September 11, 2014
Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
Because I filled an amicus brief on behalf of defendant Edward Young and participated in oral argument as well, I am much too close to the Eighth Amendment issue resolved against the defendant today in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here), to provide any objective analysis and perspective. And rather than provide my biased analysis in this post, let me for now be content to reprint the start the Sixth Circuit panel's per curiam ruling:
Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer. He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.
Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice. Our precedent compels us to reject these claims and to affirm Young’s sentence.
To its credit, the per curiam decision in Young engages somewhat with some Eighth Amendment principles I sought to stress in my amicus efforts in this case, and Judge Stranch authored an extended concurrence discussing the policy arguments against mandatory minimums. But these aspects of the Young opinion do very little to salve my seething aggravation and frustration with this ruling.
A number of judges on the Sixth Circuit have a (somewhat justified) reputation for going to great lengths to bend and extend Eighth Amendment jurisprudence to block state efforts to execute brutal murderers after a state sentencing jury imposed the death penalty. Consequently, I was hopeful (though not optimistic) that at least one member of a Sixth Circuit panel could and would conclude the modern Eighth Amendment places some substantive and judicially enforceable limits on extreme application of extreme federal mandatory minimum prison terms. Apparently not. Though surely not the intent of this ruling, I think the practical message is that one needs to murder someone with ammunition rather than just possess it illegally for the Sixth Circuit to be moved by an Eighth Amendment claim. (I was hoping to save a screed about this ruling for a future post, but obviously this is already a bit too raw for me to be able to hold my blog tongue.)
I am hopeful that the defendant will be interested in seeking en banc review and/or SCOTUS review, and thus I suspect the (obviously uphill) legal fight against this extreme sentence will continue. I plan to continue helping with that fight, and I would be eager to hear from others eager to help as well.
Prior related posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
September 11, 2014 at 11:05 AM | Permalink
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Doug, I think any fair-minded person appreciates your "blog tongue" about this outrageous case. Regretably, I have seen similar cases before. In the early 2000s, I was an inmate at FCI - Manchester, Ky. with a man who had a similar (but even more outrageous) ACC sentence, which arose out of "constructive possession" of a single shotgun shell, which law enforcement found in his father's pickup truck. The father's pickup truck was parked in the driveway of his farm, while his son (the defendant) and daughter-in-law ate Sunday dinner after church with him and his wife. There were no fingerprints on the shotgun shell, and the son did not own or possess any shotgun. As for Mr. Young, I suggest that someone begin preparing his pardon or commutation application to President Obama. The Courts will not help him.
Posted by: Jim Gormley | Sep 11, 2014 11:18:24 AM
Like most long-time Federal Public Defenders I have had many similar injustices...15 years for using bullets to make key chains is high on my list, or a predicate burglary for stealing shoes from a school at age 15 prosecuted as an adult. There needs to be some Judicial Branch oversight of prosecutorial discretion in using recidivist laws or limiting the Legislative over breadth of their reach.
Posted by: scott tilsen | Sep 11, 2014 12:06:10 PM
What makes this case different, in an 8th Amendment context, from Ewing? I'm struggling to see how this case is more disproportionate than that one, or rises to the example of a life sentence for overtime parking that a majority of the Court agreed would indeed violate the 8th Amendment.
I understand that a "grossly disproportionate" standard lends itself to individual judges being able to fudge a violation at their will (Scalia's issue with it), but it would seem that SCOTUS precedent, let alone circuit precedent, would dictate this ruling.
Posted by: Matt | Sep 11, 2014 12:46:29 PM
What other constitutional provisions should we violate? You've done away with separation of powers.
Posted by: Wayne-O | Sep 11, 2014 1:20:37 PM
A fair question, Matt, concerning which I have (too) many answers. In its most simple form, I think Ed Young's actual crime of conviction here is MUCH more like overtime parking than the intentional theft at issue in Ewing. So I guess the question I would pose back it whether you think Ewing stands for the proposition that even overtime parking can justify a 15-year mandatory minimum sentence if/when the defendant has enough priors. I hope Ewing does not stand for the proposition that no term-of-years sentence can be constitutionally excessive even for the most minor of an offense if the defendant has a criminal record, but maybe it does.
In addition, though perhaps not as compelling to those who do not believe the Eighth Amendment evolves, I think the fact that so many jurisdictions have reduced sentences since Ewing makes it a less forceful precedent than more recent rulings like Kennedy and Graham and Miller in which SCOTUS said some sentences can be disproportionate even if the defendant has a criminal past.
