3524. ! Thank you at NYSDA to reduce pro- at NYSDA

g Federal Criminal Defense Practice ysda.or Seminar oole@n T

O Sponsored by gram costs and expenses. gram costs and expenses. Cancellations: Registered participants who are the program, PLEASEunable to attend notify or at 518-465-3524 Megan (Meegan) O’Toole M the Federal Defenders Office for the Northern District of New York and the New York State sda.org y Defenders Association oole@n T to:

O Tuesday, December 10, 2019 MCLE Skills Credits

Email: M 8:45 am – 3:50 pm NYSDA has been certified by the New York State Continuing Legal Education Board as an Accredited Provider of continuing legal edu- Holiday Inn Express cation in the State of New York (2019–2022). 300 Broadway This transitional/nontransitional program has been approved in accordance with the re- Albany, NY quirements of the Continuing Legal Education Board for a maximum of 6.0 credit hours. No New York State Defenders Association York New Suite 500 Ave., Washington 194 NY 12210-2314 Albany, Fax: 518-465-3249 Monday, December 2, 2019 Monday, CLE credit may be earned for repeat atten- 6.0 MCLE Credits Registration Form: Federal Criminal Defense Practice Seminar —December 10, 2019 10, —December Seminar Practice Defense Criminal Federal Form: Registration This seminar is intendedThis for ALL practicing Counsel. Questions? Criminal Defense Please call Federal 518-465- You MUST completeYou this and return form it by THERE IS NO FEE FOR THIS SEMINAR. PRE-REGISTRATION IS REQUIRED. Name:______Office: ______Address: ______City/State/Zip:______Email:______Telephone: ______FAX: ______dance at any accredited CLE activity. PROGRAM SPEAKERS Joanne Macri currently serves as the Statewide Chief Implementation Attorney for the New York State Office 8:15–8:45 am Registration Molly Corbett is an Assistant Federal Public Defender of Indigent Legal Services (ILS) where she is current- for the Albany Office of the Federal Public Defender ly engaged in the statewide implementation of crimi- (FPDO) for the Northern District of New York and has 8:45–9:00 am nal defense reforms as proposed in the Hurrell- been with the office since its inception in 1999. She Opening Remarks—Lisa Peebles Harring v New York settlement agreement. She previ- joined the FPDO after leaving the New York State ously served as the ILS Director of Regional Initiatives Capital Defender Office. She is responsible for appel- where she developed and implemented a network of 9:00–10:40 am late briefing, researching particular pre-trial, trial and statewide Regional Immigration Assistance Centers. The Intersection of Immigration, sentencing issues, and regularly argues before the Ms. Macri also currently serves as a member of the Second Circuit Court of Appeals. Criminal, and Family Law New York Office of Court Administration Advisory Council on Immigration Issues in Family Court and the Proceedings—Joanne Macri James Egan is an Assistant Federal Public Defender, New York State Bar Association (NYSBA) Committee on and head of the Appellate Division for the Office of the the Standards of Attorney Conduct. She previously 10:40–11:00 am Break Federal Public Defender for the Northern District of served as the co-chair of the NYSBA Committee on New York, where he has worked since graduating from Immigration Representation for six years. Syracuse University College of Law in 2007. He can be 11:00–11:50 am reached at [email protected]. Recent Supreme Court Decisions Courtenay McKeon is an Assistant Federal Public Defender with the Office of the Federal Public and Pending Petitions Impacting Barry Fisher serves as the Federal Capital Appellate Defender in Syracuse, New York. She received her B.A. Federal Criminal Practice— Resource Counsel, a position he has held since it was in history from the University of Rochester in 1996 Molly Corbett created in 2008. He directly represents some defen- and her J.D. from the University of California, Davis dants in federal death penalty appeals, consults with School of Law in 1999. She spent the early part of her assigned counsel in other appellate and selected trial career litigating civil rights issues in the state and fed- Lunch (on your own) 11:50 am–1:00 pm cases, and advises federal courts and federal defend- eral courts of California. From 2001 to 2007 she was ers on appointment issues. He graduated from a staff attorney in the California state court system. 1:00–1:50 pm Harvard College and Harvard Law School, after which She moved to Syracuse in 2007, where she clerked for The First Step Act—James Egan he clerked for Federal District Judge Myron Thompson United States Magistrate Judge George H. Lowe until in Montgomery, Alabama. From 1991 through 1995, his retirement in 2012 and for United States he was a Skadden Arps Fellow and then a staff attor- 1:50–2:40 pm Magistrate Judge Thérèse Wiley Dancks from 2012- ney with the Southern Center for Human Rights in 2015. She has served as an adjunct professor at both Second Circuit Update — Atlanta Georgia, where he represents death row the UC Davis School of Law and the Syracuse Courtenay McKeon inmates from Alabama, Georgia, Mississippi, and University College of Law. North Carolina. From 1995 to 2008, he was a deputy defender with the NY Capital defender Office. In 2007, Lisa Peebles is the Federal Public Defender for the 2:40–3:00 pm Break he was co-counsel in People v Taylor in the New York Northern District of New York. Lisa has been with the Court of Appeals, which brought an end to the death office of the Federal Public Defender, since its creation 3:00–3:50 pm penalty in New York. He has also taught courses on in 1999. Prior to being the Federal Public Defender, How To Preserve Legal Issues for Appellate Litigation and Capital Punishment Law at Lisa was the 1st Assistant Defender, managing the Appeal—Barry Fisher Albany Law School. Syracuse office. THE INTERSECTION OF IMMIGRATION, CRIMINAL & FAMILY LAW IN NEW YORK

AN OVERVIEW

Joanne Macri, Esq. NYS Office of Indigent Legal Services [email protected] 518.408.2728

New York State Court of Appeals March 28, 2019 MISSION REGIONAL IMMIGRATION Provide Legal Assistance and Support ASSISTANCE CENTERS Provide Continuing Legal Education and other Trainings

Development of Immigration Service Plans, Protocol and Procedures

Encourage Collaboration

Compliance with ILS standards Impacted Populations of Immigration Consequences IMPACTED POPULATION

Of the 70 million children under age 18 in the United States, 26% (18.2 million) live with at least one immigrant parent (Migration Policy Institute, Children in U.S. Immigrant Families)

• Nearly 16 million of these children were born in the U.S. • More than 5 million children in the U.S. have at least one undocumented parent 79% are U.S. citizens 19% are undocumented 2% are lawfully present non-citizens Migration Policy Institute, Children in U.S. Immigrant Families (2016 Statistics)

In 2014, it was estimated that over 2,000,000/19.75 million are reported non-citizens residing in New York State. (www.migrationpolicy.org) Deportations/Removals Based on Criminal Conviction 160,000 400,00+

140,000

120,000

100,000

80,000

60,000

40,000

20,000

0 1993 1995 1997 1999 2001 2003 2005 2007 2009

DHS Secretary Napolitano’s October 2010 Announcement of record-breaking statistics for immigration enforcement of “criminal aliens” WHO IS SUBJECT TO ?

ANYONE WHO IS NOT A U.S. CITIZEN WHO CAN BE REMOVED?

Lawful Permanent • Admitted to the U.S. as a green card holder Resident

• Granted refugee status outside of the U.S. or Refugee or Asylee asylum status from within the U.S.

• Admitted to the U.S. on a temporary basis Nonimmigrant • (i.e., to visit, attend school, work, etc.)

• Granted temporary protection within the Humanitarian Relief U.S. (i.e., TPS, DACA, T, U or S visa, etc.)

• Entered the United States illegally Undocumented • (i.e., without being inspected and admitted) CONDITIONAL PERMANENT RESIDENT = CONDITIONAL LPR

Married couple *2-YEAR must file a Form I- EXPIRATION 751, Joint Petition DATE OF to Remove PERMANENT Conditions, within RESIDENT CARD 90 days of 2nd issued pursuant to anniversary of INA §216, granting of 8 U.S.C. §1186a. immigration status. ICE ACCESS = AGREEMENTS OF COOPERATION IN COMMUNITIES TO ENHANCES SAFETY AND SECURITY

US v. Wilson 10/25/12 Second Circuit ICE NYS DOCCS DETAINER/HOLD IRP, APPEALS, POST- & BENCH WARRANTS, BOND REVOCATION CONVICTION POSTING & SPEEDY TRIAL MOTIONS BAIL/RELEASE MTS & IRP PGM

4TH AMENDT DHS LOCAL/STATE COLLABORATIVE

ICE TRANSFER ECDPO, ICE TRANSFER & EXPEDITED REMOVAL OCA Directive Limiting ICE Arrests in New York State Courts

On April 17, 2019, the New York State Office of Court Administration (OCA) issued a new directive governing U.S. Immigration and Customs Enforcement (ICE) agents’ activities within New York State courthouses.

The new directive provides that ICE agents may execute arrests inside a New York State courthouse only if the arrest is pursuant to a judicial warrant or judicial order, issued by a federal judge or magistrate. (N.B.: Does not apply to federal and town and village courts and does not prevent arrests “outside” of the courthouse doors) WHAT IS AN IMMIGRATION DETAINER (FORM I-247)?

IMMIGRATION DETAINERis a “hold” that will prevent a client’s release. Pursuant to 8 C.F.R. Sec. 287.7(a): “… is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate custody is either impracticable or impossible.” (emphasis added) ICE “HOLDS” ARE NOT MANDATORY

“While immigration detainers are an important part of ICE’S effort to remove criminal aliens who are in Federal, state or local custody, they are not mandatory as a matter of law.”

Letter to Congressman Mike Thompson (CA -5th District) From ICE Deputy Director, Daniel Ragsdale February 25, 2014

See also Liranzo v United States (690 F3d 78, 82 [2d Cir 2012]) ; Galarza v Szalczyk (No. 12-3991, 2014 US App LEXIS 4000 [3d Cir 3/4/14]); Miranda-Olivares v. Clackamas County, 2014 WL 1414305 (D. Or.) DHS TRIGGERS FOR INFORMATION REGARDING CRIMINAL COURT PROCEEDINGS

immigration application Self- forms Detention Reporting Referral interviews (i.e., fingerprinting)

at the border

DHS ADVERSE IMMIGRATION CONSEQUENCES: WHAT WE KNOW… NOT ALWAYS IMMEDIATELY APPARENT RANGES IN SEVERITY AND IMPACT ◦ Delay in adjudication of immigration applications; ◦ Denial of immigration benefits; and/or ◦ Referral to immigration court for removal from the U.S. ◦ If ordered removed, permanent expulsion from the U.S. is likely NOTICE RECOMMENDED FOR “INFORMED” AND “VOLUNTARY” DECISIONS DIFFERING RESPONSIBILITIES INVOLVED IN ADDRESSING ADVERSE IMMIGRATION CONSEQUENCES I-485, APPLICATION TO REGISTER PERMANENT RESIDENT OR ADJUST STATUS IMMIGRATION ENFORCEMENT?

Dept. of Homeland Security

(Homeland Security Act of 2002)

Citizenship and Immigration and Customs and Immigration Customs Border Border Patrol Services Enforcement Protection (CIS) (ICE) (CBP)

Affirmatively filed applications Immigration Detainers Inspection upon returning Encounter/referral during a (green card application, to the US following travel abroad road block or LEA stop naturalization, etc.) IMMIGRATION COURT SYSTEM

US DEPARTMENT OF Department of Justice JUSTICE Civil Division Office of Immigration Litigation (OILS) (Assistant US Attorneys)

US FEDERAL COURTS (US district Courts and Circuit Courts of Appeal)

Department of Homeland Security BOARD OF Office of Chief Counsel IMMIGRATION (Assistant Chief Counsel) APPEALS (immigration administrative appeals) DHS Office

Of Chief EXECUTIVE OFFICE FOR Counsel IMMIGRATION REVIEW (immigration courts) EFFECTIVE COUNSEL Padilla v. Commonwealth of Kentucky 559 U.S. 356, 130 S.Ct. 1473 (2010)  [R]ecent changes in our have made removal nearly an automatic result for a broad class of noncitizen offenders.” immigration law

 6th Amendment guarantee of effective assistance requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea.

Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, No. 10-209 (March 21, 2012)

 6th Amendment right to effective assistance of defense counsel at plea bargaining stage Life After Padilla: Defending In Criminal Court

 Unique nature of deportation is “particularly severe penalty” that is intimately tied to criminal process and therefore advice regarding deportation is not removed from the ambit of the Sixth Amendment right to effective assistance of counsel. Padilla v. Kentucky, 130 S.Ct. 1473, 1481 (2010)

 Silence on the issue of immigration consequences is “at odds with the critical obligation of counsel...” Padilla v. Kentucky, 130 S.Ct. at 1484 Life After Padilla: Defending In Criminal Court

 Preserving the client’s right to remain in the U.S. may be more important to the client than any potential jail sentence. Padilla v. Kentucky, 130 S.Ct. at 1483 (citing INS v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001))

 Professional norms (standards) for defense lawyers provide the guiding principles for what constitutes effective assistance of counsel – relying on principles that require a defense counsel to determine citizenship/immigration status of a client and to investigate and advise on immigration consequences. Id. at 1483-1484

 The Court endorsed “informed consideration” of deportation consequences by both the defense and the prosecution during plea-bargaining. Id. at 1486 Affirmative Advice & The Strickland Standard

 The Court expressly rejected option of limiting application of Strickland v. Washington 466 U.S. 668 (1984) to claims of affirmative misadvice: “ A holding limited to affirmative misadvice…would give counsel an incentive to remain silent on matters of great importance…when answers are readily available.” Id. at 1484 DEFENSE PROTOCOL: WHAT DEFENSE ATTORNEYS NEED TO KNOW!

 CITIZENSHIP or NATIONALITY

 IMMIGRATION STATUS

 MANNER OF ENTRY and LENGTH OF TIME in the U.S. (i.e., first and last trip into the U.S.)

Any PRIOR CRIMINAL HISTORY and IMMIGRATION HISTORY

Any “IMMEDIATE FAMILY” in the U.S. IMMIGRATION CONSEQUENCES IN CRIMINAL PROCEEDINGS DEPORTABILITY v. INADMISSIBILITY INA § 237, 8 U.S.C. § 1227 INA § 212, 8 U.S.C. § 1182

Technically: Deportability applies to non-citizens whom the government has “admitted” into the United States (e.g. LPRs, refugees) Inadmissibility applies to those seeking lawful admission or permanent residency status (e.g. undocumented, visa overstays applying for permanent residency, LPRs applying for admission)

Practically: Each set of rules, or both, may apply to the same person in various situations ARE MINOR OFFENSES A PROBLEM?

OFTEN NO IMMIGRATION CONSEQUENCE *TRIGGERS IMMIGRATION CONSEQUENCE

DISORDERLY CONDUCT UNLAWFUL POSSESSION OF MARIJUANA NYPL §240.20 NYPL §221.05

LOITERING APPEARANCE IN PUBLIC UNDER THE NYPL §240.35 INFLUENCE OF NARCOTICS OR A DRUG OTHER THAN ALCOHOL NYPL §240.40 TRESPASS THEFT OF SERVICES (turnstile jumping) NYPL §140.05 NYPL §165.15(3) UNLAWFULLY POSTING ADVERTISEMENTS LOITERING FOR THE PURPOSE OF ENGAGING NYPL §145.30 IN A PROSTITUTION OFFENSE NYPL §240.37

FAILING TO RESPOND TO AN APPEARANCE TICKET NYPL §215.58

AGGRAVATED FELONIES

 Loss of lawful permanent residency  Permanent ineligibility for citizenship  Mandatory detention without bond  Permanent bar to return after deportation  Increased sentence enhancements for illegal re- entry prosecutions under 8 U.S.C.§1326  Cuts off almost all defenses to removal and relief Deportation is almost certain! AGGRAVATED FELONIES

Conviction- Circumstance- Sentence-Based AFs Based AFs Specific AFs

Conviction of Conviction of Specified Specified Offense Conviction of Offense Specified & & Offense Sentence of Other Factor 1+ Yr (e.g. > $10k (now or VOP) loss of victim) POINTS ABOUT AGGRAVATED FELONIES Doesn’t need to be “aggravated” Doesn’t need to be a felony (includes misdemeanors, and the government even argued NYS violations!) Many offenses are aggravated felonies even if client received no jail time Attempt and conspiracy to commit AF is also an AF Immigration courts use the “categorical approach” to determine whether a state offense is an aggravated felony under federal law – this is a elements-based comparison, comparable to how NYS courts decide whether an out-of-state conviction is a predicate under NY law. More on this later. Crimes Involving Moral Turpitude

 Vaguely defined in case law as a depraved or immoral act, intrinsically wrong (malum in se), or a violation of the basic duties owed to fellow man. In re Florez, 17 I&N Dec. 225 (BIA 1980).  Requires “vicious motive or corrupt mind” - mens rea of at least recklessness.  An offense with a mens rea of negligence is not a CIMT. Ex) Negligent Homicide, NYPL 120.10

Because the concept is so nebulous and the language of the statute matters, it often requires research into immigration and state case law NYPL AND CIMTs Minor New York offenses are routinely charged by the government as CIMTs: Theft of services (turnstile jumping), NYPL §165.15(3) Petit larceny (shoplifting), NYPL §155.25 (committed after 11/16/2016)

BUT some surprisingly MAY NOT be CIMTs so do NOT assume you know just by looking at the statute Resisting Arrest, NYPL § 205.30 CIMTs AND REMOVABILITY Inadmissible if convicted of OR admit to Deportable if convicted of: having committed ONE CIMT, EXCEPT:  ONE CIMT that was committed within 5  Petty Offense Exception, INA § years of admission for which a sentence of a 212(a)(2)(A)(ii)(II): year or longer may be imposed* (INA § Only one CIMT conviction; 237(a)(2)(A)(i)) Maximum penalty possible does not  TWO CIMTs at any time & not arising out exceed 1 year imprisonment; AND of single scheme of criminal misconduct Client was not sentenced in excess of 6 (INA § 237(a)(2)(A)(ii)) months  Petty offense: In NY, one A  IN NY, one A misdemeanor CIMT misdemeanor CIMT w/sentence of 6 mos. committed within 5 years of admission or or less  Two CIMTs at any time if not “single scheme”

*“Admission” is a term of art Controlled Substance Offense (“CSO”)

“Controlled substance” refers to a substance that appears on the federal Controlled Substances Act, including marijuana. Offenses that can trigger this deportability ground include: ◦ Simple possession; ◦ Possession with intent to sell or distribute; ◦ DUI if under the influence of a controlled substance; ◦ Paraphernalia offenses with a federal substance; ◦ Some medical fraud offenses. CSO COMPARISON

INADMISSIBILITY DEPORTABILITY

 No exception  Exception: single “offense”  Possible waiver for: single involving 30g or less of “offense” of 30g or less involving marijuana for personal use marijuana for personal use  Also includes scenarios in which DHS has “reason to believe” that person is a drug trafficker, which can include dismissed charges FIREARM OFFENSES

Inadmissibility Deportability

 Not ground of inadmissibility Removable for conviction for  purchasing, selling, offering for May be also CIMT sale, exchanging, using, owning, ◦ Firearm w/intent to use – possessing, or carrying (or NYPL § 265.01(2) attempt or conspiracy) a firearm or destructive device. INA § 237(a)(2)(C). NYPL § 265.01(1) (if firearm) DOMESTIC VIOLENCE-RELATED GROUNDS OF DEPORTABILITY

Crime of Domestic Violators of Protection Violence Orders Requires a conviction Conviction in criminal court (e.g., criminal contempt, etc.); “Domestic violence” = crime of violence (18 U.S.C. § 16) OR + Finding of a violation of OOP by Against person protected by family court or other tribunal (no domestic laws of jurisdiction criminal conviction required)* (more on this later) CRIMES AGAINST A CHILD  Includes offenses that are intentional, knowing, reckless and criminally negligent or involve an omission that constitutes maltreatment of a child under the age of 18 or impairs a child’s physical/mental well- being  Currently being litigated at Second Circuit: NYPL § 260.10 endangering the welfare of a child CONDUCT-BASED FINDINGS THAT MAY BAR IMMIGRATION RELIEF

 Prostitution (i.e., finding of engaging in sex for money within past 10 years is inadmissible) 8 USC § 1182(a)(2)(D)  Drug Trafficking (i.e., “reason to believe” of assisting in or drug trafficking is inadmissible but not deportable) 8 USC § 1182(a)(2)(C)  Drug Addict or Abuser (i.e., inadmissible if a “current” drug addict or abuser, and deportable if he/she has been one at any time since admission to the U.S. within the past 3 years) 8 USC §1182(a)(1)(A)(iii) (inadmissibility) and 8 USC §1227(a)(2)(B)(ii) (deportability)  Money Laundering (i.e. “reason to believe” laundering of monetary instruments is inadmissible) 8 USC § 1182(a)(2)(I), also an aggravated felony if amount > $10,000  “Admission” to committing a CIMT or CSO (or to acts constituting the “essential elements” of a CIMT or CSO) 8 USC § 1182(a)(2)(A)(i) N-400, APPLICATION FOR NATURALIZATION (p. 15 and 16 of 21) I-485, APPLICATION TO REGISTER PERMANENT RESIDENT OR ADJUST STATUS (p. 3) CRIMINAL IMMIGRATION TERMINOLOGY What is a “conviction?” Removability usually requires “conviction” INA § 101(a)(48), 8 U.S.C. § 1101(a)(48)

A conviction is: A formal judgment of guilt entered by a court or Where adjudication of guilt has been withheld, ∆ admits facts sufficient to warrant a finding of guilt and Court has ordered some form of punishment, penalty, or restraint on liberty. WHICH NEW YORK DISPOSITIONS ARE “CONVICTIONS” ? CONVICTION NOT A CONVICTION Formal judgment of guilt in adult criminal court Youthful offender disposition (even though (including NY Juvenile Offender conviction) entered in adult court) and juvenile delinquency* dispositions (*BUT… possibly problematic “conduct” grounds) Diversion, drug treatment or family counseling IF Diversion, drug treatment or family counseling IF PLEA OR ADMISSION OF GUILT made by defendant, PLEA OR ADMISSION OF GUILT WAIVED even if later vacated after successful completion (i.e., NY CPL §216.05(4)) Conditional Discharge Sentence or Alford Plea Adjournment in contemplation of dismissal (successful) Post Conviction Relief/Motion pending on Conviction on direct appeal or collateral challenge NYS late notice of appeal (460.30)

Disposition vacated/expunged in the “interest of Disposition vacated based on legal defect or justice” constitutional violation in criminal case (i.e., NY CPL §440.10 motion) What is a “sentence?”

 INA § 101(a)(48)(B)  Suspended sentences, common in some other states, count  Resentencing counts  If a client violates the terms of his/her probation, the time in custody imposed for that violation will be added to the original sentence and count towards the overall time considered for immigration purposes [Matter of Perez-Ramirez, 25 I&N Dec. 203 (BIA 2010)] VACATUR/SENTENCE REDUCTION

Conviction Sentence  Order must reflect vacatur  Reduction or vacatur “in the based, in part, on procedural or interest of justice” recognized substantive defect in the by the BIA original proceedings  Rehabilitative or “in the interest of justice” vacaturs not valid to avoid immigration consequences  If vacatur is valid, underlying charges may be dismissed “in the interest of justice” VACATUR OF A CONVICTION

 Order must reflect vacatur based, in part, on procedural or substantive defect in the original proceedings  Rehabilitative or “in the interest of justice” vacaturs not valid to avoid immigration consequences or based on reasons of rehabilitation only.  If vacatur is valid, underlying charges may be dismissed “in the interest of justice”

Matter of Thomas, 27 I&N Dec. 674 (A.G. 2019), Int Dec 3966 (Oct 25, 2019) (a brief overview of) THE CATEGORICAL APPROACH What is the categorical approach?

The methodology for determining whether an offense triggers “conviction”-based immigration or federal sentencing consequences.

See Mathis at 2247, 2251, 2255 n.6; Moncrieffe at 1685. How the categorical approach works: a sequence of steps

1. Identify the “generic” definition of the immigration or federal sentencing provision.

2. Identify the “least-acts-criminalized” under the state statute of conviction.

3. Compare the elements of the statute of conviction with the elements of the generic offense. If the state statute’s elements are broader than those of the generic crime, the conviction is categorically not a generic offense – the relevant removal statute does not apply.

ELEMENTS OF THE STATE STATUTE OF CONVICTION

ELEMENTS OF THE GENERIC OFFENSE What about the modified categorical approach?

Where a statute covers “multiple crimes” and lists them as “elements in the alternative,” the statute is “divisible” and the adjudicator may apply the modified categorical approach “to determine what crime, with what elements, a defendant was convicted of.”

Mathis at 2249. “Harbin” offenses

 The Second Circuit found that the “controlled substance” element in certain P.L. 220 offenses was not divisible under the categorical approach, and because New York has non- federally controlled substances, those offenses are categorically not controlled substance offenses. Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017).  NYPL § 220.31  NYPL § 220.06(1)  NYPL § 220.03 Circumstance-specific approach

Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) -- domestic nature of offense under “crime of domestic violence” deportability provision, INA 237(a)(2)(E)(i).

Nijhawan v. Holder, 557 U.S. 29 (2009) – loss amount for fraud aggravated felony provision at INA 101(a)(43)(M)(i) CRIMINAL LAW RESOURCE

 National Immigration Project of the National Lawyers Guild: Selected Immigration Consequences of Certain Federal Offenses, https://defgen.vermont.gov/sites/defgen/files/Research/fed_chart_updated_Aug_05.pdf Emerging Issues COURT OBLIGATION: JUDICIAL NOTIFICATION OF IMMIGRATION CONSEQUENCES

“To protect the rights of a large number of non-citizen defendants pleading guilty to felonies in New York, trial courts must now make all defendants aware that, if they are not United States citizens, their felony guilty pleas may expose them to deportation.”

 Short, straightforward statement – advising of potential consequence and encouraging consultation with defense attorney about deportation

People v. Peque (2011) (affirmed); People v. Diaz (2012) (remanded); People v. Thomas (2011)(affirmed) Nov. 19, 2013 Does a judicial notification cure prejudice from a Padilla violation?

 The roles and responsibilities of court and counsel are legally and practically distinct – Knowing and voluntary pleas do not overcome ineffective assistance by defense counsel. Lafler v. Cooper, 132 S.Ct. 1376, 1390 (2012) (“An inquiry into whether the rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel.”) Only defense counsel is aware of the specific factors in a defendant’s case, including relevant consequences and goals.

 See ABA Pleas of Guilty Standard 14-3.2; see also ABA Pleas of Guilty Standard 14-3.2(f) cmt. at 126 (“[O]nly defense counsel is in a position to ensure that the defendant is aware of the full range of consequences that may apply in his or her case.”) Does a judicial notification cure prejudice from a Padilla violation?

 Counsel failed to negotiate – If the prejudice inquiry turns on whether the court provided a judicial notification, counsel was already ineffective for failing to negotiate effectively. Missouri v. Frye, 566 US 134, 144 (2012) (“Criminal defendants require effective counsel during plea negotiations. Anything less… might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.”) (citations omitted) Does a judicial notification cure prejudice from a Padilla violation?

 Is the advisal “correct advice”? – use of the word “may” isn’t accurate when the non-citizen is pleading guilty to an offense that requires mandatory deportation or deportation with no possibility of relief from removal.

 Full scope of professional obligations for attorneys includes more than just deportability: inadmissibility, naturalization, relief eligibility, etc. A JUDGE’S ROLE

Provide all defendants with a Consider mitigating brief, concise factors and/or statement advising that a guilty plea Provide defense requests made to minimize may expose them to Make defendant counsel with an deportation or other opportunity to immigration aware that defense consequences. immigration attorney has an consult with an consequences. obligation to advise immigration expert. on immigration consequences without inquiring into defendant’s status. DUTIES OF DEFENSE COUNSEL

Provide accurate and complete Negotiate advice effectively with Analyze district attorney Determine immigration client’s consequences immigration with immigration status, attorney background and goals IMMIGRATION & FAMILY LAW Article 3- Juvenile Delinquency Article 10- Abuse, Article 4- Neglect, Support Abandonment

Article 8- Article 5- Family Paternity Offenses

Article 6- Article 7- PINS Custody IMMIGRATION & FAMILY LAW DOES PADILLA APPLY IN FAMILY COURT?

. No case law squarely addresses whether Padilla could apply in a civil proceeding.

. NY Position: ◦ Immigration consequences similarly ‘enmeshed’ in the family court system. ◦ Therefore same standard for effective assistance of counsel in criminal and family court proceedings.

. Professional Standards: ◦ Model Rules of Professional conduct ◦ Rule 1.1 (Competence), and Rule 1.4 (Communication to facilitate informed decisions) IMMIGRATION & FAMILY LAW FAMILY COURT FINDINGS

.A Family Court Finding is not a “conviction” for immigration purposes.

.Conviction for immigration purposes: FORMAL JUDGMENT OF GUILT entered by a court; OR, IF ADJUDICATION HAS BEEN WITHHELD, where a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

.Still has adverse immigration consequences. IMMIGRATION & FAMILY LAW

PROCEEDINGS TRIGGERS IMMIGRATION CONSEQUENCE Abuse and Neglect . Violation of Orders of Inadmissibility Protection Deportability . Findings Family Offenses Detainer/notification . Admissions Denial of Immigration . Contempt + Jail Support Benefit or Relief

Custody IMMIGRATION & FAMILY LAW

ARTICLE 10 CRIMINAL Abuse & COURT Neglect Endangering Welfare of a Child IMMIGRATION Non-Support of CONSEQUENCES Child Sex Offenses Stalking Strangulation Assault ARTICLE 8 ID Theft DEPORTABILITY Family Grand Larceny INADMISSIBILITY Offenses Violation of O/P DENIAL of (concurrent criminal J) BENEFITS/RELIEF IMMIGRATION & FAMILY LAW: FAMILY LAW OFFENSES

 Assault  Forcible Touching  Menacing  Unlawful Imprisonment  Reckless Endangerment  Harassment  Sexual Misconduct or  Burglary Abuse IMMIGRATION & FAMILY LAW: ABUSE AND NEGLECT Crime of Domestic Violence (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another; or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or another may be used in the course of committing the offense. 18 USC Section § 16(a), (b)

Crime of Domestic Violence Any crime of violence (as defined in [18 USC 16]) against a person committed by a current or former spouse of the person, by an individual cohabitating with or has cohabitated with the person as a spouse, by a person similarly situated to a spouse…or by any other individual …protected … under the domestic of family violence laws of …any State…or unit of local government. IMMIGRATION & FAMILY LAW: ABUSE AND NEGLECT

Involves a Domestic “Crime of Relationship – Crime of Violence” as against current or Domestic defined by ex-spouse, parent of Violence 18 USC § 16 def.’s child, cohabitant, or “similarly situated under state law”

Domestic violence, stalking and child abuse - “Any alien who is … convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.” INA §237(a)(2)E(i)p; 8 U.S.C.§1227(a)(2)(E)(i) IMMIGRATION & FAMILY LAW: ORDERS OF PROTECTION

Violators of protection orders.---- Any alien who …is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.

INA §237(a)(2)(E)(i)p; 8 U.S.C. §1227(a)(2)(E)(ii)

“Protection Order” = any injunction to prevent violent or threatening acts of DV

 Civil or criminal court (other than support or child custody orders or provisions)

 Temporary or permanent

 Independent Article 8 proceeding or pendente lite in another proceeding IMMIGRATION & FAMILY LAW: ORDERS OF PROTECTION

Certain family law offenses may result in (1) inadmissibility, (2) denial of immigration benefits and (3) possible referral for removal proceedings if there is a “finding” of a violation of a protection order.

Which Violations Will Not Trigger?

 Failure to attend a counseling program;  Failure to pay for counseling costs;  Failure to pay for supervised visitation costs;  Failure to provide financial assistance to petitioner;  Arguably, any condition not involving protection against violence. IMMIGRATION & FAMILY LAW: CONTEMPT & INCARCERATION

REMOVAL PROCEEDING

JAIL

CONTEMPT + ICE issues detainer JAIL or notification Denial of Immigration Benefit: If sentenced to 180 days, statutory bar to citizenship & other benefits/relief IMMIGRATION & FAMILY LAW

immigration from your application CONCURRENT NY forms CRIMINAL REGISTRIES O/P CLIENT Child Abuse interviews NCIC

at the border DHS REQUESTS FAM CT. RECORDS DHS REGIONAL IMMIGRATION ASSISTANCE CENTERS

Region #4: Mid-Hudson Region #1: Western New York Legal Aid Society of Westchester County Erie County Bar/Volunteer Lawyers’ Project 150 Grand Street, 1st Floor 237 Main Street, Suite 1000 White Plains, New York 10601 Buffalo, New York 14203 P: (914) 286-3400 P: (716) 847-0662

Region #5: New York City Region #2: Central New York Immigrant Defense Project Oneida County Courthouse 40 W 39th Street, 5th Floor 302 N. James Street New York, New York 10018 Rome, New York 13440 P: (212) 725-6422 P: (315) 356-5794

Region #6: Long Island Region #3: Capital District & Northern Legal Aid Society of Suffolk County NY Cohalan Court Complex 112 State Street, Suite 720 400 Carleton Ave., 4th Floor Albany, New York 12207 Central Islip, NY 11722 P: (518) 447-4890 P: (631) 853-7770  Suffolk County P: (516) 560.6400  Nassau County

QUESTIONS THE MAPPING OF AN IMMIGRATION COURT PROCEEDING

DHS INITIATES ACTION

Deferred Action to temporarily stay Issuance of Voluntary Immigration Detainer or to prevent a removal proceeding (i.e., Form I-247, Notice of Detainer) is within the discretion of DHS

PRE-RELEASE HEARING POST RELEASE HEARING

Institutional Removal Program Hearing is a pre- Post-release transfer to a federal Immigration release Immigration Removal Proceeding scheduled Detention Facility for Removal Proceedings before before an immigration judge an Immigration Judge

PREPARATION OF THE NOTICE TO APPEAR FOR FILING Deferred Action to temporarily Notice To Appear (NTA) is drafted by an agency within the Department of Homeland stay or to prevent a removal Security (DHS) (i.e., or drafted, reviewed and/or revised by the DHS Office of Chief proceeding is within the Counsel (OCC) prior to OCC’s filing of the NTA with the immigration court. discretion of DHS

FILING OF THE NTA WITH THE IMMIGRATION COURT

NTA filed by the OCC with the Executive Office for Immigration Review (Immigration Court) for the scheduling of a Removal Proceeding

SCHEDULING OF A BOND HEARING

Bond Hearing Scheduled by the Immigration Court or can be requested by written motion by the “respondent” (i.e., individual subject to the immigration hearing) or his/her attorney who has filed an EOIR 28, Notice of Entry of Appearance form with the Court (i.e., available at www.eoir.gov) THE MAPPING OF AN IMMIGRATION COURT PROCEEDING (continued)

FILING OF MOTIONS

If subject to mandatory detention, consider whether a motion to change venue is necessary to perfect a meritorious claim for relief from removal. An assessment should be made as to any necessary motion to suppress evidence provided in support of the NTA.

ADDRESSING THE NOTICE TO APPEAR

The factual and statutory allegations alleged on the Notice to Appear (NTA) must be addressed (i.e., admitted/conceded or denied. It is also at this stage of the proceeding that the Immigration Judge will make a prima facie determination regarding legally sufficiency of the NTA. Often times, a respondent will also be asked to designate a country of removal (i.e., which can be waived, particularly if the respondent is seeking humanitarian protection and unable to return to his/her native country). It is also during this phase of the proceeding that the respondent may be asked to identify any potential claims for relief from removal and/or issues regarding legal insufficiency of the NTA.

SUBSEQUENT “MASTER CALENDAR” HEARINGS Deferred Action to temporarily stay or to prevent a removal proceeding Shorter hearings may be scheduled prior to the respondent’s “individual” trial to submit applications is within the court’s discretion and/or adjudicate filed motions. These hearings can also be used to address pre-trial matters.

INDIVIUAL HEARING

The Individual hearing is the “trial” that is held to adjudicate all applications for immigration relief, hear from any witnesses and to resolve any final disputes as to the issue of removability.

FILING AN APPEAL TO THE BOARD OF IMMIGRATION APPEALS

An appeal (i.e., or interlocutory appeal) may be filed by either parties with the Board of Immigration Appeals (BIA). A “Notice of Appeal” of an order of removal must be filed and received by the BIA within 30 days of the issuance of the final order of removal. For more information, review the BIA Practice Manual available at http://www.justice.gov/eoir. FOR OFFICIAL USE ONLY

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

Directive Number 11072.1: Civil Immigration Enforcement Actions Inside Courthouses

Issue Date: January 10, 2018 Effective Date: January 10, 2018 Superseded: None Federal Enterprise Architecture Number: 306-112-002b

1. Purpose/Background. This Directive sets forth U.S. Immigration and Customs Enforcement (ICE) policy regarding civil immigration enforcement actions inside federal, state, and local courthouses. Individuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband. Accordingly, civil immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien(s), and ICE officers and agents. When practicable, ICE officers and agents will conduct enforcement actions discreetly to minimize their impact on court proceedings.

Federal, state, and local law enforcement officials routinely engage in enforcement activity in courthouses throughout the country because many individuals appearing in courthouses for one matter are wanted for unrelated criminal or civil violations. ICE’s enforcement activities in these same courthouses are wholly consistent with longstanding law enforcement practices, nationwide. And, courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails.

2. Policy. ICE civil immigration enforcement actions inside courthouses include actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed, when ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location.

Aliens encountered during a civil immigration enforcement action inside a courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding, will not be subject to civil immigration enforcement action, absent special circumstances, such as where the individual poses a threat to public safety or interferes with ICE’s enforcement actions.1

1 ICE officers and agents will make enforcement determinations on a case-by-case basis in accordance with federal law and consistent with U.S. Department of Homeland Security (DHS) policy. See Memorandum from John Kelly, Secretary of Homeland Security, Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017); Memorandum from John Kelly, Secretary of Homeland Security, Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017). ______Civil Immigration Enforcement Actions Inside Courthouses 1 FOR OFFICIAL USE ONLY FOR OFFICIAL USE ONLY

ICE officers and agents should generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal (e.g., family court, small claims court) proceedings. In those instances in which an enforcement action in the above situations is operationally necessary, the approval of the respective Field Office Director (FOD), Special Agent in Charge (SAC), or his or her designee is required.

Civil immigration enforcement actions inside courthouses should, to the extent practicable, continue to take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building’s non-public entrances and exits.

Planned civil immigration enforcement actions inside courthouses will be documented and approved consistent with current operational plans and field operations worksheet procedures. Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI) may issue additional procedural guidance on reporting and documentation requirements; such reporting and documentation shall not impose unduly restrictive requirements that operate to hamper or frustrate enforcement efforts.

As with any planned enforcement action, ICE officers and agents should exercise sound judgment when enforcing federal law and make substantial efforts to avoid unnecessarily alarming the public. ICE officers and agents will make every effort to limit their time at courthouses while conducting civil immigration enforcement actions.

This policy does not apply to criminal immigration enforcement actions inside courthouses, nor does it prohibit civil immigration enforcement actions inside courthouses.

3. Definition The following definitions apply for the purposes of this Directive only.

3.1. Civil immigration enforcement action. Action taken by an ICE officer or agent to apprehend, arrest, interview, or search an alien in connection with enforcement of administrative immigration violations.

4. Responsibilities.

4.1. The Executive Associate Directors for ERO and HSI are responsible for ensuring compliance with the provisions of this Directive within his or her program office.

4.2. ERO FODs and HSI SACs are responsible for:

1) Providing guidance to officers and agents on the approval process and procedures for civil immigration enforcement actions at courthouses in their area of responsibility beyond those outlined in this Directive; and

2) Ensuring civil immigration enforcement actions at courthouses are properly documented and reported, as prescribed in Section 5.1 of this Directive. ______Civil Immigration Enforcement Actions Inside Courthouses 2 FOR OFFICIAL USE ONLY FOR OFFICIAL USE ONLY

4.3. ICE Officers and Agents are responsible for complying with the provisions of this Directive and properly documenting and reporting civil immigration enforcement actions at courthouses, as prescribed in Section 5.1 of this Directive.2

5. Procedures/Requirements.

5.1. Reporting Requirements.

1) ICE officers and agents will document the physical address of planned civil immigration enforcement actions in accordance with standard procedures for completing operational plans, noting that the target address is a courthouse.3

2) Unless otherwise directed by leadership, there will be no additional reporting requirements in effect for this Directive.

6. Recordkeeping. ICE maintains records generated pursuant to this policy, specifically the Field Operations Worksheets (FOW) and Enforcement Operation Plan (EOP). ERO will maintain the FOW in accordance with the Fugitive Operations schedule DAA-0567- 2015-0016. HSI will maintain EOPs in accordance with the Comprehensive Records Schedule N1-36-86-1/161.3. The EOPs will be maintained within the Investigative Case Files.

7. Authorities/References.

7.1. DHS Directive 034-06, Department Reporting Requirements, October 23, 2015.

7.2. DHS Instruction 034-06-001, Rev. 1, Department Reporting Requirements, March 28, 2017.

8. Attachments. None.

9. No Private Right. This document provides only internal ICE policy guidance, which may be modified, rescinded, or superseded at any time without notice. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigative prerogatives of ICE.

2 See also ICE Directive No. 10036.1, Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005 (Jan. 22, 2007), for additional requirements regarding civil immigration enforcement actions against certain victims and witnesses conducted at courthouses. 3 ERO will use the Field Operations Worksheet and HSI will use the Enforcement Operation Plan. ______Civil Immigration Enforcement Actions Inside Courthouses 3 FOR OFFICIAL USE ONLY FOR OFFICIAL USE ONLY

______Civil Immigration Enforcement Actions Inside Courthouses 4 FOR OFFICIAL USE ONLY State of New York Unified Court System ,ffi, Office of the Chief Administrative Judge DIRECTIVE To: All Uniformed Personnel Number: 1-2019 (Rev. from Memo issued 0{03/2019) Subject: Protocol Governing Activities in Courthouses by Law Enforcement Agencies Effective Date: April 17 , 2019

It continues to be the policy of the Unified Court System (UCS) to permit law enforcement agencies to act in the pursuit of their official legal duties in New York State courthouses, provided that the conduct in no way disrupts or delays court operations or compromises public safety or court decorum.

2. The following protocol shall apply to representatives of law enforcement agencies who, while acting in their official capacity, enter a New York State courthouse to observe an individual or take an individual into custody but do not have a warrant issued by a judge of the Unified Court System authorizing them to do so:

Upon entry to a courthouse, law enforcement officials covered by this protocol shall identify themselves to uniformed UCS uniformed personnel and state their specific law enforcement purpose and the proposed enforcement action to be taken. Uniformed UCS personnel shall immediately transmit this information to an appropriate supervisor.

The uniformed supervisor shall inform the judge if a law enforcement agent covered by this protocol is present in the courthouse with the intent of arresting or otherwise taking into custody a party or other participant in a case before the judge. Email notification to the Department of Public Safety should be made as soon as possible.

Arrests by agents of U.S. lmmigration and Customs Enforcement may be executed inside a New York State courthouse only pursuant to a judicial warrant orjudicial order authorizing the arrest. A "judicial warrant" or "judicial order" is a warrant or order issued by a federal judge orfederal magistrate judge. AUCS judge or court attorney shall review the warrant or order to confirm compliance with this requirement prior to any such arrest.

Absent leave of the court under extraordinary circumstances (e.9., extradition orders), no law enforcement action may be taken by a law enforcement agency in a courtroom.

UCS court security personnel shall file an Unusual Occurrence Report for each law enforcement action taken in a New York State courthouse by a law enforcement agency covered by this protocol. For purposes of this protocol, "law enforcement action" shall include observation of court proceedings by law enforcement agents acting in their official capacity.

UCS court security personnel remain responsible for ensuring public safety and decorum in the courthouse at all times. This policy and protocol is subject to modification based on changed circumstances. r->2*a-l Michael Magliano, Chief of Depa Revised O4l L7 / 2OL9 For more comprehensive legal resources, visit the Immigrant Defense Project website at Immigration Consequences of Crimes Summary Checklist immdefense.org or call 212-725-6422 for individual case support. CRIMINAL INADMISSIBILITY GROUNDS CRIMINAL DEPORTABILITY GROUNDS CRIMINAL BARS ON OBTAINING U.S. Will or may prevent a noncitizen from being able to obtain lawful admission status in the Will or may result in deportation of a noncitizen who already has CITIZENSHIP – Will prevent an LPR from U.S. May also prevent a noncitizen who already has lawful admission status from being lawful admission status, such as a lawful permanent resident (LPR) being able to obtain U.S. citizenship. able to return to the U.S. from a future trip abroad. green card holder or a refugee. Conviction or admission of the following crimes Conviction or admission of a Controlled Substance Offense, or DHS reason to believe that Conviction of a Controlled Substance Offense bars the finding of good moral character required the individual is a drug trafficker EXCEPT a single offense of simple possession of 30g or less of marijuana for citizenship for up to 5 years: ➤ Conviction or admission of a Crime Involving Moral Turpitude (CIMT), including: Conviction of a Crime Involving Moral Turpitude (CIMT) [see Criminal ➤Controlled Substance Offense (unless single offense of simple possession of 30g or less of ➤➤Offenses with an intent to steal or defraud as an element (e.g., theft, forgery) Inadmissibility Gds] marijuana) ➤➤Offenses in which bodily harm is caused or threatened by an intentional act or serious bodily ➤➤One CIMT committed within 5 years of admission into the US and for ➤➤Crime Involving Moral Turpitude (unless harm is caused or threatened by a reckless act (e.g., murder, rape, some manslaughter/assault which a prison sentence of 1 year or longer may be imposed single CIMT and the offense in not punishable offenses) ➤➤Two CIMTs committed at any time after admission and “not arising out ➤➤Most sex offenses > 1 year (e.g., in New York, not a felony) of a single scheme” + does not involve a prison sentence > 6 ➤➤Petty Offense Exception – for one CIMT if the client has no other CIMT + the offense is not Conviction of a Firearm or Destructive Device Offense months) punishable >1 year + does not involve a prison sentence > 6 mos. ➤ Conviction of a Crime of Domestic Violence, Crime Against Children, ➤2 or more offenses of any type + aggregate Prostitution (e.g., conviction, admission, or intent to engage in U.S.) and other unlawful prison sentence of 5 years Stalking, or Violation of Protection Order (criminal or civil) Commercialized Vice ➤➤2 gambling offenses Conviction of two or more offenses of any type + aggregate prison sentence of 5 yrs. Conviction of an Aggravated Felony ➤➤Confinement to a jail for an aggregate period ➤➤Consequences, in addition to deportability: of 180 days CRIMINAL BARS ON 212(h) WAIVER OF CRIMINAL INADMISSIBILITY based on ♦ ♦Ineligibility for most waivers of removal Conviction of an Aggravated Felony on or extreme hardship to USC or LPR spouse, parent, son or daughter ♦ ♦Permanent inadmissibility after removal after Nov. 29, 1990 (and conviction of murder at ➤➤Conviction or admission of a Controlled Substance Offense other than a single offense of ♦♦Enhanced prison sentence for illegal reentry any time) permanently bars the finding of moral simple possession of 30 g or less of marijuana ➤➤Crimes included, probably even if not a felony: character required for citizenship ➤➤Conviction or admission of a violent or dangerous crime is a presumptive bar. ♦♦Murder ➤➤In the case of an LPR (except one who adjusted to LPR status inside U.S. and who has not ♦♦Rape entered as an LPR from outside U.S.), conviction of an Aggravated Felony [see Criminal ♦♦Sexual Abuse of a Minor “CONVICTION” as defined for immigration Deportability Gds], or any Criminally Inadmissible offense if removal proceedings initiated ♦♦Drug Trafficking (including most sale or intent to sell offenses, purposes before 7 yrs of lawful residence in U.S. but also including possession of any amount of flunitrazepam and A formal judgment of guilt of the noncitizen entered CRIMINAL BARS ON ASYLUM based on well-founded fear of persecution in country possibly certain second or subsequent possession offenses where by a court, OR, if adjudication of guilt has been of removal OR WITHHOLDING OF REMOVAL based on threat to life or freedom in the criminal court makes a finding of recidivism) withheld, where: country of removal ♦♦Firearm Trafficking (i) A judge or jury has found the noncitizen guilty ♦ Conviction of a “Particularly Serious Crime” (PSC), including the following: ♦Crime of Violence + at least 1 year prison sentence* or the noncitizen has entered a plea of guilty ♦ ➤➤Aggravated Felony [see Criminal Deportability Gds] ♦Theft or Burglary + at least 1 year prison sentence* or nolo contedere or has admitted sufficient ♦ facts to warrant a finding of guilt, and ♦♦All aggravated felonies will bar asylum ♦Fraud or tax evasion + loss to victim(s) >$10, 000 ♦ ♦♦Aggravated felonies with aggregate 5 years sentence of imprisonment will bar ♦Prostitution business offenses (ii) The judge has ordered some form of withholding, & aggravated felonies involving unlawful trafficking in controlled substances ♦♦Commercial bribery, counterfeiting, or forgery + at least 1 year punishment, penalty, or restraint on the are a presumptive bar to withholding of removal prison sentence* noncitizen’s liberty to be imposed ➤➤Violent or dangerous crime will presumptively bar asylum ♦♦Obstruction of justice or perjury + at least 1 year prison THUS: ➤➤Other PSCs – no statutory definition; see case law sentence* ➤➤A court-ordered drug treatment or domestic ♦♦Various federal offenses – money laundering, certain firearms violence counseling alternative to incarceration CRIMINAL BARS ON 209(c) WAIVER OF CRIMINAL INADMISSIBILITY based and explosive materials offenses (including arson), alien disposition IS a conviction for immigration on humanitarian purposes, family unity, or public interest (only for persons who have smuggling, etc. – and analogous state offenses purposes if a guilty plea is taken (even if the asylum or refugee status) ♦♦Other offenses listed at 8 USC 1101(a)(43) guilty plea is or might later be vacated) ➤➤DHS reason to believe that the individual is a drug trafficker ♦♦Attempt or conspiracy to commit any of the above ➤➤A deferred adjudication without a guilty plea IS ➤➤Violent or dangerous crime is a presumptive bar NOT a conviction * The “at least 1 year” prison sentence requirement includes a suspended ➤➤NOTE: A youthful offender adjudication IS NOT CRIMINAL BARS ON NON-LPR CANCELLATION OF REMOVAL based on prison sentence of 1 year or more. a conviction if analogous to a federal juvenile continuous physical presence in U.S. for 10+ years; and “exceptional and extremely delinquency adjudication unusual” hardship to USC or LPR spouse, parent or child CRIMINAL BARS ON LPR CANCELLATION OF REMOVAL based on LPR status of 5 yrs or more and continuous residence in U.S. for 7 ➤➤Conviction of an offense described under the criminal inadmissibility or deportability yrs after admission (only for persons who have LPR status) grounds, regardless of whether or not the ground would apply to the person, e.g., one ➤ CIMT with a potential sentence of 1 year or longer [see Criminal Deportability Gds] even if ➤Conviction of an Aggravated Felony ➤ the offense was not w/n five years of an admission to the US ➤Offense triggering removability referred to in Criminal Inadmissibility Grounds if committed before 7 yrs of continuous residence in U.S. ➤➤Conviction or admission of crimes barring required finding of good moral character during 10 year period [see Criminal Bars on Obtaining U.S. Citizenship] © 2017 Immigrant Defense Project (Last updated June 2017) IMMIGRATION CONSEQUENCES OF CONVICTIONS SUMMARY CHECKLIST – DACA Supplement Criminal bars relating to DACA temporary administrative status program (Updated June 16, 2017). © 2017 Immigrant Defense Project DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) IS BASED IN PART ON: SOME OTHER OFFENSES/CONDUCT THAT ♦♦entry into the U.S. as a child under age 16 before June 15, 2007 CAN LEAD TO A DENIAL OF PROSECUTORIAL ♦♦continuous residence in the U.S. since June 15, 2007 DISCRETION TO GRANT DACA STATUS ♦♦currently in school, high school degree or GED, or honorably discharged veteran But certain convictions will generally prevent non-citizens from obtaining DACA: status ➤➤ Convictions or other information indicating One felony conviction that the applicant is a threat to national ➤ ➤ Any federal, state or local offense that is punishable by imprisonment for a term exceeding one year security or public safety. DHS considers that ♦♦Does not include state immigration-related offenses such a threat includes, but is not limited to, One “significant misdemeanor” conviction, including: gang membership, participation in criminal ➤➤ An offense punishable by imprisonment of one year or less but greater than five days (regardless of sentence activities, or participation in activities that actually imposed) that is: threaten the U.S. ♦♦Domestic violence ♦♦Sexual abuse or exploitation DISPOSITIONS THAT AVOID AUTOMATIC ♦♦Burglary DISQUALIFICATION ♦♦Unlawful possession or use of a firearm ♦♦Drug distribution or trafficking ➤➤ Juvenile dispositions do not bar DACA (but ♦♦Driving under the influence adult convictions of juveniles may do so) NOTE: The above list may include certain offenses that are not classified as misdemeanors in the convicting ➤➤ Expunged convictions do not bar DACA jurisdiction, e.g. domestic violations or driving under the influence traffic infractions, if punishable by more than five days in prison ➤➤ Any other offense punishable by imprisonment of one year or less for which the person received a sentence of time in custody of more than 90 days IMPORTANT: Potential DACA applicants ♦♦Suspended sentences do not count towards the 90 days who may wish to seek LPR or other Three misdemeanor convictions formal lawful admission status in the ➤➤ Three or more misdemeanors not occurring on the same date and not arising out of the same act, omission, future should also consider the Criminal or scheme of misconduct Inadmissibility Grounds on the reverse ♦♦ Includes only federal, state, or local offenses punishable by imprisonment of one year or less but greater side because a conviction triggering than five days (thus, may include certain low level offenses not classified as misdemeanors if punishable inadmissibility, even if it does not bar by more than five days in prison) DACA, could affect the person’s future ♦♦Does not include minor traffic offenses (such as driving without a license) ability to obtain formal lawful status ♦♦Does not include state immigration-related offenses

Note: Anyone who has had contact with the criminal legal system who is considering an application to initiate or renew DACA status should proceed with caution. There is uncertainty about how the DACA criminal bars will be applied under the Trump administration, and there are some preliminary indications that any contact with the criminal legal system may lead to heightened scrutiny of the application FOR MORE INFORMATION REGIONAL NYS Office of Indigent Legal Services Alfred E. Smith Building IMMIGRATION 80 S. Swan Street, Suite 1170 Albany, NY 12210 ASSISTANCE 518.408.2728 or visit CENTERS www.ils.ny.gov

WESTERN NEW YORK ALBANY/NORTHERN NEW YORK CITY

REGION NEW YORK REGION

WNY Immigration Assistance Center Albany County Regional Padilla Support Center Immigration Assistance Center, Dan Jackson, Esq. Region 3 Marie Mark, Esq. Erie County Bar Association Immigrant Defense Project Volunteer Lawyers Project, Inc. 40 W. 39th St., 5th Floor Evelyn Kinnah, Esq. 237 Main Street, Suite 1000 New York, NY 10018 Albany Immigration Assistance Buffalo, NY 14203 212-725-6422 Center 716-847-0662 (x 314) [email protected] [email protected] 112 State Street, Suite 720 Albany, NY 12207-2004 518-447-4890 Hannah Vickner Hough, Esq. [email protected] The Legal Aid Society of Rochester, NY LONG ISLAND One West Main Street, Suite 800 Rochester, NY 14614 NEW YORK REGION 585-232-4090 or 585-295-6066 [email protected] Long Island Regional Immigration Assistance Center

HUDSON NEW YORK Christina M. Gaudio, Esq.

