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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Hard time

For whatever reason, I waited until last year to apply for the CJA panel, which is how you get assigned Federal criminal cases.  It's been an interesting experience.  There are some notable differences.  The building's a lot nicer.  The Federal courthouse here in Cleveland was built about a decade or so ago, and "spacious" isn't quite the word; the judge's chambers in the Justice Center aren't bad, but the first time I walked into a judge's chamber over in the Federal courthouse, I could see her just over the horizon. 

It's better money, a lot better.  None of this spending eight days in a rape trial, like I did earlier this year, to earn $1,000.  Yeah, I have to schlep out to Youngstown to see my clients -- that's where they keep Federal inmates awaiting trial -- and that's a three-hour round trip, but I've found a dearth of other people willing to pay me $126 an hour to drive my car.

It's a more leisurely pace.  I had a plea hearing yesterday which took an hour, with the judge going over just about every word in the 17-page plea agreement.  Only one out of the 34 judges in Common Pleas court relies on written plea agreements, and it's not uncommon for a judge to have as many as four or five defendants pleading out at the same time, to completely separate cases.  And it can be done in a tidy five minutes.   

There are some other key differences, too, especially in sentencing.  Jay Nagy can tell you all about that.  

One night in February 2013, an Akron police officer saw Nagy rummaging through someone's car.  He called Nagy over, put him in handcuffs, and asked whether Nagy had "anything sharp on him that would poke, pinch, or stab" the officer.  Nagy volunteered that he had a gun in his pocket, which he'd taken from a car by mistake, and that he'd intended to put the gun in a Post Office box.

Nagy had a record, and could have been charged in state court with carrying a concealed weapon or theft of a gun, which probably would have resulted in him doing a year or two in prison at the most.  Instead, the Feds decided to charge him with being a felon in possession of a firearm.  After he was convicted, the government argued that his felony record qualified him for a sentence enhancement under the Armed Career Criminal Act, which contains a fifteen-year minimum term of imprisonment.  And that's what the judge imposed.

Nagy took it up, but the 6th Circuit had little difficulty rejecting his two contentions, dispensing of the case in a brisk seven pages.  Federal good time is much better than Ohio's, about 54 days a year, but that still works out to about a page for every two years Nagy will do in prison.

That's not to fault the court.  They didn't have much to work with.  Nagy's first argument was that the Supreme Court's decision in Alleyne v. U.S. meant that the convictions necessary to establish the minimum mandatory sentence had to be submitted to the jury and found beyond a reasonable doubt.  Alleyne, which I discussed in detail when it came down here, did say that, but there's an earlier Supreme Court decision, Almandarez-Torres v. US, which held that prior convictions that enhance a sentence don't have to be submitted to a jury.  There's some argument that the broad language in Alleyne implicitly overruled Almandarez-Torres, but no circuit court is going to "implicitly" overrule a Supreme Court decision.  And Nagy's other argument, that a fifteen-year sentence for having a gun constituted cruel and unusual punishment, also ran headlong into contrary precedent:  the court had rejected that very contention just three years earlier.

But, as Paul Harvey used to say, here's the rest of the story.  The district court judge had distributed post-trial surveys to Nagy's jurors, asking them to "state what you believe an appropriate sentence is in months" for Nagy's crime, given "every past conviction of the Defendant."  The median response was 18 months imprisonment.  The government urged the judge to sentence Nagy to within the guideline range of 235 to 293 months -- somewhere between 20 and 25 years -- but the judge rejected that, finding that "the sentencing range in this case is so completely out of whack with community sentiment," and reluctantly sentenced Nagy to the mandatory minimum of 15 years.  Not without a parting shot at the prosecution, stating that he had "expressed perhaps ad nauseam the fact that this is not a just punishment.  It is nowhere close to a just punishment.  It should never have been indicted this way, and the United States Attorney's Office should have never brought the case in this fashion."

That, and the closing paragraph of the 6th Circuit's opinion, should be of great comfort to Nagy:

The striking and troubling harshness of the sentence in this case is a result of the statutory mandatory minimum constitutionally imposed by Congress. This case is but a particularly clear example of our sometimes difficult duty to apply the policy choices of Congress, rather than our own.


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