*1 nоt ineffective Mr. Haas was holding that argu- Ms attempts to bolster Eady Mr. Ducker, Mr. argue failing to locate for incompetent Haas was Mr. ment fails. assistance case ineffective unpublished Eady’s claim of an Dupree, pointing Appeals. of Criminal Court Tennessee CONCLUSION however, with problems, two are There unpub- is First, the case attempt. reasons, Eady’s Mr. foregoing For may be cited cases Unpublished lished. corpus is of habeas a writ petition for only courts, they are but state Tennessee Eady’s mo- Additionally, Mr. DENIED. binding not authority” and “persuasive record with supplement tion 4(G)(1). Giv- Sup.Ct. Tenn. R. precedent. is DENIED Attorney’s Memos Tennessee case, may it force of such lack of en deter- only entails review habeas because fail attorney to an for unreasonable be not оf a state the reasonableness mining Second, persuasive- and most to locate it. it the evidence upon court’s decision Mr. only after decided ly, Dupree not time, which does at the had before it Mr. a brief on already submitted had Haas of new evidence. introduction allow for indeed, already and, had Eady’s behalf Eady ar- Mr. appeal.4 While argued supplemented have Haas could Mr.
gues not true. Dupree, brief
his citations additional submit Haas could
Mr. made. already he had arguments only for America, STATES UNITED 27(d). argu- Dupree R.App. P. Tenn. Plaintiff-Appellee, waived deemed be ment would v. grounds those not Haas had asserted Mr. 10(b). Even Sup.Ct. R. Tenn.
in his brief. (05-4304) and Tyrone MADDEN an added additional have could if Mr. Haas (06-3736), Diana Blaine it think unreasonable do not argument, Defendants-Appellants. that Strickland hold court to a state for 05-4304, 06-3736. Nos. attorney to continue require an not does Appeals, already Court he had appeal that research he ex- decision Circuit. briefed, Sixth argued, whose rely, only Eady can shortly. Mr. pected 1, 2007. Nov. Submitted: purpose therefore, on Ducker 25, 2008. Jan. and Filed: Decided Because, incompetent. Haas proving Mr. above, Court Tennessee as discussed not unreasonable Appeals was
Criminal and not record in the Although evidence not 2254(d)(1), law our own circuit 28 U.S.C. decision, we also note upon in our See, relied e.g., conclusion. to similar would lead Haas which Mr. from even source (6th Smith, F.2d 61-62 Alcorn v. unpublished case of an learned could have 1986). very to Mr. similar In case Cir. Attorney’s Memo Dupree, the Tennessee like that, later higher had declared Eady’s, time (TAM), Mr. Haas have reachеd would appeal, trial and of the defendant’s at the time did not include it. The TAM him to use Lucas See state.” in a "curious the law was 5, 2001. This Dupree until March report on 1999). O’Dea, Cir. Mr. twenty after Haas roughly weeks had not counsel held that defense We there and, most appeal, Eady’s direct briefed Mr. anticipate a failing to been ineffective weeks roughly two-and-a-half importantly, af- Id. law.” “then-prevailing change decid- appeal had been Eady’s direct ter Mr. ed. *3 Akron, Ray, A. Nathan BRIEF: ON Gilbert, Gil- Ohio, Friedman & Terry H. Ohio, Appellants. Cleveland, bert, Patton, United States Assistant J. Robert Ohio, Cleveland, Appellee. Attorney, GILMAN, MOORE, SILER, and Before Judges. Circuit GILMAN, J., opinion delivered SILER, J., joined. court, in which 614), separate Moore, delivered (p. J. 05-4304 No. concurring Case opinion 06-3736. No. dissenting Case and OPINION GILMAN, Circuit LEE RONALD Judge. Diana Blaine
Tyrone Madden one count charged with were both phencyclidine possess conspiring to distribute (PCP) the intent with charged separately drug. Madden fire- possession felon being with supersed- in a charged later He was arm. conspira- count of one with ing information into the United States heroin import cy to Both defen- of bank fraud. count and one At Madden’s pleas. guilty dants entered indictment original hearing, was sentenced and Madden dismissed dis- imprisonment. to 78 months an additional imposed trict sentence, eight-month to be served consec- pled guilty to both utively, violating the terms of his su- pursuant counts negotiated plea pervised previous release related to a agreement, fed- agreed to Brown, eral hand, conviction. on the other dismiss the counts from original indiсt- pled guilty to charge original in the ment. indictment, but she then failed to maintain The district court sentenced Madden to contact pretrial services became 78 months’ imprisonment for the two fugitive. she When surrendered over a counts in the superseding information. In later,
