Thursday, September 29th, 2016

Second Circuit Updates – September 29, 2016

Supreme Court to Decide Whether Johnson Applies to 18 U.S.C. 924(c)

The Supreme Court granted certiorari today in Lynch v. Dimaya, 15-1498, 2016 WL 3232911 (U.S., Sep. 29, 2016). The issue is whether the residual clause in 18 U.S.C. § 16(b), which has the same wording as the residual clause in 18 U.S.C. § 924(c), is void for vagueness under Johnson v. United States, 135 S. Ct. 2551 (2015). The Ninth Circuit held in Dimaya that Johnson applies to the residual clause in section 924(c) and there is a split in the Circuits. In light of certiorari grant, district judges should be urged not to deny Johnson claims involving section 924(c) convictions based on the Second Circuit’s decision in United States v. Hill, __ F.3d __, 2016 WL 4120667 (2d Cir. Aug.3, 2016). Courts should instead await the decision in Dimaya and resolution of the Hill rehearing petition and, if necessary, certiorari petition.

Broxmeyer III: Thirty Years for Sexting Stands

In Broxmeyer v. United States, No. 15-1732 (2d Cir. September 29, 2016)(summary order)(Katzman, Wesley and Hall), the Second Circuit today slams another door shut on Todd Broxmeyer, the field hockey coach who was sentenced to 30 years for attempted sexting with a 17-year-old player. The order affirms the denial of Broxmeyer’s § 2255 motion on the ground of ineffective assistance of counsel. It holds that the claimed failures of counsel at trial may have been reasonable strategic choices. These included counsel’s failure to elicit that an alleged victim visited Broxmeyer in jail after his arrest, counsel’s failure to put on a defense case, counsel’s advice to Broxmeyer not to testify, and counsel’s failure to object to inflammatory remarks in the prosecutor’s summation.

The § 2255 motion also raised ineffective assistance of counsel at Broxmeyer’s resentencing, which resulted in the 30-year sentence that was the subject of sharp disagreement in the Second Circuit. See, United States v. Broxmeyer (Broxmeyer II), 699 F.3d 265 (2d Cir. 2012), reh’g en banc denied, 708 F.3d 132 (2d Cir. 2013). Today’s summary order concludes that counsel’s failure to object to factual allegations in the PSR at the resentencing was not ineffective on the ground that 1)some objections were made at the first sentencing and the court’s failure to review those objections was raised and rejected on appeal and 2) the factual allegations newly raised at the resentencing were not relied on by the sentencing court. The Second Circuit’s previous opinion affirming the 30-year sentence imposed at resentencing, however,  blamed defense counsel for rejecting the sentencing court’s offer to review the factual objections. See Broxmeyer II, 699 F.3d at 278-280. It held that counsel’s action demonstrated “a true waiver of any such argument, precluding appellate review.” Id. at 279. Even in its alternative review of the issue for plain error, the Court’s ruling that the failure to comply with the Rule 32(i)(3)(B) mandate to rule on each factual objection was based largely on counsel’s failures. See id. at 280 (if Broxmeyer had concerns about the fact finding, “he was obliged to bring that to the district court’s attention” and “Broxmeyer never actually sought a hearing for that purpose, nor did he argue that it would be procedural error to rely on the accusations….”).

This case has a long history before the Court of Appeals and is notable for the two strong dissenting opinions by Judge Jacobs from the Court’s affirmance of the 30-year sentence, from both the panel opinion and from the denial of rehearing. (Broxmeyer II), 699 F.3d at 297-305 (2d Cir. 2012)(Jacobs, C.J., dissenting), reh’g en banc denied, 708 F.3d at 138 (2d Cir. 2013) (Jacobs, C.J. dissenting). It is worthwhile here to revisit these opinions and remind ourselves to use them because, as Johnson demostrates, dissents can become majority opinions.

Mr. Broxmeyer was originally convicted of five counts involving sexual misconduct with two teenaged girls on his field hockey team, but those convictions were vacated and dismissed on his first appeal, except for possession of child pornography and the attempted sexting (“production”), involving one 17-year old girl, “K.T.” This attempted production charge already carried a 15-year mandatory minimum sentence, but he was sentenced to 30 years based on the district court’s consideration of all the conduct underlying the vacated convictions. The Court of Appeals (Raggi, J.) affirmed the sentence essentially on the ground that it was appropriate to consider all of the unconvicted conduct as either relevant to the offense or to the sentencing factors, and setting forth in detail all of that conduct. 699 F.3d 265. Rehearing was subsequently denied, with Judge Raggi writing a concurrence in the denial. 708 F.3d 132.

In both dissents, Judge Jacobs emphasized the point that Broxmeyer was only convicted of asking a 17-year-old to send him a lewd picture of herself and argued eloquently that sentencing him for the unconvicted conduct was unreasonable. See 699 F.3d at 297; 708 F.3d at 138. Noting that the girl was of legal age to actually have sex in New York and that a nude picture of her only qualified as child pornography because of the 18-year-old age of consent in the federal statute, Judge Jacobs noted the “arresting irony that the only thing forbidden between Broxmeyer and K.T. was photography.”  699 F.3d at 298. Judge Jacobs objected that “the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting.” Id.

Judge Jacobs concluded that the sentence was procedurally unreasonable because enhancements were applied in a “mechanical, formalistic way,” that could not bear the weight assigned them and that the “pattern of abuse” enhancement was affirmed based on only the offense of conviction plus the conduct underlying one of the vacated counts, a different pattern than that found by the district court. Judge Jacobs took issue with the purely arithmetic notion of procedural reasonableness. Noting that the guidelines calculation yielded a sentence of life, which was only reduced to 30 years by the statutory maximum, Judge Jacobs delivered a memorable comparison: “something needs to be rethought when in a case like this, the Guidleines calculation yields a life sentence. That is the sentence imposed on Jeffrey Dahmer, who killed people, and ate them.” Id. at 303.

Judge Jacobs also concluded that the sentence was substantively unreasonable, even accepting the majority’s standard of “shocks the conscience”:

I don’t claim that my aging conscience is especially tender, but it is still capable of shock; and it is shocked by 30-year term of incarceration for the offense of attempting to persuade a woman who is of the age of consent to take a lewd photograph of herself and send it.

Id. at 304. In his dissent from the denial of rehearing en banc, Judge Jacobs set forth grounds for rehearing that could apply in many cases, including the piling on of enhancements that applied only in the most hypertechnical sense, where the conduct triggering the enhancements did not alter “the evil of the offense;” the disproportionality of Broxmeyer’s sentence compared to other sentences for similar conduct; the district court’s reliance on Broxmeyer’s entire history of unconvicted conduct and use of a single federal offense for a “comprehensive moral accounting;” and allowing the federal court to inflict punishment for conduct that constituted purely state offenses. 708 F.3d at 139-140.

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