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

Cleveland Gang Impact Unit officers arrested Johnson based on an outstanding warrant, issued when Johnson failed to appear in state court for his arraignment. They searched Johnson and found a loaded pistol with an obliterated serial number, a baggie with crack cocaine, another containing marijuana, and $460. Johnson pleaded guilty to possessing a firearm with an obliterated serial number, 18 U.S.C. 922(k), his fifth firearm conviction. The district court varied upward from the 37-48 month guidelines range and sentenced him to the statutory maximum: 60 months. The Sixth Circuit affirmed. The court considered the 18 U.S.C. 3553(a) sentencing factors and provided a detailed explanation for its decision, based on the record. The court acknowledged that Johnson did not have a “history of violence,” but reasonably stated that “carrying a firearm” creates “a heightened risk of violence.” The court emphasized that the state courts had been lenient in sentencing Johnson and that this leniency prompted the federal government to bring this case. Johnson had repeatedly violated gun-possession laws, obtaining the gun at issue two days after being released for his last conviction, and had serial convictions for escape, drug possession, drug trafficking, and theft. This 14-month upward variance did not exceed the judge’s discretion. View "United States v. Johnson" on Justia Law

In 2003, Clark and Harrington were jointly tried for the Martin murder. The only evidence connecting Clark to the crime was the preliminary testimony of Martin’s neighbor, Stewart. At trial, Stewart would not say what she had seen the day of the murder. The prosecutor asked if she was afraid or nervous; she responded she was not. Stewart agreed that she had been threatened but would not say by whom. The prosecutor attempted to refresh her recollection with her testimony from preliminary examinations, but Stewart would not ratify her earlier statements. The judge declared Stewart unavailable and had her preliminary testimony, including cross-examinations, read to the jury. Clark’s attorney, who had not been counsel of record during the preliminary proceedings, was not permitted to cross-examine Stewart. Clark was found guilty. Stewart has recanted. Clark sought habeas relief, based on an exculpatory affidavit from another purported eyewitness, who states that her father, a city police detective, told her not to report what she had seen. Clark was granted permission to file a second or successive habeas petition in light of the alleged Brady violation. The district court, without holding an evidentiary hearing, granted a conditional writ of habeas corpus. The Sixth Circuit reversed. An evidentiary hearing is necessary to determine whether Clark has made out a Brady violation and whether the requirements of 28 U.S.C. 2244(b)(2)(B) of the Antiterrorism and Effective Death Penalty Act of 1996 are satisfied. View "Clark v. Nagy" on Justia Law

In 2004, O’Neal was convicted in state court of the second-degree murder of Shelby, who was shot at a gas station. He was sentenced as a habitual offender to 36-80 years in prison. At trial, O’Neal argued that Hickman had shot Shelby. Over O’Neal’s objections, the court excluded Hickman’s jailhouse confession to another inmate and Shelby’s statement to a police officer at the hospital where he died, identifying Hickman as the shooter. The statement was also overheard by a nurse. Hickman had pleaded guilty to manslaughter, which carried a sentence of 3-15 years' imprisonment, in exchange for his testimony at O’Neal’s murder trial. The district court granted O’Neal habeas relief under 28 U.S.C. 2254. The Sixth Circuit affirmed, rejecting the state’s argument that the Michigan Court of Appeals reasonably determined that the erroneous exclusion of the statements was harmless. The district court properly granted relief based on the exclusion of the jailhouse statement because of its potentially profound impact on jurors, particularly when added to the already considerable admitted evidence indicating that Hickman, not O’Neal, was the shooter. Had the hospital identification been admitted, it would have joined an impressive array of evidence that Hickman was the shooter. View "O'Neal v. Balcarcel" on Justia Law