Posted by: Doug B. | Sep 11, 2014 4:19:09 PM
I am sympathetic to Prof. Berman's concerns but other than "death being different," there are various rulings dealing with the death penalty to work with here. Also, the use of the law there repeatedly involves not executing. A bit less of releasing them or severely reducing their time in jail. So, not quite so.
When it comes to non-capital cases, putting aside overtime parking (bullets are a tad bit different, no? I say this being quite sympathetic to your ire ... also, it doesn't help that he was "previously been convicted of a number of felonies" -- this in fact is what they latch on to -- if someone's never arrested brother was given this sentence, would they decide the same thing?), what do lower court judges have to work with? Solem v. Helm? There is at least a somewhat recent (if 1990s -- United States v. Bajakajian) fines case if the punishment was monetary.
A case light this is tricky with the recidivist angle - that is Ewing (that involved petty crimes too) -- without it, it would be a pretty good case to determine if the C/U has any real teeth for non-capital criminal cases. I note that a quick reading of this post might lead one to think the only thing at stake here is possessing seven shells. It goes a bit further than that. There is also the "how broad is the felon bar in the 2A" question lurking. If old felonies from over a decade ago not allow you to have shotgun shells ...
BTW, since I keep on forgetting his name, Michael J. Zydney Mannheimer was mentioned too.
Posted by: Joe | Sep 11, 2014 4:34:58 PM
"Graham and Miller"
Are minors involved here?
Posted by: Joe | Sep 11, 2014 4:38:22 PM
The thing that bothers me is the fact that he was being investigated for stolen goods was somehow deemed relevant. If he had been charged with something related to that, he could explain it away. But finding it relevant without that (and even with a dismissal on state charges, admittedly after this sentencing) is absurd. Who cares if you don't make a finding, he still has mandatory 15 here, partially justified by the mere suspicion on a crime.
Anyway, the sentence sucks. A mandatory 15 in this context is inappropriate for this reason. Really not something worth this kind of prosecution. At most, it's the federal government doing the state's dirty work in putting someone away when the state suspects but can't prove something. But "can't prove" is important overall.
Posted by: Erik M | Sep 11, 2014 7:50:13 PM
This one seems awful harsh to me.
Posted by: federalist | Sep 11, 2014 8:22:43 PM
Prime example ofwhy judges and ausa cannot be trusted with mandatories. They claim they are to force testimony from others. But they hammer every body that they can with mandatories.
The feds need to have this stripped from them. Eliminate mandatorys.
Posted by: Midwest Guy | Sep 11, 2014 10:10:01 PM
I must admit that my views on MM and DP have evolved as the result of the work of this blog. Overall, I was in strongly in favor of both of them and while I still think overall I am supportive less so than before. Cases like this trouble me because I think these illustrate the downside to Scalia's love of rules as opposed to standards. So many different rules get involved and everybody is so busy chasing the rules that the overall idea of justice gets lost and no-one ever bothers to check their nose and sees if the end result passes the smell test.
Standards are malleable and can lead to injustice via corruption. Rules are complicated and lead to injustice by becoming arbitrary. One would hope common sense would prevail but that seems in short supply.
Posted by: Daniel | Sep 12, 2014 3:21:50 AM
Matt and Doug, I would encourage you to "count noses" before relying too much on Ewing. Leaving aside Thomas and Scalia, who simply wouldn't "play the game" Ewing won a majority 4 to 3 on the question of whether his sentence was grossly disproportionate to the offense.
Scalia and Thomas believe that the Eighth Amendment prohibition of cruel and unusual punishment applies only to "modes" of punishment, like boiling in oil, keelhauling and drawing and quartering.
Joe, I believe Graham is one of those seminal cases that comes along every so often that stands for much broader principles than just the facts of the case. It should not be constrained to juveniles and life without parole. For the first time, it specifically says that Justice Kennedy's three step test for evaluating as applied Eighth Amendment challenges, first articulated in his concurring opinion if Harmelin v Michigan, is the constitutionally required method of analyzing grossly disproportionate challenges.
The North Carolina Supreme Court and Court of Appeals have both relied excusively on Graham for describing the methodology used for analyzing cases.
Doug, count me in on future challenges. Criminal sentencing has run amok with prosecutors and mandatory minimums. The role of judges in sentencing has evaporated.
Posted by: bruce cunningham | Sep 12, 2014 7:15:04 AM
Doug and Matt, I have now read the opinion and believe it does not conform to the constitutionally required method to be employed in analyzing eighth amendment as applied challenges.
Consider this critical sentence in the opinion. "Because Young's sentence is not grossly disproportionate to his crime under Ewing and Solem we must ultimately reject his Eighth Amendment claim."
