Big 5-4 en banc opinion from the 11th Circuit

The blog covered the panel decision in Spencer v. U.S. here in which the panel held:

We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant’s third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court’s denial of his section 2255 motion and remand for resentencing. 

Seems rather straightforward.  Someone who preserves an issue should be allowed to raise it when the law changes, especially where it means an extra 81 months in prison.

But the 11th Circuit in a 5-4 opinion, per Judge Pryor (joined by Ed Carnes, Hull, Tjoflat & Marcus), said no:

This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence. After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.” United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006). Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review. We disagree.

 There were a number of powerful dissents by Martin, Jordan, Wilson & Rosenbaum.

Here's Judge Wilson:

Kevin Spencer has served approximately eight years of the prison sentence he received after pleading guilty to selling two rocks of crack cocaine to an undercover police officer. Had the district court correctly applied the sentencing guidelines, Spencer would likely be a free man today. Instead, because of the district court’s erroneous application of the career offender enhancement, Spencer faces the prospect of spending nearly six more years in prison unnecessarily.
Contrary to the Majority, I do not read Supreme Court precedent to say that a “lawful” sentence forecloses a determination by us that a complete miscarriage of justice has taken place in Spencer’s case. Accordingly, I would reach the merits of Spencer’s claim because I believe that an erroneous guideline determination that is likely to result in a person spending such a considerable amount of additional time in prison—here, six years—constitutes a fundamental error resulting in a complete miscarriage of justice.

 Judge Martin:

I believe the federal courts as an institution would be stronger if we simply acknowledge that we got Mr. Spencer’s sentence wrong from the start, and fix it. The government now concedes that, contrary to its argument to Mr. Spencer’s sentencing court in 2007, he had no prior crime of violence conviction at the time he was sentenced. But the government nevertheless urges this Court to lay the burden of its mistaken 2007 argument upon Mr. Spencer. The majority of this Court has done just that. So Mr. Spencer will continue to serve an extra many years of a mistaken sentence, even though he has been right about how we got his sentence wrong from the start.

Judge Jordan:

Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine. The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months. For those of us familiar with—and sometimes numbed by—the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error. To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.

And Judge Rosenbaum starts off this way:

Today the Court holds that Sentencing Guidelines error that does not cause the imposition of a sentence greater than the statutory maximum can never be cognizable under § 2255 unless a prior conviction on which an enhancement is based is vacated or the petitioner is actually innocent of the crime for which he was sentenced. The reason for this, the Court explains, is that all sentences based on errors under the Sentencing Guidelines but still lower than the statutory maximum are necessarily “lawful,” and “lawful” sentences are not cognizable under § 2255. But the notion that “lawful” sentences cannot be challenged on a § 2255 petition is not supported by United States v. Addonizio, 442 U.S. 178, 99 S. Ct. 2235 (1979), the case on which the Court relies for the proposition, and is undermined by the statute’s own text.

Powerful dissents.  It just seems absolutely wrong to let a man sit in prison for 81 more months when everyone acknowledges that he wasn't a career offender.  Why is finality is worthy goal when justice, fairness, and the law dictate a different result.  If Spencer is sentenced today, he probably gets 2 years instead of 15. 

It is worth noting that the two newest court members, Julie Carnes and Jill Pryor, did not participate. Also, Senior Judge Phyllis Kravitch who was part of the panel elected not to participate.  And the visiting district judge on the panel was not permitted to participate.  So this case may well have turned out differently if the new judges were on the en banc court.  This case looks destined for the Supremes.

Robin Rosenberg's investiture today

Congrats to Judge Robin Rosenberg, who will have her formal investiture today at 3pm in West Palm Beach.  Exciting stuff!

“What the prosecutor said isn’t true.”

That was Marty Raskin doing his best My Cousin Vinny in opening statements for the ICE agent on trial before Judge Altonaga.  The Herald has the details:

Juan F. Martinez was a “corrupt” federal agent who pocketed hundreds of thousands of dollars from informants while extorting a Colombian business and drug traffickers with the power of his badge, a prosecutor told Miami jurors Wednesday.
Martinez, a suspended Immigration and Customs Enforcement agent, knew nothing about the suspicious payoffs that swirled around him and that his informants were the real criminals, a defense attorney countered during opening statements of his client’s federal extortion trial.
“What the prosecutor said isn’t true,” attorney Martin Raskin told the 12 jurors.
Martinez, 48, faces up to 20 years in prison if he is convicted of an extortion conspiracy charge or related offenses in a 12-count indictment filed last December. His trial is expected to last three weeks before U.S. District Judge Cecilia Altonaga.
Martinez, who joined ICE in 2001 before being suspended without pay a decade later, has investigated Colombian cartels, paramilitary groups and other drug traffickers.
The charges allege that Martinez used his official ICE position to extort more than $2 million from a Colombian company, some of its employees and drug traffickers in exchange for purported law-enforcement protection and immigration benefits between 2009 and 2011, according to prosecutors Michael Nadler and Karen Gilbert.
Martinez, a one-time Miami police officer, became the target of a federal criminal investigation after undercover agents spotted him during a March, 29, 2011 meeting with a Colombian drug-trafficking informant at the touristy Bayside Marketplace in downtown Miami.
The informant gave Martinez a bag stuffed with more than $100,000 in alleged cash bribes — courtesy of the Colombian company that they were shaking down, prosecutors said.
Unbeknownst to Martinez, Drug Enforcement Administration agents stumbled onto Martinez that March day because they had been investigating his informant, Jose Miguel Aguirre-Pinzon, whom they saw make the alleged cash delivery at Bayside, according to sources familiar with the probe.
Martinez was later stopped by DEA agents on his way back to ICE’s field office in west Miami-Dade. DEA agents found the alleged payoff stashed inside Martinez’s car.
“That is the day that the house of cards built by the defendant with lies and deceit began to crumble,” Nadler told jurors during opening statements.
But Raskin, the defense attorney, said the payoff was not what it appeared to be. “The money was given to Agent Martinez to hold over night because Miguel [the informant] was afraid to hold the money in his hotel room over night,” he said.

