Split Noted: Is Control Necessary for USSG 3B1.1?

Per United States v. Samolja (7th Cir. Jan. 25, 2013)

I rarely blog about unpublished cases, but two recent ones have caught my eye.  For other reasons, I cannot blog about one, out of the Fourth Circuit.

Here, however, the Seventh Circuit notes in passing (p.5 n.1) an intra-circuit split regarding whether   a defendant must control others in order to be eligible for an enhancement under U.S.S.G. 3B1.1.  Researching the split revealed that most circuits do require some degree of control, whereas the the CA10, and certain cases of the CA7, do not.

The majority is right.  Here is the relevant statutory text and commentary:

__(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

___(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

4. In distinguishing a leadership and organizational role from one of mere management or supervision, titles such as "kingpin" or "boss" are not controlling. Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense.

By definition, managers, supervisors, and leaders all exercise control.  While the definition of organizer could be broader, in theory, the statutory scheme confirms that it is not.

First,Organizers are equivalent to leaders, who must exercise control.  Second, control is inherent to management and supervision, which are deemed to be lesser included forms of organization.  Third, most tellingly, the commentary requires some "degree of control" for any form of organizing, leading, managing, and supervising.  Finally, if there is any degree of ambiguity remaining after reading the text and the canons, the rule of lenity would also favor a control requirement (circuits seem to uniformly apply lenity to the guidelines, though there is some question whether this application is appropriate).

Split Widened: Is the Definition of Arbitration a Matter of State or Federal Common Law?

Per Bakoss v. Certain Underwriters at Lloyds of London (2d Cir. Jan 23, 2012)

The Federal Arbitration Act announced a national policy in favor of arbitration, and the Supreme Court--through cases like Concepcion and CompuCredit--has been active in ensuring that policy is fulfilled.

Nonetheless, several circuit splits persist.  This split concerns the very foundation of the FAA, the meaning of "arbitration" in section 2:

A written provision in a . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . .  shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Is arbitration to be defined as a matter of federal common law, or a matter of state law?

The CA2 joins the CAs 1, 6, and 10 in applying federal common law.  (p.5.)  In contrast, the CAs 5 and 9 define arbitration with respect to state law.

The majority is clearly right.  The FAA was intended to announce a national policy.  Having that national policy limited by the vagaries of state definitions of arbitration makes no sense.

Despite a clear split, I am not sure this is a candidate for review.  Not only is the CA2 on the right side of the split (or, at the very least, the side of the split clearly favored by recent Supreme Court FAA jurisprudence), but the opposing decisions are also quite old and might be revisited by their respective circuits in light of the last 20 years of that Supreme Court jurisprudence.

On the note of federal common law, the "Erieblogging" series on Prawfsblog is quite informative for those who do not have Civ Pro nightmares.

Split Widened: Must The Statement, Or The Falsity, Be Material For 18 U.S.C. 922(a)(6)

Per United States v. Abramski (4th Cir. Jan. 22, 2013)

Former police officer Abramski was suspected of robbing a bank.  In the course of investigating that crime, for which the Government apparently found no evidence (p.5), FBI agents uncovered Abramski's purchase of a handgun for his uncle.  Abramski purchased the gun because he was able to obtain a favorable police-officer price, and he concealed the fact that his uncle, who was legally entitled to own guns, was the ultimate purchaser.

As a result of this discovery (and the lack of proof of bank robbery), Abramski was indicted for violating 18 U.S.C. 922(a)(6), making a false statement material to the lawfulness of a firearm sale.  In relevant part, the statute criminalizes:

[K]nowingly mak[ing] any false or fictitious oral or written statement . . . intended to deceive such [licensed] importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . .

(Emphasis added).  Abramski challenged the indictment, contending that the concealment of his uncle was not material because the uncle is legally entitled to purchase firearms.  The district court denied Abramski's motion, and Abramski pleaded guilty while reserving his right to appeal.  The Fourth Circuit affirms, in the process widening a split between the CA5 and the CAs 6, 11, and now 4.  (p. 12-13.)

The split concerns whether "material" simply modifies the statutory term "fact," or also modifies "false or fictitious."  Put another way, the split concerns whether the question answered falsely must be material (CA4, 6, 11), or whether the falsity of the answer must itself be material (CA5). 

I agree with the majority school.  The text of the statute indicates that material modifies fact.  Thus, Abramski's concession that the identity of the purchaser is sometimes material--e.g., where the purchaser cannot legally buy guns--dooms his argument. 

