Thursday, December 26, 2013

Exoneration through persistence

Here is an article on a recent win by Michael Whalen.  Mr. Swenson was convicted of attempted second-degree murder in Sedgwick County in June 2000.  After a long, long procedural history, in February 2010, the Court of Appeals ordered a new trial and the district court discharged Mr. Swenson (blogged about here and here).  The state successfully appealed that dismissal, but as the article relates, in December 2013, the state dropped the charges!

Monday, December 16, 2013

Thank you, DOJ. May I have another?

The U.S. Department of Justice recently adopted the position that the recommended U.S.S.G. range for supervised release for a SORNA conviction (failure to register - 18 U.S.C. § 2250) is a flat term of five years.  In contrast, the statutory range of supervised release for a SORNA conviction is five years to life.  18 U.S.C. § 3583(k).  Thus, this DOJ position should help keep supervised release terms in SORNA cases on the low end of that statutory range.

The DOJ's concession on this issue came in United States v. Davis, No. 13-4112 (4th Cir. 2013).  In its motion to remand for resentencing, the government explained that it changed its position after receiving "the Department's guidance."  I have recently received a similar filing in a SORNA case in my district.  So the word is apparently out.  This DOJ position is obviously important for SORNA prosecutions, but it may also be important in a good number of federal drug prosecutions.
 
In Davis, the DOJ conceded the following: 1) that the failure to register as a sex offender is not a “sex offense,” under U.S.S.G. § 5D1.2(b)(2); and 2) the advisory guideline range for supervised release for such a conviction is a single point: 5 years.  In doing so, the DOJ apparently adopted the position of the Seventh Circuit in United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013).


United States v. Goodwin & United States v. Gibbs

In Goodwin, 717 F.3d at 520, the court held that a life term of supervised release constituted plain error because a SORNA violation was not a “sex offense” under U.S.S.G. § 5D1.2(b)(2). Accordingly, the court held that the guidelines did not recommend lifetime supervised release.  But the court went on to hold that the advisory guidelines range for supervised release was a single point: five years.  Goodwin, 717 F.3d at 520. Citing U.S.S.G. § 5D1.2(c), the court stated, “[w]here, as here, the statutory minimum term of supervised release is greater than the top end of the Guidelines range of § 5D1.2(a)(2), the statutory minimum controls.”  Goodwin, 717 F.3d at 520.

The Goodwin decision cited to United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009), which explained a similar issue as follows:
In keeping with that idea, § 5D1.2(c) of the Guidelines provides that “[t]he term of supervised release imposed shall be not less than any statutorily required term of supervised release.” Thus, the statutory minimum term of supervised release defines either the bottom limit of the advisory Guideline range or the entire range (if it coincides with the top of the Guidelines range). For Gibbs, because the Guidelines suggested three to five years but the statute requires five years, the advisory Guideline range becomes five years, period.
The issue in Gibbs concerned the correct guidelines range of supervised release in a prosecution under 21 U.S.C. § 841(a)(1).


Application to Federal Drug Cases

Just as in SORNA prosecutions, certain defendants who are convicted of federal controlled substance offenses under 21 U.S.C. § 841(a) face a statutory minimum term of supervised release that is higher than the usual guidelines range.   See U.S.S.G. § 5D1.2(a)(1) (setting a term of supervised release of "[a]t least two years but not more than five years for a defendant convicted of a Class A or B felony").  Cf. 21 U.S.C. § 841(b)(1)(A) (five-year or ten-year statutory minimum term of supervised release); 21 U.S.C. § 841(b)(1)(B) (four-year or eight-year statutory minimum term of supervised release); 21 U.S.C. § 841(b)(1)(C) (three-year or six-year statutory minimum term of supervised release).

Thus, in many of these controlled substance cases, “the statutory minimum term of supervised release is greater than the top end of the Guidelines range of § 5D1.2(a)(2) . . . ."  And in this situation, U.S.S.G. § 5D1.2(c) dictates that "the statutory minimum controls.”  This is true regardless of whether the crime of conviction is failure to register as a sex offender under 18 U.S.C. § 2250 or a controlled substance offense under 21 U.S.C. § 841(a).  Thus, the government's concession of this issue in a SORNA case should impact drug prosecutions under  21 U.S.C. § 841(a).

The Tenth Circuit previously considered the application of U.S.S.G. § 5D1.2(c) to a supervised release term for a 21 U.S.C. § 841 conviction in United States v. Poe, 556 F.3d 1113, 1129 (10th Cir. 2009).   In Poe, the court considered the procedural reasonableness of a 10-year term of supervised release for a conviction of possession of methamphetamine with intent to distribute sentenced under 21 U.S.C. § 841(b)(1)(C), where the minimum statutory term of supervised release was six years.  The court summarized the defendant's argument:  "Poe contends that § 5D1.2(a) interacts with § 5D1.2(c) such that if a statutory mandatory minimum is higher than the term a defendant would otherwise receive under § 5D1.2(a), that statutory minimum is also the maximum of the applicable Guidelines range. Under this theory, the applicable Guidelines range in this case is six years, no more, no less."  Poe, 556 F.3d at 1129.  The Poe court did not reach the issue, concluding instead that Poe had not shown plain error.  Id.

Nonetheless, it appears that the issue in Poe regarding the guidelines range of supervised release for a conviction under  21 U.S.C. § 841(a) is the same as the SORNA issue conceded by the DOJ in the Davis case.  Although the concession in Davis was cursory and did not cite to case law, it appears the DOJ adopted the holding of the Seventh Circuit in Goodwin.  And because of this similarity, attorneys in these cases should object to any PSR that sets a guidelines range of supervised release of "___ years to life."  Instead, it is very likely that Goodwin/Gibbs and U.S.S.G. § 5D1.2(c) control the guidelines range of supervised release for offenses sentenced under 21 U.S.C. § 841(b).  And as explained in Gibbs, "the statutory minimum term of supervised release defines either the bottom limit of the advisory Guideline range or the entire range (if it coincides with the top of the Guidelines range)."  See 578 F.3d at 695.