Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

In January 2015, Perez pleaded guilty to being a felon in possession of firearms and ammunition, 18 U.S.C. 922(g)(1). The Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(i), imposes a mandatory minimum sentence for defendants convicted of violating section 922(g) who have three prior convictions for violent felonies or serious drug offenses. The presentence report identified: a 1987 New York conviction for second-degree robbery; a 2003 Ohio conviction for attempted intimidation; a 2003 Ohio conviction for attempted felonious assault; a 2011 Ohio conviction for burglary; and a 2011 Ohio conviction for attempted felonious assault. The Sixth Circuit affirmed his 210-month sentence and the rejection of his post-conviction claim for relief. While his convictions for Ohio attempted intimidation and Ohio burglary no longer qualify as ACCA predicates because they turned on the residual clause, which the Supreme Court invalidated on vagueness grounds in 2015, the New York robbery conviction remains a violent felony under ACCA’s elements clause. That conviction amounted to a crime of violence; it requires the defendant to “use[] or threaten[] the immediate use of physical force upon another person.” View "Perez v. United States" on Justia Law

On December 15, Louisville Detective Evans submitted an affidavit for a warrant to search the house at 668 Eastlawn, stating: In July 2015, officers learned from a “reliable confidential informant” (CS1) that Hines was “selling large amounts of heroin” out of 668 Eastlawn, owned by Hines’s mother. On December 14, CS1 informed Evans that CS1 had seen heroin at 668 Eastlawn that day. Evans received further information “from another reliable confidential source” (CS2) that Hines had contacted him and proposed meeting to discuss incoming heroin. After meeting with Hines, CS2 informed Evans that Hines wanted CS2 to meet at 668 Eastlawn the following day, where Hines would provide CS2 with heroin. CS2 stated he had received heroin from Hines numerous times at 668 Eastlawn. Officers set up surveillance, saw Hines leave the house and drive to the meeting, “in a manner consistent with narcotics traffickers,” “opposite of traffic down a one-way street before entering a dark, narrow alley.” Evans independently investigated Hines’s significant history as a drug trafficker and summarized it in the affidavit. The state judge signed a warrant, which was executed that day. Officers recovered 3.72 pounds of cocaine, 2.08 pounds of heroin, $16,085 in cash, and a digital scale. Charged under 21 U.S.C. 841(a)(1), (b)(1)(B), Hines successfully moved to suppress the evidence. The Sixth Circuit reversed, finding that the totality of the circumstances provided probable cause despite the lack of additional information about the informants. View "United States v. Hines" on Justia Law

Rayyan watched online content that glorified ISIS, calling a video entitled “Kill them wherever you find them” “the best.” He featured a photo depicting a jihad-inspired execution on his Twitter account. The FBI monitored Rayyan and noticed that Rayyan had purchased a gun, having filled out a federal form declaring that he did not use illegal drugs. Police stopped Rayyan for speeding and found the revolver and marijuana in the car. Rayyan did not have a concealed pistol license or a medical marijuana card. He admitted that he had smoked marijuana regularly. He later downloaded more ISIS propaganda and tried, unsuccessfully, to buy another firearm, again declaring he was not a habitual drug user. Rayyan went to a firing range, rented an AK-47, and posted a photo of himself online holding it and making a pro-ISIS hand gesture. An undercover FBI employee posing as an ISIS sympathizer messaged him. Rayyan described planning an attack on a nearby church and stated he “regret[ted] not doing it” and wanted to “do . . . jihad” and to murder a police officer. He pled guilty under 18 U.S.C. 922(a)(6), for making a false statement while purchasing a firearm, and 922(g)(3), which prohibits a person who regularly uses an unlawful controlled substance from possessing a firearm. The probation office recommended a 15-21 month sentence. The court sentenced him to 60 months due to the risk he posed to the public, the need to deter others, and the severity of his crime. The Sixth Circuit affirmed, noting the 33-page explanation of the sentence. View "United States v. Rayyan" on Justia Law