year the district court held a sen- addition, the court previous addressed tencing hearing and sentenced her to 37 violation of the conditions *4 supervised of his months of imprisonment. release stemming from a 1998 federal con-
Madden appeals the district court’s viction for bank fraud. The court conclud- judgment because he asserts ed that it jurisdiction, had under 18 U.S.C. court did not jurisdiction have § 3583(i), to sanction to sanction Madden for this vio- him prior for his supervised-release Furthermore, viola- lation. Madden conceded tion. appeals Brown her sentence that a violation of his supervised release basis that the district court failed to ade- had indeed occurred. The court then im- quately consider her request for posed a reduced an prison 8-month term and or- sentence. For the below, reasons set forth dered that it be served consecutively to the we AFFIRM the district court’s judgment prison 78-month term. Madden now chal- in both cases. lenges the district ruling on the
supervised-release violation, claiming that I. BACKGROUND the court did jurisdiction not have to im- pose 3583(i). sanction under 15, On 2004, December grand federal jury returned a two-count indictment B. Brown’s conviction and sentence against Madden, Brown, and another al- In leged February of conspirator. pled Brown Count one charged guilty to the chargе first and Brown indictment pursu- with conspiracy to ant to possess a negotiated agreement. with the intent She to distribute more then 1,000 than violated the terms of grams PCP, her pretrial of in violation of 21 release by both 841(a)(1) failing §§ U.S.C. to make and contact with 846. Madden was court-appointed also charged psychologist one and count of being a appearing felon possession for random drug of a tests as firearm and re- ammu- nition, quired by the court. The violation of 18 court U.S.C. issued 922(g)(1). summons requiring This court Brown to appear ordered that for appeals their be hearing on February consolidated for briefing but and Brown submission.
did not respond and could not be found. A. Madden’s conviction and sentence She remained a fugitive until February of 2006, at point which she turned herself in.
Six months after the return of the initial indictment, filed a su- For the part, most the Presentenee Re- perseding against information (PSR) Madden. port filed probation offi- charged information Madden with one cer tracked the Guidelines calculations count of conspiracy to import heroin into contained plea in the agreement. The of violation government, U.S.C. among other things, agreed 960(a)(1) §§ and and one count of to seek a four-point downward departure fraud, bank in violation of 18 U.S.C. for substantial assistance under USSG new sanc- impose release and supervised for reduction three-point § 5K1.1 after violations supervised-release tions for pursuant responsibility of acceptance expired: has that term recom- PSR But § 3E1.1. USSG for adjustment upward a two-level mended a term to revоke of the court power because justice obstruction of a for violation release supervised court-ordered appear willfully release, failed and to supervised condition hearing. scheduled for her treatment term of to serve a order the defendant and, limita- subject to the imprisonment a downward turn, Brown, requested (h), term of a further in subsection tions She 5K2.0. to USSG pursuant departure release, beyond extends supervised a reduced eligible she claimed supervised of the term expiration de- undiagnosed her neces- reasonably any period lease two her capacity, diminished pression matters aris- adjudication of sary for preg- children, she was the fact that young if, its before expiration its ing before surrendered, and the “aber- she nant whеn summons warrant expiration, At the sen- her behavior. nature of rant” allegation basis of on the issued been granted the district hearing, tencing *5 of such violation. requested reduc- government’s all calculated and and enhancements tions on this expounded has Ninth Circuit to to be 30 range Guidelines appropriate that explaining statutory language, The court imprisonment. of months of a term revoke court can a district and § factors addressed then after term release supervised impris- months’ of 37 imposed sentence (1) violation warrant if: expired ruling on explicitly without onment term before the summons issued asked the When Brown motion. (2) between delay and expired; ruling on the to make court district release supervised of the term end of it, “I noting think motion, the court denied order revocation and the court’s it re- as the consideration given her I’ve adjudi- necessary for the “reasonably is I responsibility. of acceptance lates for [the