XII. Appeal
A. Preserving Error
B. Standard of Review
C. Reasonableness of Sentence
D. Miscellaneous Appeal
Standard of Review
Sixth Circuit
• Standard of Review - Insufficient EvidenceU.S. v. Arnold, 04-5384 (11/23/05)
> Defendant was convicted of being a felon in possession of a firearm, and on appeal defendant challenged the sufficiency of the evidence, and several evidentiary rulings.
* Holding: The court held that, in reviewing the sufficiency of the evidence, the appeals court must consider all of the evidence introduced before the trial court, even if it was improperly admitted. In so doing, the court must treat its review from the perspective of the trial court considering a motion for judgment of acquittal at the close of the evidence. The court ultimately ruled for defendant on the merits. (See supra, I. Specific Offenses).
• Booker - Standard of Review
U.S. v. Triana, 05-3173 (11/2/06)
> Defendant was convicted of conspiracy to defraud medicare and the district court sentenced him on the same day that Booker was decided. The court and the parties were unaware of the decision at the time, but defendant challenged the guidelines as being “harsh,” mentioned the pendency of Fanfan (companion case to Booker), and challenged the fraud loss amount calculated by the court. Defendant appealed and the government argued that defendant had not preserved the Booker error in the district court.
* Holding: If a defendant properly objects to a constitutional violation in the district court, the court of appeals reviews under a “preserved error” standard, under which the court reviews the case de novo and, if error is found, applies “harmless error” analysis. If a defendant has not preserved constitutional error, the appellate court reviews only for “plain error.” Addressing the question for the first time in the Sixth Circuit, the court held that a challenge to the “harshness” of the guidelines, and a challenge to the fraud loss amount calculation were sufficient to preserve potential Booker error. Accordingly, the court applied the “preserved error” standard, and remanded the case for resentencing pursuant to the mandates of Booker. Arguably, the court’s ruling regarding the standard of review was dicta because, as noted in Judge Ryan’s concurrence, the court found that its decision to remand would be the same under either the “preserved” or “plain” error standards.
• Standard of Review
U.S. v. Husein, 05-2548 (3/2/07)
> Defendant was convicted of conspiracy to distribute ecstacy and at sentencing the district court imposed a 37 month downward departure. The government appealed and argued that the standard of review on appeal should be de novo pursuant to 18 U.S.C. § 3742(e).
* Holding: Answering an open question in the Sixth Circuit, the court held that Booker severed the statutory requirement, under § 3742(e), that a departure from the guideline range be reviewed de novo. Accordingly, the court reinstituted the abuse of discretion standard. The court held also that the overall sentence is still reviewed for reasonableness.
• Standard of Review
U.S. v. Moncivais, 05-6689 (7/10/07)
> Defendant was convicted of a drug conspiracy and at sentencing the district court determined that defendant qualified for a leadership enhancement under USSG § 3B1.1. Defendant appealed.
* Holding: Traditionally, the court reviews a district court’s factual findings for clear error and its legal conclusions de novo. The court noted, however, that in Buford v. U.S., the Supreme Court held that review under § 4B1.2 should be conducted “deferentially rather than de novo.” The court commented that the Sixth Circuit has yet to determine whether the “deferential” standard should apply to review of sentencing enhancements. In the case, the court again refused to decide the issue because the results of the case would be the same under either standard. (See supra, II. Sentencing Guidelines).
• Standard of Review
U.S. v. Baker, 06-5984 (8/29/07)
> Defendant was convicted of possessing a firearm after being convicted of a misdemeanor crime of domestic violence and at sentencing he argued that he should receive a reduction, pursuant to USSG § 2K2.1(b)(2), because he possessed the gun solely for collection purposes. The district court disagreed and defendant appealed.
* Holding: The court held that the standard of review for guideline determinations is as follows: factual findings are reviewed for clear error, legal interpretation of the guidelines is reviewed de novo, and application of the facts to the guidelines is a mixed question of law and fact that is reviewed de novo. In the case, the court found that the district court had made several factual findings and applied those facts to the guidelines. The parties disagreement on appeal dealt with whether the facts indicated that defendant possessed the gun solely for collection. Thus, the court held that this was a mixed question of law and fact and applied de novo review.
• Supervised Release Violations
U.S. v. Bolds, 07-5062 (12/20/07)
> Defendant was found guilty of violating her supervised release and the district court imposed an upward departure from the recommended guideline range (4-10 months) to a sentence of 24 months. Defendant appealed the procedural reasonableness of the sentence.
* Holding: Deciding an open question in the Sixth Circuit, the court held that the Gall standard of “deferential abuse of discretion standard for reasonableness” applied to review of supervised release sentences as opposed to the “plainly unreasonable” standard that was previously mandated by statute. The court reasoned that the two standards worked exactly the same in practice, but that the Gall standard was mandated by the Supreme Court. Accordingly, the court reviewed defendant’s sentence for reasonableness. (See supra, XI. Probation & Supervised Release).