More importantly, to be material, a fact does not necessarily have to affect the outcome of the decision (here, the decision to sell the gun).  Instead, a fact must simply be "capable of influencing" the decision.  Kungys v. United States, 485 U.S. 759, 770 (1988).  The identity of the purchaser is capable of influencing the decision to sell a gun, because some individuals cannot buy guns.  Therefore, identity is material.

Split Widened: Must Evidence Be Admissible To Constitute Brady Material?

Per Johnson v. Folino (3d Cir. Jan. 16, 2013)

The standard of review governing alleged Brady violations is fairly well settled.  A new trial (or habeas) will be granted only if (1) the state suppressed (2) material evidence (3) favorable to the accused.

The split at issue here concerns the second factor, i.e., how to determine if the suppressed evidence is material.  Suppressed evidence is material if there is a reasonable probability of a different result if the evidence been disclosed. 

The CA4 holds, as a matter of law, that inadmissible evidence can never be material.  Other circuits--the CAs 1,2,6,11 and now 3--hold that while inadmissibility is a factor weighing against materiality, it is not a per se bar.

To be honest, the existence of this split surprised me.  The majority school is simply correct.  While inadmissibility is a factor (and perhaps a strong one) indicating that the supressed evidence could not have affected the trial, it is not outcome-determinative.  For example, inadmissible evidence may later become admissible for purposes of impeachment, or may lead to the discovery of additional, and admissible, evidence by altering case-preparation strategies.  And even if none of these events come to pass, the inadmissible evidence may at least alter case-presentation strategy, such as by inviting the jury to consider a theory that is plausible even though not supported by any (admissible) evidence.  

Thus, the CA4 is simply wrong.  Even the case it relies on goes beyond noting inadmissibility to show that the defense attorney would not have prepared any differently had the suppressed evidence been disclosed.

More generally, my Brady concern focuses mostly on the third factor--favorable to the accused.  I am baffled by the issue of how a prosecutor is supposed to determine what is, and what is not, favorable.

Consider, for example, the sentencing of a drug dealer.  Most prosecutors would think a former co-conspirator's admission regarding drug weight to be prejudicial.  Yet, in one of my cases, we successfully used this evidence to mitigate our defendant's personal responsibility and obtain a variance.  Nonetheless, had the prosecutor in that case not followed an open-file policy, he almost certainly would not have viewed the material as being subject to a Brady disclosure obligation.

My general line of work civil tort defense.  I am consistently surprised by the ability of most plaintiffs lawyers to turn any fact, no matter how harmful on its face, into an apparent strength.  Criminal defense attorneys often display the same adaptability.  Yet a strict interpretation of favorability would limit such adaptation.  Thus, I fall on the side of favoring open-file prosecutions in the interests of justice.

Split Created: Addict's Risk of Relapse As Disability Under ERISA

Per Colby v. Union Sec. Ins. Co. (1st Cir. Jan. 17, 2013)

I hated ERISA cases as a clerk.  They were like petitions for review of agency action, requiring record-intensive factual review in an area where the governing law is generally settled--i.e., defer to "reasonable" interpretations of statute/plan language provided there is "some evidence" to support factual positions.  Except that in ERISA, the "agency" record consisted of hundreds of pages of undecipherable doctor's scrawl and review of that record required some medical knowledge.

But enough about me, and onto this relatively straightforward split.  Can an ERISA plan administrator apply a per se rule barring disability benefits for on-the-wagon addicts?  The CA4 said yes, relapse is a choice not a disability.   The CA1 now says no, the present risk of relapse can (but does not have to) amount to a disability.  (See p. 16, 19-20.)  To the extent it influences your opinion, plaintiffs in both cases were anesthesiologists who became addicted to the drugs they administered.

I agree with the CA1.  The CA4's reasoning just looks sparse to me.  In essence, the CA4 ruled that the pre-existing division in precedent on this point ipso facto rendered the administrator's interpretation of the plan reasonable.  But the CA4 performed no analysis of the plan's text--i.e., the definition of disability--itself.  In contrast, the CA1 performs just such a textual analysis and demonstrates how addiction and risk of relapse fall within the plain language of the plan.

That said, I am not on board for all of the CA1 opinion.  For example, the Court bolsters its textual analysis with a reference to the contra proferentem doctrine.  (p. 17.)  But there is a circuit split on whether contra proferentem can ever apply to ERISA plans.  (CA9 yes; CA8 no).  Even assuming the doctrine could apply, moreover, its application is quite troubling where (as here) the plan administrator is explicitly granted discretion to resolve ambiguities.  Unlike certain canons of construction (such as expressio unius or noscitur a sociis), contra proferentem--like the rule of lenity--is a policy-based rule that only comes into play when the statute (or contract) is determined to be ambiguous.  But ambiguity should trigger the administrator's discretion not policy-based canons.  (This is the CA10's approach to contra proferentem in the ERISA context).

