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

Tolliver was charged with participating in a marijuana distribution ring that funneled money and drugs between a California supplier and a large-scale Memphis dealer. A jury acquitted him on the marijuana conspiracy but convicted Toliver of money laundering conspiracy. The Sixth Circuit affirmed, rejecting a claim under the Speedy Trial Act, 18 U.S.C. 3162(a)(2). A defendant can only complain about a speedy trial violation after the violation has occurred; Tolliver’s objection was premature. A rational trier of fact could have found Tolliver guilty. Payment for drugs can constitute promotional money laundering. The prosecution presented the right type of evidence to prove promotional money laundering and showed that Tolliver made financial transactions with money from illegal marijuana sales. There was compelling circumstantial evidence showing he knew what he was doing. In ordering forfeiture of the money laundered and of property traceable to the crime, 21 U.S.C. 853(a), the district court properly included some of Tolliver’s gambling winnings. Tolliver gambled hundreds of thousands of dollars but apparently had no source of income besides the cuts he got from money-laundering. Tolliver filed no tax return for two years. He was a long-time gambler, but the amount of money he gambled skyrocketed once he joined the conspiracy. View "United States v. Tolliver" on Justia Law

Richardson participated in a series of Detroit-area armed robberies in 2010. In 2013, Richardson was convicted of five counts of aiding and abetting Hobbs Act robbery, 18 U.S.C. 1951, five counts of aiding and abetting the use of a firearm during and in relation to a crime of violence under 18 U.S.C. 924(c), and of being a felon in possession of a firearm, section 922(g). The district court sentenced Richardson to 1,494 months in prison. Richardson twice successfully persuaded the Supreme Court to vacate Sixth Circuit judgments affirming his conviction and sentence. The Court remanded for consideration of whether an intervening the Court’s 2015 “Johnson” holding that the Armed Career Criminal Act (ACCA) residual clause was invalid or the First Step Act of 2018 affected his section 924(c) conviction. The Sixth Circuit again affirmed Richardson’s conviction. Johnson had no effect on Richardson’s conviction for aiding and abetting Hobbs Act robbery; that conviction satisfies ACCA’s elements clause, so the residual clause is irrelevant. The court also affirmed his sentence. Richardson cannot benefit from the First Step Act because the district court resentenced him more than one year before the Act became law. View "United States v. Richardson" on Justia Law

Sands pleaded guilty to being a felon in possession of a firearm. Sands claimed to have found the gun and denied defacing the serial number. The district court applied a four-level sentence enhancement for possessing a firearm with an “altered or obliterated serial number” pursuant to USSG 2K2.1(b)(4)(B) because the firearm’s serial number was, although readable, defaced with scratches in three separate locations. The Sixth Circuit vacated the sentence, agreeing with several other circuits “that a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.” A serial number that has been defaced but is still visible to the naked eye is not “altered or obliterated” under section 2K2.1(b)(4)(B). View "United States v. Sands" on Justia Law

FBI agents seized a computer server that hosted a child-pornography website and observed that one user, accessed 107 “threads” in five days. The FBI traced the IP address to Demma’s residence, executed a search warrant and seized electronic devices, finding more than 3,600 images and 230 videos; many depicted adult men raping prepubescent girls. Demma pleaded guilty to possessing child pornography, 18 U.S.C. 2252(a)(4)(B); (b)(2). The probation officer computed a Guidelines range of 78-97 months. Demma's sentencing memorandum described Demma’s lack of criminal history and that Demma served honorably in the Army for over five years and was subsequently diagnosed with PTSD. One forensic psychologist asserted that Demma’s use of child pornography “is directly resultant from experiencing the ravages of war as this impacts children.” The court sentenced Demma to one day, with 10 years of supervised release and payment of $45,000 in restitution. The court’s cited Demma’s PTSD diagnosis, his decision to voluntarily seek treatment after his arrest, his low risk of reoffending, the potentially detrimental effect of imprisonment on Demma’s treatment, and Demma’s low risk for committing a “contact offense.”The Sixth Circuit vacated the sentence. Any policy disagreement with the Guidelines based on the similarity of the enhancements does not justify the extent of this downward variance. In focusing on the role of Demma’s military service, the district court cast Demma as the victim. The court also unreasonably concluded that Demma’s sophisticated and extensive access to child pornography somehow made him less culpable than “someone who simply allowed his curiosity to get the better of him.” View "United States v. Demma" on Justia Law

