6th Circuit Criminal Law News - U.S. Sixth Circuit
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The Sixth Circuit is seeing a lot action lately on the same sex marriage front, with all four states in the circuit facing appeals on the issue. As the Sixth Circuit will join the national debate on same sex marriage, we also have other cases making progress though the courts related to hate crimes and a death row inmate's attempt at a second chance.

Read on for details ...

We read so many denials of petitions for writ of habeas corpus, that when we come across one that reverses a denial of a petition, our ears perk up.

But when a circuit panel votes to rehear the case en banc, then we are all ears. Here's a breakdown on the latest rehearing en banc granted by the Sixth Circuit.

It's no secret that the Sixth Circuit is having some trouble with crack sentencing. But it's not just Fair Sentencing Act changes, or retroactivity, or their own muddled precedent that they keep botching. They're also having issues with differentiating a felony from a misdemeanor for purposes of priors and with statutes of limitations.

To be fair, this is all North Carolina's fault. Their determinative sentencing scheme, which takes into account past crimes, the nature of the present crime, and other individualized factors to determine an appropriate sentence is far more complicated than "give 'em a few decades." And the Sixth Circuit isn't the only circuit to struggle with NC's sentencing; the Fourth, being more local, has gone back-and-forth on the issue.

The police get a call. Someone is banging on the windows and trying to break into a house.

They respond. A guy is outside, holding a beer, and knocking on the door. He says that he is "here for [his] people." The police ask him to stop, frisk him, and find a .38 caliber revolver. Except he was there for his people, as in to help his people.

And he was a felon in possession of a firearm.

What kind of legal curiosities can arise when state and federal law conflict on the legality of cultivating medical marijuana?

Try this one: a marijuana-cultivating family in Michigan, which complied with state law regarding growing marijuana as caretakers (as for their sales... we'll get to that), was prosecuted in federal court using evidence obtained from a state court-issued warrant that was arguably invalid under state law.

Got all that?

Things are a bit clearer in the rear view mirror.

When a judge is presiding over a trial, and a juror swears, under oath, that he can't bear to look at the child porn that will be presented at evidence, and he had previously given indications that he couldn't be fair and impartial, you recuse him, right?

It seems clear in retrospect. It seemed clear to the Sixth Circuit court too, which issued an opinion subtly benchslapping the trial judge and reversing the conviction.

We've seen a lot of confusion emerge from the U.S. Supreme Court's decision last year in Miller v. Alabama. The Court issued a mushy standard to follow-up on two prior holdings, one banning the death penalty outright for minors, and another banning life-without-parole sentences for juveniles convicted of non-homicide offenses.

In Miller, the Court addressed homicide offenders, and held that while a life-without-parole sentence may be appropriate, there must first be consideration of the offender's age, childhood, life experience, degree of responsibility the youth was capable of exercising, and the chances for rehabilitation. The Court also implied that a life sentence is almost never appropriate.

Of course, that doesn't help those who have already been sentenced. Or does it?

If at first you don't succeed, don't try again?

A pair of brothers, Daniel and David LaDeau, allegedly exchanged coded messages while David was in jail. The messages contained information on how to obtain and conceal child pornography. Police obtained a warrant and searched Daniel's home, where they found USB flash drives containing child pornography.

Daniel was charged with one count of possessing child pornography (18 U.S.C. § 2252A(a)(5)(A)), an offense which carried up to 10 years in prison. It should have been a slam-dunk case, but the actions of investigators, who threatened to reveal the allegations to Daniel's ill wife, moments before she was headed into life-threatening surgery, led the district court to suppress the evidence.

Erica Lynn Hampton committed wire and access device fraud. What that entailed exactly, isn't particularly important. What is important is her plea deal.

Hampton pled guilty to two counts in exchange for dropping the remaining dozen or so, and agreed to forfeit assets in the amount of $69,540.01. She was also sentenced to 18 months imprisonment, followed by two years of supervised release.

Simple enough, right? One small problem: she is (and was at the time of sentencing) broke.

We've noted that the Sixth Circuit desperately needs to fix its Fair Sentencing Act crack resentencing jurisprudence, and it appears that they will do so soon. Oral argument in the en banc rehearing of Blewett v. United States were heard last week (recordings here), and for the sake of the attorneys and defendants involved in these cases, they really need to fix this.

As a quick refresher on the FSA confusion, the court decided Hammond, where it held that the FSA was not retroactive. It then ignored Hammond in Blewett and decided the case on Equal Protection grounds, stating that because the law had a disparate impact on black offenders, it was inherently racist, as was any judge who enforced it today. The opinion was pulled within weeks in favor of a rehearing. Multiple decisions since have vacillated between Hammond as controlling precedent and sheer confusion (a 1-1-1 split with no controlling holding).