EMERGING TOPICS IN FEDERAL CRIMINAL PRACTICE

CLE Credit: 1.0 Wednesday, May 11, 2016

3:35 p.m. - 4:35 p.m. Rooms 207-211

Kentucky International Convention Center Louisville, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS The Presenters ................................................................................................................. i Federal Forfeiture and Attorney's Fees ........................................................................... 1 Locating Wireless Phones - Fourth Amendment Implications .......................................... 9 Privacy – Focus on Pole Cameras ................................................................................ 21 Discussion Issues Regarding Sentencing ...................................................................... 33 Amendments to the Sentencing Guidelines ................................................................... 35

THE PRESENTERS

Marisa J. Ford Office of the United States Attorney

717 West Broadway Louisville, Kentucky 40202

(502) 582-5911 Marisa.ford@usdoj.gov

MARISA J. FORD serves as Assistant United States Attorney in Louisville and practices criminal prosecution in the areas of white collar crime and cybersecurity. She is a graduate of Indiana University and received her J.D. from the Indiana University Maurer School of Law. Ms. Ford is a member of the Kentucky and Indiana Bar Associations. She is the recipient of the Assistant Attorney General's Award for Distinguished Service and the Director's Award for Superior Performance as an Assistant United States Attorney. Judge David J. Hale United States District Court Western District of Kentucky Gene Snyder U.S. Courthouse 601 West Broadway, Room 239 Louisville, Kentucky 402027-2227 (502) 625-3640 David.hale@kywd.uscourts.gov DAVID J. HALE is a United States District Judge for the Western District of Kentucky. President Barack Obama nominated Judge Hale on June 19, 2014 and he was confirmed by the United States Senate on December 3, 2014. He received his commission on December 10, 2014. Immediately prior to his appointment to the bench, Judge Hale served as United States Attorney for the Western District of Kentucky. During his tenure as U.S. Attorney, Judge Hale emphasized a renewed collaboration among federal, state, and local law enforcement, which resulted in new anti-violence initiatives; he prioritized national security, health care fraud, and economic fraud prosecutions; he chaired a U.S. Attorney working group on service member and veteran support; he sponsored Kentucky’s first statewide prescription pill summit; and he sponsored a new statewide health care fraud task force. Judge Hale practiced law in Louisville for over 20 years. While in private practice, Judge Hale served on the boards of the Louisville Urban League, Kentucky Educational Television (KET), and the Kentucky YMCA Youth Association. Judge Hale is a graduate of Vanderbilt University and the University of Kentucky College of Law.

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J. Kent Wicker Dressman Benzinger Lavelle, PSC

Waterfront Plaza 321 West Main Street, Suite 2100

Louisville, Kentucky 40202 (502) 572-2500

kwicker@dbllaw.com

J. KENT WICKER is a partner in the Louisville office of Dressman Benzinger Lavelle, PSC and practices in the areas of white collar criminal defense and civil litigation. Prior to entering private practice, he served as the First Assistant U.S. Attorney and Criminal Division Chief for the Western District of Kentucky. He teaches courses in Corporate and White Collar Crime and Trial Practice at the Louis D. Brandeis School of Law and has also taught Trial Practice at the Department of Justice's National Advocacy Institute. Mr. Wicker received his A.B., summa cum laude with distinction, from Duke University and his J.D., cum laude, from Harvard Law School. He is admitted to practice before the United States District Courts for the Eastern and Western Districts of Kentucky, Southern District of Indiana and Massachusetts, United States Courts of Appeals for the First, Fourth, and Sixth Circuits, and the United States Supreme Court. Mr. Wicker is a member of the Louisville and Kentucky Bar Associations, National Association of Criminal Defense Lawyers, and the American Health Lawyers Association. Magistrate Judge Robert E. Wier United States District Court Eastern District of Kentucky 101 Barr Street Lexington, Kentucky 40507 (859) 233-2697 MAGISTRATE JUDGE ROBERT E. WIER was appointed to the United States District Court for the Eastern District of Kentucky on September 1, 2006, and reappointed in 2014. He received his B.A. from the University of Kentucky and his J.D., high distinction, from the University of Kentucky College of Law. He graduated as Valedictorian and served as Editor-in-Chief of the Kentucky Law Journal, Volume 80. After graduation, Judge Wier served as law clerk for Judge Eugene E. Siler, Jr., United States Court of Appeals for the Sixth Circuit. He began his private practice in the Lexington office of Stoll Keenon Ogden, PLLC and then co-founded Ransdell, Roach & Wier, PLLC.

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FEDERAL FORFEITURE AND ATTORNEY'S FEES J. Kent Wicker

The government has long asserted the right to forfeit contraband which is the product of drug trafficking, like cocaine or heroin. It has also aggressively sought to confiscate the proceeds of drug trafficking, and property used to promote the criminal activity. In recent years, however, the government has also sought to forfeit assets in white collar criminal cases, even when the forfeiture would prevent the defendants from hiring legal counsel of their choice. The Supreme Court will decide the issue of when the government may do so this term in Luis v. United States. I. BACKGROUND

Modern forfeiture laws arose out of British maritime law, which required imports and exports to be carried only onto British ships. If the goods were found on other vessels, the cargo and ship carrying them could be forfeited to the British crown. On this side of the Atlantic, the U.S. Congress passed forfeiture statutes in the early 19th Century to aid in the collection of customs duties. Like their British predecessors, the American statutes provided for in rem jurisdiction, civil actions against the property itself, without the need to prove the guilt of the property's owner. The Supreme Court wrote in one early case that the "vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner." The Palmyra, 25 U.S. (12 Wheat.) 1 (1827). Forfeiture laws were used sparingly until a dramatic increase in the 1980s, as part of the "War on Drugs." Congress enacted statutes to permit forfeiture either as a part of the criminal case, or as a separate civil action against the property. Asset forfeiture remained generally limited to drug cases and related financial crimes, such as money laundering. In 2001, however, Congress amended the statutes to permit forfeiture of proceeds from virtually all white collar offenses, seeking assets from mail, wire, and health care fraud. Limited protections for claimants were added in the Civil Asset Forfeiture Reform Act ("CAFRA"). Under current law, the government may seek to seize property under administrative, civil, or criminal processes. Section 983 of Title 18 sets out the rules for an administrative, or "nonjudicial" forfeiture. A federal law enforcement agency seizing property must send written notice of the seizure to interested parties within sixty days of the seizure. 18 U.S.C. §983(a). The time for sending notice may be extended on certain conditions by either a supervisory official of the seizing agency (18 U.S.C. §983(a)(1)(B)) or by a court (18 U.S.C. §983(a)(1)(C)). A person seeking return of the property must make a claim for return of the property within the time set out in the notice, which may not be less than thirty-five days after receipt. 18 U.S.C. §983(a)(2)(B). If the claimant did not receive written notice, he must make a claim no later than thirty days after the final publication notice of seizure. No notice is required if the government commences a civil forfeiture action against the property before the sixty day period expires. 18 U.S.C.

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§983(a)(1)(A)(ii). If the grand jury returns an indictment within the sixty day period, the government may either proceed administratively or under the criminal forfeiture statute. 18 U.S.C. §983(a)(1)(A)(iii). If the agency receives no claim for the property within the required time period, then it is considered forfeited to the government. After receiving a claim for seized property, the government must either file a civil forfeiture action against the property or return it. 18 U.S.C. §983(a)(3)(A). Civil forfeiture actions are governed by the Supplemental Rules for Certain Admiralty and Maritime Claims, and in particular, Rule G. U.S. v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 149 (3d Cir. 2003). Because the Supplemental Rules "are not comprehensive codes regulating every details of practice," they "overlay the Civil Rules." Id. (internal quotations and citations omitted). As such, "[t]he Civil Rules ... apply to in rem proceedings, but only to the extent that they are not inconsistent with the Supplemental Rules." Id. (internal quotation omitted).

Rule G provides that the government must file a verified complaint which states the grounds for subject-matter jurisdiction, in rem jurisdiction over the defendant property, and venue, identifies the statute under which the forfeiture action is brought, describes the property with reasonable particularity, states the location of the property at the time of the seizure and when the action is filed, and states sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial. Rule G(2). The government must provide notice of the complaint by publication and by sending a copy of the complaint to any known potential claimants. Rule G(4). Supplemental Rule E(2)(a) requires the complaint to "state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading." Fed. R. Civ. P. Supp. E(2)(a). To satisfy this Rule, the government must "allege facts sufficient to support a reasonable belief that the property is subject to forfeiture." U.S. v. Mondragon, 313 F.3d 862, 865-66 (4th Cir. 2002) (finding that Rule E(2)(a) requires the Government to "allege sufficient facts to support a reasonable belief that the property is subject to forfeiture."); see also U.S. v. $49,000 Currency, 330 F.3d 371, 376 n. 8 (5th Cir. 2003) (adopting general standard that under Rule E(2)(a), the Government must allege facts supporting a reasonable belief that it will be able to bear its burden at trial); U.S. v. Funds in Amount of Forty Thousand Dollars, 2004 WL 2191576, *2 (N.D. Ill. 2004) (noting that "[m]ost courts have agreed that the particularity requirement of Rule E(2)(a) is satisfied by providing [ ] specific information about the date and location of the seizure, the amount of money seized, and the claimant's actions on the date of the seizure.") (internal quotations and citations omitted). Even if the government can meet its pleading burden, §983(c)(1) provides that, "the burden of proof is on the [g]overnment to establish, by a preponderance of the evidence, that the property is subject to forfeiture [.]" A claimant may file an answer or motion to dismiss within twenty-one days of service of the complaint, and a claim asserting his interest in the property within

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the time period set out in the notice or provided by the rule. Rule G(5). Either party may request a jury trial. The government may also seek to forfeit property as part of a criminal proceeding. Prior to a judgment of forfeiture, 18 U.S.C. §981(b) gives courts the ability to authorize the Attorney General to seize that property pending the outcome of the civil forfeiture proceeding. The Supreme Court has found that the Government may constitutionally restrain property, after indictment and prior to trial, "based on a finding of probable cause to believe that the property will ultimately be proved forfeitable." See U.S. v. Monsanto, 491 U.S. 600, 615 (1989).

The usual restraints on search and seizures apply to asset seizure warrants. The Fourth Amendment protects against "unreasonable searches and seizures." See U.S. Const., amend IV; U.S. v. James Daniel Good Real Property, 510 U.S. 43, 51 (1993) ("It is true, of course, that the Fourth Amendment applies to searches and seizures in the civil context"). The text of the Fourth Amendment also requires that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." ld.

The person from whom the property was seized may initially seek relief under Fed. R. Crim. P. 41(g). That rule, entitled "Motion for Return of Property" provides that

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

Fed. R. Crim. P. 41(g). Application of the rule does not depend on an unlawful seizure or require suppression; rather, "a person whose property has been lawfully seized may seek return of property when aggrieved by the government's continued possession of it." Advisory Committee Notes, 1989 (commenting on then-styled Rule 41(e)(4)). Proper movants under Rule 41(g) include the owner of the premises where the property was seized and those involved in a business from which property was seized. See U.S. v. One Residence and Attached Garage of Anthony J. Accardo Designated as 1407 Ashland Ave., River Forest, Illinois and Located on the Northeast Corner at Intersection of Ashland Avenue and Greenfield, 603 F.2d 1231, 1234 (7th Cir. 1979); Matter of Search of a Residence which is Situated on a Cul-De-Sac at 14905 Franklin Drive, Brookfield, Wis. 53005, 121 F.R.D. 78, 79 (E.D. Wis. 1988).

Where there is no criminal indictment or proceeding pending, a motion pursuant to Rule 41(g) is in the nature of a civil proceeding, invoking the Court's equitable jurisdiction. U.S. v. Search of Music City Marketing, Inc., 212 F.3d 920, 923 (6th Cir. 2000); White Fabricating Co. v. U.S., 903 F.2d 404, 407-08 (6th Cir. 1990).

