Moncrieffe v. Holder, No.11-702: United States Supreme Court Holds That State Criminal Statute Penalizing The Sharing Of Small Amount Of Marijuana Does Not Constitute Aggravated Felony For Purposes Of Immigration Statute

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It’s been a really busy week, but I found a recent opinion that I wanted to pass along to all of Florida’s criminal defense and criminal appeals lawyers out there.  If you handle drug cases with potential immigration/deportation consequences (i.e, ANY drug cases where your client’s status is either unclear, or your client is clearly a noncitizen), then you should take a few minutes to read the United States Supreme Court opinion of Moncrieffe  v. Holder, No. 11-702.

The facts in the Moncrieffe opinion are pretty typical: Moncrieffe, a Jamaican citizen, came to the U.S. legally at the age of 3.  See Moncrieffe, slip op., pg. 3.  During a 2007 traffic stop, cops found 1.3 grams (yes, grams) of marijuana in his car.  Moncrieffe pled guilty to possession of marijuana with intent to distribute under Georgia law (obviously, Georgia law is a lot more harsh than Florida law).  Under a Georgia statute which allows for more lenient treatment to first time offenders, the trial court sentenced Moncrieffe to 5 years of probation, after which his record would be expunged.  See id.

Alleging that the conviction constituted an “aggravated felony” for purposes of 21 U. S. C. §841(a), punishable by up to 5 years’ imprisonment under 21 U.S.C. 841(b)(1)(D), the Government deported Moncrieffe, and the Board of Immigration Appeals affirmed.  See id at pg. 3.  After the 5th Circuit denied Moncrieffe’s petition for review, the United States Supreme Court granted cert, and reversed.

In holding that Moncrieffe’s conviction under the Georgia statute did not qualify as an “aggravated felony” under the Immigration and Nationality Act (INA), the Court rejected the Government’s application of the “categorial inquiry” or “categorial approach,” which is employed  to determine if an offense constitutes an aggravated felony.  See id , slip op., pgs. 4-19.  Although Justice Sotomayor’s majority opinion is rather technical in nature, this line pretty much sums up what the Court thinks of the Government’s argument:

“In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution that largely undermines the categorical approach.  That the only cure is worse than the disease suggests the Government is simply wrong.”

Id., slip op., pg. 19.  Ouch.

Unfortunately for Moncrieffe and others in his situation, escaping aggravated felony treatment does not necessarily lead to a conclusion that deportation has been avoided.  Rather, the Court cautioned that it only means that mandatory removal has been avoided.  Rather, under 8 U.S.C. §1227(a)(2)(B)(i), a marijuana distribution offense still renders a non-citizen deportable as a “controlled substances offender.”  See id., slip op., pg. 19.  At that stage, the non-citizen will have to seek asylum, or cancellation of the removal proceedings, assuming the non-citizen meets the other criteria under 8 U.S.C. §§1158(b), 1229b(a)(1)–(2).  As acknowledged by the Court, determinations of asylum or cancellation of removal proceedings are purely discretionary with the Attorney General.

What’s the take away from this case, you ask?  Well, although the Court rejected the Government’s attempt to define possession of a small amount of marijuana as an aggravated felony, the fact remains that non-citizens convicted of even the most low level misdemeanor drug offenses, including first-time offenders who have successfully completed required probationary periods as a prerequisite to expunction, remain subject to possible deportation proceedings.

Van Poyck v. State, SC 73662: Florida Supreme Court Order Requiring Prior Counsel to Remain As Counsel And Other Developments

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Florida’s criminal defense and criminal appeals attorneys who are interested in the developments of the Van Poyck death penalty case may want to know that I found the Supreme Court order requiring Van Poyck’s prior counsel to remain on the case.  If you want to read it, click here.  In response to the Order, two of Van Poyck’s previous attorneys have just filed a Motion to Vacate and Alternative Motion for Rehearing of the Supreme Court order.