REGION Legal Aid Society of Suffolk County, Inc. CENTRAL NEW YORK John P. Cohalan Court Complex REGION 400 Carelton Avenue, Central Islip, NY 11722 Regional Immigration 631-853-5216/ 631-853-7807 [email protected] New York Regional Immigration Assistance Center, Region 4

Assistance Center, Region 2 Robert Horne, Esq. Donna Zac, Esq. Sharon Ames, Esq. Legal Aid Society of Westchester Legal Aid Society of Nassau County rd Tina Hartwell, Esq. County 40 Main St., 3 Floor 302 N. James Street 150 Grand Street - First Floor Hempstead, NY 11550 Rome, NY 13440 White Plains, NY 10601 516-560-6471/ 516-560-6474 315.356.5794 914-286-3400 [email protected] [email protected] [email protected] [email protected]

Advisory Memorandum #3

To: Chief Administrative Judge Lawrence Marks

From: Advisory Council on Immigration Issues in Family Court

Re: Adverse Consequences to Family Court Dispositions

Date: October 27, 2017

The Advisory Council on Immigration Issues in Family Court, co-chaired by Hon. Ruben Martino, Supervising Judge, Family Court, Bronx County, and Theo Liebmann, Clinical Professor and Director of Clinical Programs, Hofstra Law School, was appointed by Chief Administrative Judge Lawrence Marks in 2015. The Council has prepared this memorandum as the third in a series of memoranda, bench aids and other documents to address the variety of immigration issues arising from Family Court proceedings. A list of the Council’s members, including the Subcommittee on Adverse Consequences, is attached as Appendix A to this memorandum.

The goal of this Advisory Memorandum is to provide guidance to New York Family Court practitioners and jurists in understanding possible adverse immigration consequences resulting from dispositions, rulings, findings and orders that are commonly issued in family court matters. The Memorandum provides an overview of the content and intended use of the Adverse Consequences Chart (Appendix B). The Memorandum also details how immigration authorities obtain access to family court case information and adjudications that can cause adverse immigration consequences for participants in family court matters.

Content and Intended Use of Adverse Consequences Chart

The Chart describes the adverse immigration consequences related to adjudications issued in many common family court proceedings, including guardianship and custody, family offense, child support, abuse and neglect and juvenile delinquency. The Chart also highlights potential adverse consequences to fingerprinting practices in family courts, and to incarcerations that result from family court contempt findings. It places adverse consequences into the following four broad categories:

(1) Deportability: a person is rendered “deportable” if he/she was lawfully admitted to the United States or currently maintains valid U.S. immigration status (e.g. a green card holder, or a holder of a temporary student or worker visa), and is subsequently found to be in violation of a statutory ground of deportability and subject to removal from the United States.1 (2) Inadmissibility: a person is deemed “inadmissible” if he/she is denied the opportunity to obtain valid immigration status, or is denied permission to re-enter the U.S. following travel abroad, or is deemed to have entered the U.S. in violation of a statutory ground of exclusion (i.e., inadmissibility) and is subject to removal from the U.S.2 (3) Mandatory bars to immigration benefits or relief from removal: a person may be permanently barred from obtaining or maintaining valid immigration status or prohibited from seeking an immigration benefit to prevent his/her removal from the U.S. if s/he has

1 Grounds of deportability are specified in 8 U.S.C. §1227 or section 237 of the U.S. Immigration and Nationality Act. 2 Grounds of inadmissibility are specified in 8 U.S.C. §1182 or section 212 of the U.S. Immigration and Nationality Act.

admitted to certain conduct, including conduct related to alcohol abuse, controlled substances and prostitution, or has been convicted of certain crimes. (4) Discretionary denials of immigration benefits or relief from removal: a person who is statutorily eligible to seek an immigration benefit or waiver to prevent his/her removal from the U.S. may be discretionarily denied the benefit or waiver based on conduct or convictions.3

In using the Chart, it is important to note that the adverse consequences discussed can vary depending on the individual’s immigration status; the policies and practices across different jurisdictions; and the policies and priorities adopted by the current federal government administration. Individuals should always consult with a competent immigration attorney to determine the potential for adverse immigration consequences and to identify any available options that may pertain to his or her specific case.

For attorneys, the Chart provides an overview of immigration consequences that should be considered when non-citizen clients are assessing their options in family court matters.4 If an attorney does not have sufficient expertise to competently provide the level of advice required, an attorney with that expertise should be consulted.5

For jurists, the Chart provides a general educational framework to understand immigration-related issues that may be raised by counsel or individual litigants during a family court proceeding. Since it is the role of attorneys to provide individualized legal advice to their clients, it is best practice for jurists to avoid independently engaging in any immigration-based analysis or issuing any type of warning or notification of immigration consequences.6 For those jurists who wish to provide general information pertaining to potential immigration consequences, a general allocution should be adopted for universal use and offered at a litigant’s initial appearance.7 If a general allocution is adopted, universal language should be given in all cases, and to all parties, regardless of the known or suspected immigration status of a litigant. Upon request by a litigant or the litigant’s attorney, a jurist should consider providing additional time and opportunity for the litigant or litigant’s counsel to consult with an immigration expert.

3 The Adverse Consequences Glossary (Appendix C) defines these and other immigration terms used in the Chart. 4 For more explicit information on the role of family court lawyers to advise clients of immigration consequences, see NEW YORK STATE INDIGENT LEGAL SERVICE STANDARDS – PARENTAL REPRESENTATION IN STATE INTERVENTION MATTERS, STANDARD H-1; NEW YORK STATE BAR ASSOCIATION STANDARDS OF MANDATED REPRESENTATION, STANDARD I-9; NEW YORK STATE BAR ASSOCIATION STANDARDS FOR ATTORNEYS REPRESENTING CHILDREN IN NEW YORK CHILD PROTECTIVE, FOSTER CARE, AND TERMINATION OF PARENTAL RIGHTS PROCEEDINGS, STANDARD D-12; AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR ATTORNEYS REPRESENTING PARENTS IN ABUSE AND NEGLECT CASES, STANDARDS 2, 5; AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS REPRESENTING CHILD WELFARE AGENCIES, STANDARD 4. 5 The New York State Office of Indigent Legal Services has created six Regional Immigration Assistance Centers (RIACs) responsible for providing immigration-related support to counsel providing mandated representation in criminal and family court matters throughout New York State. More information, including the location of the RIACS, is available at https://www.ils.ny.gov/content/regional-immigration-assistance-centers. 6 Judicial warnings of any type may interfere with the attorney client relationship by appearing to contradict an attorney’s individualized assessment of a client’s immigration risks. They may also call attention to a litigant’s immigration status. Requiring or eliciting the disclosure of a litigant’s immigration status may impose a chilling effect on securing the presence or cooperation of non-citizen litigants and witnesses. Required disclosure of the immigration status of a litigant in open court may also trigger unintended immigration consequences. Jurists should consider options (e.g., permitting an off-the-record discussion between litigants, counsel and the court at the bench, or closing the courtroom to the public and non-court law enforcement), to limit public disclosure of immigration-related matters if and when requested to do so and when it is deemed appropriate. 7 The following language can be considered by jurists for use at all initial appearances: I am not asking you whether or not you are a United States citizen, but if you are not, then you may wish to consider consulting with a lawyer to discuss whether this case presents any immigration-related or other type of consequence that you should be aware of before proceeding in this case. Do you understand this?

2

Immigration Agency Access to Family Court Case Information and Adjudications

It is not uncommon for immigration authorities to obtain family court information by requiring individuals who are applying for immigration benefits or relief from removal to produce their family court records. Individuals are frequently compelled to produce records regardless of the privacy protections afforded by the New York Family Court Act and other state regulations. In other cases, immigration authorities discover family court information automatically through data-sharing agreements between state, local and federal agencies.8 Descriptions of the primary methods by which immigration authorities obtain family court case information are provided below.

1. Immigration Applications

Immigration applications are the most common trigger of adverse immigration consequences. When an immigrant applies for an immigration benefit or status, such as green card or naturalization, s/he has the burden to demonstrate that s/he is admissible to the U.S. and has good moral character. Immigration adjudicators often compel applicants to divulge information about their family court cases when, for example, proof of materially supporting a child is relevant to the relief being sought; when a child does not reside with the applicant; when an applicant has had an order of protection issued against him or her; or where an applicant has been arrested for a crime involving endangering the welfare of a minor (even if the charge was dismissed). When immigrants face removal, they are also sometimes eligible to apply for relief, which will allow them to remain in the U.S. In both contexts, immigrants must answer a litany of questions under penalty of perjury about their family history and past conduct. The discretion to deny an application for a benefit or relief is extremely broad and subject to limited judicial review. Therefore, while individual immigrants may argue that family court records are private and may even refuse to present the requested information, immigration authorities will often reject these arguments and use the refusal as a basis to deny relief and support removal.

Among the questions that immigration authorities regularly require immigrants to answer, under penalty of perjury, during the course of applying for benefits or relief, are many that can prompt disclosures about an individual’s family court history, including:

 Have you ever willfully failed to pay child support?  Have you ever been in jail?  Have you ever knowingly committed a drug-related offense for which you have not been arrested?  Have you ever committed, assisted in committing, or attempted to commit, a crime or offense for which you were not arrested?  Have you ever been arrested for, charged with, or convicted of a felony or misdemeanor, including incidents handled in juvenile court?

In response to information that is disclosed on immigration applications, immigration authorities can also make requests for further evidence, and may require immigrants to submit records from

8 Under the Trump administration’s executive orders, access to family court information can bear special risks because undocumented immigrants who were not previously targeted for immigration enforcement are now priorities whenever they engage in conduct that “constitutes a criminal offense” or is deemed by any individual immigration officer to “pose a risk to public safety.” This wide discretion and broadly worded language suggests that any arrest or other conduct deemed “a risk” may prompt Immigration and Customs Enforcement (“ICE”) to apprehend a noncitizen, regardless of whether the conduct results in criminal prosecution and conviction. 3 family courts. State confidentiality and sealing laws do not prevent federal immigration authorities from asking about family court cases and requiring immigrant applicants to provide those records.

2. New York Order of Protection Registry

Harmful immigration consequences can also be triggered when an Order of Protection is issued by the Family Court and entered into the New York State Order of Protection Registry (“OP Registry”).9 As mandated by The Family Protection and Domestic Violence Intervention Act of 1994, the New York State Police maintain an OP Registry, a computerized database of active orders of protection issued by state courts for the purpose of protecting victims of domestic violence.10 When a protective order is created using the WebDVS software, or a protective order pursuant to Articles Four, Five, Six, Eight, or Ten of the Family Court Act is created in the Family Court UCMS computer system, data elements from the order are automatically sent to the OP registry, which is in turn linked to the FBI’s National Crime Information Center (NCIC),11 an electronic clearinghouse of crime data that is accessible by virtually every federal, state, and local law enforcement agency in the country including federal immigration agencies.12 Since federal immigration agents can access information from New York’s OP Registry via the FBI’s NCIC, immigration officers can readily determine whether an individual has an order of protection by searching their name and date of birth, or other identifying information.

When immigration officers search for protective order information through the FBI’s NCIC, they can, at a minimum, determine the name, race, and sex of the party against whom the order is brought; whether the order is temporary or final; dates of issuance and expiration; conditions of the

9 As noted in the Chart, information from orders of protection are immigration-related triggers for several reasons. A family court finding that an individual has violated an order of protection, even a temporary one, is grounds for deportation. Even if an order is not violated, the existence of a temporary or permanent protective order can be grounds for denying an individual an immigration benefit or relief from removal. An order of protection may also prompt questions about the underlying conduct, and additional requests for family court records. 10 Per N.Y. Executive Law 221-a, the registry includes all orders of protection issued “pursuant to articles four, five, six, eight and ten of the family court act, section 530.12 of the criminal procedure law and, insofar as they involve victims of domestic violence as defined by section four hundred fifty-nine-a of the social services law, section 530.13 of the criminal procedure law and sections two hundred forty and two hundred fifty-two of the domestic relations law.” 11 The FBI’s NCIC has included a “protection order file” since 1994 when Congress first required that all States, territories, and Indian tribal governments give ‘full faith and credit” to valid protection orders issued by other jurisdictions. See 18 U.S.C. §2265(a). Protection orders included in the database include both temporary and final civil and criminal court orders issued for “the purpose of preventing violent or threatening acts or harassment against, sexual violence or contact or communication with or physical proximity to, another person.” 28 U.S.C. §534. 12 Congress has given the FBI broad authority to collect and exchange information via the NCIC with authorized Federal officials and the States. 28 U.S.C. §534(a). It has also expressly granted the immigration agencies that fall under the Dep’t of Homeland Security access to information contained in the NCIC. 8 U.S.C. §1105. The various immigration agencies have had access to NCIC since the 1970s and are “indisputably NCIC's largest customer.” Michael D. Kirkpatrick, Assistant Director in Charge, FBI, Before the United States Senate Subcommittee on Immigration, Border Security (Nov. 13, 2003) available at https://archives.fbi.gov/archives/news/testimony/the-fbis-national-crime-information-center.

4 order; and the agency that issued the order.13 Immigration authorities can access information from New York protection orders up to five years after they expire or are cancelled.14

Requests for protective order information can come from any of the numerous immigration agencies, including United States Citizenship and Immigration Services (“USCIS”), the agency that adjudicates applications for immigration benefits, Immigration and Customs Enforcement (“ICE”), the agency that detains and deports immigrants, and Customs and Border Protection (“CBP”), the agency that, among other things, screens individuals entering the U.S. These requests may be prompted by international travel, applications for immigration status or benefits (including Special Immigrant Juvenile Status, U nonimmigrant status, lawful permanent residence, and citizenship); or removal proceedings.

The discovery of an active or expired order of protection may prompt immigration officials to question noncitizens, request additional evidence (including family court records) from noncitizens, and cause adjudicators to deny an a noncitizen’s application for a benefit or relief from removal. 15 If immigration officers learn that a court has determined an immigrant has violated a protective order, they may initiate removal proceedings.16

3. Fingerprinting

There are three types of fingerprinting that can prompt an immigration authority or adjudicator to demand access to family court information and adjudications: a) fingerprints taken at the time of booking into a local jail; b) fingerprints taken for purposes of conducting both criminal and civil background checks; and c) fingerprints taken for purposes of adjudicating immigration applications.

a. Fingerprinting at Booking in Criminal Matters

Any time an immigrant litigant is arrested on a family court warrant or confined in connection with a contempt order, the immigrant becomes vulnerable to detection and apprehension by ICE. Fingerprints taken by local jails at booking are automatically shared with ICE via federal data-sharing

13 The FBI’s NCIC requires this data before accepting an order of protection record from the NY OP Registry into its database. However, for any given order of protection, the NCIC may also contain other non-mandatory information including the protected party’s name, date of birth, social security number, race, and sex; the party against’s license plate, license number and vehicle identification number; physical descriptors of the party against; the citizenship and ethnicity of the party against; and service of process of information. NCIC 2000 Operation Manual, Protection Order File, 1.7 Message Field Codes and Edits. According to the New York State Police Office of Counsel, a small percentage of files are not shared with the NCIC because they do not conform to the NCIC’s data entry requirements. For a complete list of the data fields contained in the OP Registry, see NYSPIN Support Services, NYSPIN Manual, Chapter 2 Section 22 Orders of Protection File. 14 While NY Executive Law 221-a(6) requires the New York State Police to promptly remove expired orders from the OP Registry, the FBI’s NCIC maintains these orders as “inactive records” for up to five years after expiration. See NCIC 2000 Operating Manual 1.4 Record Retention Period. 15 For example, individuals applying for U nonimmigrant status and lawful permanent residence can be required to submit family court records when immigration authorities discover that the individual applicant has had an order of protection. Individuals who seek waivers of deportation before an Immigration Judge may be questioned about active orders of protection issued against them and denied relief from deportation based on their answers. At the border and other ports of entry, lawful permanent residents can also be questioned about active orders of protection. CBP agents can interrogate individuals without the presence of counsel, presenting particular risks for noncitizen travelers because admissions made to CBP agents can be used to initiate a removal proceeding or to deny re-entry into the U.S. altogether. 16 See 8 U.S.C. 1227(a)(2)(E)(ii)(“ Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.)

5 networks.17 If ICE gets a “match” and identifies someone who they believe is removable, the agency can notify the local jail and ask that the jail hold the individual until ICE retrieves the individual for potential civil immigration detention. This is often referred to as an ICE “detainer” or “hold.”

Fingerprint-sharing occurs in every local jail, regardless of whether or not a locality has self- identified sanctuary policies in place. In New York City, for example, local laws prevent local jails from honoring ICE “detainers” or “holds” issued by ICE. However, the information is still automatically provided to ICE, and the local policy does not prevent ICE from apprehending an immigrant once that person is released from criminal custody. In New York City and other self- identified sanctuary jurisdictions, ICE raids on homes and other areas are often triggered by an arrest and subsequent fingerprinting.

b. Fingerprinting for Background Checks in Family Court

When individuals are fingerprinted for family court related background checks, the print checks are done by New York State’s Division of Criminal Justice Services (DCJS). DCJS currently has a policy of contacting ICE whenever it runs fingerprints and discovers that an individual has a prior conviction for any misdemeanor, felony, or other offense under New York law for which they were fingerprinted, and has been previously deported from the United States. When an immigrant who falls into this category submits fingerprints to DCJS for a background check, DCJS contacts ICE. ICE can then apprehend, detain and deport the individual. Federal prosecutors can also bring criminal charges against the individual for illegal reentry into the U.S.

c. Fingerprinting for Immigration Applications

For many types of immigration benefits, including those that relate to protecting unaccompanied minors and victims of domestic violence and other crimes, USCIS requires that the immigrant applicant undergo a “biometric screening” that includes both fingerprints and digitized photographs. USCIS uses the fingerprints to check an individual’s immigration and criminal history. Fingerprints are run through immigration databases that include information about immigrants who have previously violated immigration laws. Fingerprints are also run through the FBI’s criminal database, which includes information about past arrests, criminal convictions, and any active orders of protection. The FBI database includes information about active orders of protection issued by both family and criminal courts, which it obtains through a data sharing agreement with the New York State Police. As a result, any time an immigrant applies for an immigration benefit, USCIS can access information about active family court orders of protection. Immigrant applicants are often questioned about orders of protection that surface through biometric screening, and can be denied benefits after disclosure of information about arrests that do not result in prosecution.

17 Fingerprints taken at booking are automatically shared with NCIC. The FBI then forwards the fingerprints to ICE, which cross checks every individual’s fingerprints against its own immigration databases. 6

Appendix A: Advisory Council Members and Consultants

APPENDIX A

Advisory Council on Immigration Issues in Family Court (Oct. 2017)1

Co-Chair: Professor Theo Liebmann, Clinical Professor of Law and Director of Clinical Programs, Maurice A. Dean School of Law at Hofstra Univ. Co-Chair: Hon. Ruben Martino, Supervising Judge, Family Court, Bronx County Counsel to the Advisory Council: Janet Fink, Esq., Deputy Counsel, NYS Unified Court System

MEMBERS:

1. Hon. Lisa Bloch-Rodwin, Judge of the Family Court, Erie County 2. Margaret Burt, Esq., Attorney, Pittsford, NY 3. Myra Elgabry, Esq., Director, Immigrant Rights Project, Lawyers for Children, New York, NY 4. Anne Erickson, President and CEO, Empire Justice Center, Albany, NY 5. Hon. Alison Hamanjian, Judge of the Criminal Court, Kings County 6. Terry Lawson, Esq., Director, Family and Immigration Unit, Bronx Legal Services, Bronx, NY 7. * Joanne Macri, Esq., Director of Regional Initiatives, NYS Office of Indigent Legal Services, Albany, NY 8. Hon. Edwina Mendelson, Deputy Chief Administrative Judge for Justice Initiatives and Acting Supreme Court Justice, New York, NY (emeritus status) 9. * Andrea Panjwani, Esq., Managing Attorney, My Sister’s Place, White Plains, NY 10. Carmen Rey, Esq., Deputy Director, Immigration Intervention Project, Sanctuary for Families, New York, NY 11. Professor Sara Rogerson, Esq., Director, Immigration law Clinic and Law Clinic and Justice Center, Albany Law School 12. Wedade Abdallah, Esq., Assistant Public Defender, Legal Aid Society of Rochester 13. Maureen Schad, Esq., Pro Bono Counsel, Norton Rose Fulbright, L.L.P. 14. Amelia T. R. Starr, Esq., Partner, Davis Polk and Wardwell, L.L.P. 15. Eve Stotland, Esq., Director, Legal Services Center, The Door, New York, NY 16. * Lee Wang, Esq., Staff Attorney, Immigrant Defense Project, New York, NY

1 Affiliations are listed for identification purposes only. Members whose names are marked with an asterisk (*), participated in the Adverse Consequences Subcommittee, which was primarily responsible for the preparation of this guidance document.

Appendix B: Adverse Consequences Chart

Adverse Immigration Consequences to New York Family Court Dispositions This chart provides a general framework for understanding the range of immigration consequences that immigrant litigants may face in Family Court. The application of these consequences to specific litigants depends on individual circumstances. Since it is the role of attorneys to provide individualized advice to their clients on immigration consequences, it is best practice for jurists to avoid making any type of warning or notification of immigration consequences. The chart focuses on four categories of adverse immigration consequences: 1) Deportability; 2) Inadmissibility; 3) Statutory Bar on Immigration Benefit or Relief from Removal; and 4) Discretionary Denial of Immigration Benefit or Relief from Removal. The chart is meant to be used in conjunction with the attached Glossary and Memorandum. Note that immigration policies and practices are subject to change, especially during a new federal administration. This chart is subject to revision to reflect those changes. In addition, adverse consequences can depend upon an individual’s immigration status, and immigration agency practices can vary across different jurisdictions. Individuals should always consult with a competent immigration attorney to determine the possible adverse consequences in his or her specific case. Statutory Bar on Immigration Discretionary Denial of Adverse Immigration Deportability Inadmissibility Benefit or Relief from Immigration Benefit or Type of Consequence Removal Relief from Removal Order or Ruling ARTICLE 3 – JUVENILE DELINQUENCY Admission to acts that constitute drug abuse Admission or finding related to acts that Admissions or finding related to acts that Adjudications related to drugs can be a or addiction is a ground for deportation. constitute a controlled substance offense constitute a controlled substance offense significant factor in discretionary denial. or to acts that give "reason to believe" that or to acts that give "reason to believe" that Drug Related Adjudications the individual is a drug trafficker can the individual is a drug trafficker can be a trigger inadmissibility. bar to immigration benefits. In most cases the bar is permanent.

Admission or finding related to acts Admission or finding related to acts that Admission to acts that constitute Prostitution Related Adjudications None. that constitute prostitution or other constitute prostitution or other prostitution or other "commercialized "commercialized vice" can trigger "commercialized vice" can bar an vice" can be a significant factor in inadmissibility. individual from receiving certain discretionary denial. immigration benefits. Evidence of gang membership or gang- Evidence of gang membership or gang- Gang Related Adjudications None. None. related conduct can bar an individual related conduct can be a significant factor from receiving certain immigration in discretionary denial. benefits.

Admission to acts that constitute a “crime Admission to acts that constitute a “crime Admission to acts that constitute a “crime Other Adjudications None. involving moral turpitude” can trigger involving moral turpitude” can bar an involving moral turpitude” can be a inadmissibility. individual from receiving certain significant factor in discretionary denial. immigration benefits. Admission or finding related to acts Admission or finding related to acts Admission to acts prompting the issuance Order of Protection (O/P) None. prompting the issuance of a protective underlying the issuance of a protective of a protective order can be a significant order can be considered a "crime order can bar an individual from factor in discretionary denial. involving moral turpitude" and trigger receiving certain immigration benefits. inadmissibility. An Article 3 court finding that a juvenile has Admission or finding related to acts Admission or finding related to acts Admission to acts underlying the Violation of Order of Protection violated a temporary or permanent O/P is a underlying the violation can be underlying the violation can bar an violation can be a significant factor in ground for deportation. considered a "crime involving moral individual from receiving certain discretionary denial. turpitude" and trigger inadmissibility. immigration benefits. ARTICLE 4 – CHILD Statutory Bar on Immigration Discretionary Denial of Benefit or Relief from Immigration Benefit or SUPPORT Deportability Inadmissibility Removal Relief from Removal The willful failure to provide child Regardless of when the willful failure to support is a statutory bar to naturalization provide child support occurs, it can be a None. if it occurs in the five years leading up to significant factor in discretionary denial. Willful Failure to Support None. the naturalization application.

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Admission or finding related to acts that Admission or finding related to acts that Admission or finding related to acts that Use of Falsified Documents None. constitute making false statements to a constitute making false statements to a constitute making false statements to a governmental authority can trigger governmental authority can bar an governmental authority can be a inadmissibility. individual from receiving certain benefits. significant factor in discretionary denial. ARTICLE 6 – CUSTODY, Statutory Bar on Immigration Discretionary Denial of Deportability Benefit or Relief from Immigration Benefit or GUARDIANSHIP, Inadmissibility Removal Relief from Removal ADOPTION, TPR Children cannot derive immigration Immigration benefits can be denied in benefits through a parent once parental discretion to a parent based on a rights are terminated. Similarly, parents None. None. termination of parental rights, particularly Termination of Parental Rights cannot derive benefits from their children if the underlying reason for the once rights are terminated. termination is abuse or neglect of a child.

ARTICLE 8 – FAMILY Statutory Bar on Immigration Discretionary Denial of Deportability Inadmissibility Benefit or Relief from Immigration Benefit or OFFENSE Removal Relief from Removal

Statements or testimony made about The existence of an active O/P between The existence of an active O/P can be a conduct underlying an O/P may be deemed spouses can bar either party from significant factor in discretionary denial. obtaining benefits based on the marital An expired O/P may also be considered. None. admissions for immigration purposes and can Temporary O/P trigger inadmissibility. Customs and relationship (with the exception of Border Patrol agents question non-citizens benefits for survivors of domestic reentering the U.S. who have active O/Ps. violence) Statements or testimony made about The existence of an active O/P between The existence of an active O/P is likely to conduct underlying an O/P can be spouses can bar either party from be a significant factor in discretionary obtaining benefits based on the martial denial. An expired O/P may also be None. deemed admissions for immigration Permanent O/P purposes and can trigger inadmissibility. relationship (with the exception of considered. Customs and Border Patrol agents question benefits for survivors of domestic non-citizens reentering the U.S. who have violence) active O/Ps. An O/P issued on consent is unlikely to The existence of an active O/P on The issuance of a permanent O/P on trigger inadmissibility; however, a consent can also bar benefits (with the consent can have the same potential Consent to O/P without exception of benefits for survivors of consequences as one entered after trial. None. respondent may still be questioned Admissions about underlying conduct by domestic violence. See above. immigration authorities and any admissions made can serve as the basis for inadmissibility.

A court determination that a non- U.S. citizen Statements or testimony made about A court finding that an individual violated A court finding that an individual violated violated a temporary or permanent O/P will violating an O/P can be deemed an O/P between spouses will bar either an O/P can be a significant factor in make that person deportable. This applies to admissions for immigration purposes party from receiving an immigration discretionary denial even if the violation Violation of O/P the violation of nearly any condition of an and can trigger inadmissibility. benefits that depends on the spousal occurred in the past and the O/P is Article 8 O/P including (but not limited to) relationship. expired. the violation of no contact provisions. If an admission made in the Article 8 case is If a conviction for a family offense results If a conviction for a family offense results If a conviction for a family offense results used to support a criminal prosecution, any from a concurrent criminal case it can from a concurrent criminal case it can bar from a concurrent criminal case it can be a resulting conviction can serve as grounds for trigger inadmissibility. an individual from benefits. significant factor in discretionary denial, if Concurrent Criminal Case deportation. Convictions for most New York not an outright bar. family offenses, as defined in Family Court Act §812, can serve as grounds for deportation.

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ARTICLE 10 – Statutory Bar on Immigration Discretionary Denial of Deportability Inadmissibility Benefit or Relief from Immigration Benefit or ABUSE/NEGLECT Removal Relief from Removal

Admission to conduct underlying an O/P Admission to conduct underlying an The issuance of a temporary O/P at any can trigger inadmissibility. Customs and O/P can be grounds for denying a point in an Article 10 proceeding can be a benefit. significant factor in discretionary denial. None. Border Patrol agents question non-citizens Temporary Order of Protection reentering the U.S. who have active O/Ps.

Admission to conduct underlying an O/P Admission to conduct underlying an The issuance of a permanent O/P can be a can trigger inadmissibility. Customs and O/P can be grounds for denying a significant factor in discretionary denial. benefit. None. Border Patrol agents question non- Permanent Order of Protection citizens reentering the U.S. who have active O/Ps.

A court determination that a non- U.S. citizen If an individual admits to violating an Admission to violating an O/P can be The disclosure that a non- U.S. citizen violated a temporary or permanent O/P will O/P, the admission can be used to trigger grounds for denying a benefit. violated an O/P (temporary or Violation of Order of Protection make that person deportable. This applies to inadmissibility. permanent) can be a significant factor in (Temporary or Permanent) the violation of nearly any condition of an discretionary denial. Article 10 O/P including (but not limited to) the violation of no contact provisions. Admission or finding related to acts that Admission or finding related to acts that Admission or finding related to acts that constitute a controlled substance offense constitute a controlled substance offense constitute a controlled substance offense or to acts that give "reason to believe" or to acts that give "reason to believe" that or to acts that give "reason to believe" that the individual is a drug trafficker, or to the individual is a drug trafficker, or to acts that the individual is a drug trafficker, or Finding of Abuse or Neglect None. to acts constituting prostitution or other acts constituting prostitution or other constituting prostitution or other "commercialized vice", or to acts "commercialized vice", or to acts "commercialized vice", or to acts constituting a “crime involving moral constituting a “crime involving moral constituting a “crime involving moral turpitude” can bar an individual from turpitude” can be a significant factor in turpitude” can trigger inadmissibility. receiving certain immigration benefits. discretionary denial.

Immigration authorities may consider a Immigration authorities may consider a A finding that an individual has abused or 1051(a) Submission None. 1051(a) submission an admission to 1051(a) submission an admission to neglected a child, even if entered pursuant wrongdoing and can use a wrongdoing and can use it as a ground to 1051(a), can be a significant factor in 1051(a) submission to deny admission. for denying benefits. discretionary denial. Adjournment in Contemplation of None. None. None. None. Dismissal A court finding may prompt questions Immigration authorities may question Immigration authorities may question from immigration authorities and requests individuals about vacated judgments and individuals about vacated judgments and Suspended Judgment None. for court documents. Any admission made compel individuals to produce documents compel individuals to produce documents during trial can be used to deny admission. related to the case. Any admissions made related to the case. Any admissions made in the course of the application can be in the course of the application can be used to bar an individual from receiving used as significant factors in discretionary benefits. denial. If an admission made in the Article 10 case is If an admission made in the Article 10 case If an admission made in the Article 10 case If an admission made in the Article 10 case used to support criminal prosecution, any is used to support criminal prosecution, is used to support criminal prosecution, is used to support criminal prosecution, Concurrent Criminal Case resulting conviction can serve as grounds for the resulting conviction can trigger the resulting conviction can bar an the resulting conviction(s) can be a deportation. Criminal convictions for most New inadmissibility. individual from receiving benefits. significant factor in discretionary denial York family offenses can serve as grounds for deportation.

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SPECIAL IMMIGRANT Statutory Bar on Immigration Discretionary Denial of Inadmissibility Benefit or Relief from Immigration Benefit or JUVENILE STATUS Deportability Removal Relief from Removal Parents cannot receive immigration A child’s SIJ visa application lists the Special Findings Order benefits through the child. However, the name of the parent with whom None. None. issuance of a SIJ visa to a child does not reunification is not viable. There is (Consequences to Parents) bar parents from applying for or receiving currently no evidence that a parent’s immigration benefits independent of their application for an immigration benefit children. or relief from removal has been negatively impacted by being named in a SIJ order.

OTHER FAMILY COURT ACTIONS

If an individual has a conviction record and was previously deported, a request for a fingerprint check with the NYS Department of Criminal Justice Services can trigger Fingerprinting immigration enforcement measures.

The incarceration of an individual who is otherwise subject to removal from the U.S. may trigger immigration enforcement measures. In addition, any period of incarceration Contempt and Incarceration for contempt may be a factor in discretionary denial.

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Appendix C: Adverse Consequences Glossary

Adverse Immigration Consequences Glossary

General Terminology ………………………………………………………………………. 1 Categories of Immigration Status …………………………………………………………... 4 Adverse Immigration Grounds and Consequences ………………………………………… 5 Humanitarian Relief and Protection ………………………………………………………... 7

GENERAL TERMINOLOGY

Adjustment of Immigration Status Adjustment of status is the process that allows a noncitizen to apply for and to obtain lawful permanent resident status from within the U.S.

Change of Immigration Status Change of status is the process that allows a noncitizen to apply to change his/her nonimmigrant (i.e., temporary) status to that of another nonimmigrant (i.e., temporary) immigration status from within the U.S.

Customs and Border Protection (CBP) CBP is an agency within the U.S. Dept. of Homeland Security that is charged with enforcing trade, customs, and immigration regulations at the border and ports of entry. CBP is responsible for apprehending individuals attempting to enter the U.S. illegally and has approximately 60,000 Border Patrol agents working along the land borders, seaports and airports across the nation.

Data-sharing Agreements Data-sharing agreements refer to formal and informal agreements, policies or practices between certain local, state and federal agencies to exchange gathered information.

Department of Homeland Security (DHS) Created in 2003, the U.S. Department of Homeland Security brought together 22 government agencies, including the former Immigration and Naturalization Service. Among its many responsibilities, DHS oversees enforcement of U.S. immigration laws.

Executive Office of Immigration Review (EOIR) EOIR is an agency within the jurisdiction of the U.S. Dept. of Justice. EOIR is responsible for the administration of the immigration courts nationwide, the appointment of immigration court judges, immigration court hearings and review of immigration appeals. The EOIR includes the Board of Immigration Appeals (BIA) which has jurisdiction to review the decisions of the local immigration courts. The BIA consists of a panel of administrative law judges who are appointed by the EOIR.

Good Moral Character “Good moral character” is an assessment during the course of an application for an immigration benefit of whether the conduct of the applicant measures up to the standards of average citizens of the community in which the applicant resides. Good moral character is a common statutory requirement that applies to many types of immigration benefits (e.g. VAWA, T Visa, Green Card,

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Cancellation of Removal and Voluntary Departure). Bars to a finding of good moral character include a determination or admission that the immigrant applicant is an alcoholic; has been convicted of or admitted to acts which constitute the essential elements of a crime involving moral turpitude or a crime related to a controlled substance; or has been found to have failed to pay court- ordered child support or alimony. 8 U.S.C. §1101(f); INA §101(f).

Immigration and Customs Enforcement (ICE) ICE is the agency within DHS that is responsible for enforcing federal immigration law within the interior of the U.S. The agency is tasked with identifying, arresting, detaining and, when applicable, removing any noncitizen found in violation of U.S. immigration laws and ordered removed from the U.S. ICE maintains at least two units: Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO) that are significantly involved in immigration enforcement measures. HSI conducts investigations to prevent national security from being compromised such as drug, weapons and human trafficking. Sometimes referred to as the “immigration police,” ERO identifies, arrests, detains and physically deports removable immigrants from the U.S.

Immigration Benefit A status or permission granted by an agency within the federal government that allows a noncitizen to temporarily or permanently reside, and in many cases to work, in the U.S. Examples of temporary immigration benefits include work visas, student visas, Deferred Action for Childhood Arrivals, T Visas, U Visas and Temporary Protected Status. Examples of longer-term or permanent immigration benefits include a grant of asylum status, issuance of a green card, citizenship, a grant of withholding of removal, Special Immigrant Juvenile Status, and immigration benefits based on VAWA relief.

Immigration Detainers (Immigration “Holds”) Immigration detainers (often referred to as immigration “holds”) are administrative notices issued by ICE agents to advise local, state and federal law enforcement agencies (LEA’s) that ICE, “seeks custody of the alien” who is being detained by the LEA “for the purpose of arresting and removing the alien.” 8 CFR 287.7(a). An LEA may voluntarily agree to maintain custody of a noncitizen for “a period not to exceed 48 hours” (excluding weekends and holidays), beyond the time that release of the noncitizen defendant from any custody or supervision is mandated by law. An ICE detainer is not a judicial warrant; it is “merely an administrative mechanism to assure that a person is subject to confinement will not be released from custody until the party requesting the detainer has an opportunity to act.” See Matter of Sanchez, 20 I&N Dec. 223, 225 (BIA 1990), citing Moody v. Daggett, 429 U.S. 78, 80 n. 2 (1976). See also Roldan v. Racette, 984 F.2d 85, 88 (2d Cir.1993) (concluding that an immigration detainer solely constitutes “a notice that future INS custody will be sought at the conclusion of a prisoner's pending confinement by another jurisdiction, and ... a request for prior notice regarding the termination of that confinement.” [emphasis added]).

Immigration Detention ICE has administrative authority to arrest and detain aliens during the removal process. 8 U.S.C §1226, 1231; INA §236, §241. Immigration detention is intended to ensure the ability to enforce U.S. immigration laws against those noncitizens found subject to removal from the U.S. and is not intended to be applied as a form of punishment against noncitizens. In other limited instances, immigration detention may be used to establish a person’s identity, facilitate an immigration or other protection claim, and to effectuate a noncitizen’s removal from the U.S.

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Immigration and Nationality Act (“INA”) The INA is the federal statute which contains all U.S. immigration laws. This statute, which has been modified by a number of subsequently enacted federal amendments and acts, establishes the grounds and procedures for removal from the U.S., as well as eligibility for each type of immigration benefit and relief. It also outlines the jurisdiction of federal immigration authorities. This federal statute is found at Title 8 of the U.S. Code, and the relevant regulations are codified in Volume 8 of the Code of Federal Regulations, entitled “Aliens and Nationality.”

Immigration-related Waivers The INA and other U.S. immigration-related laws contain provisions that provide conditions and requirements for lawful admission to the U.S. or status within the U.S. The INA also provides exceptions to the provisions and waivers with specified statutory conditions that must be met in order to waive the specific statutory basis for ineligibility. Any waiver that is sought by an individual must first meet the prima facie statutory eligibility criteria to be considered. Once statutory eligibility is determined, each waiver will then be decided based on discretionary factors on a case-by-case basis. Waivers may be issued to overcome certain enumerated grounds of removal including waivers for certain criminal activity, health-related issues, and fraud-related concerns.

Immigration Status Immigration status denotes the type of legal or non-legal status of a non-citizen. Lawful immigration status may be obtained based on an application process that can be initiated either inside or, for some types of status, outside of the U.S.

Lawful Admission Lawful admission occurs when an individual is inspected by U.S. immigration authorities who determine that the individual is entitled to enter the U.S. on the basis of a temporary non-immigrant status, such as tourist visa or humanitarian parole, or on the basis of a permanent or indefinite immigrant status such as lawful permanent residence or refugee. 8 U.S.C §1101(a)(13); INA §101(a)(13). This assessment includes a determination of whether the non-citizen is subject to any statutory bars. 8 U.S.C §1182; INA §212.

Mandatory Detention Mandatory immigration detention for certain noncitizens subject to removal is triggered by conditions such as prior convictions for certain crimes, including “aggravated felony” offenses. 8 U.S.C §1226(c); lNA §236(c). Mandatory detention severely limits a noncitizen’s ability to secure release while awaiting immigration proceedings or removal from the U.S. Incarceration following a criminal arrest may trigger an immigration detainer resulting in civil mandatory immigration detention pending removal proceedings.

Removal Proceedings Removal proceedings are immigration court proceedings adjudicated by an administrative law immigration judge or a tribunal of administrative law judges (e.g., Board of Immigration Appeals) for the purposes of determining whether a noncitizen is subject to removal based on statutory grounds of deportation. 8 U.S.C §1229a; INA §240. Removal proceedings are conducted to determine whether a noncitizen is subject to removal from the U.S. and to adjudicate any requests for relief from removal.

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Sanctuary Jurisdiction or Policy Local jurisdictions may formally implement policies of non-cooperation with ICE deportation within legal limits. Sanctuary jurisdictions and policies can be set expressly in law or observed in practice. These policies typically cite to the value that immigrants bring to communities, and concern for public safety generally if immigrants are afraid to report crime and cooperate with law enforcement. They policies do not prevent ICE from executing immigration enforcement actions in sanctuary jurisdictions; they simply limit cooperation with ICE.

U.S. Citizenship and Immigration Services (USCIS) U.S. Citizenship and Immigration Services (USCIS) is an agency within DHS. It consists of multiple district offices and regional service centers throughout the U.S. USCIS is responsible for overseeing the adjudication of a variety of immigration applications for status and other immigration benefits and waivers.

Visa A citizen of a foreign country who seeks to enter the U.S. must first obtain formal permission in the form of a visa before s/he may enter the U.S., unless s/he is coming from a designated “visa waiver” country. Visas are given to non-citizens who do not intend to immigrate to the U.S. but who seek to reside in the U.S. temporarily for the purpose of tourism or work or study. Visa holders are considered “non-immigrants”. While having a visa does not guarantee entry to the U.S., it does indicate a consular officer at a U.S. Embassy or Consulate abroad has determined you are eligible to seek entry for a specific purpose. Visa holders are subject to removal if they are deemed to be in violation of the INA.

CATEGORIES OF IMMIGRATION STATUS

Alien An alien, also referred to as a “noncitizen,” is any person who is not a U.S. citizen or national of the U.S. 8 U.S.C §1101(a)(3); INA §101(a)(3).

Conditional Resident A conditional resident is a non-citizen who obtains a two-year green card through marriage or the entrepreneur program. Conditional residents must petition to remove the conditions 90 days prior to the expiration of the conditional green card, and submit to an interview with USCIS before receiving a permanent green card that gives them permanent resident status.

Derivative/Acquired U.S. Citizenship A person with derivative or acquired U.S. citizenship has obtained U.S. citizenship outside of the naturalization application process. Examples include deriving U.S. citizenship after birth as a result of the naturalization of parents prior to a child’s 18th birthday or acquiring U.S. citizenship based on the citizenship of a parent/grandparent.

Immigrant An immigrant is an individual who enters the U.S. with an intention to reside here permanently. 8 U.S.C §1101(a)(20); INA §101(a)(20). An immigrant includes lawful permanent residents (“LPR”), as well as non-citizens who are allowed to reside indefinitely in the U.S., such as refugees and

4 asylees. LPR status is required of any person who is seeking to obtain U.S. citizenship through the naturalization application process.

Lawful Permanent Resident (“LPR”) / “Green Card” Holder A lawful permanent resident is a non-citizen who has been granted authorization to live and work in the U.S. on a permanent basis. As proof of that status, a person is granted a permanent resident card, commonly called a "green card.” LPRs can still be subject to removal from the U.S. for certain types of criminal-related grounds.

Naturalized U.S. Citizen A naturalized U.S. citizen is any person who has obtained U.S. citizenship through the “naturalization” application process. 8 U.S.C 1101(a)(23); INA §101(a)(23). A naturalized U.S. citizen has the right to U.S. citizenship equal to those who have obtained U.S. citizenship through birthright. However, U.S. citizenship through naturalization can be subject to rescission if citizenship was granted based on fraudulent or erroneous information.

Nonimmigrant A nonimmigrant is an individual who enters the U.S. without intending to reside here permanently, but rather to remain in the U.S. for a temporary period of time to fulfill certain conditions (i.e., such as a temporary visitor, worker, foreign student, etc.). 8 U.S.C §1101(a)(15); INA § 101(a)(15). There are 22 categories of nonimmigrants. 8 U.S.C §1101(a)(15); INA §101(a)(15).

Undocumented Immigrant For purposes of the Chart, any reference made to an “undocumented immigrant” means those immigrants who entered the U.S. without “lawful admission.”

ADVERSE IMMIGRATION GROUNDS AND OUTCOMES

Aggravated Felony Offense An “aggravated felony” offense for immigration purposes includes serious felony offenses such as murder and rape, as well as numerous offenses that are not defined as “felony” offenses pursuant New York Penal Law (e.g., class A misdemeanor offenses related to theft, burglary and assault for which a term of one year or more than one year of imprisonment is imposed). 8 U.S.C §1101(a)(43)(a)-(u); INA §101(a)(43)(a)-(u). Interpretation of an “aggravated felony” offense is also shaped by judicial interpretation of federal felony offenses. If a noncitizen is convicted of an aggravated felony offense, s/he will likely be subjected to mandatory civil immigration detention. In addition, having been convicted of an aggravated felony offense will severely limit a noncitizen from seeking most forms of relief designed to prevent removal from the U.S.

Conduct-based “Admission” or “Finding” Grounds of inadmissibility/exclusion include conduct-based admissions/findings that may subject an individual to removal from the U.S. without having been found guilty or responsible for committing the conduct identified through an “admission” or “finding.” For purposes of the Chart, “admissions” refer to those statements that are made by an individual under penalty of perjury and available by transcription or recording. A “finding” of facts refers to conduct-based conclusions reached by a judge, magistrate or other adjudicator which is formally recorded or transcribed and may be subject to consideration by U.S. immigration authorities in regards to any immigration-

5 related matter involving the individual who made the admission or against whom the finding has been reached.

Conviction A “conviction” for immigration purposes includes (1) a formal judgement of guilt entered by a court; and (2) in a case where an adjudication of guilty has been withheld (e.g., in a “diversion” court), a “conviction” exists when (a) a judge or jury has found the noncitizen guilty or the noncitizen has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and (b) the judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed (e.g., a mandatory treatment program). 8 U.S.C §1101(a)(48)(A); INA §101(a)(48)(A).

Crime Involving Moral Turpitude This is an immigration term that lacks any statutory definition, but is defined through case law as conduct that is “inherently base, vile, or depraved.” In New York, crimes of moral turpitude include some misdemeanors and violations and encompass offenses such as theft of services (e.g., turnstile jumping), petty theft, child endangerment, and simple assault between intimate partners and harassment. A crime involving moral turpitude will generally not include a range of regulatory offenses. While only a conviction for a crime involving moral turpitude can make a lawfully present immigrant deportable, the admission to the essential elements of a crime involving moral turpitude may also have adverse consequences. In Family Court, an admission or finding to conduct considered turpitudinous can thus result in the denial of an immigration benefit like a green card, citizenship, or a visa reserved for victims of crime or domestic violence. Admissions or findings may also result in the denial of admission to the U.S. following travel abroad.

Deportation / Removal A noncitizen who has been lawfully admitted to the U.S. is subject to removal from the U.S. if found to be in violation of a statutory ground of deportation. Noncitizens may be subjected to deportation proceedings and ordered removed from the U.S. if convicted of enumerated crimes or on the basis of certain conduct for which the noncitizen has not been convicted or even prosecuted, including, but not limited to, addiction to controlled substances and violation of certain U.S. immigration laws. INA §237(a); 8 U.S.C. §1227. There is no statute of limitations for deportation; noncitizens can be removed even decades after a conviction or objectionable conduct.

Discretionary Adjudication or Denial Applications for immigration status or to seek an immigration benefit may be determined by immigration officials (USCIS, CBO, ICE), U.S. State Department officials (e.g., consular or embassy officials) and immigration administrative law judges within the U.S. Department of Justice Executive Office for Immigration Review (EOIR). Even if a noncitizen applicant meets all the statutory eligibility criteria to obtain legal immigration status or to seek an immigration benefit and is not barred from doing so because of a determination of deportability or inadmissibility, s/he is not automatically entitled to the immigration status or benefit until s/he is found to be deserving of the status or benefit based on the discretionary review of such application by any of the above- referenced immigration-related authorities. Discretionary review may include factors such as personal character, family unity, length of time residing in the U.S., employment history, and prior arrests and convictions.

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Criminal-Related Grounds of Removal – Generally Criminal-related grounds of removal are found in both statutory grounds of inadmissibility (8 U.S.C §1182; INA §212) and grounds of deportation (8 U.S.C §1227; INA §237). Although the criminal grounds of removal for inadmissibility and deportation are similar, they are not identical.

Inadmissibility An immigrant is ineligible to enter the U.S., or obtain any type of visa, humanitarian status or green card once in the U.S. if s/he is found to have violated any one of the grounds of inadmissibility. 8 U.S.C. §1182; INA §212. Common grounds of inadmissibility include, but are not limited to, being convicted of or admitting to the essential elements of acts that constitute a crime involving moral turpitude, conviction or admission to a controlled substance offense, having a history of certain immigration law violations, being without a source of financial support, or health-related grounds which include lack of certain vaccinations or being diagnosed suffering from certain communicable diseases.

Statutory Bar to Immigration Benefit or Relief from Removal A statutory bar is a violation of the Immigration and Nationality Act that renders a noncitizen ineligible, either temporarily or permanently, for an immigration visa, humanitarian status, a green card, naturalization or other immigration benefit as a matter of law. The discretion to consider or grant a specific immigration benefit or immigration relief may be deemed prohibited, despite any compelling or positive equities or circumstances presented, if the statutory bar to the benefit or relief is defined as “mandatory.”

HUMANITARIAN RELIEF AND PROTECTION

Asylee An asylee is a person who, while seeking admission at a U.S. port of entry or while inside of the U.S., is seeking asylum after establishing that s/he qualifies as a “refugee.” 8 U.S.C §1158(b)(1)(A); INA§ 208(b)(1)(A). A refugee is a person displaced outside of his/her native country or country of nationality or origin who is unable to return to that country because of a well-founded fear of persecution on account of (1) race, (2) religion, (3) nationality, (4) political opinion, or (5) membership in a particular social group. 8 U.S.C §1101(a)(42); INA §101(a)(42). Asylum can provide relief from removal from the U.S. and may also lead to lawful permanent resident status in the U.S.

Cancellation of Removal – for Certain Lawful Permanent Residents Cancellation of Removal for lawful permanent residents is a form of relief only available for certain LPRs who have been found subject to grounds of removal. To be eligible for cancellation of removal, the LPR must establish that s/he has been “lawfully admitted to the U.S. for permanent resident status” for a minimum of five years; has resided in the U.S. continuously for a minimum of seven years after having been admitted to the U.S. in any lawful status and that s/he has not been convicted of an “aggravated felony” offense. Despite a noncitizen’s statutory eligibility for cancellation of removal relief, his/her application will be subjected to discretionary review by an immigration judge and will only be granted if the application warrants a favorable exercise of discretion.

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Cancellation of Removal – for Certain Nonpermanent Residents Cancellation of Removal for certain noncitizens is a form of relief only available for certain nonpermanent residents who have been found subject to grounds of removal. If cancellation of removal is granted, the noncitizen will be permitted to seek “adjustment of status” resulting in a grant of U.S. lawful permanent resident status. To be eligible for such relief from removal, the noncitizen must establish that s/he has been physically present in the U.S. for a continuous period of not less than ten years immediately preceding the date of such application; has been a person of “good moral character” for 10 years; has not been convicted of certain offenses; and has established that his/her removal from the U.S. would result in exceptional and extremely unusual hardship to a U.S. citizen or U.S. lawful permanent resident spouse, parent or child. 8 U.S.C §1229b(b); INA §240A(b). Despite a noncitizen’s statutory eligibility for cancellation of removal relief, his/her application will be subjected to discretionary review by an immigration judge and will only be granted if the application warrants a favorable exercise of discretion.

Crime Victim Visa (U-Visa) A U visa is a four-year, temporary visa that allows a noncitizen to temporarily reside and work within the U.S. if s/he can establish that: 1) s/he has been a victim of an enumerated crime – including a crime of domestic violence; 2) has reported the crime and cooperated with law enforcement (including, but not limited to, federal, state and local law enforcement agencies, criminal and family court judges, local and federal prosecutors, Dept. of Labor, Human Rights Commission, etc.) in the investigation or prosecution of the offense; 3) is successful in obtaining a certification form signed by a judge or designated law enforcement officer that certifies cooperation; 4) s/he is able to establish that s/he suffered substantial harm as a result of the crime; and 5) is otherwise admissible or eligible for available waivers if deemed inadmissible. 8 U.S.C. §1101(a)(15)(U). U visa holders may apply for lawful permanent resident status prior to the expiration of their U visa.

Deferred Action for Childhood Arrivals (DACA) DACA is a program started in 2012 which has granted protection from deportation to many undocumented immigrants who came to the U.S. as children. Although DACA does not provide a pathway to lawful status, it provides work authorization, the ability to apply for a social security card, and opens the door to many educational and employment opportunities. In September of 2017, President Trump announced that DACA will be phased out by March 5, 2018. As of this writing, many questions remain about the termination of this program. Any questions should be directed to an immigration law expert.

Deferral of Removal under the Convention Against Torture (“CAT”) Treaty Under the CAT Treaty, deferral of removal may be granted to a noncitizen who establishes that s/he is more likely than not to be subjected to torture if ordered subject to removal to his/her country of origin or nationality. There are no bars to eligibility for relief under CAT. However, CAT relief does not confer upon the noncitizen any lawful or permanent immigration status in the U.S. and is only effective until and unless terminated by U.S. immigration officials or an immigration judge.

Human Trafficking Visa (T-Visa) A T visa is a temporary four-year visa that provides protection to a victim of human trafficking by allowing him/her to remain and work within the U.S. for four years if s/he: 1) is in the U.S. because s/he has been a subject of sex or labor trafficking; 2) has agreed to provide some level of

8 cooperation with law enforcement; 3) would suffer substantial hardship if returned to his/her country of origin or citizenship; and 4) is otherwise admissible or eligible for available waivers from being deemed inadmissible. 8 U.S.C. §1101(a)(15)(T). T visa holders may also be eligible to subsequently apply for U.S. lawful permanent resident status.

Refugee A refugee is a person displaced outside of his/her native country or country of nationality or origin who is unable to return to that country because of a well-founded fear of persecution on account of (1) race, (2) religion, (3) nationality, (4) political opinion, or (5) membership in a particular social group. 8 U.S.C §1101(a)(42); INA §101(a)(42). Refugees are resettled in the U.S. after seeking admission and approval to do so abroad. Once admitted to the U.S., refugees are expected to apply for and to obtain lawful permanent resident status following their first year of admission to the U.S.

Special Immigrant Juvenile (“SIJ”) Status SIJ status provides a basis for a noncitizen minor to apply for lawful permanent resident status. 8 U.S.C. 1101(a)(27)(J). To be eligible for a grant of SIJ status by USCIS, the minor must provide an order from a family court or other “juvenile court” finding that: (1) the minor is under 21; (2) the minor is unmarried; (3) the minor is “dependent” on a juvenile court, or committed to the custody of a state agency or court-appointed individual or entity; (4) reunification with one or both of the minor’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and (5) it is not in the best interests of the minor to return to their country of nationality or last habitual residence. The order must cite to specific New York law and facts on which the findings are based, rather than federal law, in order to be accepted by USCIS. A parent of a child who is granted SIJ status is statutorily prohibited from obtaining any immigration benefit based on his/her child’s immigration status. However, the issuance of SIJ status to a child does not bar his/her parent from applying for or receiving an immigration benefit independent of the child’s immigration status.

