On Point: 36. Sentencing

Questions presented:

Johnson v. United States, 135 S. Ct. 2551 (2015) found the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(B)(ii)(defining “violent felony”) unconstitutionally vague. That clause is identical to the residual cause in the career-offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2)(defining “crime of violence”)

(1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”);

(2) whether Johnson‘s constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and

(3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

Richard Mathis v. United States, USSC No. 15-6092, 2016 WL 343440, 579 U.S. ___ (June 23, 2016), reversing United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

In this decision the Court, by a 5-to-3 vote, reaffirms its long-standing rule that the “categorical approach,” which focuses on the elements of an offense, is to be used in determining whether a prior conviction enhances a federal offender’s sentence under the Armed Career Criminal Act. It also rejects the Government’s argument for an exception to that approach when the defendant is convicted under a statute that lists multiple, alternative factual means of satisfying one of the elements of the offense. While the decision obviously affects federal criminal practice, it may also affect a recent decision of the Wisconsin Supreme Court.

State v. Loomis, which SCOW will soon decide, is being closely watched around the country. The case challenges the sentencing court’s use of an algorithm to predict the defendant’s risk of reoffending. Today’s New York Times discusses Loomis and notes that algorithms also use predictive data to decide which streets to patrol, to compile lists […]

State v. Antonio D. Barbeau, 2016 WI App 51; case activity (including briefs)

Barbeau killed his great-grandmother when he was 14 years old, and eventually pled no contest to first-degree intentional homicide, which carries an automatic life sentence. When imposing such a sentence, the court must make a decision as to extended supervision: it can either deny any possibility of ES, or it can set a date at which the person becomes eligible, though such date must occur after the person has served at least 20 years. Wis. Stat. § 973.014(1g).

United States v. Bryant, USSC No. 15-420, 2016 WL 3221519 (June 13, 2016), reversing and remanding 769 F.3d 671 (9th Cir. 2014); Scotusblog page (includes links to briefs and commentary)

As we explained in our prior post on the cert grant in this case, the Sixth Amendment does not apply in tribal courts. Congress has created a statutory right to counsel in such courts, including for indigent defendants, in prosecutions involving prison sentences greater than one year. But for charges involving less than a year of incarceration, only defendants who can afford a lawyer are entitled to have one. Bryant has several prior domestic violence convictions in tribal court for which he was not statutorily entitled to, and did not receive, a lawyer. The question here is whether these convictions can form the predicate for his new, federal-court conviction for “domestic assault within … Indian country” which applies only to those with at least two DV priors.

State v. Jason S. Witte, 2015AP795-CR, 5/26/16, District IV (one-judge decision; ineligible for publication); case activity (including briefs)

Witte, charged with OWI-4th, attacked a 2004 prior, alleging that did not have, and did not validly waive, counsel. The circuit court concluded that Witte’s affidavit and the documents from the 2004 proceeding did not make out a prima facie case that Witte was denied counsel, and the court of appeals now agrees.

While we’re waiting for a decision in State v. Loomis to tell us whether we can have access to the inner workings of the de facto Deus ex machina of Wisconsin sentencing proceedings, we thought you’d be interested in this investigative report on the COMPAS by the investigative reporters at ProPublica.

Question presented:

What are the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely appeal of a criminal judgment imposing sentence, a question left open by the Court’s decision in Dolan v. United States, 560 U.S. 605 (2010)?

Molina-Martinez v. United States, USSC No. 14-8913, 2016 WL 1574581 (April 20, 2016), reversing and remanding United States v. Molina-Martinez, 588 Fed. Appx. 333 (5th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

Emphasizing the Federal Sentencing Guidelines’ “central” role in sentencing because they “serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence” (slip op. at 9, 15), the Supreme Court holds that the application of an erroneous Guidelines range will usually be sufficient to show a reasonable probability of a different outcome for the purposes of plain-error review under Federal Rule of Criminal Procedure 52(b).

State v. Lazaro Ozuna, 2015AP1877-CR, 4/13/16, District 2 (one-judge decision; ineligible for publication), petition for review granted 9/13/16, affirmed 2017 WI 64, ; case activity (including briefs)

Even though DOC discharged Ozuna from probation, he didn’t successfully complete his sentence for purposes of the expungement statute because he was cited for underage drinking while he was on probation and therefore violated the court-imposed probation condition that he not consume any alcohol.