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The Court should exercise its equitable power and hear a Rule 41(g) motion if the movant shows that "he will suffer irreparable harm and that there is no adequate remedy at law." Search of Music City Marketing, Inc., 212 F.3d at 923; Bradberry v. Ohio, No. 1:11-1240, 2012 WL 275106, at *2 (N.D. Ohio Jan. 31, 2012) (citing Music City Marketing); $8,050.00 in U.S. Currency v. U.S., 307 F.Supp.2d 922, 925 (N.D. Ohio 2004) (same) (additional citations omitted).

Once the Court determines that it may exercise jurisdiction over a Rule 41(g) motion, the only applicable standard to apply to the motion is reasonableness. See Fed. R. Crim. P. 41(g), Advisory Committee notes to 1989 Amendments ("[R]easonableness under all of the circumstances must be the test when a person seeks to obtain the return of property"). Additionally, Rule 41(g) contemplates a hearing "on any issue of fact necessary to the decision of the motion" which will allow for a finding of fact and/or conclusions of law regarding the reasonableness of the government's retention of the seized property. U.S. v. Hess, 982 F.2d 181, 186 (6th Cir. 1992). The court loses jurisdiction over a Rule 41 motion to return property after the government initiates forfeiture proceedings. The Sixth Circuit has held "[a]fter the government initiates forfeiture proceedings and notifies a claimant of the proceedings, a claimant may no longer use Rule 41(e), but instead must submit to the statutory procedures governing civil forfeiture proceedings." See U.S. v. One 1974 Learjet 24D, Serial Number 24D-290, Mexican Registration XA-RMF 191 F.3d 668, 673 (6th Cir. 1999) (Rule 41(e) was the predecessor to Rule 41(g) prior to recodification). The government may also bring a claim for forfeiture, either for specific property or a money judgment, as part of a criminal indictment under 18 U.S.C. §982. The procedure for trial is set out in Fed. R. Crim. P. 32.2. The indictment must give notice that the government seeks to forfeit property, although it need not identify the property subject to forfeiture or the amount of the money judgment. If a defendant is convicted at trial, he is entitled to a jury determination of the forfeitability of the property, unless the government seeks only a money judgment. In that case, the Court makes the decision on forfeiture. There is no Sixth Amendment right to a jury trial on forfeiture issues. Libretti v. U.S., 516 U.S. 29 (1995). Once the court has found that property is subject to forfeiture, it must enter a preliminary judgment of forfeiture. Once it has done so, the court may consider the interests of any third party in the property under Fed. R. Crim. P. 32.2(c).

II. FORFEITURE AND ATTORNEY'S FEES

The Supreme Court has recognized that a defendant not only has a right to counsel, but also to counsel of his choice. See Wheat v. U.S., 486 U.S. 153, 159 (1988) (describing the scope of, and various limits on, that right). The Supreme Court recently described that right as "the root meaning" of the Sixth Amendment. U.S. v. Gonzalez-Lopez, 548 U.S. 140, 147-148 (2006); Powell v. State of Ala., 287 U.S. 45, 53 (1932) ("It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice"). The wrongful deprivation of choice of counsel

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is "structural error," not subject to harmless error review, because it "pervades the entire trial." Gonzalez-Lopez, 548 U.S. at 150. "Different lawyers do all kinds of things differently, sometimes 'affect[ing] whether and on what terms the defendant ... plea bargains, or decides instead to go to trial'" – and if the latter, possibly affecting whether she gets convicted or what sentence she receives. Kaley v. U.S., 134 S.Ct. 1090, 1102-03 (2014) (quoting Gonzalez, 548 U.S. at 148). Yet the Supreme Court has never held that the right to choice of counsel includes the right to use criminal proceeds to pay for it. In Caplin & Drysdale, Chartered v. U.S., 491 U.S. 617 (1989), the defendant was charged with operating a drug importation and distribution scheme alleged to be a continuing criminal enterprise (CCE) in violation of 21 U.S.C. §848. The government brought an indictment which sought forfeiture of specified assets in the defendant's possession, and the District Court, acting pursuant to 21 U.S.C. §853(e)(1)(A), entered a restraining order forbidding the defendant from transferring any of the potentially forfeitable assets. The defendant nevertheless transferred $25,000 to his law firm for legal services, and he moved to modify the District Court's order to permit him to use some of the restrained assets to pay petitioner's fees and to exempt such assets from post-conviction forfeiture. The Supreme Court considered whether the Fifth and Sixth Amendments exempt from forfeiture money that a convicted defendant has agreed to pay his attorney, and found against the defendant. Id. at 623-625. "A defendant has no Sixth Amendment right to spend another person's money" for legal fees – even if that is the only way to hire a preferred lawyer. Id. It offered the hypothetical example of a "robbery suspect" who wishes to "use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended." Id. That money is "not rightfully his." Id. Accordingly, the Court concluded, the Government does not violate the Constitution if, pursuant to the forfeiture statute, "it seizes the robbery proceeds and refuses to permit the defendant to use them" to pay for his lawyer. Id.

In another case decided the same day, the Supreme Court considered the case of a defendant charged with a variety of violations of racketeering laws, creation of a continuing criminal enterprise, and tax and firearm offenses. U.S. v. Monsanto, 491 U.S. 600 (1989). The indictment also sought forfeiture of specified assets alleged to be subject to forfeiture as proceeds of the offenses. After the indictment was unsealed, the District Court granted the Government's ex parte motion under 21 U.S.C. §853(e)(1)(A) for a restraining order freezing the assets pending trial. The Court of Appeals reversed. The Supreme Court reversed the Court of Appeals, holding that there is no exemption from §853's forfeiture or pretrial restraining order provisions for assets that a defendant wishes to use to retain an attorney. Id. at 607. The Court also found that a defendant's assets may be frozen before conviction based on a finding of probable cause to believe the assets are forfeitable, citing to United States v. Eight Thousand Eight Hundred and Fifty ($8,850) in U.S. Currency, 461 U.S. 555 (1983); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974).

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The Court in Monsanto reserved the crucial question whether a defendant had the right to be heard before the Government could take such action. Monsanto, 491 U.S. at 615 n.10. Courts, including the Sixth Circuit, have generally held that defendants have a right to such a hearing, although the parameters of the hearing vary. U.S. v. Jamieson, 427 F.3d 394, 405-07 (6th Cir. 2005); U.S. v. Jones, 160 F.3d 641 (10th Cir. 1998). The Ninth Circuit, for example, has held that, prior to restraining assets in a criminal case, the district court must hold a hearing under Fed. R. Civ. P. 65 to determine whether probable cause exists to issue the restraining order. U.S. v. Roth, 912 F.2d 1131, 1133 (9th Cir. 1990). The Eleventh Circuit never requires such a hearing, but rather has held that the trial itself satisfies all due process concerns regarding pre-trial seizure of funds. See U.S. v. Register, 182 F.3d 820, 835 (11th Cir. 1999).

Most circuits took a course somewhere in between the Ninth and Eleventh Circuits and require that, in certain situations, the district court must hold a post-restraint adversarial hearing to determine probable cause to restrain the assets. See U.S. v. Monsanto, 924 F.2d 1186, 1203 (2nd Cir. 1991)1 (the Fifth and Sixth Amendments require a post-restraint, pretrial hearing regarding probable cause to restrain assets which are needed to retain counsel of choice); U.S. v. Kirschenbaum, 156 F.3d 784, 792 (7th Cir. 1998) (due process prohibits restraining funds without a hearing if the defendant can show a bona fide need to use the funds to obtain counsel); U.S. v. Jones, 160 F.3d 641 (10th Cir. 1998) (due process requires an adversarial hearing if the defendant can both show she has no other assets with which to pay for counsel and make a prima facie demonstration of error in the grand jury's finding of probable cause); U.S. v. Farmer, 274 F.3d 800, 803 (4th Cir. 2001) (due process requires an adversarial hearing when defendant can show that he lacks other funds with which to secure counsel and that a portion of the restrained funds is legitimate).

Two years ago, the Supreme Court took up the issue of to what degree a Grand Jury's finding of probable cause may be challenged in a pre-trial hearing when restrained funds are needed for legal fees. In Kaley v. U.S., 134 S.Ct. 1090 (2014), a grand jury indicted the petitioners for reselling stolen medical devices and laundering the proceeds. The government obtained a restraining order under 21 U.S.C. §853(e)(1) to freeze their assets. The Kaleys moved to vacate the order, intending to use a portion of the disputed assets for their legal fees. The District Court allowed them to challenge the assets' traceability to the offenses in question but not the facts supporting the underlying indictment. The Eleventh Circuit affirmed, as did the Supreme Court, holding that the grand jury's determination of probable cause that the defendants committed the crimes was conclusive. Id. at 1096-1100. The decision drew a strong dissent from Chief Justice Roberts, joined by Justices Breyer and Sotomayor. He was troubled by the government's ability to circumvent the adversary system:

We have held, however, that the Government may effectively remove a defendant's primary weapon of defense – the attorney he selects and trusts – by freezing assets he needs to pay his

1 Abrogated by Kaley v. U.S., 134 S.Ct. 1090 (2014).

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lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government's decision to freeze those needed assets. . . . The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire proceeding.

Kaley v. U.S., 134 S.Ct. 1090, 1105-07 (2014).

III. LUIS V. UNITED STATES

Sila Luis ran two Florida companies that provided home health care and physical therapy to Medicare patients. In 2012, she was indicted on charges that she had conspired to commit Medicare fraud by paying kickbacks for patient referrals and by billing for services that were either not necessary or not actually performed, ultimately receiving $45 million dollars in fraudulent reimbursements over a six-year period.

The government sought an injunction to freeze all of Luis's assets, including those that were not obtained through fraud. Luis then requested permission to use her "untainted" assets to pay her attorneys in her criminal case. The district court denied that request. It explained that, because the government could locate "only a fraction of the assets" that Medicare had paid Luis's companies, her "untainted" assets could also be frozen. The district court compared Luis's scenario to that of a bank robber who is indicted for stealing $100,000: if the robber can't use the $100,000 that he stole to hire his preferred lawyer, he also shouldn't be able to spend the $100,000 that he stole and then spend a different $100,000 that he "just so happens" to have lying around to hire the lawyer that he wants. U.S. v. Luis, 966 F.Supp.2d 1321, 1334 (S.D. Fl. 2013). The Court of Appeals upheld that ruling, 564 Fed. Appx. 493 (11th Cir. 2014), and the Supreme Court accepted certiorari. Luis v. U.S., 135 S.Ct. 2798 (2015). The defense has argued that the Sixth Amendment to the Constitution guarantees that, in all criminal cases, the defendant has a right to the assistance of counsel for his defense. An inability to use "untainted" assets to hire counsel violates the Sixth Amendment by depriving her of the right to the lawyer of her choice in her criminal case. The government argues that its action did not violate the Sixth Amendment. The government concedes that the right to hire the attorney of one's choice is at the heart of the Sixth Amendment. That right is not absolute, however. One cannot for example, insist on hiring a lawyer who is not a member of the bar or has a conflict of interest, nor are you entitled to a lawyer you can't afford. Limits like these, the government emphasizes, are the "incidental consequence of restrictions that serve legitimate and important public purposes." The Supreme Court has recognized as much in its earlier cases, upholding an order that froze assets resulting from the crime until the trial and explaining that such an order does not "arbitrarily" impinge on the defendant's right to hire a lawyer. The Court should rule before the end of June.

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LOCATING WIRELESS PHONES FOURTH AMENDMENT IMPLICATIONS

Marisa J. Ford

I. OVERVIEW – CELLULAR PHONE TECHNOLOGY

A. Every cellular telephone is capable of being located in one of two ways: by cell-site tracking, or by GPS signal locating. The first, cell-site tracking, utilizes a cell phone's need to connect to a cellular network. To function, a cell phone must be in contact with a cell tower to transmit calls or text messages. A cell phone, once it is powered on, will automatically search for the closest cell tower. Once the phone locates a tower, it transmits a unique identifier – its registration information – to the tower so that any outgoing and incoming calls can be routed through the correct tower. This search and registration process occurs every few seconds. If a signal to or from a tower changes strength, or the cell phone moves, the cell phone will likely switch its registration to a different tower.

