*1 simply trying to out a work deal with the
prosecution. Therefore, the Grisso test
results change do not our decision to up-
hold Ohio state courts’ finding that
officers did not coerce the statements
Murphy sought to have suppressed at tri-
al, and we affirm the district court’s denial
of Murphy’s final claim for habeas relief.
V. CONCLUSION reasons,
For the foregoing we AFFIRM
the denial of petition Murphy’s for a writ corpus. habeas
UNITED America, STATES of
Plaintiff-Appellee,
Jerry PAULL, Defendant-Appellant.
No. 07-3482.
United States Court of Appeals,
Sixth Circuit.
Argued: Oct. 2008.
Decided and Filed: Jan. *3 light of his efforts vary downward For poor health. and his
rehabilitation below we affirm discussed reasons and his sentence. conviction History & Procedural I. Factual of Immi- Hagan Agent Special Lakewood, Boland, Dean ARGUED: (ICE) Enforcement Customs gration Sullivan, A. Michael Ohio, Appellant. investiga- aware, multiple through became Attorney, Cleve- Assistant in im- to traffic websites known tions BRIEF: ON Ohio, Appellee. land, *4 Jerry Pauli’s of pornography, of child ages Ohio, M. Lakewood, Kevin Boland, Dean involving pornography. child activity online Ohio, Cleveland, Offices, Law Cafferkey, a Hagan obtained year, June of Valore, M. Assistant Dean Appellant. for Amherst, Pauli’s Ohio for warrant search Ohio, Cleveland, Attorney, United States detailing an affidavit based on residence Appellee. containing to websites subscriptions pornogra- of images child BOGGS, Judge; and with advertising Chief Before: investigator Judges. as an GRIFFIN, experience Circuit and her phy and MERRITT the executing While pornography. of child of opinion BOGGS, C.J., delivered Pauli that warrant, informed Agent Hagan 530-33), GRIFFIN, (pp. J. the court. the offi- and that arrest not under was concurring opinion separate a delivered only to war- execute were there cers MERRITT, dissenting part. and part to willing he was whether asked rant. She separate 533-35), a delivered (pp. J. story” but “side explain his opinion. dissenting thereafter her. speak with She to declined a local officer of supervision him under left
OPINION Conversation the search. joined and searching and between passing BOGGS, Judge. Chief no there subse- but was continued officers to a pursuant convicted Pauli was Jerry search regarding the discussion quent counts on four agreement plea conditional crime. suspected pornogra- child of possession knowing of search, officers of In the course Protec- Pornography the Child phy “a with garage in the can garbage a and found et seq. § 2252 Act, 18 U.S.C. tion bagged bun- triple and double number 210 months. imprisonment sentenced “there were bundles In those in it. and dles” conviction his appeals both now He and pornography” images of child printed court district that the He claims sentence. disks, a number floppy number “a variety pre-trial on a improperly ruled a number well as CDs, as videotapes, suppress motions motions, including his Pauli’s.” Mr. printouts computer Amendment Fourth of his for violations totaled pornography of child collection his motions rights, Miranda including the video not 3,700 images, over statute because the indictment dismiss evidence took this Hagan Agent tapes. it de- because vagueness void for it and laid kitchen into the garage appeals He also trial. of a fair him prived him Pauli, telling in front table on the the district sentence, claiming that talk with “to needed longer no she guideline incorrectly calculated evidence had [she] failing [him] its discretion and abused range there” and then left the kitchen. Pauli trary, claiming that there was repeated no immediately requested to speak with her interrogation and Pauli never asked for and she returned to the kitchen. counsel. The district court decided the credibility issue in officers, favor of the statement,
Before any Pauli made Agent describing Pauli’s testimony as “complete- Hagan him again advised that he ly not believable” and Mrs. Pauli’s testimo- under arrest. She nevertheless informed ny as “completely unbelievable.” Even if him of his Miranda rights and gave Pauli credibility issue came out the other statement and waiver of those rights, way, the court held that which he interaction signed. read and proceeded He was non-custodial because police give oral tac- taking responsi- statement tics were merely bility reasonable for “all the measures to items that were in the ensure safety officer garage and did not admitting] [and rebut the they contained presumption that conversations pornography.” He subsequently pro- home are non-custodial. vided written statement that memorial- ized his confession and explained his histo- Pauli also moved to dismiss the indict- ry of involvement with child pornography. ment based on a vagueness challenge to *5 §
