Week in Review

Tenth Circuit Court of Appeals

United States v. Cozad.

This appeal raises one issue: whether, under 18 U.S.C. § 3553(a), it is  unreasonable for a district court to impose a harsher sentence based on a defendant’s  decision to plead guilty without a plea agreement.  For the reasons explained below, we  hold that it is. 

The judge gave a middle range sentence, even though the "facts" likely warranted a lower sentence. The accused had rejected a plea offer but pled guilty anyway. The government argued for a lower sentence which was their plea offer. The judge however, said,

​I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right.  And, in practice, one of the factors I’ve used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement, without the agreements that typically happen in a plea agreement. 

That’s certainly their right to plead without a plea agreement, but they do not have a right to a low end guideline range sentence, and so it’s always been my -- again this isn’t a hard-and-fast rule by any means that I apply, butit’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they’re entitled to additional consideration, which is where I start at a low end guideline range.But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range, which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.
 
In this case, having thought about it obviously since our hearing last week, having looked through the briefs that have been filed in this case since that time, as well as additional information I’ve received from the probation office and going back through the report as well, it’s my conclusion that, first  of all, Ms. Cozad has not shown demonstration that entitles her to a variance from the guideline recommendation of a custodial sentence, and I cannot find that that variance has been earned; and secondly, in light of the matters that I’ve just discussed overall, that a low-end guideline range sentence is not appropriate. 

Seems to me as we move forward with applying the NDAA sentencing changes we will be referring more to federal district court cases? So here is the nub of the case, perhaps for the future?

We review a defendant’s sentence “for reasonableness under an abuse-of-discretion standard,” which applies whether the sentence falls inside or outside of the  guideline range.  United States v. Henson, 9 F.4th 1258, 1284 (10th Cir. 2021) (quoting  Peugh v. United States, 569 U.S. 530, 537 (2013)).  The reasonableness of a sentence  includes a procedural component, which relates to the method by which a sentence was  calculated, and a substantive component, which relates to the length of the resulting  sentence.  Id.  In arguing that the district court impermissibly treated her open plea as an  aggravating fact warranting harsher punishment, Ms. Cozad raises a procedural reasonableness challenge.  See United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.  2009) (“Generally, a district court’s use of an improper factor invokes procedural  review.”); United States v. Pinson, 542 F.3d 822, 835–36 (10th Cir. 2008) (“While the  weight the district court places on certain factors is reviewed for substantive 
unreasonableness, use of an improper factor is reviewed for procedural unreasonableness.”). 

The Tenth, as we know is were the majority of USDB habeas petitions come from.

Air Force Court of Criminal Appeals

United States v. Ramirez, an Article 62 appeal.

At trial, the military judge abated the proceedings against Appellee, pursuant to Rule for Courts-Martial (R.C.M.) 703(e)(2), citing as the basis for his ruling the Government’s failure to preserve forensic extractions of the contents of electronic devices seized from Appellee by civilian law enforcement.

The Government now appeals the military judge’s ruling on the grounds that he erred in finding the destroyed forensic extractions of Appellee’s electronic devices were of central importance to a fair trial. We agree.

There were two parallel investigations into allegations of possessing CP--one by the Houston County Sherriff, GA, and one by OSI. This appears to have been a joint investigation.

The Sherriff's office decided to close the investigation based, it appears, on insufficient evidence. As a standard practice destroy any evidence collected in such situations.

​After HCSO notified AFOSI that it was closing its investigation into Appellee, AFOSI continued its own investigation. 

This is where the OSI agents were grossly derelict and grossly negligent in preserving evidence.

There is a joint investigation, clearly well coordinated, the civilian agency had the evidence, and, apparently, no OSI investigator had the brains to ask the Sherriff's office to preserve and provide a copy of everything they had during the investigation? At any point when they learned of the closing of the case?

Because of this failure, the defense expert's testimony about what was possibly lost or is unavailable is characterized as speculation, therefore the 62 appeal is granted.

United States v. Halter. GP to A&B, reckless endangerment, two assaults on an intimate partner, and A&B. Sentenced to six months, RiR, reprimand, and a BCD. Issues.

• TC prosecutorial misconduct during his sentencing argument by arguing that Appellant should be sentenced based on an uncharged offense.
  
• MJ erred allowing a named victim to present improper victim impact information in the victim’s unsworn statement.
  
• MJ abused his discretion by admitting Appellant’s letter of reprimand during presentencing.
  
• Appellant is entitled to appropriate relief because he was not timely served with a victim’s submission of matters or provided an opportunity to rebut the same in accordance with R.C.M. 1106A. Court finds error.
  
• Appellant is entitled to appropriate relief due to the convening authority’s failure to take action on the sentence as required by law.
  
• Appellant’s sentence is inappropriately severe.

Remand for corrective action IRT the fourth issue.

United States v. Shaw. CP to sexual abuse of a child x 2, by committing a lewd act. Sentenced to six years, RiR, DD.

Appellant raises two issues on appeal. The first issue is broken up into three sub-parts: whether trial counsel’s sentencing argument was improper ​when she: (1) requested the military judge place himself in Appellant’s position; (2) requested the military judge place himself in the position of a near relative of Appellant; and (3) requested the military judge tell the named victim that a dishonorable discharge was not warranted because Appellant’s conduct was not bad enough. The second issue is whether Appellant’s sentence was inappropriately severe.