The existence of multiple circuit splits make this case an interesting candidate for review, especially where the Court semi-regularly grants cert to clarify ERISA jurisprudence.  If the Court does take cert, I hope it will deal with the contra proferentem issue in the broader context of Chevron deference.  The circuits are currently split on whether to apply traditional canons of statutory construction at Chevron step one, in determining whether the statute plainly addresses an issue.  My view is that some, but not all, of the canons should be applied.  More specifically, the text-based canons should be applied in determining whether Congress has spoken clearly, but not the policy-based canons, which operate more as a thumb on the scale than as an interpretative tool.

Since I opened with a side note, I might as well close with one.  It appears that the First Circuit must batch cases for each panel, and that this panel received the "circuit split" batch.  At least three of my previous posts have related to decisions also arising out of this same sitting.  As before, my best wishes go out to Judge Boudin and his family.

Split Created: What is a Second or Successive Habeas Petition

Per Suggs v. United States (7th Cir. Jan. 17, 2013)

AEDPA bars second or successive habeas petitions.  Here, the prisoner's first petition resulted in resentencing.  Now the prisoner challenges his conviction in a second petition.  Relying on past circuit precedent, a divided panel of the CA7 holds the petition barred, because the conviction issue could have been raised in the first petition.  (p. 8).

The CA2 and CA9 disagree.  (p. 11.)  The correct result is a very close call but I tend to agree with Judge Sykes' dissent and the other circuits:  The petition is not second or successive because the intervening resentencing creates a new judgment, and habeas petitions are directed at judgments.  At bottom, though, I question the panel procedure of the CA7.

The split revolves around the interpretation of a recent Supreme Court decision, Magwood v. Patterson, 130 S. Ct. 2788 (2010).  In Magwood, the Supreme Court held that a petition directed at the new sentence, following resentencing after an initial petition, could not be second or successive:  "[B]oth § 2254(b)'s text and the relief it provides indicate that the phrase 'second or successive' must be interpreted with respect to the judgment challenged." 

Magwood, however, specifically reserved the question here, and did so with a footnote apparently favorably citing past circuit practice:

The State objects that our reading of § 2244(b) would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction. . . .  This case gives us no occasion to address that question, because Magwood has not attempted to challenge his underlying conviction.[fn]

fn.:Several Courts of Appeals have held that a petitioner who succeeds on a first habeas application and is resentenced may challenge only the "portion of a judgment that arose as a result of a previous successful action."

This reservation and citation would seem at first glance to leave past precedent intact.  Nonetheless, the statutory interpretation of Magwood--that second or successive refers to judgments, not claims--fatally undermines past precedent and demands that any petition following a new sentence not be barred because there is a new judgment.

I do not fault the Seventh Circuit majority for following past precedent because it was not explicitly overruled.  This is a very close issue.  I do fault the panel, however, for not pre-circulating their opinion.  As this blog has previously noted, Seventh Circuit Local Rule 40(e) demands precirculation where, as here, an opinion creates a conflict among circuits.  Precirculation would have also been required had the opinion adopted the position of other circuits and overruled past precedent.

In sum, regardless of the position adopted, this case should have been considered for en banc review prior to publication.  And the en banc court may have felt more liberty to depart from past precedent to follow the logic of Magwood.

Split Noted: Is Cumulative Error Doctrine Clearly Established For AEDPA? Plus AEDPA Commentary

Per Lott v. Trammell (10th Cir. Jan. 24)

I will not claim to have read all of this 100+ page effort.  Given the length and the subject--AEDPA--I assume without basis that it capital case.

Ah, AEDPA.  The other 1996 statute that certain liberal jurists love to hate.  Nowadays, to grant habeas relief to a state prisoner, a federal court must find that the state court's decision was either (1) contrary to, or (2) an unreasonable application of, (3) clearly established Federal law.

The split noted here concerns the third element; whether the cumulative error doctrine is clearly established.  Clearly established Federal law is limited to the holdings of SCOTUS.   In finding cumulative error analysis clearly established, the CA9 cites three different SCOTUS cases.  On the opposite side of the split is, bizarrely, the CA6.  I say bizarrely because the CA6 has actually been spanked more times on AEDPA recently than the CA9.

 Even more bizarrely, at least for me, I believe the CA9 is right.  The holding of  Chambers v. Mississippi, 410 U.S. 284 (1973), is on point.  Chambers's "claim, the substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense."  Id. at 290 n.3.

