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Cert Alert

Supreme Court Cases of Interest

By Carol Garfiel Freeman

The most important event in the last quarter of the Term was, of course, the retirement of Justice Kennedy and nomination of Judge Brett Kavanaugh to replace him. Justice Kennedy has been pretty much in the center of the Court during the last few years, generally voting with the four “liberal” justices on civil liberties issues and with the four “conservative” justices on other issues. But it is risky to define a justice or to predict how a person will react to a specific issue in a specific case. Justice Scalia, for example, insisted that the Confrontation Clause of the Sixth Amendment required a jury decision on every fact that might affect a sentence (Apprendi v. New Jersey, 530 U.S. 466 (2000)) and wrote the majority opinion in Kyllo v. United States, 533 U.S. 27 (2001), which held that the Fourth Amendment prohibits agents from using the modern technique of heat imaging as the basis for a search warrant. Perhaps when the October 2018 Term begins, observers will have a new ninth justice to watch.

Probably the most significant of the cases decided during the last few months is Carpenter v. United States, infra, which held that a cell phone owner has a Fourth Amendment expectation of privacy in the cell phone location information collected by his Internet provider. The Court also held that a lawyer who believes admitting guilt might be the best chance to avoid a death sentence may not go against his client’s expressed desire to maintain his innocence. (McCoy v. Louisiana, infra.) As of this writing, there are 12 cases of criminal justice interest on the docket for next Term. These include whether the separate sovereign exception to the Double Jeopardy Clause should be overruled (Gamble v. United States, infra), and two cases involving application of 19th century Indian treaties to state prosecutions (Herrera v. Wyoming and Royal v. Murphy, infra). The case of Vernon Madison is again before the Court and is to be argued on October 2. (Madison v. Alabama, No. 17-7505, infra.) Madison is the 67-year-old death row prisoner who because of vascular dementia and several strokes is unable to remember the crime of which he was convicted or to understand the circumstances of the proposed execution. Another case challenging the application of the death penalty to a medically compromised prisoner is also on the calendar. (Bucklew v. Precythe, No. 17-8151, infra.)

As usual, several opinions relating to orders warrant mention. Justice Breyer continued his effort to persuade his colleagues to consider whether the death penalty itself as administered violates the Eighth Amendment. He dissented from the denial of cert in Jordan v. Mississippi, No 17-7153 (June 28, 2018), noting that Jordan had been on a “squalid” death row for 42 years, that death sentences are arbitrary in that they are geographically limited, that execution has become so rare as to be considered “unusual,” and that since January 2017, six people have been released from death rows, of whom four were released based on evidence of actual innocence. Justice Sotomayor continued her effort to have the Court consider whether Florida improperly reduces the jurors’ responsibilities as to the decision to impose the death penalty, dissenting from the denial of cert in Kaczmar v. Florida, No. 17-8148 (June 18, 2018). Joined by Justice Ginsburg, Justice Sotomayor dissented from the denial of cert in Trevino v. Davis, No. 17-6883 (June 4, 2018), writing that the court of appeals had failed to consider the new mitigating evidence in light of the entire record on the issue of prejudice. Finally, Justice Sotomayor, joined by Justice Ginsburg, wrote respecting the denial of cert in Peede v. Jones, No. 17-8491 (June 25, 2018), observing that new mitigating evidence must be considered on the issue of prejudice even if “double edged,” but noting that the Court’s intervention was not warranted under the procedural posture of the case under Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1)–(2).

Further information about these cases and others on the Court’s docket are on the Court’s website,


Note: Questions presented are quoted as drafted by the parties, or, in some instances, by the Court.

Capital case—Eighth Amendment

Bucklew v. Precythe, No. 17-8151, cert. granted, Apr. 30, 2018, decision below at 883 F.3d 1087 (8th Cir. 2018).

Should a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended?

Must evidence comparing a state’s proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate?

Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition?

In addition to the questions presented in the petition, the parties are directed [by the Court] to brief and argue the following question: whether petitioner met his burden under Glossip v. Gross, 576 U.S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

Crimes and Offenses

Herrera v. Wyoming, No. 17-532, cert. granted, June 28, 2018, decision below unreported (Dist. Ct. Wyo. 2017), discretionary court decision June 6, 2017.

Whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.

