Monthly Archives: September 2020

Sentencing in the Federal System

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A recent case out of the Fourth Circuit—United States v. Bolden, 964 F.3d 283 (4th Cir. 2020)—provides a good illustration of how sentencing works in the federal system.

The Offense

Early in the morning of October 13, 2017 in Burlington, North Carolina, Jermarise Bolden got high on drugs and became paranoid. He “placed two women in a ‘bear hug’, and [began] shooting at shadows on the walls inside the home’s rear bedroom.” Someone called the police about the gunshots. The police arrived and quickly got control of the situation (without shooting anyone). Their protective sweep found two handguns, 2.6 grams of marijuana, and 300 milligrams of cocaine base. Mr. Bolden was eventually taken to a hospital, where he was diagnosed with multiple psychiatric disorders. The Government charged him with one count of being a felon in possession of a handgun, and he pled guilty.

Step 1: The Pre-Sentence Report, or PSR

In the federal system, the sentencing process begins when the probation office prepares a pre-sentence report (or “PSR”) in which it tries to apply the Sentencing Guidelines to the facts of the case and propose a sentencing range. The Guidelines take into account the events (the charged crime as well as relevant uncharged conduct) and the defendant’s criminal history and other characteristics. The events are scored on a point system and all the points are added together to arrive at the Offense Level. Then, the defendant’s interactions with the criminal justice system are assigned points according to rules, those points are summed, and the resulting sum is translated into a Criminal History Category. The Offense Level and the Criminal History Category form the axes of a table in the Sentencing Guidelines, so you take those two, find where they intersect, and there is your “Guidelines range,” usually expressed in months.

Here, the probation office started with the fact that Mr. Bolden pled guilty to being a felon in possession of a handgun. Then, the probation office suggested that an enhancement should apply because he “committed first-degree kidnapping by restraining the two women from the bedroom against their will.” Taken together—the felon in possession charge enhanced by the uncharged relevant conduct of first-degree kidnapping—the probation office recommended a sentence of 120 months (10 years).

Step 2: Objections to the PSR

The second step in the sentencing process: the defendant gets an opportunity to object to the PSR. Here, Mr. Bolden objected to the kidnapping enhancement. The Sentencing Guidelines provide that a sentence will be “enhanced” if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” USSG § 2K2.1(b)(6)(B). The application notes define “another felony offense” as “any federal, state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” USSG § 2K2.1 app. n. 14(C). To prove the enhancement, the Government has to prove the other felony by a preponderance of the evidence, not beyond a reasonable doubt. See U.S. v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). The “other felony” in this case was kidnapping. In North Carolina, a conviction for kidnapping requires a finding that the defendant acted ” ‘for the purpose of’ achieving certain illicit aims.” Slip Op. at 3–4 (citing N.C. Gen. Stat. § 14-39(a)). Mr. Bolden argued that “his mental condition on the morning of October 13 made it impossible for him to form the specific intent required for kidnapping under North Carolina law.” Slip Op. at 3. Without the kidnapping enhancement, the Guidelines range would have been 63 to 78 months (roughly 5 to 7 years).

Step 3: Determining the Sentence

The third step: the sentencing court rules on the objections (if any), hears other relevant material (like victim statements and the defendant’s statement), and considers the factors in 18 U.S.C. § 3553. Here, the sentencing court sustained Mr. Bolden’s objection, but then did something unusual. The sentencing court ruled that Mr. Bolden “had committed ‘a number of crimes’ — including . . . ‘felonious possession of cocaine’ ” that would support an enhancement similar to the one for kidnapping. Putting the enhancement back into the calculation resulted in a Guidelines range of 92 to 115 months (roughly 8 to 10 years). Ultimately, the court sentenced Mr. Bolden to 102 months’ imprisonment (8 years, 6 months).

Step 4: Appeal

The fourth step: appeal. Here, Mr. Bolden challenged the sentencing court’s sua sponte finding about cocaine possession. The court of appeals discussed two issues: the standard of review and the merits.

Step 4a: The Standard of Review

Regarding standard of review: Where the defendant objected below, the standard of review is abuse of discretion; where the defendant failed to object below, the standard of review is for plain error. The Government argued on appeal that Mr. Bolden’s objection below (“that the government had failed to prove that he possessed a firearm in connection with another felony offense”) did not encompass the cocaine enhancement. The Fourth Circuit disagreed. First, Mr. Bolden objected that the Government failed to prove “another felony offense,” not just kidnapping. And second, even if not, the circumstances below did not provide Mr. Bolden with “a meaningful opportunity to object more specifically. . . . [Mr.] Bolden was not required to assert an after-the-fact and formulaic objection in order to preserve the argument he raises here.”

