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Post-Conviction
United States v. Winthrop-Redin
2014 WL 4699391 (11th Cir. 2014)
Defendant not entitled to evidentiary hearing on §2255 issues
The defendant was a member of a boat crew in an international drug-smuggling operation. The boat was stopped by the Coast Guard and 90 bales of cocaine were found in a hidden compartment. The defendant pled guilty and was sentenced to 168 months. Two years after signing the plea agreement, the defendant filed a §2255 petition claiming that his plea was coerced by death threats from the boat’s captain and that his counsel provided ineffective assistance by instructing him not to report the threats to the district court. In his affidavit attached to the petition, the defendant claimed that the boat captain (who also happened to be a DEA informant) threaten to kill him and his family if he told about an alleged murder of another crew member. He also stated that his attorney advised him not to say anything about the alleged murder because doing so “would complicate the case.” The district court denid relief without a hearing, finding that the defendant had knowingly and voluntarily entered his guilty plea. A certificate of appealability was granted on one issue: “Whether Defendant is entitled to an evidentiary hearing on his claim that his guilty plea was not knowing or voluntary due to threats that he received and ineffective assistance of plea counsel.” The Eleventh Circuit noted that to be specific, nonconclusory facts that, if true, would entitle him to relief.” However, a district court need not hold a hearing if the allegations are “patently frivolous, based upon unsupported generalizations, or affirmatively contradicted by the record.” Here, there was no need for an evidentiary hearing because the defendant’s involuntary plea claim was “based only on conclusory and incredible allegations.” In particular, the defendant’s plea agreement indicated that his guilty plea was knowing and voluntary, made “without threats, force, intimidation, or coercion.” Further the defendant waited more than two years after he pled guilty, and only after all other avenues for relief from his sentence were exhausted, to say anything to the district court about alleged threats. Nor did he provide any specific assertions that would provide him relief – his allegations regarding the murder and the threats were in no way connected to his plea to conspiracy to possess cocaine. “[E]ven if it were true that [the captain] told Defendant to say nothing about the murder, that fact would not establish that the guilty plea on the drug conspiracy charge was involuntary.” “Alone, the conclusory assertion that he pled guilty because of death threats from [the captain] is not enough to warrant a §2255 hearing in the face of this full record.” As for the ineffective assistance claim, the court explained that prejudice could be shown only if “there is a reasonable probability that, “but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.” The court denied relief holding: “Defendant is not entitled to a §2255(b) evidentiary hearing because he does not specifically allege that he told his attorney he had been threatened with death unless he pled guilty.” Even if the defendant’s allegations regarding the alleged murder were true, he would not be entitled to relief. “We cannot say that counsel would have exceeded the bounds of reasonable professional judgment by advising a client not to tell the judge about a separate incident unconnected to the client’s decision to plead guilty. Moreover, as the government points out, counsel’s alleged advice might even have protected his client’s interests. If the district court considered murder of the crew member to be reasonably foreseeable relevant conduct, the court could have increased Defendant’s sentencing level under the Guidelines. Nor did Defendant allege prejudice sufficient to warrant a hearing because he did not claim in his §2255 motion or his supporting affidavit that his decision to plead guilty was affected by his attorney’s advice not to tell the judge about threats related to the crew member’s murder.”
Crime of Violence; Career Criminal
United States v. Trent
2014 WL 4746294 (10th Cir. 2014)
Oklahoma general conspiracy conviction was serious drug offense under modified approach
The defendant was indicted on one count of being a felon in possession of a firearm. A jury convicted him and the district court imposed a 196- month sentence after applying the ACCA enhancement. That finding was based on the defendant’s three prior convictions for serious drug offenses, which included a 2007 Oklahoma conviction for conspiracy, under Okla. Stat. Ann. tit. 21, §421(A). On appeal, the defendant argued that the district court erred in using the “modified categorical approach” to determine that the conspiracy conviction qualified as a serious drug offense. The Tenth Circuit first determined that under the categorical approach, the defendant’s conspiracy conviction would not be a conviction of a serious drug offense because the statute could be violated in many ways that have nothing to do with drugs. The issue was then whether the modified categorical approach could be used and was “it permissible for the court to take into account the drug-related specifics of this conspiracy charge?” Citing Descamps v. United States, — U.S. —-, 133 S. Ct. 2276 (2013), the court explained that the modified approach could not be used when the statute of conviction “has a single set of elements, whether it has an overbroad or missing element.” However, when a statute defines the offense “alternatively, with one statutory phrase corresponding to the generic crime and another not, courts may examine documents such as an indictment or plea agreement to determine which statutory phrase was the basis for the conviction.” This raised a further question: Must the alternative “statutory phrases” appear in the statute of conviction or may the modified approach be used when the statute of conviction cross references other statutes? “For example, a state statute could define a crime of assault that involves use of a ‘weapon.’ Assume that the crime would be ACCA-eligible only if the weapon used was a gun. If another provision of that state’s criminal code defines ‘weapon’ as a ‘gun, knife, or bat,’ then the definition of the crime contains a list of alternatives.” In the TenthCircuit’s view, “such a statute is divisible” and the modified approach could be used. Applying this conclusion to the Oklahoma general conspiracy statute, the court found that it was divisible for purposes of the ACCA. “By crossreferencing the state’s criminal code, the general conspiracy statute lays out ‘multiple, alternative versions of the crime’ of conspiracy, according to what underlying crime provides the conspiracy’s object.” Applying the modified approach, the court examined specifics of the prior conspiracy conviction and concluded that conspiracy to manufacture methamphetamine satisfied the ACCA definition of a serious drug offense. The sentence was affirmed.