If you have time and are interested in all the procedural drama, feel free to view the other orders and motions in the case by clicking here.

After Winning a New Trial, Goodman Loses a Lawyer, and Death Row Inmate William Van Poyck Wins A Team of Lawyers

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Well, after winning a new trial (while the case is on appeal, no less) John Goodman lost a key member of his criminal defense team, Robert Black.  For the articles in the Palm Beach Post and Sun Sentinel, click here and here.  Maybe this means that Goodman and the State have reached a plea agreement?

Meanwhile, the Palm Beach Post also reports that there’s quite a bit of legal havoc in the William Van Poyck death penalty case.  Although I have not yet been able to locate the order issued by the Florida Supreme Court, the Court has apparently pulled a surprise move.  Even as Van Poyck’s June execution date approaches, the Court appears to have appointed a team of lawyers from Palm Beach County to represent Van Poyck.  For the article in the Palm Beach Post, click here.

To me, the Van Poyck case highlights just a fraction of what is wrong with Florida’s death penalty.  If the case is still important enough for the court to appoint new lawyers, even at this late stage, why should the Governor be signing the warrant for Van Poyck’s execution?  And why is it that after years of being unable to reach any sort of agreement with regard to amending the death penalty statute so as to render it constitutional, (why bother with that?), the Florida legislature is able to enact legislation that limits the appeals process, thereby actually speeding up the death penalty executions?

Palm Beach County News: John Goodman Gets a New Trial and Lindsay Lohan Comes to Town for Rehab

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Palm Beach polo magnate John Goodman caught a lucky break- it looks like on Friday, May 3, 2013, Palm Beach Circuit Court Judge Jeffrey Colbath granted Goodman’s motion for new trial based on juror misconduct.  Criminal defense and criminal appeals lawyers know that such a break is extremely rare indeed.  To read of an article about the defense victory, click here.  To read my previous post on Goodman’s motion, click here.  I wonder if the State will prosecute the juror for perjury based on his statements given during voir dire . . .

On another note, who knew that Palm Beach County was home to a rehab facility for Hollywood’s rich and famous?   According to reports on CNN and WPTV. com, Lindsay Lohan is going to complete her rehab at the Lukens Institute in Palm Beach Gardens.  If anyone sees Lindsay around town, be sure to give her a friendly wave!

Eleventh Circuit Reverses Two Cases on Sentencing Issues: United States v. Washington, No. 11-14177, and United States v. Hamilton, No. 12-10899

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If you handle Federal criminal defense cases or criminal appeals in the Eleventh Circuit, you’re well aware that the Government almost always wins in criminal appeals.  But today, I wanted to pass along two recent opinions where the Government lost on different sentencing issues.

In United States v. Washington, No. 11-14177, the Eleventh Circuit reversed a sentence because the Government failed to adduce any evidence that there were 250 or more victims as required by the section 2B1.1(b)(2)(C) enhancement of the Sentencing Guidelines.  Since the opinion is a mere 10 pages, you should take a moment to read it.  But if you don’t have time, here’s the Cliff’s Notes version: the best part of the slip opinion comes on page 9, where Judge Jordan, writing for the Court, declined the Government’s request to allow the Government the chance to prove, on remand, that there were 250 or more victims.  In so doing, Judge Jordan emphasized that despite the fact that the Government was aware that Washington specifically objected to the number of  victims charged, the Government made no effort whatsoever to prove up the number of victims.  See Washington, No. 11-14177, slip op., pg. 9.  Because the Government failed to meet its burden of proof on the contested sentencing issue, the Eleventh remanded the case to the District Court with directions for the District Court to resentence Washington to the 2-level enhancement based on his concession on appeal that the offense involved only 10 or more victims.

