XII. Appeal
A. Preserving Error
B. Standard of Review
C. Reasonableness of Sentence
D. Miscellaneous Appeal
Miscellaneous Appeal
Supreme Court Decisions
• Time to File Appeal
Bowles v. Russell, 06-5306 (6/14/07)
> Defendant was convicted in state court of murder and sentenced to
15 years to life. Defendant exhausted his state court appeals and then
filed a federal habeas petition. The district court denied the petition
and defendant failed to file a notice of appeal within the required 30
day time period. Defendant then moved to reopen the period in which to
file his appeal pursuant to Fed. R. App. P. 4(a)(6) and 28 USC §
2107(c). The district court granted his request, but instead of giving
defendant 14 days to file the delayed appeal, the district court
extended defendant’s time by 17 days. Relying on the district
court’s order, defendant filed his notice of appeal on the 16th
day. On appeal, the court held that defendant’s appeal was
untimely because it was filed outside the 14-day time limit permitted
by Rule 4 and § 2107(c). Defendant’s petition for certiorari
was granted by the Supreme Court.
* Holding: The Court held that the 14-day time period prescribed in
Rule 4 and § 2107 are jurisdictional in nature. Thus, even though
the district court’s order purported to give defendant 17 days to
appeal, the defendant had only 14 days, and his failure to appeal in
that time period deprived the court of appeals of jurisdiction to hear
the case. Accordingly, the Court affirmed the dismissal of
defendant’s appeal.
Sixth Circuit
• 18 U.S.C. § 3742(f) &(g) - Law on RemandU.S. v. Williams, 04-6191 (6/9/05)
> Defendant was convicted of child pornography, and at sentencing the district court applied the 2001 version of the sentencing guidelines. While the case was pending on appeal, the child pornography guidelines were amended, deleting the possession of child pornography guideline (§ 2G2.4) and incorporating possession into the trafficking guideline (§ 2G2.2). The Sixth Circuit remanded the case for resentencing and was forced to decide which law should apply on remand.
* Holding: The court ruled that 18 U.S.C. § 3742(g) requires the district court, upon resentencing pursuant to a remand, to apply the law in effect on the date of the previous sentencing. The court first held that Booker did not excise § 3742(g), and thus the provision was still mandatory. The court concluded however, that, pursuant to Booker, on remand the district court was required to apply the guidelines that were in effect at the time of the first sentencing (the 2001 version), but to consider such guidelines as nonmandatory.
• Scope of Remand/Law of Case Doctrine
U.S. v. Haynes, 05-5889 (11/6/06)
> Defendant was convicted after a jury trial of aiding and abetting a conspiracy to distribute more than 100 kilos of marijuana, but was acquitted of conspiracy to distribute marijuana. Although the jury specifically found that the conspiracy that defendant aided and abetted involved more than 100 kilos, defendant argued that the district court erred in failing to require the jury to find that the 100 kilo amount was reasonably foreseeable to defendant. Defendant appealed her conviction and sentence and the Sixth Circuit affirmed. The Supreme Court subsequently remanded the case to the district court for “further consideration in light of Booker.” On remand, the district court refused to reconsider defendant’s argument on the jury instruction issue, but imposed a below guideline sentence based upon Booker. Defendant appealed.
* Holding: The court held that the scope of a remand for “consideration in light of Booker” constrained the district court to simply resentence defendant, and did not permit review of the jury instruction issue. Further, the court held that the law of the case doctrine prohibited reconsideration of the jury instruction issue on appeal because the issue had already been decided by an earlier Sixth Circuit panel. Under the law of the case doctrine, a prior ruling may only be reconsidered where (1) substantially different evidence is raised in a subsequent trial, (2) a contrary view of the law is subsequently decided by the controlling authority, or (3) a decision is clearly erroneous and would work a manifest injustice. Finding that none of the exceptions applied, the court affirmed the district court’s ruling.
