolen Romney’s returns. With 12 convictions for wire fraud and extortion, Brown was given a four-year prison sentence, and ordered to pay restitution. The Sixth Circuit affirmed his conviction, rejecting arguments that the search warrant lacked probable cause and that Brown was prejudiced by the judge allowing questions from the jury. The affidavit offered “a fair probability” that Brown’s home would contain evidence of the crime. Understanding the evidence required the jury to grasp the Secret Service’s forensic analysis of thumb drives, online posts, and Brown’s computers, Bitcoin, fingerprint matching, and digital photo manipulation-- enough complexity for a court to believe that permitting questions might aid jurors. The court vacated the sentence. Brown’s statements to prosecutors did not significantly impede the investigation, to justify the obstruction of justice enhancement. View "United States v. Brown" on Justia Law

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Griffin pleaded guilty to conspiring to defraud the government by submitting false income tax refund claims to obtain refund anticipation checks. Griffin agreed, in writing, that the maximum penalty was up to 10 years’ imprisonment, that the court could vary from the guidelines range, and that he waived his right to appeal except any punishment in excess of the statutory maximum or the sentencing guidelines range. The government agreed that Griffin’s total offense level was 10 before acceptance of responsibility and to recommend a reduction for acceptance of responsibility. The court denied an adjustment for acceptance of responsibility and increased the base offense level by two for obstruction of justice. As a result, the sentencing range was 10-16 months, rather than zero-six months. After remand, the court sentenced Griffin to 10 months, finding that Griffin had obstructed justice by providing materially false information to the judge and to law enforcement officers: Griffin misrepresented that the personal information used to prepare the fraudulent tax returns had been supplied by an accountant, when, in fact, Griffin provided the information to the accountant. Griffin misrepresented that he only cashed checks and had never sent anyone’s personal information to another. The Sixth Circuit dismissed an appeal as barred by the waiver, rejecting Griffin’s argument that his sentence was not within the guidelines range. View "United States v. Griffin" on Justia Law

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Myers, born in 1958, has used 105 other names, 11 other dates of birth, and 11 other social security numbers to devote his life to stealing. His criminal record began at age 12, when he was charged with shoplifting. He eventually became a serial thief of motor homes, stealing at least eight and selling them to unsuspecting dealers using clone titles. A jury convicted him of multiple counts of interstate transportation of stolen vehicles, money laundering, and related conspiracies, and he was sentenced to 360 months’ imprisonment. The Sixth Circuit affirmed, rejecting claims of multiplicitous charging, improper denial of self-representation, erroneous sentencing, and that the district in which he stole the motor homes was not the proper venue for his money-laundering convictions, because he sold the homes outside of that district. Proper venue lay in the trial district under the plain text of the money-laundering statute because Myers was properly charged with his interstate thefts in the district and because Myers participated in removing the theft’s proceeds out of the district. Venue was constitutionally permissible because Myers partially committed concealment money laundering in the trial district by there obtaining possession of the theft’s unlawful proceeds, which he would launder elsewhere. View "United States v. Myers" on Justia Law

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Ohio’s execution protocol allows for lethal injection using a three-drug combination of midazolam; either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and potassium chloride, which stops the heart. The midazolam is intended to ensure that the person being executed is insensate to the pain that the other drugs cause. If midazolam does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. The district court granted a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes three men. The Sixth Circuit affirmed. The ultimate question is whether use of midazolam “entails a substantial risk of severe pain” as compared to “a known and available alternative.” Plaintiffs demonstrated a likelihood of success on the merits of that claim. The public has an interest in sentences being carried out, but also also has an interest in ensuring that those sentences are carried out in a constitutional manner. The court cited estoppel, noting that Ohio represented that it was not going to use pancuronium bromide or potassium bromide “going forward,” and that there was “no possibility” it would revert to using those drugs and subsequently acted inconsistently with those representations. View "In re: Ohio Execution Protocol" on Justia Law

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Convicted as a felon in possession of a firearm, Harris was sentenced to 300 months’ imprisonment under the Armed Career Criminal Act’s residual clause. After the Supreme Court invalidated the residual clause, Harris received a new sentence of 115 months—the top of a range set in part by the district court’s determination that Harris’s two prior convictions for Michigan felonious assault were crimes of violence under the Guidelines. The Sixth Circuit affirmed, rejecting Harris’s argument that Michigan felonious assault does not categorically involve the “use, attempted use, or threatened use of physical force,” as required by the “elements clause,” U.S.S.G. 4B1.2(a). Michigan’s felonious assault statute obliges a jury to find at least attempted or threatened offensive touching and use of a dangerous weapon; those two elements together add up to violent force. The categorical approach does not require that each element of an offense involve use of force; it requires that the offense overall include use of violent force. View "United States v. Harris" on Justia Law

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Akron police stopped Patterson for a traffic violation. They noticed an open container of alcohol and found a pistol in the driver’s door. Patterson stated that he had bought the gun on “the street.” Police learned that it had been stolen. Patterson pleaded guilty in September 2014 to receiving stolen property and to driving under suspension under state law. In August 2014, a federal grand jury indicted Patterson as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). Patterson had pleaded guilty in 2001 to two counts of aggravated robbery and aggravated robbery with a firearm specification, arising from armed robberies at three different businesses. The district court rejected Patterson’s motion to dismiss the federal charge on double jeopardy grounds, but declined to treat his robbery convictions as violent felonies under the Armed Career Criminal Act. The presentence report calculated Patterson’s base offense level as if aggravated robbery with a deadly weapon qualified as a crime of violence under U.S.S.G. 4B1.2(a); because the three convictions counted as a single sentence, only one of the convictions impacted Patterson’s base offense level. The Sixth Circuit affirmed denial of the motion to dismiss, but remanded for resentencing. Patterson’s prior convictions meet the requirements of the Sentencing Guidelines and the Armed Career Criminal Act. View "United States v. Patterson" on Justia Law