Temporary Protected Status (TPS) TPS is a temporary status designed to provide a temporary safe haven for individuals from a foreign country when conditions in the country prevent them from returning. Conditions that can justify a TPS designation include armed conflict, natural disasters, and other extraordinary conditions that prevent foreign nationals from safely returning to their home country. Foreign nationals and recent residents of a country that is given a TPS designation may apply for temporary status for 6-18 months. Temporary status may also be extended, and individuals may retain temporary status for many years. Currently, ten countries have TPS designation.

Violence Against Women Act (VAWA) Related Benefits A noncitizen who has been battered or subjected to extreme cruelty by a spouse, parent or child who is a U.S. citizen or legal permanent resident may file an immigrant visa petition or lawful permanent resident application on their own behalf, rather than having to rely on the abusive spouse, parent or child. 8 U.S.C. §1154(a) In order to prevail, abused spouses must provide evidence that they 1) married in good faith; 2) resided together with the abusive spouse; 3) were physically abused or subjected to extreme cruelty; and 4) have good moral character. (The requirements for abused children and parents differ).

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Withholding of Removal Withholding of removal, also called “non-refoulment” under the United Nations Convention Relating to the Status of Refugees, is a form of relief that prohibits a noncitizen’s removal from the U.S. to his/her country of origin or nationality based on fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. Unlike asylum, a grant of withholding of removal does not provide a pathway to U.S. lawful permanent resident status and may be issued on a permanent or temporary basis based on any significant changes of conditions in the noncitizen’s country of origin or nationality.

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ONE DAY TO PROTECT NEW YORKERS ACT SUMMARY OF LEGISLATION

The legislation reduces the maximum sentence of imprisonment for any New York Maximum Sentence class A or unclassified misdemeanor from one year to 364 days. for Misdemeanors Reduced to 364 Days See NYPL §§ 70.15(1) and (3), 70.15(1-a)(a)

The legislation provides that the new 364 day maximum applies not only to persons New Misdemeanor sentenced after the new law but also to persons sentenced before enactment of Maximum Sentence the legislation. Applies Retroactively See NYPL § 70.15(1-a)(b)

The legislation provides that any sentence imposed for a past New York class A or Past Misdemeanor unclassified misdemeanor conviction that is a definite sentence of imprisonment of One-Year Sentences one year shall, by operation of law, be changed to a sentence of 364 days. In Reduced to 364 Days addition, the legislation provides that the defendant shall be entitled to obtain by Operation of Law from the criminal court a certificate of conviction setting forth the reduced sentence as the court’s sentence.

See NYPL § 70.15(1-a)(c)

The legislation provides that any sentence imposed for a past New York Past Misdemeanor misdemeanor conviction that is other than a definite sentence of imprisonment of Sentences of Less one year may be set aside under NYCPL § 440.20, based on a showing that the than One Year May Be judgment and sentence entered under prior law is likely to result in collateral Set Aside to Allow consequences, to permit for resentencing of the defendant under the new Resentencing Under legislation. the New Law See NYPL § 70.15(1-a)(d) • Removability for One Crime Involving Moral Turpitude: Addresses Addressing Specific removability for one CIMT within first five years of admission as specified in Immigration INA § 237(a)(2)(A)(i) Consequences • VAWA Relief: Provides VAWA relief (i.e., cancellation of removal) for non- lawful permanent residents pursuant to INA § 240A(b). • Removability for an Aggravated Felony Offense: Addresses removability for certain aggravated felonies (i.e., crimes of violence, theft offenses, forgery, obstruction of justice, perjury and other related offenses as defined in INA § 101(a)(F)(43) • Naturalization: Provides opportunity for naturalization to those who may now be eligible pursuant to the “petty offense” exception with only one prior conviction that included a sentence of six months or more as defined in INA § 212(a)(2)(A)(ii)(II). • Relief from Mandatory Detention: Provides relief from “mandatory detention” as defined in INA § 236(c)(1)(B) • Discretionary Relief for Certain Immigration Benefits: May provide discretionary relief in certain circumstances, (i.e., DACA renewal, asylum, withholding of removal, multiple, etc.)

ADDITIONAL RESOURCES

CRIMINAL COURT

 *Immigrant Defense Project: Immigration Consequences of Crimes Summary Checklist

 National Immigration Project of the National Lawyers Guild: Selected Immigration Consequences of Certain Federal Offenses, https://defgen.vermont.gov/sites/defgen/files/Research/fed_chart_updated_Aug_05.pdf

 Immigrant Defense Project: Practice Advisory: New York Marijuana Decriminalization, Vacatur, and Expungement Legislation (August 28, 2019, by IDP)

 Implications of Padilla v. Kentucky on the Duties of State Court Criminal Judges, by Steven Weller and John A. Martin, Center for Public Policy Studies (Jul. 2010) available at www.sji.gov/wp/wp-content/uploads/Implications_of_Padilla_for_State_Court_Judges.pdf

FAMILY COURT

 The Intersection of Immigration Status and the New York Family Courts by the Fund For Modern Courts, http://moderncourts.org/files/2014/03/Modern-Courts-Statewide-Report-The- Intersection-of-Immigration-Status-and-the-New-York-Family-Courts.pdf

 Department of Homeland Security U.S. Immigration and Customs Enforcement (ICE) Immigration Policy Number: 11064.2: Detention and Removal of Alien Parents or Legal Guardians (a.k.a. Detained Parents Directive) (August 29, 2017) available at https://www.ice.gov/parental-interest

 New York State Office of Court Administration Advisory Council on Immigration Issues in Family Court: Supplemental Guidance on Guardianship Matters and Applications for Special Immigrant Juvenile Status (SIJS) Findings, http://www.nycourts.gov/ip/Immigration-in- FamilyCourt/PDFs/AdvisoryMemorandum1A.pdf

 New York State Office of Court Administration Advisory Council on Immigration Issues in Family Court: Guidance on Family Court Role in U Nonimmigrant Status Certification, http://www.nycourts.gov/ip/Immigration-in-FamilyCourt/PDFs/AdvisoryMemorandum2.pdf

 *New York State Office of Court Administration Advisory Council on Immigration Issues in Family Court: Adverse Consequences to Family Court Dispositions

 New York State Office of Court Administration Advisory Council on Immigration Issues in Family Court: Guidance on Guardianship Matters and Applications for Special Immigrant Juvenile (“SIJ”) Findings, http://www.nycourts.gov/ip/Immigration-in- FamilyCourt/PDFs/AdvisoryMemorandum1.pdf

 National Center for State Courts: Unaccompanied Immigrant Children in State Courts Resource Guide, http://www.ncsc.org/Topics/Federal-Relations/Immigration/Resource-Guide.aspx

 Immigration Bench book for Juvenile and Family Courts by the ILRC, https://www.ilrc.org/immigration-benchbook-juvenile-and-family-courts

OTHER ADDITIONAL RESOURCES

 *Mapping of an Immigration Proceeding (Diagram)

 *New York State Office of Indigent Legal Services: Regional Immigration Assistance Centers Brochure also available at https://www.ils.ny.gov/content/regional-immigration-assistance- centers

*Materials made available electronically.

THE INTERSECTION OF IMMIGRATION, CRIMINAL AND FAMILY LAW PROCEEDINGS

CJA Panel December 10,. 2019 (Albany, NY)

PRESENTERS: Joanne Macri, Esq., Statewide Chief Implementation Center, NYS Office of Indigent Legal Services [Co-Presenter to be announced]

1. Introduction to U.S. Immigration Law (a) Introduction of the Regional Immigration Assistance Centers (b) Immigration Overview: i. Impacted Populations ii. Immigration Status iii. Immigration Legislation, Directives, Policy, Practice and Executive Orders iv. Immigration Agencies and Enforcement Process v. Removal Proceedings Overview 2. Immigration Consequences of State Criminal Court Contact (a) Deportability/Inadmissibility/Denial of Naturalization – Brief Overview: INA §237 vs §212 i. Criminal Grounds of Deportability A. Aggravated Felony Defined Offenses B. Crimes Involving Moral Turpitude Offenses C. Controlled Substance Offenses D. Firearm Offenses E. Crimes of Domestic Violence F. Crimes Against a Child ii. Criminal Grounds of Inadmissibility A. Crime Involving Moral Turpitude Offenses B. Controlled Substance Offenses C. Impact of “Admissions” D. Impact of Conduct-based Findings iii. Immigration Definition of “Good Moral Character” and It’s Impact on Immigration Status Applications (b) “Conviction” Defined for Immigration Purposes i. NYS Categories of a “Conviction” and their Immigration Impact ii. “Finality” of a “Conviction” defined iii. Impact of Rehabilitation/Diversion (c) Categorical Approach Overview

3. Emerging Issues Relating to the Intersection of New York State Criminal Courts and Federal Immigration Laws (a) Role of the Courts (b) Responsibilities of Criminal Defense Counsel

4. Immigration Consequences of Family Court Findings (a) Intersection of Family/Immigration Law (b) Adverse Immigration Consequences from Family Court Proceedings i. Juvenile delinquency (Article 3) ii. Child support (Article 4) iii. Guardianship and custody (Article 6) iv. Family offense (Article 8) v. Abuse and neglect (Article 10) vi. Order of Protection (c) Other Family Court contact: Special Immigrant Juvenile Status (d) DHS Enforcement and Family Court Proceedings

Recent Supreme Court Activity Impacting Federal Criminal Practice

The following is a list of recent decisions and grants of certiorari that bear on federal criminal practice. The presentation will not address each in-depth but will address the more important decisions and their potential implications in the federal criminal practice.

I. Pre-Trial Issues

A. Reasonable Suspicion to Stop Motorist.

Kansas v. Glover, No. 18-556 (argued Nov. 4, 2019) Question Presented:

“[W]hether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.”

This decision could allow for roving traffic stops where an officer runs a check on a vehicle registration and the owner of the vehicle comes back as having a suspended license. The sole justification for the stop was the officer’s common sense assumption that the owner would be driving. The state asserted that the officer could stop the car to confirm or dispel the suspicion that the unlicensed owner is driving. Once stopped an officer could prolong the stop as facts arise contributing to reasonable suspicion even where it may be readily apparent that the driver is not the owner.

B. Exigent Circumstances Justify Warrantless Blood Draw from Unconscious Motorist

Mitchell v. Wisconsin, 139 S. Ct. ___ (June 27, 2019)

The exigent circumstances exception to the warrant requirement “almost always permits a blood test without a warrant” when a breath test is impossible, such as when the motorist is unconscious. Justice Thomas concurred but proposed a per se rule should apply, conscious or unconscious, because “the natural metabolism of alcohol in the blood stream ‘creates an exigency once police have probable cause to believe the driver is drunk.’”

C. Double Jeopardy: Separate Sovereigns Remain Separate

Gamble v. United States, 139 S. Ct. ___ (June 17, 2019)

At its core, the Double Jeopardy Clause means that those acquitted or convicted of a particular ‘offense’ cannot be tried a second time for the same ‘offense.’ The Court has long held that a crime under one sovereign’s laws is not ‘the same offense’ as a crime under the laws of another sovereign. Under this ‘dual-sovereignty’ doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute. The Court upheld the dual sovereignty doctrine finding two offenses are not the “same offense” for double jeopardy purposes if prosecuted by separate sovereigns.

II. Trial

A. Knowingly Possessing Firearm Requires Knowledge of the Basis of the Prohibited Status

Rehaif v. United States, 139 S. Ct. 914 (June 21, 2019)

Rehaif, a citizen of the UAE, overstayed his student visa. He was convicted under § 922(g)(5) for unlawful possession of a firearm and ammunition by an undocumented immigrant. At trial, the court instructed the jury that the government is not required to prove that the defendant knew that he was “illegally or unlawfully in the United States” at the time he possessed the firearm and ammunition. The Eleventh Circuit affirmed his conviction and the Supreme Court reversed. The question for the Court was whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of an offense under § 922(g), or whether it applies only to the possession element. The Supreme Court reversed the conviction (7-2) in an opinion authored by Justice Breyer. The Court concluded that in a prosecution under 18 U.S.C. §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm

III. Sentencing

A. Eighth Amendment: Excessive Fines Clause.

Timbs v. Indiana, 139 S. Ct. 682 (Feb. 20, 2019).

Timbs was found guilty of dealing in a controlled substance and conspiracy to commit theft. He was sentenced him to one year of home detention and five years of probation, including a court supervised addiction-treatment program. He was also required to pay fees and costs totaling $1,203. At his arrest the police seized his Land Rover SUV purchased for about $42,000 with money from his deceased father’s life insurance. The government sought forfeiture of the car for facilitating the crime. Tibbs fought the forfeiture under the Excessive Fines clause and the state court ruled the clause did not apply to the state action. The Supreme Court reversed ruling that like the Eighth Amendment’s proscriptions of ‘cruel and unusual punishment’ and ‘[e]xcessive bail,’ the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. The Court held that the Excessive Fines Clause is incorporated by the Due Process Clause of the Fourteenth Amendment as a safeguard that is fundamental to the scheme of ordered liberty deeply rooted in our history and tradition.

B. Burglary in ACCA Includes “Remaining In” Offenses

Quarles v. United States, 139 S. Ct. 914 (June 10, 2019).

The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a minimum 15-year prison sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a “serious drug offense” or “violent felony.” Section 924(e) defines “violent felony” to include “burglary.” Under Taylor v. United States, the generic statutory term “burglary” means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” The narrow question for the Court was whether remaining-in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. The Court adopted the more broad definition that “remaining- in burglary” occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.

C. 18 U.S.C. §924(c)(3)(B) aggravating sentence for use of firearm during crime of violence in unconstitutionally vague.

United States v. Davis, 139 S. Ct. 782 (June 24, 2019).

Applying the same principles relied on in Johnson and Dimaya, the Court held the language 18 U.S.C. §924(c)(3)(B), which provides enhanced penalties for using a firearm during a “crime of violence,” is unconstitutionally vague. “The statute’s residual clause points to those felonies ‘that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’ §924(c)(3)(B). Even the government admitted that this language provides no reliable way to determine which offenses qualify as crimes of violence. The clause is unconstitutionally vague. D. Preservation of Sentencing Objections

Holguin-Hernandez v. United States, No. 18-7739 (argued Dec. 10, 2019)

Question Presented:

Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

Holguin-Hernandez was sentenced on a drug offense and then sentenced on a violation of supervised release. During the revocation proceeding he argued for no additional time because he had already been sentenced on the conduct and that no reason under §3553(a) supported an additional sentence. The court imposed 12 months consecutive to the previously imposed sentence. Holguin-Hernandez did not additionally object to the sentence after the sentence was imposed. There is a circuit split on whether this additional objection is required to preserve the challenge to the sentence. The 5th Circuit has applied a rule that a defendant must register an objection to a sentence after it is imposed a requirement expressly rejected by the 7th Circuit’s opposite approach (with which every other circuit to consider the question has agreed).

E. “Serious Drug Offense” under ACCA and the Categorical Approach

Shular v. United States, No. 18-6662 (argument Jan. 21, 2020)

Question Presented:

Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the act.

Shular argues that § 924(e)(2)(A)(ii) enumerates a class of sufficiently serious generic offenses triggering a sentencing enhancement requiring application of the categorical analysis to determine if the predicate fits the definition of the generic offenses. Courts should “compare the elements of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood” to determine whether the state offense is the same as, or narrower than, the generic offense. Descamps v. United States, 570 U.S. 254, 257 (2013).

Shular further argues that the generic offenses listed in § 924(e)(2)(A)(ii) must include a mens rea requirement because in 1986 when the “serious drug offense” was added to ACCA a broad consensus of state and federal statutes were read to include knowledge of the illicit nature of the substance as an element of the offense. IV. Post-Sentencing

A. Mandatory Minimum Sentence for Supervised Release Violation.

United States v. Haymond, 139 S. Ct. ___ (June 26, 2019).

Haymond was convicted of convicted of possession and attempted possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) he served 38 months and started his 10 year term of supervised release. He was later violated for viewing child pornography. The district court found the violation and applied 18 U.S.C. § 3583(k) to Haymond’s violation, requiring revocation of supervised release and reimprisonment for at least five years. The court also imposed five years of supervised release. The court of appeals affirmed the revocation of supervised release, but vacated the order of reimprisonment and remanded concluding that 18 U.S.C. § 3583(e)(3) should apply and not § 3583(k). The majority found the final two sentences of Section 3583(k) “unconstitutional and unenforceable,” viewing §3583(k) as “violat[ing] the Fifth and Sixth Amendments,” because it stripped the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposed heightened punishment on sex offenders expressly based on new conduct for which they have not been convicted by a jury beyond a reasonable doubt.

The Supreme Court vacated and remanded for further proceedings. The plurality agreed that Alleyne v. United States, 570 U.S. 99 (2013) to the supervised release proceedings because the statute imposes a mandatory minimum sentence. The plurality affirmed the findings of 5th and 6th amendment violations, but remanded for further consideration of remedial measures advising that “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty ... Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt.”

In his dissent Justice Alito issued a warning that the plurality opinion meant that all supervised release proceedings will require a jury trial if the comparison to a criminal prosecution holds. On remand the government moved to dismiss the appeal because it had failed to argue a jury should be impaneled as part of its remedial recommendation.

B. Failure to Appeal Following Plea Waiver is Ineffective Assistance of Counsel

Garza v. Idaho, 139 S. Ct 738 (Feb. 27, 2019)

When counsel fails to appeal following a guilty plea in which the defendant waives the right to appeal, the presumptive prejudice standard applies. Previously in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” The same applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver”—agreeing to forgo certain, but not all, possible appellate claims.

Questions or comments ?

Molly Corbett at [email protected]

First Step Act of 2018 ______

Federal Criminal Defense Practice Seminar December 10, 2019 Albany, New York ______

James Egan Assistant Federal Public Defender ______

Table of Contents1

First Step Act of 2018, Title IV ...... 1 21 U.S.C. § 841 ...... 5 21 U.S.C. § 802(57)-(58) ...... 15 18 U.S.C. § 924 ...... 16 18 U.S.C. § 113 ...... 25 18 U.S.C. § 3559 ...... 27 21 U.S.C. § 851 ...... 33 18 U.S.C. § 3553 ...... 35 18 U.S.C. § 3582 ...... 40 18 U.S.C. § 3624 ...... 44 Good Time Chart ...... 51 Earned Time Credits Chart ...... 55

1 The PowerPoint accompanying this presentation will be made available on the NDNY Federal Public Defender website, https://nyn.fd.org/content/training-events. FIRST STEP ACT OF 2018, PL 115-391, December 21, 2018, 132 Stat 5194

“(2) PRISONER.—The term ‘prisoner’ means a person who has been sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or a person in the custody of the Bureau of Prisons, including a person in a Bureau of Prisons contracted facility.

“(3) RESTRAINTS.—The term ‘restraints’ means any physical or mechanical device used to control the movement of a prisoner's body, limbs, or both.”.

*5220

<< 18 USCA T. 18 pt. III ch. 317 prec. § 4321 >>

(b) CLERICAL AMENDMENT.—The table of sections for chapter 317 of title 18, United States Code, is amended by adding after the item relating to section 4321 the following:

“4322. Use of restraints on prisoners during the period of pregnancy, labor, and postpartum recovery prohibited.”.

TITLE IV—SENTENCING REFORM

SEC. 401. REDUCE AND RESTRICT ENHANCED SENTENCING FOR PRIOR DRUG FELONIES.

(a) CONTROLLED SUBSTANCES ACT AMENDMENTS.—The Controlled Substances Act (21 U.S.C. 801 et seq.) is amended—

(1) in section 102 (21 U.S.C. 802), by adding at the end the following:

<< 21 USCA § 802 >>

“(57) The term ‘serious drug felony’ means an offense described in section 924(e)(2) of title 18, United States Code, for which—

“(A) the offender served a term of imprisonment of more than 12 months; and

“(B) the offender's release from any term of imprisonment was within 15 years of the commencement of the instant offense.

<< 21 USCA § 802 >>

“(58) The term ‘serious violent felony’ means—

“(A) an offense described in section 3559(c)(2) of title 18, United States Code, for which the offender served a term of imprisonment of more than 12 months; and

“(B) any offense that would be a felony violation of section 113 of title 18, United States Code, if the offense were committed in the special maritime and territorial jurisdiction of the United States, for which the offender served a term of imprisonment of more than 12 months.”; and

(2) in section 401(b)(1) (21 U.S.C. 841(b)(1))—

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(A) in subparagraph (A), in the matter following clause (viii)—

<< 21 USCA § 841 >>

(i) by striking “If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years” and inserting the following: “If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years”; and

<< 21 USCA § 841 >>

(ii) by striking “after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release” and inserting the following: “after 2 or more prior convictions for a serious drug felony or serious violent felony have become final, such person shall be sentenced to a term of imprisonment of not less than 25 years”; and

<< 21 USCA § 841 >>

(B) in subparagraph (B), in the matter following clause (viii), by striking “If any person commits *5221 such a violation after a prior conviction for a felony drug offense has become final” and inserting the following: “If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final”.

(b) CONTROLLED SUBSTANCES IMPORT AND EXPORT ACT AMENDMENTS.—Section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)) is amended—

<< 21 USCA § 960 >>

(1) in paragraph (1), in the matter following subparagraph (H), by striking “If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not less than 20 years” and inserting “If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years”; and

<< 21 USCA § 960 >>

(2) in paragraph (2), in the matter following subparagraph (H), by striking “felony drug offense” and inserting “serious drug felony or serious violent felony”.

<< 21 USCA § 802 NOTE >>

(c) APPLICABILITY TO PENDING CASES.—This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

SEC. 402. BROADENING OF EXISTING SAFETY VALVE.

(a) AMENDMENTS.—Section 3553 of title 18, United States Code, is amended—

(1) in subsection (f)—

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(A) in the matter preceding paragraph (1)—

<< 18 USCA § 3553 >>

(i) by striking “or section 1010” and inserting “, section 1010”; and

<< 18 USCA § 3553 >>

(ii) by inserting “, or section 70503 or 70506 of title 46” after “963)”;

(B) by striking paragraph (1) and inserting the following:

<< 18 USCA § 3553 >>

“(1) the defendant does not have—

“(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

“(B) a prior 3-point offense, as determined under the sentencing guidelines; and

“(C) a prior 2-point violent offense, as determined under the sentencing guidelines;”; and

(C) by adding at the end the following:

<< 18 USCA § 3553 >>

“Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.”; and

(2) by adding at the end the following:

<< 18 USCA § 3553 >>

“(g) DEFINITION OF VIOLENT OFFENSE.—As used in this section, the term ‘violent offense’ means a crime of violence, as defined in section 16, that is punishable by imprisonment.”.

<< 18 USCA § 3553 NOTE >>

(b) APPLICABILITY.—The amendments made by this section shall apply only to a conviction entered on or after the date of enactment of this Act.

SEC. 403. CLARIFICATION OF SECTION 924(C) OF TITLE 18, UNITED STATES CODE.

<< 18 USCA § 924 >>

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(a) IN GENERAL.—Section 924(c)(1)(C) of title 18, United States Code, is amended, in the matter preceding clause (i), by striking “second or subsequent conviction under this subsection” and *5222 inserting “violation of this subsection that occurs after a prior conviction under this subsection has become final”.

<< 18 USCA § 924 NOTE >>

(b) APPLICABILITY TO PENDING CASES.—This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

<< 21 USCA § 841 NOTE >>

SEC. 404. APPLICATION OF FAIR SENTENCING ACT.

(a) DEFINITION OF COVERED OFFENSE.—In this section, the term “covered offense” means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372), that was committed before August 3, 2010.

(b) DEFENDANTS PREVIOUSLY SENTENCED.—A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were in effect at the time the covered offense was committed.

(c) LIMITATIONS.—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.

TITLE V—SECOND CHANCE ACT OF 2007 REAUTHORIZATION

SEC. 501. SHORT TITLE.

<< 34 USCA § 10101 NOTE >>

This title may be cited as the “Second Chance Reauthorization Act of 2018”.

SEC. 502. IMPROVEMENTS TO EXISTING PROGRAMS.

(a) REAUTHORIZATION OF ADULT AND JUVENILE OFFENDER STATE AND LOCAL DEMONSTRATION PROJECTS.—Section 2976 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10631) is amended —

(1) by striking subsection (a) and inserting the following:

<< 34 USCA § 10631 >>

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United States Code Annotated Title 21. Food and Drugs (Refs & Annos) Chapter 13. Drug Abuse Prevention and Control (Refs & Annos) Subchapter I. Control and Enforcement Part D. Offenses and Penalties

21 U.S.C.A. § 841

§ 841. Prohibited acts A

Effective: December 21, 2018 Currentness

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

(b) Penalties

Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this section involving--

(i) 1 kilogram or more of a mixture or substance containing a detectable amount of heroin;

(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of--

(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

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(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III);

(iii) 280 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;

(iv) 100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(v) 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(vi) 400 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] propanamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight; or

(viii) 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after 2 or more prior convictions for a serious drug felony or serious violent felony have become final, such person shall be sentenced to a term of imprisonment of not less than 25 years and fined in accordance with the preceding sentence. Notwithstanding section 3583 of Title 18, any sentence under this subparagraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.

(B) In the case of a violation of subsection (a) of this section involving--

(i) 100 grams or more of a mixture or substance containing a detectable amount of heroin;

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(ii) 500 grams or more of a mixture or substance containing a detectable amount of--

(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III);

(iii) 28 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;

(iv) 10 grams or more of phencyclidine (PCP) or 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(v) 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(vi) 40 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] propanamide or 10 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight; or

(viii) 5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $5,000,000 if the defendant is an individual or $25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $8,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of Title 18, any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Notwithstanding any other provision of

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law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.

(C) In the case of a controlled substance in schedule I or II, gamma hydroxybutyric acid (including when scheduled as an approved drug product for purposes of section 3(a)(1)(B) of the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000), or 1 gram of flunitrazepam, except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $2,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of Title 18, any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 6 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the provisions of this subparagraph which provide for a mandatory term of imprisonment if death or serious bodily injury results, nor shall a person so sentenced be eligible for parole during the term of such a sentence.

(D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of Title 18, any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 4 years in addition to such term of imprisonment.

(E)(i) Except as provided in subparagraphs (C) and (D), in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 10 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not more than 15 years, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $500,000 if the defendant is an individual or $2,500,000 if the defendant is other than an individual, or both.

(ii) If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not more than 30 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both.

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(iii) Any sentence imposing a term of imprisonment under this subparagraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 4 years in addition to such term of imprisonment.

(2) In the case of a controlled substance in schedule IV, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individual, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least one year in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment.

(3) In the case of a controlled substance in schedule V, such person shall be sentenced to a term of imprisonment of not more than one year, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $100,000 if the defendant is an individual or $250,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 4 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $200,000 if the defendant is an individual or $500,000 if the defendant is other than an individual, or both. Any sentence imposing a term of imprisonment under this paragraph may, if there was a prior conviction, impose a term of supervised release of not more than 1 year, in addition to such term of imprisonment.

(4) Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.

(5) Any person who violates subsection (a) of this section by cultivating or manufacturing a controlled substance on Federal property shall be imprisoned as provided in this subsection and shall be fined any amount not to exceed--

(A) the amount authorized in accordance with this section;

(B) the amount authorized in accordance with the provisions of Title 18;

(C) $500,000 if the defendant is an individual; or

(D) $1,000,000 if the defendant is other than an individual;

or both.

(6) Any person who violates subsection (a), or attempts to do so, and knowingly or intentionally uses a poison, chemical, or other hazardous substance on Federal land, and, by such use--

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(A) creates a serious hazard to humans, wildlife, or domestic animals,

(B) degrades or harms the environment or natural resources, or

(C) pollutes an aquifer, spring, stream, river, or body of water,

shall be fined in accordance with Title 18 or imprisoned not more than five years, or both.

(7) Penalties for distribution

(A) In general

Whoever, with intent to commit a crime of violence, as defined in section 16 of Title 18 (including rape), against an individual, violates subsection (a) by distributing a controlled substance or controlled substance analogue to that individual without that individual's knowledge, shall be imprisoned not more than 20 years and fined in accordance with Title 18.

(B) Definition

For purposes of this paragraph, the term “without that individual's knowledge” means that the individual is unaware that a substance with the ability to alter that individual's ability to appraise conduct or to decline participation in or communicate unwillingness to participate in conduct is administered to the individual.

(c) Offenses involving listed chemicals

Any person who knowingly or intentionally--

(1) possesses a listed chemical with intent to manufacture a controlled substance except as authorized by this subchapter;

(2) possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance except as authorized by this subchapter; or

(3) with the intent of causing the evasion of the recordkeeping or reporting requirements of section 830 of this title, or the regulations issued under that section, receives or distributes a reportable amount of any listed chemical in units small enough so that the making of records or filing of reports under that section is not required; shall be fined in accordance with Title 18 or imprisoned not more than 20 years in the case of a violation of paragraph (1) or (2) involving a list I chemical or not more than 10 years in the case of a violation of this subsection other than a violation of paragraph (1) or (2) involving a list I chemical, or both.

(d) Boobytraps on Federal property; penalties; “boobytrap” defined

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(1) Any person who assembles, maintains, places, or causes to be placed a boobytrap on Federal property where a controlled substance is being manufactured, distributed, or dispensed shall be sentenced to a term of imprisonment for not more than 10 years or fined under Title 18, or both.

(2) If any person commits such a violation after 1 or more prior convictions for an offense punishable under this subsection, such person shall be sentenced to a term of imprisonment of not more than 20 years or fined under Title 18, or both.

(3) For the purposes of this subsection, the term “boobytrap” means any concealed or camouflaged device designed to cause bodily injury when triggered by any action of any unsuspecting person making contact with the device. Such term includes guns, ammunition, or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, and lines or wires with hooks attached.

(e) Ten-year injunction as additional penalty

In addition to any other applicable penalty, any person convicted of a felony violation of this section relating to the receipt, distribution, manufacture, exportation, or importation of a listed chemical may be enjoined from engaging in any transaction involving a listed chemical for not more than ten years.

(f) Wrongful distribution or possession of listed chemicals

(1) Whoever knowingly distributes a listed chemical in violation of this subchapter (other than in violation of a recordkeeping or reporting requirement of section 830 of this title) shall, except to the extent that paragraph (12), (13), or (14) of section 842(a) of this title applies, be fined under Title 18 or imprisoned not more than 5 years, or both.

(2) Whoever possesses any listed chemical, with knowledge that the recordkeeping or reporting requirements of section 830 of this title have not been adhered to, if, after such knowledge is acquired, such person does not take immediate steps to remedy the violation shall be fined under Title 18 or imprisoned not more than one year, or both.

(g) Internet sales of date rape drugs

(1) Whoever knowingly uses the Internet to distribute a date rape drug to any person, knowing or with reasonable cause to believe that--

(A) the drug would be used in the commission of criminal sexual conduct; or

(B) the person is not an authorized purchaser;

shall be fined under this subchapter or imprisoned not more than 20 years, or both.

(2) As used in this subsection:

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(A) The term “date rape drug” means--

(i) gamma hydroxybutyric acid (GHB) or any controlled substance analogue of GHB, including gamma butyrolactone (GBL) or 1,4-butanediol;

(ii) ketamine;

(iii) flunitrazepam; or

(iv) any substance which the Attorney General designates, pursuant to the rulemaking procedures prescribed by section 553 of Title 5, to be used in committing rape or sexual assault.

The Attorney General is authorized to remove any substance from the list of date rape drugs pursuant to the same rulemaking authority.

(B) The term “authorized purchaser” means any of the following persons, provided such person has acquired the controlled substance in accordance with this chapter:

(i) A person with a valid prescription that is issued for a legitimate medical purpose in the usual course of professional practice that is based upon a qualifying medical relationship by a practitioner registered by the Attorney General. A “qualifying medical relationship” means a medical relationship that exists when the practitioner has conducted at least 1 medical evaluation with the authorized purchaser in the physical presence of the practitioner, without regard to whether portions of the evaluation are conducted by other heath 1 professionals. The preceding sentence shall not be construed to imply that 1 medical evaluation demonstrates that a prescription has been issued for a legitimate medical purpose within the usual course of professional practice.

(ii) Any practitioner or other registrant who is otherwise authorized by their registration to dispense, procure, purchase, manufacture, transfer, distribute, import, or export the substance under this chapter.

(iii) A person or entity providing documentation that establishes the name, address, and business of the person or entity and which provides a legitimate purpose for using any “date rape drug” for which a prescription is not required.

(3) The Attorney General is authorized to promulgate regulations for record-keeping and reporting by persons handling 1,4- butanediol in order to implement and enforce the provisions of this section. Any record or report required by such regulations shall be considered a record or report required under this chapter.

(h) Offenses involving dispensing of controlled substances by means of the Internet

(1) In general

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It shall be unlawful for any person to knowingly or intentionally--

(A) deliver, distribute, or dispense a controlled substance by means of the Internet, except as authorized by this subchapter; or

(B) aid or abet (as such terms are used in section 2 of Title 18) any activity described in subparagraph (A) that is not authorized by this subchapter.

(2) Examples

Examples of activities that violate paragraph (1) include, but are not limited to, knowingly or intentionally--

(A) delivering, distributing, or dispensing a controlled substance by means of the Internet by an online pharmacy that is not validly registered with a modification authorizing such activity as required by section 823(f) of this title (unless exempt from such registration);

(B) writing a prescription for a controlled substance for the purpose of delivery, distribution, or dispensation by means of the Internet in violation of section 829(e) of this title;

(C) serving as an agent, intermediary, or other entity that causes the Internet to be used to bring together a buyer and seller to engage in the dispensing of a controlled substance in a manner not authorized by sections 2 823(f) or 829(e) of this title;

(D) offering to fill a prescription for a controlled substance based solely on a consumer's completion of an online medical questionnaire; and

(E) making a material false, fictitious, or fraudulent statement or representation in a notification or declaration under subsection (d) or (e), respectively, of section 831 of this title.

(3) Inapplicability

(A) This subsection does not apply to--

(i) the delivery, distribution, or dispensation of controlled substances by nonpractitioners to the extent authorized by their registration under this subchapter;

(ii) the placement on the Internet of material that merely advocates the use of a controlled substance or includes pricing information without attempting to propose or facilitate an actual transaction involving a controlled substance; or

(iii) except as provided in subparagraph (B), any activity that is limited to--

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(I) the provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of Title 47); or

(II) the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of Title 47 shall not constitute such selection or alteration of the content of the communication.

(B) The exceptions under subclauses (I) and (II) of subparagraph (A)(iii) shall not apply to a person acting in concert with a person who violates paragraph (1).

(4) Knowing or intentional violation

Any person who knowingly or intentionally violates this subsection shall be sentenced in accordance with subsection (b).

CREDIT(S)

(Pub.L. 91-513, Title II, § 401, Oct. 27, 1970, 84 Stat. 1260; Pub.L. 95-633, Title II, § 201, Nov. 10, 1978, 92 Stat. 3774; Pub.L. 96-359, § 8(c), Sept. 26, 1980, 94 Stat. 1194; Pub.L. 98-473, Title II, §§ 224(a), 502, 503(b)(1), (2), Oct. 12, 1984, 98 Stat. 2030, 2068, 2070; Pub.L. 99-570, Title I, §§ 1002, 1003(a), 1004(a), 1005(a), 1103, Title XV, § 15005, Oct. 27, 1986, 100 Stat. 3207-2, 3207-5, 3207-6, 3207-11, 3207-192; Pub.L. 100-690, Title VI, §§ 6055, 6254(h), 6452(a), 6470(g), (h), 6479, Nov. 18, 1988, 102 Stat. 4318, 4367, 4371, 4378, 4381; Pub.L. 101-647, Title X, § 1002(e), Title XII, § 1202, Title XXXV, § 3599K, Nov. 29, 1990, 104 Stat. 4828, 4830, 4932; Pub.L. 103-322, Title IX, § 90105(a), (c), Title XVIII, § 180201(b)(2) (A), Sept. 13, 1994, 108 Stat. 1987, 1988, 2047; Pub.L. 104-237, Title II, § 206(a), Title III, § 302(a), Oct. 3, 1996, 110 Stat. 3103, 3105; Pub.L. 104-305, § 2(a), (b)(1), Oct. 13, 1996, 110 Stat. 3807; Pub.L. 105-277, Div. E, § 2(a), Oct. 21, 1998, 112 Stat. 2681-759; Pub.L. 106-172, §§ 3(b)(1), 5(b), 9, Feb. 18, 2000, 114 Stat. 9, 10, 13; Pub.L. 107-273, Div. B, Title III, § 3005(a), Title IV, § 4002(d)(2)(A), Nov. 2, 2002, 116 Stat. 1805, 1809; Pub.L. 109-177, Title VII, §§ 711(f)(1)(B), 732, Mar. 9, 2006, 120 Stat. 262, 270; Pub.L. 109-248, Title II, § 201, July 27, 2006, 120 Stat. 611; Pub.L. 110-425, § 3(e), (f), Oct. 15, 2008, 122 Stat. 4828, 4829; Pub.L. 111-220, §§ 2(a), 4(a), Aug. 3, 2010, 124 Stat. 2372; Pub.L. 115-391, Title IV, § 401(a) (2), Dec. 21, 2018, 132 Stat. 5220.)

Notes of Decisions (8020)

Footnotes 1 So in original. Probably should be “health”. 2 So in original. Probably should be “section”. 21 U.S.C.A. § 841, 21 USCA § 841 Current through P.L. 116-72.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

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(B) an order of a controlled substance deviating substantially from a normal pattern; and

(C) orders of controlled substances of unusual frequency.

(57) 1 The term “serious drug felony” means an offense described in section 924(e)(2) of Title 18 for which--

(A) the offender served a term of imprisonment of more than 12 months; and

(B) the offender's release from any term of imprisonment was within 15 years of the commencement of the instant offense.

(58) The term “serious violent felony” means--

(A) an offense described in section 3559(c)(2) of Title 18 for which the offender served a term of imprisonment of more than 12 months; and

(B) any offense that would be a felony violation of section 113 of Title 18, if the offense were committed in the special maritime and territorial jurisdiction of the United States, for which the offender served a term of imprisonment of more than 12 months.

CREDIT(S)

(Pub.L. 91-513, Title II, § 102, Oct. 27, 1970, 84 Stat. 1242; Pub.L. 93-281, § 2, May 14, 1974, 88 Stat. 124; Pub.L. 95-633, Title I, § 102(b), Nov. 10, 1978, 92 Stat. 3772; Pub.L. 96-88, Title V, § 509(b), Oct. 17, 1979, 93 Stat. 695; Pub.L. 96-132, § 16(a), Nov. 30, 1979, 93 Stat. 1049; Pub.L. 98-473, Title II, § 507(a), (b), Oct. 12, 1984, 98 Stat. 2071; Pub.L. 98-509, Title III, § 301(a), Oct. 19, 1984, 98 Stat. 2364; Pub.L. 99-514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub.L. 99-570, Title I, §§ 1003(b), 1203, 1870, Oct. 27, 1986, 100 Stat. 3207-6, 3207-13, 3207-56; Pub.L. 99-646, § 83, Nov. 10, 1986, 100 Stat. 3619; Pub.L. 100-690, Title VI, § 6054, Nov. 18, 1988, 102 Stat. 4316; Pub.L. 101-647, Title XIX, § 1902(b), Title XXIII, § 2301, Title XXXV, § 3599I, Nov. 29, 1990, 104 Stat. 4852, 4858, 4932; Pub.L. 103-200, §§ 2(a), 7 to 9(a), Dec. 17, 1993, 107 Stat. 2333, 2340; Pub.L. 103-322, Title IX, § 90105(d), Title XXXIII, § 330024(a), (b), (d)(1), Sept. 13, 1994, 108 Stat. 1988, 2150; Pub.L. 104-237, Title II, §§ 204(a), 209, Title IV, § 401(a), (b), Oct. 3, 1996, 110 Stat. 3102, 3104, 3106, 3107; Pub.L. 104-294, Title VI, §§ 604(b)(4), 607(j), Oct. 11, 1996, 110 Stat. 3506, 3512; Pub.L. 105-115, Title I, § 126(c)(3), Nov. 21, 1997, 111 Stat. 2328; Pub.L. 106-172, §§ 3(c), 5(a), Feb. 18, 2000, 114 Stat. 9, 10; Pub.L. 106-310, Div. B, Title XXXVI, § 3622(a), Oct. 17, 2000, 114 Stat. 1231; Pub.L. 107-273, Div. B, Title IV, § 4002(c)(1), Nov. 2, 2002, 116 Stat. 1808; Pub.L. 108-358, § 2(a), Oct. 22, 2004, 118 Stat. 1661; Pub.L. 109-162, Title XI, § 1180, Jan. 5, 2006, 119 Stat. 3126; Pub.L. 109-177, Title VII, §§ 711(a)(1), (2)(A), 712(a)(1), Mar. 9, 2006, 120 Stat. 256, 257, 263; Pub.L. 110-425, § 3(a), Oct. 15, 2008, 122 Stat. 4821; Pub.L. 113-260, § 2(a), Dec. 18, 2014, 128 Stat. 2929; Pub.L. 114-198, Title III, § 303(a)(2), July 22, 2016, 130 Stat. 722; Pub.L. 115-271, Title III, §§ 3202(c), 3292(a), Oct. 24, 2018, 132 Stat. 3945, 3956; Pub.L. 115-334, Title XII, § 12619(a), Dec. 20, 2018, 132 Stat. 5018; Pub.L. 115-391, Title IV, § 401(a)(1), Dec. 21, 2018, 132 Stat. 5220.)

Notes of Decisions (143)

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United States Code Annotated Title 18. Crimes and Criminal Procedure (Refs & Annos) Part I. Crimes (Refs & Annos) Chapter 44. Firearms (Refs & Annos)

18 U.S.C.A. § 924

§ 924. Penalties

Effective: December 21, 2018 Currentness

(a)(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever--

(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;

(B) knowingly violates subsection (a)(4), (f), (k), or (q) of section 922;

(C) knowingly imports or brings into the United States or any possession thereof any firearm or ammunition in violation of section 922(l); or

(D) willfully violates any other provision of this chapter, shall be fined under this title, imprisoned not more than five years, or both.

(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.

(3) Any licensed dealer, licensed importer, licensed manufacturer, or licensed collector who knowingly--

(A) makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or

(B) violates subsection (m) of section 922, shall be fined under this title, imprisoned not more than one year, or both.

(4) Whoever violates section 922(q) shall be fined under this title, imprisoned for not more than 5 years, or both. Notwithstanding any other provision of law, the term of imprisonment imposed under this paragraph shall not run concurrently with any other

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 FSA - 16 § 924. Penalties, 18 USCA § 924 term of imprisonment imposed under any other provision of law. Except for the authorization of a term of imprisonment of not more than 5 years made in this paragraph, for the purpose of any other law a violation of section 922(q) shall be deemed to be a misdemeanor.

(5) Whoever knowingly violates subsection (s) or (t) of section 922 shall be fined under this title, imprisoned for not more than 1 year, or both.

(6)(A)(i) A juvenile who violates section 922(x) shall be fined under this title, imprisoned not more than 1 year, or both, except that a juvenile described in clause (ii) shall be sentenced to probation on appropriate conditions and shall not be incarcerated unless the juvenile fails to comply with a condition of probation.

(ii) A juvenile is described in this clause if--

(I) the offense of which the juvenile is charged is possession of a handgun or ammunition in violation of section 922(x)(2); and

(II) the juvenile has not been convicted in any court of an offense (including an offense under section 922(x) or a similar State law, but not including any other offense consisting of conduct that if engaged in by an adult would not constitute an offense) or adjudicated as a juvenile delinquent for conduct that if engaged in by an adult would constitute an offense.

(B) A person other than a juvenile who knowingly violates section 922(x)--

(i) shall be fined under this title, imprisoned not more than 1 year, or both; and

(ii) if the person sold, delivered, or otherwise transferred a handgun or ammunition to a juvenile knowing or having reasonable cause to know that the juvenile intended to carry or otherwise possess or discharge or otherwise use the handgun or ammunition in the commission of a crime of violence, shall be fined under this title, imprisoned not more than 10 years, or both.

(7) Whoever knowingly violates section 931 shall be fined under this title, imprisoned not more than 3 years, or both.

(b) Whoever, with intent to commit therewith an offense punishable by imprisonment for a term exceeding one year, or with knowledge or reasonable cause to believe that an offense punishable by imprisonment for a term exceeding one year is to be committed therewith, ships, transports, or receives a firearm or any ammunition in interstate or foreign commerce shall be fined under this title, or imprisoned not more than ten years, or both.

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime--

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(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

(B) If the firearm possessed by a person convicted of a violation of this subsection--

(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

(C) In the case of a violation of this subsection that occurs after a prior conviction under this subsection has become final, the person shall--

(i) be sentenced to a term of imprisonment of not less than 25 years; and

(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.

(D) Notwithstanding any other provision of law--

(i) a court shall not place on probation any person convicted of a violation of this subsection; and

(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

(2) For purposes of this subsection, the term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.

(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and--

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

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(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(4) For purposes of this subsection, the term “brandish” means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.

(5) Except to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries armor piercing ammunition, or who, in furtherance of any such crime, possesses armor piercing ammunition, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime or conviction under this section--

(A) be sentenced to a term of imprisonment of not less than 15 years; and

(B) if death results from the use of such ammunition--

(i) if the killing is murder (as defined in section 1111), be punished by death or sentenced to a term of imprisonment for any term of years or for life; and

(ii) if the killing is manslaughter (as defined in section 1112), be punished as provided in section 1112.

(d)(1) Any firearm or ammunition involved in or used in any knowing violation of subsection (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of section 922, or knowing importation or bringing into the United States or any possession thereof any firearm or ammunition in violation of section 922(l), or knowing violation of section 924, or willful violation of any other provision of this chapter or any rule or regulation promulgated thereunder, or any violation of any other criminal law of the United States, or any firearm or ammunition intended to be used in any offense referred to in paragraph (3) of this subsection, where such intent is demonstrated by clear and convincing evidence, shall be subject to seizure and forfeiture, and all provisions of the Internal Revenue Code of 1986 relating to the seizure, forfeiture, and disposition of firearms, as defined in section 5845(a) of that Code, shall, so far as applicable, extend to seizures and forfeitures under the provisions of this chapter: Provided, That upon acquittal of the owner or possessor, or dismissal of the charges against him other than upon motion of the Government prior to trial, or lapse of or court termination of the restraining order to which he is subject, the seized or relinquished firearms or ammunition shall be returned forthwith to the owner or possessor or to a person delegated by the owner or possessor unless the return of the firearms or ammunition would place the owner or possessor or his delegate in violation of law. Any action or proceeding for the forfeiture of firearms or ammunition shall be commenced within one hundred and twenty days of such seizure.

(2)(A) In any action or proceeding for the return of firearms or ammunition seized under the provisions of this chapter, the court shall allow the prevailing party, other than the United States, a reasonable attorney's fee, and the United States shall be liable therefor.

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(B) In any other action or proceeding under the provisions of this chapter, the court, when it finds that such action was without foundation, or was initiated vexatiously, frivolously, or in bad faith, shall allow the prevailing party, other than the United States, a reasonable attorney's fee, and the United States shall be liable therefor.

(C) Only those firearms or quantities of ammunition particularly named and individually identified as involved in or used in any violation of the provisions of this chapter or any rule or regulation issued thereunder, or any other criminal law of the United States or as intended to be used in any offense referred to in paragraph (3) of this subsection, where such intent is demonstrated by clear and convincing evidence, shall be subject to seizure, forfeiture, and disposition.

(D) The United States shall be liable for attorneys' fees under this paragraph only to the extent provided in advance by appropriation Acts.

(3) The offenses referred to in paragraphs (1) and (2)(C) of this subsection are--

(A) any crime of violence, as that term is defined in section 924(c)(3) of this title;

(B) any offense punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.);

(C) any offense described in section 922(a)(1), 922(a)(3), 922(a)(5), or 922(b)(3) of this title, where the firearm or ammunition intended to be used in any such offense is involved in a pattern of activities which includes a violation of any offense described in section 922(a)(1), 922(a)(3), 922(a)(5), or 922(b)(3) of this title;

(D) any offense described in section 922(d) of this title where the firearm or ammunition is intended to be used in such offense by the transferor of such firearm or ammunition;

(E) any offense described in section 922(i), 922(j), 922(l), 922(n), or 924(b) of this title; and

(F) any offense which may be prosecuted in a court of the United States which involves the exportation of firearms or ammunition.

(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

(2) As used in this subsection--

(A) the term “serious drug offense” means--

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(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and

(C) the term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

(f) In the case of a person who knowingly violates section 922(p), such person shall be fined under this title, or imprisoned not more than 5 years, or both.

(g) Whoever, with the intent to engage in conduct which--

(1) constitutes an offense listed in section 1961(1),

(2) is punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46,

(3) violates any State law relating to any controlled substance (as defined in section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6))), or

(4) constitutes a crime of violence (as defined in subsection (c)(3)), travels from any State or foreign country into any other State and acquires, transfers, or attempts to acquire or transfer, a firearm in such other State in furtherance of such purpose, shall be imprisoned not more than 10 years, fined in accordance with this title, or both.

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(h) Whoever knowingly transfers a firearm, knowing that such firearm will be used to commit a crime of violence (as defined in subsection (c)(3)) or drug trafficking crime (as defined in subsection (c)(2)) shall be imprisoned not more than 10 years, fined in accordance with this title, or both.

(i)(1) A person who knowingly violates section 922(u) shall be fined under this title, imprisoned not more than 10 years, or both.

(2) Nothing contained in this subsection shall be construed as indicating an intent on the part of Congress to occupy the field in which provisions of this subsection operate to the exclusion of State laws on the same subject matter, nor shall any provision of this subsection be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this subsection.

(j) A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall--

(1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life; and

(2) if the killing is manslaughter (as defined in section 1112), be punished as provided in that section.

(k) A person who, with intent to engage in or to promote conduct that--

(1) is punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46;

(2) violates any law of a State relating to any controlled substance (as defined in section 102 of the Controlled Substances Act, 21 U.S.C. 802); or

(3) constitutes a crime of violence (as defined in subsection (c)(3)), smuggles or knowingly brings into the United States a firearm, or attempts to do so, shall be imprisoned not more than 10 years, fined under this title, or both.

(l) A person who steals any firearm which is moving as, or is a part of, or which has moved in, interstate or foreign commerce shall be imprisoned for not more than 10 years, fined under this title, or both.

(m) A person who steals any firearm from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall be fined under this title, imprisoned not more than 10 years, or both.

(n) A person who, with the intent to engage in conduct that constitutes a violation of section 922(a)(1)(A), travels from any State or foreign country into any other State and acquires, or attempts to acquire, a firearm in such other State in furtherance of such purpose shall be imprisoned for not more than 10 years.

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(o) A person who conspires to commit an offense under subsection (c) shall be imprisoned for not more than 20 years, fined under this title, or both; and if the firearm is a machinegun or destructive device, or is equipped with a firearm silencer or muffler, shall be imprisoned for any term of years or life.

(p) Penalties relating to secure gun storage or safety device.--

(1) In general.--

(A) Suspension or revocation of license; civil penalties.--With respect to each violation of section 922(z)(1) by a licensed manufacturer, licensed importer, or licensed dealer, the Secretary may, after notice and opportunity for hearing--

(i) suspend for not more than 6 months, or revoke, the license issued to the licensee under this chapter that was used to conduct the firearms transfer; or

(ii) subject the licensee to a civil penalty in an amount equal to not more than $2,500.

(B) Review.--An action of the Secretary under this paragraph may be reviewed only as provided under section 923(f).

(2) Administrative remedies.--The suspension or revocation of a license or the imposition of a civil penalty under paragraph (1) shall not preclude any administrative remedy that is otherwise available to the Secretary.

CREDIT(S)

(Added Pub.L. 90-351, Title IV, § 902, June 19, 1968, 82 Stat. 233; amended Pub.L. 90-618, Title I, § 102, Oct. 22, 1968, 82 Stat. 1223; Pub.L. 91-644, Title II, § 13, Jan. 2, 1971, 84 Stat. 1889; Pub.L. 98-473, Title II, §§ 223(a), 1005(a), Oct. 12, 1984, 98 Stat. 2028, 2138; Pub.L. 99-308, § 104(a), May 19, 1986, 100 Stat. 456; Pub.L. 99-514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub.L. 99-570, Title I, § 1402, Oct. 27, 1986, 100 Stat. 3207-39; Pub.L. 100-649, § 2(b), (f)(2)(B), (D), Nov. 10, 1988, 102 Stat. 3817, 3818; Pub.L. 100-690, Title VI, §§ 6211, 6212, 6451, 6460, 6462, Title VII, §§ 7056, 7060(a), Nov. 18, 1988, 102 Stat. 4359, 4360, 4371, 4373, 4374, 4402, 4403; Pub.L. 101-647, Title XI, § 1101, Title XVII, § 1702(b)(3), Title XXII, §§ 2203(d), 2204(c), Title XXXV, §§ 3526 to 3529, Nov. 29, 1990, 104 Stat. 4829, 4845, 4857, 4924; Pub.L. 103-159, Title I, § 102(c), Title III, § 302(d), Nov. 30, 1993, 107 Stat. 1541, 1545; Pub.L. 103-322, Title VI, § 60013, Title XI, §§ 110102(c), 110103(c), 110105(2), 110201(b), 110401(e), 110503, 110504(a), 110507, 110510, 110515(a), 110517, 110518(a), Title XXXIII, §§ 330002(h), 330003(f)(2), 330011(i), (j), 330016(1)(H), (K), (L), Sept. 13, 1994, 108 Stat. 1973, 1998, 1999, 2000, 2011, 2015, 2016, 2018, 2019, 2020, 2140, 2141, 2145, 2147; Pub.L. 104-294, Title VI, § 603(m)(1), (n) to (p)(1), (q) to (s), Oct. 11, 1996, 110 Stat. 3505; Pub.L. 105-386, § 1(a), Nov. 13, 1998, 112 Stat. 3469; Pub.L. 107-273, Div. B, Title IV, § 4002(d)(1)(E), Div. C, Title I, § 11009(e)(3), Nov. 2, 2002, 116 Stat. 1809, 1821; Pub.L. 109-92, §§ 5(c)(2), 6(b), Oct. 26, 2005, 119 Stat. 2100, 2102; Pub.L. 109-304, § 17(d)(3), Oct. 6, 2006, 120 Stat. 1707; Pub.L. 115-391, Title IV, § 403(a), Dec. 21, 2018, 132 Stat. 5221.)

AMENDMENT OF SECTION

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 FSA - 23 § 924. Penalties, 18 USCA § 924

VALIDITY

Notes of Decisions (4066)

18 U.S.C.A. § 924, 18 USCA § 924 Current through P.L. 116-68. Some statute sections may be more current, see credits for details.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

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United States Code Annotated Title 18. Crimes and Criminal Procedure (Refs & Annos) Part I. Crimes (Refs & Annos) Chapter 7. Assault

18 U.S.C.A. § 113

§ 113. Assaults within maritime and territorial jurisdiction

Effective: March 7, 2013 Currentness

(a) Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:

(1) Assault with intent to commit murder or a violation of section 2241 or 2242, by a fine under this title, imprisonment for not more than 20 years, or both.

(2) Assault with intent to commit any felony, except murder or a violation of section 2241 or 2242, by a fine under this title or imprisonment for not more than ten years, or both.

(3) Assault with a dangerous weapon, with intent to do bodily harm, by a fine under this title or imprisonment for not more than ten years, or both.

(4) Assault by striking, beating, or wounding, by a fine under this title or imprisonment for not more than 1 year, or both.

