Justia Criminal Law Opinion Summaries

Articles Posted in US Court of Appeals for the Sixth Circuit

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In 2011, a Cincinnati officer ran the license plate number of an SUV and found that it had been reported stolen. The SUV stopped after the officer activated his emergency lights. When the officer stepped out of his cruiser, the SUV sped away. At over 75 miles-per-hour, the SUV raced through a downtown red light, swiping a vehicle, then slamming into a taxicab. The SUV hit a parking meter and caught fire; its driver ran, leaving his passenger, with leg fractures, inside the burning vehicle. Rescue workers freed the SUV passenger; he survived. The cab’s driver and passenger died immediately. Officers quickly apprehended the SUV’s driver, later identified as Gerth. Although Gerth suffered only minor injuries, police took him to a hospital, where a toxicology test revealed that he had alcohol, marijuana, and cocaine in his system. Gerth was charged with felony murder, aggravated vehicular homicide, aggravated vehicular assault, vehicular assault, leaving the scene of the accident, failure to comply with the order or signal of a police officer, and receiving stolen property. A half-dozen attorneys have represented Gerth throughout his trial, appeals, and collateral attacks. The Sixth Circuit affirmed the rejection of his federal habeas petition. Gerth procedurally defaulted a claim that his second appellate counsel failed to argue that the trial court improperly denied his request to proceed pro se. Gerth had no constitutional right to counsel in his reopened appeal and cannot excuse his procedural default. View "Gerth v. Warden, Allen Oakwood Correctional Institution" on Justia Law

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Winston completed a prison sentence in 2009. He lived with his sister for 29 months, working at a call center and opening a hauling business. He purchased a car in 2010. With a VA loan, he purchased the Cummington Road home in 2011. He paid taxes, remodeled, and spent money on living expenses. In 2012, he contracted to purchase the Marcy Road Property for $36,500 and made four cash payments totaling $26,500. The seller considered the Property paid-for and was willing to provide a quitclaim deed, The Property was never deeded to Winston. In 2010, while operating his legitimate business, Winston became involved in a large-scale marijuana trafficking conspiracy. He spent at least $62,091 on warehouse rent and equipment and paid an associate $25,000, He purchased a van with $6,875 of drug proceeds. In 2013, after surveillance of his warehouses and a search of Cummington Road, Winston was charged with drug crimes under 21 U.S.C. 846, and money laundering, 18 U.S.C. 1956(a)(1)(B)(i). He pleaded guilty and was sentenced to 135 months’ imprisonment. He did not disclose his interest in Marcy Road. The government became aware of that interest and filed a civil forfeiture action under 21 U.S.C. 881(a)(6), alleging that Winston purchased the Property with proceeds traceable to drug sales. The government presented testimony about Winston’s expenses and drug trafficking activities and his legitimate income from 2009–2012: $169,132. The Sixth Circuit affirmed that the Marcy Property is subject to civil forfeiture. The Government demonstrated, by a preponderance of the evidence, a substantial connection between the money used to purchase the Property and Winston's illegal drug sales proceeds. View "United States v. Real Property 10338 Marcy Road Northwest Canal Winchester" on Justia Law

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Police found Bowens and Hope in a vehicle with a marijuana blunt between them and two firearms. Both were charged under 18 U.S.C. 922(g)(3), as unlawful users of controlled substances possessing firearms. To prove that the defendants were regular and repeated marijuana users, the government presented evidence from Facebook: a video uploaded the day of the arrest showed the defendants brandishing the firearms they were arrested with and smoking what appeared to be a marijuana blunt. There were, pictures, comments and posts on both defendants’ accounts, apparently describing marijuana use: “Getting high and drunk da whole day,” “Too high last night. Just woke up,” posted during seven months before their arrests. The court applied a two-level sentencing enhancement for an offense involving 3-7 firearms, counting a firearm that had been recovered months earlier in Bowens’ room during an unrelated investigation into a shooting. Bowens was never charged with unlawful possession of that firearm. The Sixth Circuit affirmed in part. There was sufficient evidence to establish the defendants’ regular and repeated use of marijuana, notwithstanding arguments regarding the credibility of the Facebook evidence, and ample evidence showing that the defendants knew they used marijuana. It was not plain error that the jury was never asked if the defendants were “knowingly” unlawful users of a controlled substance. There was not, however, enough of a connection between Bowens’ possession of a firearm months earlier to justify the enhancement to Bowens’ sentence. View "United States v. Hope" on Justia Law