No. The proper statement, under Kennedy's three step test specifically adopted in Graham,is "Because we find NO INFERENCE of gross disproportionality between the sentence and the offense, the defendant does not meet the threshold requirement of comparing it with what other defendants receive in the same jurisdiction for other crimes and what other defendants in other jurisdictions receive for the same crime.
Matt, look at O'Connor's opinion closely in Ewing. She says just that , She says that Ewing's crime is not the rare crime which presents a INFERENCE of gross disproportionality. (or something like that) The opinion in Young goes straight to the conclusion without employing the proper test to get to the conclusion.
Doug, I think this might be a hook for en banc review. The opinion flirts with the word "inference" further up in the opinion, but then doesn't follow through.
I think it is the dissenting opinion in Ewing that contains a good discussion of the distinction between a threshold test and a determinative test. (maybe it is in Andrade, decided with Ewing) but somewhere in there it talks about some cases must pass the threshold test that do not pass the determinative test.
I have a second observation I will make in the next post.
Posted by: bruce cunningham | Sep 12, 2014 7:39:06 AM
Doug, the second comment,or area of concern, is that Young presents the same issue that I am litigating in a variety of contexts involving violations of sex offender registration and monitoring statutes and possession of firearm by felon, when those charges are used to trigger recidivist enhancements like federal ACCA or state habitual felon statutes.
Both failure to register as sex offender statutes and possession of firearm are "crimes" of which a prior conviction is an essential element. Many courts have upheld these statutes against ex post facto challenges because they do not impose "criminal punishment.' They are "civil regulatory measures" to which the ex post facto clause does not apply. See State v Whitaker and State v Bowditch from the N.C. Sup Ct, in which the court says in both that punishment for possession by a felon and for failure to adhere to satellite based monitoring does not offend ex post facto principles because the violations are civil in nature. I think the notion of a "civil felony" is an oxymoron.
So, the basic question is how can a civil violation trigger a sentence enhancement under Armed Career Criminal? It would be like charging someone with a violation of probation or contempt with a violation of ACCA and enhancing their sentence.
This is the issue I wrote about for you in the Federal Sentencing Reporter article entitled "Kicked Up Misdemenaors" several years ago.
I argued this issue last week , that failing to notify the sheriff of change of address by a sex offender cannot support habitual felon sentence enhancement. Judge didn't buy it, but said "interesting issue" and ordered the court reporter to prepare the motion hearing transcript , so I can cert the issue pretrial to the North Carolina Supreme Court for review under their constitutional supervisory powers over the courts of the state.
Posted by: bruce cunningham | Sep 12, 2014 7:59:18 AM
This is the kind of case that cries out for exercise of President's commutation power. Regretfully, because of Presidential cowardice (or political expedience)that power is moribund.
Posted by: Michael R Levine | Sep 12, 2014 9:53:21 AM
"It should not be constrained to juveniles and life without parole."
That's fair, but ultimately it along with Miller was concerned with the special situation of juveniles. This is true though it left open some possibility term of year sentences as applied to adults could breach the 8A. But, since Solem, thirty years ago, when have they actually done that?
We have to start somewhere, so okay, but I stick by my sentiment lower court judges have a lot more to work with in capital cases.
Posted by: Joe | Sep 12, 2014 10:36:48 AM
"because of Presidential cowardice"
buck stops with him but it is "political expedient" because the blame is shared ... I also think the bureaucracy that stops justice here is about more than "cowardice."
Posted by: Joe | Sep 12, 2014 10:38:52 AM
yes bruce I love this one too.
"Both failure to register as sex offender statutes and possession of firearm are "crimes" of which a prior conviction is an essential element. Many courts have upheld these statutes against ex post facto challenges because they do not impose "criminal punishment.' They are "civil regulatory measures" to which the ex post facto clause does not apply. See State v Whitaker and State v Bowditch from the N.C. Sup Ct, in which the court says in both that punishment for possession by a felon and for failure to adhere to satellite based monitoring does not offend ex post facto principles because the violations are civil in nature."
I am still waiting for one of the legal eagles here to point out the location in the United States Constitution where is says "civil" law does not fall under the expost rules. Sorry but it's not there. It came from some govt fuckup judge who pulled it out of their ass. Sorry there is no LEGAL way to interpet "NO EXPOST law is allowed" to "sure it's ok in civil law" sorry but that is a non-starter and in this case I think the man and or his family has every legal and moral right to remove with extreme prej every single govt agent from the cop to the appeals court from this world for their crime.
Posted by: rodsmith | Sep 12, 2014 11:51:43 AM
As I have noted here before, properly understood a "civil" cause of action is limited to actions between two private parties. It should never refer to an action in which the State is a party. The state never operates like a private party, it always operates as the State. In my view there should only be one cause of action involving the State: power.