Johnson moved to Michigan while on probation, violating the terms of his release from a Florida prison. Florida officials issued a warrant. Federal agents found and arrested Johnson and prosecuted him for a federal gun crime, 18 U.S.C. 922(g)(1), before turning him over to Florida authorities. During a remand for resentencing on his federal conviction, Johnson argued that the federal district court lacked jurisdiction to sentence him because federal agents pursued him to execute a Florida warrant. The Sixth Circuit affirmed his sentence. Johnson had Article III standing to contest the primary jurisdiction of the federal government but the federal government and Florida could prioritize between them the order of proceedings. Despite its name, primary jurisdiction does not affect the district court’s jurisdiction over a criminal defendant; it merely determines the order of trial, sentencing, and incarceration. Primary jurisdiction is a matter of comity to be resolved by the executive branches of the two sovereigns. Even if Florida retained its primary jurisdiction over Johnson, that would not deprive the federal district court of jurisdiction. A lack of primary jurisdiction does not mean that a sovereign does not have jurisdiction over a defendant but only that the sovereign lacks priority of jurisdiction for purposes of trial, sentencing and incarceration. View "United States v. Johnson" on Justia Law

Bank of America advances funds whenever customers deposit checks. During this “float” period, it permits the customer to withdraw the funds while the bank confirms the check’s validity. In Michigan, Thomas would enlist BoA customers and give the customers’ information (account numbers, debit card numbers, and PINs) to Illinois conspirators led by Cobb. The Illinois conspirators would steal corporate checks, alter the checks to list the customers as payees, and deposit the checks at BoA. In Michigan, Thomas would withdraw the funds before the bank uncovered that the checks were bad. Thomas would then divvy up the funds. The fraud caused bank losses of $214,286.03. All the defendants were charged with a conspiracy to commit bank fraud, 18 U.S.C. 1344(2) and 1349. Thomas, listed on 25 counts, pleaded guilty to a conspiracy count and to one count of bank fraud, which generated a guidelines range of 46-57 months. His probation officer found that he lied during his presentence interview. Thomas denied leading the Michigan cohort, denied recruiting others, and denied knowing of Cobb’s role. (2016). The government sought an obstruction enhancement, U.S.S.G. 3C1.1 and compiled evidence that Thomas oversaw the Michigan recruiters and facilitated the withdrawals. The court applied the obstruction enhancement and declined the acceptance-of-responsibility reduction U.S.S.G. 3E1.1, which produced a guidelines range 70-87 months; concluded that this range was insufficient under the 18 U.S.C. 3553(a) sentencing factors; and imposed an above-guidelines 102-month sentence. The Sixth Circuit affirmed. View "United States v. Thomas" on Justia Law

Carman was indicted for her involvement in a massive conspiracy to sell untaxed cigarettes. A jury convicted Carman and others of conspiracy to commit mail and wire fraud. The district court held a forfeiture hearing the next day. The government stated that the only items of property it sought from Carman were two Cadillacs and later requested a money judgment against Carman of about $35 million. The district court sentenced Carman to 60 months’ imprisonment without addressing any money judgment or otherwise mentioning forfeiture. More than four months after Carman appealed her conviction and sentence, that court entered a forfeiture order for $17.5 million. Carman appealed that order. The Sixth Circuit vacated, finding that the district court lacked authority to enter that order. When a district court finds that property is subject to forfeiture, it must, whenever possible, enter a preliminary order of forfeiture “sufficiently in advance of sentencing to allow the parties to suggest revisions” before the sentencing hearing, Fed. R. Crim. P. 32.2(b)(2)(A), (B), and “must include the forfeiture when orally announcing the sentence or must otherwise ensure that the defendant knows of the forfeiture at sentencing.” Upon the filing of Carmen’s notice of appeal, adjudicatory authority over her conviction and sentence passed to the Sixth Circuit. A forfeiture order is part of the defendant’s sentence, so the district court lacked authority to enter its forfeiture order after Carman had filed her notice of appeal. View "United States v. Carman" on Justia Law