• Scope of Remand
U.S. v. Obi, 07-1400 (9/5/08)
> Defendant was convicted of drug trafficking and at sentencing the district court imposed an obstruction of justice enhancement. On appeal, the Sixth Circuit held that the obstruction of justice enhancement should not apply and remanded the case for resentencing. In issuing the remand, the court stated: “because the court considered an improperly calculated guideline range, the defendant’s sentence is vacated and the case remanded to the district court for resentencing, consistent with this opinion.” On remand, the district court conducted a de novo resentencing, and considered additional evidence supporting the obstruction enhancement. The court made new findings supporting the obstruction enhancement, and reimposed the same sentence. The court further held that it would impose the same sentence even absent the obstruction enhancement. Defendant appealed.
* Holding: A limited remand explicitly outlines the issues for a district court to address on remand and prescribes a narrow framework for the district court. In contrast, a general remand provides broad discretion to the district court to address all matters as long as the court remains consistent with the remand. In the case, the court held that, although the Sixth Circuit’s original decision focused exclusively on the obstruction enhancement, the language of the mandate did not limit review to that particular issue. Further, the court held that the language “consistent with this opinion” was boilerplate and did not create a limited remand. Accordingly, the court held that the district court properly conducted de novo resentencing.
• Law of the Case Doctrine
U.S. v. Rayborn, 05-6894 (7/26/07)
> Defendant was a pastor who was charged with arson for burning his own church. Defendant filed a motion requesting dismissal of the indictment alleging that the interstate nexus requirement was not satisfied because the church was not sufficiently used in interstate commerce. The district court denied the motion and defendant subsequently lost the issue in the Sixth Circuit, however, the case was remanded for retrial on a separate issue. In the second trial, defendant again challenged the interstate nexus requirement and was again convicted. Defendant appealed.
* Holding: Applying the law of the case doctrine, the court held that, where a court decides upon a rule of law, that decision governs the same issues in subsequent stages of the same case. There are three exceptional circumstances in which a court will reconsider a previously decided issue of law: (1) substantially different evidence is raised in a subsequent trial; (2) the controlling authority takes a contrary view of the law; or (3) a decision is clearly erroneous and would work a manifest injustice. In the case, the court found that the legal issue regarding the interstate nexus had already been decided and that none of the exceptions applied. Accordingly, the district court ruling was affirmed.
• Discrepancy in Record on Appeal
U.S. v. Brika, 02-4329 (7/27/05)
> On appeal, defendant contended that certain testimony was omitted from the official transcript. In support of his contention, he submitted his own affidavit and the affidavit of a witness observer who watched the trial. The district court and the court reporter reviewed the transcript and determined that nothing was missing.
* Holding: According to 28 U.S.C. § 753(b), the official transcript of a case is, prima facie, a correct statement. Because the district court and court reporter reviewed the transcript and certified its accuracy, and because defendant’s evidence was tenuous, the court found no error in the transcript.
• Supplemental Record on Appeal
U.S. v. Husein, 05-2548 (3/2/07)
> Defendant was convicted of conspiracy to distribute ecstacy and at sentencing the district court granted a thirty-seven month downward departure based upon family circumstances. The court found that defendant was an irreplaceable caregiver for her dying father. The government appealed and attempted to supplement the record in the Sixth Circuit to prove that (1) the government learned from “westlaw.com” that, contrary to defendant’s assertion, two other household members had valid driver’s licenses, and (2) defendant’s father died four months after sentencing.
* Holding: Pursuant to Fed. R. App. P. 10(a), the record on appeal may be supplemented to correct an omission or misstatement. The court ruled, however, that Rule 10(a) may not be used to introduce new evidence on a disputed issue. The court specifically found that the failure of the government to present the evidence at sentencing amounted to a lack of diligence. Noting that some circuits have applied the court’s “equitable authority” to supplement a record on appeal, the court further ruled that, even if it applied such a doctrine in defendant’s case, it would still not likely supplement the record because the evidence was unlikely to change the outcome. Finally, the court held that judicial notice was not an appropriate remedy under the circumstances. Accordingly, defendant’s sentence was affirmed.
• 18 USC § 3742(a) - Appellate Jurisdiction
U.S. v. Trejo-Martinez, 05-6078 (3/23/07)
> Defendant was convicted of illegal reentry by a deported alien and the district court sentenced him to the bottom end of the applicable guideline range. Defendant appealed the reasonableness of the sentence and the government argued on appeal that the Sixth Circuit had no jurisdiction, pursuant to § 3742(a), to hear the appeal.
