SUPREME COURT AND THIRD CIRCUIT UPDATE OCTOBER 2017

SUPREME COURT AND THIRD CIRCUIT UPDATE OCTOBER 2017 JACOB SCHUMAN RESEARCH & WRITING SPECIALIST APPELLATE UNIT FEDERAL COMMUNITY DEFENDER OFFICE, E. D. PA.

OVERVIEW • Supreme Court • Decisions • Oral Arguments • Cert Grants • Third Circuit • Decisions • En Banc • Themes • Immigration • Statutory language • Prosecutorial power

SUPREME COURT DECISIONS

PACKINGHAM V. NORTH CAROLINA 137 S. CT. 1730 (2017) • Does North Carolina statute making it a felony for a registered sex offender to access a social media website violate the 1 st Amendment? • Held: First Amendment applies to social media, and a blanket ban on sex offenders is too broad. • “Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. ” • Conditions of probation/supervised release?

MASLENJAK V. UNITED STATES 137 S. CT. 1918 (2017) • Can government strip citizenship under 18 U. S. C. § 1425(a) by proving any lie on application form, or only lie that contributed to the approval? • Held: Government must prove causal connection between lie and grant of citizenship. • Plain language of statute. “Procuring, contrary to law, her naturalization. ” • Concern that government might denaturalize new citizens for meaningless lies (speeding tickets, etc. ) • Prosecution of Mohammed “Jungle” Jabateh in Philadelphia

HONEYCUTT V. UNITED STATES 137 S. CT. 1626 (2017) • $200 k forfeiture from store owner, is co-conspirator employee jointly and severally liable for remaining $70 k under 21 U. S. C. § 853? • Held: Forfeiture limited to “tainted” property personally acquired by defendant. Employee not liable for profits. • Plain language of statute • § 853(a) property subject if “obtained” by defendant and “derived” from crime. • § 853(p) gives special process for untainted property. • Displaces principle that conspirators liable for each others’ actions. • Overturns United States v. Pitt, 193 F. 3 d 751, 765 (3 d Cir. 1999)

ESQUIVEL-QUINTANA V. SESSIONS 137 S. CT. 1562 (2017) • Government seeks to deport LPR by arguing that California conviction for statutory rape = aggravated felony “sexual abuse of a minor. ” • Held: California statute covers more conduct than federal definition, so it ≠ sexual abuse of a minor. • Compare statute of conviction to generic federal definition. Facts don’t matter! • CA age of consent is 18. Federal age of consent is 16. • 3 x immigrant wins at Court (Mellouli, Moncrieffe) • “Aggravated felony” also determines statutory maximum for illegal reentry, 8 U. S. C. § 1326.

SUPREME COURT ORAL ARGUMENTS

CLASS V. UNITED STATES 16 -424 • Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of the statute of conviction? • Are you “suggest[ing] that the government lacks sufficient bargaining power in the plea bargaining process? ”

SESSIONS V. DIMAYA 15 -1498 • Whether residual clause defining “crime of violence” is unconstitutionally vague in immigration context? • “Involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense. ” 18 U. S. C. § 16(b). • Struck down in criminal context by Johnson v. United States, 135 S. Ct. 2551 (2015). • “I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn't trade places in the world for someone who is deported from this country pursuant to a civil order. ”

SUPREME COURT CERT GRANTS

4 TH AMENDMENT • Carpenter v. United States, 16 -402: Whether government needs warrant to seize/search historical cell phone records revealing the location and movements of user over 127 days? • 3 d Cir. currently leaves it to MJ’s discretion to determine in each case. • United States v. Microsoft Corp. : Whether a U. S. email provider must comply with a probable-cause-based warrant issued under 18 U. S. C. § 2703 by disclosing email communications within that provider’s control but stored abroad? • Dahda v. United States: Whether Title III of the Omnibus Crime Control and Safe Streets Act, 18 U. S. C. § § 2510 -2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because it exceeds the judge’s territorial jurisdiction? • Collins v. Virginia, 16 -1027: Whether the car exception to warrant requirement permits police to enter private property and search car parked near house? • Byrd v. United States, 16 -1371: Whether driver has reasonable expectation of privacy in rental car when he has renter’s permission to drive but is not listed as authorized driver on rental agreement? • Appeal from unpublished 3 d Cir. decision saying unlisted driver has no reasonable expectation of privacy and can’t challenge search.