(5) Simple assault, by a fine under this title or imprisonment for not more than six months, or both, or if the victim of the assault is an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 1 year, or both.

(6) Assault resulting in serious bodily injury, by a fine under this title or imprisonment for not more than ten years, or both.

(7) Assault resulting in substantial bodily injury to a spouse or intimate partner, a dating partner, or an individual who has not attained the age of 16 years, by a fine under this title or imprisonment for not more than 5 years, or both.

(8) Assault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate, by a fine under this title, imprisonment for not more than 10 years, or both.

(b) Definitions.--In this section--

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(1) the term “substantial bodily injury” means bodily injury which involves--

(A) a temporary but substantial disfigurement; or

(B) a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty;

(2) the term “serious bodily injury” has the meaning given that term in section 1365 of this title;

(3) the terms “dating partner” and “spouse or intimate partner” have the meanings 1 given those terms in section 2266;

(4) the term “strangling” means intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim; and

(5) the term “suffocating” means intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of the person, the nose of the person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.

CREDIT(S)

(June 25, 1948, c. 645, 62 Stat. 689; Pub.L. 94-297, § 3, May 29, 1976, 90 Stat. 585; Pub.L. 99-646, § 87(c)(2), (3), Nov. 10, 1986, 100 Stat. 3623; Pub.L. 99-654, § 3(a)(2), (3), Nov. 14, 1986, 100 Stat. 3663; Pub.L. 103-322, Title XVII, § 170201(a)-(d), Title XXXII, § 320101(c), Title XXXIII, § 330016(2)(B), Sept. 13, 1994, 108 Stat. 2042, 2043, 2108, 2148; Pub.L. 104-294, Title VI, § 604(b)(7), (12)(B), Oct. 11, 1996, 110 Stat. 3507; Pub.L. 113-4, Title IX, § 906(a), Mar. 7, 2013, 127 Stat. 124.)

Notes of Decisions (365)

Footnotes 1 So in original. Probably should be “meaning”. 18 U.S.C.A. § 113, 18 USCA § 113 Current through P.L. 116-72.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

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United States Code Annotated Title 18. Crimes and Criminal Procedure (Refs & Annos) Part II. Criminal Procedure Chapter 227. Sentences (Refs & Annos) Subchapter A. General Provisions (Refs & Annos)

18 U.S.C.A. § 3559

§ 3559. Sentencing classification of offenses

Effective: July 27, 2006 Currentness

(a) Classification.--An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is--

(1) life imprisonment, or if the maximum penalty is death, as a Class A felony;

(2) twenty-five years or more, as a Class B felony;

(3) less than twenty-five years but ten or more years, as a Class C felony;

(4) less than ten years but five or more years, as a Class D felony;

(5) less than five years but more than one year, as a Class E felony;

(6) one year or less but more than six months, as a Class A misdemeanor;

(7) six months or less but more than thirty days, as a Class B misdemeanor;

(8) thirty days or less but more than five days, as a Class C misdemeanor; or

(9) five days or less, or if no imprisonment is authorized, as an infraction.

(b) Effect of classification.--Except as provided in subsection (c), an offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense.

(c) Imprisonment of certain violent felons.--

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(1) Mandatory life imprisonment.--Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if--

(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of--

(i) 2 or more serious violent felonies; or

(ii) one or more serious violent felonies and one or more serious drug offenses; and

(B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.

(2) Definitions.--For purposes of this subsection--

(A) the term “assault with intent to commit rape” means an offense that has as its elements engaging in physical contact with another person or using or brandishing a weapon against another person with intent to commit aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242);

(B) the term “arson” means an offense that has as its elements maliciously damaging or destroying any building, inhabited structure, vehicle, vessel, or real property by means of fire or an explosive;

(C) the term “extortion” means an offense that has as its elements the extraction of anything of value from another person by threatening or placing that person in fear of injury to any person or kidnapping of any person;

(D) the term “firearms use” means an offense that has as its elements those described in section 924(c) or 929(a), if the firearm was brandished, discharged, or otherwise used as a weapon and the crime of violence or drug trafficking crime during and relation to which the firearm was used was subject to prosecution in a court of the United States or a court of a State, or both;

(E) the term “kidnapping” means an offense that has as its elements the abduction, restraining, confining, or carrying away of another person by force or threat of force;

(F) the term “serious violent felony” means--

(i) a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111); manslaughter other than involuntary manslaughter (as described in section 1112); assault with intent to commit murder (as described in section 113(a)); assault with intent to commit rape; aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242); abusive sexual contact (as described in sections 2244(a)(1) and (a)(2));

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kidnapping; aircraft piracy (as described in section 46502 of Title 49); robbery (as described in section 2111, 2113, or 2118); carjacking (as described in section 2119); extortion; arson; firearms use; firearms possession (as described in section 924(c)); or attempt, conspiracy, or solicitation to commit any of the above offenses; and

(ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense;

(G) the term “State” means a State of the United States, the District of Columbia, and a commonwealth, territory, or possession of the United States; and

(H) the term “serious drug offense” means--

(i) an offense that is punishable under section 401(b)(1)(A) or 408 of the Controlled Substances Act (21 U.S.C. 841(b) (1)(A), 848) or section 1010(b)(1)(A) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)(1)(A)); or

(ii) an offense under State law that, had the offense been prosecuted in a court of the United States, would have been punishable under section 401(b)(1)(A) or 408 of the Controlled Substances Act (21 U.S.C. 841(b)(1)(A), 848) or section 1010(b)(1)(A) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)(1)(A)).

(3) Nonqualifying felonies.--

(A) Robbery in certain cases.--Robbery, an attempt, conspiracy, or solicitation to commit robbery; or an offense described in paragraph (2)(F)(ii) shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that--

(i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense; and

(ii) the offense did not result in death or serious bodily injury (as defined in section 1365) to any person.

(B) Arson in certain cases.--Arson shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that--

(i) the offense posed no threat to human life; and

(ii) the defendant reasonably believed the offense posed no threat to human life.

(4) Information filed by United States Attorney.--The provisions of section 411(a) of the Controlled Substances Act (21 U.S.C. 851(a)) shall apply to the imposition of sentence under this subsection.

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(5) Rule of construction.--This subsection shall not be construed to preclude imposition of the death penalty.

(6) Special provision for Indian country.--No person subject to the criminal jurisdiction of an Indian tribal government shall be subject to this subsection for any offense for which Federal jurisdiction is solely predicated on Indian country (as defined in section 1151) and which occurs within the boundaries of such Indian country unless the governing body of the tribe has elected that this subsection have effect over land and persons subject to the criminal jurisdiction of the tribe.

(7) Resentencing upon overturning of prior conviction.--If the conviction for a serious violent felony or serious drug offense that was a basis for sentencing under this subsection is found, pursuant to any appropriate State or Federal procedure, to be unconstitutional or is vitiated on the explicit basis of innocence, or if the convicted person is pardoned on the explicit basis of innocence, the person serving a sentence imposed under this subsection shall be resentenced to any sentence that was available at the time of the original sentencing.

(d) Death or imprisonment for crimes against children.--

(1) In general.--Subject to paragraph (2) and notwithstanding any other provision of law, a person who is convicted of a Federal offense that is a serious violent felony (as defined in subsection (c)) or a violation of section 2422, 2423, or 2251 shall, unless the sentence of death is imposed, be sentenced to imprisonment for life, if--

(A) the victim of the offense has not attained the age of 14 years;

(B) the victim dies as a result of the offense; and

(C) the defendant, in the course of the offense, engages in conduct described in section 3591(a)(2).

(2) Exception.--With respect to a person convicted of a Federal offense described in paragraph (1), the court may impose any lesser sentence that is authorized by law to take into account any substantial assistance provided by the defendant in the investigation or prosecution of another person who has committed an offense, in accordance with the Federal Sentencing Guidelines and the policy statements of the Federal Sentencing Commission pursuant to section 994(p) of title 28, or for other good cause.

(e) Mandatory life imprisonment for repeated sex offenses against children.--

(1) In general.--A person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim, unless the sentence of death is imposed.

(2) Definitions.--For the purposes of this subsection--

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(A) the term “Federal sex offense” means an offense under section 1591 (relating to sex trafficking of children), 2241 (relating to aggravated sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1) (relating to abusive sexual contact), 2245 (relating to sexual abuse resulting in death), 2251 (relating to sexual exploitation of children), 2251A (relating to selling or buying of children), 2422(b) (relating to coercion and enticement of a minor into prostitution), or 2423(a) (relating to transportation of minors);

(B) the term “State sex offense” means an offense under State law that is punishable by more than one year in prison and consists of conduct that would be a Federal sex offense if, to the extent or in the manner specified in the applicable provision of this title--

(i) the offense involved interstate or foreign commerce, or the use of the mails; or

(ii) the conduct occurred in any commonwealth, territory, or possession of the United States, within the special maritime and territorial jurisdiction of the United States, in a Federal prison, on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country (as defined in section 1151);

(C) the term “prior sex conviction” means a conviction for which the sentence was imposed before the conduct occurred constituting the subsequent Federal sex offense, and which was for a Federal sex offense or a State sex offense;

(D) the term “minor” means an individual who has not attained the age of 17 years; and

(E) the term “State” has the meaning given that term in subsection (c)(2).

(3) Nonqualifying felonies.--An offense described in section 2422(b) or 2423(a) shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that--

(A) the sexual act or activity was consensual and not for the purpose of commercial or pecuniary gain;

(B) the sexual act or activity would not be punishable by more than one year in prison under the law of the State in which it occurred; or

(C) no sexual act or activity occurred.

(f) Mandatory minimum terms of imprisonment for violent crimes against children.--A person who is convicted of a Federal offense that is a crime of violence against the person of an individual who has not attained the age of 18 years shall, unless a greater mandatory minimum sentence of imprisonment is otherwise provided by law and regardless of any maximum term of imprisonment otherwise provided for the offense--

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(1) if the crime of violence is murder, be imprisoned for life or for any term of years not less than 30, except that such person shall be punished by death or life imprisonment if the circumstances satisfy any of subparagraphs (A) through (D) of section 3591(a)(2) of this title;

(2) if the crime of violence is kidnapping (as defined in section 1201) or maiming (as defined in section 114), be imprisoned for life or any term of years not less than 25; and

(3) if the crime of violence results in serious bodily injury (as defined in section 1365), or if a dangerous weapon was used during and in relation to the crime of violence, be imprisoned for life or for any term of years not less than 10.

(g)(1) If a defendant who is convicted of a felony offense (other than offense of which an element is the false registration of a domain name) knowingly falsely registered a domain name and knowingly used that domain name in the course of that offense, the maximum imprisonment otherwise provided by law for that offense shall be doubled or increased by 7 years, whichever is less.

(2) As used in this section--

(A) the term “falsely registers” means registers in a manner that prevents the effective identification of or contact with the person who registers; and

(B) the term “domain name” has the meaning given that term is 1 section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”) (15 U.S.C. 1127).

CREDIT(S)

(Added Pub.L. 98-473, Title II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1991; amended Pub.L. 100-185, § 5, Dec. 11, 1987, 101 Stat. 1279; Pub.L. 100-690, Title VII, § 7041, Nov. 18, 1988, 102 Stat. 4399; Pub.L. 103-322, Title VII, § 70001, Sept. 13, 1994, 108 Stat. 1982; Pub.L. 105-314, Title V, § 501, Oct. 30, 1998, 112 Stat. 2980; Pub.L. 105-386, § 1(b), Nov. 13, 1998, 112 Stat. 3470; Pub.L. 108-21, Title I, § 106(a), Apr. 30, 2003, 117 Stat. 654; Pub.L. 108-482, Title II, § 204(a), Dec. 23, 2004, 118 Stat. 3917; Pub.L. 109-248, Title II, §§ 202, 206(c), July 27, 2006, 120 Stat. 612, 614.)

Notes of Decisions (91)

Footnotes 1 So in original. Probably should be the word “in”. 18 U.S.C.A. § 3559, 18 USCA § 3559 Current through P.L. 116-72.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 FSA - 32 § 851. Proceedings to establish prior convictions, 21 USCA § 851

United States Code Annotated Title 21. Food and Drugs (Refs & Annos) Chapter 13. Drug Abuse Prevention and Control (Refs & Annos) Subchapter I. Control and Enforcement Part D. Offenses and Penalties

21 U.S.C.A. § 851

§ 851. Proceedings to establish prior convictions

Currentness

(a) Information filed by United States Attorney

(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.

(2) An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.

(b) Affirmation or denial of previous conviction

If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

(c) Denial; written response; hearing

(1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the United States attorney. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. The failure of the United States attorney to include in the information the complete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by subsection (a)(1). The hearing shall be before the court without a jury and either party may introduce evidence. Except as otherwise provided in paragraph (2) of this subsection, the United States attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the court shall enter findings of fact and conclusions of law.

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(2) A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge.

(d) Imposition of sentence

(1) If the person files no response to the information, or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions, the court shall proceed to impose sentence upon him as provided by this part.

(2) If the court determines that the person has not been convicted as alleged in the information, that a conviction alleged in the information is invalid, or that the person is otherwise not subject to an increased sentence as a matter of law, the court shall, at the request of the United States attorney, postpone sentence to allow an appeal from that determination. If no such request is made, the court shall impose sentence as provided by this part. The person may appeal from an order postponing sentence as if sentence had been pronounced and a final judgment of conviction entered.

(e) Statute of limitations

No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.

CREDIT(S)

(Pub.L. 91-513, Title II, § 411, Oct. 27, 1970, 84 Stat. 1269.)

Notes of Decisions (277)

21 U.S.C.A. § 851, 21 USCA § 851 Current through P.L. 116-72.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 FSA - 34 § 3553. Imposition of a sentence, 18 USCA § 3553

United States Code Annotated Title 18. Crimes and Criminal Procedure (Refs & Annos) Part II. Criminal Procedure Chapter 227. Sentences (Refs & Annos) Subchapter A. General Provisions (Refs & Annos)

18 U.S.C.A. § 3553

§ 3553. Imposition of a sentence

Effective: December 21, 2018 Currentness

(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider--

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for--

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines--

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

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(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement--

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced. 1

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

(b) Application of guidelines in imposing a sentence.--

(1) In general.--Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.

(2) Child crimes and sexual offenses.--

(A) 2 Sentencing.--In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless--

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(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described;

(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that--

(I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking account of any amendments to such sentencing guidelines or policy statements by Congress;

(II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and

(III) should result in a sentence different from that described; or

(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence lower than that described.

In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.

(c) Statement of reasons for imposing a sentence.--The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence--

(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or

(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form issued under section 994(w)(1)(B) of title 28, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statements were so received and that it relied upon the content of such statements.

If the court does not order restitution, or orders only partial restitution, the court shall include in the statement the reason therefor. The court shall provide a transcription or other appropriate public record of the court's statement of reasons, together with the

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 FSA - 37 § 3553. Imposition of a sentence, 18 USCA § 3553 order of judgment and commitment, to the Probation System and to the Sentencing Commission,, 3 and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.

(d) Presentence procedure for an order of notice.--Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall--

(1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;

(2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and

(3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.

Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.

(e) Limited authority to impose a sentence below a statutory minimum.--Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

(f) Limitation on applicability of statutory minimums in certain cases.--Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846), section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that--

(1) the defendant does not have--

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

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(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.

(g) Definition of violent offense.--As used in this section, the term “violent offense” means a crime of violence, as defined in section 16, that is punishable by imprisonment.

CREDIT(S)

(Added Pub.L. 98-473, Title II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1989; amended Pub.L. 99-570, Title I, § 1007(a), Oct. 27, 1986, 100 Stat. 3207-7; Pub.L. 99-646, §§ 8(a), 9(a), 80(a), 81(a), Nov. 10, 1986, 100 Stat. 3593, 3619; Pub.L. 100-182, §§ 3, 16(a), 17, Dec. 7, 1987, 101 Stat. 1266, 1269, 1270; Pub.L. 100-690, Title VII, § 7102, Nov. 18, 1988, 102 Stat. 4416; Pub.L. 103-322, Title VIII, § 80001(a), Title XXVIII, § 280001, Sept. 13, 1994, 108 Stat. 1985, 2095; Pub.L. 104-294, Title VI, § 601(b)(5), (6), (h), Oct. 11, 1996, 110 Stat. 3499, 3500; Pub.L. 107-273, Div. B, Title IV, § 4002(a)(8), Nov. 2, 2002, 116 Stat. 1807; Pub.L. 108-21, Title IV, § 401(a), (c), (j)(5), Apr. 30, 2003, 117 Stat. 667, 669, 673; Pub.L. 111-174, § 4, May 27, 2010, 124 Stat. 1216; Pub.L. 115-391, Title IV, § 402(a), Dec. 21, 2018, 132 Stat. 5221.)

VALIDITY

Notes of Decisions (2709)

Footnotes 1 So in original. The period probably should be a semicolon. 2 So in original. No subpar. (B) has been enacted. 3 So in original. The second comma probably should not appear.

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United States Code Annotated Title 18. Crimes and Criminal Procedure (Refs & Annos) Part II. Criminal Procedure Chapter 227. Sentences (Refs & Annos) Subchapter D. Imprisonment (Refs & Annos)

18 U.S.C.A. § 3582

§ 3582. Imposition of a sentence of imprisonment

Effective: December 21, 2018 Currentness

(a) Factors to be considered in imposing a term of imprisonment.--The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. In determining whether to make a recommendation concerning the type of prison facility appropriate for the defendant, the court shall consider any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2).

(b) Effect of finality of judgment.--Notwithstanding the fact that a sentence to imprisonment can subsequently be--

(1) modified pursuant to the provisions of subsection (c);

(2) corrected pursuant to the provisions of rule 35 of the Federal Rules of Criminal Procedure and section 3742; or

(3) appealed and modified, if outside the guideline range, pursuant to the provisions of section 3742; a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.

(c) Modification of an imposed term of imprisonment.--The court may not modify a term of imprisonment once it has been imposed except that--

(1) in any case--

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that--

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(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and

(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; and

(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

(d) Notification requirements.--

(1) Terminal illness defined.--In this subsection, the term “terminal illness” means a disease or condition with an end-of- life trajectory.

(2) Notification.--The Bureau of Prisons shall, subject to any applicable confidentiality requirements--

(A) in the case of a defendant diagnosed with a terminal illness--

(i) not later than 72 hours after the diagnosis notify the defendant's attorney, partner, and family members of the defendant's condition and inform the defendant's attorney, partner, and family members that they may prepare and submit on the defendant's behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);

(ii) not later than 7 days after the date of the diagnosis, provide the defendant's partner and family members (including extended family) with an opportunity to visit the defendant in person;

(iii) upon request from the defendant or his attorney, partner, or a family member, ensure that Bureau of Prisons employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction pursuant to subsection (c)(1)(A); and

(iv) not later than 14 days of receipt of a request for a sentence reduction submitted on the defendant's behalf by the defendant or the defendant's attorney, partner, or family member, process the request;

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(B) in the case of a defendant who is physically or mentally unable to submit a request for a sentence reduction pursuant to subsection (c)(1)(A)--

(i) inform the defendant's attorney, partner, and family members that they may prepare and submit on the defendant's behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);

(ii) accept and process a request for sentence reduction that has been prepared and submitted on the defendant's behalf by the defendant's attorney, partner, or family member under clause (i); and

(iii) upon request from the defendant or his attorney, partner, or family member, ensure that Bureau of Prisons employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction pursuant to subsection (c)(1)(A); and

(C) ensure that all Bureau of Prisons facilities regularly and visibly post, including in prisoner handbooks, staff training materials, and facility law libraries and medical and hospice facilities, and make available to prisoners upon demand, notice of--

(i) a defendant's ability to request a sentence reduction pursuant to subsection (c)(1)(A);

(ii) the procedures and timelines for initiating and resolving requests described in clause (i); and

(iii) the right to appeal a denial of a request described in clause (i) after all administrative rights to appeal within the Bureau of Prisons have been exhausted.

(3) Annual report.--Not later than 1 year after the date of enactment of this subsection, and once every year thereafter, the Director of the Bureau of Prisons shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on requests for sentence reductions pursuant to subsection (c)(1)(A), which shall include a description of, for the previous year--

(A) the number of prisoners granted and denied sentence reductions, categorized by the criteria relied on as the grounds for a reduction in sentence;

(B) the number of requests initiated by or on behalf of prisoners, categorized by the criteria relied on as the grounds for a reduction in sentence;

(C) the number of requests that Bureau of Prisons employees assisted prisoners in drafting, preparing, or submitting, categorized by the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request;

(D) the number of requests that attorneys, partners, or family members submitted on a defendant's behalf, categorized by the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request;

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(E) the number of requests approved by the Director of the Bureau of Prisons, categorized by the criteria relied on as the grounds for a reduction in sentence;

(F) the number of requests denied by the Director of the Bureau of Prisons and the reasons given for each denial, categorized by the criteria relied on as the grounds for a reduction in sentence;

(G) for each request, the time elapsed between the date the request was received by the warden and the final decision, categorized by the criteria relied on as the grounds for a reduction in sentence;

(H) for each request, the number of prisoners who died while their request was pending and, for each, the amount of time that had elapsed between the date the request was received by the Bureau of Prisons, categorized by the criteria relied on as the grounds for a reduction in sentence;

(I) the number of Bureau of Prisons notifications to attorneys, partners, and family members of their right to visit a terminally ill defendant as required under paragraph (2)(A)(ii) and, for each, whether a visit occurred and how much time elapsed between the notification and the visit;

(J) the number of visits to terminally ill prisoners that were denied by the Bureau of Prisons due to security or other concerns, and the reasons given for each denial; and

(K) the number of motions filed by defendants with the court after all administrative rights to appeal a denial of a sentence reduction had been exhausted, the outcome of each motion, and the time that had elapsed between the date the request was first received by the Bureau of Prisons and the date the defendant filed the motion with the court.

(e) Inclusion of an order to limit criminal association of organized crime and drug offenders.--The court, in imposing a sentence to a term of imprisonment upon a defendant convicted of a felony set forth in chapter 95 (racketeering) or 96 (racketeer influenced and corrupt organizations) of this title or in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 801 et seq.), or at any time thereafter upon motion by the Director of the Bureau of Prisons or a United States attorney, may include as a part of the sentence an order that requires that the defendant not associate or communicate with a specified person, other than his attorney, upon a showing of probable cause to believe that association or communication with such person is for the purpose of enabling the defendant to control, manage, direct, finance, or otherwise participate in an illegal enterprise.

CREDIT(S)

(Added Pub.L. 98-473, Title II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1998; amended Pub.L. 100-690, Title VII, § 7107, Nov. 18, 1988, 102 Stat. 4418; Pub.L. 101-647, Title XXXV, § 3588, Nov. 29, 1990, 104 Stat. 4930; Pub.L. 103-322, Title VII, § 70002, Sept. 13, 1994, 108 Stat. 1984; Pub.L. 104-294, Title VI, § 604(b)(3), Oct. 11, 1996, 110 Stat. 3506; Pub.L. 107-273, Div. B, Title III, § 3006, Nov. 2, 2002, 116 Stat. 1806; Pub.L. 115-391, Title VI, § 603(b), Dec. 21, 2018, 132 Stat. 5239.)

Notes of Decisions (649)

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United States Code Annotated Title 18. Crimes and Criminal Procedure (Refs & Annos) Part II. Criminal Procedure Chapter 229. Postsentence Administration (Refs & Annos) Subchapter C. Imprisonment

18 U.S.C.A. § 3624

§ 3624. Release of a prisoner

Effective: July 19, 2019 Currentness

(a) Date of release.--A prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment, less any time credited toward the service of the prisoner's sentence as provided in subsection (b). If the date for a prisoner's release falls on a Saturday, a Sunday, or a legal holiday at the place of confinement, the prisoner may be released by the Bureau on the last preceding weekday.

(b) Credit toward service of sentence for satisfactory behavior.--

(1) Subject to paragraph (2), a prisoner who is serving a term of imprisonment of more than 1 year 1 other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, of up to 54 days for each year of the prisoner's sentence imposed by the court, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. Subject to paragraph (2), if the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines to be appropriate. In awarding credit under this section, the Bureau shall consider whether the prisoner, during the relevant period, has earned, or is making satisfactory progress toward earning, a high school diploma or an equivalent degree. Credit that has not been earned may not later be granted. Subject to paragraph (2), credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment.

(2) Notwithstanding any other law, credit awarded under this subsection after the date of enactment of the Prison Litigation Reform Act shall vest on the date the prisoner is released from custody.

(3) The Attorney General shall ensure that the Bureau of Prisons has in effect an optional General Educational Development program for inmates who have not earned a high school diploma or its equivalent.

(4) Exemptions to the General Educational Development requirement may be made as deemed appropriate by the Director of the Federal Bureau of Prisons.

(c) Prerelease custody.--

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(1) In general.--The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility.

(2) Home confinement authority.--The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.

(3) Assistance.--The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during prerelease custody under this subsection.

(4) No limitations.--Nothing in this subsection shall be construed to limit or restrict the authority of the Director of the Bureau of Prisons under section 3621.

(5) Reporting.--Not later than 1 year after the date of the enactment of the Second Chance Act of 2007 (and every year thereafter), the Director of the Bureau of Prisons shall transmit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report describing the Bureau's utilization of community corrections facilities. Each report under this paragraph shall set forth the number and percentage of Federal prisoners placed in community corrections facilities during the preceding year, the average length of such placements, trends in such utilization, the reasons some prisoners are not placed in community corrections facilities, and number of prisoners not being placed in community corrections facilities for each reason set forth, and any other information that may be useful to the committees in determining if the Bureau is utilizing community corrections facilities in an effective manner.

(6) Issuance of regulations.--The Director of the Bureau of Prisons shall issue regulations pursuant to this subsection not later than 90 days after the date of the enactment of the Second Chance Reauthorization Act of 2018, which shall ensure that placement in a community correctional facility by the Bureau of Prisons is--

(A) conducted in a manner consistent with section 3621(b) of this title;

(B) determined on an individual basis; and

(C) of sufficient duration to provide the greatest likelihood of successful reintegration into the community.

(d) Allotment of clothing, funds, and transportation.--Upon the release of a prisoner on the expiration of the prisoner's term of imprisonment, the Bureau of Prisons shall furnish the prisoner with--

(1) suitable clothing;

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(2) an amount of money, not more than $500, determined by the Director to be consistent with the needs of the offender and the public interest, unless the Director determines that the financial position of the offender is such that no sum should be furnished; and

(3) transportation to the place of the prisoner's conviction, to the prisoner's bona fide residence within the United States, or to such other place within the United States as may be authorized by the Director.

(e) Supervision after release.--A prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court. The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days. Upon the release of a prisoner by the Bureau of Prisons to supervised release, the Bureau of Prisons shall notify such prisoner, verbally and in writing, of the requirement that the prisoner adhere to an installment schedule, not to exceed 2 years except in special circumstances, to pay for any fine imposed for the offense committed by such prisoner, and of the consequences of failure to pay such fines under sections 3611 through 3614 of this title.

(f) Mandatory functional literacy requirement.--

(1) The Attorney General shall direct the Bureau of Prisons to have in effect a mandatory functional literacy program for all mentally capable inmates who are not functionally literate in each Federal correctional institution within 6 months from the date of the enactment of this Act.

(2) Each mandatory functional literacy program shall include a requirement that each inmate participate in such program for a mandatory period sufficient to provide the inmate with an adequate opportunity to achieve functional literacy, and appropriate incentives which lead to successful completion of such programs shall be developed and implemented.

(3) As used in this section, the term “functional literacy” means--

(A) an eighth grade equivalence in reading and mathematics on a nationally recognized standardized test;

(B) functional competency or literacy on a nationally recognized criterion-referenced test; or

(C) a combination of subparagraphs (A) and (B).

(4) Non-English speaking inmates shall be required to participate in an English-As-A-Second-Language program until they function at the equivalence of the eighth grade on a nationally recognized educational achievement test.

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(5) The Chief Executive Officer of each institution shall have authority to grant waivers for good cause as determined and documented on an individual basis.

(g) Prerelease custody or supervised release for risk and needs assessment system participants.--

(1) Eligible prisoners.--This subsection applies in the case of a prisoner (as such term is defined in section 3635) who--

(A) has earned time credits under the risk and needs assessment system developed under subchapter D (referred to in this subsection as the “System”) in an amount that is equal to the remainder of the prisoner's imposed term of imprisonment;

(B) has shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment;

(C) has had the remainder of the prisoner's imposed term of imprisonment computed under applicable law; and

(D)(i) in the case of a prisoner being placed in prerelease custody, the prisoner--

(I) has been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the prisoner; or

(II) has had a petition to be transferred to prerelease custody or supervised release approved by the warden of the prison, after the warden's determination that--

(aa) the prisoner would not be a danger to society if transferred to prerelease custody or supervised release;

(bb) the prisoner has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and

(cc) the prisoner is unlikely to recidivate; or

(ii) in the case of a prisoner being placed in supervised release, the prisoner has been determined under the System to be a minimum or low risk to recidivate pursuant to the last reassessment of the prisoner.

(2) Types of prerelease custody.--A prisoner shall be placed in prerelease custody as follows:

(A) Home confinement.--

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(i) In general.--A prisoner placed in prerelease custody pursuant to this subsection who is placed in home confinement shall--

(I) be subject to 24-hour electronic monitoring that enables the prompt identification of the prisoner, location, and time, in the case of any violation of subclause (II);

(II) remain in the prisoner's residence, except that the prisoner may leave the prisoner's home in order to, subject to the approval of the Director of the Bureau of Prisons--

(aa) perform a job or job-related activities, including an apprenticeship, or participate in job-seeking activities;

(bb) participate in evidence-based recidivism reduction programming or productive activities assigned by the System, or similar activities;

(cc) perform community service;

(dd) participate in crime victim restoration activities;

(ee) receive medical treatment;

(ff) attend religious activities; or

(gg) participate in other family-related activities that facilitate the prisoner's successful reentry such as a family funeral, a family wedding, or to visit a family member who is seriously ill; and

(III) comply with such other conditions as the Director determines appropriate.

(ii) Alternate means of monitoring.--If the electronic monitoring of a prisoner described in clause (i)(I) is infeasible for technical or religious reasons, the Director of the Bureau of Prisons may use alternative means of monitoring a prisoner placed in home confinement that the Director determines are as effective or more effective than the electronic monitoring described in clause (i)(I).

(iii) Modifications.--The Director of the Bureau of Prisons may modify the conditions described in clause (i) if the Director determines that a compelling reason exists to do so, and that the prisoner has demonstrated exemplary compliance with such conditions.

(iv) Duration.--Except as provided in paragraph (4), a prisoner who is placed in home confinement shall remain in home confinement until the prisoner has served not less than 85 percent of the prisoner's imposed term of imprisonment.

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(B) Residential reentry center.--A prisoner placed in prerelease custody pursuant to this subsection who is placed at a residential reentry center shall be subject to such conditions as the Director of the Bureau of Prisons determines appropriate.

(3) Supervised release.--If the sentencing court included as a part of the prisoner's sentence a requirement that the prisoner be placed on a term of supervised release after imprisonment pursuant to section 3583, the Director of the Bureau of Prisons may transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632.

(4) Determination of conditions.--In determining appropriate conditions for prisoners placed in prerelease custody pursuant to this subsection, the Director of the Bureau of Prisons shall, to the extent practicable, provide that increasingly less restrictive conditions shall be imposed on prisoners who demonstrate continued compliance with the conditions of such prerelease custody, so as to most effectively prepare such prisoners for reentry.

(5) Violations of conditions.--If a prisoner violates a condition of the prisoner's prerelease custody, the Director of the Bureau of Prisons may impose such additional conditions on the prisoner's prerelease custody as the Director of the Bureau of Prisons determines appropriate, or revoke the prisoner's prerelease custody and require the prisoner to serve the remainder of the term of imprisonment to which the prisoner was sentenced, or any portion thereof, in prison. If the violation is nontechnical in nature, the Director of the Bureau of Prisons shall revoke the prisoner's prerelease custody.

(6) Issuance of guidelines.--The Attorney General, in consultation with the Assistant Director for the Office of Probation and Pretrial Services, shall issue guidelines for use by the Bureau of Prisons in determining--

(A) the appropriate type of prerelease custody or supervised release and level of supervision for a prisoner placed on prerelease custody pursuant to this subsection; and

(B) consequences for a violation of a condition of such prerelease custody by such a prisoner, including a return to prison and a reassessment of evidence-based recidivism risk level under the System.

(7) Agreements with United States Probation and Pretrial Services.--The Director of the Bureau of Prisons shall, to the greatest extent practicable, enter into agreements with United States Probation and Pretrial Services to supervise prisoners placed in home confinement under this subsection. Such agreements shall--

(A) authorize United States Probation and Pretrial Services to exercise the authority granted to the Director pursuant to paragraphs (3) and (4); and

(B) take into account the resource requirements of United States Probation and Pretrial Services as a result of the transfer of Bureau of Prisons prisoners to prerelease custody or supervised release.

(8) Assistance.--United States Probation and Pretrial Services shall, to the greatest extent practicable, offer assistance to any prisoner not under its supervision during prerelease custody under this subsection.

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(9) Mentoring, reentry, and spiritual services.--Any prerelease custody into which a prisoner is placed under this subsection may not include a condition prohibiting the prisoner from receiving mentoring, reentry, or spiritual services from a person who provided such services to the prisoner while the prisoner was incarcerated, except that the warden of the facility at which the prisoner was incarcerated may waive the requirement under this paragraph if the warden finds that the provision of such services would pose a significant security risk to the prisoner, persons who provide such services, or any other person. The warden shall provide written notice of any such waiver to the person providing such services and to the prisoner.

(10) Time limits inapplicable.--The time limits under subsections (b) and (c) shall not apply to prerelease custody under this subsection.

(11) Prerelease custody capacity.--The Director of the Bureau of Prisons shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.

CREDIT(S)

(Added Pub.L. 98-473, Title II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 2008; amended Pub.L. 99-646, §§ 16(a), 17(a), Nov. 10, 1986, 100 Stat. 3595; Pub.L. 101-647, Title XXIX, §§ 2902(a), 2904, Nov. 29, 1990, 104 Stat. 4913; Pub.L. 103-322, Title II, §§ 20405, 20412, Sept. 13, 1994, 108 Stat. 1825, 1828; Pub.L. 104-66, Title I, § 1091(c), Dec. 21, 1995, 109 Stat. 722; Pub.L. 104-134, Title I, § 101[(a)][Title VIII, § 809(c)], Apr. 26, 1996, 110 Stat.1321-76; renumbered Title I, Pub.L. 104-140, § 1(a), May 2, 1996, 110 Stat. 1327; Pub.L. 110-177, Title V, § 505, Jan. 7, 2008, 121 Stat. 2542; Pub.L. 110-199, Title II, § 251(a), Apr. 9, 2008, 122 Stat. 692; Pub.L. 115-391, Title I, § 102(b)(1),Title V, § 504(c), Title VI, § 602, Dec. 21, 2018, 132 Stat. 5210, 5233, 5238.)

Notes of Decisions (136)

Footnotes 1 So in original. Probably should be followed by a comma. 18 U.S.C.A. § 3624, 18 USCA § 3624 Current through P.L. 116-72.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 FSA - 50 Sentence Good Sentence Good Sentence in Actual Time to Serve Sentence in Actual Time to Serve in Time in in Time in Months years months Days years months days Months years months Days years months days 1 014* 0 0 26* 60 50270 433 2 029* 0 1 21* 61 5 1 274 4330 3 0313* 0 2 17* 62 5 2 279 4425 4 0418* 0 3 12* 63 5 3 283 4521 5 0522* 048* 64 5 4 288 4616 6 0627* 053* 65 5 5 292 4712 7 0731* 0 5 29* 66 5 6 297 487 8 0836* 0 6 24* 67 5 7 301 493 9 0940* 0 7 20* 68 5 8 306 4928 10 01045* 0 8 15* 69 5 9 310 41024 11 01149* 0 9 11* 70 5 10 315 41119 12 1054* 0106* 71 5 11 319 5015 12m 1d 012540107 72 6 0 324 5110 13 11580112 73 6 1 328 526 14 126301128 74 6 2 333 531 15 13671024 75 6 3 337 5328 16 14721119 76 6 4 342 5423 17 15761215 77 6 5 346 5519 18 16811310 78 6 6 351 5614 19 1785146 79 6 7 355 5710 20 1890151 80 6 8 360 585 21 19941527 81 6 9 364 591 22 110991622 82 6 10 369 5926 23 1 11 103 1718 83 6 11 373 51022 24 2 0 108 1813 84 7 0 378 51117 25 2 1 112 199 85 7 1 382 6013 26 2 2 117 1104 86 7 2 387 618 27 2 3 121 1110 87 7 3 391 624 28 2 4 126 11126 88 7 4 396 6230 29 2 5 130 2022 89 7 5 400 6326 30 2 6 135 2117 90 7 6 405 6421 31 2 7 139 2213 91 7 7 409 6517 32 2 8 144 238 92 7 8 414 6612 33 2 9 148 244 93 7 9 418 678 34 2 10 153 2429 94 7 10 423 683 35 2 11 157 2525 95 7 11 427 6829 36 3 0 162 2620 96 8 0 432 6924 37 3 1 166 2716 97 8 1 436 61020 38 3 2 171 2811 98 8 2 441 61115 39 3 3 175 297 99 8 3 445 7011 40 3 4 180 2102 100 8 4 450 716 41 3 5 184 21029 101 8 5 454 722 42 3 6 189 21124 102 8 6 459 7228 43 3 7 193 3020 103 8 7 463 7324 44 3 8 198 3115 104 8 8 468 7419 45 3 9 202 3211 105 8 9 472 7515 46 3 10 207 336 106 8 10 477 7610 47 3 11 211 342 107 8 11 481 776 48 4 0 216 3427 108 9 0 486 781 49 4 1 220 3523 109 9 1 490 7827 50 4 2 225 3618 110 9 2 495 7922 51 4 3 229 3714 111 9 3 499 71018 52 4 4 234 389 112 9 4 504 71113 53 4 5 238 395 113 9 5 508 809 54 4 6 243 3100 114 9 6 513 814 55 4 7 247 31026 115 9 7 517 820 56 4 8 252 31121 116 9 8 522 8225 57 4 9 256 4017 117 9 9 526 8321 58 4 10 261 4112 118 9 10 531 8416 59 4 11 265 428 119 9 11 535 8512 FSA - 51 Sentence Good Sentence Good Sentence in Actual Time to Serve Sentence in Actual Time to Serve in Time in in Time in Months years months Days years months days Months years months Days years months days 120 10 0 540 867 180 15 0 810 12 9 11 121 10 1 544 873 181 15 1 814 12 10 7 122 10 2 549 8729 182 15 2 819 12 11 2 123 10 3 553 8825 183 15 3 823 12 11 29 124 10 4 558 8920 184 15 4 828 13 0 24 125 10 5 562 81016 185 15 5 832 13 1 20 126 10 6 567 81111 186 15 6 837 13 2 15 127 10 7 571 907 187 15 7 841 13 3 11 128 10 8 576 912 188 15 8 846 13 4 6 129 10 9 580 9128 189 15 9 850 13 5 2 130 10 10 585 9223 190 15 10 855 13 5 27 131 10 11 589 9319 191 15 11 859 13 6 23 132 11 0 594 9414 192 16 0 864 13 7 18 133 11 1 598 9510 193 16 1 868 13 8 14 134 11 2 603 965 194 16 2 873 13 9 9 135 11 3 607 971 195 16 3 877 13 10 5 136 11 4 612 9727 196 16 4 882 13 11 0 137 11 5 616 9823 197 16 5 886 13 11 27 138 11 6 621 9918 198 16 6 891 14 0 22 139 11 7 625 91014 199 16 7 895 14 1 18 140 11 8 630 9119 200 16 8 900 14 2 13 141 11 9 634 10 0 5 201 16 9 904 14 3 9 142 11 10 639 10 1 0 202 16 10 909 14 4 4 143 11 11 643 10 1 26 203 16 11 913 14 5 0 144 12 0 648 10 2 21 204 17 0 918 14 5 25 145 12 1 652 10 3 17 205 17 1 922 14 6 21 146 12 2 657 10 4 12 206 17 2 927 14 7 16 147 12 3 661 10 5 8 207 17 3 931 14 8 12 148 12 4 666 10 6 3 208 17 4 936 14 9 7 149 12 5 670 10 6 30 209 17 5 940 14 10 3 150 12 6 675 10 7 25 210 17 6 945 14 10 29 151 12 7 679 10 8 21 211 17 7 949 14 11 24 152 12 8 684 10 9 16 212 17 8 954 15 0 20 153 12 9 688 10 10 12 213 17 9 958 15 1 15 154 12 10 693 10 11 7 214 17 10 963 15 2 11 155 12 11 697 11 0 3 215 17 11 967 15 3 6 156 13 0 702 11 0 28 216 18 0 972 15 4 2 157 13 1 706 11 1 24 217 18 1 976 15 4 28 158 13 2 711 11 2 19 218 18 2 981 15 5 23 159 13 3 715 11 3 15 219 18 3 985 15 6 19 160 13 4 720 11 4 10 220 18 4 990 15 7 14 161 13 5 724 11 5 6 221 18 5 994 15 8 10 162 13 6 729 11 6 1 222 18 6 999 15 9 5 163 13 7 733 11 6 27 223 18 7 1003 15 10 1 164 13 8 738 11 7 22 224 18 8 1008 15 10 26 165 13 9 742 11 8 18 225 18 9 1012 15 11 22 166 13 10 747 11 9 13 226 18 10 1017 16 0 17 167 13 11 751 11 10 9 227 18 11 1021 16 1 13 168 14 0 756 11 11 4 228 19 0 1026 16 2 8 169 14 1 760 12 0 0 229 19 1 1030 16 3 4 170 14 2 765 12 0 26 230 19 2 1035 16 3 30 171 14 3 769 12 1 22 231 19 3 1039 16 4 26 172 14 4 774 12 2 17 232 19 4 1044 16 5 21 173 14 5 778 12 3 13 233 19 5 1048 16 6 17 174 14 6 783 12 4 8 234 19 6 1053 16 7 12 175 14 7 787 12 5 4 235 19 7 1057 16 8 8 176 14 8 792 12 5 29 236 19 8 1062 16 9 3 177 14 9 796 12 6 25 237 19 9 1066 16 9 29 178 14 10 801 12 7 20 238 19 10 1071 16 10 24 179 14 11 805 12 8 16 239 19 11 1075 16 11 20 FSA - 52 Sentence Good Sentence Good Sentence in Actual Time to Serve Sentence in Actual Time to Serve in Time in in Time in Months years months Days years months days Months years months Days years months days 240 20 0 1080 17 0 15 300 25 0 1350 21 3 19 241 20 1 1084 17 1 11 301 25 1 1354 21 4 15 242 20 2 1089 17 2 6 302 25 2 1359 21 5 10 243 20 3 1093 17 3 2 303 25 3 1363 21 6 6 244 20 4 1098 17 3 28 304 25 4 1368 21 7 1 245 20 5 1102 17 4 24 305 25 5 1372 21 7 28 246 20 6 1107 17 5 19 306 25 6 1377 21 8 23 247 20 7 1111 17 6 15 307 25 7 1381 21 9 19 248 20 8 1116 17 7 10 308 25 8 1386 21 10 14 249 20 9 1120 17 8 6 309 25 9 1390 21 11 10 250 20 10 1125 17 9 1 310 25 10 1395 22 0 5 251 20 11 1129 17 9 27 311 25 11 1399 22 1 1 252 21 0 1134 17 10 22 312 26 0 1404 22 1 26 253 21 1 1138 17 11 18 313 26 1 1408 22 2 22 254 21 2 1143 18 0 13 314 26 2 1413 22 3 17 255 21 3 1147 18 1 9 315 26 3 1417 22 4 13 256 21 4 1152 18 2 4 316 26 4 1422 22 5 8 257 21 5 1156 18 3 0 317 26 5 1426 22 6 4 258 21 6 1161 18 3 26 318 26 6 1431 22 6 29 259 21 7 1165 18 4 22 319 26 7 1435 22 7 25 260 21 8 1170 18 5 17 320 26 8 1440 22 8 21 261 21 9 1174 18 6 13 321 26 9 1444 22 9 16 262 21 10 1179 18 7 8 322 26 10 1449 22 10 11 263 21 11 1183 18 8 4 323 26 11 1453 22 11 8 264 22 0 1188 18 8 29 324 27 0 1458 23 0 3 265 22 1 1192 18 9 25 325 27 1 1462 23 0 29 266 22 2 1197 18 10 20 326 27 2 1467 23 1 24 267 22 3 1201 18 11 16 327 27 3 1471 23 2 20 268 22 4 1206 19 0 11 328 27 4 1476 23 3 15 269 22 5 1210 19 1 7 329 27 5 1480 23 4 11 270 22 6 1215 19 2 2 330 27 6 1485 23 5 6 271 22 7 1219 19 2 28 331 27 7 1489 23 6 2 272 22 8 1224 19 3 23 332 27 8 1494 23 6 27 273 22 9 1228 19 4 19 333 27 9 1498 23 7 23 274 22 10 1233 19 5 14 334 27 10 1503 23 8 18 275 22 11 1237 19 6 10 335 27 11 1507 23 9 14 276 23 0 1242 19 7 5 336 28 0 1512 23 10 9 277 23 1 1246 19 8 1 337 28 1 1516 23 11 5 278 23 2 1251 19 8 27 338 28 2 1521 24 0 0 279 23 3 1255 19 9 23 339 28 3 1525 24 0 27 280 23 4 1260 19 10 18 340 28 4 1530 24 1 22 281 23 5 1264 19 11 14 341 28 5 1534 24 2 18 282 23 6 1269 20 0 9 342 28 6 1539 24 3 13 283 23 7 1273 20 1 5 343 28 7 1543 24 4 9 284 23 8 1278 20 2 0 344 28 8 1548 24 5 4 285 23 9 1282 20 2 26 345 28 9 1552 24 6 0 286 23 10 1287 20 3 21 346 28 10 1557 24 6 25 287 23 11 1291 20 4 17 347 28 11 1561 24 7 21 288 24 0 1296 20 5 12 348 29 0 1566 24 8 16 289 24 1 1300 20 6 8 349 29 1 1570 24 9 12 290 24 2 1305 20 7 3 350 29 2 1575 24 10 7 291 24 3 1309 20 7 30 351 29 3 1579 24 11 3 292 24 4 1314 20 8 25 352 29 4 1584 24 11 29 293 24 5 1318 20 9 21 353 29 5 1588 25 0 25 294 24 6 1323 20 10 16 354 29 6 1593 25 1 20 295 24 7 1327 20 11 12 355 29 7 1597 25 2 16 296 24 8 1332 21 0 7 356 29 8 1602 25 3 11 297 24 9 1336 21 1 3 357 29 9 1606 25 4 7 298 24 10 1341 21 1 28 358 29 10 1611 25 5 2 299 24 11 1345 21 2 24 359 29 11 1615 25 5 28 FSA - 53 Sentence Good Sentence Good Sentence in Actual Time to Serve Sentence in Actual Time to Serve in Time in in Time in Months years months Days years months days Months years months Days years months days 360 30 0 1620 25 6 23 420 35 0 1890 29 9 27 361 30 1 1624 25 7 19 421 35 1 1894 29 10 23 362 30 2 1629 25 8 14 422 35 2 1899 29 11 18 363 30 3 1633 25 9 10 423 35 3 1903 30 0 14 364 30 4 1638 25 10 5 424 35 4 1908 30 1 9 365 30 5 1642 25 11 1 425 35 5 1912 30 2 5 366 30 6 1647 25 11 27 426 35 6 1917 30 3 0 367 30 7 1651 26 0 23 427 35 7 1921 30 3 27 368 30 8 1656 26 1 18 428 35 8 1926 30 4 22 369 30 9 1660 26 2 14 429 35 9 1930 30 5 18 370 30 10 1665 26 3 9 430 35 10 1935 30 6 12 371 30 11 1669 26 4 5 431 35 11 1939 30 7 8 372 31 0 1674 26 5 0 432 36 0 1944 30 8 4 373 31 1 1678 26 5 26 433 36 1 1948 30 9 0 374 31 2 1683 26 6 21 434 36 2 1953 30 9 25 375 31 3 1687 26 7 17 435 36 3 1957 30 10 21 376 31 4 1692 26 8 12 436 36 4 1962 30 11 16 377 31 5 1696 26 9 8 437 36 5 1966 31 0 12 378 31 6 1701 26 10 3 438 36 6 1971 31 1 7 379 31 7 1705 26 10 29 439 36 7 1975 31 2 3 380 31 8 1710 26 11 24 440 36 8 1980 31 2 28 381 31 9 1714 27 0 20 441 36 9 1984 31 3 24 382 31 10 1719 27 1 15 442 36 10 1989 31 4 19 383 31 11 1723 27 2 11 443 36 11 1993 31 5 15 384 32 0 1728 27 3 6 444 37 0 1998 31 6 10 385 32 1 1732 27 4 2 445 37 1 2002 31 7 6 386 32 2 1737 27 4 28 446 37 2 2007 31 8 1 387 32 3 1741 27 5 24 447 37 3 2011 31 8 28 388 32 4 1746 27 6 19 448 37 4 2016 31 9 23 389 32 5 1750 27 7 15 449 37 5 2020 31 10 19 390 32 6 1755 27 8 10 450 37 6 2025 31 11 14 391 32 7 1759 27 9 6 451 37 7 2029 32 0 10 392 32 8 1764 27 10 1 452 37 8 2034 32 1 5 393 32 9 1768 27 10 27 453 37 9 2038 32 2 1 394 32 10 1773 27 11 22 454 37 10 2043 32 2 26 395 32 11 1777 28 0 18 455 37 11 2047 32 3 22 396 33 0 1782 28 1 13 456 38 0 2052 32 4 17 397 33 1 1786 28 2 9 457 38 1 2056 32 5 13 398 33 2 1791 28 3 4 458 38 2 2061 32 6 8 399 33 3 1795 28 4 0 459 38 3 2065 32 7 4 400 33 4 1800 28 4 26 460 38 4 2070 32 7 30 401 33 5 1804 28 5 22 461 38 5 2074 32 8 26 402 33 6 1809 28 6 17 462 38 6 2079 32 9 21 403 33 7 1813 28 7 13 463 38 7 2083 32 10 17 404 33 8 1818 28 8 8 464 38 8 2088 32 11 12 405 33 9 1822 28 9 4 465 38 9 2092 33 0 8 406 33 10 1827 28 9 29 466 38 10 2097 33 1 3 407 33 11 1831 28 10 25 467 38 11 2101 33 1 29 408 34 0 1836 28 11 20 468 39 0 2106 33 2 24 2019 Good Time table 409 34 1 1840 29 0 16 469 39 1 2110 33 3 20 410 34 2 1845 29 1 11 470 39 2 2115 33 4 15 Note: Good time does not apply to sentences of one year or less. 411 34 3 1849 29 2 7 471 39 3 2119 33 5 11 I'm including the asterisked entries for periods less than a year 412 472 34 4 1854 29 3 2 and a day because sometimes one wants know what a lesser 39 4 2124 33 6 6 413 34 5 1858 29 3 29 473period of time would be with good time.39 5 2128 33 7 2 414 34 6 1863 29 4 24 474 39 6 2133 33 7 28 415 34 7 1867 29 5 20 475This document was created by Dan Hesler of the Federal Defender39 7 2137 33 8 24 416 34 8 1872 29 6 15 476Program in Chicago in 2019. Hopefully, it is accurate, but it i39 8 2142 33 9s not 19 417 34 9 1876 29 7 11 477an official BOP document, and should not be relied on as such.39 9 2146 33 10 15 418 34 10 1881 29 8 6 478 39 10 2151 33 11 10 419 34 11 1885 29 9 2 479 39 11 2155 34 0 6 FSA - 54 THE FIRST STEP ACT OF 2018: Earned Time Credits Ineligible for ETCs Sentencing Resource Counsel for the Federal Public and Community Defenders (updated Nov. 2019) If “serving a sentence for a conviction” under any of the following:

Important Dates Incentives • 18 U.S.C. § 32 • 18 U.S.C. § 2118(c) • 18 U.S.C. § 33 • 18 U.S.C. § 2119 • January 2020: BOP to post full list of approved programs on 1) Phone & visitation privileges • 18 U.S.C. § 36 • Ch. 105 (sabotage) except § 2152 www.bop.gov • 18 U.S.C. § 81 • Ch. 109A (sex abuse) 2) Transfer closer to home • 18 U.S.C. § 111(b) • 18 U.S.C. § 2250 • January 15, 2020: BOP to complete initial risk and needs • 18 U.S.C. § 113(a)(1), (7), (8) • 18 U.S.C. § 2251 assessment for each prisoner and “begin” to assign programming 3) Additional rewards developed by • 18 U.S.C. § 115, except threats • 18 U.S.C. § 2251A BOP (commissary, email, • 18 U.S.C. § 116 • 18 U.S.C. § 2252 • January 15, 2022: BOP must provide evidence-based recidivism • 18 U.S.C. § 117 • 18 U.S.C. § 2252A reduction programs or productive activities for all inmates. preferred housing units, etc.) • Ch. 10 (biological weapons) • 18 U.S.C. § 2260 • Ch. 11B (chemical weapons) • 18 U.S.C. § 2283 4) Earned Time Credits (ETCs) See 18 U.S.C. § 3621(h); Dep’t of Just, The First Step Act of 2018: Risk • 18 U.S.C. § 351 • 18 U.S.C. § 2284 • 18 U.S.C. § 521 • 18 U.S.C. § 2291 if sub. risk of and Needs Assessment System, at 71. See 18 U.S.C. § 3632(d)(1) – (4) death/SBI • 18 U.S.C. § 751 • Ch. 113B (terrorism) • 18 U.S.C. § 793 • 18 U.S.C. § 2340A Acquiring “Earned Time Credits” (ETCs) • 18 U.S.C. § 794 • 18 U.S.C. § 2381 • Ch. 39 (explosives), except § 836 • 18 U.S.C. § 2442 • 18 U.S.C. § 842(p) if weapon of • 18 U.S.C. § 3559(c)(2)(F) if +1 All eligible persons: earn 10 days of ETCs for “every 30 days of successful participation in evidence-based mass destruction) year imprisonment and if recidivism reduction programming or productive activities” certain prior convictions • 18 U.S.C. § 844(f)(3), (h), (i) • 42 U.S.C. § 2077(b) • 18 U.S.C. § 871 • 42 U.S.C. § 2122 Persons in min/low risk categories who, “over 2 consecutive assessments”* have not increased their risk • 18 U.S.C. § 879 • 42 U.S.C. § 2131 category shall earn “an additional 5 days of time credits for every 30 days of successful participation in • 18 U.S.C. § 924(c) • 42 U.S.C. § 2274 evidence-based recidivism reduction programming or productive activities” • 18 U.S.C. § 1030(a)(1) • 42 U.S.C. § 2275 • 18 U.S.C. § 1091 • 42 U.S.C. § 2284 • Ch. 51 (homicide) except §§ 1112, • 49 U.S.C. § 60123(b) if sub. risk *Persons who “successfully participate” in programming shall receive reassessments “not less often than 1113 (att. manslt.), 1115, 1122 of death/SBI annually.” Persons in medium/high risk categories who are less than 5 years from release shall receive • Ch. 55 (kidnapping) • 21 U.S.C. § 841(b)(1)(A-C) if “more frequent” reassessments. death/SBI resulted • Ch. 77 (slavery/peonage) except • 8 U.S.C. § 1326(b)(1), (2) §§ 1593 – 1596 See 18 U.S.C. § 3632(d)(4), (5) • 18 U.S.C. § 1751 • 8 U.S.C. § 1327 • 18 U.S.C. § 1791 • 8 U.S.C. § 1328 • 18 U.S.C. § 1792 • 50 U.S.C. § 4611 et seq. • 18 U.S.C. § 1841(a)(2)(C) • 50 U.S.C. § 1705 Using “Earned Time Credits” (ETCs) • 18 U.S.C. § 1992 • 50 U.S.C. § 3121 • 18 U.S.C. § 2113(e) • 21 U.S.C. §§ 841(b)(1)(A)-(B) or 960(b)(1)-(2) if for ETCs can be used when accumulated credits are equal to remainder of prison term. fentanyl/analogue

For prerelease custody (home confinement or RRC): Court-found ineligibilities: • 21 U.S.C. §§ 841(b)(1)(A)-(B) or 960(b)(1)-(2) if heroin and court finds (1) Min/Low risk for last 2 reassessments; or role enhancement (2) Warden approval after determining (a) no danger to society; (b) good-faith effort to lower recidivism • 21 U.S.C. §§ 841(b)(1)(A)-(B) or 960(b)(1)-(2) if meth and court finds risk through programming; and (c) unlikely to recidivate role enhancement • 21 U.S.C. §§ 841(b)(1)(A)-(B) or 960(b)(1)-(2) for any drug if court For supervised released (not to exceed 12 months): finds offense involved fentanyl/analogue and role enhancement (1) Min/Low risk for last reassessment; or Deportable persons: ineligible to apply time credits if subject to a final (2) Warden approval after determining (a) no danger to society; (b) good-faith effort to lower recidivism order of removal under any provision of the INA risk through programming; and (c) unlikely to recidivate See 18 U.S.C. § 3632(d)(4)(D)-(E)

See 18 U.S.C. § 3624(g) FSA - 55 SECOND CIRCUIT UPDATE

Today’s presentation will focus on a few selected cases that involve both wins and losses for the defense. For a fuller picture of the Second Circuit’s decisions than can be provided in a fifty- minute session, the following is a summary of published decisions issued by the Second Circuit between January 1 and November 26, 2019, that resulted in a defense victory. Calculation of Criminal History United States v. Valente, 915 F.3d 916 (2d Cir. 2019); appeal from NDNY (Sharpe, J.): The defendant was convicted of being a recidivist DWAI offender and sentenced to sixty days in jail. The sentence was never officially suspended or stayed, but the defendant did not serve the sentence because of medical issues. Later, he pled guilty to federal securities fraud. The district court assigned two criminal history points to the recidivist DWAI offender conviction over the defendant’s objection. The district court sentenced the defendant to 240 months in prison. On appeal, the Second Circuit reversed. The Second Circuit relied on the application notes to the applicable Guideline. Under Guideline § 4A1.1(b), an offender receives two criminal history points for any conviction that results in a “sentence of imprisonment of at least sixty days.” The Application Notes state that “[t]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence.” Here, the defendant had not actually served a period of imprisonment on the sentence. The district court’s miscalculation raised the defendant’s Criminal History Category from III to IV, increasing his Guideline range from 188- 235 months to 210-262 months. The case was remanded for resentencing. Resentencing is set for December 4, 2019. “Crime of Violence” Definition United States v. Barrett, 937 F.3d 126 (2d Cir. 2019); appeal from SDNY: Vacating its previous decision in light of direction from the Supreme Court, the Second Circuit held that a conviction for conspiracy to commit Hobbs Act robbery is not categorically a “crime of violence.” Drug Quantity United States v. Pauling, 924 F.3d 649 (2d Cir. 2019); appeal from SDNY: The defendant was charged with conspiracy to distribute 100 grams or more of heroin. Under 21 U.S.C. § 841(b)(1)(B), this charge carries a five-year mandatory minimum sentence. At trial, the government presented wiretap evidence of four transactions between the defendant and another drug dealer. The parties agreed that these transactions showed a conspiracy to distribute 89 grams of heroin. The government contended that wiretaps of the fourth transaction showed that the defendant conspired to distribute an additional 14 grams of heroin, for a total of 103 grams. The defense contended that the language on which the government relied was ambiguous and, in any event, did not involve the co-conspirator named in the indictment. The jury found that the defendant had conspired with the named co-conspirator to distribute 100 grams or more of heroin. The district court granted the defendant’s motion to vacate the verdict and entered a verdict to the lesser-included offense of conspiracy to distribute fewer than 100 grams of heroin. The lesser-included offense carries no mandatory minimum sentence. The government appealed. The Second Circuit affirmed the district court. The Second Circuit found that only “impermissible speculation” could have led the jury to conclude that the defendant and the named co-conspirator distributed more than 89 grams of heroin.

