The latest amendments to the Sentencing Guidelines went into effect on November 1, 2016.  Most significant was that the Illegal Reentry guideline (§ 2L1.2) was completely re-written.  With this re-write, it will be important to calculate a client’s guideline range using both the old guideline and the new guideline to determine if there are ex post facto issues or variance arguments. 
   For child pornography cases (§ 2G2.2), the Sentencing Commission's amendments to the 2- and 5-level distribution enhancements at § 2G2.2(b)(3)(B) and (b)(3)(F) are of note.  These changes generally resolve a circuit split on the mental state required for the enhancements to apply where the distribution happens via peer-to-peer file sharing.  A summary of the amendments with a redline version of the amendments is available here.  
   Note also the amendments to Federal Rule of Criminal Procedure 41, governing the issuance of search warrants.  The amendments have garnered some publicity as they expressly permit what some people deem "governmental hacking"; i.e., the deployment of computer code to remotely search computers located in districts other than the district in which the warrant was issued.  The old version of Rule 41 did not permit such warrants. Cases raising claims under the previous rule are being litigated across the country.  See, e.g., United States v. Levin, 186 F. Supp. 3d 26 (D. Mass. 2016) (finding violation of Rule 41(b) and granting motion to suppress); but see United States v. Michaud, 2016 WL 337263 (W.D. Wash.) (finding violation of Rule 41(b), but denying motion to suppress). 

   In Nichols v. United States, 136 S.Ct. 1113 (2016), the Court considered the federal Sex Offender Registration and Notification Act (“SORNA”), which makes it a crime to knowingly fail to register or to update a registration.  42 U.S.C. § 16913(a) requires that a sex offender register, and maintain his registration, in each jurisdiction in which he or she resides, is employed, or is a student.  In Nichols, the defendant left the United States (Kansas), where he had lived, and moved to the Philippines. He did not update his registration in Kansas after he left. In a unanimous decision, the Supreme Court determined that once a person leaves a state, the offender no longer resides (present tense) in that state and SORNA therefore does not require the offender to update his registration in that state. In combination with Carr v. United States, 560 U.S. 438 (2010) (requiring that the elements of the SORNA offense be committed sequentially), this leaves open the argument that venue does not exist in the "departed from" jurisdiction. (Note, though, that this argument has since been rejected in the District of Vermont, United States v. Wright, 2016 WL 5864783 (D. Vt.)).

   In Utah v. Strieff, 136 S.Ct. 2056 (2016), the Supreme Court held that although the police stopped the defendant in violation of the Fourth Amendment, an outstanding warrant for his arrest broke the connection between the unconstitutional stop and the evidence obtained as a result of the arrest:

   In Johnson v. United States, 135 S.Ct. 2251 (2015), the Supreme Court held that the residual clause in the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague, thereby making relief possible (via 28 U.S.C. § 2255 motions) for individuals sentenced under the ACCA.  Last term, in Welch v. United States, 136 S.Ct. 1257 (2016), the Court found that the rule in Johnson v. United States applied retroactively for purposes of individuals seeking relief from their ACCA sentences.  Most recently, in Beckles v. United State, --- U.S. ---, 2017 WL 855781, the Supreme Court determined that its decision in Johnson, did not apply to the Sentencing Guidelines.  The Beckles Court went beyond the vagueness of the residual clause in § 4B1.2(a)(2) and ruled broadly that the advisory Sentencing Guidelines are not subject to vagueness challenges:

Id. at *6 (noting also at *7 that “[b]ecause they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge.”).  

   At issue in Mathis was whether a statute is divisible when it is not one that “lists multiple elements disjunctively, but instead [is] one that enumerates various factual means of committing a single element.”  Id.  In Mathis, the lower courts had determined that the defendant’s Iowa burglary convictions qualified as violent felonies under the ACCA.  The courts reached this result even though the Iowa statute consisted of a single set of elements, but covered various means of committing the offense.  Some of these means of committing the offense qualified as a generic burglary under the ACCA, while other means of committing the offense (such as breaking and entering a vehicle) did not.  Id. at 2250.  Consistent with its earlier decisions, the Court held that such a statute is not divisible. 