arising before of matters cation giving ruling was view that in think expiration.” term’s] fair consideration.” than her more Garrett, sentence, that the dis- arguing her appeals Cir.2001) (alteration original). grant and consider failure trict court’s violation supervised-release Madden’s unreasonable. motion was her than circumstances different from arises him brought originally the conviction II. ANALYSIS Be- case. in this the district before jurisdiction over A. The district of merits Madden’s addressing the fore viola- supervised-release Madden’s briefly must therefore appeal, we claim on tion underlying background the factual address violation. supеrvised-release his 3583(i) and facts 1. 18 U.S.C. offense underlying Madden’s con- Madden of In December sentenced and bank fraud of giv- victed courts are 18 U.S.C. Under three followed imprisonment of a months part of to include authority en term release. His supervised years of supervised a term defendant’s began on November release supervised also Courts imprisonment. release after 2005, Madden and 2000. Between 3583(i),to revoke ability, have preserve a number of times in both did was indicted Madden not his unreason- able-delay objection for various proceedings and federal below that he state and He was gun- drug-related plain-error crimes. therefore limited to review on custody in appeal. in federal Baltimore for Madden does not specifically claim; rather, time years of that because of a but this he simply argues over two the United States District Court that all of his claims trial in should be reviewed de Maryland on a District of novo. record demonstrates that al- though for conspiracy three-count indictment not did articulate his un- heroin, heroin, such, import importation reasonable-delay claim as he did ob- argues ject of heroin. Madden jurisdiction distribution to the district court’s over term of not supervised supervised-release that his release was his on violation the ba- during custody period approximately tolled this sis that years four expired thus November of 2003. The elapsed between the time that he was tak- hand, government, custody on the other contends en into in Baltimore and the hear- supervised that his release was tolled and ing adjudicating supervised-release his vio- the term therefore continued until lation. We dispute, need resolve this February however, of 2005. have no need to We because Madden’s claim cannot issue, tolling however, resolve succeed under either standard. parties agree both that a warrant was Madden claims “there was no rea- a supervised-release issued basis delay son” between the warrant September violation 2002. in September issued 2002 and the hearing held the district court in September of to sanction Madden Jurisdiction *6 But argument 2005. this ignores over- 3583(i) § under 18 U.S.C. whelming in the that pro- evidence record arguments sup- Madden makes three to ample Indeed, vides for the delay. reason port claim his that the district court lacked between the that super- time Madden’s 3583(i) jurisdiction § under 18 U.S.C. began vised-release term in late 2000 and sanction him on prior super- his the district sentencing hearing in argu- vised-release violation. One of his in this case Madden was either in ments attacks the of reasonableness the government custody being brought up delay expiration super- between the of his charges constantly. almost Madden vised-release term and the district court’s in custody was federal in Baltimore for order, the revocation while other call two than years more two of the four in ques- validity question into the of the September multiple tion because of proceedings relat- 3583(i). under warrant parties The ing to his trial. The charges being tried in disagree about which standard we case, moreover, that arose out the of same apply in reviewing argu- should thesе alleged of importation incidents heroin ments. We will each address of Madden’s that eventually led to his in guilty plea arguments, and appropriate their standard All charged case. of alleged- these events review, of in turn. ly place took between March and Novem- ber of in the middle of Madden’s outset, At the argues Madden that supervised-release period. the jurisdiction district court did not have him prior Circuit, for his supervised- in Second United States v. Ramos, hearing (2d release violation because the Cir.2005), was 117-18 brought within a period reasonable two-year concluded that a delay between time. The that contends the execution of the warrant a defen- delay preju- the how not show the dant could violation supervised-release dant’s diced him: in federal violation of that adjudication un- of evidence necessary” proffer made no “reasonably Defendant was both due he did not prove his tend to not violate that and did would