Pauli was ultimately and allegations indicted on four his that his right to possession counts of of a fair trial was violated. pornography The district court 2252A(a)(2). § under rejected Pauli made a num- both as meritless. ber pre-trial motions, of of which all. the Having failed to obtain suppression of district court First, denied. he moved to the against evidence him or a dismissal of suppress the evidence found under the charges, Pauli entered a conditional Fourth argued Amendment. Pauli that plea guilty of on all four counts of the the search violated his Fourth Amendment indictment, reserving right his appeal rights because the warrant was based on any rulings pre-trial on motions and his affidavit, insufficient and was over- eventual sentence. agreement The stipu- broad. The court held that there was lated to an applicable offense of level probable to search cause prem- entire which included several enhancements ises based on the type of evidence and based the circumstances of the crime crime involved even considering delay (enhancements of two levels for images between the gathering of the warrant evi- containing a prepubescent minor, four lev- dence and the search. alternative, In the for els images portraying sadistic/maso- the court held that there good was “a faith conduct; chistic two for levels the use of that basis the officers believe[d] that the computer; and five for posses- levels
magistrate and, therefore, was correct” of sion over 600 illegal images). The search fit within the exception of United agreement open also left the possibility of States v. Leon. additional reductions or enhancements to
Second, argued Pauli that his confes- this agreed-upon level. offense To that sions were obtained end, violation of the the Pre-Sentence Investigation Re- Miranda rule. Both Pauli and Mrs. Pauli port recommended two additional enhance- that, had testified after the initial conver- ments: two levels justice obstruction of sation with Pauli Hagan, was interrogated § U.S.S.G. 3C1.1 and five levels for by multiple officers throughout two- a pattern of activity involving the sexual search, hour and that in response re- abuse of a minor under U.S.S.G. peatedly requested legal 2G2.2(b)(5). counsel. The ex- The report also recom- ecuting police officers testified to con- against mended a adjustment downward as- officer probation from the testimony pursuant responsibility of acceptance tele- that recounted 1.1(a) signed Pauli’s case because § 3E U.S.S.G. Barry several of with and The addition interviews phone justice. obstruction the al- level and concluded family an offense yielded members adjustments his these reject- 210 to The court range of were credible. legations guideline 37of only “live testi- argument imprisonment. ed months be used. Barry” should Andrew mony from district hearing, the At the adopted fact and findings of made court court then sentenced The district First, the recommendations. report’s prison, the bottom to 210 months had not demonstrated held that Pauli court level of 37. an offense range for guideline responsibility acceptance sufficient ar- so, rejected Pauli’s the court doing coop- because a reduction support based on variances for downward gument in his best interest it when was erated rehabilitation, health, on-going his poor an ob- supported his behavior abuse. child sexual history of his own enhancement. justice struction your “your age, explained The history un- criminal health, of a your courses lack that two Indeed, held the court adjust- § 3553 are factors ] upward U.S.C. [18 der supported of behavior I also I have considered. justice. must and for obstruction Court ment mandatory that there’s the fact credibility determination consider court’s that are finding in this case supported sentences hearing minimum suppression addition, § re- giving himself in But perjured required.” the infor- concluded “taking The court consideration into of events. quires version *6 my to the happens based on to me what clear ... about pretty “it’s mation that ” tes- that emphasized and other court of his demeanor The observation victims.... emotion, hearing that at that “empathy, no given that timony was demonstrated Pauli children, also found The court falsely.” sorrow, those compassion he testified comput- “wiped put in consistently had of children that thousands those be could ... that he trust.” place reason in a by for the people er position this ” this material.... caught possessing that because concluded court The 3553(a) di- opposite point factors evidence held that the Third, the court to do is thing fair rections, only “the pattern a adjustment for supported guidelines.” you within sentence of a abuse the sexual involving activity this enhancement based The court minor. II. Pre-Trial Motions1 Barry, a Andrew from allegations on early son, during the of Pauli’s friend A The him. mid-80s, molested Amend two Fourth Pauli advances Barry to sent from on a letter relied court district which the theories and ment Attorney’s office States the United view, appeal on issues this limits we have dispute over whether There is some McLau See issue. designated be- appeal on issues to hear the jurisdiction 98, (6th Fischer, Cir. 101-02 F.2d v. Appeal is rin sentencing. Notice Pauli's yond reading, light of the 1985). But the better Defen- stating: clarity, "[T]he not a model of indicates, that, "counsel Notice as the fact Appeal ... hereby gives Notice of dant Appeal in a a Notice