The FBI became aware of the “Playpen” child pornography website on the dark web, gained control of the website and ran it for 13 days, tracking the registered users. The “Revenger” account accessed 205 postings, labeled: “11 YO boys fucking,” “girls changing on beach,” and “preteen videos girls hardcore.” With a warrant, the FBI traced the Revenger account to Libbey-Tipton’s IP address and computers’ MAC addresses at his Cleveland residence. A warranted search was executed. All of the seized devices showed indicia of child pornography in “previews” and were from Libbey-Tipton’s bedroom, the basement, and the garage. The previews did not find any evidence of child pornography on devices that belonged to the other residents--his mother, his brother, his girlfriend, and his brother’s girlfriend. The MAC addresses of the seized devices corresponded to images viewed by the Revenger account.Libbey-Tipton was indicted for accessing and possessing child pornography. The government was allowed to introduce evidence of Libbey-Tipton’s prior conviction of child molestation as evidence of his propensity to access and possess child pornography. Convicted, Libbey-Tipton was sentenced to 235 months in prison, 27 months below the advisory Guidelines range. The Sixth Circuit affirmed, rejecting Libbey-Tipton’s challenges to the admissibility of his prior conviction, the reasonableness of his sentence, and the effectiveness of trial counsel. The court also upheld the denial of his motion to suppress the search warrant that led to his identification as a Playpen user. View "United States v. Libbey-Tipton" on Justia Law

A man left a voicemail at former attorney general Holder's law firm, (Covington): Former U.S. Attorney General Eric Holder, I’m going to kill you. ... to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted ... prisoner by the Common Pleas Court of Cuyahoga County ... through the second part of the clause of the double jeopardy law ... we had spoken. My name is Atrel Howard of Cleveland, Ohio. If you get this message you need to realize that I’m under unconstitutional law. ... I was sentenced to 50 months ... intentional assault of a federal agent or employee on the FBI agency premises.Howard was charged with the knowing and willful transmission in interstate commerce of a communication containing a threat to injure another, 18 U.S.C. 875(c). Covington’s server identified the caller as Atrel Howard, from a Cleveland, Ohio area code. An FBI agent and a probation officer were familiar with Howard’s voice. The telephone number belonged to Howard’s father. The jury instructions were jointly proposed by the parties. Convicted, Howard was sentenced to 30 months for his section 875(c) offense and his supervised release violation. The Sixth Circuit affirmed, rejecting arguments of insufficient evidence; that omitting the essential mens rea element violated Howard’s Fifth and Sixth Amendment rights and deprived the court of jurisdiction; and that the court erred in instructing the jury as to what type of communication would constitute a “true threat.” View "United States v. Howard" on Justia Law

Doggart, a nuclear engineer and former congressional candidate, believed that an Islamic community, “Islamberg,” was plotting a terrorist attack against New York City and began posting on Facebook that Islamberg had to be “utterly destroyed.” The FBI used a confidential informant to engage with him. Doggart recruited the informant to help him, describing the weapons they would use. Doggart traveled to meet with those he had enlisted, including the informant. After his arrest, Doggart (age 65) agreed to plead guilty to transmitting a threat to kill or injure someone in interstate commerce, 18 U.S.C. 875(c). The district court rejected the agreement for want of a factual basis. The government then charged Doggart with solicitation, 18 U.S.C. 373; solicitation to damage religious property, section 247; solicitation to commit federal arson, section 844(i); and making a threat in interstate commerce by telephone, 844(e). Convicted, Doggart was sentenced to 235 months.The Sixth Circuit remanded, finding that the court wrongly denied him the benefit of his plea bargain by applying the wrong legal test for true threats. On remand, the district court concluded that Doggart made a threat but refused to accept the plea bargain as not adequately reflecting the severity of his conduct. The Sixth Circuit affirmed in part. The court did not abuse its discretion in rejecting the Criminal Rule 11(c)(1)(A) plea deal. The court reversed the conviction for solicitation to commit federal arson; the target of the crime—a mosque—is not “used in” interstate commerce or in any activity affecting interstate commerce. The court agreed that “intentionally defac[ing], damag[ing], or destroy[ing]” religious “real property” using “a dangerous weapon, explosives, or fire,” necessarily involve the use of “physical force,” a “crime of violence” under the solicitation statute. View "United States v. Doggart" on Justia Law