United States v. Stitt, No. 17-765, cert. granted, Apr. 23, 2018, decision below at 860 F.3d 854 (6th Cir. 2017), consolidated for one-hour oral argument with United States v. Sims, No. 17-766, cert. granted, Apr. 23, 2018, decision below at 854 F.3d 1037 (8th Cir. 2017). The questions presented in both cases are identical:

Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(2)(B)(ii).

Eighth/Fourteenth Amendment

Timbs v. Indiana, No. 17-1091, cert. granted, June 18, 2018, decision below at 84 N.E.3d 1179 (Ind. 2017).

Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.

Fifth Amendment

Gamble v. United States, No. 17-646, cert. granted, June 28, 2018, decision below at 694 F. App’x 750 (11th Cir. 2017).

Whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.


Royal v. Murphy, No. 17-1107, cert. granted, May 21, 2018, decision below at 875 F.3d 896 (10th Cir. 2017) (Justice Gorsuch took no part in the decision to grant cert).

Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151 (a).

[Ed. Note: This is a capital case in which the State of Oklahoma is the prosecutor. The lower courts’ decisions apparently have cast doubt on the jurisdiction of the state to prosecute crimes on behalf of the state in an area encompassing approximate half of the state. Thus, the case is more significant on the issue of jurisdiction than on any issue relating to capital cases generally.]

Sixth Amendment

Garza v. Idaho, No. 17-1026, cert. granted, June 18, 2018, decision below at 405 P.3d 576 (Idaho 2017).

Does the “presumption of prejudice” recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver?

Related Civil Case

Nieves v. Bartlett, No. 17-1174, cert. granted, June 28, 2018, decision below at 712 F. App’x 613 (9th Cir. 2017), reh’g denied, Nov. 21, 2017.

In Hartman v. Moore, 547 U.S. 250 (2006), this Court held that probable cause defeats a First Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a First Amendment retaliatory-arrest claim under § 1983?


Capital Case—Sixth Amendment

McCoy v. Louisiana, No. 16-8255 (May 14, 2018). McCoy was charged with capital murder in connection with the deaths of the mother, stepfather, and son of his estranged wife. The evidence against him was exceedingly strong. His first attorney requested a sanity commission examination, which concluded that he was competent to stand trial. Subsequently, McCoy told the court his relationship with the lawyer was irretrievably broken. He was allowed to represent himself until his parents retained a lawyer, Larry English. English concluded that the only hope of avoiding a death sentence was to admit the facts and argue that McCoy should be found guilty only of second degree murder. McCoy vigorously objected and insisted that the lawyer argue for acquittal. A few days before trial, McCoy sought to discharge English, who asked to be relieved if McCoy obtained other counsel. The court rejected this and directed that English make the decision as to what defense to put on. At trial, English admitted that McCoy had committed the murders; McCoy continued to object. The jury convicted McCoy and returned a death sentence. New counsel argued on appeal that McCoy’s constitutional rights were infringed by allowing his lawyer to admit guilt over the client’s objection. The Louisiana courts affirmed; the Supreme Court reversed. Justice Ginsburg briefly reviewed the history of the right to counsel and the right to self-representation. (Faretta v. California, 422 U.S. 806 (1975).) Decisions as to trial management, which involved how to achieve the client’s objectives, are for the lawyer. Decisions as to whether to plead guilty, to waive the right to a jury trial, to testify in one’s own behalf, and to appeal remain with the client because they are choices based on the client’s objectives. Whether to continue to assert innocence is a decision for the client, based on the client’s aims, even if the lawyer disagrees. The majority of state courts that have considered the issue agree. This is not a case of whether the lawyer should assert a defense that the client has admitted is false because McCoy steadfastly denied that he had killed the victims. (Cf., Nix v. Whiteside, 475 U.S. 157 (1986).) Similarly, Florida v. Nixon, 543 U.S.174 (2004), is distinguishable because Nixon had been silent in discussions of trial strategy and did not object when his attorney explained that he was going to concede guilt during the guilt phase of the trial. Because Nixon’s counsel did not contradict the client’s own objectives, his concession of guilt did not impact Nixon’s Sixth Amendment rights. The usual rules involving ineffective assistance of counsel do not apply here because the issue was not counsel’s competence but the client’s “autonomy.” This is the kind of error the Court describes as “structural” and McCoy need not show prejudice; harmless error review is inapplicable. Opinion by Justice Ginsburg, in which Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan joined. Justice Alito filed a dissenting opinion in which Justices Thomas and Gorsuch joined.