of to file advised ... questions of was sentencing ... on the Judgment and timely without manner en- cause entitled the above and fact on law date, Order, which, not has Commitment sentenc- court its by district the said tered generalized this is is that 5, journalized,” been one April 2007.” On ing of defendant denying erred in his motion sup period, the same time limitations that have press the evidence seized from his home. applied been to more fleeting crimes do Pauli first argues the warrant did not not control the inquiry staleness for child establish probable because, cause in his pornography. See United States v. Wa- view, the affidavit relied on events that gers, 452 F.3d were “at least thirteen months [after] the (“[Ejvidence that a person has visited last time the accused subscribed to the subscribed to websites containing child ” suspect website.... The district court pornography supports the conclusion that held that the affidavit was sufficient as a likely downloaded, he has kept, and other- law, and, matter of alternative, material.”). possessed wise ap- This probable even if cause lacking, was evi proach to staleness in pornography dence should not be suppressed because cases comports practice with the of other the search good inwas within faith See, circuits. e.g., United States v. Mar- meaning of United States v. Leon. We tin, (2d Cir.2005); F.3d Unit- review both these conclusions de novo. Froman, ed States 355 F.3d 890-91 Kincaide, United (5th Cir.2004). Indeed, in a case similar to (6th Cir.1998). Pauli’s the Ninth Circuit affirmed the deni- al of a motion to suppress because “the matter,
As general Pauli is cor nature of the ... provided crime good rect that an affidavit must allege “facts so reason to believe the computerized closely visual related to the time of the issue of depictions [of child pornography] down- warrant as to justify a finding of prob by loaded [the defendant] would be pres- able cause at that Sgro time.” v. United apartment ent in his States, when the search 206, 210, 287 U.S. conducted ten (1932). months later.” L.Ed. 260 But that principle alone Lacy, States v. does suppression demand in this case. Cir.1997) (internal quotation
Instead,
marks omit-
expiration
“[t]he
probable
ted).
cause is
determined
the circumstances
of each case
depends
on the inherent
affidavit
alleged
case
*7
nature of the crime.” United States v.
Pauli subscribed to child pornography
Hython,
(6th
Cir.2006)
websites and that he continued to do so
(citing Sgro,
210-11,
Applying approach to child alized and remote to provide probable pornography, we have that reasoned be against cause him at the time of the cause the crime is generally carried out in search. But does dispute that the the secrecy of the home and over a long affidavit alleges that he was subscribing appeal notice of give sufficient jurisdic- Cir.2005), to us in an apply effort to principle tion over appeal. entire This broader that designating "[a] mistake in judgment reading by is confirmed the Notice's second appealed fatal, always from is not so long as paragraph beginning appeal ''[t]he will also appeal the intent to ... fairly can be inferred challenge legality ... of the sentence”— ... and party the other was not misled or language that would not make sense unless prejudiced.” States, Sanabria v. United Pauli challenge to intended the conviction U.S. 68 n. 57 L.Ed.2d pre-trial Moreover, and orders as well. our (1978). Thus, jurisdiction we have to re- circuit "overly has avoided technical read- pre-trial view both the and por-
ing[s]” appeal of notice requirement, appeal. tions of Pauli’s Hollan, Caudill v. 431 F.3d pro- experience where an officer’s multiple even from images downloading proba- to establish little evidence too similarly vides habits This makes the sites. cause, make the affidavit to it suffices ble pornography child situated consumers a reasonable by providing bones bare 746 n. 6 not Lacy, 119 F.3d See relevant. and the the defendant between suffi- connection case contained (“The in this affidavit United States crime. See alleged had defendant] that [the evidence cient Schultz, 1093, 1098 depictions visual computerized downloaded affiant’s] (“[AJlthough [an we have held founda- provide a to pornography of child not sufficient experience were training and practices regarding for evidence tion cause probable nexus of a For establish to pornography.”). of such possessors trip as to not so remote was connection which the instance, the websites one of hurdle.”). the extent To lacking’ the ‘so an “on- on described as was Pauli subscribed gaps there are that one is persuaded was “created line-sharing-community” delay be- caused in the evidence pornography child sharing for specifically search, investigation de- tween expert affidavit’s collections.” expe- Hagan’s by Agent they were filled in child economy the barter scription of familiarity with rience, consumers whose sub- context for that provides pornography adequate her gave pornographers in an of likely involved was scription: Pauli continued suspect is reason he therefore images and exchange of That is sufficient images. illegal