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Ken Tableman Law Blog

Attacking the Use of Acquitted Conduct at Sentencing

Federal defendants face a cruel dilemma. They can insist on a trial, but if the jury acquits them of some, but not all of the charges, the government can still argue at sentencing that the district court should use the acquitted conduct, if proven by a preponderance of the evidence. The aquittal has little, if any, practical significance.

Thus far, the Supreme Court has upheld this remarkable result. See Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsberg, JJ., dissenting from the denial of certiori). So has the Sixth Circuit Court of Appeals. United States v. White, 551 U.S. 381 (6th Cir. 2008).

But there is another way. The district court is permitted, but not required to use acquitted conduct at sentencing. The conduct increases a defendant's suggested sentence under the Federal Sentencing Guidelines, but the Guidelines are advisory. The district court can calculate the advisory sentence range using the conduct and then vary downward so that the sentence is not based on acquitted or uncharged conduct. This approach vindicates the "right to a speedy and independent trial, by an impartial jury" found in the Sixth Amendment which exists to "prevent oppression by the Government. Duncan v. Louisiana, 391 U.S. 145, 155 (1968). It prevents the Government from depriving a citizen of liberty on the basis of proof that would suffice in a civil case. In re Winship, 397 U.S. 358, 364 (1970).  

These arguments may carry the day in the right case. For a more in depth discussion, see United States v. Bell, No. 08-3037, (D.C. Cir. December 22, 2015) (Kavanaugh and Millett, JJ., statements concurring in the denial of the petition for rehearing en banc).

Supreme Court Decision May Affect Many Prisoners

On June 26, 2015, the Supreme Court declared part of the Armed Career Criminal Act unconstitutional. The Act is a form of "three-strikes" law that imposes mandatory sentences on persons who have three or more convictions for violent crimes, burglary, arson, extortion, use of explosives, and crimes that involve conduct "that presents a serious potential risk of physical injury to another." The Court held that the last part of the law, the residual clause counting crimes presenting a risk of injury was so vague that it denied defendants fair notice and invited arbitrary enforcement. Thus, using the clause to increase a defendant's sentence denied due process of law. Johnson v. United States, No. 13-7120.

The federal sentencing guidelines use the same language to increase sentences in several settings, most notably in the career offender guideline. Now, crimes that formerly counted for enhanced sentences under the Armed Career Criminal Act and the guidelines don't count. These include crimes like fleeing and eluding, escape, and conspiracy.

What can you do if you are serving a sentence based on the residual clause?

You may be able to file a peition for writ of habeas corpus under 28 U.S.C. 2255 or 2241. I can help. 

For a good discussion of possible couses of action see Bloomberg BNA Criminal Law Reporter Vol.97, No. 14, 07/01/2015.



Convictions Reversed: USA v. Daniels

The United States Court of Appeals for the Sixth Circuit reversed my client Reginald Daniels's convictions relating to possessing a firearm as a felon. The Court agreed with my arguments that the trial court's remarks at trial deprived Mr. Daniels of a fair jury trial. The Court held that the trial judge made improper remarks about Mr. Daniels's lawyer and also that the trial judge gave the jury an improper instruction about reasonable doubt in response to a question from the jury while the jury was deliberating.

The Court of Appeals vacated Mr. Daniels's convictions and ordered that he get a new trial.

United States v. Daniels, Case No. 12-2419, unpublished opinion released June 8, 2015. 

Questions about trial practice in federal court or firearms charges? Ask me. I am here to help. (616) 233-0455.

The Supreme Court Shows an Interest in Our Case-Miller v. United States

In federal cases I frequently seek relief in the United States Supreme Court for my clients, if the Sixth Circuit Court of Appeals rules against us. The chance for relief is not high, because the Supreme Court takes only the cases that it chooses. There is no appeal of right to the Supreme Court.

The Court turns down so many of the requests for review in criminal cases that the government usually waives its right to respond. Sometimes, however, the Supreme Court directs the government to file a response, even after the government has waived its right to respond. This means that the Court is taking a closer than normal look at the case.

In Miller v. United States, No. 14-9305, one of my cases, the Court has asked the government to respond.

Mr. Miller is asking the Court to apply a change in penalty in cocaine cases to him. Miller was sentenced under the old law. But his lawyer failed to appeal on time. His sentence was set aside and re-entered to let Mr. Miller appeal. By then the penalty had changed. The district court and the appeals court did not apply the new penalty. Maybe the Supreme Court will. Time will tell.

I am willing to take on representation on appeal or even after the appeal is decided. I have filed many petitions for certiori in the Supreme Court and have gotten relief in some cases. 


AppellateTips From Judge McKeague

The Honorable David W. McKeague discussed practice in the United States Court of Appeals for the Sixth Circuit before a group of federal practitioners in Grand Rapids, MI (and Marquette, MI via video connection) on March 20, 2015. He also answered questions.

He urged lawyers to be more concise in briefing an appeal. The Court has many cases to decide and judges appreciate brevity. The Court also appreciates writing that points to specific error and clearly says what the litigant wants the Court to do.

In a change from past practice the Court of Appeals is not routinely granting requests for oral argument. Counsel should tell the Court why the case warrants oral argument.

Judge McKeague said that he finds most reply briefs unhelpful. Counsel should not repeat material from the opening brief in a reply, but only respond to arguments not addressed in the opening brief. Sometimes a reply brief helps he Court when it points out what the opposing party did not say.

Judge McKeague says that the Court is investigating using video conferencing, but that any use of video conferencing for lawyers is not likely for several years, if ever. 

He invited the laywers to attend the Sixth Circuit's Judicial Conference to be held later in May in Detroit, Michigan.



Thank you for considering Kenneth P. Tableman, P.C. We look forward to beginning a relationship with you and earning your business. 



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