Fifth Amendment

City of Hays v. Vogt, No. 16-1495, argued on Feb. 10, 2018, presented the question whether the Fifth Amendment is violated when compelled statements are used at a probable cause hearing but not at a criminal trial. On May 29, per curiam (without the participation of Justice Gorsuch), cert was dismissed as improvidently granted.

Currier v. Virginia, No 16-1348 (June 22, 2018). Currier was charged with burglary, larceny, and possession of a firearm by a felon, all charges stemming from a break-in and theft of a safe containing firearms and cash. The safe had been dumped in a river, still containing the guns but without the cash. Currier had prior convictions for burglary and larceny and, pursuant to Virginia practice, agreed with the prosecution to sever the gun charge from the burglary/larceny counts to avoid having the jury on the latter charges hear about his prior convictions. After he was acquitted of the burglary and larceny, he moved to dismiss the firearm count on the ground of double jeopardy. The motion was denied, he was convicted, and the Virginia appellate court affirmed. The Supreme Court affirmed, concluding that Currier’s consent to the severance mooted any argument he might have under Ashe v. Swenson, 397 U.S. 436 (1970), that trial of the firearm count was essentially relitigation of the counts on which he had been acquitted. The Double Jeopardy clause was designed to prevent prosecutorial overreaching; prior cases hold that there is no overreaching when the defendant consents to separate trials. Opinion on these points by Justice Gorsuch, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined. Justice Gorsuch’s opinion also discussed Currier’s argument that the court should have excluded evidence that he possessed the guns at the house and on the way to the river because the acquittal had settled this in his favor. The Double Jeopardy clause deals with relitigation of offenses, not of facts, which are mentioned in the Seventh Amendment and relate only to facts resolved in civil cases. Chief Justice Roberts and Justices Thomas and Alito joined in this portion of the opinion. Justice Kennedy wrote separately, emphasizing that Currier’s choice precluded him from raising a Double Jeopardy issue, even one related to factual issues that might be based on Ashe v. Swenson. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented, concluding that Currier’s consent to severance did not preclude him from raising a Double Jeopardy claim based on the facts that had been resolved in his favor at the first trial.

Fourth Amendment

Byrd v. United States, No. 16-1371 (May 14, 2018). A woman rented a car that she then gave to Byrd, who loaded items into the trunk and began driving from New Jersey to Pittsburgh. Byrd was not listed on the rental agreement as an additional driver. The agreement stated that permitting an unauthorized driver to operate the car would be “a violation of the rental agreement” and might result in insurance coverage being void. Long, a Pennsylvania state trooper, became suspicious because Byrd had his hands in the “10 and 2” position, was sitting far back from the steering wheel, and was driving a rental car. Soon thereafter he stopped Byrd for a possible traffic violation. Byrd was nervous, and Long and another officer decided that Byrd had no expectation of privacy because he was not listed on the rental agreement. A computer search turned up different names for Byrd, prior convictions for weapons and drug offenses, and a warrant from New Jersey for a probation violation (although the state did not want him extradited). Byrd said he had a “blunt” in the car but refused to consent to the search of the car. The officers searched the car and, in the trunk, found body armor and several bricks of heroin. A motion to suppress was denied on the ground that Byrd lacked “standing” because he was not listed on the rental agreement. Byrd entered a conditional plea to allow him to appeal. The court of appeals affirmed on the ground that Byrd lacked “standing” to object to the search. Neither the trial court nor the court of appeals ruled on the prosecution’s argument that the officers had probable cause to search after Byrd admitted he had marijuana in the car. The Supreme Court resolved a conflict among the circuits by holding that generally a driver in lawful possession and control of a rental car has a reasonable expectation of privacy in the rented car even if she is not listed on the rental agreement, and thus has a Fourth Amendment right to object to a search of the vehicle. (See Rakas v. Illinois, 439 U.S. 128 (1978).) A common-law property interest is not necessary for an occupant of premises to claim a reasonable expectation of privacy, but legitimate presence alone does not necessarily suffice. What is necessary is a connection based on property law or on an understanding that is recognized by society, including the right to exclude others. (See Jones v. United States, 362 U.S. 257 (1960). ) The requirement that a driver be listed on the rental agreement is too restricted. In many circumstances, an unlisted driver may drive a rental car, for example, if the renter has been drinking, and thus violate the rental agreement but still have an expectation of privacy in the car. Byrd’s argument that the sole occupant of a rental car has an expectation of privacy is too broad because it would include thieves. The government did not argue below that Byrd stood essentially in the position of a thief because he knew he would be unable to rent the car based on his record. This issue can be considered further on remand, as can the question whether probable cause existed to search the car absent consent or a warrant. Opinion for a unanimous Court by Justice Kennedy. Justice Thomas filed a concurring opinion in which Justice Gorsuch joined. Justice Alito also filed a concurring opinion.

