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Federal Judiciary

Sixth Circuit Blog

Case summaries and commentary by Federal Defenders of the Sixth Circuit.

Post Frequency: 2/day

Last Entry: November 02, 2020 at 09:14:00

Trophy Catch---SORNA Victory

Posted on November 24, 2009
United States v. Cain, No. 07?4535 (6th Cir. Oct. 13, 2009). Judges Guy, Rogers, and Griffin.Facts: Defendant was convicted of attempted rape in Ohio in 1998. Defendant had to register as a sex offender. July 27, 2006, SORNA became law. That summer, the defendant wanted to move to Georgia...

Search and Seizure Resource

Posted on November 23, 2009
Great outline. Thanks to the 9th Cir./Oregon crew for putting together. Really worth a look!http://circuit9.blogspot.com/2009/10/search-seizure-update.html

CIs

Posted on November 19, 2009
Interesting story today about police recruiting CIs. Girl was 20 years old, no drug ties, got picked up for not paying traffic tickets and driving while license suspended. Police said she could avoid a night in jail by becoming a drug CI. Interesting discussion of CIs, recruitment, the risks they take, etc...

Intended Loss Amount

Posted on November 18, 2009
Unpublished opinion in United States v. Newson, No. 08?6080 (6th Cir. Nov. 16, 2009). Panel of Judges Moore, Cook, and Ludington (E.D. Mich.). Defendant pleaded guilty to document fraud (18 U.S.C. § 1028(a)(7)). Sentence of 30 months.Because of lack of factual record regarding the defendant?s intent, the court vacated the sentence and remanded...

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Entrapment and Pre-Trial Delay

Posted on November 13, 2009
First, I apologize for my recent lack of posting. It has been a little hectic. I also apologize because this post will be quite brief?again, just a tad hectic.This week, we have United States v. Schaffer, No. 09?3053 (6th Cir. Nov. 12, 2009). Panel of Chief Judge Batchelder, and Judges Daughtrey and Van Tatenhove (E...

Child porn and probable cause

Posted on October 08, 2009
The Sixth Circuit today issued an opinion in United States v. Frechette that has already caused Douglas Berman over at Sentencing Law and Policy to ask "Is concern about child porn distorting normal criminal procedure rules?"The facts are essentially that the defendant, a registered sex offender, paid for a one month subscription to a website that advertised the availability of child porn...

Resources Available at fd.org

Posted on October 07, 2009
This post breaks no new ground, but I just wanted to remind everyone, especially the panel attorneys out there, to turn to the Sentencing Resource page at fd.org for a variety of excellent materials. I turn to the papers there on a regular basis and dug in once again this past weekend...

S. Ct. Updates

Posted on October 02, 2009
This is going to be brief b/c it's been quite a week here, but interesting things have been brewing.Supreme Court:* 924(c)---United States v. O-Brien, No. 08--1569.Question Presented:Sec. 924(c)(1) provides for escalating mandatory minimum sentences depending on the manner in which the basic offense is carried out...

Speedy Trial Win

Posted on September 08, 2009
United States v. Tinklenberg, Nos. 06?2646 and 08?1765 (6th Cir. 2009). Panel of Judges Keith, Clay, and Gibbons. In an opinion that addresses issues of first impression for the court, the panel dismissed the defendant?s case with prejudice. Points:* It is the date the defendant appears and not the date of the defendant?s not-guilty plea that starts the speedy-trial clock...

More Is Brewing on the Crime-of-Violence Front

Posted on September 02, 2009
Very interesting opinion just released?United States v. Wynn, No. 07?4307 (6th Cir. Sept. 2, 2009). Panel of Judges Moore, Gibbons, and Friedman (of the Federal Circuit). Issue: Is a conviction under Ohio?s Section 2907.03 for "sexual battery" a crime of violence?Points:* Court could not tell which subsection of the statute was the subsection under which the defendant had been previously convicted...

New Blog on Snitches

Posted on August 31, 2009
This month, Alexandra Natapoff, a professor at Loyola Law School in L.A., launched a blog on snitching and the criminal justice system. http://www.snitching.org/Offers some interesting notes on snitches and snitching and legal news of interest.

New Limited Context Test for Lasciviousness

Posted on August 28, 2009
The Sixth Circuit issued three published criminal opinions this week, plus one quasi-criminal/quasi-civil case. However, other than the facts in a couple of them, only one of them, in my opinion, was particularly groundbreaking. The Court's opinion in U...

Guns and Intent and Other Things---2 Cases

Posted on August 21, 2009
I don't have the best cases to blog, so I thought I'd at least post a cheerful picture!United States v. Davis, No. 08?1349 (6th Cir. Aug. 20, 2009)?panel of Judges Cole, Clay, and Cleland (E.D. Mich.). Defendant charged with being a felon in possession of a firearm...

Looking For the Substantively Reasonable Number

Posted on July 30, 2009
In United States v. Harris, 07-4175 (6th Cir. July 27, 2009), Judges Gibbons, McKeague, and Shadur, vacated Harris?s sentence and remanded for resentencing. Harris had pled guilty to two counts of possessing child pornography, one count of receiving and distributing child pornography, and one count of knowingly possessing a computer with child pornography on it...

Computer Searches, The Fourth Amendment, and Sarah Palin

Posted on July 17, 2009
While I know this is not directly related to Sixth Circuit actions in cases, I thought it might be of interest to criminal defense practitioners in addressing searches of computers.I am not sure if this story has made national news, but it is turning into an interesting case down here in Tennessee...

Plea Agreements and Mandatory Minimums

Posted on July 13, 2009
The panel of Chief Judge Boggs and Judges Moore, and Sutton issued an opinion in United States v. Jones, No. 08?1352 (6th Cir. July 7, 2009), considering mandatory minimums and construing plea agreements. The panel made clear a few interesting points, among them:* A plea agreement will always be construed against the government if there is any ambiguity...