Evidence United States v. Ojudun, 915 F.3d 875 (2d Cir. 2019); appeal from SDNY: Practitioners and district court judges have a tendency to say that the Rules of Evidence do not apply in supervised release revocation proceedings. This decision demonstrates that this oft-repeated maxim is an oversimplification. The defendant was charged with violating the terms of his supervised release by cashing fraudulent checks. At his supervised release revocation hearing, the district court allowed a police officer to testify about statements made by the driver of the car in which the defendant was a passenger at the time of his arrest. The defense objected that the driver’s statements were hearsay, but the court admitted them under Federal Rule of Evidence 804(b)(3) as statements against penal interest. The defendant appealed. On appeal, the court found that the district court erred by analyzing the driver’s twenty-three-minute statement as a whole rather than analyzing each assertion in the statement separately. Analyzed separately, the portions of the statement that implicated the defendant were not against the driver’s penal interest and thus were inadmissible hearsay under Rule 804(b)(3). The analysis of Rule 804(b)(3) would have ended the matter in the context of a trial. The fact that this issue arose in a supervised release revocation hearing, however, required a second level of analysis. Under Federal Rule of Criminal Procedure 32.1, out-of-court statements that are not admissible under a hearsay exception may be admitted at supervised release hearing. However, such statements may only be admitted after a balancing of “the defendant’s interest in confronting the declarant against the government’s reasons for not producing the witness and the reliability of the proffered hearsay.” Here, the district court did not perform that balancing test. Accordingly, the Second Circuit vacated the judgment and remanded. Jurors United States v. Mehta, 919 F.3d 175 (2d Cir. 2019); appeal from NDNY (McAvoy, J.): During trial, five jurors approached the judge’s clerk and advised that they would like to speak to the judge. The clerk informed the judge. Without advising counsel, the judge met privately with the jurors. The jurors reported that they were concerned because they felt that two of the defendants had been “lingering” and “staring” out them outside of the courtroom. The judge referred to the defendants’ alleged conduct as “disturbing” and “inappropriate” and assigned a security officer to accompany the jurors to their cars. After meeting with the jurors, the judge told counsel that the meeting had happened and instructed the lawyers to tell their clients “to stay the hell away” from the jury. The defendants immediately moved for judgments of acquittal or a mistrial. The judge denied the motions. During jury instructions, the judge charged the jury that “[y]ou may consider the fact that a defendant’s interest in the outcome of the case creates a motive for false testimony.” The jury found the defendants guilty. The defendants appealed. The Second Circuit found that the court violated the defendants’ rights under the Sixth Amendment Confrontation Clause and the Fifth Amendment Due Process Clause to be present at every trial stage. The court reiterated that when a court receives an inquiry from jurors: (1) the jury inquiry should be in writing; (2) the note should be marked as the court’s exhibit and read into the record with counsel and defendant present; (3) counsel should have an opportunity to suggest a response, and the judge should inform counsel of the response to be given; and (4) on the recall of the jury, the trial judge should read the note into the record, allowing an opportunity to the jury to correct the inquiry or to elaborate upon it. The district court’s failure to follow that procedure was compounded by the impermissible jury instruction. The case was vacated and remanded. Retrial is currently set for November 4, 2019. Knowledge of Minor’s Age as Essential Element of Crime United States v. Murphy, 942 F.3d 73 (2d Cir. 2019); appeal from D. Conn: The defendant, who was 25 years old, created a profile on a dating website that said that he was nineteen years old. There he met a young woman whose profile said that she was nineteen years old. Later she told the defendant that she was sixteen years old. He drove from Rhode Island to Connecticut to meet her and they had sex. It turned out that she was actually fourteen years old. The defendant was charged with and pled guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct. The defendant was sentenced to five years in prison and appealed. On appeal, the Second Circuit found that knowledge that the minor is under the age of sixteen is an essential element of 18 U.S.C. § 2423(b). Here, nothing in the defendant’s guilty plea established that he knew that the minor was under the age of sixteen. The Second Circuit vacated the conviction and remanded for further proceedings. Plea Agreements United States v. Wilson, 920 F.3d 155 (2d Cir. 2019); appeal from EDNY: The defendant, charged with narcotics offenses, entered into a plea agreement with the government. The plea agreement included an estimated Guidelines range of 108-135 months. The government agreed in the plea agreement that it would “make no motion for an upward departure” and would change its position only if new information “became known to the government after the date of the plea agreement.” The plea agreement did not include any language reserving the government’s right to argue for a sentence beyond that called for by the Guidelines. At sentencing, however, the government advocated for a sentence of 360 months to life. The government based its request on sentencing enhancements for conduct that was known to the government at the time the plea was negotiated. The district court sentenced the defendant to 360 months in prison. The defendant appealed. The Second Circuit vacated the sentence and remanded for resentencing, finding that the government breached the plea agreement by advocating for a sentence that was so much higher than the estimate in the plea agreement.

Plea Colloquys United States v. Prado, 933 F.3d 121 (2d Cir 2019); appeal from SDNY1: The defendants were charged with violating the Maritime Drug Law Enforcement Act (“MDLEA”) by transporting cocaine from Colombia to Costa Rica by boat. Under the MDLEA, an essential element is that the defendants transported narcotics using a “covered vessel.” One way for a vessel to be “covered” under the MDLEA is for it to be “stateless.” In this case, there were questions about whether the boat was “stateless” or whether it belonged to Ecuador. At the change of plea hearing, however, the district court judge did not include “statelessness” as an essential element in the plea colloquy or establish a factual basis for statelessness. The defendants appealed. The Second Circuit found that the errors in the plea colloquy were not harmless because they went to essential elements of the offense. The judgment of conviction was vacated and the indictment dismissed. Prior Convictions as Sentencing Enhancements United States v. Kroll, 918 F.3d 47 (2d Cir. 2019); appeal from EDNY: In 1993, the defendant pled guilty to sodomy in the second degree in violation of New York Penal Law § 130.45. At the time of that plea, Penal Law § 130.45 applied to conduct with a minor under the age of fourteen. The defendant’s victim was eleven years old. In 2011, the defendant sexually abused a twelve- year-old boy and produced sexually explicit images of himself and the child. He was charged with two counts of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) and (e), possession of child pornography, and with committing counts one and two as a registered sex offender. The defendant pled guilty to all four counts. The government sought a mandatory life sentence under 18 U.S.C. § 3559(e)(1) because of the defendant’s prior New York conviction. 18 U.S.C. § 3559(e)(1) mandates a life sentence for certain federal sex offenses if the defendant has a “prior sex conviction” in which the victim was a minor. The court sentenced the defendant to life. The defendant appealed. On appeal, the Second Circuit found that the defendant’s 1993 New York conviction did not qualify as a “prior sex conviction in which the victim was a minor.” The Second Circuit applied the categorical approach, under which a state statute does not qualify as a “prior conviction” if the state statute criminalizes conduct that the federal statute does not. Under the categorical approach, the defendant’s actual conduct is irrelevant. The Second Circuit found that the applicable federal statute criminalizes conduct only with minors under the age of twelve. The New York statute, therefore, criminalizes conduct --- deviate sexual intercourse with twelve and thirteen year old children --- that the federal statute does not. Accordingly, the defendant’s New York conviction did not qualify as a prior conviction. The Second Circuit vacated the conviction and remanded for resentencing. Sentencing United States v. Brown, 935 F.3d 43 (2d Cir. 2019); appeal from SDNY: Under 18 U.S.C. § 924(c), defendants convicted of certain predicate offenses must be sentenced to an additional mandatory consecutive term of imprisonment if they used a firearm as part of the predicate offense. Before

1 This case also involves the exercise of jurisdiction by United States courts over vessels captured in international waters off the coast of Central America. Those issues are intellectually interesting but likely of limited practical value to criminal defense practitioners in the Northern District of New York. 2017, Second Circuit precedent held that trial judges could not consider the length of the additional mandatory consecutive term of imprisonment when selecting a sentence for the predicate offense. In Dean v. United States, ___ U.S. ___, 137 S. Ct. 1170 (2017), the United States Supreme Court held otherwise. The Supreme Court held that a district court judge is, in fact, permitted to consider the severity of mandatory consecutive minimum sentences imposed under § 924(c) when selecting sentences for the underlying offenses. In this case, the defendant was sentenced to concurrent seven-year sentences for robbery, a consecutive seven-year sentence, and an additional consecutive twenty-five year sentence. Neither the parties nor probation cited Dean in their sentencing submissions. It was not clear from the record whether or not the trial court judge considered the severity of the mandatory consecutive minimum sentences when crafting the sentences for the robbery counts. The Second Circuit remanded for resentencing. United States v. Thompson, 921 F.3d 82 (2d Cir. 2019); appeal from SDNY: In 2016, a Brooklyn family court issued an ex parte temporary order of protection against the defendant, directing him not to contact his ex-girlfriend. The defendant was never served with the petition, the order, or the summons. In 2017, the defendant pleaded guilty in federal court to cyberstalking the same ex- girlfriend. At sentencing, over the defendant’s objection, the district court applied a two-level sentencing enhancement under Guideline § 2A6.2(b)(1)(A) because the “offense involved . . . the violation of a court protection order.” The defendant appealed. The Second Circuit held that the Guideline enhancement did not apply because the Brooklyn family court never obtained personal jurisdiction over the defendant. The case was remanded for resentencing. Speedy Trial United States v. Black, 918 F.3d 243 (2d Cir. 2019); appeal from WDNY: The defendants were arrested in late February and early March 2012 and charged with Hobbs Act conspiracy. The defendants were not brought to trial until November 2017. The government spent nearly three years of that time trying to decide whether or not to seek the death penalty. After the jury acquitted the defendants as to some counts and hung as to others, the district court dismissed the remaining counts on speedy trial grounds. The government appealed. The Second Circuit affirmed, noting that this marked the third time in two years that criminal defendants’ speedy trial rights had been violated in the Western District of New York. Supervised Release Conditions United States v. Bleau, 930 F.3d 35 (2d Cir. 2019); appeal from NDNY (D’Agostino, J.): The defendant pleaded guilty to one count of receiving child pornography and one count of possessing child pornography. The district court sentenced him to seventy-eight months in prison, to be followed by fifteen years of supervised release. As a condition of supervised release, the district court prohibited the defendant from having any direct contact with minors without first obtaining permission from his probation officer. The defendant appealed. The Second Circuit found that the district court had not explained how the condition was reasonably related to the defendant’s personal history and characteristics or the nature and circumstances of his offense. There had been no allegation that the defendant had engaged in, or even attempted to engage in, any inappropriate contact with minors. The district court’s failure to explain “its rationale is plain error because it is not obvious from the record why such a condition was reasonably necessary.” The Second circuit remanded for reconsideration of the special condition. Resentencing is scheduled for November 13, 2019. United States v. Boles, 914 F.3d 95 (2d. Cir. 2019); appeal from D. Vt.: The defendant, who had a previous conviction for possession of child pornography, was found guilty by a jury of possessing child pornography. The court sentenced him to 120 months in prison, followed by ten years of supervised release. Over the defendant’s objection, the court imposed a special condition of supervised release referred to as a “risk” condition. It stated that “[i]f the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.” The defendant appealed, challenging the “risk” condition as vague and as impermissibly delegating authority to the probation officer. The Second Circuit found that the condition was vague and afforded too much discretion to the probation officer. The court vacated the condition. United States v. Eagin, 913 F.3d 88 (2d Cir. 2019); appeal from NDNY (D’Agostino, J.): In 2003 and 2004, when he was in his early 20s, the defendant was convicted in New Hampshire of “felonious sexual assault” of two thirteen-year-old girls. Under New Hampshire law, “felonious sexual assault” is a statutory offense based on the age of the victim (under sixteen) alone, without regard to the age or mens rea of the perpetrator. As a result of the conviction, the defendant was required to register as a sex offender. In 2012 he was convicted in federal court of failing to register. He was placed on supervised release. He violated supervised release in a number of ways through the years and faced revocation proceedings. In April 2017, over the defendant’s objections, the court re-imposed a total ban on all pornography (including legal adult pornography) and a total ban on internet use. The defendant appealed. The Second Circuit found that the Supreme Court’s decision in Packingham v. North Carolina “establishes that, in modern society, citizens have a First Amendment right to access the internet.” Accordingly, the “imposition of a total Internet ban as a condition of supervised release inflicts a severe deprivation of liberty.” The Second Circuit found that the district court had not made any findings establishing that “highly unusual circumstances” existed justifying this severe deprivation. As to the legal pornography ban, the Second Circuit found that there was no evidence in the record connecting the need for such a ban with the defendant’s likelihood of recidivism or any other sentencing factor. Accordingly, the Second Circuit remanded for resentencing. On remand, the court removed both conditions but directed that the defendant undergo a psycho-sexual evaluation. United States v. Parkins, 935 F.3d 63 (2d Cir. 2019); appeal from SDNY: The defendant pleaded guilty to conspiracy to commit bank fraud and conspiracy to commit health care fraud. He was sentenced to time served plus three years of supervised release. As a condition of supervised release, the defendant was ordered to perform 300 hours of community service per year. The defendant appealed, arguing that the community service sentence was not justified by the applicable sentencing factors and was inconsistent with an Application Note to the Sentencing Guidelines. The Second Circuit remanded. On remand, the district court imposed substantially the same sentence. The defendant appealed again, making the same arguments. The Second Circuit found that the district court abused its discretion. The Application Note advises a limit of 400 hours of community service over the entire term of supervised release. The district court did not provide any ‘non-generic’ reasons for imposing a community service requirement well in excess of the recommended limit. The Second Circuit vacated the sentence and remanded for resentencing. PRESERVING ERROR IN FEDERAL COURT: Making Sure You Get Your Second Chance on Appeal

Continuing Legal Education Sponsored by the Office of the Federal Public Defender for the Southern District of Texas Laredo, Texas September 27, 2013

Timothy Crooks Supervisory Asst. Federal Public Defender 440 Louisiana St., Suite 1350 Houston, TX 77002-1669 (713) 718-4600 [email protected] TABLE OF CONTENTS

Introduction ...... 1

Pretrial Motions...... 1

Proffer, Proffer, Proffer...... 6

The Contemporaneous-Objection Rule...... 10

Jury Instructions...... 12

Other Trial Problems...... 14

Guilty Pleas ...... 20

Sentencing...... 21

Consequences of Failure to Preserve Error...... 27

Conclusion...... 31

-i- Introduction

As an attorney who now works exclusively on appeals, I am frustrated when

good points of error have not been properly preserved below. Yet, having also been

a trial attorney, I realize that, in the rush to judgment in criminal cases, it is all too

easy to slip up!

Many times I have heard attorneys speak dismissively of seminars on

preservation of error for appeal – for example: “All they’re going to do is tell us that

we need to object at trial, and I already know that.” But the truth is that, in today’s

increasingly complex federal criminal practice, often much more than just a simple

objection is needed. This paper is designed to give some basic information on

preserving error to make sure that your clients get the full benefit of their “second

chance” on appeal.

Pretrial Motions

The first “gotcha” with respect to pretrial motions in federal court is Federal

Rule of Criminal Procedure 12(b)(3), which requires that certain motions must be raised prior to trial:

(1) Motions alleging defects in the institution of the prosecution;1

1See Fed. R. Crim. P. 12(b)(3)(A).

1 (2) Motions alleging a defect in the indictment or information (other than

that it fails to invoke the court’s jurisdiction or to state an offense);2

(3) Motions to suppress evidence;3

(4) Motions to sever charges or defendants under Fed. R. Crim. P. 14.4

(5) Motions for discovery under Fed. R. Crim. P. 16.5

Additionally, the district court “may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing.”6 If the motions specified in Rule 12(b)(3) are not filed

before the motions date set by the court (including any extension the court provides)

or (where no motions date is set) before trial, this failure constitutes a waiver of the

defenses, objections, and requests you would have made in those motions.7

2See Fed. R. Crim. P. 12(b)(3)(B).

3See Fed. R. Crim. P. 12(b)(3)(C).

4See Fed. R. Crim. P. 12(b)(3)(D).

5See Fed. R. Crim. P. 12(b)(3)(E).

6Fed. R. Crim. P. 12(c).

7See Fed. R. Crim. P. 12(e). The failure to file a motion of the type described in Rule 12(b)(3) by the deadline results in a complete extinguishment of the claim that could have been raised therein; thus, if it is raised for the first time on appeal, the Fifth Circuit will not even conduct plain-error review of the claim. See United States v. Chavez-Valencia, 116 F.3d 127, 129-33 (5th Cir. 1997) (suppression issue); but cf. United States v. Maldonado, 42 F.3d 906, 912 (5th Cir. 1995) (where suppression motion was filed, reviewing claim to relief on different theory not raised in motion for plain error).

2 However, “[f]or good cause, the court may grant relief from the waiver.”8 What constitutes “good cause” will, of course, vary from case to case. In one case for example, the Fifth Circuit found that there was “cause shown” for failure to move to

dismiss an indictment prior to trial where the defendant did not receive the critical

grand jury transcript until after the trial started, and he filed his motion at the earliest possible time.9

Also, you should make sure to include as many specific facts (or factual

allegations) as possible in your pretrial motions because, if you do not, you cannot

count on getting an evidentiary hearing to flesh out your record.10 An evidentiary

hearing is required – and hence a district court perforce abuses its discretion in denying a hearing – only where “‘the defendant alleges sufficient facts which, if

8Fed. R. Crim. P. 12(e).

9United States v. Cathey, 591 F.2d 268, 271 n.1 (5th Cir. 1979) (addressing previous version of rule that required “cause shown” rather than “good cause”).

10I recognize that trial attorneys will often want to file as “bare-bones” a motion as possible, to avoid tipping their hand in advance of the evidentiary hearing. There is certainly merit in this approach, because it can prevent adverse witnesses from tailoring their testimony to defeat the particular allegations in the motion. The problem is that, if you do not allege a claim with sufficient specificity, you may never get an evidentiary hearing. How much detail to put in suppression motions is thus a judgment call that depends in large measure on the predilections of the judge before whom you are appearing. If that judge is going to give you an evidentiary hearing regardless of the particularity of your motion, then you have little to lose and everything to gain by filing only a “bare-bones” motion.

3 proven, would justify relief.’”11 The motion will allege sufficient facts to justify an

evidentiary hearing only when it is “sufficiently definite, specific, detailed, and

nonconjectural, to enable the court to conclude that a substantial claim is presented.”12

“General or conclusory assertions, founded upon mere suspicion or conjecture will not suffice.”13 Thus, if your motion is not sufficiently detailed, your motion may be summarily denied without ever having an evidentiary hearing, and, in the absence of a sufficiently detailed record, it will be virtually impossible to get any appellate relief.14 Additionally, especially with motions to suppress, you should be careful to allege all possible grounds for suppression: a motion to suppress evidence based on one theory will not preserve for an appeal the claim that the same evidence should be suppressed on another theory.15

The next pitfall for the unwary with respect to pretrial motions is the motion in

11United States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984) (quoting United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983)).

12Harrelson, 705 F.3d at 733.

13Id.

14United States v. Smith-Bowman, 76 F.3d 634, 637-38 (5th Cir. 1996) (district court did not abuse its discretion in denying motion to transfer venue for excessive pretrial publicity without an evidentiary hearing, where, among other things, defendant did not allege with specificity that the community had been saturated with negative media coverage of the charges against her, nor did she include with her motion any copies of, or excerpts from, specific newspaper stories or television reports that focused on her, the charges against her, or the pending trial).

15See, e.g., United States v. Maldonado, 42 F.3d 906, 909-13 (5th Cir. 1995) .

4 limine. Motions in limine are excellent devices to try to get pretrial rulings on the

admissibility vel non of certain evidence. Furthermore, the Federal Rules of Evidence provide that “[o]nce the court rules definitively on the record – either before or at trial

– a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”16 However, at least in the Fifth Circuit, a pretrial motion in limine as to

which the judge has not made a definitive ruling will not, by itself, preserve error for

appeal: “to preserve error for appeal, an objection or offer of proof as to the subject

presented by a motion in limine must be made at trial.”17 It is probably a good idea

(although it is not necessary) to apply the same principle to unsuccessful motions to suppress: i.e., you should renew your objection to the allegedly suppressible evidence at trial.

Special considerations arise when the government proposes, under Federal Rule of Evidence 609, to use prior convictions to impeach your client if he or she testifies.

Where the district court rules that these prior convictions will be admissible under

Rule 609 to impeach your client, and your client decides not to testify in light of that ruling, any error in the Rule 609 ruling is extinguished; in other words, in order to preserve any Rule 609 error for appeal, your client must “run the gauntlet” by

16Fed. R. Evid.103(b).

17United States v. Graves, 5 F.3d 1546, 1552 n.6 (5th Cir. 1993) (bolded emphasis added); see also id. at 1551-52.

5 testifying and then being impeached by the prior convictions.18 In a similar vein, if

a defendant, faced with an unfavorable pretrial Rule 609 ruling from the district court,

decides to try to “remove the sting” of the prior convictions by preemptively bringing

them out herself during her direct testimony, she also loses the right to contest the

propriety of the Rule 609 ruling on appeal.19

Proffer, Proffer, Proffer

“A party may claim error in a ruling to admit or exclude evidence only if the

error affects a substantial right of a party and: . . .if the ruling excludes evidence, a

party informs the court of its substance by an offer of proof, unless the substance was

apparent from the context.”20 The Fifth Circuit appears to have added a gloss to Rule

103(a)(2), requiring that, not only the substance of the evidence, but also the

relevancy of the evidence to the defense and the ground(s) for admissibility of the

18See Luce v. United States, 469 U.S. 38, 43 (1984) (“We hold that to raise and preserve for review a claim of improper impeachment with a prior conviction, a defendant must testify.”).

19See Ohler v. United States, 529 U.S. 753, 760 (2000) (“a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error”).

20Fed. R. Evid. 103(a) & (2) (emphasis added); see, e.g., United States v. Scott, 48 F.3d 1389, 1397 (5th Cir. 1995) (holding that defendant did not preserve for appeal the issue of improper restriction on cross-examination/impeachment of government witness, where defendant failed to make an offer of proof to the district court as to which portions of the criminal record of the government’s witness should have entered into evidence).

6 evidence, have been made known to the court: “Although a formal offer of proof is not required to preserve error, the party must at least inform the trial court ‘what counsel intends to show by the evidence and why it should be admitted.’”21 Thus, in making a proffer, the prudent practitioner in the Fifth Circuit is well-advised to give

(1) a detailed summary of the substance of the excluded evidence; (2) all the things you expect to show or prove by that evidence; and (3) all the grounds on which the

evidence should be admitted.

While a general description of the excluded evidence, or a global proffer of

mass prior testimony or evidence, is generally not sufficient to preserve error, it may

be sufficient where the trial court chills or restricts the party’s ability to make a more

detailed proffer.22 Thus, in Ballis, the Fifth Circuit found that a global proffer of the entire record of a previous motion to dismiss hearing was adequate to preserve error where the trial judge warned that he did not need to be “spoon fed” about every possible nuance of the question, and where the judge expressed an intimate familiarity

21United States v. Clements, 73 F.3d 1330, 1336 (5th Cir. 1996) (emphasis in original) (quoting United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994)). In Clements, the Fifth Circuit applied this rule to hold that the district court did not abuse its discretion in excluding evidence of defendant’s poor CheckFax credit rating as hearsay, where “[d]efense counsel . . . made no attempt to inform the district court that [defendant’s] testimony about his CheckFax rating was being sought to prove something other than the truth of his rating.” Clements, id.

22See Ballis, 28 F.3d at 1406-07.

7 with the testimony offered and in fact accepted the global proffer as sufficient.23

The same principles apply where the error complained of is not one pertaining

to the exclusion of evidence per se, but is one pertaining to the trial process leading to the discovery, production, and introduction of evidence. For example, where a defendant moves for continuance on the basis of the unavailability of a witness, it is incumbent upon the defendant to show the court that “due diligence has been exercised to obtain the attendance of the witness, that substantial favorable evidence would be tendered by the witness, that the witness is available and willing to testify, and that the denial of the continuance would materially prejudice the defendant.”24

Likewise, if the district court denies you the opportunity to present surrebuttal at trial,

you must proffer the substance of your surrebuttal; failure to do so will doom your

chances on appeal.25

The Fifth Circuit has upheld a district court’s denial of a defense request for

23Id.

24Scott, 48 F.3d at 1394 (internal quotation marks and citations omitted). In Scott, the Fifth Circuit rejected the defendant’s claim that a continuance was necessary in order to secure the services of a voice expert for analysis of evidentiary tapes, on the basis that the defendant had not demonstrated due diligence in obtaining such an expert, availability and willingness of such an expert to testify, or that the testimony would be favorable if secured. See id.

25See, e.g., United States v. Wright, 86 F.3d 64, 65 (5th Cir. 1996) (denial of surrebuttal was not an abuse of discretion “because Wright ‘failed to proffer to the district court the substance of his surrebuttal testimony’”) (quoting and citing United States v. Alford, 999 F.2d 818, 821 (5th Cir. 1993).

8 appointment of an investigator under the Criminal Justice Act (18 U.S.C. §

3006A(e)(1)) where the request (1) lacked the requisite specificity as to the prospective witnesses the defense wished to contact and their relevance; (2) did not

specify other investigative leads which the defense wished to pursue; and (3) did not

recite that defense counsel had ferreted out information through his own efforts which

was likely to lead to the discovery of relevant evidence.26 On the same principle,

where the judge refuses to issue a subpoena, you should proffer, as specifically as you

can, what you expect the witness’s testimony will be in order to nail down your record

on appeal.

The rule is simple: whenever the judge keeps out evidence that you need for your case, you should state on the record (or file a written submission into the record, if the judge will not let you make an oral proffer) (1) a detailed summary of the evidence; (2) why the evidence is necessary to your case; and (3) why it is admissible.

Doing this in every case will ensure that the appellate court will review your claims

of erroneous exclusion on the merits rather than “punting” by finding that there was

an insufficient proffer to permit appellate review.

26See United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993).

9 The Contemporaneous-Objection Rule27

The contemporaneous-objection rule is codified at Federal Rule of Criminal

Procedure 51(b)28 and Federal Rule of Evidence 103(a)& (1).29 You should be aware of one general, and two specific, exceptions to the contemporaneous objection rule.

First, “[i]f the party does not have an opportunity to object to a ruling or order, the

27An excellent compendium of some of the most common trial objections is found in the following law review article: Craig Lee Montz, Trial Objections from Beginning to End: The Handbook for Civil and Criminal Trials, 29 Pepp. L. Rev. 243 (2002). The article is a “must-read,” particularly if you have a trial coming up.

28This rule is entitled “Preserving a Claim of Error,” and states as follows:

A party may preserve a claim of error by informing the court – when the court ruling or order is made or sought – of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that excludes admits or excludes evidence is governed by Federal Rule of Evidence 103.

Fed. R. Crim. P. 51(b).

29Under this rule, “[a] party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context;

. . . .

Fed. R. Evid. 103(a) & (1).

10 absence of an objection does not later prejudice that party.”30 Second, no objection

is required where the judge presiding at the trial testifies in the trial as a witness.31

Third, where the judge calls or examines witnesses, the objection may be deferred until “the next opportunity when the jury is not present.”32

It bears repeating that, unless the judge renders a definitive pretrial ruling on

the motion, as allowed under Fed. R. Evid. 103(a), a pretrial motion in limine will not

obviate the need for a contemporaneous objection at trial. Rather, “to preserve error

for appeal, an objection or offer of proof as to the subject presented by a motion in limine must be made at trial.”33 This does not mean, however, that pretrial motions in limine are utterly useless. First of all, you may actually win them, get what you asked for, and never need to appeal. But second, even if you do not prevail on the merits of your motions in limine before trial, they often provide a convenient

shorthand for making an objection during trial: for example, “Objection, Your Honor,

30Fed. R. Crim. P. 51(b).

31See Fed. R. Evid. 605. Rule 605 provides that “[t]he presiding judge may not testify as a witness at that the trial. A party need not object to preserve the issue.” Fed. R. Evid. 605.

32Fed. R. Evid. 614(c). Note, however, that an objection is required in order to preserve this type of error on appeal, as opposed to the “automatic objection” rule contained in Rule 605. See Advisory Committee Notes to Rule 614(c). Failure to object either contemporaneously or at the first opportunity when the jury is not present will subject your claims of excessive questioning by the court to review only for plain error. See, e.g., United States v. Wright, 86 F.3d 64, 65 (5th Cir. 1996).

33 Graves, 5 F.3d at 1552 n.6; see also id. at 1551-52.

11 for all the reasons, and on all the grounds, stated in defendant’s motion in limine.” An objection of this type is quickly made and quickly disposed of, preserving error and preserving the good will of the judge at the same time.

The key to any type of objection is specificity. You must be specific about what you’re objecting to and the basis for your objection, or you run the risk of forfeiting your objection and subjecting it only to plain-error review on appeal.34

Jury Instructions

Any objections to the jury instructions the district court proposes to give, as

well as any objections to the district court’s failure to give requested instructions,

“must inform the court of the specific objection and the grounds for the objection

before the jury retires to deliberate.”35 Failure to comply with this requirement will mean that instructional errors will be reviewed only for plain error.36

In assessing compliance with the objection requirement of Rule 30, the Fifth

Circuit has cautioned against exalting form over substance:

34See, e.g., United States v. Burton, 126 F.3d 666, 671-73 (5th Cir. 1997) (given that Fed. R. Evid. 801(d)(2)(E) contains at least four possible bases for an objection to proffered co- conspirators’ testimony, defendant’s objection to evidence “under 801.d2e” did not preserve for appeal the contention that the statements objected to were not “in furtherance of the conspiracy”).

35Fed. R. Crim. P. 30(d) (emphasis added).

36See id.

12 The procedure for requesting charges, and for objections, should not be employed woodenly, but should be applied where its application will serve the ends for which it was designed. If it be applied blindly and without the benefit of analysis of particular fact situations before individual courts in specific cases it will be transformed from a sound principle of judicial administration into a trap for the unwary . . . .37

Under this pragmatic, common-sense approach to Rule 30, an objection will be deemed sufficiently specific so long as the district court “perceive[d] the basis of [the defendant’s] objection,”38 and had “a full understanding of its nature”;39 or, put another way, the objection will be considered sufficient if it was “adequate to alert the court of [the defendant's] position . . . .”40

A party “may [and is well-advised to] request in writing that the court instruct

the jury on the law as specified in the request. The request must be made at the close

of the evidence or at any earlier time that the court reasonably sets. When the request

is made, the requesting party must furnish a copy to every other party.”41 However, a defendant need not submit a requested jury instruction in order to preserve

37United States v. Davis, 583 F.2d 190, 195 (5th Cir. 1978) (internal quotation marks and citation omitted); see also United States v. Edwards, 968 F.2d 1148, 1153 (11th Cir. 1992) (holding that “[o]verly technical application of Rule 30 in this case would not serve the purposes of the Rule nor meet the ends of justice”).

38Henderson v. United States, 425 F.2d 134, 144 (5th Cir. 1970).

39United States v. Eiland, 741 F.2d 738, 742 (5th Cir. 1984) (citing Henderson).

40United States v. Williams, 985 F.2d 749, 755 (5th Cir.1993).

41Fed. R. Crim. P. 30(a).

13 instructional error for appeal; rather, under Rule 30, all that is required is a timely (i.e., before the jury retires to deliberate) and sufficiently specific objection to the charge actually given by the trial court.42

Other Trial Problems

In 2000, the United States Supreme Court held that any error in a district court’s

refusal to strike a juror for cause is extinguished if the defendant uses a peremptory

challenge to remove the objectionable juror.43 (The Court “reject[ed] the

Government’s contention that under federal law, a defendant is obliged to use a

peremptory challenge to cure the judge’s error.”44) After Martinez-Salazar, therefore,

it appears that a defendant may have to elect between letting an objectionable juror sit,

thereby preserving the ruling for appeal, or using a peremptory to remove that juror

from the jury.45

42See, e.g., Eiland, 741 F.2d at 741 (“[Defendant’s] objection to the omission of this charge had the same effect as a valid request for the instruction.”) (footnote omitted); United States v. English, 409 F.2d 200, 201 (3d Cir. 1969) (“counsel’s exception to the charge, although no requests for charge were submitted, was sufficient to preserve the error for assignment on appeal”).

43See United States v. Martinez-Salazar, 528 U.S. 304, 307 & 315-17 (2000).

44Id. at 307; see also id. at 314-15.

45The Court in Martinez-Salazar left open the possibility that reversal might be required where “the trial court deliberately misapplied the law in order to force the defendants to use a peremptory challenge to correct the court’s error.” Id. at 316 (citation omitted). The Court also noted that reversal would be required if a juror who should have been dismissed for cause actually sat on the jury. See id.

14 Another possible problem is a party’s use of peremptory challenges on the

impermissible basis of race or gender, in violation of Batson v. Kentucky46 and its progeny.47 First of all, in order to be timely, a Batson challenge must be made before the venire is dismissed and before the trial commences; it is not sufficient that challenge be made prior to the jury’s being sworn.48 Second, in order even to require

the opposing party to explain its strikes, the challenging party must make out a prima

facie case that the strikes were exercised for an impermissible reason.49 At this point,

the burden shifts to the striking party to explain its strikes.50 Then, however, in order

In a concurring opinion, Justice Souter also suggested that reversible error might be shown when a defendant “use[s] a peremptory challenge to cure an erroneous denial of a challenge for cause and when he shows that he would otherwise use his full complement of peremptory challenges for the noncurative purposes that are the focus of the peremptory right,” i.e., by showing that he would have used the peremptory used for the for-cause juror on another juror, and requesting another, “make-up” peremptory. See id. at 317-18 (Souter, J., dissenting). This type of claim was recognized in the Fifth Circuit before Martinez-Salazar. See, e.g., United States v. Muñoz, 15 F.3d 395, 396-98 (5th Cir. 1994); United States v. Bryant, 991 F.2d 171, 174 & n.3 (5th Cir. 1993); United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976). Justice Souter’s concurrence notwithstanding, however, it seems doubtful whether this type of claim has survived Martinez- Salazar.

46476 U.S. 79 (1986).

47The Supreme Court has held that, under the reasoning of Batson, it likewise violates the Equal Protection Clause to exclude potential jurors solely on the basis of their gender. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994).

48See United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993) (citation omitted) (Batson claim waived because not made prior to dismissal of the venire).

49See Batson, 476 U.S. at 93-97.

50See id. at 97-98.

15 to preserve the Batson issue for appeal, the challenging party must object to/dispute the explanations, explain why those explanations are a pretext for impermissible discrimination on the basis of race or gender, and request the court to make a ruling; otherwise the claim is waived.51

It is incumbent upon every trial practitioner to move for judgment of acquittal

(1) at the close of the government’s evidence; and (2) at the close of all the

evidence.52 Failure to do so will forfeit the usual standard of review for claims of insufficiency of the evidence, and any such claims will be reviewed only for a

“manifest miscarriage of justice.”53 Such a miscarriage exists only if the record lacks

any evidence pointing to guilt or if the evidence was so tenuous that a conviction

51See United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (where defense did not dispute or contest the prosecutor's explanation for exercise of peremptory challenge against Hispanic venireman, Batson challenge to peremptory challenge was waived).

52See Fed. R. Crim. P. 29(a).

53E.g., United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991). This writer and other federal public defenders in the Western District of Texas have challenged this reduced standard as violative of due process, equal protection, and Federal Rule of Criminal Procedure 29. Although the Fifth Circuit has recognized that there is some force to these arguments, see, e.g., United States v. Paniagua, No. 93-8722 (5th Cir. Dec. 16, 1994) (unpublished) (citing United States v. Pennington, 20 F.3d 593, 597 & n.2 (5th Cir. 1994),and United States v. Sias, No. 93-5475, at 4 n.1 (5th Cir. Sept. 30, 1994) (unpublished)), the Fifth Circuit has avoided deciding the issue on the merits in every case it which is raised, either by finding an exception to the waiver rule (e.g., Pennington) or by finding that the result would be the same irrespective of the standard applied (e.g., Paniagua). The Fifth Circuit has also suggested that the two standards might, in fact, be indistinguishable; but has likewise declined to decide this issue. See, e.g., Pennington, 20 F.3d at 597 n.2 (5th Cir. 1994); see also United States v. Davis, 583 F.2d 190, 199 (5th Cir. 1978) (Clark, J., concurring).

16 would be “shocking.”54 A narrow exception to this rule exists where the defendant

moves for judgment of acquittal after the government’s case, and then immediately

rests without putting on any evidence; in such a case, the sufficiency of the evidence

is reviewed under the usual standard of review.55 Likewise, the failure to move for judgment of acquittal does not constitute waiver where the trial court’s action renders the motion for acquittal “an empty ritual.”56

Also, even if you have forgotten to move for judgment of acquittal at the close

of the government’s case-in-chief and/or at the close of all the evidence, you may still

preserve a claim of insufficient evidence by filing a post-verdict motion under Federal

Rule of Criminal Procedure 29(c).57 Under this rule, “[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict

54E.g., United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988).

55See, e.g., United States v. Jaras, 86 F.3d 383, 388 n.5 (5th Cir. 1996) (citing United States v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995)).

56E.g., Pennington, 20 F.3d at 597 n.2 (citing United States v. Gonzalez, 700 F.2d 196, 204 n.6 (5th Cir. 1983)).

57See, e.g., United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003) (where defendant moved for judgment of acquittal at close of government’s case-in-chief, but did not renew motion at the close of all the evidence, question of the sufficiency of the evidence was nevertheless preserved by defendant’s timely post-verdict motion for judgment of acquittal); United States v. Allison, 616 F.2d 779, 784 (5th Cir.1980) (even though defendant did not move for judgment of acquittal either at the close of the government’s case-in-chief or at the conclusion of her case, question of the sufficiency of the evidence was nevertheless preserved by defendant’s timely post- verdict motion for judgment of acquittal); see also Fed. R. Crim. P. 29(c)(3).

17 or after the court discharges the jury, whichever is later.”58

It has long been the law in the Fifth Circuit that a general motion for judgment

of acquittal (i.e., a general assertion that the evidence was insufficient to sustain a

conviction) is sufficient to preserve a claim of insufficient evidence, and it is not

necessary that the grounds of such a motion be more specifically stated.59 However, in 2002, the en banc Fifth Circuit held that “[w]here . . . a defendant asserts specific grounds for a specific element of a specific count for a Rule 29 motion, he [forfeits] all others for that specific count.”60 This means that, whenever you assert specific grounds for acquittal, you may be forfeiting the right to assert on appeal any other grounds for finding the evidence insufficient. If you are going to assert specific grounds for acquittal, therefore, you should make sure to include all the possible grounds for acquittal. If you fear that you may miss some of these grounds, you may be able to avoid this forfeiture rule by first making a general motion for judgment of

58Fed. R. Crim. P. 29(c)(1).

59See, e.g., Huff v. United States, 273 F.2d 56, 60 (5th Cir. 1959); but see United States v. Compian-Torres, 712 F.3d 203, 206 (5th Cir. 2013) (noting an an intracircuit split about whether a general motion for judgment of acquittal preserves sufficiency-of-the-evidence claims that turn on a purely legal question that was not specifically preserved in the district court, but declining to address the standard-of-review question further, because defendant lost even under the more generous de novo standard).

60United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc) (emphasis in original; citations omitted).

18 acquittal, and then adding your particular arguments.61 If you have little or no hope that the judge will grant the motion, it may be best just to stick with a general motion for judgment of acquittal.

Challenging venue issues presents special considerations in the Fifth Circuit.

In United States v. Carreon-Palacio, the Fifth Circuit held that

[a] defendant indicted by an instrument which lacks sufficient allegations to establish venue waives any future challenge by failing to object before trial. In situations where adequate allegations are made but the impropriety of venue only becomes apparent at the close of the government’s case, a defendant may address the error by objecting at that time, and thus preserve the issue for appellate review.62

And, in United States v . Delgado-Nuñez, the Fifth Circuit held that a venue issue was

waived when it was not specifically raised either before or during trial, and the

defendant was on notice of a defect in venue.63

In light of these authorities, it seems that the safest course is to attack improper venue in a pretrial motion either when (1) the indictment on its face establishes that

61You might, for example, say, “Mr. Defendant hereby moves for judgment of acquittal on each and every count, on the ground that the government has failed to carry its burden of proving each and every element of those counts. Furthermore, without waiving our general claim of insufficiency, we would particularly point out that the government has failed to prove that the banks allegedly robbed had their deposits insured by the FDIC.”

62267 F.3d 381, 392-93 (5th Cir. 2001).

63295 F.3d 494, 496-97 (5th Cir. 2002).

19 venue is lacking or (2) the defense is on notice of a possible defect in venue.64 Also,

even where venue is a trial (as opposed to a pretrial) issue, it is an exception to the rule

that a general motion for judgment of acquittal preserves all grounds for claiming

insufficiency of the evidence. In other words, a general motion for judgment of

acquittal will not preserve for appeal defects in venue; you must specifically point out to the court in a timely fashion why venue is improper.

Guilty Pleas

A claim that a district court failed to comply with Federal Rule of Criminal

Procedure 11 (dealing with the conduct of guilty plea proceedings in federal court)

will be subject to plain-error review if the Rule 11 error was not objected to in the

district court.65 Furthermore, “a reviewing court may consult the whole record when considering the effect of any error on substantial rights,”66 and is not limited merely

64Cf. Fed. R. Crim. P. 12(b)(2) (“A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.”).

65See United States v. Vonn, 535 U.S. 55, 59 (2002). Note, however, that even where there is not a contemporaneous objection to the Rule 11 error at the plea colloquy, error may be preserved by a subsequent motion to withdraw the guilty plea on the basis of the Rule 11 error. See, e.g., United States v. Powell, 354 F.3d 362, 367 (5th Cir. 2003) (reviewing defendant’s claim of Rule 11 error for harmful error, not plain error, where, although defendant made no contemporaneous objection to the district court’s noncompliance with Rule 11 at the guilty plea proceeding, defendant raised the issue in a timely pre-sentencing motion to withdraw her guilty plea).

66Vonn, 535 U.S. at 59.

20 to the transcript of the plea colloquy.67 In order to prevail on an unpreserved Rule 11 claim on appeal, a defendant “must show a reasonable probability that, but for the error, he would not have entered the plea.”68

Sentencing

The key to preserving error at sentencing is to make comprehensive written

objections to the presentence report (PSR) and any addenda thereto, and to renew

those objections orally at the sentencing hearing (assuming, of course, that they are

not resolved in your favor prior to sentencing). This is especially true with respect to

the factual determinations underlying the selection of the Guidelines offense level –

e.g., drug quantity, amount of loss, role in the offense, etc.– since a considerable body of Fifth Circuit law has held that questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.69 A written objection is particularly important because “once a party raises an objection in writing,

67See id. at 74-75.

68United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

69See, e.g., United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991); United States v. Young, 981 F.2d 180, 188 (5th Cir. 1992); United States v. Guerrero, 5 F.3d 868, 871 (5th Cir. 1993); United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993); United States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994); United States v. Dean, 59 F.3d 1479, 1494 (5th Cir. 1995); United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995). But see United States v. Claiborne, 676 F.3d 434, 440-44 (5th Cir. 2012) (Prado, J., concurring) (criticizing this rule).

21 if he subsequently fails to lodge an oral on-the-record objection, the error is

nevertheless preserved for appeal.”70 The objection must raise all the grounds for

challenging a particular Sentencing Guidelines application or other proposed aspect

of sentencing; new grounds will be subject only to plain-error review on appeal.71

Furthermore, “a party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for

[appellate review].”72 An imprecise, unexplained, or pro forma objection will not pass

muster.73

It is important to remember that the defense carries the burden of proving

mitigating factors by a preponderance of relevant and sufficiently reliable evidence.74

Moreover, a party does not carry its burden at sentencing merely by the unsworn

70United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir. 2003) (citing Bender v. Brumley, 1 F.3d 271, 277 (5th Cir. 1993)).

71Medina-Anicacio, 325 F.3d at 642 (“When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new argument raised on appeal for plain error only.”) (citing United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994)).

72United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995) (quoting United States v. Bullard,13 F.3d 154, 156 (5th Cir. 1994); internal quotation marks omitted).

73See, e.g., Krout, 66 F.3d at 1433-34. Note that appellate courts may sometimes find less- than-perfect sentencing objections sufficient under the circumstances of those cases to preserve error for appeal. See, e.g., United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009); United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). It is best not to count on such appellate forgiveness, however.

74See, e.g., United States v. Alfaro, 919 F.2d 962, 965 & n.10 (5th Cir. 1990) (citations in footnote omitted).

22 assertions of counsel, as these do not constitute a sufficiently reliable basis for

sentencing.75 Furthermore, even as to sentencing factors on which the government has

the burden of proof, a mere objection to the PSR may do little or nothing to preserve

an issue for appellate review, as the rule in the Fifth Circuit is that “[i]f the defendant

does not submit affidavits or other evidence to rebut the information in the PSR, the

district court may adopt its findings without further inquiry or explanation,”76 and

“[m]ere objections do not suffice as competent rebuttal evidence.”77 This rule is the subject of a circuit split.78 Nevertheless, in the Fifth Circuit, it is best, if you intend

75See, e.g., United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992) (citing United States v. Johnson, 823 F.2d 840, 842 (5th Cir. 1987)).

76United States v. Mitchell, 166 F.3d 748, 754 (5th Cir. 1999) (footnote with citation omitted). But see United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000) (although a PSR is generally considered to have sufficient indicia of reliability for it to serve as the evidentiary basis for sentencing determinations, “[t]he PSR, however, cannot just include statements in the hope of converting such statements into reliable evidence, without providing any information for the basis of the statements”) (citing United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993)).

77United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).

78Compare, e.g., United States v. Khawaja, 118 F.3d 1454, 1460 (11th Cir. 1997) (“The mere adoption of the PSR however cannot suffice for the district court’s obligation to rule on unresolved objections specifically brought to the attention of the court at sentencing.”); United States v. Farnsworth, 92 F.3d 1001, 1011 (10th Cir. 1996) (“We have repeatedly held that a district court may not satisfy its obligation [to resolve disputed sentencing facts] by simply adopting the presentence report as its finding.”) (collecting cases); United States v. Burke, 80 F.3d 314, 316-17 (8th Cir. 1996). See also United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996) (“Fed. R. Crim. P. 32 allows the court to adopt the facts set forth in the presentence report ‘[e]xcept for any unresolved objection’ noted in the addendum submitted by the probation officer as required by the rule.”) (citations omitted); United States v. Yusufu, 63 F.3d 505, 515 n.2 (7th Cir. 1995) (“The Federal Rules of Criminal Procedure allow the court to accept the PSR as its findings of fact, except for unresolved objections.”) (citation omitted).

23 to controvert a Guidelines application or fact in the PSR, to present some rebuttal evidence.

Other procedural errors – such as, for example, a district court’s failure to adequately explain its sentence – are, if not objected to below, reviewed only for plain error. See, e.g., United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008).

In the particular context of a district court’s reasons (or lack thereof) for the sentence

imposed, this means that you must object to the inadequacy of the explanation after

sentence is pronounced; and, if the district court provides further (though still

inadequate) explanation, you must say something like, “The objection stands.”79

The Fifth Circuit holds that, absent an objection to the length of the sentence after the sentence is imposed, post-Booker80 appellate review for substantive

reasonableness is subject only to plain-error review.81 This means that, after sentence is imposed, you must object that the sentence is greater than necessary to effectuate

79Note that in other circuits, this sort of objection is not required in order to preserve for appellate review a claim that the district court did not adequately explain its sentence. See, e.g., United States v. Lynn, 592 F.3d 572, 577-79 (4th Cir. 2010) (claim preserved by making arguments for a lower sentence; no need for objection after imposition of sentence); United States v. Sevilla, 541 F.3d 226, 230-31 (3d Cir. 2008) (same).

80United States v. Booker, 543 U.S. 220 (2005).

81See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). The circuits are divided on the question whether such an objection is necessary to preserve a claim of substantive unreasonableness. See, e.g., United States v. Autery, 555 F.3d 864, 870-71 (9th Cir. 2009) (disagreeing with Peltier and detailing circuit split on the question).

24 the purposes of sentencing set out in 18 U.S.C. § 3553, and, probably, you should explain why that is so.82

Rejected requests for downward departures and variances may be the subject of appellate review. However, unless you are very careful to lay the record correctly, the district court’s denial of a downward departure will not be reviewable on appeal.

Generally speaking, an appellate court has no jurisdiction under 18 U.S.C. § 3742 to

hear an appeal of a lawful Guidelines sentence where the district court has exercised

its discretion not to depart downward; in such cases, the appeal must be dismissed for

lack of jurisdiction.83 However, where a district court’s refusal to depart downward

is not discretionary, but rather is based upon the court's mistaken belief that it legally

does not possess the authority to depart, the resulting sentencing is “in violation of

law,” and appellate jurisdiction does therefore lie, under 18 U.S.C. § 3742(a)(1).84

The moral is that, if possible, you should get the sentencing judge to expressly articulate on the record that s/he would depart if s/he thought s/he had the authority to do so. Of course, the appellate court may “still review to determine whether the

82Technically, you should not object in the district court that the sentence is “unreasonable,” as “reasonableness” is the standard of review on appeal, not the standard by which the district court should determine its sentence. That said, objecting that the sentence is “unreasonable” is better than nothing.

83United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995).

84United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994) (citation omitted); see also, DiMarco, 46 F.3d at 478.

25 district court’s imposition of a [G]uideline sentence instead of a non-[G]uideline sentence was reasonable.”85 This is presumably the rubric under which refusals to

vary are also reviewed.

You should be especially careful to object to any objectionable noncustodial

aspects of the sentence – e.g., punitive fines, costs of incarceration, restitution, etc.

In these cases, there is, of course, the usual consequence that your failure to do so will

invoke the plain error standard on appeal. However, there is also the additional

consequence that your failure to make these claims will not later be cognizable as

ineffective assistance of counsel in a subsequent motion to vacate or set aside under

28 U.S.C. § 2255, because, the Fifth Circuit has held, (1) a challenge to a fine or

restitution order does not meet the “in custody” requirement of § 2255 because (2)

Congress intended to limit the types of claims cognizable under § 2255 to claims

relating to unlawful custody.86 In the cited Gaudet case, for example, defense counsel raised, for the first time on appeal, a substantial sentencing question with respect to a question relating to a restitution order, but the Fifth Circuit declined to review it on the merits on the defendant’s direct appeal because it had not been raised in the district court. Then, when the defendant tried to assert on § 2255 that counsel had been

85United States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007) (footnote omitted).

86See, e.g., United States v. Gaudet, 81 F.3d 585, 592 (5th Cir. 1996) (citing United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994)).

