Appellate Update: 2017 Third Circuit and Supreme Court Cases, and Litigation after Johnson - PowerPoint Presentation

Appellate Update: 2017 Third Circuit and Supreme Court Cases, and Litigation after Johnson v. United States, 135 S.Ct. 2551 (2015) BY THE RESEARCH AND WRITING ATTORNEYS OF THE OFFICE OF THE FEDERAL PUBLIC DEFENDER (D.N.J.)

SUPREME COURT JUSTICES

Third Circuit Judges D. Brooks Smith (Chief) Thomas L. Ambro Theodore A. McKee Michael Chagares Kent A. Jordan Thomas M. HardimanJoseph A. Greenaway, Jr. Thomas I. Vanaskie Patty Schwartz Cheryl Ann KrauseL. Felipe Restrepo Stephanos Bibas SENIOR STATUS Walter K. Stapleton Morton I. Greenberg Anthony J. Scirica Robert E. Cowen Richard L. Nygaard Jane R. Roth Marjorie O. Rendell Julio M. Fuentes D . Michael Fisher

TAKE NOTE IN YOUR THIRD CIRCUIT FILINGS Clerk of Court Marcia Waldron retired Patricia S. Dodszuweit is now Clerk

District of New Jersey Judges Chief: Jose L. Linares Newark District : Jose L. Linares, Madeline Cox Arleo, Claire C. Cecchi, Stanley R. Chesler, Katharine S. Hayden, William J. Martini, Kevin McNulty, Esther Salas, William H. Walls, Susan D. Wigenton, John Michael VazquezMagistrate: James B. Clark, III, Joseph A. Dickson, Mark Falk, Michael A. Hammer, Steven C. Mannion , Cathy L. Waldor , Leda Dunn Wettre Camden District : Jerome B. Simandle , Renee Marie Bumb , Noel L. Hillman, Robert B. Kugler , Joseph H. Rodriguez Magistrate : Ann Marie Donio , Joel Schneider, Karen M. Williams Trenton District : Mary L. Cooper, Peter G. Sheridan, Michael Shipp, Anne E. Thompson, Freda L. Wolfson, Brian R. Martinotti Magistrate : Douglas E. Arpert , Tonianne J. Bongiovanni, Lois H. Goodman

OUTLINE OF PRESENTATIONOpen questions (cases pending before the U.S. Supreme Court) 2017 cases: use of arrest records and warrants, supervised release, sentencing enhancements, trial procedure, appellate procedure, forfeiture, Fourth Amendment, sentencing3. Guidelines update4. Johnson update: crimes of violence, career offender, ACCA

Supreme Court ORAL ARGUMENTS & CERT GRANTS An exercise in line drawing

Class v. United States, 16-424(argued 10/4/2017) Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of the statute of conviction? What is the “default rule” under Rule 11 for defendants who plead guilty but do not expressly waive, or preserve, a constitutional challenge to the offense statute.

McCoy v. Louisiana, 16-8255 (argued 1/17/18)Whether it is unconstitutional for defense counsel to concede an accused’s guilt over his express objection? Death penalty case, attorney conceded guilt but argued killing was not intentional to avoid death penalty, defendant sentenced to death Constitutional guarantee of a personal defense: whether to permit or contest guilt

4th Amendment Carpenter v. United States : Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment (third-party doctrine to account for changes in technology) 3d Cir. currently leaves it to MJ’s discretion to determine in each case.United States v. Microsoft Corp.: Whether a U.S. email provider must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by disclosing emails in the U.S within that provider’s control but stored abroad?Dahda v. United States: Whether (Title III) requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because it exceeds the judge’s territorial jurisdiction? Collins v. Virginia : Whether the car exception to warrant requirement permits police to enter private property and search car parked near house? Byrd v. United States : Whether driver has reasonable expectation of privacy in rental car when he has renter’s permission to drive but is not listed as authorized driver on rental agreement? (3d Cir. held no)

3582(c)(2) sentence reductionsHughes v. United States , No. 17-155 (argument scheduled for 3.27.18) Whether a defendant who enters into a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range. Koons v. United States, No. 17-7516 (argument scheduled for 3.27.18) What is the effect of retroactive amendments to the guidelines for a defendant who was subject to a statutory mandatory minimum sentence, but who substantially assisted the government and received a sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e )? United States v. Chavez-Meza , No. 17-5639 How much explanation is required when a district court decides not to grant a proportional sentence reduction