images possess of such large a cache likely to have on the have relied officer to seizing a for participation. to facilitate in order faith. good purchased warrant Moreover, Pauli last while to the prior months thirteen subscription search Next, that the argues how regarding search, is record silent per it “overbroad” warrant indeed it had or whether long it was garage addition the search mitted the search. time of expired at Cf. be argument This fails the residence. (upholding 538-39 F.3d at Wagers, 452 that a assumes, authority, without it cause of the all despite three cause probable excluded presumptively garage having subscriptions website defendant’s law a house. Our to search warrant valid investiga- government to the prior lapsed “a warrant opposite, that presumes crime, tion). nature of the light residence specified aof search to establish are sufficient allegations these auxiliary the search authorizes premises ac- on-going criminal probability a fair curtilage.” within outbuildings tivity. Watkins, 179 F.3d United States *8 concurring) J. (Boggs, case, affidavit if the any even In sure, cases). there To be (collecting cause, it fits com probable not support did in United to those described similar cases excep good-faith the Leon fortably within “probable cause where Ross evidence tion, allows which admission be aliens are undocumented that reasonable, reliance believe good-faith in “seized a justify will in a van transported ing subsequently that is warrant aon search a suitcase.” search v. warrantless defective.” United States to be held 2157, 824, 72 L.Ed.2d 82 U.S. Leon, S.Ct. 468 U.S. a (1982). not such this is But case 677(1984). that argues Pauli L.Ed.2d Pauli’s, where like In case case. a “bare make it generalities affidavit’s images that sought includes this ex evidence ineligible for therefore bones” and secret, even keep likely wants to defendant that point hold but our eases ception, wife, easily can his and be concealed the factfinder’s choice between them can- basement, erroneous.”); storage garage clearly in in a or a not be United States White, (6th Cir.2001) reasonable search includes those areas. (“[T]he Watkins, (upholding 179 F.3d at district findings See court factual weight authority district is clear that when court credited testi- officer searching portable over mony appellant’s). small items such as view On that records, drugs evidence, there is need of the no the officers asked Pauli provide separate probable and, once for cause or identi an interview he after structures”). auxiliary declined, they fication of In other had no substantive conver- words, if probable there with him he was cause be sations until offered to make a possessed lieve Pauli pornography requested lawyer. statement and never a residence, his probable there was cause to Absent a claim was or interrogated he likely places. attorney, search the most for an hiding asked there can no be
Miranda violation.
B
C
Pauli argues that both
oral
his
written confessions were
in viola
obtained
Pauli claims that the intersection
tion of his
rights
Miranda
and therefore
of prosecutorial discretion and the harsh
should
suppressed.
have been
Because
ness
18 U.S.C.
2252A
have
would
the district court’s resolution of this issue
him a fair
denied
trial
violation of
events,
involved rejecting Pauli’s version of
Process
rights.
Due
and Sixth Amendment
he must
both
demonstrate
that
district
argument
This
premised
on the
that
fact
court’s factual
conclusions were
error
explicit
has
exception
statute
no
that
legal holding
wrong.
its
was
We
possess
those who
view
illegal images
question
review the factual
for clear error
and,
connection with a trial defense
there
legal
and the
question de novo.
Unit
See
(or counsel)
fore, any expert
would neces
Foster,
ed States v.
(and
sarily violate the
prosecu
law
chance
Cir.2004).
tion) by undertaking
analysis
images. For example,
argues
Pauli
no attempt
makes
to demon
wishing
defendant
put
on a
defense
clearly
strate
the district court
erred
images
possessed
illegal
were not
crediting
testimony.
the officers’
photographs but legal digitally generated
only repeats his insistence that his testi
could
images
expert
not do so because no
(and
corroboration)
mony
his wife’s
that he
capable
distinguishing the images would
questioned
that,
during
the search and
willing
be
to undertake the attendant risk
during
interrogations,
these
he repeatedly
Worse,
prosecution.
Pauli argues, the
requested a lawyer should be believed.
government’s experts are inoculated from
now,
Having no
reviewing
new reason
by prosecutorial
this risk
discretion.
transcript
cold
under a deferential stan
light
alleged
handicap to
de
dard, to revisit the district
conclu
court’s
fense, Pauli
concludes
he should not
sions, we
displace
will not
district
at all
possession
be tried
for his
of child
*9
findings
court’s
the
that
Paulis
not
were
pornography.
credible and
the
that
officers’ version was
Pauli,
the truthful
See
City
however,
one.
Anderson v.
allegations
makes no
of
564,
City,
574, 105
Bessemer
470 U.S.
government
S.Ct.
that the
used the law to dis-
1504,
(1985) (“Where
525
Coalition, 535 U.S.