Should the Supreme Court and its Justices be more open?

Well, they couldn't be more secretive according to a new push to open up the Court.  From USA Today:

As in: They don't publicize their schedules. They don't state their conflicts when recusing themselves from cases. They don't put their financial disclosures online. They don't bind themselves to a code of conduct. And they don't let cameras in the courtroom.
"The Supreme Court has taken on a larger role in American life in recent years. With that increased power comes the need for increased accountability," says Gabe Roth, former manager of the Coalition for Court Transparency, which has focused largely on the need for greater video and audio coverage of the court.
The new effort, to be called "Fix the Court," is intended to bring more media and advertising firepower to what has been a diffused effort on the part of liberal, conservative and government watchdog groups concerned about the high court's renowned seclusion.
It opens Wednesday with a six-figure advertising campaign aimed at politically active fans of Fox and MSNBC, as well as online sites. Funding comes from the non-partisan New Venture Fund.
"They told us where we can pray, picked our president, allowed billionaires to buy elections and made choices of life and death," the ad intones. "Nine judges, appointed for life to a court that makes its own rules and has disdain for openness and transparency — the Supreme Court, the most powerful and least accountable branch of government."
The campaign will open with five goals:
•It wants the justices to specify why they recuse themselves from cases, so the public can gauge their potential conflicts of interest.
•It wants annual financial disclosures filed online, with more details about the justices' benefactors.
•It wants them to abide by the same code of conduct that applies to other federal judges.
•It wants advance notice of their public appearances.
•It wants improved media and public access to their courtroom and plaza.
The justices' elusiveness has baffled reporters for years, inspiring outside efforts to track their travels in advance. The latest is a Twitter-based service called "SCOTUS Map" that collates future appearances on a map of the world.
"They're public figures. What they say makes news," Roth says. "They shouldn't be hiding their public appearances."

Meantime, the Court will be deciding whether to hear a case concerning the right to have fish-nibbling pedicures:

A Gilbert spa owner wants the U.S. Supreme Court to rule she has a constitutional right to have fish nibble on her customers’ toes and charge them for that.
Attorney Clint Bolick of the Goldwater Institute said that’s the only path now open to Cindy Vong, owner of La Vie salon, after the Arizona Supreme Court refused last week to consider her plea. That left in place a state Court of Appeal ruling which said the state Board of Cosmetology was legally entitled to stop her from using the fish.
Bolick said the issue is larger than just Vong.
He said it’s one thing for government to impose restrictions designed to protect public health and safety. But Bolick said the lower court ruling, if left undisturbed, allows state officials to ban an entire business practice.
“The issue is really a business’s right to exist,” he said.

My fellow germaphobes, would you put your feet in that water?

He cited a study done by the health protection agency in the United Kingdom.
“There has not been a single documented instance of harm from fish spas in the entire world,” Bolick said. “And that has been confirmed by the U.S. Centers for Disease Control.”
He also said that UK study found the risk to be “miniscule” and can be further reduced by following certain health and safety protocols.
Aune dismissed the UK study, saying that health oversight in Europe is not the same as it is here, with no real place for consumers who had developed infections to complain.
She said Arizona and other states had a problem about a decade ago when contaminated water used for foot baths resulted in ulcers on the legs of customers.
“It was the buildup in the pipes that weren’t getting cleaned out each night and each week,” Aune said.
She said that, questions of whether the fish themselves can transmit disease, the same problems can develop from having the fish in the water. And Aune said there’s really no way to disinfect the water.
“Not without killing the fish,” she said.
“They dirty the water,” Aune continued. “The water could never stay clear.”

Veterans Day

Rumpole has his yearly post up about Veterans Day.  It's a good read.

The courts are closed today, but what about your office?  Seems like most people are working. True?

Is your office closed today, on Veterans day?

