State v. Bise: New Standard of Appellate Review of Sentencing Decisions

By Stevie Phillips

In a unanimous Tennessee Supreme Court opinion handed down on September 26, Chief Justice Wade outlines the historical development of state and federal sentencing guidelines.

In short, he observes that the 2005 amendments to Tennessee's 1989 Sentencing Act were passed for the purpose of bringing our sentencing scheme in line with United States Supreme Court sentencing decisions, namely Apprendi and its progeny.  This is the first time since the passage of those amendments that the Tennessee Supreme Court has had an opportunity to address the effect of those Supreme Court decisions on Tennessee's standard of appellate review. 

In the view of the Court, the effect is that "de novo appellate review and the 'presumption of correctness' [has] ceased to be relevant.  Instead, sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a 'presumption of reasonableness.'"

You can read the full opinion here. 

Chattanooga Gang Violence Leads to Cross-Border Partnership

A recent partnership was announced between the Walker County, Georgia and Hamilton County, Tennessee sheriffs departments intended to reduce some of the jurisdictional impediments that stymie efforts by both to fight gang activity in the region. Leaders from both counties gathered to sign a Joint Mutual Aid Agreement meant to ensure cooperation in the pursuit and prosecution of gang members.

Though crime may take place in Chattanooga, that’s not always where the criminals stay. Often times, suspects either live or flee to Northwest Georgia after engaging in crime in Tennessee. The gang members use the county and state lines to their advantage, hampering investigators on both sides.

The two counties are already fairly closely tied, sharing information and resources as part of their membership in the Chattanooga Area Gang Enforcement initiative. Both agencies have taken pains to ensure the public realizes that this agreement does not extend beyond gang activities. Hamilton County officials have been clear that no Georgia sheriffs will be permitted to come to Tennessee to enforce laws other than those relating to gang crime.

The action has been taken because of a recent rise in gang activity throughout the state. Studies indicate that gang activity has tripled in Tennessee communities with populations of 50,000 or less, meaning that smaller communities across the Tennessee Valley Region are feeling the impact of increased gang violence. Law enforcement officials hope that by tackling the issue now they can avoid even more draconian measures years down the road when the gangs would have had the chance to become even more entrenched.

The deal is the latest in a series of moves by Chattanooga to battle a growing problem with gang violence. Earlier this year, the Tennessee General Assembly beefed up the state’s existing laws regarding RICO (Racketeer-Influenced Corrupt Organizations) which are meant to permit more flexibility in defining what is a gang in the state. The new legislation broadens the definition to include participation in any ongoing criminal conspiracy.

Officials have grown tired of geography complicating police investigations and took steps to minimize the impact of state lines. For instance, if a conspiracy is found to exist in Tennessee but members later flee to Georgia, which agency is in charge of the prosecution? The fact is even with the recent pact the answer is not crystal clear. Responsibility could fall to either state; the location of witnesses, criminal evidence, experts, etc., all play a role in deciding where the prosecution occurs. Other factors include where the greater crime occurred and which state offers the most severe penalties.

The two counties started their partnership with the sheriff’s offices because the sheriffs’ jurisdictions cover both counties. However, this is just the first step in a much larger process of cooperation and coordination. As the program gains traction the goal is to expand it to include municipalities and even the prosecutors offices of both counties.

See: “Battling gangs across TN/GA state lines,” by Gordon Boyd, published at WRCBTV.com.

See Our Related Blog Posts:

RICO gang legislation passes Tennessee House

The Cochran Saga Continues: Two Deputies Suspended

Sixth Circuit Court of Appeals: Sentence can be revisited if ‘based on’ revised crack cocaine guidelines

by Lee Davis

• US v. MICHAEL D. JACKSON

FSA: challenges powder v. crack

This appeal arises from the conviction of Michael Jackson after pleading guilty in June 2009 to one count of intent to distribute more than five grams of cocaine. Jackson was found to be a Career Offender. The district court delayed his sentencing for more than a year, anticipating Congress was about to pass a new law regarding crack cocaine sentencing guidelines. The court felt it could not wait any longer and sentenced Jackson on July 16, 2010.