* Holding: Answering an open question in the Sixth Circuit, the court first held that, after Booker, the court of appeals has jurisdiction to review a within-guideline sentence for reasonableness. The court reasoned that, if it determined that a sentence was unreasonable, the sentence would properly be considered “imposed in violation of law” under § 3742(a). Second, the court ruled that the sentence imposed by the district court was reasonable, and affirmed the district court’s ruling.
• Appellate Jurisdiction
U.S. v. Jones, 06-5328 (7/23/07)
> Defendant was charged with being a felon in possession of a firearm and agreed to enter a plea of guilty to the charge. Defendant was practically deaf since age two. As a result of defendant’s hearing disability, the district court found defendant incompetent and “permanently removed the case from its trial calender.” The government appealed the decision.
* Holding: Pursuant to 18 USC § 3731, the court has jurisdiction to hear appeals by the government where the district court dismisses an indictment, unless the double jeopardy clause is implicated. In the case, the court held that the district court’s permanent removal of the case from its trial calender was the functional equivalent of a dismissal of the indictment, and that the appeal did not violate double jeopardy. Accordingly, the court found that it had jurisdiction to hear the appeal.
• Appellate Jurisdiction
U.S. v. Lawrence, 06-4105 (2/11/09)
> Defendant was convicted of multiple bank robbery and gun charges. Two of the charges were death eligible because defendant killed a police officer during one of the bank robberies. During the penalty phase, the jury imposed life imprisonment for the death-eligible bank robbery, but imposed the death penalty for the corresponding firearm charge under 18 U.S.C. § 924(c) and (j)(1). Defendant subsequently moved for a new trial alleging that the verdicts were inconsistent on the two counts. The district court granted the motion and ordered a new sentencing before a new jury. The government filed an interlocutory appeal.
* Holding: Pursuant to 18 U.S.C. § 3731, the government may appeal an order “granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof.” The court held that this provision permitted the government to proceed with an interlocutory appeal of the district court’s order granting a new sentencing regarding the death-eligible counts. Accordingly, the court proceeded to the merits of the issue. (See supra).
• 18 USC § 3742(a) - Appellate Jurisdiction
U.S. v. Hebert, 07-2438 (10/26/09)
> Defendant was convicted of bank robbery and at sentencing the district court ordered that defendant, while incarcerated with the Bureau of Prisons, have an evaluation and treatment for mental health, gambling, pornography, and sex addiction. Defendant appealed.
* Holding: The court held that the district court’s order regarding an evaluation and treatment was only a recommendation to the Bureau of Prisons. As such, it was non-appealable under 18 USC § 3742(a). Accordingly, defendant’s appeal was dismissed.
• Fugitive Disentitlement Doctrine
U.S. v. Smith, 04-1476 (8/18/05)
> Defendant was indicted for a drug conspiracy and while the jury was deliberating, he absconded, and was not arrested until 12 years later. Defendant was then sentenced to 240 months in prison, and he appealed. On appeal, the government claimed that the fugitive disentitlement doctrine should apply to foreclose the appeal because the lapse of time would make it very difficult for the government to retry the case.
* Holding: Relying on the Supreme Court’s decision in U.S. v. Degen, the court opined that the fugitive disentitlement doctrine is a “harsh sanction” that should not be lightly applied to a case. The court noted that, before it would dismiss a case based upon such a sanction, a hearing would be necessary in the district court wherein the government would have to establish the extent of prejudice against it as a result of defendant’s actions. Disentitlement cannot be based solely upon conclusory and hypothetical statements about prejudice. The court chose not to rely on the doctrine and instead ruled against defendant on the merits of the appeal. (See, supra).