Speech
Free
case,
v.
he
the
that,
had been
if this
show
Ashcroft
1389,
403
152 L.Ed.2d
S.Ct.
court for
district
the
have asked
not
could
it
fails because
(2002).
argument
This
See United
dismissal.
of
short
relief
doc
*4,
vagueness
void for
the
misapprehends
at
Miller,
WL
v.
States
*
an out
is
doctrine
“Vagueness
at
12-13
trine.
LEXIS
Dist.
U.S.
of
(“There
but
2007)
no
First Amendment
is
not of the
growth
(N.D.Ohio Jan.
Fifth
the
of
been
Process Clause
has
de
the Due
that defendant
indication
comport
fails to
A conviction
images
actual
Amendment.
the content
of
prived
which
ar
if
statute under
any persuasive
the
process
there
with due
Nor is
charged.
protective
provide
person
a
a limited
fails to
why
it
obtained
as to
is
gument
is
this
of what
not be issued
fair notice
ordinary intelligence
could
immunity order
Halter,
it
that
matter.”);
v.
standardless
States
is so
United
prohibited,
*9-10
at
discriminatory
enforcement.”
Dist. LEXIS
authorizes
U.S.
2006) (“The
U.S.-,
Williams,
Court
(N.D.Ohio
March
States
—
very
this
issue
L.Ed.2d
with counsel
conferred
128 S.Ct.
pro
mean
(2008).
origins
the United
process
trial and
prior to
These due
images be made
not
[illegal]
vague is
that
the
a statute
posed
renders
that “[w]hat
review,
counsel’s
Defense
be
for
it will sometimes
possibility
available
the
order, with the
a
incrimi
subject
protective
whether the
to determine
difficult
FBI.”).
Indeed,
the
the
proved;
has been
supervision
it
nating fact
establishes
authority
as
Pauli cites
court decision
indeterminancy
precisely
state
the
but rather
this
proves
argument
Williams,
fair
trial
128 S.Ct.
fact is.”
what that
charges un
dismissed the
Williams,
the court
Supreme
point:
Thus,
statute
pornography
child
the Ohio
der
“error
court’s
lower
described
Court
prose
may be
...
Defendant
“the
because
it focused
because
fundamental”
[as]
The
Government.
Federal
by the
cuted
cases
may generate close
fact it
on the
preferable
be
would
feels that
descrip
Court
sufficiently clear
statute’s
not the
try
could
court
a federal
because
outcome”
conduct. Ibid.
prohibited
tion of
that the
running the risk
case “without
error
fundamental
makes
same
indicted
find himself
would
expert
Defense
Por-
the Child
asking us to invalidate
State
of this material.”
possession
ar-
not
Act. He does
Prevention
nography
(Ohio
at 8
No.2004-CR-349
Drady, Case
statute
read the
person
a
cannot
gue
2004). Pauli was
Pleas
Common
Court
he
instead
illegal;
what
and determine
could have
court and
in a federal
tried
he
illegal,
that,
what is
knowing
argues
district
with the
worked
prohibited
between
distinguish
cannot
put on
he could
to ensure
government
inability to
Such
permitted.
and the
chose not
he
But
he wanted.
defense
com-
has been
a crime
whether
determine
right
of Pauli’s
violation
no
There was
to.
addressed,
doctrine
“is
mitted
trial.
a fair
requirement
by the
but
vagueness,
D
doubt.”
reasonable
beyond
proof
govern-
Williams,
at 1846.
argument
pre-trial
final
“A de-
helpful analogy:
provides
ment
seq.
et
is unconstitutional
[the]
use
case could
drug
in a
fendant
capacity
lacks the
“he
ly vague
drug
argue the
statutes
logic to
same
items contain
charged
whether
know
could
unconstitutionally vague because
of sim
images
or virtual
minors”
actual
whether
purchase
time
at the
not know
pornography protected
ulated
*10
First,
buying
application of the
Appel-
he was
authentic cocaine.”
en
drug messenger
justice
Br. at
Like the
of
lee’s
54.
hancement
obstruction
§
arguing
possessed
proper
the substance he
was U.S.S.G.
3C1.1 was
in this case.
drugs,
refuge
illegal
finding
specific
not real
A
perjury sup
acts of
prosecution
put-
ports
is not
constitution but
this enhancement.
See United
government
Lawrence,
ting
prove
its burden to
States v.