Published Clarification on Sec. 3582(c)(2)

Posted on July 09, 2009
On June 30, 2009, the panel of Judges Moore, Gilman, and Phillips (E.D. Tenn.) decided United States v. Johnson and Moss, Nos. 08?3925, 08?3926 (6th Cir. June 30, 2009). The published opinion considers the § 3582(c)(2) motions of two defendants who were indicted for crack and powder cocaine offenses, but who were ultimately sentenced based only on the powder...

Defense Attorneys, As Well As Judges and Prosecutors, Must Get Their Heads In The Post-Booker Process

Posted on June 15, 2009
In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), when a proffered plea agreement required her to plead guilty to additional conduct that she denied committing in order for the government to file a §5K1.1 motion for assistance she had provided, Blue decided to accept an offer that did not require her to admit the additional conduct, but which did not include the filing of the §5K1...

Three Quick Notes on Cases---Rule 35(b), Fleeing and Eluding, and Explanations of Sentences

Posted on June 11, 2009
United States v. Grant, No. 07?3831, 2009 U.S. App. LEXIS 12330 (6th Cir. June 9, 2009) (panel of Judges Gibbons, Keith, and Merritt):* "What factors a district court may consider when ruling on a Rule 35(b) motion is an issue of first impression in this circuit, though we have stated in an unpublished opinion that ?[i]n evaluating a Rule 35(b) motion for reduction, a district court can consider a broad array of factors...

Michigan R and O NOT a C of V

Posted on June 05, 2009
Hooray! Published opinion that Michigan Resisting and Obstructing a Police Officer is not a crime of violence! In United States v. Mosley, No. 08?1783 (6th Cir. June 5, 2009), panel of Chief Judge Boggs and Judges Moore and Sutton considered Michigan R and O under M...

Staving Off Attack?Child-Porn Sentencing Victory

Posted on May 26, 2009
In United States v. Cole, No. 07?4506 (6th Cir. May 22, 2009) (unpublished), the panel of Judges Kennedy, Norris, and Cole affirmed the judgment of the district court after the government appealed the defendant?s sentence. The defendant had pleaded guilty to transporting and possessing child pornography...

Ghosts of Sentences Past---Procedural Reasonableness

Posted on May 15, 2009
Yesterday in United States v. Barahona-Montenegro, No. 08?1345 (6th Cir. May 14, 2009), the panel of Judges Moore, McKeague, and Forester (E.D. Ky.) vacated a sentence as procedurally unreasonable and remanded the case for resentencing. At sentencing, the defense had objected to the criminal-history category in the PSIR...

Void for Vagueness ruling withdrawn

Posted on May 01, 2009
The Sixth Circuit issued an opinion today in U.S. v. Davis, Case No. 07-1964, ruling that officers had reasonable suspicion to believe that Mr. Davis's vision was obstructed by a stuffed Tweety Bird hanging from the mirror. This would not be that exceptional if it wasn't for the fact that this opinion is in direct conflict with a prior opinion by the Court from last December ruling that the statute was void for vagueness...

Good News Re. Crack--Powder Disparity!

Posted on April 30, 2009
Yesterday, DOJ came out in support of eliminating the disparity between crack and powder cocaine sentences. Lanny Breuer, Assistant Attorney General, spoke before the Senate Subcommittee on Crime and Drugs. Here's his written testimony:http://judiciary...

When Are We Burros? IAC Claims and Petitions for Cert...

Posted on April 30, 2009
In United States v. Nichols, No. 05?6452 (6th Cir. Apr. 29, 2009), the Circuit en banc considered whether it is ineffective assistance of counsel to fail to preserve a "future change in the law" argument, one hoping that the Supreme Court will strike down existing law while a defendant?s case is still pending on direct appeal...

Sentencing---Remand for Drug-Quantity Error

Posted on April 20, 2009
In United States v. White, No. 07?2404 (6th Cir. Apr. 16, 2009), the panel of Judges Kennedy, Martin, and Cole affirmed the defendant?s conviction, but remanded for resentencing. A jury found the defendant guilty of several cocaine and firearm offenses and the district court imposed a life sentence...

Every Man a King (or at least a Commentator)

Posted on April 08, 2009
I know that many of you have been itching to comment on the posts at this site, but have been frustrated by the lack of access. Well, remain silent no more! We have worked out our issues with the "comment" feature of the site and anyone should now be able to post comments to the articles on the blog...

Trajectory of Change? Power to Vary from All Guidelines Based on Policy Reasons?

Posted on April 08, 2009
In a very short, published opinion, the panel of Judges Keith, Merritt, and Gibbons remanded a crack case for resentencing. United States v. Vandewege, No. 07?2250 (6th Cir. Apr. 8, 2009). The gist of the case is that the sentencing court did not err in attributing 12...

Getting Funky?Gov Moves Ct to Dismiss Appeal

Posted on April 03, 2009
United States v. Funk, No. 05?3708 (6th Cir. Mar. 27, 2009).On March 27, 2009, the Circuit granted the government?s unopposed motion to dismiss the appeal with prejudice. The panel opinion that was going to be considered en banc remains vacated.What this move means for us...

"A Walkaway Escape Is Not Unambiguously a Crime of Violence"

Posted on March 31, 2009
In United States v. Ford, No. 08?5091 (6th Cir. Mar. 18, 2009), the panel of Judges Merritt, Cole, and Sutton found that a walkaway escape is not a crime of violence. Use of force is not an element of Kentucky?s second-degree escape offense. Analysis therefore proceeded under the "otherwise clause" of 4B1...

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