26 ineffective for failing to raise it, the Fifth Circuit declined to reach it because defendant was not “in custody” as to that portion of the sentence! The Gaudet case

illustrates the enhanced importance of making proper objections to, and preserving

plenary appellate review of, the objectionable noncustodial portions of a defendant’s sentence.

Finally, make sure you object to illegal/improper conditions of probation and supervised release so that they can be appealed at the time the original judgment is entered. If you do not, it will be extremely difficult, if not impossible, to challenge them later when the defendant’s probation/supervised release is being revoked for failure to comply with those conditions.

Consequences of Failure to Preserve Error

Failure to preserve error generally results in the application of the stringent

“plain error” test.87 The plain error test derives from Federal Rule of Criminal

Procedure 52(b), which provides that “[p]lain errors or defects affecting substantial

87 The word “generally” is used, because some errors may simply not be remediable on appeal without a timely objection. For example, as discussed above, suppression issues and other issues that must be raised by pretrial motion under Fed. R. Crim. P. 12(b)(3) are completely extinguished if not filed by the relevant deadline. See supra text, at 2 & n.7. Furthermore, as also discussed above, a number of Fifth Circuit cases have held that questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error. See supra text, at 21 & n.69.

27 rights may be noticed although they were not brought to the attention of the court.”88

In order for there to be “plain error” warranting reversal, four elements must be satisfied:

(1) There must be an “error.” “Deviation from a legal rule is ‘error’ unless the rule has been waived.”89

(2) The error must be “plain.” “‘Plain’ is synonymous with ‘clear’ or,

equivalently, ‘obvious.’”90 More recently, the Court has elaborated that this

requirement means that the error is not “subject to reasonable dispute.”91

The Supreme Court in Olano declined to decide whether the error had to be

plain at the time of trial/sentencing, or merely at the time of appeal.92 However, in

1997, the Supreme Court held that “in a case . . . where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error

88Fed. R. Crim. P. 52(b).

89United States v. Olano, 507 U.S. 725, 732-33 (1993); see also United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc).

90Olano, 507 U.S. at 734 (citations omitted); see also Calverley, 37 F.3d at 162-64.

91Puckett v. United States, 556 U.S. 129, 135 (2009).

92Olano, 507 U.S. at 734 (“We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.”)

28 be ‘plain’ at the time of appellate consideration.”93 And, in 2013, the Supreme Court

tied up a loose end on this point when it held that “whether a legal question was

settled or unsettled at the time of trial, ‘it is enough that an error be “plain” at the time

of appellate consideration” in order for the second prong of the Olano plain-error test to be satisfied.94

(3) The plain error must “affect substantial rights,” which normally, although not necessarily always, means that the error prejudiced the defendant.95 The defendant bears the burden of proving that his substantial rights were affected by the plain error.96 To make this showing, an appellant normally must show a reasonable probability of a different outcome but for the error;97 however, “the reasonable-

93Johnson v. United States, 520 U.S. 461, 468 (1997).

94Henderson v. United States, 133 S. Ct. 1121, 1130-31 (2013) (citation omitted).

95Olano, 507 U.S. at 734-35; Calverley, 37 F.3d at 164. In Olano, the Court suggested that “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome, but this issue need not be addressed. Nor need we address those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.” Olano, 507 U.S. at 735. In United States v. Reyna, 358 F.3d 344, 350-52 (5th Cir. 2004) (en banc), (2004), the Fifth Circuit followed the suggestion of Olano and held that the violation of a defendant’s right to allocute before sentence should be presumed prejudicial when the defendant shows both a violation of the right and an opportunity for such violation to have played a role in the district court’s sentencing decision.

96See Olano, 507 U.S. at 734; Calverley, 37 F.3d at 164.

97See United States v. Dominguez Benitez, 542 U.S. 74, 83 & n.9 (2004) (to establish an effect on substantial rights for purposes of plain-error review, defendant must normally show a reasonable probability that, but for the error, the outcome of the proceeding would have been different).

29 probability standard is not the same as, and should not be confused with, a requirement that the defendant prove by a preponderance of the evidence that but for

error things would have been different.”98

(4) Finally, even if all of the first three factors are satisfied, “the Court of

Appeals has authority to order correction but is not required to do so.”99 It should

exercise its discretion to correct the plain forfeited error if failure to correct the error

would result in a “miscarriage of justice” or, put another way, “if the error ‘seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.’”100

“Th[is] prong [of plain-error review] is meant to be applied on a case-specific and fact-intensive basis,”101 because “a ‘per se approach to plain-error review is

flawed.’”102

The plain-error standard is quite difficult to meet. Even more alarmingly, it can preclude relief in a number of cases where reversal would result had the error in question been properly preserved. Proper preservation of errors is, therefore, key to effective representation of our clients.

98Id. at 83 n.9 (citation omitted).

99Olano, 507 U.S. at 735; see also Calverley, 37 F.3d at 164.

100Olano, 507 U.S. at 736 (citation omitted); see also Calverley, 37 F.3d at 164.

101Puckett, 556 U.S. at 142.

102Id. (quoting United States v. Young, 470 U.S. 1, 17 n.14 (1985)).

30 Conclusion

Since we can’t win all our cases, appeals are unfortunately necessary. We stand a much better chance on appeal when the error in question is preserved, thus avoiding the handicap of plain-error review. Hopefully, the above tips and pointers will help you to preserve errors for appellate review.

31 PRESERVATION OF ERROR FOR APPEALS: IT’S NOT THAT HARD BUT IT’S THAT IMPORTANT

Tom Moran Schneider & McKinney, P.C. 440 Louisiana, Suite 800 Houston, Texas 77002 (713) 951-9994 [email protected] TABLE OF CONTENTS

INDEX OF AUTHORITIES...... ii Cases...... ii Statutes and Rules...... iii

I. THE CONTEMPORANEOUS OBJECTION RULE...... 1 A. Stated Reasons for the Rule...... 2 B. Another Reason for Rules on Error Preservation ...... 2 C. Don’t Count on a Vindictive Judge/Cowardly Lawyer Exception or Suck It Up, Buttercup...... 3

II. SOURCES OF THE RULE ON ERROR PRESERVATION IN FEDERAL COURT...... 3 A. General Rule for Error Preservation: FED. R. CRIM. P. 51...... 3 1. Timeliness...... 4 2. Specificity...... 4 3. Need for Adverse Ruling...... 5 4. The Ruling Must Be Definitive...... 5 B. FED. R. EVID. 103...... 6 1. What Is a “Definitive Ruling?”...... 7 2. The Offer of Proof...... 8 E. Jury Charge Error Preservation: FED. R. CRIM. P. 30...... 8 1. Requested Jury Charges...... 9 2. Objections to Charges Actually Given...... 9 D. What Happens When Error Is Not Preserved: FED. R. CRIM. P. 52...... 10

III. SPECIFIC EXAMPLES OF PROCEDURAL LAND MINES...... 11 A. Waived Error vs. Forfeited Error...... 11 B. Renew That Rule 29 Motion for Judgment of Acquittal...... 12 C. File Timely Pretrial Motions...... 14 D. Watch Those Local Rules...... 14

IV. ADVANCE PREPARATION TO PRESERVE ERROR...... 14

V. DON’T MAKE SILLY MISTAKES...... 15

VI. CONCLUSION...... 16

i INDEX OF AUTHORITIES

Cases

Black v. United States, U.S. , 130 S. Ct. 2963 (2010)...... 10

Chapman v. California, 386 U.S. 18 (1967)...... 11

Crawford v. Washington, 541 U.S. 36 (2004)...... 4

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992)...... 1

Melendez-Diaz v. Massachusetts, U.S. , 129 S. Ct. 2527 (2009)...... 4

United States v. Andino, 627 F.3d 41 (2nd Cir. 2010)...... 9

United States v. Butler, No. 10-1048 (5th Cir. March 21, 2011) (not yet reported)...... 12

United States v. Flonnory, 630 F.3d 1280 (10th Cir. 2011)...... 13

United States v. Frazier, 595 F.3d 304 (6th Cir. 2010)...... 13

United States v. Gari, 572 F.3d 1352 (11th Cir. 2009), cert. denied, U.S. , 130 S. Ct. 1562 (2010)...... 7

United States v. Grissom, 525 F3d 691 ( 9th Cir. 2007) ...... 4

United States v. Helmel, 769 F.2d 1306 (8th Cir. 1985)...... 4

United States v. Hines, F.3d , 2011 U.S. App. LEXIS 393 (4th Cir. January 7, 2011) (not yet reported)...... 4

United States v. Kaba, 480 F.3d 152 (2nd Cir. 2007)...... 3

United States v. Knezek, 964 F.2d 394 (5th Cir. 1992)...... 14

United States v. Leung, 40 F.3d 577 (2nd Cir. 1994)...... 3

United States v. Lopez, 392 Fed. Appx. 245 (5th Cir.), cert. denied, U.S. , 131 S. Ct. 807 (2010) (unpublished)...... 11, 12

United States v. Marcus, U.S. , 130 S. Ct. 2159 (2010)...... 10

ii United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999)...... 7

United States v. Redlightning, 624 F.3d 1090 (9th Cir. 2010)...... 5

United States v. Robinson, 627 F.3d 941 (4th Cir. 2010)...... 10

United States v. Rodriguez, F.3d , U.S. App. LEXIS 26010 (11th Cir. December 22, 2010) (not yet reported)...... 3, 16

United States v. Roth, 628 F.3d 827 (6th Cir. 2011)...... 9

United States v. Taylor, 514 F.3d 1092 (10th Cir. 2008) ...... 5

United States v. Troxler, 390 F. Appx. 363 (5th Cir. 2010) (unpubished)...... 11, 12

United States v. Wilson, 605 F.3d 985 (D.C. Cir.), cert. denied, U.S. , 131 S. Ct. 841 (2010 ...... )4

Statutes and Rules

FED. R. CRIM. P. 12(b)(3)...... 14

FED. R. CRIM. P. 12(e)...... 14

FED. R. CRIM. P. 29...... 12, 13

FED. R. CRIM. P. 30...... 8, 9

FED. R. CRIM. P. 52...... 10

FED. R. CRIM. P. 51...... 3

FED. R. EVID. 103...... 6, 8

FED. R. EVID. 105...... 8, 13

FED. R. EVID. 403...... 5

FED. R. EVID. 404(b)...... 5

FED. R. CRIM. P. 12(h) ...... 14

U.S. CONST. amend. V...... 15

iii U.S. CONST. amend. VI...... 4

U.S. CONST. amend. XIV...... 15

iv [A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

Lankston was written by Judge Fortunato P. Benavides before he was appointed to the Fifth

Circuit by President Clinton. However, the rule set out in Lankston is as valid in federal court as it is in Texas courts.

Proper preservation of error can mean the difference between a summary affirmance or a new trial or sentencing for a client. It can be the difference between a client serving a long prison term or being acquitted on appeal. It is as much a trial lawyer’s job as presenting witnesses or showing up in court for the trial.

This paper is designed to give new practitioners an overview of how error is preserved in federal court and what can happen when it is not preserved. It is not designed to be a comprehensive look at all possible types of error and how they can be preserved for appellate review and it is not designed to be a treatise on how to litigate an appeal.

I. THE CONTEMPORANEOUS OBJECTION RULE

As a general rule, appellate courts only review trial court judgments for legal errors made by the trial judge. So, most points of error read something like:

The District Court erred in overruling Appellant’s motion to suppress evidence.

Or,

The District Court erred in sustaining the Government’s objection to the admission of Defendant’s Exhibit 1, a sworn statement by John Doe that he in fact committed the crime for which Appellant was convicted.

1 Or,

The District Court erred in overruling Appellant’s objection to the admission of Government’s Exhibit 1, a custodial statement of a non-testifying co-defendant.

In each case set out above, a person is complaining on appeal of an adverse ruling by the trial judge. In all three examples, the issue was preserved for appeal, that is, the trial judged ruled adversely to the defendant. If there is no request for a ruling, it is impossible to claim on appeal that the trial judge erred.

A. Stated Reasons for the Rule

The contemporaneous objection rule is based on the theory that parties to litigation must give notice to the trial judge of errors they believe he is making. This allows the trial judge to correct his error. It also allows opposing counsel the chance to correct errors.

So, for example, if an attorney does not include all of the necessary proof for admission of a business record, the opposing attorney must make a specific objection such as, “Objection, there is no evidence that the entries were made by a personal knowledge of the events recorded therein.”

That informs the court and all parties of the substance of the complaint and allows the lawyer to correct the omission or error.

B. Another Reason for Rules on Error Preservation

No appellate judge will admit it, but it is a lot easier to write an opinion saying error was not preserved than it is to deal with a possibly complex legal argument raised on appeal. And, it is a lot easier to affirm a conviction if important appellate issues are not preserved.

2 C. Don’t Count on a Vindictive Judge/Cowardly Lawyer Exception or Suck It Up, Buttercup

In two cases, United States v. Kaba, 480 F.3d 152 (2nd Cir. 2007); and United States v.

Leung, 40 F.3d 577 (2nd Cir. 1994), the Second Circuit carved an exception to the contemporaneous objection rule to case in which a judge makes an improper statement during a sentencing hearing.

The theory was that if the lawyer objected to a judge’s statement during the sentencing hearing, a vindictive judge would take it out on the client. The 11th Circuit rejected this exception in United

States v. Rodriguez, 627 F.3d 1372 (11th Cir. 2010).

The 11th Circuit’s held the fact that a judge may be unhappy with an objection and retaliate is demeaning to both the judge and the cowardly lawyer who does not make the objection. It is likely that most circuits will agree with the 11th Circuit and reject the 2nd Circuit’s exception.

Practice Note: Even in the 2nd Circuit, it would be unwise to rely on this exception. Your client is likely to get a very bad result.

II. SOURCES OF THE RULE ON ERROR PRESERVATION IN FEDERAL COURT

Three provisions of the Federal Rules of Criminal Procedure and one in the Federal Rules of

Evidence govern error preservation. They will be discussed separately.

A. General Rule for Error Preservation: FED. R. CRIM. P. 51

(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.

(b) Preserving a Claim of Error. A party may preserve a claim of error by informing the court – when the court ruling or order is made or sought – of the action the party wishes the court to take, or the party’s objection to the court’s actions and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103.

Rule 51(a) simply provides that lawyers need not say, “Note my exception” after the trial judge

3 rules. It once was the rule that “exceptions” were necessary to preserve error. Most states have abrogated that rule along with the federal courts.

Rule 51(b) has two components: timeliness and specificity.

1. Timeliness

An objection must be timely, that is, it must be made at a time when the judge can do something about the complaint. If an objection is not lodged in a timely manner, error is not preserved. United

States v. Hines, F.3d , 2011 U.S. App. LEXIS 393 (4th Cir. January 7, 2011) (not yet reported).

2. Specificity

Specificity is important in preserving error. For example, an objection without stating the grounds has been found insufficient to preserve error for the prosecution asking questions on redirect essentially vouching for the credibility of a witness. The appellate court held that nothing in the context showed that the district court understood the reason for the objection. United States v.

Wilson, 605 F.3d 985, 405 (D.C. Cir.), cert. denied, U.S. , 131 S. Ct. 841 (2010). However, error is preserved if the specific ground is apparent from the context or if the trial court notes it understands. United States v. Grissom, 525 U.S. 691, 695 ( 9th Cir. 2007) (government did not waive objection to sentence when district court stated it knew the grounds for the general objection).

This can be important when there are multiple possible grounds for objection. One important example is the relationship between a hearsay objection and one under the Confrontation Clause of the Sixth Amendment. An objection on hearsay grounds does not necessarily implicate the

Confrontation Clause and therefore does not preserve a confrontation objection for appeal. United

States v. Helmel, 769 F.2d 1306, 1316-17 (8th Cir., 1985). This is especially important in light of

Melendez-Diaz v. Massachusetts, U.S. , 129 S. Ct. 2527 (2009), and Crawford v.

4 Washington, 541 U.S. 36 (2004). Evidence which might be admissible under the hearsay rule may be inadmissible under the Confrontation Clause and vice versa. Therefore, it is incumbent on counsel to raise both issues.

The same is true for objections to extraneous offenses or other acts the prosecution wishes to introduce pursuant to FED. R. EVID. 404(b). A Rule 404(b) objection normally should be accompanied by an objection under FED. R. EVID. 403 that the probative value is substantially outweighed by the danger of unfair prejudice, confusion of he issues etc.

3. Need for Adverse Ruling

It is axiomatic that a party cannot complain on appeal if the trial judge gives him everything he asks for. To preserve error for appeal, the lawyer must press the district judge until he makes an adverse ruling. United States v. Taylor, 514 F.3d 1092, 1096 (10th Cir. 2008) (when objection is sustained and trial court gives curative instruction on defendant’s request, defendant has received all the relief he sought. Mistrial motion required to preserve error).

Remember, appellate counsel starts issues in the brief with: “The District Court erred....”

Therefore, in trial, counsel should object and, if the objection is sustain request a curative instruction from the trial court. If the court gives the requested instruction, counsel must move for a mistrial.

4. The Ruling Must Be Definitive

The adverse ruling must be a definitive ruling, not a preliminary ruling. For example, in United

States v. Redlightning, 624 F.3d 1090, 1113 (9th Cir. 2010), held that no error was preserved in the exclusion of expert testimony when the preliminary order said it was without prejudice to laying a sufficient predicate at trial. The Redlightning Court also held that to preserve error on pretrial exclusion of any evidence, failure to reoffer it at the appropriate stage of trial waives error.

5 Practice Note. While pressing the trial court to an adverse ruling is necessary to preserve error, as a matter of trial strategy, preservation of error may not be a factor. For example, it would be rare indeed for an appellate court to reverse a conviction for a leading question, regardless of whether the error is preserved. So, simply getting an objection sustained would be sufficient as a matter of strategy.

Also, there might be cases where the Government’s case is so weak or some Government witnesses have cratered to the extent that the defense lawyer is confident of an acquittal. In those circumstances, as a matter of trial strategy not ask for a mistrial. You don’t want to give the

Government a chance to fix its messes.

B. FED. R. EVID. 103

Rule 103 governs objections and rulings on admission of evidence. Rule 103 provides:

Rule 103. Rulings on Evidence

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

6 (c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

1. What Is a “Definitive Ruling?”

The general rule is that pretrial motions in limine do not preserve error because they are not definitive rulings. United States v. Gari, 572 F.3d 1352, n. 2 at 1356 (11th Cir. 2009), cert. denied,

U.S. , 130 S. Ct. 1562 (2010). Generally, the objection must be renewed at the time the evidence is offered or error is not preserved. United States v. Nichols, 169 F.3d 1255, 1264 (10th

Cir. 1999).1

All pretrial orders on admission of evidence are subject to review by the trial court during the trial. Even motions to suppress evidence may be reconsidered if, for example, a party does something to open the door to admissibility.2

Practice Note: The bottom line is that a party should not rely on a motion in limine to preserve error. If the party is attempting to exclude evidence, it should renew its objection at the time it is offered. If the party is attempting to admit evidence tentatively excluded by a motion in limine, it should approach the bench and get a definitive ruling at the time the evidence is offered.

1The 10th Circuit recognized an exception if 1) the issue was fairly presented to the district court, it is the type of issue which can be fairly decided in a pretrial hearing and the district court’s ruling is without equivocation. Id. Don’t rely on this holding. Object again.

2For example, a response from the defendant on cross-examination, “I never possessed drugs in my whole life,” could open the door to admission of the cocaine found during the illegal search of his car.

7 2. The Offer of Proof

Rule 103(b) requires that to preserve error in exclusion of evidence, the trial judge be informed of the substance of the evidence. The trial judge has the option of requiring the offer of proof to be made in question and answer form.

Unless the trial court orders question and answer offers of proof, they can be made orally or in writing. All offers of proof should be made outside the jury’s presence. The offer of proof is designed to fairly apprise the trial judge of the evidence. However, it serves another purpose for preservation of error. The appellate court cannot determine if the evidence was improperly excluded unless it knows what evidence was excluded and the reasons for its offer. And, it cannot conduct a harmless error analysis unless it can see how the excluded evidence fit into the trial and the defense case.

Practice Note. When making offers of proof, counsel must remember FED. R. EVID. 105, the rule of limited admissibility. For example, if there is a hearsay objection, the proponent of the evidence may be able to have the evidence admitted if it is offered for a non-hearsay purpose. If the evidence is offered for a proper non-hearsay purpose and the trial judge excludes it, there would be error on appeal. However, if it were offered without a limited purpose, exclusion would not be error.

E. Jury Charge Error Preservation: FED. R. CRIM. P. 30

Rule 30 provides:

(a) In General. Any party may request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence or at any earlier time that the court reasonably sets. When the request is made, the requesting party must furnish a copy to every other party.

(b) Ruling on a Request. The court must inform the parties before closing arguments how it intends to rule on the requested instructions.

8 (c) Time for Giving Instructions. The court may instruct the jury before or after the arguments are completed, or at both times.

(d) Objections to Instructions. A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury's hearing and, on request, out of the jury's presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b). 1. Requested Jury Charges

Rule 30 by its own terms requires that requested jury charges be submitted to the trial court before the jury is charged and that they be in writing and served on all other parties. To preserve error, the requested instruction must be 1) a correct statement of the law; and 2) represent a theory of defense with a basis in the record which could lead to an acquittal. United States v. Andino, 627

F.3d. 41 (2nd Cir. 2010). Another court of appeals phrases it differently but with substantially the same requirements for error preservation. The Sixth Circuit will reverse a trial court for refusing a requested instruction if 1) the requested instruction is a correct statement of the law; 2) the requested instruction is not substantially covered by other instructions actually given; and 3) the failure to give the instruction impairs the defendant’s theory of the case. United States v. Roth, 628 F.3d 827 (6th

Cir. 2011).

Therefore, to preserve error in denial of a jury instruction, counsel must request a charge in writing which is a correct statement of the law and is raised by evidence in the record. He also must obtain an adverse ruling on the request.

2. Objections to Charges Actually Given

Rule 30(d) requires a specific objection. All that is required is the objection, stating the specific reason to the proposed instruction. An objection is required even of settled law at the time of the trial

9 is contrary to the defendant’s position. United States v. Robinson, 627 F.3d 941 (4th Cir. 2010)

(objection required to charge applying settled law even though a Supreme Court case after trial reversed the settled law). An objection to the charge preserves error and it is unnecessary to agree to a compromise such as special verdict forms for the jury. Black v. United States, U.S. , 130

S. Ct. 2963 (2010).

Practice Note. There is nothing to lose by objecting before deliberations to the trial court’s failure to give an instruction even though the judge already ruled against a Rule 30(a) request for the instruction. So, do it.

D. What Happens When Error Is Not Preserved: FED. R. CRIM. P. 52

Rule 52 sets two levels of how error is reviewed on appeal, harmless error if the error is preserved for appeal and plain error if it is not. Rule 52 provides:

(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

(b) Plain Error. A plain error that affects substantial rights may be considered even though it is not brought to the court’s attention.

An appellate court may reverse based on plain error, that is error that is not preserved in the trial court, only if

1) there is error;

2) the error is clear and obvious rather than subject to reasonable dispute;

3) the error affected the defendant’s substantial rights, which normally means that it affected the outcome of the proceedings in district court;

4) and, the error affects the fairness, integrity or public reputation of judicial proceedings.

United States v. Marcus, U.S. , 130 S. Ct. 2159, 2164 (2010).

10 This is a very high hurdle to jump. As rare as reversals of convictions have become, reversals based on plain error are much rarer.

The distinction is most important for the appellate lawyer but should not be lost on the trial lawyer. For the trial lawyer, the difference is simple. If error is preserved, the defendant has a chance of obtaining a reversal on appeal. If it is not, he has very little chance of prevailing.

Practice Note: If possible base objections in constitutional grounds as well as other grounds such as the Rules of Evidence. Non-constitutional error is harmless unless it affects a party’s substantial rights. However, when the objection is based on constitutional grounds, the Government must prove beyond a reasonable doubt that the error did not contribute to the conviction. Chapman v.

California, 386 U.S. 18, 24 (1967).

III. SPECIFIC EXAMPLES OF PROCEDURAL LAND MINES

This section is not meant to be a catalogue or listing of all possible error preservation traps. It just points out a few examples of how the appellate courts have adopted rules that can cause clients to lose the chance for meaningful appellate review.

A. Waived Error vs. Forfeited Error

Appellate courts often are sloppy and imprecise in describing the difference between a

“waiver”and a “forfeiture” of error. Some courts use the terms interchangeably or simply talk about waiver. However, the distinction can make the difference between having an issue on appeal and a loss on appeal.

In United States v. Troxler, 390 Fed. Appx. 363 (5th Cir. 2010) (unpublished), and United

States v. Lopez, 392 Fed. Appx. 245 (5th Cir. 2010) (unpublished), the court explained the difference. When error is “waived,” the party intentionally relinquishes or abandons a known right.

11 Error is forfeited if there is no objection.

The difference is crucial. Waiving error for purposes of Troxler and Lopez, there can be no appellate review (other than ineffective assistance of counsel). For example, the Fifth Circuit in

United States v. Butler, No. 10-1048 (5th Cir. March 21, 2011) (not yet reported), held that the defendant “voided” his objections to the presentence report by saying he had no objections at the sentencing hearing. Slip op., n. 1 at 3.

Forfeited error, that is unobjected to error, is subject to plain error review. While plain error review does not give the defendant much of a chance of prevailing on appeal, it is much greater than the zero chance if error is waived.

Practice Note. Don’t give the government the chance to argue waiver. So, for example, if a pretrial motion to suppress evidence is overruled, when the prosecution moves to admit the evidence at trial, do not say, “No objection.” Instead, say, “Other than the objections we have already made, we have no further objections,” or “Your Honor, we renew the objections previously made.”

B. Renew That Rule 29 Motion for Judgment of Acquittal

Unlike the practice in some state courts, the federal courts require a motion for judgment of acquittal pursuant to FED. R. CRIM. P. 29 at the close of the government’s case in order to have review for sufficiency of the evidence. That would seem to preserve error for appellate review as to whether the government presented sufficient evidence to sustain a conviction.

And, that would be wrong.

In reviewing sufficiency of the evidence, appellate courts look to all of the evidence, not just that presented by the government. So, if a defendant (or a co-defendant) presents evidence that plugs a hole in the government’s case, the appellate court will consider that when reviewing sufficiency.

12 Courts of appeals have held in innumerable cases that it is necessary to renew the Rule 29 motion at the close of all the evidence. See e.g. United States v. Flonnory, 630 F.3d 1280 (10th Cir. 2011);

United States v. Frazier, 595 F.3d 304 (6th Cir. 2010). If the motion is not renewed at the close of all of the evidence, sufficiency is reviewed only for plain error. That means, the client probably will lose.

Practice Note. Make the Rule 29 motion as specific as possible while not telling the government what it missed. That way, it can’t move to re-open and fill the gap. Don’t forget to renew the motion.

If a co-defendant is about to introduce evidence that will plug a hole in the government’s case against your client, approach the bench and pursuant to Rule 105, move that the evidence not be admitted against your client. If the trial court rules against you, there is an argument which can be made on appeal that there should be full review of insufficiency, not plain error, and the review should be limited to the evidence against your client. Also object that admission of the evidence against your client by a co-defendant deprives your client’s right to effective assistance of counsel by having another defendant’s lawyer admit the evidence making the case against your client legally sufficient.

And, if the evidence still is coming in, move to sever your client out. Keep giving the trial judge ways he can protect your client’s rights. He just might pick one. An appellate argument can be made that your client was deprived of his right to effective assistance of counsel by the co-defendant’s lawyer.

Neither argument likely will be successful but it beats having a co-defendant’s lawyer torpedo your client’s case while you sit on your hands.

13 C. File Timely Pretrial Motions

Certain motions must be made pretrial or they are waived. They include motions alleging defects in the charging instrument or the institution of the prosecution; motions to suppress; motions to sever; and motions for discovery. FED. R. CRIM. P. 12(b)(3). They are waived if not made within the time set by the trial court. FED. R. CRIM. P. 12(e). So, for example, a defendant was found to have waived his motion to suppress evidence because no timely motion was filed. United States v.

Knezek, 964 F.2d 394 (5th Cir. 1992).

Practice Note. Statements of adverse witnesses must be produced at hearings on motions to suppress. And, law enforcement officers are considered to be government witnesses. FED. R. CRIM.

P. 12(h). So, you are entitled to agents’ statements even if you call them at a hearing on a motion so suppress evidence. Don’t let the government or the trial judge convince you that the Jenks Act allows the statements to be withheld until the agents are passed for cross-examination at trial.

D. Watch Those Local Rules

District courts can adopt local rules which may relate to preservation of error. For example, in the Southern District of Texas, Local Rule CrLR 55.2(B) requires objections to documents be filed within seven days before trial. Miss that date and you’ve waived objections.

IV. ADVANCE PREPARATION TO PRESERVE ERROR

When an attorney is preparing for trial, he or she should recognize legal issues which likely will arise in trial. Each of those issues is a potential issue resulting in reversible error in case of a conviction.

Prepare for those issues. Read and copy cases. Highlight the parts you want the judge to read.

Prepare memoranda of law and drop them in your trial file. Nothing makes a judge more nervous

14 than having a lawyer pull out a written memo during a bench conference.3 And, it increases the chances the judge will rule in your favor.

Many issues come up in trial after trial, so it is easy to recycle memoranda with only a few changes to make them fit the current trial. And, it is hard for the government to argue lack of error preservation when the appellate brief looks almost exactly like a memorandum of law handed to the trial judge. Also, you can frame issues much more easily and more completely in your office before trial than you will in a rushed bench conference.

If you believe that a trial judge likely will exclude some of your evidence, prepare a written offer of proof. Include in the offer different theories for admission of the evidence and different purposes for its admission.

The best of all possible worlds is to have an appellate specialist help you prepare and sit second with you at trial. But, that will rarely be possible in cases involving indigents. But all trial lawyers can prepare pretrial to meet legal issues raised by the government.

V. DON’T MAKE SILLY MISTAKES

Make sure you cite the correct rule, statute or constitutional provision. If you don’t, at a minimum you will look silly. At worst, an appellate court might find that your objection or motion was insufficient to preserve error.

A classic example is mixing the Due Process and Equal Protection Clauses of the Fourteenth

Amendment with the Due Process Clause and Equal Protection component of the Fifth Amendment.

The Fourteenth Amendment applies to the states, not the federal government. The Fifth Amendment

Due Process Clause and Equal Protection component apply to the federal government.

3Of course, make sure you get a file marked copy of any memoranda you give to the judge.

15 The Bill of Rights originally did not apply to the states. Barron v. Baltimore, 32 U.S. (7 Pet.)

243 (1833). Most (but not all) of the provisions of the Bill of Rights apply to the states through the

Due Process Clause of the Fourteenth Amendment.

VI. CONCLUSION

Preserving error for appellate review is as much the job of the trial lawyer as is presenting evidence, cross-examining the government’s witnesses and making final argument. It cannot and should not be ignored or given short shrift.

It may be justifiable to ignore erroneous rulings that are unlikely to result in reversible error but it is not an excuse to ignore error in general. When in doubt, object. And, keep pressing until there is an adverse ruling.

File written motions and memoranda. Give the trial judges highlighted copies of cases. Object, object and keep objecting. If the trial judge gives you something, keep asking for more until the judge says, “No.”

Some attorneys say they are reluctant to make objections for fear of making the judge angry or giving the jury the impression that they are trying to hide something. These concerns should have little affect on the decision on whether to object.

Ask yourself, who would you rather be standing between you and the penitentiary, the shrinking violet, cowardly lawyer from Rodriguez or a lawyer who rips opposing counsel’s heart out just to watch him die? Most of us probably would want the nice guy lawyer if we plan to plead guilty but we would want the aggressive, prepared lawyer if we go to trial.4

4Of course, the best of all possible worlds is to have a lawyer who is a genuinely nice guy who knows when to get along and when to turn into Attilla the Hun.

16 The key is showing both the trial judge and the jury that you have respect for the court. Make your record but always be polite and respectful of the judge and the prosecutor.

A smart (or even a not very smart) judge will have respect for lawyers who make good objections and preserve error. Not only will the judge be on notice that he could be reversed but he will see the lawyer as a knowledgeable professional.

If you have any time to voir dire the jury, you can innoculate the jury against bias by simply telling them that at times there will be difference interpretations of the rules of evidence between you and the prosecutor. Tell them it is your job to bring those to the attention of the judge and for the judge to decide. Then, ask the jury panel if anyone has a problem with that law.

17 HOW, WHEN, & WHY

TO OBJECT, RAISE & PRESERVE ISSUES

Rosemary T. Cakmis Assistant Federal Public Defender Chief, Appellate Division [email protected]

James T. Skuthan Acting Federal Public Defender Middle District of Florida 201 S. Orange Avenue, Suite 300 Orlando, Florida 32801 (407) 648-6338

S:\Cakmis\1-preserve error\1 preserve error may 2008.wpd Contents I. General Rules...... 1 A. Goals...... 1 B. How ...... 1 C. When ...... 2 D. Why ...... 2

II. Pre-Trial Motions ...... 7 A. Fed. R. Crim. P. 12 Motions ...... 7 B. Tips...... 10

III. Contemporaneous Objection Rule ...... 11 A. A party must make a timely “contemporaneous” objection to issues to get the district court to correct them and to preserve them for appeal ...... 11 B. Fed. R. Evid. 103...... 12 C. Judge Tjoflat on Preserving Evidentiary Objections v. Plain Error Review of Evidentiary Rulings...... 12 D. Exceptions to Contemporaneous Objection Rule are Rare ...... 12

IV. Some Common Trial Applications ...... 16 A. Closing Argument ...... 16 B. Confrontation Clause...... 16 C. Evidence - Brady ...... 16 D. Judgment of Acquittal Motion ...... 17 E. Juror Issues...... 19 F. Jury Instructions...... 20

V. Guilty Plea ...... 21 A. In General...... 21 B. Plea Agreement - Breach ...... 22 C. Plea Agreement - Appeal Waiver Language ...... 22 D. CAVEAT on Defendant’s Right to Appeal ...... 24

VI. Sentencing...... 24 A. General Rules...... 24 B. Sentencing - in General ...... 32 C. Sentencing - Allocation ...... 36 D. Sentencing - Restitution ...... 37 E. Resentencing the Second Time Around ...... 38 F. Federal Rule Criminal Procedure 35(a) ...... 40

VII. Appeal ...... 45 A. Arguing on Appeal against Forfeiture of Issues ...... 45 B. Issues Can be Waived During Appeal Even if Those Issues were Preserved in the District Court...... 47 I. General Rules.

A. Goals.

* Zealously represent your client and advocate his rights at all stages of the proceedings - trial, plea, sentencing, and appeal. * If your client wants to plead guilty, ensure that his plea is knowingly, intelligently, and voluntarily entered. * If your client wants to enter a plea agreement, ensure that it is in his best interests and is not breached. * If your client wants to go to trial, ensure that he has a fair trial and receives effective assistance of counsel, who does everything ethically possible to achieve a verdict of not guilty. * If the verdict is guilty, be sure that every issue/ruling is preserved for appeal. * Obtain the best possible sentence for your client at sentencing. * If the sentence imposed is not the best possible sentence, be sure that every issue/ruling is preserved for appeal. * Do everything ethically possible to convince the appellate court to reverse any adverse rulings made by the trial court.

B. How.

Raise every issue. Object to every error. Argue every aspect of your claim. Proffer evidence. Make standing/continuing objections. Adopt co-defendants' motions/objections. File pre-trial motions in limine, and motions to dismiss and suppress. Renew motions/objections when appropriate. Preserve the record. One party objects, and the others join. Know your judge and the rules of his/her court. Sometimes it is presumed that all parties opt in on each other's objections. To be safe, you should announce you opt in on all co-defendants' objections at the beginning of trial. Also, check to be sure if this applies to motions as well. For example, in United States v. Moore, 104 F.3d 377 (D.C. Cir.1997), a motion for severance, made by a co-defendant charged with drug and weapons possession, was not attributed to the defendant for purposes of satisfying the requirement that the defendant preserve his objection for appellate review. The agreement between the defendants and court that all defense objections would be deemed jointly made did not apply to motions, and in any event the co-defendant's motion had been based on inability to call the defendant as a witness, and the defendant was basing his claim for severance on irreconcilable defenses.

Review the PSR thoroughly with your client. Object to the facts and conclusions in the PSR and at sentencing. Articulate all arguments and issues.

Expect to win in the district court, but do not forget to preserve the record for appeal, just in case. Even if relegated to plain error standard, still raise it -- chances are better on direct appeal than on collateral attack.

Do not ignore issues that your circuit has ruled against. The Eleventh Circuit has suggested litigants raise such issues, lest they be deemed abandoned in the event of a change in the law. "[A] litigant is never precluded from raising an issue simply because a previous appeal has been decided

1 that rejects a particular argument." United States v. Levy, 379 F.3d 1241 (11th Cir. 2004), reh'g en banc denied, 391 F.3d 1327 (11th Cir. 2004) (Hull, J., concurring). "This is so because there is nothing prohibiting this Court sitting en banc or the Supreme Court from reconsidering or overruling arguments that had been previously rejected." Id. (citing Engle v. Isaac, 456 U.S. 107, 130, 102 S. Ct. 1558, 1573 (1982) ("Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.")).

C. When.

If possible, catch the error before it occurs. For example, prior to trial, file a motion in limine or a motion to suppress evidence. If your pretrial motion is denied, raise the objection again at the appropriate time during trial, e.g., object when the evidence sought to be suppressed or admitted is admitted or excluded at trial. Again, proffer facts and explain all grounds and why the evidence is prejudicial or necessary. See, e.g., United States v. Rutkowski, 814 F. 2d 594 (11th Cir. 1987) (ruling that the defendant failed to preserve the evidentiary issue for appeal, because even though the defendant's attorney objected before trial to admission of the evidence, he failed to object during trial). As discussed below, certain motions must be filed pre-trial, like motions challenging defects in the proceedings, discovery motions, and severance motions. See FRCrP 12(b)(3). The district court sets time limits for filing such motions. Failure to comply with these time limits can waive the right to file such motions in the district court. There are also rules regarding objections during trial, such as the contemporaneous objection rule. Rules like the contemporaneous objection rule are not just a trap for the unwary practitioner. They actually can be helpful, in that they can bring an error to the district court's attention, so that it can rule on (and hopefully correct) the error in a timely manner. There are also time constraints in place at sentencing. Everyone is alerted to the time periods for objections to the pre-sentence report (PSR). In the end, all objections to the PSR and the sentence must be presented to the district court before or at sentencing. The PSR must also be presented to the client at least 10 days before sentencing.

D. Why.

1. Why so many rules and time limits?

Not that I'm the rule guru, but there is some logic to the theory that if all the rules are timely followed in the trial court, then the trial court will have the opportunity to rule on and correct any and all errors. If every error gets fixed in the trial court, the client gets a perfect trial - no need for appeal. If the trial court rules against your client, by objecting and specifying facts and arguments, you preserve the issue for further review. The contrary holds true as well. If an issue is not timely objected to or raised in the district court, the district court is not presented with the first opportunity to correct the "error" and the issue is not preserved for appellate review. United States v. Burgess, 175 F.3d 1261, 1265 (11th Cir. 1999): "The law is clear that, to be given effect, 'an objection must be framed with precision sufficient to inform the trial judge as to the matter about which the objection is raised and the grounds therefor.' . . . The idea behind this requirement is that the district court should be given 'the chance to correct errors before the case goes to the jury.'" [Citations omitted.] United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998): "The contemporaneous

2 objection rule fosters finality of judgment and deters 'sandbagging,' saving an issue for appeal in hopes of having another shot at trial if the first one misses . . . . The contemporaneous objection rule also promotes the salutary interest of making the trial the main event. Failure to enforce it 'tends to detract from the perception of the trial of a criminal case. . . .as a decisive and portentous event.' . . . Moreover, requiring timely objections allows trial courts to develop a full record on the issue, consider the matter, and correct any error before substantial judicial resources are wasted on appeal and then in an unnecessary retrial. . . . A full record and a prior decision in the district court are essential ingredients to our substantive review of issues-- they flesh out an issue in a way the parties' briefs may not." [Citations omitted.]

2. What are the consequences of failing to comply with these rules and time limits?

The generic answer is: Losing the ability to have the district or appellate court correct an error or having to deal with a higher standard of review (plain error). However, the reality is that your client is the one who ends up doing more time because an issue may have been won under harmless error review, but is lost under plain error review; or an issue is not raised at all. Not only does the client lose, but also you lose and the system loses because more litigation is very likely to ensue. See, e.g., Martin v. Maxey, 98 F.3d 844 (5th Cir. 1996) (finding failure to file a motion to suppress may be grounds for an ineffectiveness claim); Sager v. Maass, 84 F.3d 1212 (9th Cir. 1996) (finding counsel ineffective for not objecting to inadmissible evidence); United States v. Glover, 97 F.3d 1345 (10th Cir. 1996) (finding it was ineffective for counsel to fail to object to the higher methamphetamine range).

a. Forfeiture v. Waiver.

United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en banc): "Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." Id. at 1121 (quoting United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993)) (emphasis added). In Olano, the Supreme Court clarified that "[m]ere forfeiture, as opposed to waiver, does not extinguish an 'error' under Rule 52(b)." Olano, 507 U.S. at 733, 113 S.Ct. at 1777 (citation omitted). Thus, while forfeited claims are reviewed under Rule 52(b) for plain error, waived claims are not. Lewis, 492 F.3d at 1221 (citing Olano, at 733, 113 S.Ct. at 1777. "Under Federal Rule of Criminal Procedure 52(b), this Court may correct a 'plain error that affects substantial rights ... even though it was not brought to the [district] court's attention.'" Lewis, 492 F.3d at 1221 (quoting FED. R. CRIM. P. 52(b)). Lewis is important for several reasons. It is a 2007 en banc decision. It rejected prior Eleventh Circuit precedent that refused to consider double jeopardy claims raised for the first time on appeal. In doing so, it clarified the distinction between waiver and forfeiture. Before Lewis, the courts, as well as counsel, used the term "waiver" loosely to refer to almost any claim not raised in the district court. Even after Lewis, the word "waiver" is often inadvertently used in lieu of forfeiture. However, the difference between waiver and forfeiture is not a matter of mere semantics, but is critical to whether an issue is lost forever or can be revived under plain error review. Olano is the leading Supreme Court case on plain error.

3 b. Defining Plain Error.

United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993): A court of appeals has discretion under Rule 52(b) to correct "plain errors or defects affecting substantial rights" that were forfeited because not timely raised in the district court, which it should exercise only if the errors "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. 157, 160 (1936). There are three limitations on appellate authority under Rule 52(b). First, there must be an "error." A deviation from a legal rule during the district court proceedings is an error unless the defendant has waived the rule. Mere forfeiture does not extinguish an error. Whether a particular right is waivable, whether defendant must participate personally in the waiver, whether certain procedures are required for waiver, and whether defendant's choice must be particularly informed or voluntary depend upon the right at stake. Second, the error must be "plain," a term synonymous with "clear" or, equivalently, "obvious." Third, the plain error must "affec[t] substantial rights," which normally means that the error must be prejudicial, affecting the outcome of the district court proceedings. Normally a court of appeals engages in a specific analysis of the district court's record to determine prejudice, and the defendant bears the burden of persuasion. The Court did not decide whether the phrase "affecting substantial rights" is always synonymous with "prejudicial" or whether there are errors that should be presumed prejudicial. United States v. Atkinson, 297 U.S. 157, 160 (1936): The error is plain error where it would seriously affect the "fairness, integrity, or public reputation of judicial proceedings". United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002): While indictment's failure to include any allegation regarding quantity of drugs involved in alleged conspiracy rendered conspirators' enhanced sentences erroneous under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000), error did not seriously affect fairness, integrity, or public reputation of judicial proceedings, and thus did not rise to level of plain error, where evidence that this conspiracy involved at least 50 grams of cocaine base was overwhelming and essentially uncontroverted. United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998):"The narrowness of the plain error rule is a reflection of the importance, indeed necessity, of the contemporaneous objection rule to which it is an exception. . . . 'In the absence of plain error. . . it is not our place as an appellate court to second guess the litigants before us and grant them relief they did not request, pursuant to legal theories they did not outline, based on facts they did not relate.' Because the contemporaneous objection rule is essential to the integrity and efficiency of our judicial process, we have stressed that '[t]he plain error test is difficult to meet.'" [Citations omitted.] The Eleventh Circuit further explained that two situations in which an error becomes "plain error" are (1) where a squarely-on-point intervening decision of the Eleventh Circuit or the Supreme Court makes the error plain, or (2) where the error is egregious and strikes at a core principle which the violated rule or law embodies. Id. at 711. United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996): Reversal for error that has not been objected to is possible, but not required, where error is plain and affects substantial rights.

c. Plain Error v. Harmless Error.

Plain error is a difficult standard of review to meet, but it is not impossible, and it is certainly better to have some review than no review at all. Harmless error, which is applied to preserved issues, is a much better standard of review. The difference between plain error review and harmless error review is often outcome determinative on appeal. The Eleventh Circuit explained the difference between plain and harmless error review in United States v. Turner, 474 F.3d 1265, 1275-1276 (11th Cir.2007):

4 Plain-error review differs from harmless-error review in both purpose and scope. See United States v. Simmons, 961 F.2d 183, 185 n. 1 (11th Cir.1992) (per curiam). Most notably, unlike harmless-error review, plain-error review is intended to enforce the requirement that parties lodge timely objections to errors at trial so as to provide the district court with an opportunity to avoid or correct any error, and thus avoid the costs of reversal and a retrial. Id. (citing United States v. Sorondo, 845 F.2d 945, 949 (11th Cir.1988)). "Consequently, proof of a plain error involves not only a showing of harm, but also proof that the error was so conspicuous that the 'judge and prosecutor were derelict in countenancing it.' " Id. (quoting United States v. Bonavia, 927 F.2d 565, 570 (11th Cir.1991)). "An error that is not harmless, then, is not necessarily a plain error." Id. In addition to the differences in purpose served by the plain-error and harmless-error standards, the standards also differ in application in two significant ways. United States v. Monroe, 353 F.3d 1346, 1352 (11th Cir.2003). First, under plain-error review, the defendant bears the burden of persuasion to show prejudice or an effect on substantial rights, whereas under harmless-error review, the government has the burden of establishing harmlessness beyond a reasonable doubt. Id. Second, "plain-error review has the additional requirement that an appellate court then must decide whether to exercise its discretion to notice a forfeited error." Id. We will exercise our discretion to correct only those errors that "seriously affect [ ] the fairness, integrity or public reputation of judicial proceedings." United States v. Vonn, 535 U.S. 55, 63, 122 S. Ct. 1043, 152 L. Ed.2d 90 (2002) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 123 L. Ed.2d 508 (1993)).

d. Some cases where the plain error standard was met:

United States v. Miranda, 197 F.3d 1357, 1359 (11th Cir 1999): The defendant was convicted of conspiracy to launder money based on conduct that occurred before the enactment of the substantive money laundering statutes. The Eleventh Circuit held that this "naked ex post facto violation" constituted plain error. Id. The court did not mention whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Webster, 84 F.3d 1056 (11th Cir. 1996): When a law is clarified between trial and appeal, a point of appeal will be preserved as plain error. United States v. Cobbs, 967 F.2d 1555 (11th Cir. 1992): Illegal sentences subject to review as plain error include sentences that are beyond the statutory power of the court to impose them. Harris v. United States, 149 F.3d 1304 (11th Cir. 1998): In this § 2255 case, the Eleventh Circuit reiterated existing authority, which holds that jurisdictional defects cannot be procedurally defaulted. The defendant received an enhanced sentence based upon 21 U.S.C. § 851(a)(1). That drug enhancement statute (unlike the "career offender" guidelines and the armed career criminal statute) requires the government to file an information, prior to the sentencing hearing, in order to trigger the statutory enhancement provision. In the instant case, the defendant had actual notice that the government was seeking to enhance his sentence pursuant to § 851. However, the government did not follow the proper procedure and did not file an "information" with the clerk. After beginning his prison term, the defendant filed a § 2255 action. The government responded that the claim was procedurally defaulted and that even if defense counsel was ineffective for failing to raise the issue on direct appeal, there was no prejudice since the defendant was aware of the enhancement at the change of plea hearing. The Eleventh Circuit reiterated that a sentencing court is without jurisdiction to impose an enhanced sentence, pursuant to § 851, unless the government properly files the § 851 notice in

5 compliance with the statute (see United States v. Olson, 716 F.2d 850, 853 (11th Cir. 1993). The court then held, as to defendant's §2255 claim, that he did not have to show cause and prejudice to collaterally attack an enhanced sentence on the grounds that the district court lacked jurisdiction to impose the enhanced sentence. The court held that such was the case even though the defendant failed to object at trial or on direct appeal. Thus, any defendant who pled under similar circumstances, or where the information was filed AFTER the change of plea, may be entitled to relief. United States v. Alborola-Rodriguez, 153 F.3d 1269 (11th Cir. 1998): One issue the court dealt with involved its ability to sua sponte address the district court's lack of subject matter jurisdiction. The district court ordered that the defendant be deported as a condition of his supervised release. Since the district court lacked jurisdiction to impose such a condition, the Eleventh Circuit sua sponte reversed this condition of supervised release. United States v. Barajas-Nunez, 91 F. 3d 826, 833 (6th Cir. 1996): The court concluded it was plain error for a sentencing court to disregard the guidelines because"[p]ermitting sentencing courts to disregard governing law would diminish the integrity and public reputation of the judicial system."

e. Some cases where the plain error standard was not met.

Johnson v. United States, 520 U. S. 461 (1997): The district court plainly erred in failing to submit the question of the materiality of a false statement to the jury. However, the Supreme Court held that this plain error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings because the evidence supporting materiality was overwhelming and materiality was essentially uncontraverted at trial and on appeal. Id. at 470. Reversal for failure to allow the jury to consider materiality in light of the overwhelming, uncontraverted evidence of materiality, would have had no effect on the judgment. In deciding that the jury instruction did not seriously affect the fairness, integrity, or public reputation of judicial proceedings, the Supreme Court stated "[r]eversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it." Id. (quoting R. Traynor, The Riddle of Harmless Error, 50 (1970)). United States v. Frost, 139 F.3d 856 (11th Cir. 1998): As in Johnson v. United States, 520 U. S. 461 (1997), the Frost court found that there was overwhelming evidence of materiality. Based on this overwhelming evidence and the lack of any convincing argument that the false statement was not material, the court found no basis to conclude that the error seriously affected the fairness, integrity, or public reputation of judicial proceeding or resulted in a miscarriage of justice. Id. at 860- 861. United States v. Humphrey, 164 F.3d 585 (11th Cir. 1999): The defendant pled guilty to possessing cocaine base with intent to distribute (21 U.S.C. § 841(a)(1)), and to using and carrying a firearm in a drug trafficking crime (18 U.S.C. § 924(c)(1)). At the plea hearing, the district court failed to inform the defendant that sentences on these two counts had to be served consecutively. No one objected. The Eleventh Circuit found this was not plain error under the rule requiring that a defendant be informed of the consequences of his guilty plea because federal circuits were split on the issue of whether the court is required to inform a defendant about the consecutive nature of multiple sentences. Because said issue had not been resolved by the governing circuit, any error was not so obvious or clear under current law that it could be termed "plain error."

6 II. Pretrial Motions.

Some issues should be raised pretrial, and some must be raised pretrial in order to get the district court to consider them. As a general rule, if it can be raised pretrial, raise it, unless there is some particular reason it will harm your case.

A. Fed. R. Crim. P. 12 Motions.

1. Fed. R. Crim. P. 12(b)(2) provides: "A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." (Emphasis added). This may be done, for example, by way of a motion in limine. However, be advised that a motion in limine does not eliminate the need for objection at trial. Ohler v. United States, 529 U.S. 753, 120 S. Ct. 1851 (2000): The Supreme Court ruled that a defendant waived the right to appeal an adverse in limine ruling that her prior conviction was admissible for impeachment purposes when she preemptively introduced evidence of the conviction on her direct examination. The Court noted the ordinary rule that a party waives an objection to the introduction of evidence when that party introduces evidence on the same subject matter. The Court pointed out that a ruling on a motion in limine is not final, and that the trial judge could reverse his/her ruling up until the time the government sought to impeach the defendant with the prior conviction.

2. Rule 12(b)(3) provides that certain motions must be raised before trial, including challenges to the following:

a. defects in the institution of the proceedings, for example:

The Speedy Trial Act provides, in pertinent part, that "[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section." 18 U.S.C. § 3162(a)(2); United States v. Register, 182 F.3d 820 (11th Cir. 1999) (holding the defendant waived relief under the Speedy Trial Act by failing to make a motion to dismiss the indictment based on the Act). When raising a speedy trial claim, be sure to raise the constitutional claim also and challenge it at all relevant junctures. United States v. Twitty, 107 F.3d 1482 (11th Cir. 1997): Delay of two years between the defendant's indictment on multiple charges related to bank fraud and conspiracy in connection with real estate development and the beginning of his trial did not violate his Sixth Amendment right to speedy trial, even though length of delay was presumptively prejudicial. The government was found to be neither negligent nor purposefully dilatory in its prosecution of defendant. Of particular importance, of course, was the fact that the defendant failed to assert his constitutional speedy trial right in timely fashion, to object to any grant of continuance, to object to any of co-defendants' motions requesting additional delays, to request severance, or to identify actual prejudice to his defense resulting from delay. The failure to assert the constitutional right to speedy trial is weighed heavily against the defendant. The defendant's failure to object here militated against finding a constitutional violation.