Step 4b: The Merits

Regarding the merits: Because Mr. Bolden objected, the standard of review is abuse of discretion, which is a lower bar than plain error. Abuse-of-discretion review requires the court of appeals to “vacate a sentence as procedurally unreasonable if a district court makes clearly erroneous factual findings in the course of calculating a defendant’s advisory sentencing range.” Slip Op. at 6 (citing United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)). The problem here is that the sentencing court made no factual findings regarding the connection between possessing the firearm and possessing the cocaine. In cases involving “simple drug possession,” it is not enough that a gun is present or close by. Instead, the gun must have “facilitated, or had the potential of facilitating,” the possession, that it had “some purpose or effect with respect to” the possession. Here, there were no findings about the connection, if any, between possessing the cocaine and possessing the firearm. Accordingly, “on this record—with no district court finding as to facilitation, and no indication of why the district court might have thought there was facilitation here—we are unable to review . . . and must instead vacate the defendant’s sentence and remand for resentencing.” Slip Op. at 11.

Step 4c: The Outcome

Theoretically, there are three possible outcomes: reverse and render, remand for resentencing, affirm. The latter two are by far the most common outcomes. Because the federal sentencing scheme requires the district court to exercise discretion in light of half a dozen factors, the courts of appeals are reticent to reverse one sentence and render another in its place. Instead, the court of appeals most often finds either no abuse of discretion or no plain error warranting remand and simply affirm the sentence below. When they do find error, as in this case, they usually remand back to the sentencing court to try again.

Pro Se at Your Own Risk

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The first rule of bankruptcy ought to be: Do not file for bankruptcy unless you have a clearly defined goal you are trying to accomplish. Maybe the bank is about to foreclose on your house or repossess your car. Bankruptcy may be able to stop (or at least delay) those things. Which leads me to the second rule: Do not file for bankruptcy unless you are confident that it will help you accomplish your goal.

Sarah Katherine Sussman lived on Clark Avenue in Tampa, Florida. She held title to the property as trustee for The Sussman Family Trust Living Trust. The Trust had obtained the property from Sarah’s mother, Teresa M. Gaffney, after her father, John J. Gaffney, died in December 2011. For whatever reason (the opinion does not say), the administrator of John’s estate wanted to undo that series of transfers. The administrator sued Sarah and Teresa in state court and obtained a final judgment on October 16, 2017, ordering that title be returned to John’s estate and that Sarah be evicted. Sarah appealed and moved to stay the judgment pending appeal, but that motion was denied. So, on October 24, she filed a pro se petition for bankruptcy, hoping “to obtain a stay of eviction from [the] property.”

It’s easy to see why she did that. Section 362 of the Bankruptcy Code says that the mere filing of a petition for bankruptcy automatically stays “the commencement or continuation” of any lawsuit against the debtor, the “enforcement, against the debtor or against property of the estate” of an existing judgment, and any act to obtain possession or control of property of the estate, among other things. 11 U.S.C. § 362(a)(1)-(3). It seems like an eviction would be the enforcement of a judgment against the debtor, so filing for bankruptcy should have kept her in the house. Right?

Not necessarily. The stay is broad and it is powerful, but it does not cover absolutely everything that might be related to the debtor or the bankruptcy. One major limitation is that it only applies to legal and equitable interests “of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (emphasis added). The automatic stay does not automatically undo things that happened before the petition was filed. There may be other procedures and remedies available to address those things, but the automatic stay does not automatically un-foreclose your house or un-repossess your car. You must file the petition before the foreclosure or repossession happens. Evictions are a little different. Unlike foreclosures and repossessions, evictions generally require a judicial determination of the right of possession before the eviction can occur. In this case, the state court determined that John’s Estate had the right of possession of the Clark Avenue house before Sarah filed for bankruptcy. Accordingly, the bankruptcy court, the district court, and the Eleventh Circuit all held that the bankruptcy petition would not undo that judgment or stop the eviction.

The Eleventh Circuit said that she filed for bankruptcy specifically to stop or delay the eviction. If so, that was a poor strategic choice, and not just because of the nuances of the distinctions between foreclosures and evictions. The first sentence of the Eleventh Circuit’s opinion tells us that Sarah is “a debtor proceeding pro se.” The “Disussion” section says they can only “discern from [Sarah’s] scattershot appeal, two issues sufficiently developed for appellate review.” The footnote to that sentence explains that several other issues were waived because they were either “not raised below or raised in a cursory fashion without citation to authority.” In other words, there may have been other arguments that would have worked but she didn’t raise them effectively. All of which is why you hire a lawyer: to help you know which arguments to make and how best to make them.

