Monday, February 28, 2011

Tennessee Supreme Court Holds Records of IMEF Not Subject to Tennessee Open Records Act

The Tennessee Supreme Court held that because IMEF is neither the functional equivalent of a government agency nor subject to the requirements of the Public Records Act pursuant to Tennessee Code Annotated section 10-7-503(d), IMEF is not required to make its records available to the public. The supreme court reversed the judgment of the lower courts.

Plaintiff requested records from a nonprofit foundation pursuant to the Tennessee Public Records Act.  The nonprofit foundation refused the request, stating that the foundation was not a government agency and that the records were not public. Plaintiff filed a Petition for Access to Public Records in Hamilton County Chancery Court. Chancellor Peoples held that the records were available because the nonprofit foundation was the functional equivalent of a government agency. The Court of Appeals affirmed. The Supreme Court reversed and dismissed the case.

In addition to providing that government records are available for public inspection,the Public Records Act also provides that the records of certain nonprofit entities are available to the public. Tenn. Code Ann. § 10-7-503(d). At issue in this case is whether the legislative grant of access to records of nonprofit entities as provided in Tennessee Code Annotated section 10-7-503(d) applies to IMEF.  Because Chancellor peoples made a finding of fact that IMEF has no full time employees, the supreme court found that the less than two full time employees exemption applied.

What is instructive to lawyers, civil and criminal, plaintiffs to prosecutors, is that an open records request made to a nonprofit must consider two questions. First, is the nonprofit a functional equivalent to a governmental agency; and, second is the nonprofit, as it is organized, subject to the requirements of the Public Records Act? 

Saturday, February 26, 2011

Expungement Proper on Dismissed Counts of Indictment Even When There Is A Conviction on Other Counts


In this Davidson County case Tavara plead guilty to DUI and the state dismissed, nolle prosequi, the charge of aggravated assault before Judge Dozier. After a year Tavara filed a motion to to have the dismissed count expunged. The trial court denied the motion stating that since there was a conviction in one count of the indictment another count could not be dismissed. The defendant took a writ of certiorari to the Court of Criminal Appeals.

The pertinent statute is: Tennessee Code Annotated section 40-32-101(a). All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if the charge has been dismissed.

But later the statute says: A person shall not be entitled to the expunction of such person’s records in a particular case if the person is convicted of any offense or charge,including a lesser included offense or charge.

The court held that the trial court erred by denying Tavera’s motion to expunge the charge of aggravated assault.  A defendant may have a charge dismissed and expunged from an indictment where a guilty plea has been entered on another count.

Friday, February 25, 2011

Eleventh Circuit holds 18 U.S.C. § 924(j) allows for concurrent sentences

U.S. v. Julian, No. 09-13673 (February 22, 2011)

The issue before the Eleventh Circuit Court of Appeals was whether murder with a firearm in the course of a crime of violence and drug trafficking, in violation of 18 U.S.C. § 924(j), requires an imposition of consecutive, rather than concurrent, sentences?

Sentences for the use of a firearm in the course of a crime of violence, pursuant to 18 U.S.C. § 924(c), must run consecutive to any other sentences. However, 18 U.S.C. § 924(j), which applies to the use of a firearm in the course of a crime of violence causing death, does not include language requiring consecutive sentencing.

The defendant argued that 924(j) should be read separately from 924(c) because it is a separate offense, while the government argued that 924(c) applies to 924(j) as (j) is a sentencing factor rather than a separate offense. The Eleventh Circuit rejected the government’s argument, holding that concurrent sentences could be issued under 924(j).

Relying largely on the tools of statutory interpretation, the Eleventh Circuit reasoned that the plain language of 924(c) indicates that the consecutive sentence requirement applies only to a “term of imprisonment on a person under this subsection.” Also, the court held that subsection (j) is a separate offense rather than a sentencing factor, based on the pattern of construction of the statutory provisions: both subsection (c) and (j) begin with an offense, which are later followed by sentencing factors. Finally, the Eleventh Circuit reasoned that the legislature could have included mandatory language in subsection (j), but chose not to and, therefore, the legislature intended to omit the consecutive sentence requirement from 924(j).

The case was remanded to the District Court for resentencing. The Eleventh Circuit's decision was a departure from interpretations of the statute in both the Eighth and Tenth Circuits.

