Articles Posted in US Court of Appeals for the Sixth Circuit

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In operating his companies, Rankin failed to remit to the IRS employees’ withholding taxes and inaccurately reported his own earnings as royalties (26 U.S.C. 7202, 7206, 7212). Rankin interfered with and delayed IRS investigations, filing amended returns containing false information and falsely claiming that fire had destroyed his records. Rankin bragged about his efforts to beat the IRS at its own game. He was convicted of 17 tax-related counts, sentenced to 60 months in prison, and required to pay restitution. The Sixth Circuit affirmed his conviction and sentence, modifying his judgment to reflect that he need not pay restitution until his term of supervised release commences. The court rejected a challenge to Count 17, which alleged that during the relevant time, Rankin had “willfully misl[ed] agents of the IRS by making false and misleading statements to those agents and by concealing information sought by those agents who he well knew were attempting to ascertain income, expenses and taxes for [Rankin] and his various business entities and interests.” The indictment contains the elements of the charged offense and does more than merely track the language of the statute. It alleges a nexus between Rankin’s misleading conduct and the agents’ attempts “to ascertain [his] income, expenses and taxes,” an investigation that went beyond the “routine, day-to-day work carried out in the ordinary course by the IRS.” The indictment reflects that the investigation was pending and that Rankin was aware of it. View "United States v. Rankin" on Justia Law

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In 2009, Brumbach was arrested for pointing a gun at a man and was charged as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). He pleaded guilty and agreed that because he had at least three previous convictions for violent felonies and possessed a gun, he qualified as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1). The PSR explained that Brumbach had 12 prior convictions for aggravated burglary under Tennessee law. The court imposed the mandatory minimum sentence of 180 months’ imprisonment. After the Supreme Court struck down ACCA's residual clause in "Johnson" (2015), Brumbach filed a 28 U.S.C. 2255 motion to vacate or correct his sentence, arguing that his convictions for aggravated burglary could no longer count as violent felonies under the ACCA. In another case, Stitt, the Sixth Circuit held that a conviction under Tennessee’s aggravated burglary statute did not constitute a violent felony under the ACCA. The district court granted Brumbach’s habeas petition and imposed a new sentence of time served, which equated to 105 months in prison. In December 2018, the Supreme Court reversed Stitt, finding that the language of the Tennessee statute falls within the scope of generic burglary’s definition. The Sixth Circuit then reversed the grant of habeas relief and reinstated Brumbach’s original sentence. View "United States v. Brumbach" on Justia Law

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The Sixth Circuit affirmed the district court's denial of federal habeas relief to petitioner, who argued that he was entitled to a resentencing hearing, essentially because the guidelines were considered mandatory at the time of his hearing, even though not at the time that his sentence became final. The court held that declining to conduct such a new hearing in this case was not contrary to, nor did it involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Furthermore, there was no constitutional error in the substance of the sentencing court's decision. View "Magnum Reign v. Gidley" on Justia Law

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Lopez was charged with possessing a firearm as an alien “illegally or unlawfully in the United States,” 18 U.S.C. 922(g)(5)(A). The district court thought that section 922(g)(5)(A) as applied to Lopez was unconstitutionally vague in light of administrative guidance from the Department of Homeland Security, giving “prosecutorial discretion” as to certain (DACA) aliens who had entered this country without authorization as children. Lopez, along with his family, entered the U.S. without authorization when he was four years old and had obtained deferred action under DACA in 2017. Lopez was arrested for DUI and officers found a 9mm pistol and a 12-gauge shotgun in his vehicle. The Sixth Circuit reversed, rejecting his argument that once he was granted relief under DACA, Lopez was “lawfully present” in the United States. The Secretary’s grant of deferred action under DACA, therefore, did not, and could not, change Lopez’s status as an alien “illegally or unlawfully in the United States” for purposes of section 922(g)(5)(A). That relief represented only the Secretary’s decision temporarily not to prosecute him for that status. View "United States v. Lopez" on Justia Law