But I actually want to discuss AEDPA's second element in light of some recent civil tort work I've been doing.  For a state court opinion to be "an unreasonable application of" Supreme Court law, it must be such that no reasonble jurist could possibly agree.  This standard is functionally the same as the "no reasonable litigant" standard established for objective baselessness by PRE, 506 U.S. 49, 55-61 (1993).

But there is one difficulty.  Any number of cases could be cited for the proposition that, if you get one judge (even in dissent) to agree with your position, that position cannot be objectively baseless as a matter of law.  Thus, for purposes of Noerr immunity, courts are willing to assume that all jurists act reasonably.

In contrast, any number of cases could be cited where habeas was granted based on a state appellate court's unreasonable application of Supreme Court law.  No longer is one lone voice enough to demonstrate reason.  Now federal courts are willing to overrule even a majority of their state brethren.

Obviously, this disparity can be explained by having a thumb on the scale of constitutional rights.  The any judge standard of PRE's progeny protects the First Amendment right to petition, while lack of any similar standard protects convicts right to due process.

But I think the more likely explanation is outcome-oriented jurisprudence.  In a private dispute, there generally are not any larger principles or constitutional visions at stake.  Whereas in habeas, the entire focus is on the larger principles of criminal justice.  Thus, even though the standards call for the same amout of deference, certain jurists are simply less willing to defer in the latter situation than the former.

Split Noted: Does Fed. R. Crim. P. 32(i)(1)(A) require an on-the record inquiry?

Per United States v. DeLeon (1st Cir. Jan. 11, 2013)

Federal Rule of Criminal Procedure 32(i)(1)(A) provides:  "At sentencing, the court must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report."  (Emphasis added)

The split noted (p. 13-14, n.7) in this CA1 opinion is whether the verification required by Rule 32(i)(1)(A) need be explicit and on the record.  The CA1,3,5, and 6 all hold that this specific inquiry need not be explicit, so long as it is clear from the record that the defendant and the attorney have discussed the report.  The CA7 requires an explicit inquiry.

I agree with the CA7.  After all, the definition of verify is to "prove the truth of, as by evidence or testimony."  (Emphasis added.) 

That said, I dont think the split matters at all.  First, if--as per majority school--it is apparent from the record that the defendant and the attorney have discussed the report, the failure to perform an explicit inquiry is necessarily harmless and should be disregarded.  Fed. R. Crim. P. 52(a).  Second, a district court could fail to make an explicit inquiry only if there is no objection.  Thus, appellate review of this issue will always be for plain error under Fed. R. Crim. P. 52(b).

Nonetheless, I think the better rule would be to instruct district courts that it is error (albeit virtually irreversible error) not to conduct an on-the-record inquiry into whether the defendant and attorney have reviewed and discussed the PSR.  Such an instruction would allow district courts to improve their sentencing checklists, and cohere more closely with the terms of the rule.

Split Widened: Yardstick by which to evaluate Governmental Interest in Medicating Criminal Defendant

Per United States v. Gutierrez (5th Cir. Jan. 11, 2013)

Sell v. United States, 539 U.S. 166 (2003), sets the due process standard for forcibly medicating a criminal defendant in order to achieve competency.  In brief, the government must show "[1] the treatment is medically appropriate, [2] is substantially unlikely to have side effects that may undermine the fairness of the trial, and, [3] taking account of less intrusive alternatives, is necessary significantly to further [4] important governmental trial-related interests."  Id. at 179.

Sell provided additional instructions concerning each of its four factors.  The split at issue in this case (p. 13) concerns the fourth Sell factor, namely how to determine if the government has important trial-related interests.  Sell listed a number of subfactors bearing on this inquiry, including:

• whether the crime is serious,
• the availability of civil commitment, and
• the potential length of confinement after medication and trial.

Id. at 180.

Most circuits, including now the CA5, look to statutory maxima authorized for the indicted crimes to determine both whether the crime is serious and the potential length of confinement.  (See p. 13, citing decisions from the CA2, CA4, and CA10.)  In contrast, the CA9 looks to the probable guidelines range rather than the statutory maxima.

The CA5 provides a number of strong reasons for its view, including that the guidelines range cannot be determined without a pre-sentence investigation into the offender's history and characteristics, and even it could be, the guidelines range remains only advisory. 

Nonetheless, I come down somewhere in the middle of the split.  A court should not consider only the guidelines range, for the reasons stated by the CA5, but neither should a court consider only the statutory maxima, which are so rarely imposed.  Instead, both yardsticks can be used together.  A trial judge can use his experience--as under Twiqbal's plausibility standard--to determine what weight to give each yardstick.