Jackson filed a timely notice of appeal. The Fair Sentencing Act was passed almost immediately thereafter, on August 3, 2010. At Jackson’s sentencing, the district court discussed at length the terrible disparity between the crack and powder cocaine sentencing guidelines. The district court clearly wanted Jackson to have a more fair sentence but felt its hands were tied. The district court ultimately decided to grant a 38-month downward variance from the Career Offender guideline.

Jackson seeks a remand to the district court for re-sentencing in light of the recent reduction in crack cocaine sentences. The government contends no reduction should be allowed given that his sentence was based on the Career Offender guidelines and not the crack cocaine guidelines. The Sixth Circuit recognized that Jackson’s criminal history meant that the Career Offender guidelines had to be considered but held that the district court should have the opportunity to revisit the sentence in light of new crack cocaine sentencing guidelines.

What appears to have happened is that the district court varied downward from the Career Offender guideline to a sentence more in lie with the what it believed was reasonable given the crack versus powder cocaine disparity. The Sixth Circuit says it believes had the revised guidelines been in place, it is clear the district court would have sentenced Jackson to a reduced sentence. Because the district court found Jackson to be a Career Offender and then sentenced him below the range for Career Offenders, noting a disagreement with crack guidelines, it is clear to the Sixth Circuit that the sentence was “based on” the crack guidelines as much as the Career Offender guidelines.

The Court further discussed the instruction in Freeman v. United States to:

… isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence. Working backwards from this purpose, §3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.

The majority held that the crack cocaine guidelines were clearly a relevant part of the analytic framework used by the district court to determine Jackson’s sentence. The Sixth Circuit was clear to take no position regarding whether Jackson’s sentence should be changed, but remanded the decision to the district court to consider the retroactive crack cocaine guidelines. 

To read the full opinion, click here.

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Supreme Court hears argument on cocaine cases

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Lee Davis practices law in federal court in the sixth circuit representing people in federal cases.

RICO gang legislation passes Tennessee House

Rep. Vince Dean (East Ridge, TN)

by Lee Davis


Some believe the recently passed gang legislation is a substantive bill and the bill’s sponsor, Representative Vince Dean (R-East Ridge), puts it this way: “It’s kind of like going from a screwdriver to an electric drill.” 


Others question the wisdom of attacking street crime with a complicated statute that has had limited success in the federal criminal justice system. It is hard enough to get a violent gang related case to trial now, with jury trial dates routinely more than a year after the crime.  Adding this legislation will slow the system down. RICO cases are labor intensive, expensive and require significantly more resources to investigate, prosecute and ultimately defend in court. That is the opinion of several veteran trial attorneys--including former prosecutors and defense attorneys. 


Other critics of the legislation point out that there are already laws on the books for every violent crime that the new law purports to target. And lastly, the US Attorney's office has the resources, the experience and the joint cooperation of federal and local law enforcement to prosecute RICO cases with existing federal laws. 


Some law enforcement officers believe that Tennessee’s version of the federal RICO (Racketeer-Influenced-Corrupt-Organizations) Act could make a dent in gang activity by defining the gangs themselves as criminal enterprises, and making membership a crime in itself.


Chattanooga law enforcement is divided according to a report in the Times-Free Press, Chattanooga Police Sgt. Todd Royval oversees the Crime Suppression Unit, which tracks gang activity. He said he’s not sure a state RICO statute is needed to address the gang problem in the city.

Federal RICO laws should be enough, he said. “A RICO case is a very labor intensive and expensive case to investigate, and we would have to involve other state and federal agencies for assistance,” Royval said. “It would be easier and more cost effective to use the current federal statute for RICO. A good RICO case would probably include defendants from outside of Hamilton County and possibly into other states, so I would be inclined to start a federal RICO case instead of a state RICO case.” 

Chattanooga Police Capt. Edwin McPherson oversees the special investigations unit, which includes Royval’s group. He said the law is needed. “I think that it will work for us in certain situations for people deserving of a stiffer penalty for the crimes they are committing,” he said. “I really think that it is something we can use as leverage on gang bangers who want to go out here and commit crimes as a group or organization.”

The new bill would permit police and prosecutors to charge anyone found to be a gang member or gang leader. This is given a very broad definition and includes anyone who commits, coerces, conspires with or hires somebody else to commit violent crimes such as murder, rape and assault; or profits from the proceeds of burglaries, drug sales, or gun sales.