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The Armed Career Criminal Act (ACCA) imposes a mandatory 15-year minimum sentence for a conviction under 18 U.S.C. 922(g) if the defendant has three or more previous convictions for “violent felon[ies]” or “serious drug offense[s],” 18 U.S.C. 924(e)(1). Greer pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1), plus 13 counts of armed bank robbery, section 2113, and using a firearm during a crime of violence, section 924(c)). The parties agreed that Greer was punishable under ACCA, given his five prior Ohio convictions for aggravated burglary. The court imposed a 272-month sentence. After the Supreme Court invalidated ACCA’s “residual clause,” and made that decision retroactive to cases on collateral review, Greer moved to vacate his sentence, 28 U.S.C. 2255. The district court denied Greer’s motion holding that his aggravated burglary convictions qualified under ACCA’s enumerated-offense clause. While Greer’s appeal was pending, the Sixth Circuit held that Tennessee’s aggravated burglary statute was not an ACCA “violent felony” because its definition of “habitation” was broader than the enumerated offense of generic burglary under 18 U.S.C. 924(e)(2)(B)(ii). The government conceded that Greer was not properly classified, given the similarity in language between the Tennessee statute and the Ohio statute, reserving the right to withdraw its concession after the Supreme Court decided the issue. The Supreme Court reversed the Sixth Circuit’s decision concerning the Tennessee statute. The Sixth Circuit affirmed the denial of Greer’s petition for relief. View "Greer v. United States" on Justia Law

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Henness was convicted of offenses including aggravated murder from conduct occurring in 1992 and was sentenced to death. Henness challenged Ohio’s method of execution under 42 U.S.C. 1983. As his execution date approached, Henness moved to stay his execution, arguing that Ohio's drug protocol (500 milligrams of midazolam, a paralytic agent, and potassium chloride) was likely to cause him to suffer a painful death, and that, given the availability of significantly less painful alternative methods of execution, the use of that protocol would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Though Henness presented expert testimony, the Sixth Circuit affirmed the denial of relief. Neither pulmonary edema nor associated symptoms qualify as serious pain prohibited by the Eighth Amendment. Midazolam may cause suffocation but the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.” Henness did not establish that midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing constitutionally problematic pain. Even if Ohio’s protocol were very likely to cause severe pain, Henness’s proposed alternative method, secobarbital, is not a viable alternative. Secobarbital can, in some instances, take days to cause death. A state may decline to use even a feasible alternative if it has a legitimate reason for doing so. Choosing not to be the first state to experiment with a new method of execution is a legitimate reason. View "In re: Ohio Execution Protocol Litigation" on Justia Law

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Ligon, age 19, used her friend’s identification to purchase a gun. The gun was subsequently used in an attempted robbery involving acquaintances of Ligon’s boyfriend. Ligon pleaded guilty to making a false statement in the acquisition of a firearm, 18 U.S.C. 922(a)(6). During plea negotiations, the government agreed to argue for a sentence in the Guidelines range as contemplated by the plea agreement, which was 21-27 months. At the sentencing hearing, however, the government argued for a sentence within the Guidelines range as contemplated by the probation office, which was 30-37 months because of an enhancement under U.S.S.G. 2K2.1(b)(6)(B), which applies if a defendant transferred a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense. The district court sentenced Ligon to 35 months’ imprisonment. The Sixth Circuit vacated and remanded for resentencing before a different district judge. The government breached the agreement and tried to correct its mistake only after the district court imposed a sentence. View "United States v. Ligon" on Justia Law