der 3583® supervised-release] that delay alleged in of the commit [the Part rights. process then, violations, appeal, or on charged nor did he Ramos was case arose his delay prevented court, that the and the federal maintain felony in state awith he proof. He admitted introducing such the to execute warrant waited authorities of his of the conditions until two had violated violation supervised-release for his no authori- He cites release. supervised Id. at adjudicated. had been the case delay ... ty proposition for the peri- that “the court concluded Ramos or violates process due implicates either state was the during which time od of provisions of U.S.C.A. the charges ob- criminal the state 3583®. adjudicating scope within easily falls viously Throneburg, 87 F.3d necessity provided Cir.1996). reasonable Id. § 3583®.” delay not claim does warrant Ramos, delay between issuance Here, between the to the level of hearing rose 2002 war- September execution to due right his constitutional violating in which Madden hearing and the rant attempt to demon- does he supervised Nor process. violation for his sentenced any way hampered delay in proceedings, by court strate that was caused release allegations against ability Madden’s to defend caused his in turn were which Indeed, Ramos, the violation. And, supervised-release just as own conduct. direсtly Throneburg, Madden admitted like proceedings these outcome of the condi- actually vio- that he violated district court whether Madden lated to For these supervised release. supervised release. tions of his of his the terms lated either reasons, cannot conclude place Baltimore trial took Both the case review plain-error in this novo or underlying conviction de and the case unreasonable delay of conduct allegations Madden’s from stemmed *7 2001, § marked the which under during place took 3583®. supervised term of Madden’s early part of was “there argues that further cases, in in those The outcome
release. the which or summons warrant only one Mad- adjudication of whether an particular at” have looked should court district during su- crimes his had committed den super- long how Madden’s determining term, was therefore pervised-release ran, dis- that the actually so vised release the federal determina- to relevant “plainly that it had concluding trict court erred actu- not” Madden had tion of whether impose to § under jurisdiction 3583® super- of his the conditions ally violated however, claim, without is This sanctions. Id. vised release. dis- court enough, the district merit. True warrants different of cussed a number that Moreover, Madden claims although impacted when may have unreasonable, he summonses delay in his case the actually term supervised-release any Madden’s that he suffered not demonstrated argues, himself But as Madden expired. This delay. a result of prejudice was “issued warrant 2002 September the rejected a similar previously court has of of a violation” allegation upon an hearing super- on delayed to a challenge dispute no There is release. supervised that the defen- basis on the vised release 608 2002 warrant was is- September by probable
that the cause. See 18 U.S.C. 3583(f) supervised-release § his term (requiring only sued before that “a warrant require- and it met the expired, therefore or summons has the been issued on basis 3583(i). violation”). § out in ments set allegation of an of such a dispute There is a among our sister cir Furthermore, the correct is 3583(f) § cuits over whether nevertheless question out that “the ‘toll- pointing implicit contains an require sworn-facts simply plain not at here.” The ing’ is issue Compare ment. Vargas- United States v. 3583(i) language of states that a court (9th Cir.2004) Amaya, 389 F.3d impose the рower retains to a sanction for that, (concluding terms, by its a “warrant” supervised “beyond the release violation is a “document is probable based on expiration supervised the term supported by facts”), cause and sworn any period reasonably necessary lease for Garcia-Avalino, United States v. 444 F.3d adjudication arising for the of matters be- (5th Cir.2006) 444, 445 (rejecting the no expiration.” fore its Whether Madden’s “that implicit tion there an sworn-facts supervised-release expired in term Novem- requirement very embedded in the mean February of 2003 or ber 2005 is thus term,” ing of word legal ‘warrant’ as a irrelevant, long because as as the warrant concluding that the court district expiration—and before both