Carpenter v. United States, No. 16-402 (June 22, 2018). Officers investigating a series of robberies arrested four men, one of whom identified 15 others associated with the group and provided cell phone numbers for some of them. Based on these numbers and other numbers that this person had called around the time of the robberies, the prosecutors obtained orders under the Stored Communications Act, 18 U.S.C. § 2703(d), for cell phone records of Carpenter and others. The records placed Carpenter in the area of the robberies at the times they occurred. Carpenter was charged with six counts of robbery and six firearms counts. His motion to suppress the cell phone location records was denied. The court of appeals affirmed on the ground that Carpenter had no expectation of privacy in the information that he had voluntarily provided, and the records thus produced were business records not subject to the Fourth Amendment. The Supreme Court reversed, holding that cell phone location records are private records subject to the Fourth Amendment. Traditionally, whether the Fourth Amendment applied depended on whether there was a physical trespass into a constitutionally protected area. Later, the Court observed that the amendment “protects people, not places,” in Katz v. United States, 389 U.S. 347, 351 (1967), and that a warrant supported by probable cause is required before an intrusion into an area in which there is an expectation of privacy. (Smith v. Maryland, 442 U.S. 735, 740 (1979).) Decisions have expanded the application of the Fourth Amendment to include “surveillance tools” that were not around when the amendment was adopted, such as thermal imaging to detect heat emanating from a home. (Kyllo v. United States, 533 U.S. 27 (2001).) Similarly, because of the “immense storage capacity” of cell phones, generally a warrant is required before a phone seized pursuant to an arrest can be searched. (Riley v. California, 134 S. Ct. 2473(2014).) There are two lines of relevant cases. The first, relying on physical trespass, includes United States v. Jones, 565 U.S. 400 (2012), which held that the Fourth Amendment requires a warrant before the police can attach a GPS tracking device to a subject’s car and thereby follow the subject’s movements for a month. Another line of cases holds that the Fourth Amendment is not implicated when the government seeks material such as checks and deposit slips that the subject has voluntarily placed with a third party. (United States v. Miller, 425 U.S. 435 (1976).) Those records became business records of the bank and Miller had limited expectations of privacy in the records once placed in the bank’s hands. Similarly, use of a pen register to record numbers dialed on outgoing calls is not a search because of the limited information revealed, the likelihood of a limited expectation of privacy, and the phone company’s business purpose in retaining the records. (Smith v. Maryland, 442 U.S. 735 (1979).) The cell phone location data maintained by the wireless companies is somewhat similar to the GPS tracking device in Jones, but because of the very detailed information provided by cell phone location data, there is an expectation of privacy although the data are held by a third party. The Court observed that the hundreds of thousands of people who carry their phones wherever they go during the day, including within buildings and within their homes, do not expect that their movements will be subject to subpoena even though the track of their movements is in the possession of their wireless carrier. Moreover, it is impossible to avoid leaving a trail of locations unless the user disconnects from the wireless network, which most users do not. The Court carefully noted that its decision was narrow and did not impact surveillance techniques such as security cameras or national security or foreign affairs. The court order issued pursuant to the Stored Communications Act only required “reasonable grounds” to believe the records sought were “relevant and material to an ongoing investigation,” a showing that is not equivalent to probable cause. Certain records still can be obtained by subpoena, and there may be exigent circumstances that will obviate the need for a warrant, but generally a warrant will be required. Opinion by Chief Justice Roberts, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Kennedy filed a dissenting opinion in which Justices Thomas and Alito joined, essentially arguing that the records were not Carpenter’s and that he had no expectation of privacy in his movements, and suggesting a remand to determine the reasonableness of the seizure. Justice Thomas filed a dissenting opinion, discussing whose property the records were and suggesting that Katz be reconsidered. Justice Alito filed a dissenting opinion in which Justice Thomas joined, discussing the original meaning of the Fourth Amendment and the use of subpoenas, and reiterating that the records were the property of the wireless company. Justice Gorsuch filed a dissenting opinion arguing that the third-party doctrine is wrong, discussing what Katz means, and urging a return to the text of the Amendment.