Thursday, February 24, 2011

CCA Rejects Overly Broad DUI Certified Question in Sequatchie County Case

In this Sequatchie County case before Judge Smith, the defendant pled guilty to first offense DUI and reserved a certified question of law for appeal to the Court of Criminal Appeals.  The CCA dismissed the appeal and found that the question was too broad and therefore the court was without jurisdiction.

The court citing State v. Preston, 759 S.W.2d 647 (Tenn. 1988), indicated the Supreme Court makes it explicit to the bench and bar exactly what the appellate courts require as prerequisites to the consideration on the merits of a certified question of law.

Partin’s certified question is as follows: "Whether the encounter between the Defendant and Deputy Gary Craft of the Sequatchie County Sheriff’s Department on November 14, 2008 on Fredonia Mountain Road in Sequatchie County and the subsequent observations, search, seizure and arrest of the Defendant by Deputy Craft were in violation of the United States and Tennessee Constitutions and the laws of the State of Tennessee."

The CCA agreed with the state that Partin failed to properly reserve his certified question because the question as written does not clearly identify the scope and limits of the legal issue presented.  The opinion instructs that other than a general statement referencing “the encounter,” Partin’s certified question sets out neither specific facts about the encounter that constitute a violation of the federal and state constitutions as well as the laws of Tennessee nor in what way the encounter violated the constitutions and laws.

The certified question as written in this case,the CCA found, would require a dissertation of search and seizure law, and “ this Court is not willing to do so without parameters set by the [defendant]. “   It is the defendants ’s burden to “reserv[e], articulat[e], and identify[ ] the issue.”  Pendergrass, 937 S.W.2d at 838. Because Partin failed to properly reserve his certified question of law, the CCA finds they are without jurisdiction to review the merits of his claim.

CCA Affirms That Pending Charges May Serve As A Basis For Revocation


In this Hamilton County case Judge Poole revoked Adams' probation after a community corrections violation. The Court of Criminal Appeals stated that the decision to revoke a community corrections sentence rests within the sound discretion of the trial court and will not be disturbed on appeal unless there is no substantial evidence to support the trial court’s conclusion that a violation occurred. State v. Harkins, 811 S.W.2d 79, 82-83 (Tenn. 1991). Pursuant to Tennessee Code Annotated section 40-35- 311(e), the trial court is only required to find that the violation of a community corrections sentence occurred by a preponderance of the evidence. In reviewing a trial court’s findings, the CCA stated that "this court must examine the record and determine whether the trial court has exercised a conscientious judgment rather than an arbitrary one. State v. Mitchell, 810 S .W.2d 733, 735 (Tenn. Crim. App. 1991)." Once there is sufficient evidence to establish a violation of a community corrections sentence, the trial court has the authority to revoke the community corrections sentence and order the original sentence to be served in confinement. Tenn. Code Ann. § 40-36-106(e)(4).

As most attorneys know, criminal conduct that is the basis of pending charges may serve as the basis for a revocation of a community corrections sentence. See, State v. Andrew B. Edwards, No. W1999- 01095-CCA-R3-CD, 2000 WL 705309, at *3 (Tenn. Crim. App. May 26, 2000), perm. app. denied (Tenn. Sep. 11, 2000). This opinion points out however, that the trial court cannot rely solely on the mere fact of an arrest or an indictment.  The State must introduce evidence “in order to establish the . . . commission of another offense.” Id.

In short, this CCA opinion directs that the State must produce evidence at the revocation hearing “to establish that the defendant committed the offense with which he has been charged.” State v. Lontrell Williams, No. W2009-00275-CCA-R3-CD, 2009 WL 3518171 at *3 (Tenn. Crim. App. Oct. 30, 2009). Significantly the court also added, "a defendant’s right to due process is not violated when the trial court denies a continuance of the revocation proceedings until the disposition of the pending criminal charges." This is drawn from precedent in State v. Carden, 653 S.W.2d 753, 755 (Tenn. Crim. App. 1983).

Wednesday, February 23, 2011

TN Supreme Court Affirms Johnson City Employee Conviction

Today the Tennessee Supreme Court affirmed the conviction of Danny Lynn Davis, an employee of Johnson City.  Davis was convicted in Washington County Criminal Court of theft of property, a Class B felony; official misconduct, a Class E felony; and twenty-five counts of forgery, Class E felonies.  Defendant was employed as the day-to-day coordinator of  Johnson City government.