Johnson pleaded guilty to being a felon in possession of a firearm. The district court sentenced him as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). The Sixth Circuit agreed that Johnson did not have at least three prior convictions for crimes of violence under ACCA. When the district court later resentenced Johnson, it increased his base offense level after finding that Johnson had at least two convictions for crimes of violence under the Sentencing Guidelines. The Sixth Circuit affirmed his 71-month sentence, agreeing that his prior convictions—one for robbery under Ohio Revised Code (ORC) 2911.02(A)(2) and one for complicity to commit aggravated robbery under ORC 2923.03(A)(2) and 2911.01(A)(1)—were crimes of violence under the Guidelines, U.S.S.G. 2K2.1(a)(2). View "United States v. Johnson" on Justia Law

In 2006, Puckett, a Nashville homebuilder, was overloaded with debt. Banyan, a mortgage broker, and Puckett recruited straw buyers to purchase his unsold homes with loans funded by SunTrust and Fifth Third. For a fee (about $10,000), each buyer submitted a loan application that overstated the buyer’s income and falsely stated that the buyer intended to live in the home. None of those misrepresentations reached SunTrust Bank or Fifth Third, nor did either of those parent banks fund any of the loans. Puckett received about $5,000,000 in proceeds and told the buyers he would make their mortgage payments. By late 2007, Puckett could not make all the payments. The mortgage companies foreclosed. The FBI began investigating in 2009. In 2014, the two were convicted of bank fraud, 18 U.S.C. 1344 and conspiracy to commit bank fraud, 18 U.S.C. 1349. The Sixth Circuit reversed. The government could have charged the defendants with mail or wire fraud within the five-year limitations periods but missed that deadline and later charged the two with bank fraud. That offense has a longer limitations period, but the fraud must be perpetrated against a bank—which (as a matter of statutory definition) the mortgage companies were not, because they were not federally insured. Nor did the government make any effort to prove that the loans were funded by the mortgage companies’ parent corporations, which were banks. View "United States v. Banyan" on Justia Law

The Sixth Circuit affirmed the district court's denial of a 28 U.S.C. 2254 petition for habeas relief. Petitioner raised two issues regarding whether the interrogating officer mislead him to believe that he did not have a right under the Fifth Amendment to have counsel present during interrogation and misstated the availability of a defense attorney in the county where Mitchell was interrogated, and whether the officer provided Miranda warnings to petitioner in "mid-stream," in violation of Supreme Court precedent. The court held that, although the manner in which the officer interacted with petitioner regarding the right to counsel was troubling, the Michigan Supreme Court's decision—that the Miranda warnings, considered as a whole, adequately advised petitioner of his rights—was not contrary to or an unreasonable application of Supreme Court precedent. View "Mitchell v. MacLaren" on Justia Law

Pineda-Duarte, a citizen of Mexico, has twice been removed for entering the U.S. without authorization. He returned again and went to Clark County. Kentucky State Police had under surveillance a farm that was suspected of containing marijuana plants. They saw Pineda cultivating apparent marijuana plants, surrounded him, announced their presence, and ordered Pineda to “get on the ground.” Pineda swung a shovel he was holding, then dropped it and attempted to flee. After a struggle, the officers detained Pineda, who was charged with manufacturing more than 1,000 marijuana plants, 21 U.S.C. 841(a)(1) and reentering the U.S. after having been deported, 8 U.S.C. 1326(a). Pineda pleaded guilty to the manufacturing charge. The PSR recommended a two-step offense-level enhancement under U.S.S.G. 2D1.1(b)(2) because the “defendant used violence, made a credible threat to use violence, or directed the use of violence” in conjunction with a drug offense. Defense counsel framed Pineda’s action as reflexive rather than an attempt to injure the officer and disputed whether the conduct constituted “violence,” because the shovel did not make contact with the officer. The court applied the enhancement, characterizing the defendant as either having threatened to use violence or, alternatively, having attempted to use violence. The Sixth Circuit vacated. Neither characterization fits the Guideline provision. The conduct was not directing the use of violence and was more than a threat, so the application of the Guideline requires a finding that Pineda “used violence.” View "United States v. Pineda-Duarte" on Justia Law