Other Issues Marinello v. United States , 16-1144 : Whether a conviction under 26 U.S.C. § 7212(a) for corruptly endeavoring to obstruct or impede the due administration of tax laws requires proof that defendant was aware of pending IRS action or proceeding? Currier v. Virginia, 16-1348Whether a defendant who consents to severance of multiple charges into sequential trials loses his rights under double jeopardy to the issue-preclusive effect of an acquittal

2017 cases

USE OF ARREST RECORDS and WARRANTSUnited States v. Mateo-Medina , 845 F.3d 546 When imposing sentence, courts cannot consider a defendant’s prior arrests, which did not end in convictions. United States v. Ferguson, 876 F.3d 512Mere reference to bare arrest record is not plain error.United States v. Steiner, 847 F.3d 103Prior arrest warrants should not be admitted under Rule 404(b) as background evidence.

SUPERVISED RELEASEUnited States v. Johnson , 861 F.3d 474 Revocation of supervised release in one district does not automatically terminate supervised release in separate district. United States v. Poulson , 871 F.3d 261Special condition of supervised release cannot exceed maximum term of supervised release. United States v. Azcona-Polanco, 865 F.3d 148Strong presumption against imposition of term of supervised release in illegal reentry cases. Courts must explicitly state on the record reasons for imposing supervised release in these cases.

SENTENCING ENHANCEMENTS United States v. Poulson , 871 F.3d 261 First case in Third Circuit to review “substantial financial hardship” under §2B1.1. There is no specific loss amount required, or formula that must be used to calculate loss under this enhancement. Rather, courts have considerable discretion in imposing the enhancement and may draw reasonable inferences from the record in determining the extent of a victim’s loss . United States v. Douglas , 849 F.3d 40- Airplane mechanic abused a position of trust (§ 3B1.3) by using security clearance to smuggle drugs.- Application of obstruction enhancement (§3C1.1) erroneous because government failed to show defendant willfully missed court date, especially in light of medical note explaining defendant’s absence. * Case was reheard en banc, awaiting new opinion.

Trial ProcedureUnited States v. Brown , 849 F.3d 87 (2017) Dual Juries Not per se unconstitutional Not encouragedAlso reaffirms obligation to object to procedural error after sentencing in order to preserve error and avoid plain error review. See United States v. Flores-Mejia, 759 F.3d 253 (2014).

Appellate ProcedureManrique v. United States , 137 S.Ct . 1266 (2017) When district court defers restitution determination, there are two appealable judgments: Initial sentence Restitution• Must file separate notices of appeal

ForfeitureHoneycutt v . United States , 137 S.Ct . 1626 (2017) 21 U.S.C. § 853: mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes. Question: May a defendant be held jointly and severally liable under § 853 for property his co-conspirator derived from the crime but the defendant himself did not acquire? • No. • Forfeiture pursuant to § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime.• Abrogates United States v. Pitt , 193 F.3d 751 (3d Cir 1999) • Abrogation recognized in U.S. v. Gjeli , 867 F.3d 418 (3d Cir. 2017)

Fourth AmendmentUnited States v. Jackson , 849 F.3d 540 (2017) Lawfulness of Wiretaps Adopts “listening post” theory: “[U] nder Title III, either the interception of or the communications themselves must have been within the judge’s territorial jurisdiction.”State-court wiretap was lawful because Pennsylvania statute modeled after Title III; permits state courts to authorize interception of calls outside state if “’interception’ is anywhere within the Commonwealth.”* Definition of “intercept” includes location of monitoring.

SentencingDean v. United States , 137 S.Ct . 1170 (2017) 18 U.S.C. § 924(c) Sentencing courts may consider the mandatory minimum when calculating a just sentence for the predicate count. • § 924(c) requires mandatory minimum to be imposed “in addition to” the punishment for the predicate offense.• This limitation says nothing about length of the sentence for the predicate offense.• § 3553(a) factors can be considered when determining a sentence for each individual offense.