OTHER ISSUES • City of Hays, Kansas v. Hoyt, 16 -1495: Whether 5 th Amendment applies to statements used at probable cause hearing, rather than criminal trial? • Marinello v. United States, 16 -1144: Whether residual clause of 26 U. S. C. § 7212(a), which makes it a crime to corruptly obstruct or impede IRS “in any other way, ” requires proof that defendant was aware of pending IRS action or proceeding? • Rosales-Mireles v. United States, 16 -9493: Whether 4 th prong of plain error review requires error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge? ” • Last year Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) overturned heightened standard for 3 d prong of plain error…

THIRD CIRCUIT DECISIONS

UNITED STATES V. CHAPMAN, 866 F. 3 D 129 (3 D CIR. 2017) • Defining “crime of violence” for career-offender guideline, § 4 B 1. 1. • Any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another, ” § 4 B 1. 2(a)(1). • “Use of force” = intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body. • Poison and cutting break lines both “use force. ” • 5 -3 circuit split • Judge Jordan concurs, critiquing the categorical approach.

OTHER SENTENCING ISSUES • United States v. Azcona-Polanco, 865 F. 3 d 148 (3 d Cir. 2017) • Deportable immigrants presumptively exempt from discretionary imposition of supervised release. Court must specifically justify. • United States v. Poulson, 871 F. 3 d 261 (3 d Cir. 2017) • New guideline for economic offenses, § 2 B 1. 1, enhances for victims with “substantial financial hardship, ” not total victims. • Relative concept, but court has lots of discretion. • United States v. Jackson, 862 F. 3 d 365 (3 d Cir. 2017) • If no official guideline, use “elements-based” approach to find “sufficiently analogous” guideline in “same ballpark. ” • 24 -month sentence/probation for child abuse substantively unreasonable. • Relied too much on state sentencing practices instead of federal principles.

OTHER DECISIONS • United States v. Wrensford, 866 F. 3 d 76 (3 d Cir. 2017) • Involuntary transport to police station and placement in a cell = de facto arrest. • United States v. Washington, 869 F. 3 d 193 (3 d Cir. 2017) • Expresses concern about using drug quantity in ”reverse stash house” sting to manipulate sentencing factors, but affirms in this case. • “This practice, if not properly checked, eventually will find itself on the wrong side of the line. ” • Judge Mc. Kee dissents, critiquing reverse stash house stings. • Lower bar for discovery into selective law enforcement than selective prosecution. • Mathias v. Frackville SCI, 869 F. 3 d 175 (3 d Cir. 2017) • 14 -day deadline for filing cross-appeal is not jurisdictional, may be excused by court in the “interest of justice” = prejudice, overlap, cause, extraordinary circumstances.

THIRD CIRCUIT EN BANC

UNITED STATES V. DOUGLAS • Vacating panel opinion at 849 F. 3 d 40 (3 d Cir. 2017) • Airplane mechanic used special clearance to smuggle cocaine without being screened at airport security. • Panel applied two-level enhancement for “abuse of of a position of trust, ” § 3 B 1. 3. • Judge Greenaway’s dissent doubted whether mechanic had “professional or managerial discretion. ”

RESOURCES • Federal Defender Third Circuit Blog • http: //circuit 3. blogspot. com/ • FCDO Website • http: //pae. fd. org/ • Defense. Link (CJA Newsletter) & Case Summaries • http: //pae. fd. org/CJA. html • Defender Services / Training Division • http: //www. fd. org/ • Sentencing Law and Policy Blog • http: //sentencing. typepad. com/ • How Appealing • http: //howappealing. abovethelaw. com/