Yes, my office is closed when the courts are closed. Yes, my office is closed when the schools are closed. No, my office is open except for holidays like Thanksgiving. No, my office is open when the stock market is open. No, my office is open every day.  

pollcode.com free polls

FDC-Miami holds first Daddy-Daughter Dance

This is both incredible and awfully sad at the same time (via the Miami Herald):

The bureau hosted its inaugural Daddy-Daughter dance to create an enduring memory, one that can carry inmates to the outside world with a different perspective and offer daughters the hope that there will be more such moments. It is part of the bureau’s broader reentry program to reach out to the children and families of offenders and strengthen their bonds, critical for transitioning back home. “You are a key to the success of your father,” Federal Bureau of Prisons Director Charles E. Samuels Jr., told the 20 girls, aged 4 to 18, who had assembled to meet their fathers, all minimum-security, nonviolent offenders.
In a third-floor prison meeting space transformed into a ballroom with a fairytale theme, 13 fathers in suits and ties and tuxedos spent two hours with their girls, this long-held tradition unfolding without the harshness of uniforms and visiting rooms and prison walls. They danced. They swayed. They held tight. They laughed. They cried. And these fathers who have been gone for years remembered the chapters they had missed: birthdays, holidays, first tooth, first crush, first heartbreak.
Some of the girls are so young, they only know a father confined; others are old enough to remember what life was like when their father was home.
“I haven’t been there for so many special moments,” said inmate Michael Rangel, 40, his eyes welling up. The father of three daughters has been in prison almost three years for cargo theft and is scheduled to enter a halfway house in January. “I talk to them and email them all the time, but it’s not the same as being there.”

The whole article is worth a read, and there are some great pictures by Al Diaz at the Herald link.

6th Circuit upholds gay marriage ban, creates circuit split

It's an interesting debate about the role of judges.  Is it the judiciary's duty to defer to the will of the people or to provide a check against the majority while upholding our constitutional rights.  I think the dissent has the better of this one (here are both opinions):

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. The framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Meantime, Sandy Yates, the wife of Supreme Court litigant John Yates, posted in our comment section for yesterday's post:

Just to clarify a couple of points. The fish measured off shore had been frozen for 4 days. When remeasured on shore were put up a metal conveyor and dumped into a vat of water in August in Florida. Hmmm, do you think they may have thawed out. The average fish on shore were 1/2 on bigger than off shore. In addition the FWC officer testified he does NOT measure fish in accordance with federal law. Now, add the fact that the FWC expert witness provided a document with an analysis of measuring the fish the correct way those fish (even frozen) were mostly over 20 inches. Not for the clincher. While NOAA was running around getting this "paper shredding indictment", the head Law Enforcement officer for the whole US was in front of Congress for shredding 80% of his files while being investigated by the Inspector General's Office for abuse of fisherman. Ironic, don't you think.

Go get 'em Mrs. Yates!

"No, I'm not talking about Congress. I'm talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?"

That was Justice Scalia today in the "fish case", Yates v. U.S., going after the government lawyer for his argument on the statute.   SCOTUSBlog has a summary of the oral argument, which looks like it was a rough ride for the SG's office:

Within minutes, Scalia leaned forward and, accusingly, told Martinez that he was defending the law and its use for someone who got only thirty days.  “What kind of sensible prosecutor does that?  Who do you have who exercises prosecutorial discretion?  Is it the same guy who brought Bond, last Term?” — a reference to a decision in which the Court had ruled that the Justice Department had gone too far in using a law against the spread of chemical weapons to prosecute a woman for trying to poison her husband’s lover.
Scalia pressed on, noting the potential for a twenty-year prison sentence under this law, and asking “what kind of mad prosecutor” would use that law in a case like this one?  Martinez weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.
Justice Ruth Bader Ginsburg then interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors.  Martinez answered that the manual for U.S. attorneys told them that, in choosing what crimes to charge, to go for the “most severe available.”
In view of that, Scalia retorted, the Court was going to have to be “much more careful” about how it interpreted federal criminal laws.  When Martinez tried to portray the fisherman as someone who ordered the destruction of evidence, disobeyed a federal officer, and worked out a cover-up scheme, Chief Justice John G. Roberts, Jr., commented: “You make him sound like a mob boss.”
Just what sentence did prosecutors recommend here, Justice Kennedy asked.  Martinez said twenty-one to twenty-seven months, but then added that thirty days here was “reasonable” and twenty years “would have been too much.”
The hearing’s tone had changed totally, and Martinez was on the defensive throughout the remainder of his time.  He tried to recover by going over the specific words and headings in the law, trying to show what Congress had intended for the law.
As he was nearing the end of his half-hour, Martinez was suddenly confronted by Justice Samuel A. Alito, Jr.   The lawyer, the Justice said, had a lot of arguments on the fine points about the law, but “you are asking us for something that is pretty hard to swallow,” that this law could be used for “really trivial matters.”
When Martinez protested that the law would not be used for “trivial matters,” Alito conjured up just such small offenses as throwing a single trout, illicitly caught, back into a lake, and then Justice Breyer asked about kicking a small ember away to try to conceal a forbidden campfire in a public park.  “You could multiple the examples beyond belief,” Breyer said.
In between those exchanges, Justice Kennedy commented acidly that the Court perhaps should no longer refer to the concept of “prosecutorial discretion” if it was open to use as in this case.
Martinez’s woe had started with Justice Scalia, and it never ended until he sat down.