United States Sentencing Commission Annual Report

It was released today.  Contains some interesting findings about the federal courts.  Drug cases remain the most common criminal cases, followed by immigration, firearms and fraud.  Drug sentences are down as a result of guideline changes, and the number of immigration cases dropped significantly.  46% of offenders were sentenced within the guidelines, with downward departures vastly outnumbering upward departures.

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Fourth reversal for failure to explain criminal sentence

In United States v. Lymas, the district judge from the eastern district of North Carolina, sentenced three Hobbs Act robbery defendants to fifteen years each, despite the fact that one defendant’s guidelines were significantly lower than the other two.

The Court reversed, holding that the district judge did not sufficiently explain his sentence.  The lower court focused mostly on the seriousness of the offense, and discounted the other sentencing factors in 18 USC 3553 such as criminal history, role in the offense, characteristics of the defendant, etc.  Here is the critical passage in the opinion by Chief Judge Traxler, joined by Judges Wynn and Harris:

In this case, the district court provided the opposite of individualized sentences and explanations. As noted above, the court determined that the Guideline underpunished the crime and that each defendant should receive the same sentence. Thus, except for offering its view of the seriousness of the offense, the district court ignored every other statutory factor and essentially sentenced the crime itself rather than the individual defendants.

The Court then reviewed all the various distinctions between the defendants which weighed in favor of higher or lower sentences, and which the district judge did not address.

From an appellate practice standpoint, the case is significant.  Appealing a sentence or other ruling on the ground that the lower court did not sufficiently explain its decision can seem like a desperate argument, a “last line of defense” for when you can’t point to an actual error by the district judge.  But it can sometimes be a winning argument, especially in the Fourth Circuit, as this case shows.

As for the defendant, his case is not over.  He will be resentenced, probably by the same judge.  The judge could conceivably give the same sentence with a more detailed statement of reasons, and be affirmed on the second try.  But the defendant does have a chance at a better outcome.

First amendment case on criminal threats pending in SCOTUS

I noticed in last week’s DC Court of Appeals opinions a footnote reference in Gray v. United States to a criminal threats case pending in the US Supreme Court.  The case is Elonis v. United States, where the Court must decide whether the First Amendment requires proof for a threats conviction that the defendant intended to make a threat, or whether proof that a reasonable person would take the words as a threat is enough.

The case could be important for places like DC where the courts have not required proof of intent to threaten.  The dc police bring in a lot of threats cases.  On today’s lockup list for example, 4 of 77 arrestees have a threats charge.  In some cases, the defendant in a threats case never intended to scare anyone, but was merely joking, upset, or blowing off steam when they made some improvident remark such as “I’m gonna kill you.”  Under current law, this is no defense but Elonis could make it one.

Scotusblog has coverage of the case here.

Limited Padilla duty for Commonwealth attorneys says VA state bar

A recent legal ethics opinion says prosecutors in some circumstances must inform unrepresented defendants that a proposed plea bargain could result in their deportation.

The duty only applies where the prosecutor knows the court will not ask the defendant about immigration consequences when taking the plea.  One possible consequence of this opinion  is judges’ will add an immigration question to their standard plea colloquy, thus relieving the prosecutors of this burden.

Fourth Circuit decision on RICO jurisdiction

The RICO statute (18 U.S.C. § 1962) requires federal prosecutors to prove, among other things, that the criminal enterprise affected interstate commerce.  In United States v. Cornell, the Fourth Circuit considered what kind of conduct meets this requirement.

Several alleged members of the Latin Kings, a gang, were convicted in the Middle District of North Carolina with conspiracy to violate RICO under 18 U.S.C. § 1962(d).  On appeal, they challenged a jury instruction which stated that only a “de minimis” effect on interstate commerce was necessary to meet 1962’s interstate commerce element.  They argued that where the racketeering activity is not economic in nature, the government has to prove more than a minimal effect on interstate commerce.  To support their argument, the appellants relied on Waucaush v. United States, in which the Sixth Circuit vacated a RICO conviction because the criminal conduct of the enterprise was limited to crimes of violence, and did not involve economic activity.  In such cases, Waucaush held, the government was required to prove a substantial effect on interstate commerce.

The Fourth Circuit rejected the Latin Kings’ argument on two grounds.  First, the court found that the holding in Waucaush was called into question by Gonzales v. Raich, in which the Supreme Court held that “when a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.”

The Fourth Circuit also declined to apply the reasoning of Waucaush to the Latin Kings because their enterprise involved acts of bank fraud, a quintessentially economic activity.  Additionally, the panel noted that the evidence at trial was that members of the gang regularly communicated by phone and used guns that traveled in interstate commerce to commit their crimes, which was yet another basis to satisfy the interstate commerce element.

The Fourth Circuit’s message to RICO defendants: tough luck raising jurisdictional challenges in this circuit!