B. Wireless providers typically have access to two types of location

information for their subscribers' wireless devices: (1) cell-site location data and (2) latitude-longitude data. Cell-site data (also sometimes referred to as "tower/face information" or "cell tower/sector records") identifies the antennae tower and, in some cases, the 120-degree face of the tower to which a wireless telephone is connected at the beginning and end of each call or communication. These cell towers are often a half mile or more apart, even in urban areas, and can be ten or more miles apart in rural areas. The tower closest to a wireless telephone does not necessarily serve every call made to or from that device. A tower farther away from a phone may actually handle a call because of network overload, topography, etc. Cell-site location data, whether historical or prospective, can reveal the neighborhood in which a wireless telephone user was or is located at the time a call starts and ends. It does not, however, provide continuous tracking and is not a "virtual map" of the phone user's movements.

C. Latitude-longitude data (also sometimes referred to as "E-911 data" or

"GPS data") was mandated by the FCC, and provides relatively precise location information about the wireless phone itself, either via GPS tracking technology built into the wireless phone itself or by triangulating on the device's signal using data from several of the provider's cell towers. Many providers do not retrieve or store this kind of data in the normal course of business, so GPS location information is usually obtained through legal process to obtain the prospective, or real-time, movement of the phone. Pursuant to the FCC's mandate, E-911data is accurate to within 300 meters for 95 percent of calls.

D. When served with appropriate legal process, wireless providers generally

can provide prospective cell-site location data and may be able to provide the more precise GPS data location information about a particular

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wireless phone's current location so long as the phone is turned on. Some wireless providers also store historical cell-site location information. There is no standardized practice, and retention policies vary by provider.

E. Law enforcement agencies may also have their own specialized

equipment which can simulate a cell-tower and general location information without the need to go through the wireless provider to obtain the information. Effective September 3, 2015, Department of Justice agencies are required to obtain a search warrant to deploy cellphone-tracking devices in criminal investigations, to inform judges when they plan to use them, and to generally describe how the "StingRay" or other tracking technology will be used. See, "Justice Department: Agencies need warrants to use cellphone trackers," The Washington Post (Sept. 3, 2015).

II. OBTAINING CELL-SITE INFORMATION

A. Disclosure of historical cell-site location information is governed by the Stored Communications Act (18 U.S.C. §2703).

B. The Stored Communications Act (SCA) provides, in relevant part:

A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) … when the governmental entity … obtains a court order for such disclosure under subsection (d) of this section. 18 U.S.C. §2703(c) (1)(B).

In turn, subsection (d) states in relevant part:

A court order for disclosure under subsection … (c) … shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. 18 U.S.C. §2703 (emphasis added).

C. Because cell-site records constitute a "record or other information

pertaining to subscriber" under 18 U.S.C. §2703(c)(1), historical cell-site information is usually obtained either by a court order under §2703(d) or pursuant to a search warrant.

D. Section 2703(d)'s "reasonable grounds to believe" standard is a lesser

showing than probable cause required to obtain a search warrant.

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III. SIXTH CIRCUIT CASE LAW

A. U.S. v. Forest, 355 F.3d 942 (6th Cir. 2004) In Forest, DEA agents had lost visual contact of the defendant as he

traveled on public roads to meet two suspected drug couriers. To reestablish contact, agents called the defendant's cell phone, hanging up before it rang, in order to "ping" or gather data on the phone's physical location. Using this information, agents were able to determine the defendant's movements along a public roadway, and ultimately to arrest the defendant at a gas station the following day. The Sixth Circuit held that such monitoring did not violate the Fourth Amendment because, as in Knotts v. U.S., 460 U.S. 276 (1983), "the DEA agents could have obtained the same information by following [the defendant's] car." "Although the DEA agents were not able to maintain visual contact with [the defendant's] car at all times, visual observation was possible by any member of the public. The DEA agents simply used the cell-site data to 'augment[ ] the sensory faculties bestowed upon them at birth,' which is permissible under Knotts." Id. at 951 (quoting Knotts, 460 U.S. at 282).

B. U.S. v. Skinner, 690 F.3d 772 (6th Cir. 2012)

In Skinner, during an investigation into an interstate drug trafficking ring, the government obtained an order from a magistrate judge authorizing the collection of real-time cell-site location data for a cell phone that belonged to the defendant. On appeal, Skinner challenged the district court's decision to include the evidence at trial. In upholding the admission of the cell-site location information at trial, Judge Rogers stated:

When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone's car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross-country shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools. The government used data emanating from Melvin Skinner's pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner's location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with a motorhome filled with over 1,100 pounds of marijuana.

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Id. at 774-75.

The Sixth Circuit also distinguished the real time cell phone tracking in Skinner from the Supreme Court's decision in U.S. v. Jones, 565 U.S. ---, 132 S.Ct. 945 (2012), a case involving a tracking device secretly placed by law enforcement authorities on the defendant's car where the Supreme Court's opinion explicitly relied on the trespassory nature of the police action and physical intrusion into a constitutionally protected area. The Sixth Circuit concluded that the Jones analysis did not apply to Skinner because:

No such physical intrusion occurred in Skinner's case. Skinner himself obtained the cell phone for the purpose of communication, and that phone included the GPS technology used to track the phone's whereabouts. The majority in Jones based its decision on the fact that the police had to "physically occup[y] private property for the purpose of obtaining information." … That did not occur in this case. … Skinner's case also does not present the concern raised by Justice Alito's concurrence in Jones … There may be situations where police, using otherwise legal methods, so comprehensively track a person's activities that the very comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes. As Justice Alito recognized, prior to certain advances in technology, "practical" considerations often offered "the greatest protections of privacy." For instance, in the situation presented in Jones, "constant monitoring of the location of a vehicle for four weeks ... would have required a large team of agents, multiple vehicles, and perhaps aerial assistance." Technology, however, has made it possible to conduct a level of extreme comprehensive tracking, "secretly monitor[ing] and catalogu[ing] every single movement" that the defendant made over four weeks, that previously would have been impossible. … No such extreme comprehensive tracking is present in this case. Justice Alito's concurrence and the majority in Jones both recognized that there is little precedent for what constitutes a level of comprehensive tracking that would violate the Fourth Amendment. …Skinner's case, however, comes nowhere near that line. While Jones involved intensive monitoring over a 28-day period, here the DEA agents only tracked Skinner's cell phone for three days. Such "relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable." … Here, the monitoring of the location of the contraband-carrying vehicle as it crossed the country is no more of a comprehensively invasive search than if instead the car was identified in Arizona and then tracked visually and the search handed off from one local authority to another as

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the vehicles progressed. That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit.

Skinner at 780 (internal citations omitted).

C. U.S. v. Carpenter, No. 12-20218, 2013 WL 6385838 (E.D. Mich. Dec. 6,

2013), on appeal in No. 14-1572 (6th Cir.)

The United States was investigating six armed robberies of Radio Shack and T-Mobile stores which occurred between December 2010 and October 31, 2012 in Michigan and Ohio. The United States used the Stored Communications Act during its investigation to obtain voluminous historical cell site location data for a five month period for defendant Carpenter and his brother. The application was based on an interview with a "cooperating defendant" who admitted involvement in eight different robberies beginning in December 2010 and continuing through March 2011. Defendants moved to suppress all cell tower evidence on grounds that §2703 of the Stored Communications Act, which allowed the government to obtain five months' of historical data from defendants cell phone service providers without a warrant and only based upon "reasonable grounds" violated the Fourth Amendment. The government opposed the motion, relying on U.S. v. Skinner, 690 F.3d 772 (6th Cir. 2012), and argued that §2703 was not unconstitutional, but if it was, the agents had relied on the statute in good faith. The district court denied the motion based on Skinner, and held that §2703 was not unconstitutional. The trial court also allowed the testimony at trial of an FBI Special Agent about cell towers and his analysis of cell phone data collected using court orders, over a defense objection that the testimony was not reliable based on Daubert v. Merrill Dow, 509 U.S. 579 (1993). The trial court reasoned that the FBI agent's testimony was sufficiently reliable to qualify as expert testimony because the government sought only "to have [the agent] testify that Defendants' cell phones were in geographic areas 'consistent with' the locations where the robberies occurred" and that such testimony was "widely accepted by federal courts." Id., Opinion and Order, Pg. ID 1218-1224.

D. U.S. v. Pembrook, ___ F. Supp.3d ___ (E.D. Michigan 2015)

On April 22, 2014, four men attempted to rob a jewelry store in Grand Rapids, Michigan, but, after one was shot by a store owner, they fled without any merchandise. Later that same day, three men stole $1,500,000 in Rolex watches from a jewelry store in West Bloomfield, Michigan. The United States filed §2703(d) applications on April 28, May 22, August 5, and September 17, 2014. Six days after the robbery, the government sought an order directing a number of cellular-service providers to produce the phone number of the cellular devices that, around the time of the two robberies, had connected to cell towers servicing the two jewelry stores. The Court's Order directed five cellular providers, including AT&T, Verizon, Sprint, and T-Mobile to disclose all

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records and information (not including the contents of any communi-cations) about all communications made using the cell towers providing service to the Grand Rapids store between 10:00 a.m. and 1:00 p.m. on April 22, 2014, and the towers providing service to the West Bloomfield store between 4:00 and 5:15 p.m. on April 22, 2014. From that data, investigators determined that one telephone number, (424) 302-1434, was active at both locations during the time frame of each robbery. The United States submitted a second §2703(d) application seeking subscriber information and historical records, going back sixty days, associated with the account for the 1434 telephone number. Those historical records showed the 1434 number making numerous contacts with telephone number (872) 999-0033 on the day of the robberies, as well as one day preceding and one day following. Both the 1434 and 0033 phone numbers made numerous calls to the same two Philadelphia numbers on the date of the robberies. The United States filed a third §2703(d) application to obtain historical cell-site data associated with the 0033 number for thirty days from the date of the robberies. From surveillance video from the two robberies, along with a gas station in Michigan, the FBI identified two men, including defendant Calhoun, as being two of the members of the group that conducted the robberies. Through recorded prison calls, they learned that Calhoun was using telephone number (610) 427-1641. The United States then filed its fourth §2703(d) application for, among other things, historical cell-site location information for telephone number 1641. From the historical data, the United States could establish Calhoun's approximate location between April 15 and May 30, 2014, a six week period. A map prepared for trial summarizing the historical cell-site location data showed travel originating and terminating in Philadelphia, PA, with the phones traveling to Wisconsin and then to Michigan, using cell towers consistent with the geographical area encompassing robbery locations in Grand Rapids and Southfield, Michigan. Defendant Calhoun moved to suppress the cell-site data obtained pursuant to the four orders entered pursuant to 18 U.S.C. §2703(d). Calhoun argued that the cell-site data should be suppressed because it was obtained via a search prohibited by the Fourth Amendment. The district court analyzed the cases, including Supreme Court cases, binding Sixth Circuit precedent, as well as non-binding persuasive authority both from within the judicial district as well as out-of-district cases that should have informed the government's decision to obtain the month-and-a-half of data associated with defendant Calhoun's cell-phone accounts, see Pembrook, *9-*16, and concluded that:

[A]t the time the Government obtained the cell-site data at issue …., there was no binding authority holding that obtaining cell-site data, even cell-site data revealing an individual's whereabouts over an extended period or his presence in a private place, required a warrant supported by probable cause. …. [T]he persuasive authority available at the time was mixed. … [T]he Government could not have been "deliberate, reckless, or grossly

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negligent," in violating Calhoun's Fourth Amendment rights (assuming, without deciding, that it did violate them)."

E. See also, In re Application of the United States for an Order Authorizing

the Disclosure of Cell Site Location Information, 2009 WL 8231744 (E.D. Ky. 2009) (concluding that the SCA clearly authorizes access to historical cell site location information upon appropriate §2703(d) application and order, but denying the government's application to obtain prospective cell site location information by way of a "hybrid" application brought under the SCA and the Pen/Trap statute).