308 F.3d
Cir.2002) (“[A]
possessed
pornography.
that he
findings
district court’s
will
1)
be
if:
adequate
sufficiently
record is
Sentencing
III.
clear to indicate which statements the dis
2)
perjurious;
trict court consider
reviewing federal sentences
Booker,
question
court
after
“the
in the end is
district
found that
the statements
perjury.”).
whether the
each
district
abused its dis
satisfied
element
Grossman,
finding
cretion.” United States v.
513 district court
such a
made
here:
(citing
Gall v.
I
judgment
had make a
whether the
—
States,
-,
U.S.
truthfully
officers testified
wheth-
and/or
(2007)).
586, 597,
Under circumstances, date, these it Commitment seems to me has not suggestion journalized that the dissent’s been that such for the docket convictions on” this case. “border[] “the thousands of witchcraft burnings trials and conducted The appeal will also challenge, pursuant in Europe and here from the Thirteenth to 3742(a), to Title U.S.C. legality Eighteenth Centuries” cannot be main- sentence, to wit: That said sentence tained, without some risk of terminological greater unreasonable and was than inexactitude. necessary to comply with the purposes of sentencing provided as
IV. Conclusion U.S.C. seq. et and was in violation law, was the result of judgment The an incor- and/or district court is rect application Sentencing Guide- therefore AFFIRMED. greater
lines is than the sentence and/or GRIFFIN, Judge, Circuit concurring in specified in the applicable guideline part, and dissenting part. range.
I jurisdiction would hold that we lack Given the sole basis for his appeal decide issues unrelated to defendant issues broader raised defendant’s appeal mentioned his notice the ment not with brief, are confronted we appellate specific determi- ap designate if he chooses to jurisdiction. “An question threshold notice.”) (internal quotation sua duty to consider nations in his has pellate omitted). jurisdiction pre- appellate We are therefore whether marks sponte v. Farmers Mattingly beyond considering invoked.” matters properly cluded from Cir. Bank, orders, judgments, State or scope of the 3(c)(1)(B) 1998). the Federal Rule designated in the specifically parts thereof requires Procedure Appellate Rules of appeal. notice of judg “designate the appeal notice of Judge is correct Although the Chief being appeal ment, order, thereof part appeal construe notice generally we has stated Court Supreme ed.” read- liberally “overly avoid technical” in na jurisdictional dictates “Rule 3’s 3(c)’s requirements, defen- ings of Rule prerequi is a ture, and their satisfaction appeal unambiguously notice of dant’s Barry, review.” Smith appellate site court’s determina- challenges the district U.S. Specifically, relating to his sentence. tions (1992). Consistent with L.Ed.2d the notice introductory sentence of directive, have stated we Court’s Supreme *15 states: “man Rule 3 are of requirements the Defendant, Pauli, Jerry Now comes the nature,” Isert in jurisdictional datory and M. attorney, his Kevin by through (6th 756, Co., F.3d v. Ford Motor hereby gives Notice of Cafferkey, who cannot waive Cir.2006), this court and that Court of to the United States Appeal Co., F. Elec. Martin v. Gen. them. the for the Sixth Circuit Appeals Cir.2006) (6th 553, (citing Torres App’x District of the United sentencing States 312, Co., Scavenger 487 U.S. v. Oakland law and fact questions the of Court on 2405, L.Ed.2d 285 by entered entitled cause on the above (1988)). “Con enacting provision, By in its district court the said appellate this Court’s gress has limited April on of defendant in the notice of designated review to issues Glover, 242 F.3d v. United appeal.” States added.) of paragraph The next (Emphasis Cir.2001). (6th if an Accordingly, 333, 335 that defen- emphasizes further the notice specific de designate to appellant “chooses sentence, the uses his appealing dant is appeal of in his notice terminations —rath four “sentencing” words “sentence” from the entire simply appealing er than parts times, designates specific even may specified issues judgment only— appeal: as the basis for the sentence v. Fisch appeal.” McLaurin be raised on unreasonable sentence was That said Cir.1985). (6th er, 98, 102 Accord 768 F.2d necessary com- than to greater and was Servs., Inc., Mgmt. States v. United Univ. sentencing as purposes ply with (6th Cir.1999); 750, 756 Caldwell 191 F.3d seq. et for in 18 U.S.C. provided (6th Moore, F.2d law, in violation and was and/or (“[Wjhere specifies a appeal a notice application of an incorrect the result order, only specified issues particular Sentencing Guidelines and/or may be raised related to order specified than the sentence greater Tire & v. Firestone appeal.”); Wilson range. guideline applicable Co., 510, 516 Cir. Rubber