Lying police undermine confession

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This week’s case comes out of the Tenth Circuit: United States v. Young, No. 18-6221, on appeal from the Western District of Oklahoma. It is marked for publication, but I don’t have the cite yet.

Shane Young was driving early one morning in Woodward County, Oklahoma. The police signaled him to pull over, but he delayed stopping for a while. When he finally stopped, he got out of the car and fled on foot. The police caught him and retraced his steps. They found a small headphones case containing 4 grams of meth. They arrested him, but he invoked his rights to counsel and to remain silent and was released before too long.

Later that day, police returned to Mr. Young’s flight path and found something they had missed before: a black bag containing 93 grams of meth. The black bag changes things. Possession of 4 grams has no mandatory minimum prison term, but possession of 97 grams (the headphones case plus the black bag) carries a mandatory minimum of 5 years in prison. 21 U.S.C. § 841(b)(1)(B), (C). They rearrest him. He admits to the 4 grams but not the 93 grams. He asks for a lawyer, so they stop questioning him (but they do not let him go).

Four days later, Mr. Young is still in custody when he meets FBI special agent Kent Brown. Mr. Young tells Agent Brown about how he’s worried about the effect this arrest will have on his life. He has a new baby, etc. Agent Brown says he wants to help and that he’s “on your side.” Agent Brown showed Mr. Young the federal arrest warrant, but told him that he had spoken to the federal judge on the case. According to Agent Brown, the judge was willing to charge Mr. Young “anywhere from five to ten years” for the 4 grams. But Mr. Young could “physically buy down the amount of time you see in federal prison” by “own[ing] to the information.” According to Agent Brown: “every time you answer a question truthfully, it ticks time off that record, it ticks time off how much you’re actually going to see.” In other words, the more meth Mr. Young admitted to possessing, the less prison time he would get. Agent Brown specifically said: “that’s the way it works.”

Mr. Young was a little suspicious, but he didn’t have any experience in federal court. He wondered if he should talk to a lawyer and said he felt “like I’m buying the farm.” But he bought the farm anyway. He agreed with Agent Brown’s suggestion about how the black bag with 93 grams got there and was charged with possession with intent to distribute 97 grams of meth. By owning to the information, Mr. Young increased the amount of time he was likely to see from 0-20 years to 5-40 years.

A lawyer was appointed for Mr. Young after he was charged. The lawyer moved to suppress the confession as involuntary. Involuntary confessions are not admissible. The Government bears the burden of proving that the confession was not involuntary, that it was “freely self-determined.” In considering the question, courts should consider the totality of the circumstances, including characteristics of the accused and the details of the interrogation and whether there was any “coercive police activity,” such as misrepresentations and promises of leniency.[1]

The district court found that Agent Brown lied to Mr. Young and made promises of leniency. Nevertheless, the district court determined that the confession was voluntary, based mostly on the relative friendliness of the interrogation, Mr. Young’s experience in state criminal court, and the fact that he had been advised of his constitutional rights. Unable to avoid the confession, Mr. Young pled guilty and was sentenced to 188 months’ imprisonment. That’s 15 years and 8 months. So by confessing to more meth, he “physically bought down his time” and increased it from the 5 to 10 years Agent Brown had promised to more than 15 years.

On appeal, the Tenth Circuit was most troubled by Agent Brown’s misrepresentations about how the federal system works. “Although we do not require a law enforcement officer to inform a suspect of the penalties for all the charges he may face, if he misrepresents these penalties, then that deception affects our evaluation of the voluntariness of any resulting statements.” This is a version of a general rule in American law: you don’t have to say anything, but if you do say something, you can’t lie. Here, Agent Brown lied to Mr. Young when he said that confessing to higher quantities would result in a lower sentence. Agent Brown also lied when he said that he would tell the judge about Mr. Young’s cooperation, that the cooperation would “physically buy down the amount of time you see in federal prison,” and that “that’s the way it works.”

Because “that is not the way the federal system works.” Slip Op. at 9. In the federal system, higher amounts of possession tend to result in longer sentences. Cooperation can reduce sentencing ranges, but not enough to overcome the difference between 4 grams and 97 grams. Agent Brown’s lies undermined the voluntariness, and therefore the admissibility, of the confession. The confession should have been suppressed. The conviction must be vacated and the case remanded for further proceedings.