Next, in United States v. Hamilton, No. 12-10899, the Court reversed two District Court orders denying Hamilton’s Motions for Modification or Reduction of Sentence filed pursuant to 18 U.S.C. § 3582 (c)(2) because the District Court’s findings as to drug quantity were insufficient.  Although the opinion is a bit longer at 25 pages, it’s still a fairly quick read, as most of the opinion is devoted to a statement of the facts and procedural history.  The slip opinion’s analysis starts at page 16.  After quickly discussing the principles which govern section 3582(c)(2) motions and two of its prior decisions addressing drug quantity, the Court pointedly noted the flaws of the District Court’s previous orders, and explained the District Court’s task on remand.

Maybe it’s just me, but based on some of the opinions I’ve read over the last few months, it seems as though the Eleventh Circuit is becoming less of a rubber stamp for the Government.  Only time will tell, but I sure hope the trend continues.

Who Knew that Miami Dade County and Orange County Have Drones??

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Ok, I admit that this post is NOT about criminal appeals or criminal defense, but I could not resist passing this along.  When I saw this article on the CNN website, I thought “Great.  Another article about Florida Governor Scott making Florida look bad again.”  Well, after reading the article, it’s not just the Governor making Florida look bad.  Can you believe that some law enforcement agencies actually have drones?  If you live in Orange County or Miami Dade County, look out!

Criminal Complaint Filed Against Dzhokhar Tsarnaev In Connection With Boston Marathon Bombings

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Hot off the presses!  Here is the criminal complaint filed against Dzhokhar Tsarnaev in connection with the Boston Marathon bombings.  The case was filed in the United States District Court for the District of Massachusetts.   The complaint charges Tsarnaev with violations of 18 U.S.C. sections 2332a(a) and 844(i) for the use of a weapon of mass destruction and malicious destruction of property resulting in death.

U.S. v. Dzhokhar Tsarnaev, Case No. 13-2106-MAB (District of Massachusetts).

No Miranda Warnings for the Surviving Boston Bomber Dzhokhar Tsarnaev Because of the Public Safety Exception?

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Unless you’ve had your head in the sand, you’ve no doubt seen the media coverage of the apprehension of the second Boston Bomber, Dzhokhar Tsarnaev, on April 19.  You probably also know that he’s currently being held in a hospital, being treated for his injuries, while the prosecuting authorities, both state and federal, decide how to handle things from here.  But what you may not know is that he has NOT been given his Miranda warnings.  How can that be?

Those of us practicing criminal defense and criminal appeals know that anytime there’s custodial interrogation, the individual should be Mirandized.  (Of course we also know that many times, officers decide the for themselves what constitutes custodial interrogation, but that’s a topic for another post).  According to news reports, the feds have invoked the public safety exception to Miranda, which can be traced to the United States Supreme Court case of New York v. Quarles, 467 U.S. 649 (1984).  According to Quarles, the reason the court carved out the public safety exception was because of the exigency of the situation facing the officers in that case.  There, the officers, while “in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.“  Quarles, 467 U.S. at 657.

Now, does that really seem like the situation that officers and prosecuting authorities are currently facing with Dzhokhar Tsarnaev?  I admit that it’s pretty likely that the authorities have not revealed all the facts that have gone into their decision not to Mirandize Tsarnaev, but I would think that if there were any exigent circumstances, such as the possibility of immediate public danger, then the press would have been privy to that.  After all, the FBI actively called on the press to help them locate the suspects when they released the photos of Dzhokhar Tsarnaev and his brother the day before Dzhokhar Tsarnaev  was apprehended.   And the whole reason the city of Boston was on lockdown was because the police feared that he would have  a bomb on his person.  I guess we’ll have to watch the legal aspects of this unfold.  All I can say is that Dzhokhar Tsarnaev is going to need one hell of a lawyer.

UPDATE:  See the criminal complaint here.

BOLO for Sentencing Issue: Court Must Consider Correct Sentencing Scoresheet Before Imposing Sentence on YO Recipient After Being Found Guilty of VOP

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I may have used a lot of acronyms in the title, but I bet I’ve got your attention, right?  It’s Wednesday, which is opinion day in Florida’s 4th DCA.  Although most of the opinions in the criminal appeals were in favor of the State, I came across one that’s worth a quick note.