• Booker - Motion to Recall Mandate
U.S. v. Saikaly, 01-4001 (9/28/05)
> Defendant was convicted of a drug trafficking conspiracy, was sentenced to 360 months in prison, and lost on appeal. Defendant then filed a habeas petition, and successfully obtained a resentencing, at which he received a reduced sentence of 240 months. Defendant again appealed, and the court remanded the case for reconsideration of the amount of cocaine attributable to defendant. While the case was pending on remand, Apprendi was decided. Defendant argued that Apprendi required a reversal of his conviction because the judge, not the jury, had decided the drug amount. The district court rejected defendant’s argument and the Sixth Circuit affirmed, holding that Apprendi was inapplicable because the 240 month sentence was within the statutory maximum for defendant’s conspiracy conviction. Defendant did not file a petition for certiorari. The Supreme Court subsequently decided Booker and defendant moved to recall the Sixth Circuit’s mandate on his last appeal because the court was “patently wrong” in rejecting his Apprendi argument.
* Holding: A mandate may only be recalled as a last resort against “grave, unforeseen contingencies.” Thus, a party may only obtain such a remedy upon a showing of exceptional circumstances. In the case, the court held that the change in the law after Booker did not warrant a recall of the mandate. The court noted that it had already decided in Humphress v. U.S. that Booker was not retroactive. Thus, Booker issues must be raised on direct appeal, and cannot be raised in a habeas petition. Based upon Humphress, the court therefore concluded that a motion to recall the mandate was likewise not a proper context in which to raise a Booker challenge.
• Interlocutory Appeal
U.S. v. Young, 05-5846 (9/29/05)
> Defendant was charged with capital murder and, before trial, the district court decided to empanel separate juries to hear the guilt and penalty phases of the trial. The government filed an interlocutory appeal of the district court’s order.
* Holding: The court held that the interlocutory appeal procedure was proper under two theories. First, the court held that the “collateral review doctrine” (28 U.S.C. § 1291) provided jurisdiction for the court to review the matter. Under such doctrine, the court may review a non-final order if it “(1) conclusively determines (2) an important legal issue completely separate from the merits of the action, which is (3) effectively unreviewable on appeal.”
Second, the court held that it had jurisdiction to review the interlocutory order as a petition for writ of mandamus. A court may issue mandamus only in extraordinary cases after weighing five factors: (1) whether there are no other adequate means to attain relief; (2) whether the petitioner will be prejudiced in a way that is not correctable on appeal; (3) whether the district court order is clearly erroneous; (4) whether the issue is an oft repeated error; and (5) whether the issue is one of first impression. Thus, the court found review under both theories appropriate, and proceeded to address the merits of the appeal. (See, supra, X. Jury Issues).
• Interlocutory Appeal - Collateral Order
U.S. v. Green, 06-6186 (7/16/08)
> Defendant was charged with drug trafficking and found to be incompetent to stand trial. The district court ordered that defendant be involuntarily medicated in order to restore him to competency. Defendant filed an interlocutory appeal of the district court’s ruling.
* Holding: Under the “collateral order” doctrine, a party may appeal an interim order of the district court if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment. The court held that appellate review of an order that a defendant be forcibly medicated is “ineffective” because the “harm that he seeks to avoid cannot be undone even if he is acquitted.” Thus, the court granted interlocutory review and proceeded to the merits of the appeal. (See supra).
• Rule 4(b) - Time to File Appeal
U.S. v. Dotz, 05-1427 (8/3/06)
> Defendant was convicted of drug distribution and after his sentencing filed a Rule 35 motion to correct his sentence. The district court ultimately treated the motion as a motion for reconsideration of sentence, and denied the motion. Defendant failed to file an appeal within the ten day time period prescribed by Rule 4(b) of the Federal Rules of Appellate Procedure, but later requested to file a delayed appeal arguing that the Rule 35/reconsideration motion tolled the period in which to file his appeal. The original Sixth Circuit panel held that defendant failed to show excusable neglect in filing a delayed appeal and found his appeal untimely. (See P.V. , Issue # 8). The court then issued an amended opinion.
* Holding: In an amended opinion, the court retracted its holding regarding the failure to show excusable neglect, and instead ruled that a motion to reconsider an otherwise final sentence is not cognizable in federal court. Thus, such a motion would not toll the time for filing an appeal. Likewise, a Rule 35 motion does not suspend the time for filing an appeal. Accordingly, the appeal was not timely filed and the sentence was affirmed.