This case gives me hope. Police authority should come from their moral authority, their impeccable integrity, not from their guns. I am glad to see courts holding police to that standard.

Footnotes:

  1. I have omitted the case citations. If you are interested in seeing the cases the court cited, check out the slip opinion at 6–8.

Gambling with your Credit

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When I was a kid, we would occasionally have disputes about how to spell things. Settling the matter took about four stages: first, we would both insist that we were right; second, we would escalate our insistence, through raised fists, threatening eyebrows, and oaths taken on our mothers’ lives; third, one of us would dare the other to check the dictionary; fourth, the loser would declare the winner a nerd.

The French, at the end of their kingdom and the beginning of their empire, had a similar idea, only it would spread to all disputes ever. They had this idea that The Law should be simple enough to fit into a single book that everybody could have on their bookshelf. The idea was that two Frenchmen could have any dispute at all and resolve it by going through the four phases I mentioned: (1) I’m right / no, I’m right; (2) I swear I’m right / yeah, well I would bet my last bottle of wine that I’m right; (3) oh yeah? Why don’t you check The Code?; (4) you’re such a nerd.

Only: the law deals with life, and life is more complicated than spelling. In the first place, Napoleon’s “book” has spread to over 3,000 pages. In the second place, the hardest part of practicing law is almost never finding a piece of law to support your position. Rather, it’s deciding which arguments of several would be best and most likely to help you win.

Take this week’s case, In re Nicolaus, out of the 8th Circuit. Anthony Nicolaus ran a business with his brother. They ran into trouble with the IRS, apparently failing to pay withholding taxes. The IRS began collection efforts, so Nicolaus filed bankruptcy under Chapter 7.

Let’s pause for just a second. Chapter 7 is frequently touted as an “easy” way to get rid of debt without paying it. But there are some debts that don’t get discharged in Chapter 7. For example, child support is never discharged, nor is any debt for death or personal injury resulting from a D.W.I. 11 U.S.C. § 523(a)(5), (9). Student loans are almost never discharged. 11 U.S.C. § 523(a)(8). And debts for taxes are very difficult to discharge. 11 U.S.C. § 523(a)(1)(A) (referring to 11 U.S.C. § 507(a)(8) (referring to any tax “to be collected or withheld and for which the debtor is liable in whatever capacity,” including withholding taxes)). So if Mr. Nicolaus wanted to get out of his debt for not paying withholding taxes, Chapter 7 may not have been the way to go.

Back to the case. He files for bankruptcy. The IRS files a proof of claim. He files an objection. The IRS never responds. The bankruptcy court sustains the objection and disallows the claim. He does not have to pay the IRS.

A year later, the IRS files a motion to vacate the order disallowing the claim. According to the IRS, Mr. Nicolaus had to serve the objection not just on the IRS, but also on the attorney general and the local U.S. attorney. Since he had only served the IRS, the order disallowing the claim was invalid for lack of personal jurisdiction. The bankruptcy court agreed, as did the district court on appeal. The Eighth Circuit, however, disagreed. At the time Mr. Nicolaus filed his objection, the rules only required service on the IRS. The requirement of service on the attorney general and the local U.S. attorney were added later. Therefore, the IRS was properly served, and the bankruptcy court had jurisdiction to sustain the objection and disallow the claim. Mr. Nicolaus does not have to pay the IRS.

But that’s largely because the IRS wasn’t paying attention. If Mr. Nicolaus filed for bankruptcy in order to get out of his debt to the IRS, he was taking a major gamble. If the IRS had been paying attention, he could have ruined his credit for nothing.

Stopping Time and the Meaning of “A”

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This week’s case comes out of the Tenth Circuit: Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). Judge Bacharach wrote for Judges Holmes and Matheson.

Jose Angel Banuelos Galviz entered the United States in 2006. Around 2009, he received a document from the immigration authorities labeled “notice to appear,” but it did not tell him a time or place to appear. Around 2016, he received a second document, telling him when and where to appear. He showed up. The IJ (or “immigration judge”) ordered Mr. Banuelos removed and denied his requests for asylum, withholding of removal, and protection under the Convention Against Torture. Mr. Banuelos appealed to the BIA (the Board of Immigration Appeals).

While his appeal was pending, the Supreme Court issued its decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). Pereira dealt with a form of relief called “cancellation of removal,” available under 8 U.S.C. § 1229b(1). That provision gives the attorney general, acting through the IJ, permission to let a removable person nevertheless remain in the United States, and potentially adjust to lawful permanent resident status, if he can satisfy four requirements:

  1. 10 years of continuous physical presence in the United States, and
  2. good moral character, and
  3. no convictions for certain specific criminal offenses, and
  4. that his removal “would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child,” so long as the affected spouse, parent, or child is either a U.S. citizen or a lawful permanent resident.