In Cosme v. State, 4D09-1650 and 4D09-1652, the Court reversed a sentence imposed after the defendant was found guilty of violating his probation.  Although Cosme had been given the benefit of a YO sentence when he was originally sentenced, after finding him guilty of the VOP, the trial judge revoked his probation and sentenced him to concurrent life sentences on all 3 counts.  In so doing, the trial judge apparently listened to the statement of the ASA, who informed the judge that she could sentence Cosme to the maximum sentence of life, “without the constraints of the criminal punishment code.”  Slip op., pg. 1.

After Cosme was sentenced, the ASA prepared a scoresheet, showing that Cosme’s lowest permissible sentence was 12.25 years, and handed it to the trial judge.  The judge then told the ASA to note on the scoresheet that the Guidelines weren’t applicable because Cosme was originally sentenced as a YO.  The trial judge signed the scoresheet, and the case eventually came up on appeal to the 4th DCA.

Notwithstanding the fact that Cosme and his counsel failed to object, the 4th DCA nevertheless reversed because the trial judge pronounced the sentence before being provided a scoresheet, and because both the ASA and the judge stated that the guidelines were not applicable when in fact they were.  Slip op., pg. 2.  Although the 4th DCA acknowledged that the 6- year cap doesn’t apply to a YO sentence imposed following a substantive VOP, the Court emphasized that reversal was required in Cosme’s case because the record did not conclusively show that the same sentences would have been imposed had the trial judge considered a correct scoresheet before imposing sentence.

Of note, Cosme’s case originates in Broward County.  For those of you who practice in Broward, you may want to be on the lookout for this type of sentencing issue the next time you’re representing someone who had been given a YO sentence and then gets charged with violating his or her probation.  If the judge fails to consider a properly completed scoresheet before imposing sentence, you may have a good basis for appeal pursuant to Cosme.

Wins For the Little Guys in United States Supreme Court, Eleventh Circuit, and Florida Supreme Court

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The stars must be aligned just right, because for the first time in a long time, the US Supreme Court, Eleventh Circuit, and Florida Supreme Court all recently issued opinions favorable to criminal defendants.  It’s like a hat trick for criminal defense and criminal appeals lawyers!

In Millbroook v. United States, 11-10362, Millbrook, a federal prisoner in the custody of the Bureau of Prisons, filed an action against the United States after he was sexually assaulted and verbally threatened while in custody.  Although the District Court granted summary judgment in favor of the United States, and the Third Circuit affirmed, the United States Supreme Court reversed, and held that Millbrook’s lawsuit was not barred by the “law enforcement proviso” of the Federal Tort Claims Act (FTCA).  In so holding, the Court relied on the plain text of the section and determined that Congress intended immunity determinations to be based on a federal officer’s legal authority, not on a particular exercise of that authority.  See Millbrook, 11-20362, slip op., pg. 6.  Based on the plain text of the statute, the Court rejected the Government’s argument that an officer’s intentional tort must occur in the course of executing a search seizing evidence, or making an arrest in order to expose the Government to liability.  See id.

In United States v. Hinds, No. 11-16048, Hinds was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack cocaine).  On direct appeal, the Eleventh Circuit agreed with Hinds that his sentence should be vacated because the amount attributed to him was too speculative.  On remand, the District Court failed to give Hinds the benefit of the Fair Sentencing Act (FSA), so Hinds appealed, and won again.  In holding that Hinds should have been given the benefit of the FSA, the Court noted, in footnote 2, that the Government conceded that Hinds should have been given the benefit of the FSA when he appeared on remand.  Too bad Hinds had to appeal twice to get the benefit of the FSA.

Finally, in State v. Larry Phillips, No SC11-411, the Florida Supreme Court found that Phillips, who had been committed under the Jimmy Ryce Act, was eligible for immediate release because the State waited to file its commitment petition after Phillips’ criminal sentence had expired.