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Brice, who had been purchasing heroin from defendant “[o]ff and on, for maybe a year and a half,” suffered from hypertension and a mild arrhythmia, tested positive for hepatitis C, and had been an opioid addict for years. In the drug sale in question, Brice purchased half a gram of what he believed to be heroin; it was actually fentanyl. Brice injected approximately a quarter of that half gram intravenously, had a stroke, and entered a coma. He survived with a subarachnoid hemorrhage, anoxic brain injury, liver failure, kidney failure, and heart failure. He recovered his day-to-day functioning after six months of intensive therapy. Defendant pleaded guilty to distributing fentanyl, 21 U.S.C. 841(a)(1). Defendant’s presentence report acknowledged that the district court could increase his sentence above the authorized range based upon USSG 5K2.2, which authorizes departures when “significant physical injury result[s]” from the crime. He objected because the victim had an “extensive and serious history of pre-existing medical conditions." Feola, a doctor of pharmacy, testified that it was possible Brice’s pre-existing health status affected his likelihood of experiencing a drug overdose and that it was possible that his condition could have increased the likelihood of overdose symptoms. The district court increased the defendant’s offense level by six points, which increased his Guidelines range to 51-63 months and sentenced him to 51 months. The Sixth Circuit affirmed, rejecting an argument that the district court failed to consider Brice’s “own choices.” View "United States v. Gillispie" on Justia Law

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Ragland pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g). His PSR calculated Ragland’s base offense level as 22, based in part on Ragland’s prior conviction for unarmed robbery, a "crime of violence." It applied a four-level enhancement, USSG 2K2.1(b)(4)(B), because the pistol with which Ragland was arrested had an “altered or obliterated serial number.” The gun had been reported stolen and had been used in two shootings, including one the day before Ragland was arrested. Ragland’s Guidelines range was 121-151 months of imprisonment, although the statutory maximum was 120 months. Ragland did not object to his base offense level or the enhancement but objected to a recommendation that the court not grant a reduction for acceptance of responsibility. The district court gave him full acceptance-of-responsibility credit, reducing his Guidelines range to 87-108 months. The court considered the 18 U.S.C. 3553(a) factors and decided that an upward variance to the statutory maximum—120 months—was appropriate because the circumstances of Ragland’s arrest and his prior record indicated that Ragland was a “significant risk to the public and a significant risk to re-offend.” Ragland did not object. The Sixth Circuit affirmed the sentence. The Michigan offense of unarmed robbery constituted a “crime of violence” under USSG 2K2.1(a)(3); the court did not commit plain error in applying the enhancement for an altered or obliterated serial number on a firearm. View "United States v. Fuller-Ragland" on Justia Law

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The Short North Posse gang of Columbus, Ohio (an affiliate of the national Crips gang) conducted brutal home-invasion style robberies and planned and executed the murder of rivals, high-value targets, and cooperating witnesses to support its drug operation. After two months of trial, Ledbetter, Ussury, Liston, and Harris were convicted of RICO conspiracy, 18 U.S.C. 1962(d) for their membership in the Posse enterprise. Those four, plus Robinson, were convicted of various murders in aid of racketeering, 18 U.S.C. 1959, and other similar crimes; all received at least one life sentence. The Sixth Circuit vacated Ussury’s conviction for the murder of Hill in aid of racketeering, finding insufficient evidence that Ussury acted with the necessary statutory purpose The court vacated Harris’s and Robinson’s convictions for murder by firearm during a crime of violence in light of the Supreme Court’s 2019 “Davis” decision, that 18 U.S.C. 924(c)(3)(B)’s residual clause is unconstitutionally vague. The court rejected other claims, including insufficiency of the evidence, ineffective assistance of counsel, improper jury instructions, and improper testimony. View "United States v. Liston" on Justia Law