issued its jurisdiction over the defendant under parties agree September 3583(i) rеgardless of the war whether warrant was—the district court retained facts). supported by rant was sworn jurisdiction We impose a sanction. See no have need question to resolve this Naranjo, States v. 259 F.3d (5th Cir.2001) because, present case (noting even if we were that the issuance to decide that the district expiration of a court’s reliance warrant before supervised-release supported probable a warrant not preserves term error, jurisdiction). cause constituted post-term very exis of a tence disagreement reasonable on this Madden’s final attack on dis precludes point the conclusion that the er jurisdiction trict court’s is based his upon plain. ror was See United States Alex argument September 2002 war ander, 217 Fed.Appx. Cir. rant was invalid because it was not “based 2007) (citing “conflicting precedents” supported on probable cause oath or among the circuits conclude that an affirmation.” He therefore contends that error was not plain); United States v. jurisdiction lacked Williams, (6th Cir.1995) 3583(i). him sanction Because he (concluding that “circuit split precludes objection did not raise this in the district *8 error”). finding plain of court, claim this we review the plain-error standard of review. Fed. See points out that the 52(b); Cromer, R.Crim.P. United States v. September 2002 warrant on which the dis- (6th (“When 662, Cir.2004) 389 F.3d 672 an trict court relied was issued of appellant object fails to to an in error the Madden’s 2001 December indictment court, district plain this Court reviews for District Maryland. the Because the error.”). government necessarily had to demon- outset,
At the plain we note that probable the strate cause order for the language of the require indictment, statute does not grand jury to issue it ar- that a warrant or summons to a relating gues the warrant was also based on supervised-release violation be supported probable cause. or not this rea- Whether
609
sufficient,
“a
ultimately
imposing
it does with
sentence
but
persuasive,
sorting
necessary” to
greater
not
than
fulfill the
support for our conclusion
further
provide
3553(a)(2).
sentencing
§
purposes
plain
not
error
shown
that Madden
Foreman,
638,
436
Septem-
on the
United States v.
F.3d
reliance
the district court’s
(internal
(6th Cir.2006)
quotation
644
2002 warrant.
ber
omitted).
appel-
marks
“The fact that the
error,
need
plain
find no
Because we
reasonably
have conclud-
might
late
prongs
other two
reach the
not
a
appropri-
ed that
different sentence was
v.
See United States
plain-error standard.
justify
ate is insufficient to
reversal of the
Cir.2006)
(6th
Gardiner,
445,
F.3d
459
Gall,
district court.”
court required judge is not sentencing aBut con- Brown had fact that about cerned аrgu every mitigating address explicitly to during pregnancy. her drugs to use tinued makes, particularly a defendant ment that 3553(a) of how the discussion During only in raised arguments are those when case, the Brown’s apply to should factors Rita, 2468; at see 127 S.Ct. See passing. the nature given explained that court Liou, 491 F.3d v. also United Brown the fact that drug offense and Cir.2007) (6th (rejecting the notion n. 4 sentencing, before absconded had to address required a district court that for acceptance reductions Guidelines-based or non- frivolous whether argument, “each assistance and substantial responsibility arguably even frivolous, that a defendant a fair sentence provide to sufficient were (em of a lower sentence” support raises Brown. for herself con Brown original)). phasis have before thе court did “not ceded that of the and record” “context broader The mental health qualified report it a from sup- additional provide hearing diminished- support of her professional” ade- the court the conclusion port States v. argument. capacity ar- mitigating considered quately Cf. Cir.2007) McGee, F.3d Rita, at 127 S.Ct. See guments. factual (“[I]n cases, if is no there hearing, for most part an earlier During the dis argument, for a defendant’s in an basis engaged court district example, the address specifically need not trict court attorneys with both discussion extended per thus not We are argument.”). a re- should receive whether Brown about committed district court suaded that responsibility. acceptance duction failing to error” procedural “significant her Brown and listened both See Gall this claim. address explicitly pregnan- her family, her attorney discuss — -, 128 S.Ct. U.S. In United problems. psychological cy, and her (2007). 