United States v. Brown
2014 WL 4345256 (3rd Cir. 2014)
Pennsylvania convictions for terroristic threats not “crimes of violence”
In 2010, while serving time in state custody for another offense, the defendant mailed a letter to a magistrate judge who had presided over the earlier dismissal of his habeas petition, threatening to kill her and a former district judge. He pled guilty to mailing a threatening communication. The PSR recommended a sentence pursuant §4B1.1 (a), the career offender enhancement, based on four prior offenses: (1) a 1986 conviction for aggravated assault, in violation of 18 Pa. Cons. Stat. §2702; (2) a 2004 conviction for making terroristic threats, in violation of 18 Pa. Cons. Stat. §2706; (3) a 2005 conviction also for making terroristic threats, in violation of §2706; and (4) a 2005 conviction for retaliating against a judicial officer, in violation of 18 Pa. Cons. Stat. §4953.1. The defendant objected to the enhancement, arguing that his two convictions for terroristic threats were not predicate offenses. The government countered that under United States v. Mahone, 662 F.3d 651 (3d Cir. 2011), the enhancement was proper. The defendant responded by arguing that in light of Descamps v. United States, — U.S. —-, 133 S. Ct. 2276 (2013), where the Court held that a sentencing court may not look to the facts underlying a prior conviction but instead must look to its elements, Mahone was no longer controlling. The district court overruled the defendant’s objection and imposed a sentence of 84 months. The defendant raised the same argument on appeal and the Third Circuit agreed with him, concluding that “in light of Descamps, [the defendant’s] convictions under 18 Pa. Cons. Stat. §2706 are not ‘crimes of violence’ for purposes of the Guidelines’ career offender enhancement. In effect, Descamps abrogated the portion of Mahone that held otherwise.” The court further explained that under Descamps, where “a statute is generally divisible into multiple versions, but each version is overbroad (covers at least some conduct that is not a crime of violence) and indivisible (cannot be further divided into subversions based on the elements), the extra-statutory documents are irrelevant and a sentencing court’s analysis has reached a dead-end: the prior conviction is not a predicate offense.” Looking at the particular statute at issue, the court held “that §2706(a)(1) is overbroad in that it criminalizes conduct that is not always considered a federally defined ‘crime of violence.’ Hence a violation of the statute is categorically not a predicate offense for purposes of the career offender enhancement.” In this case, the district court, relying on Mahone, analyzed the facts underlying the conviction, rather than focusing on the legal elements of the alleged predicate offense, to determine that the 2004 terroristic threats conviction qualified for the career offender enhancement. The modified categorical approach should not have been used; thus, the sentence was vacated and remanded.
Miscellaneous Issues
United States v. Young
2014 WL 4452776 (6th Cir. 2014)
Court presumed defendant had notice that he was prohibited from possessing ammunition
The defendant helped a neighbor sort and sell her late husband’s possessions and discovered a box of seven shotgun shells, which he stored in a drawer where they would be safe from his four children. Because he had a number of felony convictions from 1990 and 1992, it was a crime for him to possess ammunition, but he was unaware of this legal disability. During a
consent search of his house, officers found several items reported stolen and the box of seven shotgun shells in a drawer. The defendant pled guilty to being a felon in possession of ammunition, but argued that the ACCA, as applied to him, would violate the Fifth Amendment Due Process Clause because he did not have fair notice of the prohibition against felons possessing ammunition. He was sentenced to the mandatory minimum fifteenyear sentence and he appealed, arguing that because he lacked notice of the §922(g)(1) bar against possession of ammunition by felons, the ACCA was unconstitutional as applied to him under the Fifth Amendment rule that all citizens are entitled to be informed of what conduct the law prohibits. He pointed out that his judgment in the present case, for example, specified that he “shall not possess a firearm, destructive device, or any other dangerous weapon” but made no mention of ammunition. The Sixth Circuit disagreed, finding that while the defendant may have believed that his possession was innocent conduct, but he did not argue that the ACCA was too technical or obscure to impart legal notice had he read it. “[U]nless the statute is so vague, technical, or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct, we apply the centuries-old maxim that ignorance of the law is no excuse and presume notice despite a defendant’s ignorance-in-fact.” “It would be preferable for both state and federal courts to expressly inform felons of their legal disability; where a statute specifically targets a subclass of citizens, those citizens may be unlikely to learn of the prohibition from others. Nonetheless, the Fifth Amendment notice requirement is satisfied by the statute, and we must reject [the defendant’s] Fifth Amendment claim.”
Cases in This Issue
United States v. Brown, 2014 WL 4345256 (3rd Cir. 2014)
United States v. Husmann, 2014 WL 4347186 (3rd Cir. 2014)
United States v. Kleiner, 2014 WL 42090395 (2nd Cir. 2014)
United States v. Mathis, 2014 WL 4724697 (11th Cir. 2014)
United States v. Serunjogi, 2014 WL 4746688 (1st Cir. 2014)
United States v. Snelling, 2014 WL 4662504 (6th Cir. 2014)
United States v. Solomon, 2014 WL 4494863 (3rd Cir. 2014)
United States v. Trent, 2014 WL 4746294 (10th Cir. 2014)
United States v. Winthrop-Redin, 2014 WL 4699391 (11th Cir. 2014)
United States v. Young, 2014 WL 4452776 (6th Cir. 2014)