ACCA, as just explained, treats such facts as irrelevant: Find them or not, by examining the record or anything else, a court still may not use them to enhance a sentence.  And indeed, our cases involving the modified categorical approach have already made exactly that point. “[T]he only [use of that approach] we have ever allowed,” we stated a few Terms ago, is to determine “which element[s] played a part in the defendant's conviction.”  In other words, the modified approach serves—and serves solely—as a tool to identify the elements of the crime of conviction when a statute's disjunctive phrasing renders one (or more) of them opaque.  It is not to be repurposed as a technique for discovering whether a defendant's prior conviction, even though for a too-broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense.

For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.  Id.

   Dean v. United States (15-9260).  At issue in Dean is whether 18 U.S.C. § 924(c)’s requirement that a court shall impose any mandatory sentence “in addition to the punishment provided for” the predicate offense limits a sentencing court’s ability to depart from the guideline sentence provided for the predicate offense.  After being convicted at trial, Dean faced 5- and 25-year mandatory minimum sentences for his 18 U.S.C. § 924(c) convictions as well as an 84-105-month guideline sentence for his Hobbs Act convictions.  United States v. Dean, 810 F.3d 521, 533 (8th Cir. 2015).  He sought a 1-day sentence on the Hobbs Act convictions to be followed by the mandatory minimums.  The district court stated that it would have imposed such a sentences based on 18 U.S.C. § 3553(a)’s requirement that the sentence be “sufficient, but not greater than necessary, to comply” with the section's requirements.  However, the district court determined that the Eighth Circuit’s decision in United States v. Hatcher, 501 F.3d 931 (8th Cir. 2007), forbade such a sentence (a conclusion affirmed on appeal).  At the Supreme Court, Dean argues that § 3553(a) as well as 18 U.S.C. § 3661 permit such a sentence.  He argues further that Pepper v. United States, 562 U.S. 476 (2011), overruled Hatcher based on Pepper’s conclusion that the plain language of 18 U.S.C. § 3661 means just what it says, that “no limitation” may be placed on a court’s power to consider information about a defendant’s “background, character, and conduct” when seeking to fashion an appropriate sentence. 

   Sessions v. Dimaya (15-1498):  In Dimaya, the Court will consider whether the residual clause in 18 U.S.C. § 16(b) (part of the Immigration and Nationality Act governing removal of aliens from the United States) is unconstitutionally vague.  At the Supreme Court, the government seeks to overturn the Ninth Circuit’s holding that § 16(b) is void for vagueness under the same rationale set forth in Johnson.  There is presently a circuit split on this question: The Sixth, Seventh, Ninth, and Tenth Circuits have held that § 16(b) is unconstitutionally vague under the reasoning in Johnson; the Fifth Circuit held that it is not.  The residual clause in § 16(b) is identical to the residual clause in 18 U.S.C. § 924(c)(3)(B), so the outcome in this case will likely affect cases raising claims based on Johnson.

  

  United States v. Allen, 813 F.3d 76 (2d Cir. 2016):  Here, the Second Circuit considered whether Payton v. New York, 445 U.S. 573 (1980)’s prohibition on warrantless arrests in the home encompassed an arrest that happens when the defendant is in the home, but the authorities are outside the home.  The police in Allen arrived at the defendant’s home as part of their investigation into an alleged assault and “with the pre-formed plan . . . to arrest [him] for the alleged assault.”  Id. at 78.  The defendant’s arrest occurred when the police—still outside the door to the apartment—told the defendant—still inside his apartment—“that he would need to come down to the police station to be processed for the assault.  In other words, he was under arrest.”  Id. at 79.  Looking to the totality of the circumstances, id. at 80 n.6, the Second Circuit concluded that this was the moment of arrest because the defendant was not free to refuse the officer’s commands and a reasonable person would not have felt free to do so, id. at 86.  Such an “across-the-threshold” arrest, the Allen court held, does violate Fourth Amendment, even where the authorities have, “ample probable cause,” id. at 78:

[W]here law enforcement officers summon a suspect to the door of his home and place him under arrest while he remains within his home, in the absence of exigent circumstances, Payton is violated regardless of whether the officers physically cross the threshold.