8 U.S.C. § 1229b(b)(1).

The first requirement—ten years of continuous presence—is measured from the time the person enters the United States until the person is served with “a notice to appear under section 1229(a).”[n.1] 8 U.S.C. § 1229b(d)(1). This is referred to as the “stop time rule.” At the time of Mr. Banuelos’s removal hearing, the BIA had held that a so-called notice to appear could stop time even if it did not actually tell you when or where to appear. So even though he received notice of his removal hearing more than 10 years after he entered the United States, the BIA did not consider him eligible for cancellation of removal because he had received a so-called notice to appear just 3 years after entering.

The Supreme Court changed that rule in Pereira, holding that a so-called notice to appear without a time and place does not stop time. In other words, continuous physical presence must be measured from the time you enter the United States until the time you receive a notice to appear telling you when and where to actually appear. Applied to this case: Mr. Banuelos potentially qualifies for cancellation of removal because there were more than 10 years between when he entered and when he received notice of when to appear. Mr. Banuelos asked the BIA to remand back to the IJ to consider his application for cancellation of removal. The BIA denied that request, and he petitioned the Tenth Circuit for review.

The Tenth Circuit granted review and remanded to the IJ to consider Mr. Banuelos’s application for cancellation of removal. The court determined that, in order to stop time, the notice to appear must be a single document containing all the information required in § 1229(a). Both the plain language of the statute and its legislative history mandate this result.

The plain language of the statute reads: “For the purposes of this section, any period of . . . continuous physical presence in the United States shall be deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1). Section 1229(a) defines a “notice to appear” as a written notice specifying certain things, including “The time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G). Therefore, a written notice that does not include the time and place is not a “notice to appear under section 1229(a)” and does not stop time.

But what if you get two documents, one containing some of the information, and another one containing the rest? Some jurists think that the two documents can combine into “a notice to appear under section 1229(a)” and therefore stop time. The Tenth Circuit disagreed, based on the relevant legislative history.

Prior to the enactment of the current section 1229(a), removal proceedings were initiated with two documents: an order to show cause and a notice of hearing. Then, Congress changed the process in 1996:

To simplify removal proceedings, Congress adopted § 1229(a), replacing the two documents with a single notice to appear, which had to include all of the information previously sprinkled throughout the order to show cause and the notice of hearing. Given this congressional intent to replace two documents with one, we should be wary of reading the singular “a” in § 1229 to refer to multiple documents.

Banuelos v. Barr, 953 F.3d 1176, 1182 (10th Cir. 2020) (citing Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. 104-469(I) (1996)).

If two documents were required before, then only a single document is required now. Only if that single document satisfies all the requirements of section 1229(a) (including the requirement of a specific time and place to appear) will it stop time for purposes of cancellation of removal. Because Mr. Banuelos did not receive that single document until more than 10 years after he had entered the United States, the Tenth Circuit remanded to the IJ to consider his application for cancellation of removal.

It should be noted that not everybody agrees with the Tenth Circuit. The court itself noted that, while the Third and Ninth Circuits agree with the Tenth, the Fifth and Sixth Circuits do not. See Guadalupe v. Attorney General, 951 F.3d 161 (3d Cir. 2020) (subsequent notice of hearing does not retroactively cure a defective notice to appear); Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (same); but see Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020) (time stops when the person “receives all required information, whether in one document or more”); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (same). Given the present administration’s aggressive stance on removal, there are a lot of cases percolating through the federal courts. The Supreme Court may have to resolve the split before too long. In the meantime, if you live in Texas, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, or Michigan, this case may not be helpful to you

  1. Intrepid readers will note that section 1229b(b)(1)(A) does not say that time stops when you are served with a notice to appear. That section says that time stops on “the date of [the] application” for cancellation of removal. But you wouldn’t apply for cancellation of removal until after you had been ordered removed. And you cannot be ordered removed without being served with a notice to appear. 8 U.S.C. § 1229(a). But being served with a notice to appear stops time for continuous physical presence. 8 U.S.C. § 1229b(d)(1). So which one is it—does time stop when you’re served with a notice to appear or when you apply for cancellation? This kind of internal conflict plagues the immigration system. It makes lawyers scared to enter the field, and it virtually guarantees that people representing themselves will trip on something.