IV. OUTSIDE THE SIXTH CIRCUIT

A. In re Application of the United States of America for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)

The United States filed applications under §2703(d) of the SCA seeking a court order to compel the cell phone service provider for a particular cell phone to produce sixty pages of historical cell site data and other subscriber information. In each instance, the United States requested "the antenna tower and sector to which the cell phone sends its signal." It requested this information for both the times when the phone sent a signal to a tower to obtain service for a call and the period when the phone was in an idle state. The magistrate judge granted the request for subscriber information, but denied the request for historical cell site data, despite finding the government's showing met the "specific and articulable facts" standard set by the SCA for granting an order to compel the cell site data. Ultimately, the magistrate judge issued a written opinion taking judicial notice of a host of facts about cell phone technology, "…primarily derived from the testimony of a computer science professor at a congressional hearing, but also including information from published studies and reports and service provider privacy policies." Id. at 602. The magistrate judge concluded his opinion by declaring that "[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment." Id. (internal citation omitted). The district court judge who reviewed first on appeal agreed, finding:

When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause. The records would show the date, time called, number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act is below that required by the Constitution.

Id. at 602-03.

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On appeal, the Fifth Circuit disagreed and reversed the district court agreeing with the Government's argument that where a third party collects information in the first instance for its own purposes, the information can be obtained with a §2703(d) court order, just as bank and telephone records may be obtained from a third party by a subpoena. Comparing cell site records to the warrantless use of pen registers to record the numbers dialed from a particular landline as sanctioned by the Supreme Court in Smith v. Maryland, 442 U.S. 735, 745-46 (1979):

A cell service subscriber, like a telephone user, understands that his cell phone must send a signal to a nearby cell tower in order to wirelessly connect his call…Cell phone users recognize that, if their phone cannot pick up a signal (or "has no bars"), they are out of the range of their service provider's network of towers. And they realize that, if many customers in an area attempt to make calls at the same time, they may overload the network's local towers, and the calls may not go through. Even if this cell phone-to-tower signal transmission was not "common knowledge," …cell service providers' and subscribers' contractual terms of service and providers' privacy policies expressly state that a provider uses a subscriber's location information to route his cell phone calls. In addition, these documents inform subscribers that the providers not only use the information but collect it. …Finally, they make clear that providers will turn over these records to government officials if served with a court order. Cell phone users, therefore, understand that their service providers record their location information when they use their phone at least to the same extent that the landline users in Smith understood that the phone company recorded the numbers they dialed.

Id. at 613 (internal citations with quotations omitted). The Fifth Circuit held:

Cell site data are business records and should be analyzed under that line of Supreme Court precedent. Because the magistrate judge and district court treated the data as tracking information, they applied the wrong legal standard. Using the proper framework, the SCA's authorization of §2703(d) orders for historical cell site information if an application meets the lesser "specific and articulable facts" standard, rather than the Fourth Amendment probable cause standard, is not per se unconstitutional. Moreover, as long as the Government meets the statutory requirements, the SCA does not give the magistrate judge discretion to deny the Government's application for such an order.

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Id. at 615(emphasis added). The Fifth Circuit emphasized:

The Government does not require service providers to record this information or store it. The providers control what they record and how long those records are retained….In the case of such historical cell site information, the Government merely comes in after the fact and asks a provider to turn over records the provider has already created.

Id. at 612. Relying on the Supreme Court's precedent in Smith v. Maryland, 442 U.S. 735 (1979), the Fifth Circuit explained why the cell phone user had no subjective expectation of privacy in such business records showing cell tower locations. The court reasoned: (1) the cell user had knowledge that his cell phone must send a signal to a nearby cell tower in order to wirelessly connect his call; (2) the signal only happens when a user makes or receives a call; (3) the cell user has knowledge that when he places or receives calls, he is transmitting signals through his cell phone to the nearest cell tower and thus to his service provider; (4) the cell user thus is aware that he is conveying cell tower location information to the service provider and voluntarily does so when he uses his cell phone for calls. Id. at 613-14. The Fifth Circuit agreed "that technological changes can alter societal expectations of privacy," but reasoned, "[a]t the same time, '[l]aw enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system.'" Id. at 614 (quoting U.S. v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012)). The Fifth Circuit concluded that "[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way." Id. (quoting U.S. v. Jones, 565 U.S. ---, 132 S.Ct. 945, 950, n.3 (2012) (Alito, J., concurring)). In the end, the Fifth Circuit determined: (1) "Congress has crafted such a legislative solution in the SCA," and (2) ″the SCA conforms to existing Supreme Court Fourth Amendment precedent." Id.

B. U.S. v. Davis, 785 F.3d 498 (11th Cir. 2015)

Davis committed seven separate armed robberies in a two-month period. Davis and his co-conspirators targeted a wide range of businesses in south Florida including a pizzeria, a gas station, a drugstore, an auto parts store, a beauty salon, a fast food restaurant, and a jewelry store. Davis was charged in two Hobbs Act conspiracies with five co-defendants. At trial, the United States introduced phone records obtained with a §2703(d) court order for the sixty-seven-day period during which the robberies were committed. The phone records showed the telephone numbers for each of Davis's calls and the number of the cell tower that

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connected each call. When the cell towers and robbery sites were mapped out by a witness at trial, while there was some distance between them, the cell tower sites were in the general vicinity of the robbery sites.

Davis was convicted at trial, and appealed to the Eleventh Circuit Court of Appeals. Initially, a panel of the court affirmed the convictions based on the good-faith exception to the exclusionary rule, but held that the government had violated Davis's rights under the Fourth Amendment by obtaining stored telephone communication records from Davis's cell phone provider pursuant to the order of the magistrate judge issued under SCA, 18 U.S.C. §2703. U.S. v. Davis, 754 F.3d 1205, 1217 (11th Cir. 2014). The government's motion for rehearing en banc was granted and, on appeal, the Eleventh Circuit held that production of historical cell site location records pursuant to a SCA §2703(d) order did not violate Davis's Fourth Amendment rights. U.S. v. Davis, 785 F.3d 498 (11th Cir. 2015).

Analyzing the facts of Davis's case in accord with the third-party doctrine as articulated by the Supreme Court in Smith v. Maryland, 442 U.S. 735, 739-40 (1979), the Eleventh Circuit cited the Fifth Circuit's opinion on the same issue, In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 611-15 (5th Cir. 2013), and concluded:

Davis can assert neither ownership nor possession of the third-party's business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS's cell tower records were not Davis's to withhold. Those surveillance camera images show Davis's location at the precise location of the robbery, which is far more than MetroPCS's cell tower location records show….Smith's methodology should not be set aside just because cell tower records may also be used to decipher the approximate location of the user at the time of the call. Indeed, the toll records for the stationary telephones at issue in Smith included location data far more precise than the historical cell site location records here, because the phone lines at issue in Smith corresponded to stationary landlines at known physical addresses. At the time of Smith, telephone records necessarily showed exactly where the user was – his home – at the time of the call, as the user's telephone number was tied to a precise address. And the number dialed was also tied to a precise address, revealing if the user called a friend, a business, a hotel, a doctor, or a gambling parlor.

Davis at 511-12.

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C. U.S. v. Graham, 796 F.3d 332 (4th Cir. 2015) (holding that there is a reasonable expectation of privacy in historical cell-site data)

While investigating multiple armed robberies, federal agents applied for

and obtained court orders under the SCA for 221 days' worth of historical cell-site location information from a wireless provider for two cell phone numbers which had been located during a search and linked to two of the alleged robbers. Defendants moved to suppress use of the cell-site location information at trial arguing that the United States' acquisition of the records without a warrant based on probable cause was an unreasonable search in violation of the Fourth Amendment. The trial court denied the motion, holding the government's conduct was not unreasonable and, even if it was, the government had relied on court orders issued pursuant to the Stored Communications Act, and therefore the good-faith exception to the exclusionary rule justified admission of the cell-site location information.

On appeal, the Fourth Circuit held that the government's procurement of the historical cell-site location information was an unreasonable search:

We hold that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user's historical CSLI [cell site location information] for an extended period of time. Examination of a person's historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cell phone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.

Graham at 343.

The Fourth Circuit considered the Supreme Court's precedent in U.S. v.

Knotts, 460 U.S. 276 (1983) (law enforcement officers used a combination of visual surveillance and monitoring of a radio transmitter installed in a container of chloroform to track the container's movements by automobile to the defendants' homes; held that limited nature of the government's electronic surveillance effort which was confined to tracking the container's movements on public roads from its place of purchase to its ultimate destination did not infringe upon a reasonable expectation of privacy); U.S. v. Karo, 468 U.S. 705 (1984) (where, as in Knotts, government agents surreptitiously used a radio transmitter to track the movements of a chemical container to a private residence, but continued to monitor the container while it was inside the residence – held, that this practice violated the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence); Kyllo v. U.S., 533 U.S. 27 (2001) (government agents aimed a thermal imaging device at the defendant's home from a public street to detect infrared radiation inside

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the home, which would allow it to identify the locations and movements of persons and certain objects inside; held, that where the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion is surveillance which constitutes a search and is presumptively un-reasonable without a warrant); and U.S. v. Jones, 132 S.Ct. 945 (2012) (government installed a Global Positioning System ("GPS") device on a suspect's vehicle to track the movements of the vehicle over a twenty-eight-day period – held, by a plurality, that the government's installation of the GPS device on the suspect's vehicle constituted a search under the traditional trespass-based theory of Fourth Amendment protection, bypassing the reasonable-expectation-of-privacy analysis established in Katz), and concluded:

The privacy interests affected by long-term GPS monitoring….apply with equal or greater force to historical CSLI for an extended time period. Much like long-term GPS monitoring, long-term location information disclosed in cell phone records can reveal both a comprehensive view and specific details of the individual's daily life…Inspection of historical CSLI may provide even more private information about an individual than the locational monitoring challenged in Maynard/Jones. The surveillance at issue in that case was limited to movements of an automobile on public roads…Quite unlike an automobile, a cell phone is a small hand-held device that is often hidden on the person of its user and seldom leaves her presence…. [C]ell phone users regularly carry these devices into their homes and other private spaces to which automobiles have limited access at best…. Thus, unlike GPS monitoring of a vehicle, examination of historical CSLI can permit the government to track a person's movements between public and private spaces, impacting at once her interests in both the privacy of her movements and the privacy of her home (citations omitted).

Graham at 348.

D. See also, In re Application for Telephone Information, 2015 WL 4594558

(N.D. Cal. 2015) (finding a reasonable expectation of privacy in historical cell site location information; that passive generation of historical cell site location information by continually running apps and automatic pinging render the third-party doctrine articulated in Smith v. Maryland in-applicable because location information generated continuously was not voluntarily conveyed by the subscriber to the provider; and that the record before the Fifth and Eleventh Circuits had not included consideration of the involuntary nature of apps and automatic pinging when those courts concluded that the third party doctrine of Smith v. Maryland allowed the government to obtain historical cell site records without a search warrant).

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PRIVACY – FOCUS ON POLE CAMERAS Robert E. Wier, United States Magistrate Judge

I. AUTHORITY TO AUTHORIZE /ORDER POLE CAMERA INSTALLATION

28 U.S.C. §1651(a): "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

Under §1651 and Rule 57(b), the Court has authority to issue an authorizing Order and compel a third party to assist a legitimate law enforcement investigation on terms that are reasonable.