At bottom, this split is likely caused by the use of a muddled, multi-factor due process test, and the inherent subjectivity of words like "important."  The legal realist in me assumes that with such fuzzy tests, trial judges likely first arrive at what they view to be the appropriate result, and only then express their reasoning in a manner permitted by precedent.  Recognizing this, I believe it better to permit trial judges to consider, and express, all relevant factors.  And, for the reasons explained by courts on both sides of this split, the guidelines and the maxima are both relevant considerations.

Split Noted: Individual Public Employer Liability Under The FMLA

Per Diaz v. Mich. Dep't of Corr. (6th Cir. Jan. 7, 2013)

The Family Medical Leave Act (FMLA) conains both family-care and self-care provisions authorizing suits against employers--including public agencies--for monetary damages and injunctive relief.  The Supreme Court has held that money damages are obtainable in family-care suits against public employers, because those provisions were passed pursuant to Congress's authority to enforce the Fourteenth Amendment and therefore abrogate sovereign immunity.  Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 725 (2003).  Similar money damages suits based on the self-care provisions, however, are not permitted because the self-care provisions do not enforce the Fourteenth Amendment.  Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1332 (2012).

Plaintiffs in this case attempt to work around Coleman, bringing 1983 "and laws" suits to enforce the self-care provisions.  And they are partially successful. 

In a well-reasoned opinion, the CA6 holds that the damages claims fail for multiple reasons (more on that anon).  Nonetheless, the court reverses the dismissal of the equitable claim for reinstatement by analogy to Ex Parte Young.

Among the reasons for dismissal of the damages claims were that the claims were pleaded against individual, rather than corporate, public employers.  The CA6 notes an entrenched split between the CA6 and CA11, on one hand, and CA8 and CA5 on the other, concerning whether individual public employer liability is permissible.  (p.8.)  Having reviewed the relevant cited cases, I applaud both the CA6 and the CA5 for their indepth analysis of the issue.  IMO, The CA5 has the best of the argument.

Here is the relevant statutory language defining employer:

(4) Employer


     (A) In general

     The term “employer”—

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii) includes—

(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

(II) any successor in interest of an employer;

(iii) includes any “public agency”, as defined in section 203 (x) of this title; and

(iv) includes the Government Accountability Office and the Library of Congress.

     (B) Public agency

For purposes of subparagraph (A)(iii), a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce.

29 U.S.C. 2611 (emphases added).  Given this text, it is clear that 4(A)(ii)(I) creates individual liability for supervisory employees, while 4(A)(iii) creates public employer liability.

The recursive nature of the text, i.e., the use of the term employer in the definition of employer, shows that public supervisory employees may be liable.  Witness the substitution of 4(A)(iii) for employer in 4(A)(ii)(I):

(I) any person who acts, directly or indirectly, in the interest of a[] public agency to any of the employees of such public agency; and

Further, as the CA5 convincingly demonstrates, the CA6's two arguments against individual liability ultimately fail.  (A third argument is omitted here for space.)

First, the CA6 relies on statutory structure, noting the separation between distinctly enumerated provisions (ii) and (iii).  This argument fails because the statute indicates that romanettes i-iv are all linked by use of the serial semi-colon: "(i) . . .; (ii) . . .; (iii) . . . ; and (iv)."  Moreover, it also overlooks the recursion of the term employer.

Second, the CA6 relies on what it discerns to be superfluity.  Specifically, it submits that recursion analysis, when combined with the difference between "means" in (i) and includes in (iii) renders the definition of public agency superfluous because (iii) is already included in (i).  Not so.  By including "public agency" in (iii), the statute expands the meaning of employer solely with respect to public agencies and relieves a plaintiff of the need to prove that the agency  "e,ploys 50 or more people . . . . ."

In all, good efforts by both courts, but I agree with the CA5.  Two parting notes.  One argument in favor of the CA6 is the definition of public agency fails to require that the agency be, well, public.  This omission is likely what prompted the superfluity point.  Nonetheless, I think this omission can be remedied by the very term being defined.

Second, in light of the immunity discussion above, you might wonder why the strict construction canon does not come into play.  Once again, the CA5 has a ready answer.  As a general rule the Eleventh Amendment does not bar suits against officers in their individual capacities. Hudson v. City of New Orleans, 174 F.3d 677, 687 n. 7 (5th Cir. 1999).

Split Noted: Is U.S.S.G. 3E1.1(b) Mandatory or Permissive?