1. It was improper to ask the MJ to place himself in Appellant's position, even though there was no objection.
2. The DC objected to the 'place yourself in the position of a near relative' argument.
3. "Appellant’s third claim—that trial counsel improperly requested that the military judge tell the named victim, AH, that a dishonorable discharge was not warranted because Appellant’s conduct was not bad enough—occurred during rebuttal argument. The Defense had conceded during its argument that a bad-conduct discharge was appropriate but suggested that a dishonorable discharge was inappropriate as the case did not involve a penetrative offense."

“Golden Rule arguments asking the members to put themselves in the victim’s place are improper and impermissible in the military justice system.” Id. at 238. This is also true of “arguments that ask the court members to place themselves in the position of a near relative of the victim . . . .” Id. at 237 (citation omitted). However, “an argument asking the members to imagine the victim’s fear, pain, terror, and anguish is permissible, since it is simply asking the members to consider victim impact evidence.” Id. at 238 (citation omitted). It “is conceptually different from asking them to put themselves in the victim’s place.” Id. (citation omitted). Additionally, trial counsel may request a severe sentence, but “cannot threaten the court members with the specter of contempt or ostracism if they reject his request.” United States v. Wood, 40 C.M.R. 3, 9, (C.M.A. 1969). Moreover, “reasonable appeals to a [panel’s] sense of outrage at the horror of [an appellant’s] crime” are not improper. United States v. Williams, 23 M.J. 776, 778 (A.C.M.R. 1987) (citations omitted).

Ultimately this is a "the MJ is presumed to know and apply" resolution of no prejudice.

United States v. Day. GP to one attempted wrongful possession of fentanyl, one attempted premeditated murder, one attempted conspiracy to commit premeditated murder, two specifications of solicitation to commit murder, in violation of Article 82, and one attempted conspiracy to commit murder in violation of Article 80. Sentenced to 10 years, RiR, and a DD. Issues,

• Improvident plea of guilty to two specifications of attempted conspiracy because they failed to state an offense, or, in the alternative, whether the military judge abused his discretion in accepting Appellant’s plea to attempted conspiracy because Appellant did not perform a substantial step towards the commission of the offense.
• MJ’s ambiguous language during Appellant’s providence inquiry rendered Appellant’s plea to solicitation to commit murder improvident.
• Plea to attempted murder was improvident because the overt act was not a substantial step towards commission of the offense, and even if the overt act was sufficient, Appellant did not have the requisite mens rea at the time she performed the overt act.
• Sentence inappropriately severe.

Findings and sentence affirmed.

United States v. Daly. GP to disobeying and order and sexual assault of a child. Sentenced to 24 months, TF, RiR, and a DD. The issue is one of omissions from the record which resulted in a remand to the trial judge for correction of the record by "reconstructing" an exhibit.

United States v. Cox. MJ convicted Appellant of possessing CP. Sentenced to three years, RiR, reprimand, and a DD. Despite Grosty issues under the Eighth Amendment and sentence severity, the findings and sentence are affirmed.

Navy-Marine Corps Court of Criminal Appeals

United States v. Barmeyer. Appellant pled guilty to fraudulent enlistment, willfully disobeying an officer, using drugs (marijuana, MDMC, LSD, and concaine), attempting to transport illegals, and disrespect to sentinels. Appellant was sentenced to 49 months, RiR, and a BCD.

Before the Care inquiry a question arose about Appellant's waiver of an Art. 13 motion (there being no waiver of motions in the PTA)--in which the DC said they intended to raise the "evidence" during sentencing for consideration, but not by motion. The MJ ordered a briefing of the issue anyway. The Appellant ultimately received 30 days credit. But, to quote Paul Harvey for the "rest of the story," the new charges of disrespecting sentinels while in PTC came to light. A new PTA was executed. The new PTA included the standard motions waiver provision.

Appellant . . . asserts two assignments of error: (1) the military judge erred in denying Appellant’s waiver of his rights under Article 13, UCMJ, creating a delay that prompted the Government to rethink its commitment to Appellant’s beneficial pretrial agreement and subsequently withdraw from it for no valid reason; and (2) the military judge erred by allowing the convening authority to withdraw from the initial pretrial agreement after Appellant had begun substantial performance of his promises under that agreement. We find no prejudicial error and affirm.

Based on the chronology of events the court found an affirmative waiver of any issues as a result of an unconditional guilty plea and the new PTA. The courts suggests a concern for a sub rosa agreement of some kind at the time of the first plea.

Nor did the military judge allow the convening authority to withdraw from the initial pretrial agreement, as Appellant claims. Rather, Appellant retained the right to litigate to its conclusion his motion for specific performance of the earlier agreement. Instead, having committed additional misconduct (in potential breach of that agreement), Appellant freely and voluntarily chose to forgo that right and enter into a new plea agreement that effectively withdrew his motion for specific performance. 

Worth the Read

​Hugh McClean, Discharged and Discarded: The Collateral Consequences of a Less-Than-Honorable Discharge. 121 COLUMBIA L. REV. 2203 (2021).

Cheers, Phil Cave