II. RECENT CASE LAW & EMERGING ISSUES Representative segments from recent cases on law enforcement's ability to surveil via pole cam and possibly countervailing privacy interests: A. United States v. Bucci, 582 F.3d 108, 116-17 (1st Cir. 2009) (finding no

Fourth Amendment violation with pole camera installed on utility pole across the street from Bucci's house for eight months):

Law enforcement authorities installed a video camera on a utility pole across the street from Bucci's home and conducted surveillance of the front of his house for eight months. The camera was placed in a fixed location that enabled agents to monitor activity on the driveway and afforded agents a view of the garage door and inside the garage when the door was open. The video camera had no remote capabilities that allowed agents to either change the view or magnification of the camera without being physically at the scene. . . . Bucci has failed to establish either a subjective or an objective expectation of privacy in the front of his home, as viewed by the camera. We focus here only on the lack of a reasonable objective expectation of privacy because this failure is so clear . . . . There are no fences, gates or shrubbery located in front of Bucci's residence that obstruct the view of the driveway or the garage from the street. Both are plainly visible. An individual does not have an expectation of privacy in items or places he exposes to the public . . . . That legal principle is dispositive here.1

1 "Lengthy, sustained surveillance of a person's home during which the police observe (and record) every coming and going to the home raises substantial privacy concerns. Several Courts, even when not suppressing, have expressed substantial Fourth Amendment concern regarding continuous intrusive video surveillance . . . . Nonetheless, I must deny defendant's Motion under

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B. United States v. Vankesteren, 553 F.3d 286, 291 (4th Cir. 2009) (finding no Fourth Amendment violation with a camera in an open field, activated only by motion, and that recorded only in the daylight, within the timespan of one month):

The idea of a video camera constantly recording activities on one's property is undoubtedly unsettling to some. Individuals might engage in any number of intimate activities on their wooded property or open field – from romantic trysts under a moonlit sky to relieving oneself, as in Mr. Vankesteren's case – and do so under the belief that they are not being observed. But the protection of the Fourth Amendment is not predicated upon these subjective beliefs . . . . Anyone could have walked onto Vankesteren's property, including a VDGIF agent, and observed his traps. Under our jurisprudence, VDGIF could have stationed agents to surveil Vankesteren's property twenty-four hours a day . . . . That the agents chose to use a more resource-efficient surveillance method does not change our Fourth Amendment analysis. Since Vankesteren had no legitimate expectation of privacy, the agents were free, as on public land, to use video surveillance to capture what any passerby would have been able to observe . . . . Likewise, the placement of a video camera in an open field does not portend the arrival of the Orwellian state that the appellant would have us fear. We are not dealing in this case with a camera that took, for instance, thermal images of Vankesteren's home or that was equipped with an automatic guidance system that allowed it to roam about Vankesteren's property, possibly into protected Fourth Amendment areas. Instead, this camera was in a fixed location, was focused on a limited area of Vankesteren's fields, was activated only by motion, and recorded only during the daylight hours. Essentially, the camera did little more than the agents themselves could have physically done, and its use was therefore not unconstitutional.

C. United States v. Anderson-Bagshaw, 509 F. App'x 396, 403-06 (6th Cir.

2012) (affirming denial of motion to suppress involving a pole camera installed on utility pole near Defendant's house for twenty-four days):

The area behind Bagshaw's house can be divided into three distinct areas. The first is a grassy area directly behind the house that contained a picnic table, a clothesline, and what appears to be a gazebo of some

First Circuit precedent." United States v. Garcia-Gonzalez, No. 14-10296-LTS, 2015 WL 5145537, at *8-*9 (D. Mass. Sept. 1, 2015).

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sort. For convenience, we term this area the "backyard." Behind the backyard is a fenced-in area next to the barn –the "barnyard." Behind the barnyard in the far rear of the property is a fenced-in grassy area – the "pasture." . . . Without a doubt, the "barnyard" and "pasture" areas were outside the curtilage of Bagshaw's home. These areas constitute "open fields," and Bagshaw had no reasonable expectation of privacy in them. Surveillance of these areas did not constitute a Fourth Amendment search . . . . However, application of the four factors directs us to find that the "backyard" constitutes curtilage . . . . Our conclusion that the "backyard" is curtilage does not end our analysis, since law enforcement officers are entitled to observe things in plain sight from publicly accessible areas . . . . Testimony at the suppression hearing indicated that the "backyard" was visible from the adjacent vacant lot. Agent Morgano testified that the view into the "backyard" from the utility pole, which was located on the vacant lot near the road, was equally as good from ground level as from atop the utility pole. According to her testimony, the camera was placed at the top of the pole for technical reasons, not to improve the vantage point. The footage from the pole camera confirms Agent Morgano's testimony. It shows that the vacant lot had recently been cleared of trees and undergrowth, rendering the view into the "backyard" largely unobstructed. From the footage, it appears that someone standing on the vacant lot near the road would have enjoyed the same view of the "backyard" that the pole camera possessed. Since the "backyard" was visible from a publicly accessible location, the government agents were constitutionally permitted to view whatever portions of it were visible from this point . . . . The government agents never physically invaded the "backyard." They merely observed it from a point where they had a right to be . . . .

Nonetheless, we confess some misgivings about a rule that would allow the government to conduct long-term video surveillance of a person's backyard without a warrant. Few people, it seems, would expect that the government can constantly film their backyard for over three weeks using a secret camera that can pan and zoom and stream a live image to government agents. We are inclined to agree with the Fifth Circuit that "[t]his type of surveillance provokes an immediate negative visceral reaction." United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (stating in dicta that using a pole camera to view curtilage over a ten-foot fence constitutes a Fourth Amendment search). . . .

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Furthermore, it appears that at least five Justices of the Supreme Court share our concerns about certain types of long-term warrantless surveillance. See United States v. Jones, ___ U.S. ____, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring and Alito, J., concurring in the judgment). But Jones involved GPS tracking, and it may be that the privacy concerns implicated by a fixed point of surveillance are not so great as those implicated by GPS tracking. The camera revealed only Bagshaw's activities outside in her yard – a fixed space which was open to public view. It did not "generate[ ] a precise record of [her] public movements that reflect[ed] a wealth of detail about her familial, political, professional, religious, and sexual associations" like a GPS device would do. See id. at 955 (Sotomayor, J., concurring). Ultimately, since we hold that any possible Fourth Amendment violation here would be harmless, we decline to decide whether long-term video surveillance of curtilage requires a warrant.

D. United States v. Houston, 965 F.Supp.2d 855, 870-72 (E.D. Tenn. 2013)

(Reeves, J.) (denying motion to suppress involving a pole camera located on public property adjacent to the residence for seventy-one days), (aff’d ___ F.3d ___ (6th Cir. Feb. 8, 2016):

Although some courts have voiced concern over the potential for abuse regarding the use of video surveillance over an extended period of time, those that examined the issue found it not to implicate an individual's Fourth Amendment rights if the camera could not see into the residence and captured no footage that was not otherwise exposed to public view . . . . Here, the magistrate judge correctly concluded that, at the time the agents installed the pole camera in issue, silent video surveillance of unobstructed curtilage which neither involved a physical trespass nor permitted officers to view or discern activities within a residence was not deemed to be a search implicating the Fourth Amendment . . . . Additionally, because most of the area within the scope of the pole camera was either pasture land or open fields, the defendant did not have a reasonable expectation of privacy in those areas . . . . However, "since law enforcement officers are entitled to observe things in plain sight from publically accessible areas," a court's conclusion that an area is curtilage does not end the analysis. Anderson-Bagshaw, 509 Fed. Appx. at 404. Therefore, because the pole camera enjoyed the same view that could be seen by an individual on Barnard Narrows Road or Dogtown Road, and because it did not provide law enforcement with a vantage point they could

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not have enjoyed from the ground, the use of the pole camera was not a violation of the defendant's Fourth Amendment rights, provided that the duration and circumstances of its use were reasonable. As noted by the magistrate judge, other than limiting the monitoring of the camera primarily to daylight hours, the Court has no other information that the agents attempted to restrain the intrusiveness of the surveillance (for instance by ceasing recording when others besides the defendant or his brother were on the property). Additionally, although the pole camera only captured images which could be viewed from the two public roads surrounding the defendant's residence, in determining the reasonableness of law enforcement's use of the camera, ten weeks of warrantless use is questionable. Relying on recent Sixth Circuit decision in Anderson-Bagshaw, the magistrate judge concluded that the warrantless video surveillance of 391 Barnard Narrows Road beyond fourteen days violated the defendant's reasonable expectation of privacy. The Court agrees to an extent. Based on concerns regarding the warrantless video recording of a residence's curtilage in the manner outlined above, the Court agrees that ten weeks crosses into the unreasonable, provoking "an immediate negative visceral reaction" suggestive of the Orwellian state. Notwith-standing this conclusion, the Court is unwilling to announce a bright-line rule of fourteen days as the cut-off date at which point the once legal police video surveillance of unobstructed curtilage from a public point of view, enjoying the same sight-lines as a passer-by, transforms into the unreasonable and illegal. And, as Magistrate Judge Shirley noted in his Report and Recommendation, no court has established a precise length of reasonable warrantless video surveillance.

E. United States v. Houston, ___ F.3d ___, ___, No. 14-5800, 2016 WL 482210, at *1, *3-*6 (6th Cir. Feb. 8, 2016) (affirming denial of motion to suppress involving a pole camera installed on utility pole near Defendant's house for 10 weeks), petition for reh'g en banc filed:

Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother's rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate

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Houston's reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads. . . . There is no Fourth Amendment violation, because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads. The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm. Additionally, the length of the surveillance did not render the use of the pole camera unconstitutional, because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations. While the ATF agents could have stationed agents round-the-clock to observe Houston's farm in person, the fact that they instead used a camera to conduct the surveillance does not make the surveillance unconstitutional. This conclusion is supported by California v. Ciraolo, 476 U.S. 207 (1986), in which the Supreme Court upheld warrantless aerial observations of curtilage, explaining that the Fourth Amendment does not "preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible." Id. at 213. While several of the videos show Houston standing in open fields, an area in which the recordings certainly do not violate his reasonable expectations of privacy, United States v. Dunn, 480 U.S. 294, 300–03 (1987); Anderson-Bagshaw, 509 F. App'x 396, 403–04 (6th Cir. 2012), other videos show Houston standing near the trailer, an area that at least arguably qualifies as curtilage. Nonetheless, even assuming that the area near the trailer is curtilage, the warrantless videos do not violate Houston's reasonable expectations of privacy because the ATF agents had a right to access the public utility pole and the camera captured only views that were plainly visible to any member of the public who drove down the roads bordering the farm. See United States v. Jackson, 213 F.3d 1269, 1280-81 (10th Cir.), vacated on other grounds, 531 U.S. 1033 (2000). Thus, Houston's Fourth Amendment rights were not violated, because he has no reasonable expectation of privacy in what he "knowingly exposes to the public." Katz v. United States, 389 U.S. 347, 351 (1967). Houston argues that the immediate area around the trailer and Houston's home were not readily visible to passersby, because blue tarps blocked the trailer doors and foliage obstructed Houston's home. However, while the view of

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the trailer and his home may have been blocked, it was equally blocked from the view of the camera as from the view of passersby. There is no evidence that the camera was able to see through the tarps or into the interior of the trailer. The Supreme Court in Ciraolo stated clearly that "the mere fact that an individual has taken measures to restrict some views of his activities" does not "preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible." 476 U.S. at 213. Without citing the record, Houston alleges in his opening brief that it is "questionable" whether the view from atop the utility pole was the same as the view from the ground, and then later in his reply brief Houston alleges that the areas recorded by the camera definitely could not have been viewed by law enforcement officers standing on public ground. However, even if the view from a telephone pole somehow must be the same as the view from a public road, Special Agent Dobbs testified during the trial that the views from the camera and from the public roads were, in fact, the same, and there does not appear to be any evidence in the record to the contrary. The district court's factual finding in its order denying Houston's suppression motion that the camera recorded the same view enjoyed by an individual standing on public roads was thus not clearly erroneous. Furthermore, the long length of time of the surveillance does not render the video recordings unconstitutionally unreasonable, because it was possible for law enforcement to have engaged in live surveillance of the farm for ten weeks. Although vehicles "[stuck] out like a sore thumb" at the property, the ATF theoretically could have staffed an agent disguised as a construction worker to sit atop the pole or perhaps dressed an agent in camouflage to observe the farm from the ground level for ten weeks. However, the Fourth Amendment does not require law enforcement to go to such lengths when more efficient methods are available. As the Supreme Court in United States v. Knotts explained, law enforcement may use technology to "augment[] the sensory faculties bestowed upon them at birth" without violating the Fourth Amendment. 460 U.S. 276, 282 (1983). The law does not keep the ATF agents from more efficiently conducting surveillance of Houston's farm with the technological aid of a camera rather than expending many more resources to staff agents round-the-clock to conduct in-person observations. See id. at 282–84. Nor does the law require police observers in open places to identify themselves as