“Without RICO, certain felony convictions would draw prison sentences of eight to 12 years,” says Boyd Patterson, a former-prosecutor turned gangs initiative co-czar in Chattanooga. “With RICO, the penalty jumps to 12 to 20 years,” a substantial difference if you’re on the wrong end of the new sentencing structure.


Federal RICO cases often take three to five years to make and to prosecute and can be very expensive and laborious processes. Patterson says that “We may have two or three cases against two or three folks. If our goal is a dozen gang members, it’s gonna take that much longer.” The new legislation will mean that when the police do bring charges they can level them against the entire gang, rather than putting people away piecemeal.


Co-sponsor Senator Bo Watson (R-Hixson) says legislators objected to toughening penalties for repeat offenders. “It’s a matter of cost,” he says. “A greater cost of incarceration, and that draws the fiscal note up to where that really wasn’t a piece of legislation we could move this year.”


Supporters have estimated that the cost of longer sentences will already add $109,000 to the yearly corrections budget. Had the backers pushed for even more stringent penalties Senator Watson says the total cost of incarceration could have increased by $1.4 million.


Governor Haslam is expected to sign the bill; and, it will become law on July 1.


Sources: 
-“Police Chief: ‘There’s a lot more bite to this law’,” by Gordon Boyd, published at WRCBTV.com.
-HB2868


Earlier:
Prosecutor’s Note Questioning Witnesses’ Credibility Leads to a Murderer’s Appeal
Gov. Haslam allows evolution bill to become TN law

New Tennessee Campus Crime Report Released

By Jay Perry 


The Tennessee Bureau of Investigation (“TBI”) recently released their annual Crime on Campus Report for 2011.  This report contains an interesting look at crime on college campuses in Tennessee and merits some attention.  Overall, the number of reported crimes is up 4.2% from 2010 but is lower than those reported in 2009.  The most common crime reported was theft from a building which accounted for 21% of reported crimes.  Unfortunately, the number of assaults reported increased by 6.5% but thankfully the number of aggravated assaults was down 8.8% from a year ago.  Of most concern is that the number of “Forcible Sex Offenses” reported rose from 30 in 2010 to 44 in 2011, a one year increase of 46.7%.

Interestingly, the most likely day for the commission of a theft crime was a Thursday, with Sunday having the least number of reported offenses.  As far as drug crimes (1 in 10 crimes reported on college campuses were drug crimes), those happened (as could be expected) on Friday or Saturday nights between the hours of 9:00 P.M and 3:00 A.M.  As for alcohol crimes, the most common offenders were 19 year olds, and the number of male offenders was over double the number of females.  As an attorney who represents students charged with underage drinking I would be interested in seeing how common that specific charge is.  Unfortunately the report does not specify and just accounts for generic “liquor law offenses”.  The report also includes the crime of “drunkenness” which is not illegal in the state of Tennessee.  There is an offense for public intoxication in Tennessee but that charge means more than just being drunk in public with specific criteria that must be met.

Two colleges I was particularly interested in were the University of the South (or Sewanee, where I graduated) and the University of Tennessee-Chattanooga (our local university).  Sewanee appears to have a very high rate of burglaries and thefts but I think that the high number is partly due to the unique setting of the school.  The University’s campus is huge (over 13,000 acres) and encompasses a large amount of private residences and an entire community.  The campus police department is also the police department for that community and so I would it likely that many of the reported crimes don’t involve students or the campus directly.  The rate of “liquor law violations” is the highest by far of any college in the state (51 per 1,000) and indicates that at least part of the reputation of the school is accurate.  Again it would be interesting to know what specific violations these are especially in light of the Vice-Chancellor’s sensible stance on underage drinking laws.

The statistics from UTC are encouraging as they are fairly low especially given the campus’s urban location.  Especially low are the numbers of violent crimes reported although it is important to remember that any violent crime is devastating to the victim and to the community as a whole.  Again the number of liquor law violations is relatively high as the UTC rate is the fourth highest in the state.  However, the statistics in this report in the area of alcohol are a bit questionable as many campuses report zero incidents. 

            Overall, the report is fairly positive and many of the reported crimes are falling over a longer time frame.  For example, DUI violations have shown an overall decrease by 25.8% since 2008.  We can all hope that crime falls on college campuses (and everywhere else) and that are police resources are most utilized to combat those crimes that have the most damaging effects on our communities.