Per United States v. Castro (3d Cir. Jan. 8, 2013)

U.S.S.G. 3E1.1 reduces the offense level of a criminal who accepts responsibility for the crime.  It has two parts.  First, a two-level adjustment is appropriate "[i]f the defendant clearly demonstrates acceptance of responsibility."  Id. 3E1.1(a).  Second, an additional one-level decrease is called for if (1) the first section is satisfied, (2) the offense level prior to the first section is >15, and (3) the government formally requests.  In full, the second part provides:

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level

Id. 3E1.1(b) (emphases altered). 

The Third Circuit notes a split between the CA5 and the CA7 concerning whether this second provision remains discretionary with the court, or is mandatory upon satisfaction of the prerequisites, respectively.  (p. 29.)  Reviewing the cited opinions, the split appears to be lopsided in favor of discretion, in large part based upon one of the application notes:

Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.

Id. cmt. n.6 (emphasis added).

Once again, I find myself in the minority, viewing the guideline as mandatory.  The plain text of the Guideline itself is in the imperative, follows the familiar "if . . . then" framework, and does not admit of discretion.  While the comment does sound a note of discretion with the use of may, it also notes that the Government, not the Court, is in the best position to exercise the discretion.  Further, guidelines trump comments in cases of inconsistency.  United States v. Stinson, 508 U.S. 36, 38 (1993). 

Finally, a mandatory reading does not eliminate judicial discretion for two reasons.  First, the judge determines whether section (a) applies, and thus whether one of section (b)'s prerequisites is satisfied.  Second, if the judge still disagrees with the adjustment, he can simply impose a variant sentence under the 3553(a) factors and tie the variance to what the offender's guidelines range would have been without the additional one-level downward adjustment.

UPDATE:  additional coverage from
Split Circuits: Third Circuit Declines to Weigh in on Split Re Whether Adjustment under Guideline 3E1.1(b) Is Mandatory under Certain Circumstances

Split Noted: Is The Stain Of Conviction A Collateral Consequence

Per Murray v. United States (1st Cir. Jan. 4, 2013)

A petition for the writ of coram nobis, or its lesser known cousin coram vobis, is often the last desperate filing made by a post-jailhouse lawyer.  The writ permits correction of "fundamental" errors in order to "achieve justice" when "no other remedy" is available.

The writ has been abolished in civil actions, superceded by Rule 60.  But it lives on in criminal actions.  In large part, it exists to provide review of convictions after the prisoner has served his sentence.

There is little enough jurisprudence regarding the legal standard applicable to the writ.  Nonetheless, the circuits appear to agree on certain fundamental elements that a petitioner/convict must prove:

1. a fundamental error in the prior proceedings
2. reasonableness in not having acted earlier (i.e., though habeas)
3. collateral consequences from the prior proceedings (standing)
4. interests of justice require granting the writ (no alternative remedy)

In this case, the First Circuit briefly notes  (11 n.6) an earlier decision (United States v. George, 676 F. 3d 249, 254 (1st Cir. 2012)) which described a circuit split on whether a conviction, standing alone, can satisfy the third element.  The CA1, CA2, CA3, CA5, and CA7 hold a conviction insufficient.  The CA4, CA9, and CA11 hold a conviction sufficient, and the CA6 has, sub silentio, done the same.

For me, the CA4, CA9, and CA11 have the better of the argument.  As the Supreme Court recently reiterated, albeit in the context of declining to extend the presumption:

 In the context of criminal conviction, the presumption of significant collateral consequences is likely to comport with reality.  As we said in Sibron, it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences."

Spencer v. Kemna, 523 U.S. 1, 12 (1997) (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)).  And in Sibron itself, the Court held:

[I]t is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State's right to impose it on the basis of some past action.

392 U.S. at 57.  So long as Sibron remains good law, as indeed it is, lower courts should apply a presumption of collateral consequences to criminal convictions.

Moreover, there is a larger point.  Assuming a petitioner proves the other elements for coram nobis, i.e., a fundamental error that was uncorrectable earlier, why should the petitioner (rather than the government) have the burden of proving collateral consequences?  The fundamental error, or the existence of a grave miscarriage of justice, should be sufficient, in itself, to overcome the interests of finality absent proof that the erroneous judgment has no effect.

Take, for example, two people convicted of honest-services fraud under 18 USC 1341 before McNally limited the statute to money or property fraud.  One is convicted in 1976 and sentenced to five years; the other convicted in 1986.  Should the former be deprived of the same remedy afforded the latter (i.e., expungement of his conviction) simply because simply because his appeals were exhausted and his sentence was served?  I think not.  Both did not commit a crime.  Both deserve to have their record and reputation restored, regardless of whether the former can actually prove a detrimental consequence.