added.) cites but Defendant Pickett, (Emphasis 1991); U.S.C. Cir.1991) (“An his notice—18 two statutes appellant 415 n. 3 3742(a) § 3553—both and 18 U.S.C. judg- portion to a any appeal waives them sentencing statutes. timely appeal. Nowhere Consistent with this inter- defendant, notice represented did who was pretation, the notice states: counsel, by manifest an appeal intent to To preserve right appeal, defendant’s conviction, the district pretrial court’s rul- counsel Monday, was advised on April ings, alleged right denial of the to fan- 16, 2007 to file a Appeal Notice of in a trial, or the constitutionality of the statute timely manner Judgment without on which his conviction was based. Order, which, date, and Commitment
However, footnote 1 opinion of the lead journalized has not been for the docket states: in this case. better reading, light [T]he of the fact added.) (Emphasis that, indicates, as the Notice “counsel The first sentence of the para- second was advised ... Ap- file a Notice of graph does not alter this construction of peal in a timely manner without reads, defendant’s intent. That sentence Judgment Order, and Commitment part: relevant appeal “The will also which, date, journal- has not been challenge, pursuant to Title U.S.C. ized,” generalized is that this is a notice 3742(a), legality sentence.” of appeal give jurisdic- sufficient to us fact, that merely just sentence confirms tion over Pauli’s entire appeal. This says: what it that defendant intended to reading broader is confirmed the No- challenge his sentence. Contrary to the tice’s paragraph second beginning “[t]he opinion, lead the word “also” does not appeal will also challenge legali- demonstrate that defendant intended to ty of language that sentence”— appeal beyond matters his sentence. Hav- would not make sense unless Pauli in- ing already designated appeal his intent to *16 challenge tended to the conviction and “from sentencing” the in general, defen- pre-trial orders as well. dant simply intended to then articulate I respectfully disagree. Defense counsel specific parts those of the sentence to be Judgment referenced the and Commitment challenged: Order in the appeal notice of explain to That said sentence was unreasonable why he filing premature was notice of greater and was than necessary to com- appeal. clearly Defense counsel was con- ply with purposes of sentencing as cerned about impact of the district provided for in 18 U.S.C. seq. et delay court’s in entering judgment written law, inwas violation of and/or on right his client’s appeal. to Rule an result of incorrect application of
4(b)(1)(A) of the Federal
of Appel-
Rules
Sentencing
Guidelines
is
and/or
late
imposes
Procedure
ten-day
strict
greater
than the
specified
sentence
in
filing
deadline for
appeal
notices of
after
the applicable guideline range.
entry
judgment
in a criminal case. Dis-
trict judges carefully
The notice in
advise criminal de-
this case is similar to the
fendants at
sentencing of that
notice United
unforgiving
Harper,
States
No. 07-
2008)
Accordingly,
deadline.
defendant
Cir.
(unpublished)
refer-
Oct.
enced the Judgment and
Commitment
which we held that
juris-
Or-
the court had
der in
content,
his notice not because of its
diction to consider on appeal only issues
but because of
timing
its
sim-
related to defendant’s sentence.1 The no-
—defendant
ply
preserve
intended to
right
Harper
file a
tice in
read:
Unpublished opinions
1.
of this court are
may
stare decisis but
be considered for their
precedentially binding
Lancaster,
persuasive
under the doctrine of
value. United States v.
out,
legal system has
our federal
points
Defen-
that the
hereby given
is
Notice
action,
subject
comput-
Den-
on
above-captioned
bearings
lost its
dant
un-
through his
by and
Harper,
P.
“social
pornography.
nis
Our
er-based
APPEALS
attorney, hereby
dersigned
“misfits” down-
against
these
revulsion”
Appeals
Court of
States
the United
images
perhaps somewhat
loading these
is
the Sentence
the Sixth Circuit
of witch-
rational than the thousands
more
Court,
April
on
entered
of this
in Eu-
burnings conducted
craft trials and
being
in a
Case
Judgment
Criminal
with
Thirteenth to the
and here from the
rope
1,May
2007.
filed on
Centuries,
but it borders
Eighteenth
although the
Thus,
Harper,
1.
at
Id.
Depart-
alone the
thing.
the same
in a
“Judgment
referenced
notice
2,200
brought
has
cases
of Justice
ment
“there
Case,”
we concluded
Criminal
courts. Some
this one in the federal
like
Defendant’s
reasonably read
way to
is no
sending
judges
appellate
trial and
seeking review of
as
appeal
notice
ill
like Pauli to
mentally
defendants
these
Id.
conviction.”
very
sentences.
prison
long
federal
Here,
well,
post
assume
we cannot
as
may
year sentence for Pauli
But
17-1/2
appeal is-
defendant intended
hoc that
yet.