Rayyan watched online content that glorified ISIS, calling a video entitled “Kill them wherever you find them” “the best.” He featured a photo depicting a jihad-inspired execution on his Twitter account. The FBI monitored Rayyan and noticed that Rayyan had purchased a gun, having filled out a federal form declaring that he did not use illegal drugs. Police stopped Rayyan for speeding and found the revolver and marijuana in the car. Rayyan did not have a concealed pistol license or a medical marijuana card. He admitted that he had smoked marijuana regularly. He later downloaded more ISIS propaganda and tried, unsuccessfully, to buy another firearm, again declaring he was not a habitual drug user. Rayyan went to a firing range, rented an AK-47, and posted a photo of himself online holding it and making a pro-ISIS hand gesture. An undercover FBI employee posing as an ISIS sympathizer messaged him. Rayyan described planning an attack on a nearby church and stated he “regret[ted] not doing it” and wanted to “do . . . jihad” and to murder a police officer. He pled guilty under 18 U.S.C. 922(a)(6), for making a false statement while purchasing a firearm, and 922(g)(3), which prohibits a person who regularly uses an unlawful controlled substance from possessing a firearm. The probation office recommended a 15-21 month sentence. The court sentenced him to 60 months due to the risk he posed to the public, the need to deter others, and the severity of his crime. The Sixth Circuit affirmed, noting the 33-page explanation of the sentence. View "United States v. Rayyan" on Justia Law

Bergrin’s cousin, Paul, was an infamous defense lawyer, advising clients: “No witness, no case.” Paul was convicted of murdering witnesses, overseeing mortgage fraud and drug trafficking, and violating federal racketeering laws; he was sentenced to life in prison. Bergrin sought revenge and sent an email to Paul’s daughter, saying he was “[l]ess than 1 hour from” Brokos’s home, that he “will be stopping by” the FBI agent in charge of Paul’s case, and that Brokos “will never sleep at night again.” She shared the email. The government charged Bergrin with threatening a federal officer, sending threats in interstate commerce, and cyberstalking. Over the next six months, Bergrin cycled through five sets of lawyers, who disagreed about his competence. The district court referred Bergrin to the Bureau of Prisons for an in-custody evaluation, held a hearing, found Bergrin incompetent, 18 U.S.C. 4241(d), and recommitted him. A second psychiatric report said that Bergrin was competent. During the hearing, Bergrin insisted his attorney was “working ... against” him. The court found that Bergrin was delusional and dismissed the case without prejudice, releasing Bergrin. Bergrin insisted that he “would rather be incarcerated" than declared incompetent. The Sixth Circuit affirmed, after finding that it had jurisdiction. Bergrin remained in custody for 22 months, longer than the court would have sentenced Bergrin had he been convicted. “On this record, it is hard to say who is gaming whom.” View "United States v. Bergrin" on Justia Law

Morris pled guilty to the distribution of cocaine base. The plea agreement specified a Guidelines range of 30-37 months in prison. Because an amendment lowering the applicable drug sentencing guidelines was about to become effective, the government did not oppose a two-level downward variance, resulting in a range of 24-30 months. The agreement stated that Morris could withdraw his plea if the court were to impose a sentence higher than 37 months. Morris had two Michigan felony domestic violence convictions under M.C.L. 750.81(2). Under that statute, the first two domestic assault convictions are misdemeanor offenses, subsequent violations are felonies. The court utilized the “modified categorical approach,” examining the transcripts from Morris’s convictions and finding that both qualified as crimes of violence, so that he was a career offender. Morris withdrew his plea, proceeded to trial, and was convicted. The career offender designation resulted in a guidelines range of 210-262 months. The Sixth Circuit affirmed his sentence of 180 months of imprisonment. Domestic assault includes a risk of confrontation at least equivalent to that associated with burglary, so the conviction constitutes a crime of violence under the Guidelines’ residual clause. The conviction does not qualify under the elements clause; Michigan’s definition of battery does not include an element of “physical force” as defined by the Court in Johnson. View "United States v. Morris" on Justia Law

Counts 1-4 and 6 alleged Bacon sold firearms to prohibited persons, 18 U.S.C. 922(d)(1). Counts 5 and 7 charged Bacon with possession of a firearm with an obliterated serial number, 18 U.S.C. 922(k). Bacon entered guilty pleas to Counts 1 and 5. The prosecution agreed to dismiss the remaining charges. Bacon testified that he purchased the Count 1 firearm and sold it from his Grand Rapids home "with reasonable cause to know that [the purchaser was] a felon.” The government proffered that the Count 1 purchaser had been convicted of a felony and that the firearm had traveled in interstate commerce. Bacon confirmed that he sold the Count 5 firearm, a semiautomatic pistol with an obliterated serial number, to a prohibited person at the same house, and had removed the serial number. The government proffered that the Count 5 firearm was manufactured in Ohio. Defense counsel stipulated to all facts proffered by the government and confirmed that Bacon was “satisfied” with the record. The court sentenced Bacon to 60 months. The Sixth Circuit affirmed, rejecting Bacon’s arguments that the sections under which he was convicted exceeded Congressional authority under the Commerce Clause. The interstate commerce element, which Bacon admitted when entering his plea, ensures that the firearms affected interstate commerce and saves the statute from any jurisdictional defects. View "United States v. Bacon" on Justia Law