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police; police may view what the public may reasonably be expected to view. Moreover, even if it were not practical for the ATF to conduct in-person surveillance for the full ten weeks, it is only the possibility that a member of the public may observe activity from a public vantage point—not the actual practicability of law enforcement's doing so without technology—that is relevant for Fourth Amendment purposes. Our cases have so held. See United States v. Skinner, 690 F.3d 772, 779 (6th Cir. 2012); United States v. Forest, 355 F.3d 942, 951 (6th Cir. 2004), vacated on other grounds, Garner v. United States, 543 U.S. 1100 (2005). In Forest, DEA agents lost visual contact of the defendant as he drove on public highways. 355 F.3d at 951. To reestablish the defendant's location, the agents called the defendant's cell phone and hung up before it rang in order to "ping" the defendant's physical location. Id. Although the agents could not maintain visual contact, we held that the access of the defendant's cell phone data was not a search under the Fourth Amendment, because it was possible for any member of the public to view the defendant's car. Id. Similarly, in Skinner, we upheld the warrantless use of cell phone pinging to track the defendant's location on public roads even though law enforcement never made visual contact with the defendant and did not know his identity, because the defendant's movements "could have been observed by any member of the public." 690 F.3d at 779. Here, as in Forest and Skinner, the length of the use of the camera is not problematic even if the ATF could not have conducted in-person surveillance for the full ten weeks, because any member of the public driving on the roads bordering Houston's farm during the ten weeks could have observed the same views captured by the camera. In arguing that the length of the surveillance period rendered the use of the pole camera unconstitutional, Houston relies on Anderson-Bagshaw, an unpublished opinion, in which we did not rule on the issue but expressed "some misgivings" about permitting warrantless pole camera surveillance of an individual's backyard for over three weeks. 509 F. App'x at 405; see also 509 F. App'x at 420–24 (Moore, J., concurring). Houston also cites United States v. Jones, in which five Justices appeared willing to rule that warrantless long-term GPS monitoring of an automobile violates an individual's reasonable expectation of privacy. 132 S. Ct. 945, 964 (Alito, J., concurring); id. at 955–56 (Sotomayor, J., concurring). However, unlike Justice Alito's concern in Jones that long-term GPS monitoring would "secretly

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monitor and catalogue every single movement" that the defendant made, id. at 964 (Alito, J., concurring), the surveillance here was not so comprehensive as to monitor Houston's every move; instead, the camera was stationary and only recorded his activities outdoors on the farm. Because the camera did not track Houston's movements away from the farm, the camera did not do what Justice Sotomayor expressed concern about with respect to GPS tracking: "generate[] a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." Id. at 955 (Sotomayor, J., concurring). Indeed, we recognized as much in Anderson-Bagshaw, the case upon which Houston relies, when we stated that "it may be that the privacy concerns implicated by a fixed point of surveillance are not so great as those implicated by GPS tracking." 509 F. App'x at 405. Thus, notwithstanding the concurrences in Jones and dicta in our unpublished opinion, the results in Knotts, Forest, and Skinner indicate that long-term warrantless surveillance via a stationary pole camera does not violate a defendant's Fourth Amendment rights when it was possible for any member of the public to have observed the defendant's activities during the surveillance period. Moreover, if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely. Instead, "[i]nsofar as respondent's complaint appears to be simply that scientific devices . . . enabled the police to be more effective in detecting crime, it simply has no constitutional foundation." Knotts, 460 U.S. at 284. Finally, given our holding that the agents did not need to obtain a warrant to conduct the video surveillance in the first place, Houston's argument that the post-warrant video evidence should be suppressed due to a lack of probable cause supporting the warrant is unavailing. All of the pole camera recordings, both those obtained with and without a warrant, were properly admitted during Houston's trial.

III. EXAMPLES FROM AUTHORIZING ORDERS

Examples where the Court, considering particular applications, set specific limits on recording duration or camera field of view, redacted and altered to avoid confidentiality/sealing concerns:

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A. "[Law enforcement] agents and employees . . . are authorized to install and use, for no longer than thirty days, a surveillance camera, and other equipment necessary for its operation, on a [utility pole]. The surveillance camera will provide a view of the building located at [address]. Installation shall occur within ten days of the date of this Order. The Court authorizes a maximum of thirty days of surveillance unless renewed by separate Order."

B. "The Court relies on the field of view depicted on the overhead photo

attached to the application. The camera may continuously view only the front portion of the [building] (to include the front [area], as would be visible from the main street) as well as the side portion of the [building] extending to the rear corner of the [building], if same is visible from the main street. The camera may not pan or zoom to capture any activities or areas in the rear of the [building], to include the back [area], the rear of the [building] itself, and any outbuildings located behind the target [building]. Further, the camera shall minimize any capture of properties other than the target premises."

C. "The Court orders that no audio recordings will be made by the

surveillance cameras. Further, this Order does not authorize a 'search,' under the Fourth Amendment. Thus, the camera may only view and capture images of persons and/or conduct, viewable with the naked eye, in a public area, as detailed in the Application. The camera may only see what is viewable from a public vantage point; it may not view into an area in the curtilage of a residence protected or screened from public view. The camera may only view the front area of the residence, including its driveway, as well as any public street and sidewalk."

D. "[T]he camera may only view and capture images of persons and/or

conduct, viewable with the naked eye, in and from a public area, as detailed in the Application. That is, the camera may see only what is viewable from a public vantage point; it may not view into an area in the curtilage of a residence protected or screened from public view or into any other area blocked from public observation and visual access. That the area of observation is a public business significantly diminishes any privacy interest of a person observed here under."

E. "Regarding camera operation, [law enforcement] shall assure that the

angle and field of view reasonably minimize capture of activities at any [building] other than the target. Further, although the camera may zoom into the target [building] and/or activities on the public road, the camera shall not zoom into or swivel to capture other [buildings]. If the status of the vacant lot changes during the monitoring period, i.e., if someone installs a trailer on the lot, [law enforcement] shall immediately notify the Court and seek further guidance."

F. "Because of the circumstances of the investigation, the focus of activities,

and the established need (and in consideration of the camera view, which the Court has seen by proffer from the Applicant), the Court directs that the camera not continuously view the building that is the lone residence

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on the farm. The camera can continuously view the modular home (which evidently is not an inhabited residence) and any barns and entrances to/exits from the farm. As to the residence, the camera may situationally monitor that building if an event of suspicion occurring on the farm leads to or involves activity at the residence. The limitation is that the residence shall not be continuously under surveillance by the camera but may be viewed temporarily in a justifying circumstance."

G. "The Court has analyzed the mapping and finds as follows: The area of

camera placement is public in that it is within an open area between the current unconnected ends of a public road, and the road connection is in progress. There is no fencing or barrier that would keep persons in the neighborhood, or the public in general, from entering the field and moving about the area of the pole. Further, the pole vantage point is no better than (and indeed will be restricted to an area worse than) the public view from the roadway behind the [building] that directly exposes the full rear of the [building]. Thus, while the pole view is not identical to the road view, the pole view actually only will allow surveillance of the front and fully-exposed side of the target [building]. The vantage point is one from a place law enforcement would have a right to be based on the particular geography, topography, and character of the field, road, and right of way area."

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DISCUSSION ISSUES REGARDING SENTENCING Judge David J. Hale

I. SAUL MOLINA-MARTINEZ V. UNITED STATES

This case, currently pending before the Supreme Court, presents the issue of whether on appeal there should be a presumption that an error in calculating a defendant's Sentencing Guidelines range affects the defendant's substantial rights. In the district court, Molina-Martinez pleaded guilty to being unlawfully present in the United States after having been previously deported for an aggravated felony. He received a sentence of seventy-seven months of imprisonment. The Sentencing Guidelines calculations at issue included a determination that the defendant had eighteen criminal history points, which placed him in category VI, against a total offense level of twenty-one. The resulting range was seventy-seven to ninety-six months of imprisonment. The eighteen criminal history points were largely driven by a combined sentence imposed in state court for a series of burglaries committed over a period of a year. The defendant did not object prior to the sentencing hearing to the criminal history calculation in the presentence investigation report. And interestingly, on appeal to the Fifth Circuit, appointed counsel for the defendant initially filed an Anders brief conceding that the Guidelines calculations were correct. But the defendant filed a pro se response in which he objected to the criminal history score, claiming that it was incorrectly calculated since there was no intervening arrest between any of the burglaries. Both parties ultimately agreed that the district court's calculation misapplied §4A1.2(a)(2) of the Guidelines, with the result being a criminal category VI instead of V. The Court of Appeals found plain or obvious error but concluded that the error had not affected Molina-Martinez's substantial rights. In affirming the sentence, the Fifth Circuit noted that seventy-seven months was in the middle of the range that would have resulted from a correct application of §4A1.2. United States v. Molina-Martinez, 588 Fed. App'x 333 (5th Cir. 2014) (per curiam). The Supreme Court granted certiorari and heard arguments in January 2016. The forthcoming opinion from the Court could have a substantial impact upon the sentencing process.

II. JOHNSON V. UNITED STATES, 135 S.CT. 2551 (2015)

In Johnson, the Supreme Court found the residual clause in the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii) ("otherwise involves conduct that presents a serious potential risk of physical injury to another"), to be unconstitutionally vague. Thereafter, the U.S. Sentencing Commission considered whether the Johnson holding might impact Sentencing Guidelines provisions such as those pertaining to career offenders (§§4B1.1 and 4B1.2, the latter of which contains a definition identical to that in the Armed Career Criminal Act), and firearms offenses (§2K2.1), among others. Despite disagreement as to whether Johnson's vagueness holding applies to the Guidelines, the Commission proposed and ultimately adopted a new definition1 which will be effective August

1 See http://www.ussc.gov/amendment-process/reader-friendly-amendments/reader-friendly-version-amendment-crime-violence) (copy attached).

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1, 2016. The new definition modifies §4B1.2(a)(2) to remove the language "burglary of a dwelling" and "involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another" from the prior definition. How significant will the Johnson holding and related Sentencing Guidelines' change to §4B1.2 be?

III. RECENT CHANGES

A few recent changes in our local Court are worthy of discussion. First, we have a new procedure with respect to the imposition of special conditions of post-conviction supervised release. Traditionally, at the time of sentencing the U.S. Probation Office provided the parties with a list of the special conditions it recommended that the Court impose in addition to standard conditions of supervised release. USPO now provides these proposed special conditions at an earlier stage, along with the presentence investigation report (PSR). While this may appear to be a minor change to the District's sentencing procedure, it represents an opportunity for the Court and the parties to have a more meaningful discussion regarding special conditions of supervised release. Counsel should carefully consider the proposed special conditions as part of the PSR review and submit timely objections. This enhanced process may help the defendant and USPO avoid later problems associated with supervision. Second, as of the drafting of this outline, it is anticipated that a veterans court will be launched in mid-2016 in the Louisville division of the U.S. District Court for the Western District of Kentucky. The veterans court initiative is a result of joint efforts by the Court and USPO; U.S. Attorney's Office; the Federal Defender's Office; and the Department of Veterans Affairs. The purpose of the initiative is to assist qualified justice-involved veterans to obtain needed rehabilitative, mental health, and social services by creating a highly structured courtroom environment in which veteran participants are monitored and held accountable for attaining treatment and rehabilitation goals. This will be the first federal veterans court in Kentucky. It follows an evidence-based model successfully implemented in a few other jurisdictions.

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Amendment to the Sentencing Guidelines

January 21, 2016

Effective Date August 1, 2016

This document contains unofficial text of an amendment to the Guidelines Manual submitted to Congress, and is provided only for the convenience of the user. Official text of the amendment can be found on the Commission's website at www.ussc.gov and will appear in a forthcoming edition of the Federal Register.

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TABLE OF CONTENTS AMENDMENT PAGE NO. 1. "CRIME OF VIOLENCE" AND RELATED ISSUES ................................................... 37 The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. §994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. §994(o) and generally submits guideline amendments to Congress pursuant to 28 U.S.C. §994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).

The Commission specified an effective date of August 1, 2016 for the amendment listed above and included in this document.