Davis submitted bids for contracted construction work through Gray Home Improvements (GHI), a company he operated and his wife owned. When the bids were accepted, the Defendant hired subcontractors to perform the work for less than the bid amount and kept the difference for his personal use.
Davis alleged that Johnson City lacked standing to prosecute him for these crimes. The Supreme Court noted that Davis was prosecuted by the State of Tennessee under the State’s criminal code. See T.C.A. § 39-11-103 (2010) (“Every person . . . is liable to punishment by the laws of this state, for an offense committed in this state, except where it is by laws cognizable exclusively in the courts of the United States.”). The Court found that Davis is not entitled to dismissal of the prosecution on this basis.

Davis was sentenced to ten years (theft) and one year for each of the Class E felony convictions, all concurrent, to be served on one year of split confinement and the rest on probation.

Tuesday, February 22, 2011

Sixth Circuit Vacates and Remands Another Child Pornography Case

Today the Sixth Circuit released USA v. Howell.  Howell pleaded guilty to transporting, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), (2) & (5). The district court (Middle District of Tennessee) sentenced Howell to 135 months’ imprisonment, seventy-five months below the bottom of the 210-262 month term recommended by the presentence investigation report. 

On appeal, Howell argues that his sentence is invalid for being unreasonably long and because the district court did not decide whether or to what extent Howell withdrew from the charged criminal activity prior to his arrest; a claimed mitigating act about which Howell testified at sentencing. Fed. R. Crim. P. 32(i)(3)(B) (requiring ruling on any controverted sentencing matter or a determination that resolving the dispute is unnecessary). The Sixth Circuit agreed that the district court did not comply with the strict requirements of the rule and therefore vacated the sentence and remanded for resentencing.

The rub of the case is that Howell claims he renunciated and withdrew from the child pornography conspiracy and therefore should receive a sentence even further below the guidelines.  The government sees it differently and offered proof that images still existed at the time of arrest on Howell's computer and that he accessed them days prior to his arrest.  Quite a different position from Howell's assertion that it had been a year or more since he accessed them.

The problem for the Sixth Circuit was that the district court never resolved, as Rule 32(i)(3)(B) requires, that issue of whether, when or to what extent Howell ceased deliberately to possess or view images of child pornography.  Nor did the district court find that it need not resolve the issue for being irrelevant to the sentence or simply because the court would not consider the argument or evidence in formulating the sentence.

So now Howell get's a second sentencing hearing where he can argue that his  under-guideline sentence is too long and prosecutors can carefully demonstrate that he accessed images within days of arrest.  

Howell is not recommended for Full-Text publication.

Monday, February 21, 2011

Assault & Disorderly Conduct Jury Verdict in Knoxville Reversed By CCA


In State v. Harvey, the defendant was found guilty by a Knox County Criminal Court jury of assault, a Class A misdemeanor, and disorderly conduct, a Class C misdemeanor.  Because Harvey was denied his constitutional right to a jury trial when the trial court substituted a discharged alternate juror for a disqualified original juror during deliberations, CCA reversed the judgments and remanded the case for a new trial.  In this fifty-three (53) page opinion the court finds that defense counsel was right but for all the wrong reasons.

Rule 24(f)(2) addresses methods for selecting alternate jurors. It does not provide a procedure for substituting a juror after deliberations begin. The Supreme Court has said that a permissible procedure is “to discharge the entire panel, declare a mistrial, and continue the cause.” State v. Bobo, 814 S.W.2d 353, (Tenn. 1991). The choice of which option to pursue is a matter for the trial court’s discretion.  Also, a defendant may waive his right to a twelve-member jury (or any jury at all) and according to the opinion may "consent to go forward with eleven jurors."  See, Tenn. R. Crim. P. 23 & 24, for rules regarding jurors.

Domestic Abuse Ambiguous But Specific Enough For Conviction

This February Opinion from the Court of Criminal Appeals originated from Hamilton County Criminal Court, Poole, J., following a bench trial, where the defendant, Alan Dale Bobyarchick, was convicted of violating an order of protection, a Class A misdemeanor. See Tenn. Code Ann. § 39-13-113(g). In this direct appeal, he contends that, in the Order of Protection, the circuit court did not make any specific findings of fact that he committed domestic abuse, sexual assault, or stalking, and, therefore, he could not be convicted of violating the Order of Protection pursuant to Tennessee Code Annotated section 39-13-113(f)(3). CCA affirmed the judgment of the trial court. See, State v. BobyarchickBrian L. O’Shaughnessy, Chattanooga, for the appellant.