Westine completed a 235-month sentence for securities fraud, and, within months, began offering investments in oil wells. Prospective investors were promised their “[f]irst monthly check within 90 days.” Investors never received royalties; they complained to the Kentucky Department of Financial Institutions, which concluded that the companies were selling unlawful securities and obtained a restraining order. Westine and Ramer, his partner, began winding down the companies and transitioning to new companies that collected over $2 million from 138 investors, who never received checks. Ramer oversaw call centers, developed a promotional video that boasted a fictional production capacity of 75 barrels per day, and organized a trip, during which investors were introduced to another co-conspirator, Cornell, who provided a tour of his oil facility, to create an appearance of legitimacy. Defendants began to shift operations to a new company, and, in less than two months, collected $242,233 from 12 investors. Defendants were charged with 29 counts of mail fraud, 18 U.S.C. 1341; conspiracy to commit money laundering, 18 U.S.C. 1956(h); and securities fraud, 15 U.S.C. 78j(b). A jury found each Defendant guilty. The court sentenced Westine to 480 months’ and Ramer to 156 months’ imprisonment. The Seventh Circuit affirmed, upholding the admission of “prior acts” evidence and rejecting various hearsay challenges. Given the evidence against the Defendants, later-discovered evidence that Cornell was running a side deal is insufficient to warrant remand. View "United States v. Ramer" on Justia Law

Michael, a licensed pharmacist at Chapmanville's Aracoma Pharmacy, separately co-owns another West Virginia pharmacy and one in Pennsylvania. The government suspected that Michael used the pharmacies to distribute on-demand prescription drugs, worth more than $4 million, over the Internet. A grand jury returned a multi-count indictment. Count 7 charged Michael with fraudulently submitting a claim for payment to Humana for dispensing medication that was never dispensed (18 U.S.C. 1347). Count 8 charged him with committing aggravated identity theft by using the “identifying information” of a doctor and a patient “in relation to the [health care fraud] offense” (18 U.S.C. 1028A(a)(1), (c)(11)). Michael had submitted a claim to Humana indicating that A.S. (doctor) had prescribed Lovaza for P.R., including the doctor’s National Provider Identifier and the patient’s name and birth date. A.S. was not P.R.’s doctor and did not issue the prescription. Section 1028A requires a person to “assume the identity” of someone else; the district court held that the statute covered only “impersonation,” and dismissed Count 8. The Sixth Circuit reversed. To “use” a means of identification is to “convert to one’s service” or “employ” the means of identification. Michael used A.S. and P.R.’s identifying information to fashion a fraudulent submission, making the misuse of these means of identification “during and in relation to” healthcare fraud. View "United States v. Michael" on Justia Law

Michael, a licensed pharmacist at Chapmanville's Aracoma Pharmacy, separately co-owns another West Virginia pharmacy and one in Pennsylvania. The government suspected that Michael used the pharmacies to distribute on-demand prescription drugs, worth more than $4 million, over the Internet. A grand jury returned a multi-count indictment. Count 7 charged Michael with fraudulently submitting a claim for payment to Humana for dispensing medication that was never dispensed (18 U.S.C. 1347). Count 8 charged him with committing aggravated identity theft by using the “identifying information” of a doctor and a patient “in relation to the [health care fraud] offense” (18 U.S.C. 1028A(a)(1), (c)(11)). Michael had submitted a claim to Humana indicating that A.S. (doctor) had prescribed Lovaza for P.R., including the doctor’s National Provider Identifier and the patient’s name and birth date. A.S. was not P.R.’s doctor and did not issue the prescription. Section 1028A requires a person to “assume the identity” of someone else; the district court held that the statute covered only “impersonation,” and dismissed Count 8. The Sixth Circuit reversed. To “use” a means of identification is to “convert to one’s service” or “employ” the means of identification. Michael used A.S. and P.R.’s identifying information to fashion a fraudulent submission, making the misuse of these means of identification “during and in relation to” healthcare fraud. View "United States v. Michael" on Justia Law