Finally, the note on the first page of the First Circuit opinion suggests that Judge Boudin may be ill.  I have always admired Judge Boudin's intelligence and opinions.  I hope that my reading of the note is mistaken, but if it is not, I wish him all the best.

Split Widened: Parker Antitrust Immunity and Interlocutory Appeals

 Per Auraria Student Housing v. Campus Village Apts., LLC (10th Cir. Jan. 4, 2013)

Per an agreement between UC-Denver and Campus Village, a private apartment complex located a half mile from school, most incoming freshmen are required to live at Campus Villiage.   Auraria, another apartment complex located two miles from the school, alleges that this agreement violated the Sherman Act.

Campus Village appeals the denial  of its motion to dismiss, asserting state action/Parker immunity from the antitrust laws.  Auraria, in turn, moves to dismiss the appeal for want of jurisdiction.

The CA10 notes a split over whether a denial of Parker immunity, like a denial of qualified immunity, is immediately appealable under the Cohen doctrine.  The CA4 and CA6 say no; the CA5 and CA11 (and apparently others, including the CA7) say yes.  (p.3.)

The CA10 claims not to have to resolve this split, because it is dealing with a private party appeal, which even the CA5 would not permit.  Appeal dismissed.  (The CA11 would permit the appeal, however, so at least one split is widened.  (p. 7.))

I dont buy it.  But it likely doesn't matter given the Supreme Court's docket.

I honestly dont know where I come down on the general question of interlocutory appeals by actual public entities/officials (such as municipal governments).  My best guess is that Parker was a statutory interpretation case driven by a 10th/11th Amendment immunity, given the time at which it was decided, and so appeals should be permitted.  This is the logic of the CA5.  On the other hand, post-Garcia v. SAMTA, Parker could be viewed as a statutory interpretation case driven by federalism, not immunity, concerns.  (Leaving aside my views of Garcia, that case would seem to remove any constititional bar to having the Sherman Act apply to the states.)  This is the logic of the CA4 and CA6.

Regardless, once interlocutory appeals are permitted under Parker at all, I see no viable distinction between municipalities and private entities.  If the private entity's claim of Parker immunity is correct, it--like a municipal entity--is, in effect, an agent of the state tasked with carrying out the state policy and clothed authority of the state, i.e., a public official.  The only potential difference between a private entity and a municipal entity is that, for Parker to apply to a private entity, there must be active state supervision.  California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980).  But this distinction weighs in favor of, not against, interlocutory appeals.  Cf. Richardson v. McKnight, 521 U.S. 399, 413 (1997) (reserving question of whether qualified immunity would protect private prison guards if there had been active state supervision).

Nonetheless, I am not sure this discussion matters all that much.  First, if a state is actively supervising a private entity, and that private entity is sued, likely the state could appear as amicus to assert its own immunity.  The lack of intervention may give the lie to the claim of state authority.  Second, and more importantly, the Supreme Court recently heard argument in FTC v. Phoebe Putney Health Sys., Inc., and seemed inclined to impose a clear statement rule for state authorization of a private monopoly. 

Split Widened: Test for Reimbursement of Residential Placement Under IDEA

Per Jefferson County Sch. Dist. R-1 v. Elizabeth E. (10th Cir. Dec. 28, 2012)

IDEA is a font of federal litigation.  In this case, the Tenth Circuit widens an extant circuit split concerning the interpretation of 20 U.S.C. § 1412(a)(10)(C)(ii) by creating a new, third position.

The statute provides: 

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.
 

20 U.S.C. § 1412(a)(10)(C)(ii) (emphases added).  The italicized terms are defined elsewhere in the statute:

• Special education:  "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including . . . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings." 20 U.S.C. § 1401(29)(A). 
•  Related services: "transportation, and such developmental, corrective, and other supportive services (including . . . psychological services, . . . social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services . . . and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education" 20 U.S.C. § 1401(26)(A).
• Secondary school: "a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, as determined under State law. . . ." 20 U.S.C. § 1401(27)

In brief, then, the statute permits reimbursement of private educational expenses if (1) the public school did not provide free and appropriate public education (FAPE) , and (2) the private school is proper (or appropriate).  (See p. 10.)

The Tenth Circuit notes that the circuits have, to date, taken two approaches in determining whether (2) a private school is appropriate.  The CA1, CA2, CA3, CA4, CA6, CA8, CA9, CA11, and CADC all largely employ an "inextricably intertwined" test that evaluates whether the general purpose of the private  placement  and/or specific private services are "segregable" from the educational goal.  If segregable, not reimburseable; if not segregable, reimburseable.  (pp. 10-13, 20.)