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AMENDMENT: "CRIME OF VIOLENCE" AND RELATED ISSUES Reason for Amendment: This amendment is a result of the Commission's multi-year study of statutory and guideline definitions relating to the nature of a defendant's prior conviction (e.g., "crime of violence," "aggravated felony," "violent felony," "drug trafficking offense," and "felony drug offense") and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal). As part of this study, the Commission considered feedback from the field, including conducting a roundtable discussion on these topics and considering the varying case law interpreting these statutory and guideline definitions. In particular, the Commission has received extensive comment, and is aware of numerous court opinions, expressing a view that the definition of "crime of violence" is complex and unclear. The amendment is informed by this public comment and case law, as well as the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015), regarding the statutory definition of "violent felony" in 18 U.S.C. §924(e) (commonly referred to as the "Armed Career Criminal Act" or "ACCA"). While not addressing the guidelines, that decision has given rise to significant litigation regarding the guideline definition of "crime of violence." Finally, the Commission analyzed a range of sentencing data, including a study of the sentences relative to the guidelines for the career offender guidelines. See U.S. Sent'g Comm'n, Quick Facts: Career Offenders (Nov. 2015) (highlighting the decreasing rate of within range guideline sentences (27.5% in fiscal year 2014), which has been coupled with increasing rates of government (45.6%) and non-government sponsored below range sentences (25.9%)).

The amendment makes several changes to the definition of "crime of violence" at §4B1.2 (Definitions of Terms Used in Section 4B1.1), which, prior to this amendment, was defined as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that

• has as an element the use, attempted use, or threatened use of physical force against the person of another ("force clause" or "elements clause"), see §4B1.2(a)(1);

• is murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or involves the use of explosives ("enumerated offenses"), see §4B1.2(a)(2) and comment. (n.1); or

• otherwise involves conduct that presents a serious potential risk of physical injury to another ("residual clause"), see §4B1.2(a)(2).

The "crime of violence" definition at §4B1.2 is used to trigger increased sentences under several provisions in the Guidelines Manual, the most significant of which is §4B1.1 (Career Offender). See also §§2K1.3, 2K2.1, 2S1.1, 4A1.1(e), 7B1.1. The career offender guideline implements a directive to the Commission set forth at 28 U.S.C. §994(h), which in turn identifies offenders for whom the guidelines must provide increased punishment. Tracking the criteria set forth in section 994(h), the Commission implemented the directive by identifying a defendant as a career offender if (1) the

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defendant was at least eighteen years old at the time he or she committed the instant offense of conviction; (2) the instant offense is a felony that is a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Where these criteria are met, the directive at section 994(h), and therefore §4B1.1, provides for significantly higher sentences under the guidelines, such that the guideline range is "at or near the maximum [term of imprisonment] authorized." Commission data shows that application of §4B1.1 resulted in an increased final offense level, an increased Criminal History Category, or both for 91.3 percent of defendants sentenced under the career offender guideline in fiscal year 2014. See U.S. Sent'g Comm'n, Quick Facts: Career Offenders (Nov. 2015) (46.3% of career offenders received an increase in both final offense level (from an average of 23 levels to 31 levels) and criminal history category (from an average of category IV to category VI); 32.6% had just a higher final offense level (from an average of 23 levels to 30 levels); and 12.4% had just a higher Criminal History Category (from an average of category IV to category VI)).

Residual Clause

First, the amendment deletes the "residual clause" at §4B1.2(a)(2). Prior to the amendment, the term "crime of violence" in §4B1.2 included any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." In Johnson, the Supreme Court considered an identical residual clause relating to the statutory definition of "violent felony" in the Armed Career Criminal Act. The Court held that using the "residual clause" to classify an offense as a "violent felony" violated due process because the clause was unconstitutionally vague. See Johnson, 135 S. Ct. at 2563. While the Supreme Court in Johnson did not consider or address the sentencing guidelines, significant litigation has ensued regarding whether the Supreme Court's holding in Johnson should also apply to the residual clause in §4B1.2. Compare United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting the argument that the residual clause in §4B1.2 is unconstitutionally vague in light of Johnson) and United States v. Wilson, 622 F. App'x 393, 405 n.51 (5th Cir. 2015) (in considering the applicability of Johnson, noting "[o]ur case law indicates that a defendant cannot bring a vagueness challenge against a Sentencing Guideline"), with United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (finding that previous circuit precedent holding that the guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson); United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (holding that that[sic] the residual clause of §4B1.2(a)(2) is void for vagueness); United States v. Harbin, 610 F. App'x 562 (6th Cir. 2015) (finding that defendant is entitled to the same relief as offenders sentenced under the residual clause of the ACCA); and United States v. Townsend, _____ F. App'x _____, 2015 WL 9311394, at *4 (3d Cir. Dec. 23, 2015) (remanding for resentencing in light of the government's concession that, pursuant to Johnson, the defendant should not have been sentenced as a career offender). The Commission determined that the residual clause at §4B1.2 implicates many of the same concerns cited by the Supreme Court in Johnson, and, as a matter of policy, amends §4B1.2(a)(2) to strike the clause. Removing the residual clause has the advantage of alleviating the considerable application difficulties associated with that clause, as expressed by judges, probation officers, and litigants. Furthermore, removing the clause will alleviate some of the ongoing litigation and uncertainty resulting from the Johnson decision.

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List of Enumerated Offenses With the deletion of the residual clause under subsection (a)(2), there are two remaining components of the "crime of violence" definition – the "elements clause" and the "enumerated offenses clause." The "elements clause" set forth in subsection (a)(1) remains unchanged by the amendment. Thus, any offense under federal or state law, punishable by imprisonment for a term exceeding one year, qualifies as a "crime of violence" if it has as an element the use, or attempted use, or threatened use of physical force against the person of another. Importantly, such an offense may, but need not, be specifically enumerated in subsection (a)(2) to qualify as a crime of violence. The "enumerated offense clause" identifies specific offenses that qualify as crimes of violence. In applying this clause, courts compare the elements of the predicate offense of conviction with the elements of the enumerated offense in its "generic, contemporary definition." As has always been the case, such offenses qualify as crimes of violence regardless of whether the offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another. While most of the offenses on the enumerated list under §4B1.2(a)(2) remain the same, the amendment does revise the list in a number of ways to focus on the most dangerous repeat offenders. The revised list is based on the Commission's consideration of public hearing testimony, a review of extensive public comment, and an examination of sentencing data relating to the risk of violence in these offenses and the recidivism rates of career offenders. Additionally, the Commission's revisions to the enumerated list also consider and reflect the fact that offenses not specifically enumerated will continue to qualify as a crime of violence if they satisfy the elements clause. As amended, the enumerated offenses include murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c). For easier application, all enumerated offenses are now included in the guideline at §4B1.2; prior to the amendment, the list was set forth in both §4B1.2(a)(2) and the commentary at Application Note 1. Manslaughter, which is currently enumerated in Application Note 1, is revised to include only voluntary manslaughter. While Commission analysis indicates that it is rare for involuntary manslaughter to be identified as a predicate for the career offender guideline, this change provides that only voluntary manslaughter should be considered. This is also consistent with the fact that involuntary manslaughter generally would not have qualified as a crime of violence under the "residual clause." See Begay v. United States, 553 U.S. 137 (2008) (limiting crimes covered by the ACCA residual clause to those roughly similar in kind and degree of risk posed as the enumerated offenses, which typically involve "purposeful, violent, and aggressive conduct"). The amendment deletes "burglary of a dwelling" from the list of enumerated offenses. In implementing this change, the Commission considered that (1) burglary offenses rarely result in physical violence, (2) "burglary of a dwelling" is rarely the instant offense of conviction or the determinative predicate for purposes of triggering higher penalties under the career offender guideline, and (3) historically, career offenders have rarely been rearrested for a burglary offense after release. The Commission considered several studies and analyses in reaching these conclusions.

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First, several recent studies demonstrate that most burglaries do not involve physical violence. See Bureau of Justice Statistics, National Crime Victimization Survey, Victimization During Household Burglary (Sept. 2010) (finding that a household member experienced some form of violent victimization in 7% of all household burglaries from 2003 to 2007); Richard S. Culp et al., Is Burglary a Crime of Violence? An Analysis of National Data 1998-2007, at 29 (2015), available at https://www.ncjrs.gov/pdffiles1/nij/ grants/248651.pdf (concluding that 7.6% of burglaries between 1998 and 2007 resulted in actual violence or threats of violence, while actual physical injury was reported in only 2.7% of all burglaries); see also United States Department of Justice, Federal Bureau of Investigation, Uniform Crime Report, Crime in the United States (2014) (classifying burglary as a "property crime" rather than a "violent crime"). Second, based upon an analysis of offenders sentenced in fiscal year 2014, the Commission estimates that removing "burglary of a dwelling" as an enumerated offense in §4B1.2(a)(2) will reduce the overall proportion of offenders who qualify as a career offender by less than three percentage points. The Commission further estimates that removing the enumerated offense would result in only about five percent of offenders sentenced under USSG §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) receiving a lower base offense level than would currently apply. Finally, a Commission analysis of recidivism rates for career offenders released during calendar years 2004 through 2006 indicates that about five percent of such offenders were rearrested for a burglary offense during the eight years after their release. In reaching this conclusion, the Commission also considered that courts have struggled with identifying a uniform contemporary, generic definition of "burglary of dwelling." In particular, circuits have disagreed regarding whether the requirement in Taylor v. United States, 495 U.S. 575, 598 (1990), that the burglary be of a "building or other structure" applies in addition to the guidelines' requirement that the burglary be of a "dwelling." Compare United States v. Henriquez, 757 F.3d 144, 148-49 (4th Cir. 2014); United States v. McFalls, 592 F.3d 707 (6th Cir. 2010); United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) with United States v. Ramirez, 708 F.3d 295, 301 (1st Cir. 2013); United States v. Murillo-Lopez, 444 F.3d 337, 340 (5th Cir. 2006); United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. 2009); United States v. McClenton, 53 F.3d 584 (3d Cir. 1995); United States v. Graham, 982 F.2d 315 (8th Cir. 1992). Although "burglary of a dwelling" is deleted as an enumerated offense, the amendment adds an upward departure provision to §4B1.2 to address the unusual case in which the instant offense or a prior felony conviction was any burglary offense involving violence that did not otherwise qualify as a "crime of violence." This departure provision allows courts to consider all burglary offenses, as opposed to just burglaries of a dwelling, and reflects the Commission's determination that courts should consider an upward departure where a defendant would have received a higher offense level, higher Criminal History Category, or both (e.g., where the defendant would have been a career offender) if such burglary had qualified as a "crime of violence." Finally, the amendment adds offenses that involve the "use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or an explosive material as defined in 18 U.S.C. §841(c)" to the enumerated list at §4B1.2(a)(2). This addition is consistent with long-standing commentary in §4B1.2 categorically identifying possession of a firearm described in 26 U.S.C. §5845(a) as a "crime of violence," and therefore maintains the status quo. The Commission continues to believe that possession of these types of

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weapons (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) inherently presents a serious potential risk of physical injury to another person. Additionally, inclusion as an enumerated offense reflects Congress's determination that such weapons are inherently dangerous and, when possessed unlawfully, serve only violent purposes. See also USSG App. C, amend. 674 (eff. Nov. 1, 2004) (expanding the definition of "crime of violence" in Application Note 1 to §4B1.2 to include unlawful possession of any firearm described in 26 U.S.C. §5845(a)).

Enumerated Offense Definitions The amendment also adds definitions for the enumerated offenses of forcible sex offense and extortion. The amended guideline, however, continues to rely on existing case law for purposes of defining the remaining enumerated offenses. The Commission determined that adding several new definitions could result in new litigation, and that it was instead best not to disturb the case law that has developed over the years. As amended, "forcible sex offense" includes offenses with an element that consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. Consistent with the definition in §2L1.2 (Unlawfully Entering or Remaining in the United States), this addition reflects the Commission's determination that certain forcible sex offenses which do not expressly include as an element the use, attempted use, or threatened use of physical force against the person of another should nevertheless constitute "crimes of violence" under §4B1.2. See also USSG App. C, amend. 722 (eff. Nov. 1, 2008) (clarifying the scope of the term "forcible sex offense" as that term is used in the definition of "crime of violence" in §2L1.2, Application Note 1(B)(iii)). The new commentary also provides that the offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. §2241(c), or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States. This addition makes clear that the term "forcible sex offense" in §4B1.2 includes sexual abuse of a minor and statutory rape where certain specified elements are present. "Extortion" is defined as "obtaining something of value from another by the wrongful use of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury." Under case law existing at the time of this amendment, courts generally defined extortion as "obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats" based on the Supreme Court's holding in United States v. Nardello, 393 U.S. 286, 290 (1969) (defining "extortion" for purposes of the Hobbs Act). Consistent with the Commission's goal of focusing the career offender and related enhancements on the most dangerous offenders, the amendment narrows the generic definition of extortion by limiting the offense to those having an element of force or an element of fear or threats "of physical injury," as opposed to non-violent threats such as injury to reputation.