7 Where defendants do not file a motion for a change of venue prior to trial, they also have been held to have waived any objection to venue and have not been allowed to raise a challenge to venue for the first time on appeal. United States v. Dabbs, 134 F.3d 1071, 1078 (11th Cir. 1998) (holding that "the appellants waived their venue challenge when they failed to raise it in the district court."); United States v. Bustos-Guzman, 685 F.2d 1278, 1280 (11th Cir. 1982)(“Because defendants did not file a motion for a change of venue prior to trial, they waived any objection to venue and may not raise it for the first time on appeal.”); United States v. Hankins, 581 F.2d 431, 438 n. 11 (5th Cir.1978) (“It is elementary that venue can be waived if not timely raised.”). In Dabbs, the Eleventh Circuit rejected the defendants' reliance on United States v. Bowdach, 414 F.Supp. 1346 (S.D.Fla.1976), aff'd, 561 F.2d 1160 (5th Cir.1977), for the proposition that a general motion for acquittal is sufficient to preserve a venue challenge unless the district court requires the defendants to particularize their objections. Additionally, the Eleventh Circuit rejected Bowdach 's suggestion that defendants do not have to specifically articulate a challenge to venue or that the district court bears responsibility for notifying defendants of their burden. Instead, the Eleventh Circuit read its holding in Bustos-Guzman as requiring defendants to clearly articulate their objection to venue. Bustos-Guzman, 685 F.2d at 1280. The Eleventh Circuit noted that other circuits also require defendants to specifically articulate a venue challenge. See United States v. Potamitis, 739 F.2d 784, 791 (2d Cir. 1984); Gilbert v. United States, 359 F.2d 285, 288 (9th Cir. 1966). The Dabbs Court also noted that there is an exception to the rule that a failure to object to venue before trial constitutes a waiver, but that exception was irrelevant in Dabbs. 134 F.3d at 1078 n.8. In United States v. Daniels, 5 F.3d 495, 496 (11th Cir.1993), the Court held that “when an indictment contains a proper allegation of venue so that a defendant has no notice of a defect of venue until the Government rests its case, the objection is timely if made at the close of the evidence.” (Internal quotation marks omitted.).

b. defects in the indictment/information-- BUT at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense;

United States v. Ross, 131 F.3d 970 (11th Cir. 1997): The defendants' appellate vagueness objection to the indictment was rejected because they made no prior objection to the form of the indictment and there was no clear prejudicial error given that the closing arguments of the parties showed a mutual understanding of the straightforward language of the indictment. United States v. Rivera, 77 F.3d 1348 (11th Cir. 1996): Appellant waived his claim that the conjunctive indictment was so duplicitous as to violate Fifth Amendment where he failed to object on this ground prior to trial.

c. suppression of evidence,

Remember: if your pretrial motion to suppress is denied, you must object again if the government refers to the evidence in opening statements, closing arguments, and when the government offers the evidence at trial. See, e.g., United States v. Rutkowski, 814 F. 2d 594 (11th Cir. 1987) (holding Defendant failed to preserve the evidentiary issue for appeal, because even

8 though the defendant's attorney objected before trial to admission of the evidence, he failed to object during trial). Also remember: if your client pleads guilty, he waives any suppression issue unless specifically preserved during the guilty plea. See United States v. Crumpton, 222 Fed. Appx. 914, 2007 WL 879807 (11th Cir. March 26, 2007) (holding defendant waived the right to appeal the district court's denial of his motion to suppress when he entered an unconditional, voluntary guilty plea, and the district court was not required to explain general waiver effect guilty plea had on appellate rights).

d. discovery (Rule 16);

See, e.g., United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973): Where there was no reason to believe that discovery was inadequate to notify defense counsel of intent by government to introduce evidence of out-of-court photographic identification of defendant, defendant's motion for pretrial hearing regarding such evidence, made on day of trial, came too late.

e. severance of parties or charges (Rule 14).

United States v. Gelzer, 50 F.3d 1133 (2d Cir. 1995): Failure to raise claim of improper joinder before trial results in waiver of that issue on appeal. But see United States v. Bordeaux, 84 F.3d 1544 (8th Cir. 1996): First defendant, who renewed motion for severance at time he moved for judgment of acquittal or new trial, preserved severance issue for plenary review, while second defendant who did not renew severance motion, and thus prevented district court from ruling on motion at any time after exact nature of first defendant's testimony was known, was entitled to review only for plain error.

3. Rule 12(b)(4), which is entitled "Notice of the Government's Intent to Use Evidence," provides: (A) At the Government's Discretion. At the arraignment or as soon afterward as practicable, the government may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C). (B) At the Defendant's Request. At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.

4. Rule 12(c) allows the district court "at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing."

Read all pretrial orders, including seemingly form orders like standard discovery orders, carefully. Discovery orders differ among the judges. Judges sometimes change their orders and deadlines without notice. Make waiver work for you. Hold the other party to his/her deadlines. Whatever you do, don't miss your deadlines. See, e.g.: United States v. Avery, 205 Fed. Appx. 819, 2006 WL 3713766 (11th Cir. 2006): On

9 September 6, 2005, before trial, the district court had entered a scheduling order, requiring the parties to submit all motions, including motions to dismiss the indictment, by September 26, 2005. The order also included a waiver provision, which indicated that the failure to raise any defenses or objections in a timely motion would constitute waiver unless the party could demonstrate excusable neglect. On November 25, 2005, Avery filed a motion to dismiss the indictment on the basis of "outrageous government conduct." Id. at 822. The district court did not rule on Avery's motion to dismiss the indictment, and trial began on November 28, 2005. Avery renewed his motion to dismiss the indictment at the close of the government's case. The court first found that Avery's motion was untimely and that he did not establish a sufficient excuse for the delay. The court also denied Avery's motion on the merits. Id. On appeal, the Eleventh Circuit's holding dealt with Federal Rules of Criminal Procedure 12(b)(3)(B), (c), & (e). A motion to dismiss an indictment must be made prior to trial. Fed.R.Crim.P. 12(b)(3)(B). A district court may set a deadline by which parties must make pre-trial motions. Fed.R.Crim.P. 12(c). However, "[a] party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver." Fed.R.Crim.P. 12(e). In Avery's case, the district court entered a scheduling order in which the court required that any motion to dismiss the indictment be filed by September 26, 2005. Avery filed his motion to dismiss on November 25, 2005, which was the Friday before his trial began the following Monday. Thus, under the explicit language of Rule 12 and the court's scheduling order, Avery waived his right to move to dismiss the indictment. Nonetheless, Avery argues on appeal that the facts upon which his motion relied could not have been fully discovered until trial. However, given that Avery's motion to dismiss contained three pages of detailed facts regarding the government's conduct in his case, his argument that the necessary facts could not have been discovered prior to trial is meritless. As such, the district court correctly determined that Avery's motion to dismiss was untimely. Id. at 824-825.

5. Rule 12(e) states: "A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver."

B. Tips.

1. Specify facts. Do not wait for an evidentiary hearing to flesh out the factual basis for your motion. Evidentiary hearings are not always granted. To get an evidentiary hearing, you must provide detailed facts, not conjecture.

2. Specify all your grounds for the motion. Only the grounds presented to the district court will be considered on appeal.

3. Be careful not to open the door or invite the error. When you are introducing evidence or examining a witness, if you even remotely touch upon some matter that somewhat relates to damaging evidence, you will probably be found to have "opened the door" to

10 allow that damaging evidence to come in. So even if it would otherwise have been error to have admitted it into evidence, once you "opened the door," the government will rush in through the opened door with the tainted evidence and the court will most likely say you invited the error. See United States v. Love, 449 F.3d 1154 (11th Cir. 2006) (Doctrine of invited error is implicated where party induces or invites district court into making an error; it is a cardinal rule of appellate review that party may not challenge as error a ruling or other trial proceeding invited by that party). If this occurs, don't give up without a fight. You can still argue the probative value is outweighed by the prejudice. However, it is best to keep the door shut in the first place.

III. During trial: Contemporaneous objection.

A. A party must make a timely "contemporaneous" objection to issues to get the district court to correct them and to preserve them for appeal.

What is "contemporaneous"? The Eleventh Circuit answered that in United States v. Turner, 474 F.3d 1265 (11th Cir. 2007).

In Turner, the defendant argued that the district court erred by admitting hearsay testimony, in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). Turner, 474 F.3d at 1267. Although the defendant objected in the district court, she did not object when the testimony was admitted. In fact, as stated by the Eleventh Circuit, "Turner had ample opportunity to lodge a Bruton objection during the two direct examinations at issue but did not. An objection was made by the defense only the next day, and then only after the district court sua sponte raised the matter." Id. at 1276. Obviously, if the district court sua sponte raised the matter, it knew about it, but that was not sufficient. Nor was it sufficient that the matter was objected to the day after the error occurred, even though trial was still ongoing. Rather, the Eleventh Circuit looked to the purposes of the contemporaneous objection rule and held that the objection the day after the error did not fulfill the purposes. We can discern no reason why this Circuit's well-settled requirement of a contemporaneous objection to preserve an evidentiary ruling for appellate review should not apply here. "[O]ne of the fundamental purposes of the contemporaneous objection rule is to protect judicial resources, in particular by ensuring that the trial courts will have an opportunity to avoid errors that might otherwise necessitate time-consuming retrial." United States v. David, 83 F.3d 638, 644-45 (4th Cir.1996). Another purpose of the contemporaneous objection rule is to prevent counsel from " 'sandbagging' the courts by withholding a valid objection from the trial court in order to obtain a new trial when the error is recognized on appeal." Id. at 645. Neither purpose would be served were we to accept Turner's suggestion that her non-contemporaneous arguments concerning the Bruton-violative testimony sufficed to preserve the issue and entitle her to harmless-error review. . . . By failing to interpose a timely objection during the direct examination of either witness, the defense provided the district judge with no timely opportunity to avoid serious error that might otherwise have necessitated a time-consuming retrial. Id. at 1276. Thus, the Bruton violation was reviewed for plain error, instead of harmless error.

11 In general, it is permissible to raise an evidentiary objection to physical evidence, i.e., an exhibit, at the time it is offered for admission. See United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005).

B. Fed. R. Evid. 103 provides that the party must object to evidentiary rulings and state specific grounds. If the ruling excludes evidence, the substance of the evidence must be made known to the court by an offer of proof, unless it is apparent from the context within which the questions were asked. United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997): Formal offer of proof is not required to preserve an objection to the exclusion of evidence; where the substance of the evidence is apparent to the court from its context, appellant is entitled to ordinary appellate review of the exclusion. United States v. Simon, 964 F.2d 1082, 1085 (11th Cir.1992): "This court generally does not review evidentiary rulings except on the grounds asserted in a contemporaneous objection."

C. Judge Tjoflat on Preserving Evidentiary Objections v. Plain Error Review of Evidentiary Rulings.

In United States v. Stephens, 365 F.3d 967 (11th Cir. 2004), Judge Tjoflat discussed the “wide discretion” district courts enjoy in making evidentiary rulings and how a defendant may obtain the reversal of a conviction based on an evidentiary ruling. Id. at 973. First, he may argue that the district court erred in applying a Federal Rule of Evidence . . . . Second, a defendant may contend that, notwithstanding the correctness of the court's evidentiary ruling, the admission or exclusion of a piece of evidence violated a constitutional guarantee. In many cases, this is essentially making an as-applied constitutional challenge to a particular rule of evidence. Id. In Stephens, the district court erred in applying the Federal Rule of Evidence. Thus, that (as opposed to the constitutional aspects of an evidentiary challenge) was the focus of the Court's discussion. Judge Tjoflat explained how to present an evidentiary challenge on appeal: To successfully challenge a verdict on the basis of a district court's incorrect evidentiary ruling, a party must follow a three-step process. First, he must demonstrate either that his claim was adequately preserved or that the ruling constituted plain error. See Fed. R. Evid. 103(a), (d). Second, he must establish that the district court abused its discretion in interpreting or applying an evidentiary rule. See United States v. Todd, 108 F.3d 1329, 1331 (11th Cir.1997) (“We review a district court's evidentiary rulings under the abuse of discretion standard.”). Finally, he must establish that this error “affected ... a substantial right.” Fed.R.Evid. 103(a); see also United States v. Sellers, 906 F.2d 597, 601 (11th Cir.1990) (“Even where an abuse of discretion is shown, nonconstitutional evidentiary errors are not grounds for reversal absent a reasonable likelihood that the defendant's substantial rights were affected.”); 28 U.S.C. § 2111 (“On the hearing of any appeal ... the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”). Id. at 974. He also explained how to preserve an objection to a district court's exclusion of certain evidence: To preserve an objection to a district court's exclusion of certain evidence, “the

12 substance of the evidence [must be] made known to the court by offer or [be] apparent from the context within which questions were asked.” Fed.R.Evid. 103(a)(2). In this case, Stephens's attorney made a thorough proffer to the court about the anticipated contents of the excluded witnesses' testimony. Consequently, we have no problem in concluding that the record is sufficiently developed to allow us to review this claim. See United States v. Sheffield, 992 F.2d 1164, 1170 (11th Cir.1993) (“[B]ecause the trial court and prosecutor were well aware of the substance of the evidence, and the record reflects the substance of the evidence, we find that the defense counsel made an adequate proffer.”). Id. (Footnote omitted). Because the defendant properly preserved his objections (and properly presented them on appeal), and the Eleventh Circuit found the district court erred in excluding certain evidence, the Court reversed and remanded for a new trial on all counts except for the count where the defendant was arrested and caught with the drugs in hand. The sentence on that count was vacated. Id. at 970 n.3, 980.

In United States v. Smith, 459 F.3d 1276 (11th Cir. 2006), Judge Tjoflat authored the majority opinion, as well as a special concurrence in which he "explain[ed] why I believe appellate courts so rarely-and, in my view, should only rarely-notice plain evidentiary errors." Id. at 1299 (emphasis in original). He limited the scope of his concurrence to discussing "only the admission of evidence by the prosecution, over no objection, in criminal cases." Id. In sum, Judge Tjoflat "would not engage in plain error review of the admission of excludable evidence unless I were certain that there could be no reasonable strategic reason for not objecting at the time the evidence was admitted." Id. at 1304. Why? To begin, I recite what should now be a familiar standard: Under plain error review, an appellate court may exercise its discretion to notice an error that is plain and that affects substantial rights, so long as the error affects the fairness, integrity, or public reputation of judicial proceedings. It should be immediately apparent that the standard itself sets an extraordinarily difficult burden for a defendant to overcome-particularly in instances where the district court has substantial discretion to admit evidence (for example, where the defendant claims that the probative value of a piece of evidence is substantially outweighed by its potential for unfair prejudice, seeFed.R.Evid. 403). Evidentiary rulings, of which counsel and the trial judge should have been aware, are often quite case- and fact-specific and it is therefore unlikely that a defendant would be able to point to a court decision or evidentiary rule making the admission of the evidence obviously erroneous. Despite this difficulty, there certainly are circumstances in which an appellate court could say that, given extant case law at the time of appeal, a piece of evidence admitted at trial was clearly excludable (e.g., hearsay that is not otherwise admissible under Federal Rules of Evidence 803 or 804). I do not believe, however, that even such circumstances are properly recognizable as plain error. What is often overlooked in the rote application of the plain error standard is that, without objection, it is almost impossible to conclude that the district court committed error at all. It is one thing to say that evidence, if objected to, should have been excluded; it is quite another to say that admission of evidence over no objection is error in some abstract sense. The error in the former circumstance is the district court's failure to sustain the defendant's objection; in the latter, the error is evidently the improper infringement upon a defendant's unwaivable right to be tried

13 only by admissible evidence. The problem with the second formulation is that defense counsel can waive evidentiary restrictions, and often has legitimate strategic reasons for doing so. Defense counsel may believe, for example, that a piece of evidence will turn out to be exculpatory rather than inculpatory, or counsel may want to tie a witness to certain statements. Reviewing admission of evidence for plain error, however, can serve to transform defense counsel's strategic decisions into district court errors. Trial counsel's sound strategy does not become plain error at appellate counsel's urging. A conclusion that the admission of certain evidence constitutes plain error is a determination that the evidence was so obviously inadmissible and prejudicial that, despite defense counsel's failure to object, the district court, sua sponte, should have excluded the evidence. Thus, the existence of plain error review forces the district court, in an effort to avoid the reversal of conviction and a retrial, to intervene and exclude the evidence on its own initiative. In determining whether to do so, the district court must either ignore the possibility that defense counsel is choosing not to object for strategic reasons (and therefore intervene in every instance) or must weigh that possibility against the potential time and cost of a retrial (assuming one is even possible under the circumstances). To the extent the district court even attempts the latter analysis, however, it does so at a specific moment during the course of the trial without the benefit of the entire record (in particular, what other evidence the prosecution is prepared to offer, and what use the prosecution or defense intends to make of the evidence). Because it is extraordinarily difficult, if not impossible, to determine, mid-trial, whether the admission of a certain piece of excludable evidence prejudices a defendant's substantial rights, the possibility of a retrial creates an incentive for the district court always to intervene. This result essentially deprives defense counsel of the ability to determine strategically a client's most effective defense-a consequence I would prefer to avoid. . . . I should be quick to add that I hold no illusions of infallibility with respect to the legal profession. In some cases, defense counsel may actually fail to notice that inadmissible evidence is being admitted. In others, however, counsel may make a strategic decision not to object to the admission of evidence. The role of an appellate court under plain error review, therefore, is to sort out the error from the strategy, to the extent strategy is considered at all. This is a role for which appellate courts are particularly ill-suited. I believe our ineffective assistance of counsel case law is instructive in this regard. Ineffective assistance claims invariably involve a determination of whether an attorney was acting strategically or incompetently. We have appropriately concluded that such determinations ought not to be made on direct appeal. . . .Without factual development, it is nearly impossible for an appellate court to determine whether or not counsel's decisions were strategic or to assess the overall quality of counsel's representation. . . .Similarly, in the context of plain error review of “improperly” admitted evidence, it is extremely difficult, although not impossible, to determine whether counsel's failure to object to the admission of excludable evidence was error or strategy. . . .Given the factual dependency of this determination, I do not believe appellate courts should find plain evidentiary error-save for the extreme case where there could be no reasonable strategic reason for declining to object at the time the evidence is admitted. There is a forum better suited for this purpose-namely a collateral attack proceeding on a claim of ineffective

14 assistance of counsel. Moreover, were we to review claims of evidentiary error without factoring in the strategic reasons not to object (i.e., by simply applying the plain error doctrine and assuming that all excluded evidence admitted with no objection is error), we would, in fact, be providing defense counsel with a strategic reason not to object. Despite our stated concern about ensuring that plain error review does not, in effect, serve as a trial strategy, . . .plain error review in this context does precisely that. Defense counsel may choose not to object to the admission of certain evidence-perhaps believing it may turn out to be exculpatory-with the understanding that, if wrong, the defendant will have an opportunity to challenge the admission of the evidence on appeal. Where we find evidence of this strategy in the record, we do not find plain error. . . . Presented, then, with the choice between (1) presuming legitimate strategy and finding error in the extreme case and (2) presuming error and rarely finding improper strategy, I choose the former. I arrive at this conclusion by borrowing further from our ineffective assistance case law. As is oft stated, we generally presume that lawyers perform competently...... I believe this presumption is just as relevant in the plain error context as in the ineffective assistance context. As such, so long as we are unable to take judicial notice that no competent attorney would fail to object to the admission of certain evidence, I would not say that the district court's failure sua sponte to intervene and exclude the evidence is error. Not only do I believe that our ineffective assistance case law is instructive as to how we should treat claims of plain evidentiary errors, but I also believe that there is a connection between the two issues that is rarely, if ever, discussed. In order to satisfy the first three prongs of the plain error standard, we would have to find: error, that should have been obvious to counsel, and that seriously prejudiced the defendant's substantial rights. In other words, counsel was incompetent for not having objected. In fact, counsel may have been incompetent as many as three times (once at the time of the evidence was admitted, once more when he failed to move to strike the evidence, and yet again during closing argument should the Government comment on the evidence) or perhaps only once but as late as closing argument when the previously latent prejudice became clear. Yet, if we then choose not to exercise our discretion to notice the error, or if we could not say that the error affected the fairness, integrity, or public reputation of judicial proceedings, plain error would not be found. Thus, we would not order a retrial on direct appeal, but, without the benefit of briefing or factual development, we would essentially be providing a very firm grounding for a subsequent ineffective assistance determination on collateral attack. What makes this particularly troubling for me is that in an ineffective assistance claim, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” . . . Yet, because we would not find plain error if we were to believe that defense counsel strategically chose not to object, a finding of plain error that affects defendant's substantial rights-a determination likely made with no consideration of strategy and certainly made with no stated presumption in favor of strategy-at least implies that defense counsel's failure to object was not strategic. Consequently, in such circumstances, there is a strong argument to be made that we unwittingly shifted the presumption on collateral attack from strategy to incompetence. The justification

15 for this result is not apparent to me. Id. at 1299-1305 (footnotes and citations omitted).

D. Exceptions to Contemporaneous Objection Rule are Rare. 1. Fed. R. Evid. 605: if the presiding judge testifies as a witness, no objection is needed. 2. Fed. R. Evid. 614c: if the judge calls or interrogates a witness, you can defer the objection until the next available opportunity when jury is out.

IV. Some Common Trial Applications.

A. Closing Argument. Closing argument is fertile ground for improper prosecutorial comments, e.g., appealing to the emotions of the jury, burden shifting, misusing evidence, commenting on evidence not admitted at trial, etc. However, if there is no objection, the district court does not have a chance to correct the error, and the appellate court is less likely to correct it under the plain error standard. United States v. Alexander, 237 Fed. Appx. 399, 2007 WL 934714 (11th Cir. Mar. 29, 2007): Because Alexander did not object to the government's closing arguments at trial, "relief is available to rectify only plain error that is so obvious that failure to correct it would jeopardize the fairness and integrity of the trial." (Quoting United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.1997)).

B. Confrontation Clause. United States v. Anderton, 136 F.3d 747 (11th Cir. 1998): In this child pornography case [18 U.S.C. § 2252 (a)], the court held that the district court properly relied on a state child abuse investigator's hearsay testimony in departing upward on the basis of sexual exploitation of the minor. The sentencing court found this testimony credible and reliable and used it in imposing the enhancement. The Eleventh Circuit held that the defendant had waived any Confrontation Clause argument by failing to raise it at the time of the sentencing hearing.

C. Evidence - Brady. United States v. Kersey, 130 F.3d 1463 (11th Cir. 1997): The court held that a defendant's motion for new trial based on newly discovered evidence under FED. R. CRIM. P. 33 did not properly preserve the defendant's argument that the government had also committed a Brady violation, where the defendant did not specifically argue that a Brady violation had occurred. Instead, the defendant merely contended that the new evidence would produce a different trial outcome. Distinguishing the stringent 5-part "new evidence" test under Rule 33 from the Brady test of materiality -- which attaches greater significance to evidence of impeachment value and which, in certain circumstances, requires only a showing of a reasonable probability of a different outcome -- the Court held that the district court did not plainly err in failing to apply a Brady analysis. The new evidence -- a document of ambiguous evidentiary value that the government disclosed after trial -- did not serve to exculpate the defendant. "[W]e cannot say that the [late-disclosed document] would have had 'a definite impact on the credibility of an important prosecution witness.' United States v. Crockett, 534 F.2d 589, 601 (5th Cir. 1976). Contrary to [the defendant's] view, cross-examining a government witness about the document] would not have, with any reasonable probability, changed the verdict. See United States v. Arnold, 117 F.3d 1308, 131 (11th Cir. 1997)." Instead, the document was likely more inculpatory than exculpatory. Thus, the district court did not plainly err in failing to rule on the Brady issue.

16 D. Judgment of Acquittal Motion

1. Make your motion at the close of the government's case in chief. 2. Renew it at the close of all the evidence. 3. State your reasons.

United States v. Jones, 32 F.3d 1512, 1516 (11th Cir.1994): When a defendant "failed to renew his motion for judgment of acquittal at the end of all of the evidence, his conviction must be affirmed unless a manifest miscarriage of justice would result" because "a defendant's decision to present his case after denial of a motion for judgment of acquittal operates as a waiver of his objection to the denial of his motion for acquittal." United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006): "This [manifest miscarriage of justice] standard requires [us to determine] that the evidence on a key element of the offense is so tenuous that a conviction would be shocking." United States v. Bichsel, 156 F.3d 1148 (11th Cir. 1998), is a classic example of why you need to renew your motion for judgment of acquittal after the close of all the evidence. The defendants herein were charged with entering the military installation located at Ft. Benning, Georgia. They were on the property protesting U.S. military policies. To prove the case against the defendants, the government had to show they had received notice that Ft. Benning's commander had barred future entry, pursuant to 18 U.S.C. § 1382. As to some of the defendants, the only proof that said notice was received was the signed returned receipt postcards bearing the alleged signature of the defendant. These defendants argued that there was insufficient proof to establish that the actual defendants had, in fact, endorsed the cards. Unfortunately, although the defendants moved for a judgment of acquittal after the government rested, they did not renew their motion at the close of all the evidence. Consistent with Eleventh Circuit case law, the court held that the defendants waived any objection to the sufficiency of the evidence. In such cases, the court held, the convictions would be affirmed unless there is a manifest miscarriage of justice – if the evidence "on a key element of the offense is so tenuous that a conviction would be shocking." (quoting United States v. Tapia, 761 F.2d 1488, 1491-92 (11th Cir. 1985)). The court conceded that some of the defendants may not have actually received the letters barring future entry. However, the court held that "a factfinder may legitimately infer that a defendant actually received a letter addressed to him or her when the sender received a return receipt bearing what purports to be the defendant's signature. This inference is strong enough that the district court's reliance on it is hardly 'shocking.'" 156 F.3d at 1150-51. United States v. Reddick, 2007 WL 1063149 (11th Cir. April 11, 2007): Both Defendants moved for a judgment of acquittal after the government rested. Defendant Houston presented a case, but did not renew his motion for judgment of acquittal after presenting his case at trial. On appeal, the Eleventh Circuit held that his conviction was reversible only for manifest injustice. Defendant Reddick did not present a case or renew his motion after his co-defendant's case, which presumably did not relate to him. No mention was made on appeal of him waiving or forfeiting his right to appeal on this basis. However, the government argued that Reddick's failure to offer reasons to the district court in support of his motion did not preserve his argument for a judgment of acquittal based on insufficient evidence. The Eleventh Circuit responded: "Even assuming that Reddick preserved his argument, we decide, for the reasons that will be discussed, that his claim fails." The moral: It is better to state your reasons for your JOA argument because if you have a good argument, the court might not be willing to assume it is preserved. United States v. Hunerlach, 197 F.3d 1059 (11th Cir. 1999): The court noted that the defendant had moved for a judgment of acquittal based on sufficiency of the evidence. The

17 defendant's argument in the district court is not detailed in the opinion. On appeal, the defendant argued that the district court had erred in denying the motion for two reasons. The first reason concerned the lack of proof as to the elements of the crime. The court reviewed this matter de novo and found sufficient evidence as to the elements. Id. at 1068. The second aspect of the defendant's argument on appeal was a purely legal matter, to-wit: whether, under Eleventh Circuit precedent, IRS Form 433A was a "return" or "statement" that could serve as a basis for a conviction under 26 U.S.C. § 7206(1). Id. Because the defendant did not raise this legal issue before the district court, the Eleventh Circuit reviewed the matter under the plain error standard. Id. at 1068-1069. United States v. Castro-Lara, 970 F.2d 976 (1st Cir. 1992): A defendant who moves for judgment of acquittal at the end of the prosecution's case, but then fails to renew that motion after presenting evidence in his own behalf, waives the original motion. However, even absent any motion for judgment of acquittal at trial, a defendant who files a timely post-trial motion for acquittal stands on the same footing as a defendant who moves for acquittal at the close of all evidence, and is accordingly entitled to the benefit of the same standard of appellate review on a challenge to the sufficiency of evidence to support the conviction as a defendant who seeks judgment of acquittal at the close of the evidence. United States v. Cardenas Alvarado, 806 F.2d 566 (5th 1986): The court discussed the advantages and disadvantages of renewing a JOA motion after a co-defendant presents a case: In examining the evidence, Cardenas contends that we can consider only the evidence introduced during the government's case-in-chief in evaluating the sufficiency of the evidence against him because he rested at the close of the government's evidence. Cardenas is incorrect because he renewed his motion for judgment of acquittal at the close of all of the evidence. When a defendant chooses to present evidence in his behalf following his motion for acquittal and then renews his motion for judgment of acquittal at the end of all the evidence, we have held that “the ‘waiver doctrine’ requires the reviewing court to examine all the evidence rather than to restrict its examination to the evidence presented in the Government's case-in-chief.” United States v. White, 611 F.2d 531, 536 (5th Cir.), cert. denied,446 U.S. 992, 100 S. Ct. 2978, 64 L. Ed.2d 849 (1980). In White, the defendant apparently called witnesses and presented evidence, whereas in this case Cardenas did not do so. Cardenas, however, utilized his codefendant's testimony concerning duress in his closing argument, and requested that the jury be instructed on duress. In addition, an examination of the record reveals no other reason for Cardenas to ask for a coercion instruction except that he hoped to benefit from his codefendants' version of what happened. Under these circumstances, we believe that White allows us to review all of the evidence in evaluating its sufficiency. We express no opinion, however, on whether or not our view would be the same in a situation where a defendant has other reasons to ask for a coercion instruction apart from hoping to benefit from the testimony of codefendants. Furthermore, our decisions in United States v. Belt, 574 F.2d 1234 (5th Cir.1978), and United States v. Arias-Diaz, 497 F.2d 165 (5th Cir.1974), cert. denied, 420 U.S. 1003, 95 S. Ct. 1446, 43 L. Ed. 2d 761 (1975), are not to the contrary. In Belt the codefendant Williams tried to show through testimony that Belt, and not Williams, was the guilty party. Belt rebutted that testimony but did not attempt to rebut the government's case against him. We held that the district court erred in failing to grant a judgment of acquittal for Belt at the close of the government's case. In Arias-Diaz we held that the testimony by a codefendant does not result in a waiver. 497 F.2d at 169. As we have already mentioned, however, Cardenas utilized his

18 codefendant's testimony concerning duress and requested a jury instruction on duress. Consequently, we believe that Belt and Arias-Diaz are inapplicable to the instant case. Id. at 570 n.2.

E. Juror Issues.

1. Refusal to strike a juror for cause. a. Use a peremptory challenge to strike the juror who the court refused to strike for cause. b. Use all your peremptory challenges. c. Identify other jurors who you would have stricken if you had not had to use your preemptories on jurors who should have been stricken for cause.

2. Improper use of peremptory (Batson) a. Object before venire is dismissed and trial begins. (It is not enough to object before the jury is sworn.) b. Make a prima facie case of why the strike was exercised for an impermissible reason; then the burden shifts to the other party to show a permissible reason. c. Object to the reasons given and ask for a ruling.

3. Fair Cross-Section Challenge

Campbell v. Louisiana, 523 U.S. 392 (1998): The Court declined to consider whether a "fair cross-section" challenge to the jury could be made because that claim had not been perfected in the court below.

4. Alternate Jurors During Deliberations

United States v. Olano, 507 U.S. 725 (1993): The presence of the alternate jurors during jury deliberations was not objected to in the trial court and was an error that the court of appeals was authorized to correct under Rule 52(b). United States v. Bendek, 146 F.3d 1326 (11th Cir. 1998): On Thursday, the fourth day of the trial, the court learned that one of the jurors had an airline reservation for a trip out of town on Saturday and was not scheduled to return until the following Tuesday. Since it was not clear that the jury would have returned a verdict by the end of the day Friday, the court suggested allowing all 13 jurors to retire and commence deliberations. If they could not reach a verdict by Friday, the remaining 12 jurors (11 of the original jurors plus the alternate) could come back on Monday and continue deliberations. The attorneys were asked whether they objected. No one did. The court of appeals held that, assuming permitting the alternate juror to deliberate and return a verdict with the regular jurors constituted plain error which affected the defendants' substantial rights, it did not warrant reversal because the defendants could not show that the jury size affected the fairness, integrity or public reputation of the proceeding.

19 F. Jury Instructions.

Bryan v. United States, 524 U.S. 184 (1998): The Supreme Court held that to support a conviction for conspiring to engage in the sale of firearms without a license and actually engaging in sale of firearms without a license under 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D), the government was required to show willful conduct on the part of the defendant. The Supreme Court went on to explain that "willfully" violating the statute requires a showing that the defendant knew his conduct was unlawful, not that he was aware of the particular licensing requirement. The Court then found that although the trial court erred by instructing the jury that a defendant need not know that his conduct was unlawful, the error did not require reversal. How could this not require reversal? The Supreme Court reasoned that the defendant did not object to the instruction at trial; it was unlikely that the jury was misled given the other instructions that were given; the defendant did not raise the argument in the court of appeals; and the grant of certiorari did not cover the issue. Jones v. United States, 527 U.S. 373 (1999): The Court rejected Jones' argument that the instructions confused the jury regarding the consequences of a deadlock. The Court noted that the instructions were reviewable for "plain error" because Jones did not voice objections to the instructions; further, his request for an instruction did not preserve an objection to the instruction as given, because courts cannot speculate on what "sorts of objections might be implied through a request for an instruction." United States v. Burgess, 175 F.3d 1261 (11th Cir. 1999): The defendant was charged with traveling in interstate commerce with the intent to engage in sexual relations with a juvenile [18 U.S.C. § 2423(b)] and with two counts of using a computer affecting interstate commerce to knowingly entice a juvenile to engage in sexual acts [18 U.S.C. § 2422(b)]. The case was reversed and remanded to the district court for a new trial based on the judge's failure to read a requested jury instruction. During the charge conference, defense counsel asked the court to read the standard Eleventh Circuit pattern jury instruction relating to the defendant's decision not to testify. The district court indicated that it would give the instruction. However, at the conclusion of the instructions, when the district court asked if there were any objections, defense counsel indicated that the district court had not read the requested instruction regarding the defendant not testifying. The district court responded that it believed the instruction had been given. On appeal, the government argued that the defendant had waived the issue because his attorney did not "press the point any further after the court said the instruction had been given." The Eleventh Circuit held that the defendant clearly had met his burden of raising a sufficient objection and had preserved the issue for appeal. However, a reversal is not automatic when the judge fails to give a requested instruction regarding the defendant not testifying at trial. The Eleventh Circuit analyzed the district court's error under the harmless error doctrine. It then held that it was not convinced beyond a reasonable doubt that the district court's error did not contribute to the conviction. Moral: Even when you object, the government argues waiver. United States v. West, 142 F.3d 1408 (11th Cir. 1998): At the charge conference, the court decided to instruct the jury that it could determine whether a coconspirator authored the notebook. This was error the Eleventh Circuit held. However, the defense attorney did not object to this jury instruction. Thus, the Eleventh Circuit held that the plain error standard applied. In affirming the Eleventh Circuit stated: ". . . the court's instruction to the jury, while plainly erroneous, did not affect the defendant's substantial rights such that it was prejudicial and not harmless." United States v. Mitchell 146 F.3d 1338 (11th Cir. 1998): Because the defendant did not object to the district court's failure to instruct the jury that 18 U.S.C. § 2113(a) [bank robbery] is a lesser- included offense of § 2113(d)[armed bank robbery], the district court's failure to so instruct the jury did not require reversal. Since the choice not to seek a lesser included offense instruction

20 may be due to trial strategy, requiring a district court to give such an instruction is "at odds" with such strategy.

V. Guilty Plea.

A. In General

United States v. Crumpton, 222 Fed. Appx. 914, 916-917, 2007 WL 879807 (11th Cir. March 26, 2007): Eleventh Circuit law is clear that when a defendant enters a voluntary, unconditional guilty plea, he waives the right to challenge all nonjurisdictional defects in the proceedings, which would include a court's denial of a motion to suppress. See United States v. Patti, 337 F.3d 1317, 1320 (11th Cir.2003). "A defendant who wishes to preserve appellate review of a non-jurisdictional defect while at the same time pleading guilty can do so only by entering a 'conditional plea' in accordance with Fed.R.Crim.P. 11(a)(2)." United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir.1997). Where there is a plea agreement, Federal Rule of Criminal Procedure 11(b)(1)(N) requires that the district court inform the defendant of "the terms of any plea-agreement provision waiving the right to appeal" in open court during the colloquy. But there is nothing in Rule 11 imposing an obligation on the district court to inform the defendant that his unconditional plea waives some of his appellate rights. . . .Nor can we find any binding circuit precedent suggesting that the district court must inform a defendant entering an unconditional, voluntary guilty plea that he is waiving his right to appeal any nonjurisdictional issues. Libretti v. United States, 516 U.S. 29 (1995): FED. R. CRIM. P. 1 l(f)'s requirement that a trial court find a factual basis for a guilty plea does not, by its plain language, apply to issues surrounding criminal forfeiture. Therefore, the trial court is not required to find a factual basis for a stipulated criminal forfeiture embodied in a plea agreement. The right provided by Rule 3 l(e) to a special jury verdict regarding forfeiture can be waived by a defendant pleading guilty. Without said right being mentioned in the plea agreement and without specific advice by the court that the right will be waived by a guilty plea. United States v. Tomeny, 144 F.3d 749 (11th Cir. 1998): The defendants were charged with making a false statement, in violation of 18 U.S.C. § 1001. Both defendants filed a motion to dismiss on the theory that 16 U.S.C. § 1857(1)(I), preempted § 1001, based on the facts of this particular case. After the district court denied the motion to dismiss, the defendants pled guilty and appealed based on the preemption issue. As an initial issue, the Eleventh Circuit held that, by arguing § 1857(1)(I) preempts § 1001, the defendants effectively claimed that the indictment failed to charge a legitimate offense. Thus, the appellate court held, the defendants' claim was jurisdictional and was not waived by entering a plea of guilty. United States v. Tyndale, 209 F.3d 1292 (11th Cir. 2000): The court rejected the argument that the defendant's guilty plea was involuntary or was taken in violation of Fed. R. Crim. P. 11 because the sentencing court failed to advise him of the sentence enhancements to which he was subject, pursuant to 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7, because his crime occurred while he was released on bond awaiting trial. The court noted that no objection was raised at the colloquy and the issue was therefore reviewable for plain error. The court found no plain error, noting that the district court did advise the defendant that he would be sentenced under the guidelines, and that the statutory enhancement could have been for as little as one day, a "de minimis" increase. United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997): Defendant's unconditional plea of guilty, made knowingly, voluntarily, and with benefit of competent counsel, waives all non-

21 jurisdictional defects in that defendant's court proceedings, including speedy trial issues. To preserve appellate review of a non-jurisdictional defect while pleading guilty, the defendant must enter a "conditional plea" which must be in writing and must be consented to by court and by the government. The government's consent to such a plea requires express approval, i.e., direct assent requiring no inference or implication. Silence or inaction by government is not consent. However, here, the guilty plea that was entered and accepted only on the reasonable, but mistaken, belief that defendant preserved speedy trial issues for appeal was, as matter of law, not knowing and voluntary. United States v. Cunningham, 194 F.3d 1186 (11th Cir. 1999): As a condition of his guilty plea, defendant reserved the right to appeal only whether § 922(g)(8) required him to know that his possession of the firearm violated federal law. Nevertheless, because the defendant offered no argument on this issue on appeal, the court of appeals found that he abandoned it.

B. Plea Agreement - Breach.

United States v. Hedges, 175 F.3d 1312 (11th Cir. 1999): The defendant argued that the government violated its obligation under the plea agreement to recommend that he be sentenced based upon a lesser amount of loss. The defendant claimed the government reached a plea agreement by (1) endorsing the PSR's $92 million loss estimate and adducing evidence at the sentencing hearing to support that estimate; (2) contending the defendant played a crucial role in the conspiracy; and (3) disputing the defendant's narrow interpretation of relevant conduct under U.S.S.G. § 1B1.3. The Eleventh Circuit held that this argument was barred absent plain error because the defendant failed to object at sentencing. The court then found no plain error, stating that the government did not violate the plea agreement because the agreement did not bind the government regarding the total loss, the level of the defendant's involvement in the conspiracy, or the proper interpretation of "relevant conduct."

C. Plea Agreement - Appeal Waiver Language.

Be aware (and beware) of the waiver of appeal language in the plea agreement. This is a common form of catch-22 in the Eleventh Circuit, especially the Middle District of Florida. United States v. Howle, 166 F.3d 1166 (11th Cir. 1999): A plea agreement containing a defendant's knowing and voluntary waiver of his right to appeal was enforceable to bar the defendant's appeal of his sentence, even though the sentencing judge strongly encouraged him to appeal the sentence, and even though the legal issues the defendant sought to raise were difficult or debatable. In fact, the appeal waiver even precludes the appeal of blatant error. First, in footnote 6, the court stated: We note that Howle, after the district court suggested that the case involved a difficult legal issue appropriate for appellate review, could have moved to withdraw his guilty plea. See Fed.R.Crim.P. 32(e). If the motion were granted, Howle then would have regained the right to appeal (and the Government would have regained the right to pursue the other counts in the indictment). Howle did not make such a motion. Although the footnote is clearly dicta, it gives at least some opening in those situations where there is waiver language and where the guidelines sentence was not anticipated by the defendant at the time of the plea. In such a case, it may be worth a try to move to withdraw the plea based upon footnote 6. The other interesting footnote in the case is footnote 5 which speaks for itself. In describing that even blatant error can be waived by an appeal waiver clause, Judge Tjoflat indicates in footnote 5 that: "In extreme circumstances -- for instance, if the district court had sentenced

22 Howle to a public flogging -- due process may require that an appeal be heard despite a previous waiver". Note that Judge Tjoflat indicated that a public flogging MAY (not SHALL!) constitute a denial of due process. United States v. Benitez-Zapata, 131 F.3d 1444 (11th Cir. 1997): Pursuant to the plea agreement in this case, the defendant effectively waived his right to appeal the sentencing court's decision that he was a minor participant in the conspiracy and its refusal to review the government's decision not to move for a downward departure based on substantial assistance. The district court specifically questioned the defendant about waiver at the plea hearing, and the defendant acknowledged the terms of the waiver, which included issues appealed. The court also found that the record demonstrated the defendant's understanding of the significance of the waiver. Moreover, the defendant's waiver of the right to appeal the sentence was not rendered invalid by the district court's statement during the sentencing hearing that the defendant could appeal the sentence within 10 days, notwithstanding the defendant's claim that the statement made the waiver confusing. The statement was made as a closing remark at the sentencing hearing after the waiver was discussed and established at the plea hearing, and was consistent with the defendant's right to appeal under the exceptions to the waiver specified in the plea agreement. United States v. Buchanan, 131 F.3d 1005 (11th Cir. 1997): The defendant pled guilty pursuant to a plea agreement. In the agreement, the defendant waived his right to appeal. The defendant then sought to appeal an issue the plea agreement said the parties agreed to dispute at the sentence hearing. The court held that the defendant's waiver in the plea agreement of his right to appeal the sentence was enforceable because it was knowingly and voluntarily entered. The waiver was found to include the issues the parties agreed to dispute at the sentence hearing because the issues were not expressly exempted from the appeal waiver language in the plea agreement. The court also stated that when a defendant attempts to appeal a sentence in the face of an appeal waiver, the government may file a motion to dismiss the appeal based upon a waiver and attach a copy of the plea agreement, any part of the plea colloquy related to the waiver, and any other part of the record that casts light on whether the defendant knowingly and voluntarily agreed to the waiver. In response, the defendant may put forward any part of the record that the government has not already brought to the appellate court's attention. Where it is clear from the plea agreement and plea colloquy, or from some other part of the record, that the defendant knowingly and voluntarily entered into a sentence appeal waiver, that waiver should be enforced without requiring briefing on the merits.

Cases where appeal waiver was not enforced:

United States v. Petty, 80 F.3d 1384 (9th Cir. 1996): Waiver of appeal of an unanticipated error was not enforceable. United States v. Ready, 82 F.3d 551 (2nd Cir. 1996): Waiver of appeal did not cover issue of restitution and was not waived. United States v. Zink, 107 F.3d 716 (9th Cir. 1997): Waiver of appeal of sentence did not cover a restitution order. United States v. Agee, 83 F.3d 882 (7th Cir. 1996): A waiver of appeal, not discussed at the plea colloquy, was invalid. United States v. Ruelas, 96 F.3d 1324 (9th Cir. 1996): Waiver of appeal did not waive jurisdictional claim. United States v. Baramdyka, 95 F.3d 840 (9th Cir. 1996): An appeal waiver does not bar a claim of ineffective assistance of counsel.

23 D. CAVEAT on Defendant's Right to Appeal

Even if your client has an appeal waiver & even if he said he did not want to appeal before he was sentenced, be sure to thoroughly discuss the pros & cons of appeal with your client after sentencing. It is imperative that you personally visit your client after sentencing and discuss whether he wants to appeal. It is wise to confirm his decision in writing, with his signature, so there is no mistake later. At a minimum, send him a follow-up letter. The Supreme Court noted in Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), that counsel's performance is clearly deficient if he "disregards specific instructions from the defendant to file a notice of appeal. . . ." Thus, if the client wants to appeal, you must file a notice of appeal, regardless of whether you think the appeal is frivolous. You can always file an Anders brief. See Anders v. California, 386 U.S. 738 (1967). However, if your client states he wants to appeal and you fail to file the notice of appeal, you are ineffective. If you fail to discuss his right to appeal after sentencing, and the 10 days lapse, and you receive a letter asking you to appeal on the 11th day, you have a problem that a simple visit with a confirmation letter after sentencing could have solved. Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995): Absent an express waiver of the right to appeal his sentence, a defendant who pleads guilty and who is sentenced under the guidelines has a right to direct appeal of his sentence. Because of that opportunity, a defendant has no right to raise guideline sentencing issues in a § 2255 proceeding. Therefore, if the defendant requests his attorney to file an appeal and counsel fails to do so, he is entitled to an out-of-time appeal on any sentencing issue, even without a showing that there would have been a viable ground for the appeal. Although Montemoino excepted cases where there was an express waiver of the right to appeal the sentence, if the district court finds the defendant asked his attorney to appeal and the attorney did not appeal, the defendant will be granted a belated appeal almost without fail. Possible issues on appeal could include the voluntariness of the plea and an exception to the appeal waiver.

VI. Sentencing.

A. General Rules

United States v. Lawrence, 47 F.3d 1559 (11th Cir. 1995): Lawrence is a good case to read for its lessons on the importance of objections as they relate to the fact finding process at sentencing and the meaning of the preponderance of the evidence standard. Although not as rigorous as the reasonable doubt or clear and convincing standards, the preponderance standard is not toothless. It is the district court's duty to ensure that the Government carries this burden by presenting reliable and specific evidence. As one of our sister circuits noted: [T]he Guidelines do not reduce district court judges to mere automatons, passive compilers of ciphers, or credulous naifs who must accept as canon all that which is presented to them regarding a defendant's involvement in the crime charged or conduct relevant thereto.... [T]he preponderance of the evidence standard ... does not relieve the sentencing court of the duty of exercising the critical fact-finding function that has always been inherent in the sentencing process.... [The standard signifies] a recognition of the fact that if the probation officer and the prosecutor believe that the circumstances of the offense, the defendant's role in the offense, or other pertinent

24 aggravating circumstances, merit a lengthier sentence, they must be prepared to establish that pertinent information by evidence adequate to satisfy the judicial skepticism aroused by the lengthier sentence that the proffered information would require the district court to impose. Id. at 1566-1567 (quoting United States v. Wise, 976 F.2d 393, 402-03 (8th Cir.1992)). Moreover, while the Guidelines allow a district court to “consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy,” U.S.S.G. § 6A1.3(a) (Nov. 1, 1994), this relaxed evidentiary standard does not grant district courts a license to sentence a defendant in the absence of sufficient evidence when that defendant properly objects to a PSR's conclusory factual recitals. See id. § 6A1.3 comment. (“The court's resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment. More formality is therefore unavoidable if the sentencing process is to be accurate and fair.”). The necessity of requiring reliable evidence in support of the Government's conclusions is particularly manifest in cases such as this, where the quantity of drugs attributed to a defendant can have a marked impact on the length of his sentence. See United States v. Morillo, 8 F.3d 864, 870 (1st Cir.1993) (noting that “drug quantity profoundly affects sentence length”). Id. at 1567. Once the Government has presented proper evidence, the district court must either: (1) make an explicit factual finding as to the allegation; or (2) determine that no such finding is necessary because the matter controverted will not be taken into account in sentencing the defendant. Fed.R.Crim.P. 32(c)(3)(D). If the court declines to resolve a factual challenge because it is not relying on the disputed matter in determining the sentence, it must expressly set out in writing any disputed facts left unresolved. Id.; see also Shukwit v. United States, 973 F.2d 903, 904-05 (11th Cir.1992) (per curiam). Id. Because the defendants in Lawrence objected to the government's approximation of the drug quantity attributable to them, the government was required to move forward with evidence supporting its position. The Court thus applied the clear error standard of review, because the defendants objected in the district court, to determine whether the district court clearly erred in finding that the government had proved the quantity attributable to each defendant by a preponderance of the evidence. Id. The Eleventh Circuit found that the district court had so erred. Id. at 1567-1569. The district court primarily relied on the PSRs as the basis for its findings. Unfortunately, the PSRs did not provide the necessary evidentiary foundation to support the appellants' sentences. . . . The only other sources of evidence that could possibly support the court's findings are the prosecutor's brief proffers of evidence and the appellants' admissions at their Rule 11 hearings. Like the PSRs, however, these sources do not sufficiently support the court's findings. The proffers consisted of perfunctory summaries of the evidence that the Government stood ready to present and references to the video surveillance tapes that were entered into evidence at the separate trial of some of the appellants' co-indictees. The district court heard no testimony on the quantity issue, did not require that any surveillance videotapes be entered into evidence at the

25 hearings, and did not examine any physical evidence. As a result, there is no evidence from the sentencing hearings for us to review. Moreover, no trial evidence exists because none of the appellants went to trial. . . . The only testimonial evidence on the record relevant to the quantity calculation is the testimony the appellants gave at their Rule 11 hearings; this testimony does not, however, sufficiently support the scope of responsibility assessed or the facts and conclusions asserted in the PSR and adopted by the district court. Each appellant merely admitted that he distributed (or aided and abetted the distribution of) cocaine base in the vicinity of 3855 April Street on a specific day; this does not-by itself or in combination with the other information-make the appellants responsible for the cocaine base dealt in the vicinity over the following two months. . . .Finally, although evidence and testimony that was presented at another trial may be used in a defendant's sentencing hearing, the Government's references to the evidence presented at the trials of co-indictees is insufficient in this case: None of the appellants was given the opportunity to test its reliability or validity . . .nor is that evidence before us in any form that enables us to review the district court's findings in a meaningful way. Id. at 1567-1568 (citations omitted). In vacating the sentences and remanding for further proceeding, the Court concluded by stating: In this case, the district court did not ensure-as it was obligated to-that the Government carried its burden of proof. As a result of this failure, the record in each appellant's case does not support the district court's findings. We therefore remand the appellants' cases to the district court for resentencing. See [United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993)] (remanding for resentencing because the district court failed to make individualized findings and because the trial evidence did not support the quantity of drugs attributed to each appellant); [United States v. Beasley, 2 F.3d 1551, 1561-1563 (11th Cir.1993)](remanding for resentencing because of the lack of a discernable factual basis for the appellants' sentences). In remanding, we express no opinion regarding whether the quantity of cocaine base the Government contended was properly attributable to each appellant may ultimately be proven correct. We do require, however, that the district court base its findings on reliable and specific evidence rather than on the conclusory language of a PSR, the sparse evidence given at a Rule 11 hearing, and the prosecution's mere reference to evidence adduced in the separate trials of co-indictees. Id. at 1568-1569.

1. Object or Forfeit.

United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990), is the landmark - or at least the most often cited - case in the Eleventh Circuit on the requirement for objections at sentencing. Jones also introduced the requirement that the district courts conduct a Jones inquiry. After the court imposes sentence, it must offer the parties the opportunity to object. [Jones was later reversed on other grounds, it remains the law of the Eleventh Circuit.] "Where the district court has offered the opportunity to object and a party is silent or fails to state the grounds for objection, objections to the sentence will be waived for purposes of appeal, and this court will not entertain an appeal based upon such objections unless refusal to do so would result in manifest injustice."

26 United States v. Bostic, 371 F.3d 865 (6th Cir. 2004): Therefore, we exercise our supervisory powers over the district courts and announce a new procedural rule, requiring district courts, after pronouncing the defendant's sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised. If the district court fails to provide the parties with this opportunity, they will not have forfeited their objections and thus will not be required to demonstrate plain error on appeal. If a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal. Providing a final opportunity for objections after the pronouncement of sentence, "will serve the dual purpose[s] of permitting the district court to correct on the spot any error it may have made and of guiding appellate review." Id. at 872-873 (quoting United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990)) (footnote omitted). United States v. Weir, 51 F.3d 1031 (11th Cir. 1995): The government had not waived the issue by its failure to repeat its objection after sentence was imposed. "If the relevant objection is raised after the presentation of the [pre-sentence] report, however, but before the actual imposition of the sentence, Jones is satisfied."

2. Object or Admit.

United States v. Wade, 458 F.3d 1273 (11th Cir. 2006): In his written response to the PSI, Wade objected to application of the Armed Career Criminal Act (ACCA), but only on the basis that “attempted burglary cannot be used as a predicate offense under the definition used [in] 18 U.S.C. § 924(e).” Id. at 1275. That objection focused on attempted burglary as a category of crime; it did not dispute the PSI's allegation that stated “Court documents” established that Wade had been convicted of the crime as a result of attempting to kick in the door of a residence and commit a theft inside. Id. When the district court pointed out that the crime involved Wade attempting to kick the door in, Wade did not dispute that. Nor did he voice any disagreement with the prosecutor's statement that “in this case the defendant attempted to kick the person's door.” Id. at 1276. In overruling Wade's objection, the district court acknowledged the general concerns about use of attempted burglary convictions for ACCA purposes, but explained, “when he's trying to kick in the door, [that] presents conduct which is narrow and offers the potential for violence.” Id. Wade made no protest about the court's characterization of the actual facts underlying the conviction, nor did he question the source of those facts. Id. On appeal, Wade argued that the district court erred in sentencing him as an armed career criminal because attempted burglary under Georgia law is not a violent felony within the meaning of § 924(e)(2)(B) and therefore cannot serve as one of the three predicate offenses. Wade also argued that his implicit admission throughout the sentence proceeding, even when coupled with the explicit one at oral argument on appeal, that he was convicted because he attempted to kick in the door of a residence, is immaterial under the categorical approach of Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159 (1990). The Eleventh Circuit disagreed. It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes. . . .It is also established law that the failure to object to a district court's factual findings precludes the argument that there was error

27 in them. . . .Finally, Wade also conceded at oral argument that his attempted burglary conviction resulted from an attempt to kick in the door of a residence to commit a theft, and we accept that concession. . . .For all of these reasons, we will treat the prior conviction we are considering as one for attempted burglary of a dwelling, which is how it was treated in the district court. Id. at 1277.

United States v. Bennett, 472 F.3d 825 (11th Cir. 2006): "Bennett failed to object to the facts of his prior convictions as contained in his PSI and addendum to the PSI despite several opportunities to do so; thus, he is deemed to have admitted those facts. . . . the district court did not err in relying on the undisputed facts in Bennett's PSI to determine that his prior convictions were violent felonies under the ACCA and, therefore, that he was an armed career criminal. Id. at 833- 834. United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006): The defendant's "failure to contest the 37 grams imputed in the PSR constituted an admission of that quantity." United States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005): The defendant "waived his objections to the factual statements about his relevant conduct in the presentence report and, therefore, admitted the facts in that report." United States v. Hedges, 175 F.3d 1312 (11th Cir. 1999): The defendant did not object to the conclusory statements set forth in the PSR to support the loss amount. Thus, the statements were undisputed, and the sentencing court was allowed to rely on them despite the absence of supporting evidence. These undisputed statements were sufficient to support the finding that the defendant caused or reasonably foresaw the acts that resulted in the $92 million loss because the statements established that this defendant played an important role in the overall conspiracy. United States v. Stafford, 258 F.3d 465, 475-76 (6th Cir. 2001): The defendant's failure to object to the PSR was an admission as to the drug quantities and types and thus provided the factual basis for the sentencing enhancement.

Sample PSR Objection (for ACCA purposes - adapt as needed for career offender or other sentencing issues). This is just one sample outline. You will need to add specificity and clarity based on your own case either in the PSR Objection or in argument at the sentencing hearing.

Mr. Smith objects to the following paragraphs. . . .

Paragraphs #-# & #-#: Mr. Smith objects to being sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e). [explain reasons, such as not a generic burglary, improper reliance on the otherwise clause, etc.]. Based on United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (holding that failure to object to allegations of fact in a PSR “admits those facts for sentencing purposes”), Mr. Smith specifically objects to all the descriptions, characterizations, and information (factual and legal) contained in these paragraphs. If and as appropriate, you might also make a claim such as . . . Mr. Smith further objects to the inclusion of these paragraphs and their contents based upon United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), and Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998). Finally, Mr. Smith submits that the descriptions, characterizations, and information in these paragraph are based upon documents other than those allowed by Shepard v. United States, 544 U.S.