In contrast, the CA5 and CA7 espouse a "primarily oriented" standard that examines whether (1) the general purpose of the private placement is primarily educational (as opposed to medical/social/etc.) by determining whether it is necessary to achieve an educational goal, and (2) the specific private expenses are related to that educational goal by determining if progress is measured by an educational yardstick.  (pp. 14, 20-21.)

After laying both these tests out, the Tenth Circuit declines to follow either.  Although it explicitly disclaims doing so (p. 21 n.5.), the CA10 adopts a new test tied directly to the statutory language:

(2) Determine whether the private placement is a state-accredited elementary or secondary school; if not, the placement is not reimbursable.  20 U.S.C. §§ 1412(a)(10)(C)(ii), 1401(27); then

(3) Determine whether the private placement provides special education, i.e., "specially designed instruction . . . to meet the unique needs of a child with a disability"; if the placement provides no such instruction, it is not reimbursable.  Id. § 1401(29)(A).

(4) If the private placement provides additional services beyond specially designed instruction to meet the child's unique needs, determine whether such additional services can be characterized as "related services" under the Act.

 (pp. 19-20.)

In all, my hat is off to the CA10.  As longtime readers know, Im a textualist.  And this test is the only one that adheres to the statute's text, as the opinion itself repeatedly points out.  Moreover, the opinion is also successful in pointing out the flaws in the other tests.  The segregable test is overinclusive, in the sense the dialysis is certainly necessary to an education, but not at all educational.  (p. 12.)  And the primarily oriented test is both over and under inclusive, in that it would exclude purely medical services necessary to allowing educational instruction, but include educational services that are not "required" for an appropriate education.  (p. 23.)

Again, an interesting split.  I hope other circuits take note.  But the case makes a poor vehicle because the lower courts (both district and administrative) concluded that reimbursement was proper under any of the tests.  (p. 15.)

Split Widened: Remedy for 6th Amendment Violations During Competency Hearings

Per United States v. Ross (6th Cir. Dec. 31, 2012)

Oh, the irony of law.  In a case of apparent first impression, (see p. 10), a divided panel of the Sixth Circuit concludes that it is statutory and constitutional error to permit a criminal defendant, who has already been deemed competent and waived representation, to represent himself at a later competency hearing.  (p. 8-9, 11.)

That's right.  First, the defendant was deemed competent.  Then, the competent defendant knowingly waived representation.  Third, at the request of the prosecutor, the district court held a second competency hearing where it permitted the defendant to represent himself.  Finally, and after conviction, the defendant claims error in permitting self-representation at the second competency hearing (when he had already invoked his right to self-representation).

One would think the doctrines of invited error and/or waiver would come into play.  But of course, those doctrines assume knowing and voluntary, i.e., competent, acts.

The circuit split comes in determining the remedy for this constitutional error, or classifying the type of error.  (See p. 16.)  Ordinarily, Sixth Amendment violations are treated as "structural" errors, with a per se rule of reversal regardless of prejudice.  The CA3--and now the CA6--applies that rule to denials of counsel at competency hearings.  Nonetheless, the CA10 and CADC have treated denial of counsel for a competency hearing as "trial" error, subject to constitutional harmless error analysis. 

Partially because of the bizarre facts of this case, I would be inclined to treat the error as "trial" error, in line with the approach of the CA10 and CADC.  The two traditional justifications for the "structural" error doctrine are not present. 

First, because the Court had already held a competency hearing and permitted Defendant to waive representation (at which times the Defendant was represented), there was no "structural defect affecting the framework within which the trial proceeds."  Arizona v. Fulminante, 499 U.S. 279, 310 (1991).  Instead, there was a mere "error in the . . . process" of this one hearing.  Id. 

Second, because the defendant had already been found competent to waive counsel initially, his lack of representation does not "necessarily render [the] criminal trial . . . unreliable."  Neder v. United States, 527 U.S. 1, 9 (1999).  Instead, the initial competency hearing, as well as the waiver of counsel hearing, create an situation where the error--like "trial" errors generally--may “be quantitatively assessed in the context of other evidence presented in order to determine whether [the procedure] was harmless beyond a reasonable doubt.”  Fulminante, 499 U.S. at 307-08.

Of course, my view depends on the particular facts of this case, whereas classification of constitutional errors must necessarily be done generally.  In all, an interesting circuit split and decision, but one not likely to get further review due to the fact-bound nature of the case and the split.

UPDATE:  additional coverage from Split Circuits