The CCA found that although the circuit court’s striking out of the first clause, stating “Domestic Abuse in that Respondent committed the acts alleged in the Petition” is somewhat ambiguous, it is clear that the circuit court made the specific finding that “Petitioner possesses a reasonable fear for her safety.” The CCCA did not follow  the defendant’s argument that it was improper to convict him under Tennessee Code Annotated section 39-13-113 because the circuit court did not make the required specific findings of fact in the Order of Protection.

Sunday, February 20, 2011

DUI Legislation Introduced in the Tennessee House 2011

The following are ten House Bills introduced in 2011 that effect DUI Laws in Tennessee.

  1. DUI Offenses - As introduced, lowers the DUI enhancement that would require an ignition interlock from .15 percent to .08 percent and removes the DUI enhancements that would require an ignition interlock relative to implied consent. HB0138
  2. DUI Offenses - As introduced, increases the classification of the offense for DUI with a child in the car from a Class A misdemeanor to a Class E felony; requires the court to report to the department of children's services the name of any person convicted of DUI who, at the time of such violation, was accompanied by a child and the person was the parent or legal guardian of such child. HB0141
  3. DUI Offenses - As introduced, increases the minimum time that a driver license may be revoked for third and fourth and subsequent DUI convictions from three and five years to six and eight years. HB0394
  4. DUI Offenses - As introduced, increases the application fee for a restricted license, after having a driver license suspended based on a failure by a driver to submit to tests determining blood alcohol content, from $20.00 to $50.00; increases the fine for both the offense and the delinquent act of underage driving while impaired from $250 to $500. HB0446
  5. DUI Offenses - As introduced, allows person issued a restricted driver license to drive to and from a doctor's office, hospital, pharmacy or other location to obtain necessary medical care or to obtain an item for which the person has a prescription. HB0582 
  6. DUI Offenses - As introduced, increases the penalty for the offense of boating under the influence of an intoxicant to approximate DUI penalties.HB0610
  7. DUI Offenses - As introduced, provides that if a person with a prior DUI commits another one and is being released on bail, rather than denying bond because the defendant poses a danger to the community, the court or judicial commissioner may set conditions on the bond to eliminate the danger posed by the defendant. HB0718
  8. Criminal Offenses - As introduced, creates a per se DUI offense for driving with Schedule I or II drugs in a person's system unless the person has a valid prescription for the Schedule II drug. HB0942
  9. DUI Offenses - As introduced, requires a court prior to accepting a guilty plea or a verdict or finding of guilty for a violation of Section 55-10-401, to review the defendant’s official driver record maintained by the department to determine the factual basis for determining whether a defendant is a repeat or multiple offender.HB1275 
  10. DUI Offenses - As introduced, requires an officer to immediately cause a driver to submit to a test to determine the alcohol or drug content of the driver's blood if the officer has probable cause to believe that the driver was driving under the influence and such driving resulted in an accident causing injury or death to another. HB1894
We will keep changes in the status in the legislation posted as it occurs.

Saturday, February 19, 2011

Case Limiting Victim Impact Statements on Writ to Supreme Court

At the Supreme Court’s conference on Feb. 18th, the Court considered whether to accept Utah v. Ott.  Ott reports the Utah Supreme Court's finding of ineffective assistance of counsel where trial counsel did not object to the state's impact victim proof. 

The Ott Petition for Writ presents the Supreme Court with an opportunity to decide whether the Court should overrule any remaining precedent in Booth v. Maryland 482 U.S. 496 (1987).  Of interest is whether the Court will decide if the Eighth Amendment erects a  per se bar against a victim's family members' characterizations and opinions about the crime, defendant, and appropriate sentence.

The Utah Supreme Court held in Utah v. Ott that counsel was objectively deficient for failing to object to victim impact evidence that addressed Mr. Ott’s character, chances for rehabilitation, and deserved sentence because such victim impact evidence clearly violates the Eighth Amendment when introduced in capital sentencing hearings.