597, 169 L.Ed.2d sentence, the court demon- imposing issues these it considered had strated trou- more are somewhat Although birthing pro- enter by ordering she failure district court’s by the bled per- she be recommending that gram and a reduced argument for mention Brown’s drug- in a residential participate mitted to alleged “aberrant on her incarcerated. while program treatment behavior,” unconvinced we remain sen- rendered the sure, not this omission court, did to be unrea- proeedurally tencing determination of the reasons address each specifically here, where, the defen- Even in sonable. Brown set forth lower sentence nonfrivolous arguably presents in dant the court noted Although her motion. below a sentence imposing reason for factors that its discussion always judge is not range, the convictions,” Guidelines criminal prior had “no Brown argu- specific address required acknowledge that it did (ex- Rita, at 2468 127 S.Ct. ment. See her a lower sentence requested not address judge that a need plaining represented case behavior by a de- advanced single argument every law- from an otherwise “marked deviation large say in much to fendant, leaving how Furthermore, did the court life.” abiding *11 judge’s professional to “the own part The present case is distinguish- therefore judgment”). able from this court’s decision in Thomas. course, above, Finally,
Of noted as we acknowledge sentenc- that the district ing judge “satisfy must still appellate ruling court’s actual on Brown’s motion court that he was brief parties’ has considered the and opaque. somewhat The dis- court, arguments has a trict reasoned after explaining basis for the sentence exercising it legal his own had chosen decisionmaking impose, asked the authority.” parties if Id. This court has there thus vacat- “anything was else.” ed a sentence where Brown’s counsel replied by “[t]he record saying: ma[de] “I think, clear that the district court judge, you considered the would need to make a applicable finding range, regarding my Guidelines but not much motion for downward Thomas, departure.” else.” United States v. The following entirety is the Cir.2007). Thomas, In of the district response: defendant variety had made a argu- I intend on doing I will that. address all ments a sentencing memorandum about your issues. I will deny the motion for how applied should be to his departure. downward I believe the case. Id. at 341. “[B]ut those arguments been, court has I think I’ve given her unaddressed, went unmentioned save the consideration as it relates for accep- general by statement the district court tance of responsibility. I think in that received, read, that it had and understood ruling view that giving her more the sentencing memorandum.” Id. This consideration, fair than and that will be court concluded that Thomas’s sentence the court’s order. procedurally unreasonable because the in isolation, Read response this would context and did not why record make clear undoubtedly But, be inadequate. previ- imposed district court had the sen- noted, ously review district court’s Lion, tence it did. Id. (citing 491 F.3d at determination looking to the Rita, 2469)). 4 (quoting 339 n. 127 S.Ct. at entire context and Lion, record. See contrast,
In
the sentencing judge in this F.3d
Rita,
at 339 n. 4 (quoting
ing sentence, a lower I cannot find
Brown’s sentence According- reasonable.
ly, I respectfully dissent and would re-
mand Brown’s case resentencing.
The district court procedural committed
error in this case because the court failed to mention or address one of Brown’s cen- FAUTENBERRY, John Petitioner- sentence, tral arguments for lower name- Appellant, ly, represented that her offense “aberrant “truly behavior” and was a marked devia- tion from an otherwise law-abiding life.” Betty MITCHELL, Warden, (Sent. 7-8). J.A. at 116-17 Mem. at Even Respondent-Appellee. when specifically request- counsel No. 05-3568. ed that the court motion, rule on Brown’s the court’s curt response ignored every United States Appeals, Court argument raised in Instead, the motion. Sixth Circuit. the court denied the motion because the Argued: July court had 2007. already given separate Brown a adjustment Guidelines-based downward Decided and Jan. Filed: for acceptance of responsibility, an issue that Brown’s did motion not even mention.
Even majority recognizes that the dis-
trict failure to mention Brown’s argument
aberrant-behavior during the
hearing “troubling],” Maj. Op. at
and that ruling the court’s on Brown’s
motion “imperfect.” Maj. Op. at 612.
Applying adjustment downward in calcu-
lating a range defendant’s Guidelines does
not excuse a sentencing judge from ad-
dressing the arguments defendant’s other