Departure Provision at §4B1.1 Finally, the amendment adds a downward departure provision in §4B1.1 for cases in which one or both of the defendant's "two prior felony convictions" is based on an offense that is classified as a misdemeanor at the time of sentencing for the instant federal offense.

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An offense (whether a "crime of violence" or a "controlled substance offense") is deemed to be a "felony" for purposes of the career offender guideline if it is punishable by imprisonment for a term exceeding one year. This definition captures some state offenses that are punishable by more than a year of imprisonment, but are in fact classified by the state as misdemeanors. Such statutes are found, for example, in Colorado, Iowa, Maryland, Massachusetts, Michigan, Pennsylvania, South Carolina, and Vermont. The Commission determined that the application of the career offender guideline where one or both of the defendant's "two prior felony convictions" is an offense that is classified as a misdemeanor may result in a guideline range that substantially overrepresents the seriousness of the defendant's criminal history or substantially overstates the seriousness of the instant offense. While recognizing the importance of maintaining a uniform and consistent definition of the term "felony" in the guidelines, the Commission determined that it is also appropriate for a court to consider the seriousness of the prior offenses (as reflected in the classification assigned by the convicting jurisdiction) in deciding whether the significant increases under the career offender guideline are appropriate. Such consideration is consistent with the structure used by Congress in the context of the Armed Career Criminal Act. See 18 U.S.C. §921(a)(20) (providing, for purposes of Chapter 44 of Title 18, that "crime punishable by imprisonment for a term exceeding one year" does not include a State offense classified as a misdemeanor and punishable by two years or less). It is also consistent with the court's obligation to account for the "nature and circumstances of the offense and the history and characteristics of the defendant." See 18 U.S.C. §3553(a)(1). Amendment: §4B1.2. Definitions of Terms Used in Section 4B1.1

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened

use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated

assault, a forcible sex offense, robbery, burglary of a dwelling, arson, or extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c) involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

(b) The term "controlled substance offense" means an offense under

federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance

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(or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

(c) The term "two prior felony convictions" means (1) the defendant

committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of §4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contendere.

Commentary

Application Notes: 1. Definitions. – For purposes of this guideline –

"Crime of violence" and "controlled substance offense" include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. "Forcible sex offense" includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. §2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

"Extortion" is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

"Crime of violence" does not include the offense of unlawful possession of a firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. §5845(a). Where the instant offense of conviction is the unlawful possession of a firearm by a felon, §2K2.1 (Unlawful Receipt, Possession, or Transportation of

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Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) provides an increase in offense level if the defendant had one or more prior felony convictions for a crime of violence or controlled substance offense; and, if the defendant is sentenced under the provisions of 18 U.S.C. §924(e), §4B1.4 (Armed Career Criminal) will apply.

Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. §841(c)(1)) is a "controlled substance offense."

Unlawfully possessing a firearm described in 26 U.S.C. §5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a "crime of violence".

Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. §843(a)(6)) is a "controlled substance offense."

Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. §856) is a "controlled substance offense" if the offense of conviction established that the underlying offense (the offense facilitated) was a "controlled substance offense."

Using a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C. §843(b)) is a "controlled substance offense" if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a "controlled substance offense."

A violation of 18 U.S.C. §924(c) or §929(a) is a "crime of violence" or a "controlled substance offense" if the offense of conviction established that the underlying offense was a "crime of violence" or a "controlled substance offense". (Note that in the case of a prior 18 U.S.C. §924(c) or §929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under §4A1.2 (Definitions and Instructions for Computing Criminal History).)

"Prior felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant's eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).

2. Offense of Conviction as Focus of Inquiry.—Section 4B1.1 (Career Offender)

expressly provides that the instant and prior offenses must be crimes of violence or controlled substance offenses of which the defendant was convicted. Therefore, in determining whether an offense is a crime of violence or controlled substance for the purposes of §4B1.1 (Career Offender), the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of inquiry.

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3. Applicability of §4A1.2.—The provisions of §4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under §4B1.1.

4. Upward Departure for Burglary Involving Violence.—There may be cases in which

a burglary involves violence, but does not qualify as a "crime of violence" as defined in §4B1.2(a) and, as a result, the defendant does not receive a higher offense level or higher Criminal History Category that would have applied if the burglary qualified as a "crime of violence." In such a case, an upward departure may be appropriate.

* * *

§4B1.1. Career Offender

(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

(b) Except as provided in subsection (c), if the offense level for a career

offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply. A career offender's criminal history category in every case under this subsection shall be Category VI.

Offense Statutory Maximum Offense Level*

(1) Life 37 (2) 25 years or more 34 (3) 20 years or more, but less than 25 years 32 (4) 15 years or more, but less than 20 years 29 (5) 10 years or more, but less than 15 years 24 (6) 5 years or more, but less than 10 years 17 (7) More than 1 year, but less than 5 years 12

*If an adjustment from §3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by the number of levels corresponding to that adjustment.

(c) If the defendant is convicted of 18 U.S.C. §924(c) or §929(a),

and the defendant is determined to be a career offender under subsection (a), the applicable guideline range shall be determined as follows: (1) If the only count of conviction is 18 U.S.C. §924(c) or

§929(a), the applicable guideline range shall be determined using the table in subsection (c)(3).

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(2) In the case of multiple counts of conviction in which at least one of the counts is a conviction other than a conviction for 18 U.S.C. §924(c) or §929(a), the guideline range shall be the greater of—

(A) the guideline range that results by adding the

mandatory minimum consecutive penalty required by the 18 U.S.C. §924(c) or §929(a) count(s) to the minimum and the maximum of the otherwise applicable guideline range determined for the count(s) of conviction other than the 18 U.S.C. §924(c) or §929(a) count(s); and

(B) the guideline range determined using the table in

subsection (c)(3).

(3) Career Offender Table for 18 U.S.C. §924(c) or §929(a) Offenders

§3E1.1 Reduction Guideline Range for the 18 U.S.C.

§924(c) or §929(a) Count(s)

No reduction 360-life 2-level reduction 292-365 3-level reduction 262-327.

Commentary

Application Notes:

1. Definitions.—"Crime of violence," "controlled substance offense," and "two prior felony convictions" are defined in §4B1.2.

2. "Offense Statutory Maximum".—"Offense Statutory Maximum," for the purposes of

this guideline, refers to the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense, including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant's prior criminal record (such sentencing enhancement provisions are contained, for example, in 21 U.S.C. §841(b)(1)(A), (B), (C), and (D)). For example, in a case in which the statutory maximum term of imprisonment under 21 U.S.C. §841(b)(1)(C) is increased from twenty years to thirty years because the defendant has one or more qualifying prior drug convictions, the "Offense Statutory Maximum" for that defendant for the purposes of this guideline is thirty years and not twenty years. If more than one count of conviction is of a crime of violence or controlled substance offense, use the maximum authorized term of imprisonment for the count that has the greatest offense statutory maximum.

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3. Application of Subsection (c).—

(A) In General.—Subsection (c) applies in any case in which the defendant (i) was convicted of violating 18 U.S.C. §924(c) or §929(a); and (ii) as a result of that conviction (alone or in addition to another offense of conviction), is determined to be a career offender under §4B1.1(a).

(B) Subsection (c)(2).—To determine the greater guideline range under

subsection (c)(2), the court shall use the guideline range with the highest minimum term of imprisonment.

(C) "Otherwise Applicable Guideline Range".—For purposes of subsection

(c)(2)(A), "otherwise applicable guideline range" for the count(s) of conviction other than the 18 U.S.C. §924(c) or 18 U.S.C. §929(a) count(s) is determined as follows:

(i) If the count(s) of conviction other than the 18 U.S.C. §924(c) or 18

U.S.C. §929(a) count(s) does not qualify the defendant as a career offender, the otherwise applicable guideline range for that count(s) is the guideline range determined using: (I) the Chapter Two and Three offense level for that count(s); and (II) the appropriate criminal history category determined under §§4A1.1 (Criminal History Category) and 4A1.2 (Definitions and Instructions for Computing Criminal History).

(ii) If the count(s) of conviction other than the 18 U.S.C. §924(c) or 18

U.S.C. §929(a) count(s) qualifies the defendant as a career offender, the otherwise applicable guideline range for that count(s) is the guideline range determined for that count(s) under §4B1.1(a) and (b).

(D) Imposition of Consecutive Term of Imprisonment.—In a case involving

multiple counts, the sentence shall be imposed according to the rules in subsection (e) of §5G1.2 (Sentencing on Multiple Counts of Conviction).

(E) Example.—The following example illustrates the application of subsection

(c)(2) in a multiple count situation:

The defendant is convicted of one count of violating 18 U.S.C. §924(c) for possessing a firearm in furtherance of a drug trafficking offense (5 year mandatory minimum), and one count of violating 21 U.S.C. §841(b)(1)(B) (5 year mandatory minimum, 40 year statutory maximum). Applying subsection (c)(2)(A), the court determines that the drug count (without regard to the 18 U.S.C. §924(c) count) qualifies the defendant as a career offender under §4B1.1(a). Under §4B1.1(a), the otherwise applicable guideline range for the drug count is 188-235 months (using offense level 34 (because the statutory maximum for the drug count is 40 years), minus 3 levels for acceptance of responsibility, and criminal history category VI). The court adds 60 months (the minimum required by 18 U.S.C. §924(c)) to the minimum and the maximum of that range, resulting in a guideline range of 248-295 months. Applying subsection (c)(2)(B), the court then

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determines the career offender guideline range from the table in subsection (c)(3) is 262-327 months. The range with the greatest minimum, 262-327 months, is used to impose the sentence in accordance with §5G1.2(e).

4. Departure Provision for State Misdemeanors.—In a case in which one or both of

the defendant's "two prior felony convictions" is based on an offense that was classified as a misdemeanor at the time of sentencing for the instant federal offense, application of the career offender guideline may result in a guideline range that substantially overrepresents the seriousness of the defendant's criminal history or substantially overstates the seriousness of the instant offense. In such a case, a downward departure may be warranted without regard to the limitation in §4A1.3(b)(3)(A).

Background: Section 994(h) of Title 28, United States Code, mandates that the Commission assure that certain "career" offenders receive a sentence of imprisonment "at or near the maximum term authorized." Section 4B1.1 implements this directive, with the definition of a career offender tracking in large part the criteria set forth in 28 U.S.C. §994(h). However, in accord with its general guideline promulgation authority under 28 U.S.C. §994(a)-(f), and its amendment authority under 28 U.S.C. §994(o) and (p), the Commission has modified this definition in several respects to focus more precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate and to avoid "unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct . . . ." 28 U.S.C. §991(b)(1)(B). The Commission's refinement of this definition over time is consistent with Congress's choice of a directive to the Commission rather than a mandatory minimum sentencing statute ("The [Senate Judiciary] Committee believes that such a directive to the Commission will be more effective; the guidelines development process can assure consistent and rational implementation for the Committee's view that substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers." S. Rep. No. 225, 98th Cong., 1st Sess. 175 (1983)). Subsection (c) provides rules for determining the sentence for career offenders who have been convicted of 18 U.S.C. §924(c) or §929(a). The Career Offender Table in subsection (c)(3) provides a sentence at or near the statutory maximum for these offenders by using guideline ranges that correspond to criminal history category VI and offense level 37 (assuming §3E.1.1 (Acceptance of Responsibility) does not apply), offense level 35 (assuming a 2-level reduction under §3E.1.1 applies), and offense level 34 (assuming a 3-level reduction under §3E1.1 applies).

* * *

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