Collins v. Virginia, No. 16-1027 (May 29, 2018). While investigating two traffic incidents involving a distinctive motorcycle, Officer Rhodes concluded that the cycle was probably stolen and was in the possession of Ryan Collins because a picture of the cycle at the top of a driveway appeared on Collins’ Facebook page. He tracked Collins to a girlfriend’s house where he often stayed, and at the head of a driveway saw what appeared to be a motorcycle covered by a tarp. Without a warrant, he walked up the driveway, took off the tarp, examined the bike, and identified it as the stolen bike by its license plate and VIN. He took a photo, put the tarp back, and returned to the street. When Collins returned home, the officer confronted him and he admitted that he had bought the bike without a title. In a prosecution for receiving stolen property, Collins argued that the officer had trespassed on the curtilage of the house in violation of the Fourth Amendment. His motion to suppress the evidence obtained during that trespass was denied and the Virginia appellate courts affirmed. The Supreme Court reversed. The Fourth Amendment protects persons in their property and their homes, including the curtilage, from unreasonable searches and seizures. An officer’s entry on the curtilage of a home to obtain evidence is “presumptively unreasonable” unless he has a warrant. The mobility of the automobile and the government’s increasing governmental regulation are the bases for the “automobile exception” to the usual requirement of a warrant before a search and seizure of an automobile can be conducted, even one based on probable cause. However, the automobile exception does not cover entries onto the curtilage of a home without a warrant but covers only searches of the automobile itself. Even in order to seize contraband that is in plain view from outside the home, or to make an arrest of a person within the home, the officer generally must have a warrant to enter the home. The same rule applies to the vehicle located within the curtilage of the home. The Court rejected Virginia’s arguments, including a suggestion that the warrant requirement apply only to vehicles within an enclosed structure such as a garage (this cycle was in what apparently was a carport). The majority noted that this would distinguish in constitutional rights between persons with the financial means to afford a garage and those who had only a carport. The case was remanded for further consideration of whether a different basis would support the warrantless entry, such as exigent circumstances. Opinion by Justice Sotomayor in which all justices except Justice Alito joined. Justice Thomas concurred but wrote separately that the exclusionary rule, adopted for the federal courts in Weeks v. United States, 232 U.S. 383 (1914), and made applicable to the states in Mapp v. Ohio, 367 U.S. 643 (1961), is not properly based on the Constitution and should not be imposed on the states. Justice Alito dissented, arguing that the automobile exception should apply because the motorcycle was as mobile in the driveway as it had been on the public street, the intrusion on private property was minimal, and that the issue is not whether the motorcycle was within the curtilage of the house but whether the search was reasonable.

Dahda v. United States, No. 17-43 (May 14, 2018). This case challenged the sufficiency of a wiretap order issued by a district judge in Kansas. The wiretap order contained all elements required by 18 U.S.C. § 2510 et seq. As relevant here, the statute generally requires that either the tapped telephone or the government’s “listening post” be located in the “territorial jurisdiction” of the judge issuing the order. The order included a provision that if the target telephone were taken out of the territorial jurisdiction of the court, “the interception may take place in any other jurisdiction within the United States.” Calls generally were monitored from listening posts in Kansas. Once, however, a call from a phone in California was monitored from a listening post in Missouri. The government agreed not to offer any evidence about that call during the trials. Defendants, however, sought suppression of all evidence obtained from the orders, arguing that the wiretap orders were “insufficient on [their] face[s]” because of the inclusion of the provision that on its face would have authorized this interception. (18 U.S.C. § 2518(10)(a)(ii). ) The court of appeals cited United States v. Giordano, 416 US. 505 (1974), in concluding that the “insufficiency” that would void the order must be an insufficiency in one of the statute’s “core statutory concerns,” such as protecting the privacy of communications and making uniform the circumstances under which communications could be intercepted. The Court held this interpretation was too narrow and that the “insufficiency” includes “at least” omission of a provision that the statute specifically requires in the order, such as the type of communication to be intercepted and the offense to which it relates. The Court did not consider all matters that might render an order insufficient. It concluded that in this case the provision that purported to authorize interception outside of Kansas of a communication from a phone outside Kansas was superfluous and without legal effect and that the orders were legally sufficient otherwise. Opinion for the Court by Justice Breyer, in which all other justices joined except Justice Gorsuch, who took no part in the consideration or decision of the case.