28 13, 26, 125 S. Ct. 1254, 1263 (2005) (holding “that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information”).

3. Be specific. State all your grounds for the objections.

Comprehensive written objections to the PSR and addendum are the key to preserving sentencing issues. Renew objections at the sentencing hearing to be safe. Even if the defendant objects at sentencing, when he does not clearly state the grounds for the objection in the district court, he is relegated to plain error review on appeal. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006); See also United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003).

United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006): The Eleventh Circuit reiterated its precedent that, [F]or a defendant to preserve an objection to her sentence for appeal, she must “raise that point in such clear and simple language that the trial court may not misunderstand it.” United States v. Riggs, 967 F.2d 561, 565 (11th Cir.1992). When the statement is not clear enough to inform the district court of the legal basis for the objection, we have held that the objection is not properly preserved. Id. The defendant also fails to preserve a legal issue for appeal if the factual predicates of an objection are included in the sentencing record, but were presented to the district court under a different legal theory. See United States v. Reyes-Vasquez, 905 F.2d 1497, 1499-1500 (11th Cir.1990). Id. at 819. In Massey, the record established that defense counsel, "in objecting to the enhancement for obstruction of justice, repeatedly referenced the effect of Zoloft and heroin on her mental state during her stay in the hospital. In so doing, he did not specifically utter the words 'intent' or 'mens rea,' and he often referred to the fact that there was no 'material hindrance,' a different legal theory from 'willfulness,' when discussing this issue. " Id. Notwithstanding, the Court found, "in reviewing the record in its entirety, that the issue of Massey's mental state at the time of the attempted concealment, and, therefore, her capacity to commit the obstruction of justice, was adequately presented to the district court. Thus, we review the issue for clear error." Id. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006): A sentencing court's findings of fact may be based on undisputed statements in the PSI. United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). Where a defendant objects to the factual basis of his sentence, the government has the burden of establishing the disputed fact. United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997). However, challenges to the facts contained in the PSI must be asserted with specificity and clarity. See United States v. Aleman, 832 F.2d 142, 145 (11th Cir. 1987). Otherwise, the objection is waived. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005); United States v. Norris, 50 F.3d 959, 962 (11th Cir. 1995). United States v. Gonsalves, 121 F.3d 1416 (11th Cir. 1997): While the defendant did object, in general, to the district court's failure to adjust his sentencing guidelines downward for acceptance of responsibility, he did not object specifically to the district court's consideration of past criminal

29 activity as one factor. Noting that the properly considered and articulated factors were sufficient to support the district court's denial of the adjustment, the Eleventh Circuit refused to hear the defendant's challenge to the erroneous consideration of an additional factor (past criminal activity) because that same argument was not presented to the district court. United States v. Bougie, 279 F.3d 648, 650-51 (8th Cir. 2002): Court could accept specific facts in PSR as true because the defendant did not object to specifics. United States v. Williams, 469 F.3d 963 (11th Cir. 2006): Williams is another example of why when you object, you have state all your arguments. On appeal, the defendant argued that the district court erred by applying the mandatory minimum term of life imprisonment under § 841(b)(1)(A)(ii) for two reasons. One was preserved, one was not, resulting in two different standards of review. First, Williams argued that, in order to be subject to mandatory minimum term of life imprisonment under § 841(b)(1)(A)(ii)(II), he had to be involved in a transaction involving five or more kilograms of cocaine after his second prior conviction became final. He contended that the mandatory life sentence was erroneously imposed because, after his June 28, 2005 conviction became final, he was not involved in a violation of § 841(a) involving five or more kilograms of cocaine and, at most, conspired to possess with intent to distribute two kilograms of cocaine. This argument regarding the interpretation and application of § 841(b)(1)(A) was preserved and was reviewed de novo. Id. at 965-968. Alternatively, Williams argued that there was insufficient time and criminal conduct between his state conviction and federal arrest to warrant the use of the state conviction for enhancement purposes. He pointed out that slightly more than two months elapsed between his conviction and the end of the conspiracy and the extent of his involvement after his conviction was telephone conversations concerning possessing with intent to distribute cocaine. Williams did not object before the district court on the ground that his second prior conviction could not be used for enhancement purposes due to insufficient time and criminal conduct. Accordingly, this argument was reviewed for plain error. In order for an error to be plain, it must be obvious or clear under current law. . . .“[W]here neither the Supreme Court nor this Court has ever resolved an issue, and other circuits are split on it, there can be no plain error in regard to that issue.” . . . Id. at 966 (citations omitted). If there was an error in counting his June 28, 2005 conviction as a prior conviction under § 841(b)(1)(A), Williams cannot establish that it was plain. The test as to whether to use a prior conviction to enhance a sentence under § 841(b)(1)(A) is not mere passage of time; rather “the focus of the inquiry is on the degree of criminal activity that occurs after a defendant's conviction for drug-related activity is final rather than when the conspiracy began.” . . . Although less than two months elapsed between the time Williams's prior conviction became final and his arrest on September 20, 2005, the focus of the inquiry is on the degree of criminal activity following the prior conviction's finality. . . . Furthermore, we have not set a minimum time limit. . . . Williams, 469 F.3d at 967 (citations omitted). The Court also noted the circuit split on the issue. Id. at 967-968. Accordingly, Williams cannot show that his attempt to obtain two kilograms of cocaine, which was prevented by the actions of law enforcement officers, was clearly or obviously an insufficient degree of criminal activity so as to preclude the use of his second prior conviction for enhancement purposes. Id. at 968.

30 4. Object to anything that occurs at sentencing, but is not covered in your objections to the PSR, e.g., the court's failure to make findings.

United States v. Gregg, 179 F.3d 1312 (11th Cir. 1999): The defendant waived his objection to the absence of more factual findings by the district court by not requesting more detailed findings at sentencing.

5. Exception to Objection Requirement at Sentencing: 18 U.S.C. § 3553(c)(1).

Pursuant to 18 U.S.C. § 3553(c)(1), a district court is required to state, in open court, the reason for its particular sentence, and if the sentence “is of the kind, and within the range [recommended by the Guidelines] and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1). United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006): The Eleventh Circuit has rejected the government's argument that by not objecting in the district court, a defendant abandons his claim under § 3553(c)(1) and our standard of review is for plain error only. The Court cited its pre-Booker decision in United States v. Veteto, 920 F.2d 823, 826 (11th Cir.1991): “Congress has specifically proclaimed that a sentencing court shall state ‘the reason for imposing a sentence [exceeding 24 months] at a particular point within the range.’ ... When a sentencing court fails to comply with this requirement, the sentence is imposed in violation of law . . . .” Williams, 438 F.3d at 1274 (quoting Veteto, 920 F.2d at 826) (alterations in original) (emphasis removed). United States v. Bonilla, 463 F.3d 1176 (11th Cir. 2006): The question of whether a district court complied with 18 U.S.C. § 3553(c)(1) is reviewed de novo, even if the defendant did not object below.

6. The party does not waive an objection at sentencing where the issue is not apparent until written judgment is entered.

United States v. Bull, 214 F.3d 1275 (11th Cir. 2000): The court upheld the sentencing court's imposition of mental health treatment for anger control as a special condition of supervised release, unrelated to the nature of the conviction for use of an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2). The court rejected the government's argument that the defendant had waived the issue, pointing out that he could not have objected to it because the court first required the treatment in its written judgment.

7. Be sure your client shows up for sentencing.

United States v. Jordan, 216 F.3d 1248 (11th Cir. 2000): The court held that a defendant who voluntarily absents himself from sentencing by becoming a fugitive, and who is then sentenced in absentia in accordance with Fed. R. Crim. P. 43, waives his right, under 18 U.S.C. § 3552, to have ten days to review the PSR. Citing United States v. Ortega-Rodriguez, 13 F.3d 1474 (11th Cir.1994), the court concluded that flight in this situation warrants a waiver because it creates an undue burden on the government (due to the delay and uncertainty), and a significant interference with the operation of the judicial process (due to the disruption of finality). United States v. Davenport, 151 F.3d 1325 (11th Cir. 1998): Shortly after his guilty plea, the defendant absconded and could not be located. Twenty-two days prior to the scheduled sentencing, the defendant's attorney received the PSR in the case. The day before the scheduled

31 sentencing, the defendant was apprehended. The next morning, the defendant had three hours to review the PSR with his attorney. The defense attorney moved for a continuance on the grounds that he needed additional time to review the PSR with his client. In denying the continuance, the district court held that the lack of time to evaluate the PSR was attributable to the defendant and his conduct. On appeal, the Eleventh Circuit reversed holding that 18 U.S.C. § 3552(d) unambiguously provides a criminal defendant with at least ten days in which to review his PSR before sentencing. The government argued that the defendant had waived the ten-day period by his actions. The Eleventh Circuit held that a defendant's flight is not a manifestly clear indication of a knowing and voluntary relinquishment of the statutory right to review a PSR. Thus, a defendant does not waive his right to a PSR solely by absconding prior to sentencing, as long as he shows up for sentencing.

8. Don't invite the Error!

In United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006), the Eleventh Circuit did not reach the merits of the defendant's arguments because it concluded that he induced or invited the ruling he claimed was error. “It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.” United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (quotations omitted). “The doctrine of invited error is implicated when a party induces or invites the district court into making an error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir.1998). “Where invited error exists, it precludes a court from invoking the plain error rule and reversing.” United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.2005) (quotations omitted). Love induced or invited the district court to impose a sentence that included a term of supervised release. In his plea agreement and again at the plea colloquy, he expressly acknowledged the court could impose a term of supervised release of up to five years. At his sentencing, he did not object to a sentence including supervised release. To the contrary, Love's counsel repeatedly requested that in lieu of additional jail time the court sentence Love to time served followed by supervised release, and even suggested the court impose a term of two years' supervised release. Thus, Love is precluded from claiming the court erred in sentencing him to a term of five years' supervised release. Id. at 1157.

B. Sentencing - in General.

United States v. Dudley, 463 F.3d 1221 (11th Cir. 2006): The defendant argued that USSG § 2A6.1(b)(4) was applied in violation of the Confrontation Clause because the district court relied on hearsay testimony at sentencing. Because he did not raise this argument before the district court, this claim was reviewed only for plain error. Id. at 1227. The defendant did not get past the second prong of the plain error analysis – the "plain" prong – because the Court found his argument was foreclosed by United States v. Chau, 426 F.3d 1318, 1323 (11th Cir.2005), wherein the Court held that a district court's reliance on hearsay testimony at a sentencing hearing is not plain error. Id. Because the Court ruled that Chau controlled, it held: "If the district court did rely on hearsay testimony to enhance Dudley's sentence, it did not plainly err in doing so." 463 F.3d at 1227. The defendant also argued, for the first time on appeal, that his sentence violated his Sixth Amendment due process rights because of a USSG § 2A6.1(b)(4) enhancement. Specifically, he argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because the enhancement was based on facts he did not admit. Because this argument was raised for the first time on appeal, it was also

32 reviewed only for plain error. 463 F.3d at 1227-1228. United States v. Smith, 459 F.3d 1276, 1298-1299 (11th Cir. 2006): Smith was sentenced to 188 months (15 years, 8 months). On appeal, Smith requested resentencing, arguing that, prior to sentencing, he was not given formal notice of either (1) the enhanced sentencing range arising from a prior conviction "relating to the sexual exploitation of children," 18 U.S.C.A. § 2251(d); or (2) the requirement that he register as a sex offender as a condition of his supervised release. At arraignment on the initial indictment, the court advised Smith that the § 2251(a) charge carried a 10-year minimum and 20-year maximum sentence. According to the statute effective at the time, the enhancement (based on his prior conviction) increased the sentencing range from 10-20 years to 15-30 years. 18 U.S.C.A. § 2251(d) (Apr. 2003 amendments). At arraignment on the superseding and second superseding indictments, Smith waived formal readings of the indictments. At no point prior to receiving the PSR was he advised that he might face anything more than a 10-20 sentence. Smith asserted this was a violation of his constitutional right to due process. The Eleventh Circuit noted it was aware of no case law mandating a formal reading of the Federal Sentencing Guidelines. "The statute under which he was charged, 18 U.S.C. § 2251, specifically delineates the sentencing range for violations of its provisions, both with and without prior offenses relating to sexual exploitation of children. Moreover, 18 U.S.C. § 3583(d) mandates registration as a condition of supervised release for any person described in 18 U.S.C. § 4042(c)(4), a category of persons that includes individuals convicted of offenses categorized as 'Sexual Exploitation and Other Abuse of Children' (including both 18 U.S.C. § 2251 & 2252A). 18 U.S.C. § 4041(c)(4), 18 U.S.C. ch. 110; USSG § 5D1.3(7). The statutory scheme therefore mandated Smith's sentence." 459 F.3d at 1298-1299. Further, the Court ruled that the district court did not plainly err by not providing additional notice of the minimum sentencing provisions. United States v. Harness, 180 F.3d 1232 (11th Cir. 1999): The court reversed for plain error an aggravating role sentence enhancement based on U.S.S.G. § 3B1.1(c), but affirmed an abuse of trust enhancement based on § 3B1.3, finding no plain error. Defendant, an accountant employed by the Red Cross, was convicted of illegal diversion of federal funds intended to benefit needy individuals facing eviction from their homes. The sentencing court imposed an aggravating role enhancement because the defendant had responsibility over the property and assets of the victim. The court held that this was an improper enhancement, because the enhancement requires that the defendant "organize, lead, manage, or supervise another participant in the criminal scheme." Because defendant was sentenced to the high end of the applicable guideline range, the error was plain and required resentencing even in the absence of defense objection at sentencing. The court, however, rejected the defendant's challenge to the enhancement based on abuse of a position of trust. The Court noted that defendant failed to object at sentencing that the only victim of his fraud was the U.S. government, with whom he did not have a position of trust. Citing United States v. Hedges, 175 F.3d 1312 (11th Cir. 1999), the court observed that the PSR identified the Red Cross as the victim, and that defendant failed to object to that conclusory statement, and the sentencing court could therefore rely on it. Given that factual premise, the defendant did abuse a position of trust, since he was a director of the very Red Cross program from which he was diverting money for personal use. United States v. Garrison, 133 F.3d 831 (11th Cir. 1998): Appellant's counsel did not object to the $2,500,000 fine when it was imposed. When the district judge asked if Appellant's counsel had "any objection to the Court's finding of fact and conclusions of law or to the manner in which sentence was pronounced", the following colloquy ensued: Counsel: Your Honor, to preserve the record, we do object on the abuse of trust and role in the offense. Additionally, although not argued to you today, we footnoted in our sentencing memorandum our objection to

33 an upward departure in the fine level which the Court has imposed here. Court: Yes. Counsel: And we would state that we respectfully do not believe that the record reflects that the elements for such an upward departure exist in this case. And therefore, we wish to preserve our appellate issues on that. Court: Certainly. All right. That is the judgment of the Court. The Eleventh Circuit concluded that Appellant received reasonable notice of the potential of an upward departure in her fine because Appellant acknowledged that she received notice of the possibility of upward departure in her fine six days prior to her sentencing in the revised PSR, she objected to an upward departure in her sentencing memorandum, and she relied on that objection at sentencing. She acted upon this notice in her responsive sentencing memorandum and was content to rely upon her footnote response in that memorandum at sentencing, although the district judge gave her counsel the opportunity to object at sentencing following his statement of the reasons for upward departure in the fine. The district judge based his reasons for the upward departure in Appellant's fine on facts found in the PSR, which Appellant asserted to the court that she had reviewed, understood, and accepted as accurate. Appellant admitted that at the sentencing hearing, she did not object specifically to the lack of notice of the upward departure in the fine. Therefore, the standard of review was plain error, and the court found there was no plain error regarding notice of the upward departure in Appellant's fine. United States v. Hernandez, 160 F.3d 661 (11th Cir.1998): The Eleventh Circuit found that the district court erred in departing upward, pursuant to U.S.S.G. § 4A1.3 (defendant's criminal history is understated), where the district court relied, in part, on the defendant's arrest record in the PSR without any additional evidence of the defendant's specific conduct in connection with said arrests. The court found, however, that this was harmless error because the probation office had miscalculated the defendant's criminal history score in favor of the defendant. Thus, the defendant should have been in the higher criminal history category. What the court did not discuss is that the government never objected to the criminal history level at the time of sentencing, nor did the government cross-appeal based upon the erroneous calculation of the criminal history. Additionally, the defendant objected to the imposition of a fine. However, the defendant did not raise said objection in the district court. Thus, the Eleventh Circuit reviewed under a "plain error" analysis. The court held that the district court need not make specific findings with regard to the fine provided that the record reflects the district court's consideration of pertinent factors prior to imposing the fine. Finding such evidence in the record, the Eleventh Circuit affirmed the imposition of the fine. The court indicated, however, that when the record provides no guidance as to the court's reasons for imposing a fine, the case must be remanded so that factual findings can be made. United States v. Bozza, 132 F.3d 659 (11th Cir. 1998): The defendant's sentence was enhanced pursuant to 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7, because the charged offenses were committed while the defendant was released on bond. The defendant had pled guilty to impersonating a federal officer and travel fraud. Said offenses were committed while the defendant was released on bond in an unrelated case. After the defendant pled guilty to the impersonation and travel fraud charges, the government filed a notice to enhance his sentence pursuant to 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7. The trial court imposed a consecutive sentence because of the fact the crimes were committed while the defendant was on bond. The defendant appealed, arguing that he never received notice of the enhancement prior to entering his plea of guilty, that § 2J1.7 commentary requires he receive sufficient notice before the government may seek such an enhancement, and that "sufficient" means prior to the trial or the entry of the plea. The defendant also

34 argued that the lack of notice violated Fed. R. Crim. P. 11, and thus invalidated his guilty plea. The government responded that the defendant was on sufficient notice on three occasions: when he signed his bond for his prior conviction; prior to sentencing, when the government filed a notice seeking enhancement; in the revised PSR. The court of appeals held that § 2J1.7 does not require a district court to notify the defendant of the sentencing enhancement prior to accepting his/her guilty plea. The court acknowledged that this position was contrary to the position of the Fifth Circuit in United States v. Pierce, 5 F.3d 791, 793 (5th Cir. 1993). In reaching its decision, the Eleventh Circuit also cited United States v. Browning, 61 F.3d 752 (10th Cir. 1995). In that case, it was undisputed that the only notice the defendant received concerning the sentencing enhancement came from the PSR. The Tenth Circuit held that the notice of enhancement was sufficient because the defendant received the notice prior to sentencing and, thus, had the opportunity to object to the enhancement. The Eleventh Circuit found Browning persuasive and held that the defendant in the instant case had notice of the enhancement prior to the sentencing hearing and had the opportunity to object. United States v. Kersey, 130 F.3d 1463 (11th Cir. 1997): Since the defendant failed to preserve an objection, under the Ex Post Facto Clause, to the district court's failure to use the sentencing guidelines manual in effect at the time of the defendant's commission of the offense, "we will review his Ex Post Facto argument only if failure to do so would result in manifest injustice. See United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906 (1990)." The court found "no manifest injustice in refusing to review" the error where the sentence the defendant actually received -- 15 months -- fell within the guideline range that the defendant himself claimed to be applicable. United States v. Masters, 118 F.3d 1524 (11th Cir. 1997): When the sentencing judge was wrong on the guidelines issue, the prosecutor tried to give judge another avenue to upward depart. (The Eleventh Circuit called the prosecutor's behavior reprehensible in a footnote because the prosecutor was duty bound to inform the court that it could not do what it was doing.) Defense counsel objected to the upward departure and continued to object, but the defendant overrode counsel and told the judge to proceed. The Eleventh Circuit held that even though the court erred and everyone knew that the court erred, the fact that the defendant overrode counsel's objections meant that he knowingly waived the objection. Plain error did not apply because of the defendant's own objections. (The defendant is serving an additional 119 months.) Moral: Reprehensible prosecutors and uncontrollable clients (who are probably just scared) = an extra 119 months and that is ok. United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996): Counting seedlings as marijuana plants to calculate the base offense level was plain error affecting substantial rights and warranting vacatur of the sentences. United States v. Reese, 67 F.3d 902 (11th Cir. 1995): The trial court erred by attributing to the defendants all the cocaine distributed by the conspiracy while the defendants were involved in the conspiracy, on the grounds that the defendants could have reasonably foreseen such distribution, without considering the scope of criminal activity that each defendant agreed to undertake. This was error because the commentary to U.S.S.G. § lB1.3, which is binding under Stinson v. United States, 508 U.S. 36, 113 S. Ct. 1913 (1993), was amended to require that defendants be held accountable for other conduct that is reasonably foreseeable and within the scope of criminal activity that the defendant agreed to undertake. The court also noted that although the defendants did not mention change in the circuit's law due to the amendment or the amendment's commentary, they had objected to the quantities of cocaine attributed to them. This was held to be sufficient to preserve the issue for appellate review. United States v. Smith, 39 F.3d 1143 (11th Cir. 1994): The government's objection at sentencing to the downward departure preserved the issue of the district court's authority to depart,

35 although the government did not articulate its argument before the district court in detail. United States v. Barajas-Nunez, 91 F. 3d 826, 833 (6th Cir. 1996): The Sixth Circuit concluded it was plain error for a sentencing court to disregard the guidelines because"[p]ermitting sentencing courts to disregard governing law would diminish the integrity and public reputation of the judicial system." United States v. Ivey, 83 F.3d 1266 (10th Cir. 1996): The government's failure to object to a presentence report waived its complaint. United States v. Perkins, 89 F.3d 303 (6th Cir. 1996): Orally raising an issue at sentencing preserved it for appeal. United States v. Byerley, 46 F.3d 694 (7th Cir. 1996): The government waived an argument by taking an inconsistent position at sentencing. United States v. Martinez-Vargas, 321 F.3d 245, 249 (1st Cir. 2003): Defendant waived or forfeited objection to PSR by not filing in timely manner. United States v. Diaz, 176 F.3d 52 (2d Cir. 1999): Defendant failed to preserve sentencing claim for appeal by failing to object to PSR's 4-level enhancement. United States v. Aramony, 166 F.3d 655, 662 (4th Cir. 1999): Mere objection by defendant to accuracy of PSR without affirmative showing that information is inaccurate leaves district court free to adopt findings of PSR. United States v. Clark, 139 F.3d 485, 490 (5th Cir. 1998): If defendant fails to submit affidavits or other evidence to rebut information contained in PSR, sentencing court may adopt PSR without "further inquiry or explanation." United States v. Wing, 135 F.3d 467, 469 (7th Cir. 1998): By failing to object at sentencing hearing, defendant waived right to object to PSR finding that he had supervisory role in illegal gambling operation. United States v. Overholt, 307 F.3d 1231, 1251- 52 (10th Cir. 2002): Court may rely on PSR to apply aggravating role enhancement because defendant did not challenge PSR until sentencing hearing. United States v. Saro, 24 F.3d 283, 290-91 (D.C. Cir. 1994): Defendant waived right to object to factual allegations because objections to PSR not made in timely manner; plain error, however, required resentencing.

C. Sentencing - Allocation

United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002): Because the defendant failed to object to the failure of the court to grant him his right to allocution, the issue was reviewed on appeal for plain error. Because Rule 32(c)(3)(C), FRCrP, specifically requires the district court to offer the defendant the opportunity to allocute, the court's failure to do so was a "clear" or "obvious" error. Id. at 1252. The court then held that "failing to give a defendant the opportunity to speak to the court directly when it might affect his sentence is manifestly unjust. Moreover, the right of allocution is 'the type of important safeguard that helps assure the fairness, and hence legitimacy, of the sentencing process.'" Id. at 1253. Because the defendant was not sentenced to the lowest possible sentence, his sentence was vacated and the case was remanded for resentencing. Id. United States v. Ramsdale, 179 F.3d 1320 (11th Cir. 1999): The Court rejected the argument that the sentencing court failed to seek allocution at the resentencing, noting that the defendant did not object to this at the time, and that no "manifest injustice" occurred because of the "limited nature" of the resentencing. Also, he had been allowed to allocute at the original sentencing.

36 D. Sentencing - Restitution.

United States v. Morris, 286 F.3d 1291 (11th Cir. 2002): On appeal, Morris argued that the district court violated Federal Rule of Criminal Procedure 11 by ordering restitution where it failed to advise him, before he pled guilty, of the possibility that such an order might be issued. Because he did not raise the Rule 11 violation in the district court, it was reviewed for plain error on appeal. The government conceded that Morris was not made aware of the possibility of an order of restitution at either the plea hearing or in the plea agreement. Id. at 1293. Thus, the Eleventh Circuit found that because the district court erred by failing to inform Morris of the possibility of restitution, it had to determine whether the error affected his substantial rights. Id. at 1294. In this regard, the Court noted: Both the plea agreement and the plea colloquy, however, informed Morris that he faced a maximum fine of $250,000 on the conspiracy to defraud count and a fine on the conspiracy to launder money count of the greater of $500,000 or twice the value of the transaction. Because Morris faces a restitution order that is below the amount he was informed he could face in fines, the government contends that the his substantial rights were not impaired. This is a question of first impression for this court. In United States v. McCarty, 99 F.3d 383 (11th Cir.1996), we concluded that a defendant's substantial rights were not affected when a district court failed to mention specifically the possibility of restitution but the defendant had been fully advised of his obligation to make restitution in the plea agreement. See id. at 386-87. Morris, however, was not made aware of the possibility of restitution in either the plea agreement or the plea hearing. Although Federal Rule of Criminal Procedure 11(c) requires the district court to explain a defendant's liability for both fines and restitution, we hold that failure to do so does not impact a defendant's substantial rights where he was warned of a potential fine larger than the actual amount of restitution ordered. Here, the restitution order was considerably less than the fine Morris was warned of at the time of his guilty plea. In a case that involved an earlier version of Rule 11, the Supreme Court stated that "matters of reality, and not mere ritual, should be controlling." McCarthy v. United States, 394 U.S. 459, 467-68 n. 20, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (citation omitted). We agree with the holding of seven of the eight circuits to have ruled on this question that a defendant "is not prejudiced so long as his liability does not exceed the maximum amount that the court informed him could be imposed as a fine. It is the amount of liability, rather than the label 'restitution,' that affects [a defendant's] substantial rights." United States v. Glinsey, 209 F.3d 386, 395 (5th Cir.2000). Accordingly, we conclude that the district court's failure to mention the possibility of restitution was not plain error. Id. at 1294-1295 (footnote omitted, but cases related below). In the footnote omitted above, the court cited the First, Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, which agreed with the Fifth Circuit. See United States v. Raineri, 42 F.3d 36, 42 (1st Cir.1994) (holding that error is harmless where defendant is required to pay restitution in an amount less than the potential fine of which he was warned); United States v. Gabriele, 24 F.3d 68, 71 (10th Cir.1994) (holding that defendant's substantial rights not impaired when ordered to pay $100,000 in restitution when he knew he could be fined up to $750,000); United States v. Fox, 941 F.2d 480, 484-85 (7th Cir.1991) (holding that decision to plead guilty not prejudiced by court's failure to advise of possibility of restitution when defendant had notice of a possibly greater fine); United States v.

37 Miller, 900 F.2d 919, 921 (6th Cir.1990) (holding that error was harmless where defendant was required to pay restitution in an amount less than the maximum possible fine amount of which he had knowledge); United States v. Pomazi, 851 F.2d 244, 248 (9th Cir.1988), overruled in part on other grounds, Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979 (1990) (holding that there is no surprise or prejudice in failure to mention restitution in Rule 11 hearing when defendant was told of potential liability of $500,000 and $64,229 restitution order imposed); United States v. Fentress, 792 F.2d 461, 466 (4th Cir.1986) (holding that there is no surprise or prejudice by the imposition of $38,000 restitution order when defendant might have been ordered to pay a maximum fine of $40,000). Only the Second Circuit took the opposite view. See United States v. Showerman, 68 F.3d 1524, 1528 (2d Cir.1995) (holding that the failure to mention the possibility of restitution at the Rule 11 hearing is not harmless error even when the restitution imposed is less than the maximum fine the defendant understood he might receive). The Morris Court then moved on to the offense level enhancement for abuse of position of trust, which the defendant objected to, thereby properly preserving the issue for appellate review. The majority reversed and remanded on this issue, finding that said enhancement was not warranted on the facts of this case. Id. at 1300. Dissenting in part, Judge Hull would have affirmed the enhancement, relying, inter alia, on United States v. Hedges, 175 F.3d 1312, 1315 (11th Cir. 1999), (noting defendant "did not object to the statements in the PSI" and thus "these statements were undisputed, and the court was permitted to rely on them despite the absence of supporting evidence"). Morris, 286 F.3d at 1303 n.3. United States v. Romines, 204 F.3d 1067 (11th Cir. 2000): While on supervised release, the defendant absconded and stole money from someone unrelated to the offense for which he was on supervised release. At the revocation and sentencing hearing, the district court ordered him to pay restitution for the money he stole when he absconded from supervised release. The defendant failed to object to the restitution order at sentencing. The Eleventh Circuit held that the restitution order was plain error because it ordered restitution for conduct for which restitution was not authorized under the Victim and Witness Restitution Act, 18 U.S.C. §§ 3556, 3663(a)(1). Finding that the defendant could not be ordered to pay restitution for a crime for which he had not been convicted, the Eleventh Circuit vacated the judgment of restitution. (In so doing, the Court did not mention whether the error seriously affected the fairness, integrity, and public reputation of the judicial proceedings, presumably because an unauthorized sentence necessarily has such effect.) United States v. Miranda, 197 F.3d 1357, 1359 (11th Cir 1999): The defendant was convicted of conspiracy to launder money based on conduct that occurred before the enactment of the substantive money laundering statutes. The Eleventh Circuit held that this "naked ex post facto violation" constituted plain error. (The court did not mention whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.) United States v. Stinson, 97 F.3d 466 (11th Cir. 1996): The district court may delegate to the U.S. Probation Office the authority to set the amount of monthly restitution payments to be made by the defendant during supervised release. The defendant's failure to timely object to the district court's restitution order constitutes a waiver of the issue for appellate purposes.

E. Resentencing the Second Time Around.

Bousley v. United States, 523 U.S. 614 (1998): This case started before the Supreme Court decided Bailey v. United States, 516 U.S.137 (1995). Petitioner pled guilty to drug possession with intent to distribute, 21 U.S.C. § 841(a)(1), and to "using" a firearm"during and in relation to a drug trafficking crime," 18 U.S.C. § 924(c)(1), but reserved the right to challenge the quantity of drugs

38 used in calculating his sentence. He appealed his sentence, but did not challenge the validity of the plea. The Eighth Circuit affirmed. Subsequently, Petitioner sought habeas relief, claiming his guilty plea lacked a factual basis because there was no connection between the firearms found in the bedroom of the house and the garage where the drug trafficking occurred. The district court dismissed the petition on the ground that a factual basis for the plea existed because the guns were in close proximity to the drugs and were readily accessible. While Petitioner's appeal was pending, the Supreme Court held in Bailey that a conviction for using a firearm under § 924(c)(1) requires the government to show the active employment of the firearm, not its mere possession. In affirming the dismissal in this case, the Eighth Circuit rejected Petitioner's argument that Bailey should be applied retroactively. The Supreme Court held that although Petitioner's claim was procedurally defaulted, he may be entitled to a hearing on its merits if he makes the necessary showing to relieve the default, i.e., he must demonstrate either "cause and actual prejudice," or that he is "actually innocent". His arguments that the legal basis for his claim was not reasonably available to counsel at the time of his plea and that it would have been futile to attack the plea before Bailey do not establish cause for the default. However, the district court did not address whether Petitioner was actually innocent of the charge, and the government did not contend that he waived this claim by failing to raise it below. Thus, on remand, Petitioner may attempt to establish actual innocence. Actual innocence means factual innocence, not mere legal insufficiency. Thus, the government would not be limited to the existing record, but could present any admissible evidence of Petitioner's guilt. Petitioner's actual innocence showing must also extend to charges that the government has forgone in the course of plea bargaining. The indictment only charged Petitioner with "using" firearms, and there was no record evidence that the government elected not to charge him with "carrying" a firearm in exchange for his guilty plea, Petitioner would not have to prove actual innocence of both "using" and "carrying" a firearm in violation of § 924(c)(1). Unites States v. Milano, 32 F.3d 1499 (11th Cir. 1994), superceded by statute on other ground, as recognized in United States v. Cook, 291 F.3d 297 (11th Cir. 2002): Appellant filed written objections to the PSR. At the original sentencing in 1990, however, Appellant chose not to proceed on his objections, as a result of receiving the benefit of the government's motion for downward departure based upon U.S.S.G. § 5K1.1. With respect to his objections to the PSR, Appellant's trial counsel stated that "the fundamental question here is really how much in the way of drugs Mr. Milano had in his possession at the time he was arrested, or in his house, et cetera." Counsel then represented to the sentencing judge that Appellant's objections "might be moot" because the government had made a § 5Kl.1 motion and that, if the judge were to "do something extraordinary" by sentencing Appellant to a term of supervised release and no further jail time, then "we needn't do anything with the PSI," and "what's in the PSI doesn't matter." The district court adopted the recommendation in the PSR as to the applicable guidelines factors, granted the government's departure motion, withheld the imposition of confinement and placed Appellant on probation for a period of five years, subject to certain enumerated conditions of probation. The defendant then violated probation and returned to the court for the revocation and resentencing. Now that he was not facing probation, the errors became critical. However, the court held that because he waived any requirement that district court make findings as to any alleged factual inaccuracies contained in PSR at initial sentencing hearing, the district court was not required to consider defendant's objections to PSR before imposing sentence at probation revocation hearing! Also, the defendant's claim that sentencing court in probation revocation proceeding was unaware of its statutory discretion to sentence defendant to term shorter than original sentence would not be considered on appeal, as defendant failed to raise that objection at sentencing and there was

39 no manifest injustice. The sentencing court properly offered defendant opportunity to make specific objections to sentence, and defendant failed to articulate that objection. United States v. Manarite, 44 F.3d 1407, 1419 (9th Cir. 1995): Defendant waived his right to object to the PSR because he withdrew his objections at sentencing. United States v. Stinson, 97 F.3d 466 (11th Cir. 1996): On resentencing, following reversal of the original sentence due to the district court's erroneous determination that the defendant was a career offender under U.S.S.G. § 4Bl.1, the district court was not bound by its original denial of the government's motion for an upward departure. Thus, on resentencing the district court properly granted the departure motion so as to give the defendant exactly the same sentence he originally received when he was erroneously treated as a career offender, even though "the original sentencing court declined to depart upward." The government did not waive "its right to seek an upward departure at resentencing by not appealing the denial of departure at the original sentencing . . . .[T]he government is authorized to appeal only a downward departure from the guideline range. Thus, the denial of the government's upward departure motion was not an issue that the government could have raised on appeal." United States v. Carter, 110 F.3d 759 (11th Cir. 1997): The court vacated the denial of the defendant's motion to reduce sentence where the district court abused its discretion by erroneously concluding that it would be impossible to estimate the dry weight of marijuana attributed to the defendant at the original sentencing. The defendant was sentenced before the 1993 amendment to the sentencing guidelines providing that only the usable weight of a controlled substance is to be counted in determining the applicable drug guideline. A 1995 guideline amendment clarified that in the case of wet marijuana, only the dry weight of the marijuana should be counted. Although the wet marijuana amendment was not made retroactive by the Sentencing Commission, it is effectively retroactive because even prior to that amendment's effective date, the Eleventh Circuit held that only the dry weight of marijuana is to be counted. The district court's denial of the sentence reduction motion --based on the sole reason that it was "impossible" to estimate the dry weight --- was not supported by the record where the defendant identified "witnesses who can testify concerning the degree of weight reduction that drying entailed." The court rejected the government's procedural default argument (that the defendant should have raised his claim on direct appeal, rather than by reduction motion ) where the government failed to make the default argument in the district court and therefore waived the issue.

F. Federal Rule Criminal Procedure 35(a).

Rule 35(a), Fed. R. Crim. P., provides: "Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Prior to 2002, the language contained in the current Rule 35(a) was located in Rule 35(c). See Fed.R.Crim.P. 35, Advisory Comm. Notes, 2002 Amendments. Thereafter, subsection (c) was moved to subsection (a), but no change in practice was intended by the move. Id.

United States v. Lett, 483 F.3d 782 (11th Cir. 2007): Lett pled guilty to seven counts of possession with intent to distribute, all in violation of 21 U.S.C. § 841(a)(1). The PSR recommended, and the government did not object to, that level being lowered: by two levels because he met the five criteria for a safety valve reduction; by another two levels because he accepted responsibility for his crime; and by one more level because he timely notified the government of his intention to plead guilty. Those reductions resulted in an offense level of 27. He faced a mandatory minimum prison sentence of 60 months on five of the counts under 21 U.S.C. § 841(b)(1)(B). About those statutory mandatory minimum sentences, and the resulting

40 inapplicability of the U.S.S.G. § 5C1.2 safety valve provision, the PSR stated: "Based on a total offense level of 27 and a criminal history category of I, the guideline range of imprisonment is 70 to 87 months. Counts 8, 9, 10, 11, and 12, each carry a mandatory minimum penalty of 60 months. Although it appears that the defendant is eligible for consideration under U.S.S.G. § 5C1.2, because the minimum of the guideline range is 70 months, which is greater than the statutory mandatory minimum 60 months, 5C1.2 consideration is a moot issue." 483 F.3d at 784. Neither the government nor Lett lodged any objection to the PSR, and with the consent of both parties the district court adopted it as written. Id. The district court determined that a variance from the guidelines was warranted, but also decided that the statutory five-year mandatory minimum provided the lowest sentence it could impose: "There is no way that I can legally go below that five-year mandatory minimum, even if I wanted to. So, discretion is limited by Congress, who has dictated that people who commit these kind of crimes shall serve no less than 60 months, or five years." Id. at 785. Hence, the court sentenced the defendant to 5 years' in prison. Id. Four days after sentencing, a friend of the defendant wrote the court to state that the safety valve provisions in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 operated to free the court of the mandatory minimum otherwise required by 21 U.S.C. § 841(b)(1)(B). He told the court he was concerned that defense counsel had not raised the argument, and that time for doing something about it under Fed.R.Crim.P. 35(a) was running out. He sent copies of his letter to defense counsel and the government, but the record shows neither filed a response. Id. at 786. The district court issued an order modifying Lett's sentence on the last day of the seven-day period for correcting sentences under Rule 35(a), as extended by the counting provision in Fed.R.Crim.P. 45(a)(2). The court explained that at the sentence hearing it had accepted the PSR's recommendation that the safety valve provision did not apply to Lett's sentence because neither Lett nor the government had objected to the PSR, and because the court believed that result was correct. Having reconsidered, the court now decided otherwise. In setting out the reasons for changing its mind, the court explained in detail how it had interpreted the safety valve provision in § 5C1.2 before the decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). The district court concluded that in the post-Booker world, “when all five conditions of § 5C1.2 are satisfied, the Defendant is safety valve eligible and the Court's sentencing discretion is not bounded by a statutory mandatory minimum sentence, irrespective of whether the accurately calculated advisory guidelines sentencing range is above or below that mandatory minimum.” Id. at 786-787. The district court then resentenced the defendant to time served, followed by supervised release. Id. at 787. The government appealed and the Eleventh Circuit reversed. Rule 35(a)'s single sentence provides: “Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed.R.Crim.P. 35(a). The district court did not claim, and Lett does not argue, that the court made an arithmetical or technical error in imposing the original sentence of sixty months. Instead, the issue is whether the district court's initial decision that the safety valve guideline did not apply to remove the mandatory minimum provision in Lett's case was a “clear error.” The Criminal Rules Advisory Committee explained that what it meant by “clear error” was “acknowledged and obvious errors in sentencing.” Fed.R.Crim.P. 35 advisory committee's notes (1991). The committee went on to add: The authority to correct a sentence under this subdivision is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action .... The subdivision is not

41 intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence ...... Rule 35(c) provides an efficient and prompt method for correcting obvious technical errors that are called to the court's attention immediately after sentencing. Id. The Court went on to explain: The [United States v. Yost, 185 F.3d 1178 (11th Cir.1999)], [United States v. Rico, 902 F.2d 1065 (2d Cir.1990)], and [United States v. Cook, 890 F.2d 672 (4th Cir.1989)] decisions trace out the boundaries of a narrow corrective power limited in scope to those obvious errors that result in an illegal sentence or that are sufficiently clear that they would, as the committee notes specify, “almost certainly result in a remand of the case to the trial court for further action.” Fed.R.Crim.P. 35 advisory committee's notes (1991). In this case the district court did not sentence Lett under the wrong guideline, as in Yost; it did not impose a sentence different from the one in the plea agreement, as in Rico; and it did not impose a sentence that was illegal under the applicable guidelines and statutory provisions, as in Cook. At most, the district court misunderstood the breadth of its discretion under the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, read in light of the Booker decision, causing the court to impose a sentence higher than it would have had it correctly gauged the law. Even so, the sentence the court did impose was plainly permissible under the guidelines and applicable statutes. We say “at most,” because it is not clear that the district court's initial understanding of the scope of its discretion was mistaken. It is not obvious that the Booker decision eviscerated mandatory minimum sentences in every case where the defendant meets the five criteria for safety valve treatment, including those in which the advisory guideline range is above the mandatory minimum. That result would be the effect of adopting the theory on which the re-sentencing in this case is based...... the issue before us is whether, at the time the district court entered its Rule 35(a) order, it was clear that the court had erred in its earlier conclusion that a sentence below the mandatory minimum was not permissible in the circumstances of this case. We are confident that conclusion was not clear error. Reasonable arguments can be made on both sides of the post-Booker mandatory minimum issue, and we have no doubt that they will be. But arguable error is one thing, and clear error is another. Regardless of how this issue is ultimately determined on the merits, the sentence the district court initially imposed was not illegal, and any error was not of an acknowledged and obvious type, the kind that would “almost certainly result in a remand of the case to the trial court for further action.” Fed.R.Crim.P. 35 advisory committee's notes (1991). Id. at 788-789. When clear error did not work, appellate counsel tried another argument. Unfortunately, it did not carry the day either, but it is interesting: At oral argument, Lett's present counsel (who did not represent him in the district court) invited us to import into the Rule 35(a) “clear error” measure the plain error standard of Rule 52(b), as interpreted and applied in countless decisions. The invitation is logically appealing because the narrow purpose of Rule 35(a) dovetails

42 nicely with the scope of the plain error rule. Before an error is subject to correction under the plain error rule, it must be plain under controlling precedent or in view of the unequivocally clear words of a statute or rule; it must have adversely affected the outcome of the proceedings; and it must be such that the failure to correct it would seriously affect the fairness, integrity or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). If an error meets all those requirements, it is also the kind of obvious error that “would almost certainly result in a remand of the case to the trial court for further action” and would therefore come within the narrow scope of Rule 35(a). Fed.R.Crim.P. 35(a) advisory committee's notes (1991). As a margin note here, we point out that the Supreme Court has described the plain error rule with language that sounds like the Rule 35(a) “clear error” standard. In the Olano opinion, for example, the Court said that the “plain” in plain error “is synonymous with ‘clear’ or, equivalently, ‘obvious.’” 507 U.S. at 734, 113 S. Ct. at 1777. All this may be well and good, but it does not help Lett. For the same reasons that the district court's view of the mandatory minimum requirements in light of the safety valve provisions is not an obvious error or mistake that almost certainly would have caused the sentence to be overturned on appeal, it is not plain error. . . . We agree with the district court's recognition that the proper resolution of the mandatory minimum and safety valve issue that prompted its Rule 35(a) modification of Lett's sentence is not clear. There is no decision on point from any court, and reasonable people could differ about the matter. That means the court's initial understanding was not “an obvious error or mistake ... which would almost certainly result in a remand” if not corrected, which is the proper standard of clarity under the rule. Fed.R.Crim.P. 35(a) advisory committee's notes (1991). The district court used Rule 35(a) to take another stab at interpreting the applicable statutory and guideline provisions in light of the Booker decision, and the committee notes forbid use of the rule for that purpose. Id. (The rule “is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines.”). We do not question the district court's good faith in attempting to work its way through the problem, and we are not unsympathetic to its desire to give Lett a sentence less than the mandatory minimum. Our review, however, is de novo, and our reading of Rule 35(a) requires that we vacate the court's order re-sentencing Lett and remand the case with instructions that it impose the original sentence of sixty months to run concurrently on each count. Id. at 790-791 (citations omitted).

United States v. Del Castillo, 212 Fed. Appx. 818, 2006 WL 3772035 (11th Cir. Dec. 21, 2006): Del Castillo was indicted on two counts: (1) knowingly and willfully, with the intent to do bodily harm, assaulting Felipe Avena with a dangerous weapon by stabbing him with a knife, without just cause or excuse, in violation of 18 U.S.C. § 113(a)(3) (count one); and (2) knowingly and willfully assaulting Avena by stabbing him with a knife, which resulted in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6) (count two). At his original sentencing hearing, the district court determined that his guideline range for both counts of the indictment was 51 to 63 months' imprisonment, to run concurrently. The government then stated that, "I did notice the Court said concurrently, but I think because [Del Castillo] was charged with two subsections of the same

43 statute that a sentence on only one count would be appropriate in this case, not on both counts." Id. at **1. Del Castillo did not object to the government's request. The court sentenced Del Castillo to 62 months' imprisonment, three years' supervised release, and a $100 special assessment on count 1. Id. Thereafter, the government filed an emergency motion to amend or correct Del Castillo's sentence, arguing that it erroneously urged the court not to sentence Del Castillo on count two of his indictment. The government maintained that, under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932), the two offenses to which Del Castillo pled guilty were separate offenses, and, thus, each required separate sentences. Del Castillo objected to the government's motion and argued: (1) Federal Rule of Criminal Procedure 35 was not the proper avenue for the government to raise previously litigated issues; and (2) the two counts were not separate offenses because they involved the same conduct and the statute of conviction merely created two separate punishment provisions. Id. at ** 1. After a hearing, the district court found that the two counts, as charged in the indictment, constituted separate offenses because count one required proof that Del Castillo used a dangerous weapon and count two required proof that Del Castillo caused serious bodily injury. The court then resentenced Del Castillo to 62 months' imprisonment and 3 years' supervised release on both counts, to run concurrently, and a $100 special assessment on each count, for a total of $200. Id. at ** 2. Del Castillo appealed this sentence, which the district court imposed upon the government's Federal Rule of Criminal Procedure 35(a) motion to correct his original sentence. Because Rule 35(a) gives the district court the authority to correct clear errors in an original sentence, the crux of the issue on appeal was whether the district court's failure to impose a sentence on both counts of Del Castillo's indictment was a clear error for purposes of Rule 35(a). The authority to correct a sentence under this subdivision is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action .... The subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court's discretion with regard to the application of the sentencing guidelines. Furthermore, the Committee did not intend that the rule relax any requirement that the parties state all objections to a sentence at or before the sentencing hearing.... The subdivision does not provide for any formalized method of bringing the error to the attention of the court and recognizes that the court could sua sponte make the correction. Fed.R.Crim.P. 35, Advisory Comm. Notes, 1991 Amendments. "Thus, under [Rule 35(a) ], the district court may not simply change its mind, and any error to be corrected under that subsection must be obvious." [United States v. Yost, 185 F.3d 1178, 1181 (11th Cir.1999)] (holding that the district court had the authority to resentence a defendant under Rule 35(c), which was the former Rule 35(a), where the court had committed the "obvious error" of originally sentencing the defendant under the incorrect guideline). Id. at ** 2-3. The Eleventh Circuit concluded that "the two counts of Del Castillo's indictment constitute separate offenses because they each require 'proof of an additional fact which the other does not.' The district court thus committed clear error in failing to sentence Del Castillo on count two of his

44 indictment during the original sentencing. . . .Accordingly, the court properly resentenced Del Castillo pursuant to Rule 35(a) in order to correct the clear error in the original sentence." Id. at **3. The Eleventh Circuit also rejected Del Castillo's arguments that the government invited and waived any error that occurred in the original sentence. The invited error doctrine specifies that, when a party invites or induces the district court into making an error, we will not invoke plain error review and reverse on appeal. United States v. Love, 449 F.3d 1154, 1157 (11th Cir.2006). The invited error doctrine is not implicated here because the government did not appeal Del Castillo's original sentence, but rather, filed a Rule 35(a) motion to correct the error in the district court. While it appears that the government induced the error in the first instance, the invited error doctrine does not require this Court to vacate the "new" sentence and remand where, as explained above, the court properly corrected a clear error in the original sentence under Rule 35(a). Similarly, the fact that the government did not object to the sentence imposed at the original hearing does not establish that the government waived any opportunity to move to correct the sentence under Rule 35(a). This is especially true where Rule 35(a) provides an avenue to correct clear errors in sentencing, which occurred here, and allows the district court to sua sponte correct such an error. See Fed. R. Crim. P. 35, Advisory Comm. Notes, 1991 Amendments. Id. at **4.

VII. Appeal

A. Arguing on Appeal against Forfeiture of Issues

1. If the issue goes to the jurisdiction or authority of the court to act, it may be cognizable without objection, or it may just establish plain error.

United States v. Goldin Industries, Inc., 219 F.3d 1268 (11th Cir. 2000) (en banc): The court held that under the RICO statute, 18 U.S.C. § 1962, the RICO "person" prosecuted under the statute must be separate and distinct from the RICO "enterprise" that has its affairs conducted through a pattern of racketeering activity. The court rejected the government's argument that the defendant waived this claim by failing to raise it in the district court. "[W]hether a statute prohibits the charged conduct may be considered de novo even if the issue is raised for the first time on appeal." United States v. Walker, 59 F.3d 1196 (11th Cir. 1995): The defendant challenged the constitutionality of the Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), for the first time on appeal. The government argued that he had waived the issue because he failed to attack the statute's constitutionally in the trial court. The Eleventh Circuit disagreed, noting that as a general rule, a party must timely object at trial to preserve an issue for appeal. However, issues not preserved below are reviewed for plain error pursuant to FED. R. CRIM. P. 52(b). The Supreme Court had already ruled that the Congress exceeded its power to regulate interstate commerce when it enacted § 922(q)(1)(A). Therefore, the Eleventh Circuit said "[w]e can think of no plainer error than to allow a conviction to stand under a statute which Congress was without power to enact. In essence, the statute was void ab initio, and consequently, the district court below lacked subject matter jurisdiction with respect to that charge." The conviction was reversed, and the sentence vacated.

45 2. Argue fundamental fairness and justice.

Singleton v. Wulff, 428 U.S. 106, 121 (1976): "Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt . . . or where 'injustice might otherwise result.' ". Rather than espousing an all inclusive list of examples, the Supreme Court left the exceptions to the discretion of the appellate courts, to be exercised on the facts of individual cases.

3. Adopt co-defendant's issue on appeal

When one defendant raises an issue, another defendant can adopt that same issue on appeal and argue it would be anomalous to reverse some convictions and not others when all defendants suffer from the same error. See United States v. Rivera Pedin, 861 F.2d 1522, 1526 n.9 (11th Cir. 1988); United States v. Miles, 10 F.3d 1135, 1137 n.3 (5th Cir. 1993); United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980). But see United States v. Bichsel, 156 F.3d 1148 (11th Cir. 1998): During the appeal, the defendants raised a first amendment claim by attempting to adopt, by reference, briefs filed in the Eleventh Circuit in an unrelated case. The defendants in the instant case, however, did not brief the first amendment issue in their briefs, nor did they separately move to adopt the briefs from the other case. The court held that FED. R. APP. P. 28(I) does not permit adoption by reference between cases and unless a separate motion to adopt is made and granted, the appellate court will not consider issues not briefed and adopted by reference without a separate motion.

4. Check to be sure the district court conducted a proper Jones inquiry.

In United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990), the Eleventh Circuit held that the district court is required to offer the parties the opportunity to object at the conclusion of sentencing and if a party is silent or fails to state the grounds for objection, objections to the sentence will be waived for purposes of appeal. If the district court failed to conduct a proper Jones inquiry at the conclusion of sentencing, you can raise that as an issue on appeal. There are two possible remedies. One is to remand the case to the district court for resentencing, at which time the district court can conduct a Jones inquiry and all objections can be stated and ruled on, and hopefully resolved, by the district court, thereby possibly obviating the need for an appeal. The second remedy is to proceed with the appeal but to review the objections/issues de novo. United States v. Campbell, 473 F.3d 1345 (11th Cir. 2007): After imposing sentence in supervised release revocation proceedings, court failed to elicit fully articulated objections by merely asking defendant "Is there anything further?"; there was no indication that defense counsel understood the court to be eliciting objections. Defendant did not waive claim that district court failed to consider Sentencing Guidelines and his advisory sentencing range by failing to raise argument in supervised release revocation proceedings, where district court had failed to elicit objections after imposing sentence. Because the court concluded that the district court violated Jones by failing to elicit objections after imposing the sentence, it concluded that Campbell had not waived his argument, and it applied the de novo standard of review to the legality of his sentence issue. However, where the record was insufficient to allow meaningful appellate review of issues, remand is necessary.

46 5. Argue the purposes of the rule have been satisfied.

United States v. Costales, 5 F.3d 480, 483 n. 3 (11th Cir. 1993): The purpose of the rule requiring that sentencing objections first be raised in the district court "is simply to allow the district court the first opportunity to correct any error and to provide for a complete record on appeal." In Costales, the government satisfied that purpose by objecting to the downward departure, although it failed to object to the sentencing court's findings and conclusions after sentence was imposed. Thus, the government had not waived the issue for appeal. United States v. Weir, 51 F.3d 1031 (11th Cir. 1995): The government had not waived the issue by its failure to repeat its objection after sentence was imposed. "If the relevant objection is raised after the presentation of the report, however, but before the actual imposition of the sentence, Jones is satisfied. The district court clearly understood the Government's position and specifically rejected it. This satisfied the purpose of Jones to allow the district court to make a studied decision on the objection." [Citations omitted.] United States v. Smith, 39 F.3d 1143, 1146 (11th Cir. 1994): "Although the government did not articulate its argument before the district court in detail, it adequately raised the crux of its objection to the district's sentence . . . ." United States v. Dobbs, 11 F.3d 152, 154 n.4 (11th Cir. 1994): Defense counsel did not directly object to a lack of specific findings of perjury, but the Court broadly construed counsel's constitutional objection to include the degree of specific findings of perjury.

B. Issues Can be Waived During Appeal Even if Those Issues were Preserved in the District Court.

To properly raise an issue on appeal, that issue must be presented in the initial brief and must be argued. The issue cannot be simply mentioned in passing and not argued or else it will be deemed abandoned. Likewise, the issue cannot be raised in the reply brief. It must be raised and argued in the initial brief or else it will be waived or abandoned regardless of whether it is preserved below. Note: It is not necessary to argue all issues properly raised in the initial brief at Oral Argument in order to preserve them. In fact, if you raise multiple issues in your initial brief, it is virtually impossible, and a bad idea, to even try to argue all of the issues during the 15 minutes allotted at Oral Argument. United States v. Crumpton, 222 Fed. Appx. 914, 2007 WL 879807 (11th Cir. March 26, 2007): "At the outset, we note that Crumpton does not specifically argue that the 60-month sentence imposed for possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(I) was unreasonable. Thus, he waives that claim." Id. at **4. Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005): "When an appellant fails to offer argument on an issue, that issue is abandoned" and passing references to the issue are insufficient to prevent abandonment. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989): A party waives an issue by failing to argue the merits of it in his brief on appeal.

47