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Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path. Without warning, Boucher—Paul’s next-door neighbor, whom he had not spoken with in years—raced toward Paul and attacked him from behind. The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia. Boucher pleaded guilty to assaulting a member of Congress, 18 U.S.C. 351(e). Although his Guidelines sentencing range was 21-27 months in prison, the district court sentenced him to 30 days’ imprisonment. After denying Boucher’s motion to dismiss the government’s appeal, the Sixth Circuit vacated the sentence as substantively unreasonable and remanded for resentencing. Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant 18 U.S.C. 3553(a) factors; the court gave undue weight to Boucher’s lack of political motivation in committing the assault and to his markers of “privilege,” such as his education, profession, and community standing, and did not adequately consider the seriousness of the offense of to sentencing disparities. View "United States v. Boucher" on Justia Law

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The IRS searched Ellis’s apartment and found personal identifying information for more than 400 people on printouts from the Alabama Department of Corrections’ database and in a TurboTax database on laptops seized from Ellis’s bedroom. Her computers had been used to file hundreds of electronic tax returns in 2008-2012. Ellis was charged with devising a scheme to submit fraudulent tax returns in “2012,” including eight counts of wire fraud, 18 U.S.C. 1343, and eight counts of aggravated identity theft, 18 U.S.C. 1028A(a)(1), (c)(5) and 18 U.S.C. 2. After the government admitted that some of Agent Ward’s grand jury statements had been wrong, Ellis unsuccessfully moved to dismiss the indictment. The court found that the “inaccurate statements did not have a substantial influence" given "overwhelming other evidence he presented.” Agent Ward testified that the intended loss from Ellis’s scheme was approximately $700,000, based on the total requested refunds, not the actual refunds. The court agreed and applied a 12-step ioffense level increase (U.S.S.G. 2B1.1(b)(1)(H)), with a resulting Guidelines range for the wire fraud counts of 51-71 months. The court imposed a 48-month sentence for wire fraud and a consecutive, mandatory, 24-month sentence for aggravated identity theft and ordered forfeiture of $11,670, the total of the eight tax returns for which Ellis was convicted. The court imposed the government’s requested $352,183.20, in restitution to governmental entities. The Sixth Circuit affirmed the denial of the motion to dismiss, the calculation of the forfeiture, and the restitution order, rejecting arguments that the government had not presented evidence that all of the refunds used to calculate restitution were part of the same scheme and that some of that amount was tied to conduct that occurred outside of the limitations period. View "United States v. Ellis" on Justia Law

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The Sixth Circuit affirmed the district court's denial of petitioner's 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence. The court held that petitioner could not prevail on his ineffective assistance of counsel claim because, even assuming that counsel provided deficient advice, petitioner failed to establish a reasonable probability that he would have appealed had he received competent advice from counsel. In this case, not only was petitioner's likelihood of success on appeal quite low, but even if he were to succeed on appeal, he also would have likely faced a harsher sentence than he originally received. Therefore, these were strong indicators that petitioner would not have appealed had his counsel given him accurate information. View "Neill v. United States" on Justia Law

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Bullard was charged with trafficking heroin and as a felon in possession of a firearm. He unsuccessfully moved to suppress the evidence, then entered a plea agreement that recognized that Bullard could face 10 years to life in prison and that Bullard “may be classified as a career offender.” Bullard had a 2003 Arizona conviction for attempting to sell cocaine and a 2013 Ohio conviction for selling drugs. The court determined that Bullard qualified as a career offender, putting his Guidelines range at 292-365 months. Without the enhancement, Bullard’s range would have been 92-115 months. The court varied downward, sentencing Bullard to 140 months. Bullard had agreed that the convictions made him a career offender. The Sixth Circuit affirmed the denial of his motion to suppress. Bullard then sought habeas relief, arguing that the court misclassified him as a career offender and that he received ineffective assistance of counsel when his attorneys failed to challenge this designation. Bullard argued that the Arizona statute criminalized drugs that are not federally controlled and conduct that falls outside the Guidelines’ definition. The Sixth Circuit affirmed the denial of relief. If Bullard were sentenced today, he would not be a career offender but he is not on direct review. Bullard’s claim that the court misclassified him, resulting in a higher recommended sentence is not cognizable on section 2255 collateral review. While his ineffective assistance claim is cognizable, Bullard cannot satisfy the Strickland standard. View "Bullard v. United States" on Justia Law