United States v. Sanchez-Gomez, No. 17-312 (May 14, 2018). This case challenged the practice of a US District Court to require pretrial detainees to appear in court for nonjury proceedings in full restraints, involving handcuffs chained to a belt and feet shackled and chained together. Four detainees challenged this procedure. The district court denied relief. The litigants’ cases ended before the court of appeals rendered a decision. The appellate court treated the case as a “functional class action,” declined to dismiss it as moot, and held that the policy violated due process. The Supreme Court, in a unanimous opinion by Chief Justice Roberts, vacated and remanded with directions to dismiss the case as moot. Gerstein v. Pugh, 420 U.S. 103 (1975), which allowed a case challenging claims about pretrial detention to continue after the named plaintiffs’ claims were mooted, is not in point because it was brought as a class action under Fed. R. Civ. P. 23. Because of the inherent nature of pretrial detention, there always would be individual members of the class. There is no similar procedure for criminal cases. Moreover, although plaintiffs suggested that the issue would recur at least for the two litigants who had been charged with and convicted of unlawful entry, the Court would not assume that they would continue to break the law (even though these two had again reentered the US illegally). The Court noted that oral argument had mentioned several possible ways to challenge the full restraint practice and voiced no opinion on the question.


Chavez-Mesa v. United States, No. 17-5639 (June 18, 2018). This case involves the adequacy of a district judge’s explanation for the sentence he imposed in a drug case on reconsideration after the US Sentencing Commission reduced the relevant guidelines. Petitioner Chavez-Mesa pleaded guilty to possession of methamphetamine with intent to distribute. The original guidelines called for a sentence of between 135 and 168 months’ imprisonment. The judge imposed a sentence of 135 months, the bottom of that range. After the Commission reduced the guidelines to 108–135 months, petitioner sought a reduction to the bottom of those guidelines. Instead, the judge (who had been the original sentencing judge) imposed a sentence of 114 months, which he entered on a form provided by the Administrative Office of the Courts, Form 247, noting that he had “considered” the motion and had taken into consideration the relevant factors. In Rita v. United States, 551 U.S. 338 (2007), the Court essentially held that although the sentencing court should set forth the reasons why it imposes a particular sentence, a full opinion is not needed in every case. The extent of the explanation required would vary with the complexity of the case, although the record should show that the judge considered the parties’ arguments and had a reasonable basis for the decision. Assuming that the same principles apply to resentencing, the reasons for the district court’s decision here are in the record from the original sentencing. If a court of appeals is unclear about the judge’s reasons, it can remand for further information. The Court rejected petitioner’s argument that he should have been sentenced at the bottom of the revised guidelines merely because the original sentence was at the bottom of the original guidelines. Opinion by Justice Breyer, in which Chief Justice Roberts and Justices Thomas, Ginsburg, and Alito joined. Justice Kennedy, joined by Justices Sotomayor and Kagan, dissented on the grounds that the reasons given on resentencing were inadequate for “meaningful appellate review.” They suggested amendments to Form 247 that would avoid this issue. Justice Gorsuch took no part in the consideration or decision of the case.