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Sulik pleaded guilty to cyberstalking, 18 U.S.C. 2261A(2), after he sent threatening emails to a member of Congress. The threats followed the representative calling General John Kelly, then White House Chief of Staff, a “disgrace to the uniform he used to wear” and included statements: “You put your family at risk,” “Marines are loyal to their Generals, not low life parasite politicians like you,” and “What are you going to do before I erase you?” The district court concluded that his crime was motivated by the victim’s status as a government officer, triggering a six-level enhancement under USSG 3A1.2. Sulik was sentenced to 48 months in prison. Without the enhancement, Sulik’s range would have been 24-30 months. The Sixth Circuit affirmed. The “official victim” enhancement applies if the victim is a current or former “government officer or employee,” or an immediate family member, and “the offense of conviction was motivated by such status.” A defendant’s knowledge of the victim’s official status alone cannot trigger the enhancement. The comment that triggered Sulik’s threats was a public response to the debate about a matter of great political significance: immigration policy. In at least one email, Sulik referenced the Representative’s official status; the threats were sent “to a campaign email, not a personal address.” While the evidence was “barely sufficient” to support the application of the enhancement, there was no clear error. View "United States v. Sulik" on Justia Law

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Berkshire has a long history of mental health issues. Berkshire was incarcerated, 2001-2014, for second-degree home invasion. He began to improve while he was in the Macomb Correctional Facility's Residential Treatment Program (RTP). Berkshire was a Housing Unit Representative on a “Warden’s Forum.” After Berkshire brought complaints, Dr. Dahl unilaterally raised Berkshire’s Global Assessment Functioning score so that Berkshire was ineligible for RTP. Berkshire claims the move was retaliation. Once discharged from RTP, Berkshire deteriorated. Berkshire’s care was overseen by Beauvais, the unit chief of the outpatient mental-health program; Sermo, a psychologist with that program; and Dr. Pozios, a private doctor working for the government. Berkshire had homicidal thoughts and engaged in self-injury. Eventually, Berkshire attempted suicide; Beauvais and Sermo transferred Berkshire to a Crisis Stabilization Program, stating that they “could not transfer [Berkshire] to Mars.” Berkshire claims that the three exhibited deliberate indifference to Berkshire’s serious medical needs. After Berkshire attempted suicide, he was restrained. When Berkshire requested a bathroom break. Sergeant Nelson told Berkshire to “hold it” and that he was going to “stay just like that until [his] mental illness goes away.” Sergeant Nelson never returned, leaving Berkshire to lie in his own urine and feces for several hours. In Berkshire’s suit under 42 U.S.C. 1983, the Sixth Circuit affirmed the denial of qualified immunity to all the defendants. Berkshire produced sufficient evidence to show violations of clearly established constitutional rights. View "Berkshire v. Dahl" on Justia Law

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Officers, attempting to serve a civil levy on Watson, knocked on the door of Watson’s presumed residence until Watson came outside. Watson said that the house belonged to his girlfriend, who was inside, and that he did not live there. Watson actually rented the house with his girlfriend. Watson said that he did not have keys and could not get back inside. The officers asked Watson whether he had anything against which they could levy then told Watson that he was free to leave. After Watson left, the officers walked around the house's exterior to “look for items that could possibly be levied.” They smelled marijuana coming from the crawl-space vent; they claim that they saw partially smoked marijuana joints outside. The “joints” were never tested. The officers obtained a search warrant for the residence later that day based on that evidence, previous complaints about activity at the residence, Watson’s criminal record, and a confidential informant's tip. Inside, they located a large amount of marijuana and evidence indicative of its sale and use. Tennessee courts suppressed the evidence. In Watson's suit under 42 U.S.C. 1983, the court agreed that Watson’s Fourth Amendment rights had been violated, but held that the officers were entitled to qualified immunity. The Sixth Circuit reversed. Under clearly established law, Watson did not disclaim his privacy interest in the residence, and the property was not abandoned; the officers exceeded the scope of their implied license to enter and remain on the curtilage. View "Watson v. Pearson" on Justia Law