In 2011, Manners pleaded guilty to assault with a dangerous weapon in aid of racketeering, 18 U.S.C. 1959(a)(3), and use of a firearm during and in relation to a crime of violence, 18 U.S.C 924(c). In 2016, Manners moved to vacate his 138-month sentence under 28 U.S.C. 2255 in light of the Supreme Court’s Johnson decision, arguing that his section 924(c) conviction could not be based on the statute’s residual clause because Johnson invalidated a similar residual clause in the Armed Career Criminal Act and his predicate offense did not have as an element the use, attempted use, or threatened use of physical force, so this offense could not fall under section 924(c)(3)’s elements clause. The Sixth Circuit affirmed the denial of Manners’s motion. The Supreme Court remanded in light of its 2018 holding, Sessions v. Dimaya, that the residual clause of 18 U.S.C. 16 was unconstitutionally vague and subsequently expressly determined that 924(c)(3)’s residual clause was unconstitutionally vague. On remand, the Sixth Circuit again affirmed. Manners’s predicate offense is a “crime of violence” under 924(c)(3)’s elements clause. The court employed a “categorical approach” and found 18 U.S.C. 1959(a) divisible, setting forth the separate offense of assault with a dangerous weapon in aid of racketeering. The dangerous weapon element of 1959(a)(3) elevates even a minimal type of assault into “violent force” sufficient to qualify as a “crime of violence.” View "Manners v. United States" on Justia Law

Hatcher escaped from confinement under a 46-month sentence for felon in possession of a firearm. Weeks later, police found Hatcher lying on the ground with a gunshot wound. While performing first aid, an officer observed a firearm tucked in Hatcher’s waistband. Hatcher left the hospital and was apprehended months later after being shot again. Hatcher pleaded guilty to felon in possession of a firearm and escape. The court gave notice of a possible upward variance, citing 18 U.S.C. 3553(a); the guidelines range was 41-51 months. Hatcher’s counsel described multiple stabbings and gunshot wounds, a physically abusive father, bipolar disorder and depression, attempted suicide, and extensive substance abuse. The prosecutor responded to Hatcher’s assertion that he carried the firearm for protection by stating that shell casings discovered from a shooting three days before Hatcher was shot matched the firearm that he possessed, which “suggest[s] ... retaliation.”The court noted Hatcher's many convictions, rejected Hatcher’s argument that he escaped out of fear, and imposed a 72-month sentence, stating that Hatcher’s prior, 46-month sentence was insufficient to deter him. The Sixth Circuit vacated. The district court relied on Hatcher’s alleged involvement in the uncharged shooting in fashioning his sentence, which constituted procedural error as a prejudicial surprise. The court relied on information that the government had not explicitly advanced as a basis for sentencing enhancement, without an opportunity for Hatcher to subject this information to critical examination. View "United States v. Hatcher" on Justia Law

In 2010, Hueso was sentenced to 20 years’ imprisonment for drug crimes. In 2013, Hueso unsuccessfully moved to vacate his sentence under 28 U.S.C. 2255. His second unsuccessful petition, in 2018, argued that his state convictions were not “felony drug offenses” and that his mandatory minimum should have been 10 years. A 2019 Ninth Circuit case subsequently undercut the substantive portion of the district court’s denial of relief. Hueso filed another petition. The Antiterrorism and Effective Death Penalty Act of 1996 permits a second 2255 motion only if there is new evidence of innocence or a new rule of constitutional law from the Supreme Court. Prisoners seeking relief under 28 U.S.C. 2241 must show that section 2255 is “inadequate or ineffective to test the legality of [their] detention.” Hueso argued that prisoners barred from filing a second 2255 motion may seek habeas relief under section 2241 based on new circuit court decisions. The Fourth Circuit has accepted that position. The Sixth Circuit affirmed the denial of relief. Hueso’s cited circuit court cases do not render a 2255 motion “inadequate or ineffective” within the meaning of section 2255(e); the two circuit decisions cannot establish section 2255’s inadequacy and his cited Supreme Court decision issued when his direct appeal was pending, so he could have cited it in the ordinary course. View "Hueso v. Barnhart" on Justia Law