Hughes v. United States, No. 17-155 (June 4, 2018). A “Type C” plea agreement (Fed. R. Crim. P. 11(c)(1)(C)) is one in which the government and the defendant agree on an appropriate sentence or sentencing range. The court is required to impose that sentence if it accepts the plea. Often the decision whether to accept the plea will be made after preparation of the presentence report, which will include a discussion of the applicable sentencing guidelines, which must be considered by the court in deciding whether to accept the plea. Hughes and the government agreed that he would plead guilty to two of four charges, with an agreed sentence of 180 months. In return, the government agreed to dismiss two charges and not file an information of prior convictions, which would have subjected Hughes to a mandatory life sentence. The court accepted the plea, noting that it was reasonable and compatible with the guidelines calculation of 188–235 months. Soon thereafter, the sentencing commission lowered the guidelines to a range of 151–188 months. The Supreme Court held that a defendant who had been sentenced to an agreed term pursuant to a “Type C” plea agreement is entitled to a reconsideration under 18 U.S.C. § 3582(c)(2) when the US Sentencing Commission reduces the guidelines applicable to his case. The Court emphasized that the sentencing guidelines, although advisory, remain the basis for all sentences even if in some instances the defendant is not sentenced to a term calculated by the guidelines. If the sentencing commission provides that a guidelines reduction should apply retroactively, the court may reduce a sentence if it is consistent when applicable policy statements. In holding that Hughes was entitled to a review of his sentence, the Court declined to consider the appropriate application of an earlier case, Freeman v. United States, 564 U.S. 522 (2011), which had been decided by a 4-1-4 split, Justice Sotomayor writing separately from the plurality but concurring in the judgment. Subsequent decisions have emphasized that the guidelines are the “foundation” for all sentencing decisions, with cases like Koons, infra, a limited exception to the general rule. Opinion by Justice Kennedy, in which Justices Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch joined. Justice Sotomayor filed a concurring opinion. Chief Justice Roberts filed a dissenting opinion in which Justices Thomas and Alito joined.

Koons v. United States, No. 17-5716 (June 4, 2018). After the US Sentencing Commission lowered the sentencing range for certain offenses, defendants who had been sentenced based on the original range were eligible for sentence reductions. (18 U.S.C. § 3582(c)(2).) When petitioners had been sentenced, the judge had calculated the sentencing ranges under the original Guidelines ranges but then discarded those numbers because the numbers were lower than the mandatory minima applicable to the petitioners’ offenses. The ultimate sentences were lower than the mandatory minima because of petitioners’ substantial assistance to the government. An opinion by Justice Alito for a unanimous Court held that petitioners were not entitled to sentence reductions under section 3582(c)(2) because their sentences had not been based on the later-reduced sentencing range but rather on the mandatory minima and their substantial assistance.

Lagos v. United States, No. 16-1519 (May 29, 2018). Lagos was convicted of using a company he owned to defraud a lender, GE Capital Corporation (GE), of tens of millions of dollars. At sentencing, he was ordered to make restitution to GE for expenses it had incurred in its own investigation of the fraud and participation in Lagos’s company’s bankruptcy proceedings. Apparently these expenses were incurred before the government investigation and may have prompted the government to act. The Mandatory Victims Restitution Act of 1996 requires certain defendants to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” (18 U.S.C. § 3663A(b)(4).) The Court, in an opinion by Justice Breyer, unanimously held that GE’s expenses were not covered by the Act because they were incurred before the government investigation and prosecution. The expenses that would be reimbursed would normally be incurred during travel to conferences with government investigators or trial. Moreover, the expenses GE incurred here involved fees of private lawyers, investigators, and accountants involved in its private investigation and the bankruptcy proceedings, expenses not similar to those listed in the statute (child care, lost income, transportation). Finally, GE had another recourse, that is, it had already obtained a civil judgment against Lagos of more than $30 million, which it had been unable to collect. There was no reason to believe that it would be more likely to collect under a restitution order. The judgment was reversed and the case remanded for further proceedings.

Rosales-Mireles v. United States, No. 16-9493 (June 18, 2018). An error in calculation of the applicable sentencing guidelines that inadvertently was not recognized until appeal is a plain error affecting substantial rights, which would ordinarily “seriously affect the fairness, integrity, or public reputation of judicial proceedings” and should be corrected. (Fed. R. Crim. P. 52(b); Molina-Martinez v. United States, 578 U.S. ___ (2016) (slip. op. at 4–5); United States v. Olano, 507 U.S. 725 (1993).) In this case, the presentence report prepared by the US Probation Office calculated one of Rosales-Mireles’s convictions twice, resulting in a guidelines range of 77–96 months. The district court denied his request for a downward departure and imposed a sentence of 78 months. When the court of appeals considered the defendant’s argument for resentencing, it concluded that Rule 52(b) requires that the error must “shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” The Supreme Court held that this test is “unduly restrictive” and out of step with prior interpretations of Rule 52(b) and with the Court’s decision in United States v. Olano. The error in this case, caused by the Probation Office, an arm of the court, seriously affected the defendant’s rights by subjecting him to greater imprisonment than a correct guidelines calculation would have suggested. A correct calculation of the guidelines and sentencing would “assist . . . in achieving uniformity and proportionality of sentences” throughout the country. The government and the dissent agree that the court of appeals’ standard was wrong but argued that Rule 52(b) corrections should be “exceptional” (but an increased prison sentence would qualify as exceptional), that the sentence imposed was within the guidelines and thus “presumptively reasonable” (but it would be reasonable only if based on the correct guidelines range), and that this would permit defendants to “sandbag” by failing to object at the district court (but it is unlikely that counsel would fail to object to a recognized error in the hope of obtaining reversal later). Opinion by Justice Sotomayor in which Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, and Gorsuch joined. Justice Thomas filed a dissenting opinion in which Justice Alito joined.