The facts of Ott from the Utah opinion are:  
On one horrific night in the summer of 2002, Mr. Ott broke into the home of his wife, Donna Ott, who had recently filed for divorce. Knife in hand, Mr. Ott attacked Mrs. Ott’s boyfriend, Allen Lawrence.  He also stabbed his stepdaughter, Sarah Gooch.  Mr. Ott then set the house on fire.  All of the residents of the house escaped except Lacey Lawrence, Mr. Lawrence’s six-year-olddaughter, who died in the fire.  Mr. Ott eventually entered an Alford plea of guilty to aggravated murder in connection with Lacey’s death and pled guilty to other charges.  He was sentenced by a jury to life in prison without the possibility of parole... We hold that Mr. Ott’s counsel provided ineffective assistance because counsel failed to object to portions of the victim impact evidence.

In Payne v. Tennessee, the Supreme Court held that the Eighth Amendment does not bar, per se, victim impact evidence, but victim impact evidence may be inadmissible if the evidence is so prejudicial that it makes sentencing fundamentally unfair under the Due Process Clause.

Utah Prosecutors are urging the Court to accept the case and to get rid of whatever is left of Booth.  The Petition directs the court to Booth and states: 

In Booth..., this Court held that the Eighth Amendment erected a per se bar against a capital sentencing jury considering two types of victim evidence: (1) "victim impact evidence," which relates to the victim’s personal characteristics and the emotional impact of the victim’s murder on family members, and (2) the victim’s family members’ characterizations and opinions about the crime, defendant, and appropriate sentence. In Payne v. Tennessee, the Court partially overruled Booth, holding that the Eighth Amendment did not bar victim impact evidence or the first type of victim evidence. Payne expressly left unanswered whether the Eighth Amendment still bars the second type of victim evidence.

The questions presented are:

1. Should this Court overrule the remaining part of Booth holding that the Eighth Amendment erects a per se bar against a victim’s family members’ characterizations and opinions about the crime, defendant, and appropriate sentence?

2. To the extent that any part of Booth survives, does it apply to a sentencing proceeding in which death is not an option.

Counsel for Ott thinks not and says:

The Court should not overrule Booth's proscription of victim opinion testimony.   Booth is an important part of the fabric of our capital  sentencing law which has  been followed by the lower courts without  difficulty for over twenty years.  The portion of Booth pertaining to victim opinion evidence was soundly reasoned, and there is no persuasive reason to reconsider it.

Many Court watchers think that there is good reason to believe that the Court will accept the petition in Utah v. Ott to decide what, if anything, is left of Booth and whether there are limits as to victim witness proof. 

Friday, February 18, 2011

Sixth Circuit Vacates and Remands Conviction in Child Pornography Case

United States of America v. Daniel Szymanski
In US v. Szymanski, Merritt, J. decided with Rogers and White to vacate and remand the guilty plea conviction of Daniel Szymanski.  Szymanski pled guilty without a plea agreement to receiving child pornography; he was sentenced to five years the statutory minimum sentence for the offense.  On appeal the Court raised, sua sponte, the validity of Szymanski's guilty plea. The court ruled that the defendant must have had knowledge that the material he received featured minors engaged in explicit sexual conduct.  Significantly, the court found that Szymanki was not adequately informed of the scienter requirement that the receipt of child pornography charge requires.

The Sixth Circuit followed United States v. X-Citement Video, Inc. 513 U.S. 64, 80-82 (1994). The Supreme Court held that the "knowingly" requirement of 18 U.S.C. 2252 (a)(2) extends to both the sexually explicit nature and to knowledge of the age of the performers.  Here, the Court states that in order for a defendant to be convicted of receiving child pornography he must have known, not only that he was receiving something, but that what he was receiving was child pornography.

Receipt of child pornography carries a mandatory minimum of five years imprisonment and possession of pornography carries no minimum sentence.  The similarity of the offences and the potential for gross disparity of the sentences gives the prosecutor the power to determine the sentence of a defendant on virtually identical crimes.

Thursday, February 17, 2011

TN Death Penalty Procedure Constitutional says Chancellor

Nashville—Chancellor Claudia Bonnyman  changed her previous position and ruled yesterday that Tennessee’s lethal injection procedures are constitutional.
Chancellor Bonnyman's decision allows prosecutors to ask the Tennessee Supreme Court to reset the execution date for death row inmate Stephen Michael West. Lawyers for West will undoubtably appeal Bonnyman's ruling.
In November West’s lawyers argued that inmates are awake and in pain during the execution when given the drugs that paralyze the muscles and stop the heart. The Chancellor agreed then and said the method of execution was unconstitutional because it allowed for "death by suffocation while the prisoner is conscious."
In Tennessee’s method of execution, the first drug, sodium thiopental, renders the inmate unconscious. Next, the inmate is given pancuronium bromide to paralyze the muscles, then potassium chloride to stop the heart causing death.
Apparently the change of mind by Chancellor Bonnyman is due to new procedures adopted that allegedly reduce the chances of a defendant remaining conscious after receiving sodium thiopental.
West received the death penalty for a horrible double murder in Davidson County.