2017 Guidelines Amendments

2018 Proposals and 2017 carryovers, available on www.ussc.gov website

A. New Classes of Synthetic DrugsAmends the drug equivalency table in § 2D1.1 1 gram mj = [200]/[380]/[500] grams synthetic cathinones ( methylone ) 1 gram marijuana = [167]/[334]/[500] grams synthetic cannabinoids. B. Increases to Fentanyl Penalties1 gram of fentanyl or analogue = 10 kilograms of marijuanaEnhancement if fentanyl is misrepresented or marketed as another substance. C. Technical changes to illegal reentry guideline, § 2L1.2(b)(2)  D. First offenders/Alternatives to incarceration Distinguish true “first offenders” with no prior convictions from those with 1 criminal history point or convictions too old to be counted. True first offenders get a one or two level downward departure and more alternatives to incarceration if the instant offense did not involve violence. Also proposal to combine Zones B and C in guideline table.   E. Acceptance of responsibility Defendant who makes a non-frivolous challenge to relevant conduct is not precluded from earning the two-level reduction for acceptance.

Johnson UpdateCrimes of Violence, Career Offender, ACCA

What remains of the residual clause?The ACCA’s now-void residual clause appears in the definition of a “crime of violence” under: §4B1.2(a)(2) of the pre-August 1, 2016 Sentencing Guidelines, 18 U.S.C. § 16(b), and 18 U.S.C. § 924(c)(3)(b). The Third Circuit extended Johnson to nullify the residual clause contained at § 16(b) ( see Baptiste v. Attorney Gen. , 841 F.3d 601 (3d Cir. 2016)) and, in August 2016, the U.S. Sentencing Commission rewrote §4B1.2(a)(2) without the residual clause.

§ 924(c) and contemporaneous violent feloniesIn the Third Circuit, the categorical approach does not apply to § 924(c) cases, at least in brandishing and discharge cases. See United States v. Robinson, 844 F.3d 137 (3d Cir. 2016) (Hobbs Act robbery committed while brandishing a firearm is a violent felony); United States v. Galati , 844 F.3d 152 (2016) (murder for hire committed while discharging a firearm is a violent felony). The Supreme Court denied certiorari in both cases. Numerous unpublished decisions have extended Robinson beyond use and brandishing cases and applied the holding where a defendant merely carries a gun. See United States v. Thomas , 2017 WL 3028606 (July 18, 2017); United States v Fredericks, 684 Fed. Appx. 149 (3d Cir. 2017); United States v. White, 678 Fed. Appx. 80 (3d Cir. 2017).

Defining a Crime of Violence under the Guidelines Today(a)       The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1)       has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2)       is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). Note that burglary of a dwelling is no longer listed as an enumerated offense. Instead, the Guidelines provide for an upward departure for a burglary involving actual violence. See U.S.S.G. §4B1.2, cmt . (n. 4).

Approaching a Guidelines CasePost-Johnson, the list of offenses that could qualify as “crimes of violence” has shrunk in some ways, and expanded in others. Forget what you thought you knew about whether a particular prior constituted a crime of violence and re-evaluate every prior anew. In any pending case involving the pre-August 1, 2016 Guidelines, the residual clause will still apply because Beckles v. United States , 137 S.Ct . 886 (2017) held that the advisory Guidelines are not subject to vagueness challenges.

Defining “use of force” under the elements clause“Use of force” = intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body. United States v. Chapman , 866 F.3d 129 (3d Cir. 2017) (mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence) beyond “the slightest offensive touching” which does not qualify as “physical force,” there is no minimum quantum of force necessary to satisfy Johnson’s definition of physical force. Poison and cutting break lines both “use force.”

Robbery is a crime of violenceDespite the fact that most robbery statutes require only de minimis force, the courts, including the Third Circuit, are not buying the argument that robbery is not a crime of violence: United States v. Graves, 877 F.3d 494 (3d Cir. 2017) – North Carolina robbery is a crime of violence despite the fact that it can be committed by merely swiping a person’s hand away from her belonging. United States v. Wilson, 2018 WL 444190 (3d Cir. Jan. 17, 2018) – bank robbery by intimidation, in violation of 18 U.S.C. § 2113(a) is categorically a crime of violence

What about offenses with a reckless mens rea? Be prepared for the Government to argue, citing Voisine v. United States , 136 S. Ct. 2272 (2016), that offenses criminalizing reckless conduct may qualify as “crimes of violence” under the elements clause. Defense counsel have been successful in attacking this argument in the District Court and it is now before the Third Circuit on the Government’s appeal in United States v. Icxandro Santiago, Docket No. 16-4194 (argued 12/11/2017). The question presented in Santiago is whether N.J.S.A. 2C:12-1(b)(5), simple assault against a law enforcement officer, is a crime of violence.