Related Civil Case

Lozman v. City of Riviera Beach, No. 17-21 (June 18, 2018). Fane Lozman moved his floating home to a slip in a city-owned marina and began a series of criticisms of city operations and officials, including speaking out at city council meetings and finally filing a lawsuit. In June 2006, at a closed-door meeting of the council, in part to discuss the lawsuit, the council discussed a suggestion that they use city resources to “intimidate” Lozman. Several months later, at an open council meeting, Lozman took the mike to discuss the recent arrest of a former county official. He was directed to stop making those remarks, and when he persisted he was arrested and taken out in handcuffs. The charge was dismissed. The city claimed he had been arrested for failing to follow rules and then failing to leave. Lozman claimed he had been arrested in retaliation for his lawsuit and criticisms of city officials. A Civil Rights Act lawsuit (42 U.S.C. § 1983) ended in a verdict for the city. The issue before the Supreme Court was whether probable cause for an arrest (which was conceded at the Court) bars a claim that the arrest was in retaliation for Lozman’s exercise of his First Amendment rights (his lawsuit and his criticism of city officials). The Court discussed two possibly relevant cases, Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977) (a civil case holding that there is no liability when there are other grounds in addition to retaliation for protected speech), and Hartman v. Moore, 547 U.S. 250 (2006) (a criminal case holding that if there is probable cause for an arrest, any argument that it was in retaliation for protected speech fails). The Court declined to decide that issue because Lozman alleged more than simply the arrest but also the alleged policy of intimidation, of which he claimed the arrest was part. Thus, he did not have to prove the absence of probable cause to pursue his claim that the arrest was in retaliation for his protected speech. The judgment below was vacated and the case remanded for further proceedings. Opinion by Justice Kennedy in which all justices except Justice Thomas joined. Justice Thomas filed a dissenting opinion, writing that the Court should have decided the question on which cert had been granted and should have held that a litigant must prove the absence of probable cause as an element of his claim that the arrest was in retaliation for his exercise of his First Amendment rights.


Tuesday, October 2, 2018:

Gundy v. United States, No.17-6086, Cert Alert, 33:2 Crim. Just. at 47 (Summer 2018) (Authority of Attorney General to issue regulations under Sex Offender Registration and Notification Act).

Madison v. Alabama, No.17-7505, Cert Alert, 33:2 Crim. Just. at 46 (Summer 2018) (constitutionality of execution of a prisoner whose medical deterioration has left him unable to remember the offense of which he was convicted or to understand the circumstances of the execution).

Tuesday, October 9, 2018:

Stokeling v. United States, No.17-5554, Cert Alert, 33:2 Crim. Just. at 47 (Summer 2018) (application of Armed Career Criminal Act definition of “violent felony” to state offense that requires only “slight force” to overcome resistance).

United States v. Stitt, No.17-765, and United States v. Sims, No.17-766, supra.

Wednesday, October 10, 2018:

Nielsen v. Preap, No.16-1363, Cert Alert, 33:2 Crim. Just. at 47 (Summer 2018) (is a criminal alien exempt from mandatory detention when he is not taken into immigration custody immediately after release from criminal custody?).

Carol Garfiel Freeman

Carol Garfiel Freeman has been a staff lawyer with the US District Court for the District of Columbia, a deputy district public defender in Maryland, and an Assistant US Attorney for the District of Columbia. She is a contributing editor to Criminal Justice magazine and has been a Section vice chair for publications, chair of the Book Board, and chair and member of the editorial board of the magazine.

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