Wednesday, February 16, 2011

DUI Law Causing Confusion on Bond Issues

Magistrate judges in Nashville have been holding people suspected of dui for up to five days upon arrest is some cases and are routinely holding people for 2-3 days. Such actions by magistrate judges have been widely reported in Nashville.  It appears to be based upon a misunderstanding by the magistrates about the new Tennessee DUI laws that took effect on Jan. 1, 2011. 
At issue is the statute for people accused of driving under the influence for a second or subsequently offense.  Some judges have been jailing suspected repeat DUI offenders without bond because they think the law requires it.
The new law states that anyone arrested with a previous DUI shall be considered a danger to the community and can't be released on bail until the court determines that they are not a danger.  The new law directs that courts could use electronic monitoring, random drug tests and other tools to eliminate the perceived danger to the community.
The result has been that people charged with DUI 2nd in Davidson County were held in jail for up to five days. 
After attorney’s complained of these actions, Criminal Court Judge Mark Fishburn ordered Davidson County's night court commissioners to stop denying bond in such cases.
The state attorney general's office reports that the intent of the law is to encourage judges "to require accountability while someone charged with DUI was awaiting a court hearing."
To date, none of these kinds of problems have been reported in Chattanooga or by Hamilton County Magistrate judge's setting bail.

TN Supreme Court Holds Warrantless Search Invalid

The Tennessee Supreme Court recently published State v. Ingram.  Justice Lee wrote the opinion for an unanimous court. The result is a mixed bag for Mr. Ingram.  The court found a search of his person by Police to be unconstitutional; but, the later search of his home was approved by the court.  The case was reversed in part and affirmed in part.  The decision is helpful in cases where there is a search of a person and the individual is not under arrest.    

Here is what happened.  Police officers believed they had probable cause to arrest Ingram for drug charges based on information from an informant and police surveillance of a drug buy.  A little later Police saw Ingram commit a minor driving offense.  Police pulled in behind Ingram at a gas station and stopped him, turning on their blue lights.  Police searched Ingram and told him that they had grounds to arrest him for drug distribution if they “wanted to.” The search of Ingram found money from the drug transaction.

The police then searched Ingram's residence based on his consent, although Ingram disputed this consent. The search produced cocaine and marijuana. Ingram was advised of his Miranda rights, but was not taken into custody. About four months later, Ingrow was indicted on ten counts of drug-related charges. Ingram moved to suppress the fruits of the search of his person and his residence. After the trial court denied the motion to suppress, the defendant was convicted of selling cocaine, conspiring to sell cocaine, possession of cocaine with intent to sell, possession of marijuana and possession of unlawful drug paraphernalia.

The Supreme Court
 held that Ingram was not under arrest at the time of the search of his person, and therefore the warrantless search was invalid. The warrantless search of his residence, however, was proper because the Ingram consented to the search and the consent was not the product of the previous illegal search of the Ingram's person. Ingram's convictions are reversed in part and affirmed in part. 
In the you can't be making this up category, the CI was originally seeing one drug source only to be told by her, "you're never going to believe who I am calling" to get the cocaine.  It was the CI's nephew.  Apparently Ingram was unwittingly brought into this scheme by his own family.

Eastern District Finds Fair Sentencing Act Retroactive

Chattanooga--Chief Judge Curtis Collier ruled in US v. Toney Robinson, Docket No. 1:10-CR-66 that the Fair Sentencing Act applies to defendants whose offense occurred before August 4, 2010, and who are sentenced after that date.  Judge Collier distinguishes the Sixth Circuit's Carradine opinion.

This means that defendants who are sentenced after the FSA's effective date will have the new guidelines and the new and greater mandatory minimum thresholds applied: 28 and 280 grams of crack rather than 5 and 50 to trigger the mandatory 5 and 10 year minimum terms of imprisonment.

The government objects to the court's position and has said so last week in sentencing hearings in open court.  Many local lawyers suspect that this issue will go up to the Sixth Circuit for review soon.