Posted by: Daniel | Sep 12, 2014 12:55:57 PM
I think a critical factor to consider in cases like Young, and a dozen or so I am litigating, is whether or not a prior conviction is an "essential element" of the charge. If so, then I believe that the charge does not involve a crime in the Sixth Amendment sense. By that I mean that someone charged with possession of firearm by felon or failing to register as a sex offender is not entitled to a jury trial or to be indicted by a grand jury.
As support for this position, I point to the case which brought about a seismic shift in criminal practice, Apprendi v New Jersey. The reason for the prior conviction exemption in Apprendi, and why Almendarez-Torres has not been overruled, is because the Supreme Court acknowledges that a prior conviction cannot be an element of a substantive criminal offense, because, it does not relate to conduct occurring on the date of the offense. It relates to a characteristic of the offender, being a recidivist.
The punishment for a crime can be increased above the Blakely max, but the severity of the crime itself cannot be increased , due to recidivism. The problem is we have been doing it wrong for so long and so often that it feels right. (unless you spend a lot of time in court trying to defend these charges and realize that it is impossible to defend a charge of failing to register as a sex offender. Either he is a sex offender or he is not and either he registered or he didn't. End of case, since both of those issues are a matter of public record.
Posted by: bruce cunningham | Sep 12, 2014 2:26:24 PM
There is "civil" and "criminal" law, the latter for instance resulting in a higher level of proof. There appears to be some room for confusion. The state = power issue, e.g., doesn't really fully address this. A state can use "power" to require civil commitment in cases of dangerousness. This is a "civil" matter. Or, to on clear and convincing evidence remove parental rights. "Criminal" requires beyond a reasonable doubt.
It is my understanding that the "original understanding" that the Ex Post Facto Clause applies to criminal matters goes back to the 18th Century. You can curse as much as you want, but yes, there is a way to use the traditional meaning of the term that way. See, e.g., Calder v. Bull (1798). The people who wrote it weren't all lawyers.
This doesn't mean it is just "okay" for civil law -- there are basic rules of fairness there, due process, that sets some limits. And, you can decide the Ex Post Facto Clause applies to civil law if you like too. But, it isn't really necessary. Again, due process.
Posted by: Joe | Sep 12, 2014 4:00:10 PM
Mr. Bruce, in case you missed it, you might find this Case o' The Week over at Ninth Circuit blog interesting:
Held: We have never held that sentencing entrapment is a jury question, but the Supreme Courts precedent and our own make clear that it must be. Id. at *8. A criminal defendant is entitled to present his sentencing entrapment defense to the jury if the success of that defense would result in a lower statutory sentencing range. That is, if there is some foundation in the evidence that he would be subject to a lesser statutory minimum or maximum sentence if his sentencing entrapment defense were to succeed, the he is entitled to a jury instruction on that defense. Id. at *9. 'Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.' Alleyne, 133 S. Ct. at 2158. Accordingly, we hold that sentencing entrapment must be tried to a jury where the defendants argument and the evidence raise the possibility of changing the applicable statutory maximum or minimum sentences. Id. at *10.
Posted by: George | Sep 14, 2014 5:55:44 AM
The really important question in this case, in my view, is why an Assistant U.S. Attorney in a Democratic administration would think that it was appropriate to press a federal armed career criminal act charge with a fifteen year mandatory minimum sentence in this case.
This really makes no sense. We give prosecutors absolute discretion and expect them to show some good judgment. Why would the Justice Department see this case, of all of the cases it prosecutes, worth pursuing and then fighting on appeal? (Actually, the appeal conduct has strategic justifications that make much more sense than the charging decision.)
Posted by: ohwilleke | Sep 16, 2014 10:52:48 PM
Doug, my husband is doing 15 years for bullets too. They was old and had turned green I don't think they would have went threw a gun. How can I help him????
Posted by: melinda roller evans | Jan 20, 2015 12:12:07 PM
I. Was Convicted. Under. the. Acca. And. Given. 262. Months. For. The. Same. Crime. In. 2003 ... see. U.s. v. Kimbrel , but. I. Won. A. Reversal. From. 6Th. Cir. And. My. Case. Is. The. No. 1. Case. In. Memphis. And. I. No. The. Correct. Argument. He. Needs. To. Get. Back. In. Court. ... self-educated. Paralegal. From. The. Fed. So. Contact. Me. For. The. Right. Argument. At. 9018013086
Posted by: robert. kimbrel | Jan 29, 2015 2:49:53 AM