• 18 USC § 3731 - Government Appeals
U.S. v. McGinnis, 06-5782 (9/7/07)
> Defendant was charged with smuggling bulk money into the U.S. and the district court granted defendant’s motion to suppress. The government appealed within the required 30 day time period, but failed to file the certification required by § 3731 within this time period. Defendant moved to dismiss the government’s appeal.
* Holding: Pursuant to § 3731, when appealing a district court decision regarding a motion to suppress, the government must certify within 30 days that “the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” The court held that, in determining whether to hear an appeal where the government has failed to timely file the certification, it must consider the following: (1) the reason for the delay; (2) whether the government engaged in a conscientious pre-appeal analysis; (3) whether the government takes the certification requirement seriously; (4) any prejudice to defendant; and (5) the interests of justice. Considering the factors, the court determined that dismissal of the appeal was not appropriate and accordingly proceeded to the merits. (See supra, IV. Fourth Amendment).
• 18 USC § 3582(c)(2) - Crack Amendment
U.S. v. Poole, 07-3694 (8/21/08)
> Defendant was convicted of conspiracy and distribution of crack and sentenced. Subsequent to defendant’s sentencing, the Sentencing Commission amended the guideline for crack, and reduced the penalties by two offenses levels. Defendant argued on appeal that his sentence should be vacated and the case remanded for resentencing based upon the crack amendment.
* Holding: The court held that the proper course for a court of appeals in relation to a retroactive guideline amendment was to affirm defendant’s sentence and remand the case to the district court for it to consider a motion for reduction of sentence pursuant to 18 USC § 3582(c)(2).
• 18 USC § 3582(c) - Crack Amendment
U.S. v. Johnson, 08-5667 (5/5/09)
> Defendant was convicted of drug trafficking and subjected to a mandatory 20 year sentence. At sentencing, the district court granted the government’s sentence reduction motion, pursuant to USSG § 5K1.1, and reduced defendant’s sentence to 108 months. After the crack amendment was passed, defendant moved to reduce his sentence based on the amendment. The district court denied the motion and defendant appealed.
* Holding: The court held that the sentence reduction based on the crack amendment was not appropriate because defendant’s original sentence was based on the 20 year mandatory minimum, not the guidelines. Accordingly, the district court ruling was affirmed.
• Appeal from Magistrate Decision
U.S. v. Gagnon, 07-2133 (1/29/09)
> Defendant was charged with a misdemeanor assault and the case was tried to a magistrate. Upon defendant’s conviction, he appealed to the district court, who affirmed. Defendant appealed to the Sixth Circuit.
* Holding: Pursuant to 18 USC §3402 and Fed. R. Crim. P. 58(g)(2), a defendant may not appeal directly to the court of appeals from a magistrate’s decision, but instead must appeal to the district court. The court noted that there is no specific provision of law that permits an appeal from a district court’s decision affirming a conviction by the magistrate. Nonetheless, the court held that a defendant may appeal from such a ruling in the district court, pursuant to 18 USC § 1291, which permits the court of appeals to hear appeals from “all final decisions of the district courts.” Accordingly, defendant’s appeal was properly brought, and the court proceeded to the merits. (See supra).
• Mootness of Appeal - Release from Prison
U.S. v. May, 07-3465 (6/9/09)
> Defendant was sentenced for several tax offenses and raised on appeal issues related to the computation of the sentencing guidelines. Defendant’s case was remanded by the Sixth Circuit for reconsideration in light of Booker. On remand, the district court imposed the same sentence. Defendant again appealed and completed his term of imprisonment while the appeal was pending. The government argued that the guideline issues were mooted by defendant’s release.
* Holding: The court held that a defendant’s release from prison does not moot the appeal if the issue raised “potentially implicates” the length of the defendant’s supervised release term. The court found that the guidelines permitted the district court to impose 2-3 years of supervised release, and that the court imposed 3 years. Thus, “on any remand, the district court would be free to reduce [defendant’s] term of supervised release from 3 to 2 years.” Accordingly, the court found that none of defendant’s issues were moot, and proceeded to the merits. (See supra).