65-year-old,
is a
longest
He
be
simply
sentence
from his
separate
sues
disabled, former minister
psychologically
“Judgment and Com-
words
many complica-
1 diabetes
Type
with
with
notice. To
in the
appear
mitment Order”
this sentence be “not
How could
tions.1
where there
jurisdiction
impart
is to
do so
necessary”
punish
than
greater
may give
appel-
Although we
none.
crime?
doubt,
cannot
we
the benefit
lant
mean-
requirements
jurisdictional
render
First,
colleagues that
disagree
my
I
with
beyond recogni-
stretching them
ingless
permits
sen
Confrontation Clause
“[Fjederal
of limit-
are courts
courts
tion.
hearsay for
on double
tences based
jurisdiction
such
jurisdiction
with
ed
years
fifteen
I
out
previously set
reasons
by the
defined
Constitution
as is
Silverman, 976
ago
Glover, 242 F.3d
by Congress.”
granted
(Merritt,
1502, 1524-27
(internal
citation
quotations
at 335
*17
Keith,
Judges
Martin
dissenting with
omitted).
appeal
to
If defendant intended
judge—
the district
joining). Here
Jones
sentence, he could
beyond
matters
based on
sentence
using a determinate
have,
have,
so stated.
and would
enhancements —increased
Guidelines
reasons,
part
I
For these
concur
many
by five levels
sentence
respectfully
I
dissent
part.
dissent
hearsay three levels
solely on
based
years
opinion. How-
1 of the
footnote
lead
from
to have
are claimed
deep about events that
ever,
jurisdiction
our
assuming arguendo
was no
many years ago. There
occurred
issues,
join
I
the remainder
all
regarding
or cross-examine
Pauli to
way for
confront
Judge Boggs’s opinion.
of Chief
witnesses,
witnesses
showing that
any
no
dissenting.
MERRITT,
Judge,
Circuit
unavailable,
an effort
not even
were
was reliable.
that the evidence
23, 2008,
show
Wall
a recent October
As
v.
case of
Supreme Court
Amir Efrati
recent
by
article
Journal
Street
Crawford
report
673,
(6th Cir.2007);
portions
pre-sentence
See
677
problems
at-
concerning
Pauli and his
Mr.
Sanford,
v.
appendix.
Cir.2007).
an
tached as
Washington,
541 U.S.
124 S.Ct.
(2004) (“The
1354,
the Sixth
suggest
Amendment does not
eventually
months old and
adopted when
any open-ended exceptions from the con-
years
she was 5
old.
requirement
frontation
developed by
to be
courts”),
reinforces the views I ex-
According to information received from
plained in Silverman.
physician,
the defendant’s
Mr. Pauli has
Second, I
agree
do not
that the other
Type
suffered from
I
approxi-
diabetes for
determinate
enhancements that mately
years,
with complications result-
up
years
ratchet
the sentence
17-1/2
ing in retinopathy, neuropathy and fre-
judge
based on
permissible
found facts are
quent severe hypoglycemia and seizures.
the Blakely-Booker-Cunningham Mr. Pauli also suffers from osteoporosis
See,
line of cases.
e.g., my dissenting opin
and Meniere’s disease which results in se-
ions in
Thompson,
United States v.
vertigo.
vere
The defendant also suffers
(6th Cir.2008),
F.3d 556
and United States
hypercholesterolemia,
and has a his-
Phinazee,
Cir.2008).
judgment of the district court and remand vertigo which, for acute and falls given his re-sentencing based on the facts osteoporosis, could have disastrous conse- corresponding to the guilty defendant’s quences such as bone fractures. Mr. Pauli plea. prone pneumonia is also based on hav-
ing bronchiectasis.
Mr. currently Pauli is prescribed Nova- log, Plavis, Pump, Pravacol, Insulin Lisino- APPENDIX pril, 4, Dyazide, Meclizine, Actonel Tabs *18 (Valium), Diazepam Nitroquick, The defendant married Donna Rankin in Ketocona- Cream, 11, 1966, CR, zole June Ambien Tiamcinolone County, Tuscarawas Acetone Cream. years Ohio. Ms. Rankin is 62 old and is a retired school couple teacher. The have the defendant did suffer a fall Katherine, two children: years who is 40 due to his Meniere disease which he Carolina; old and resides North and fractured his left shoulder hip, requir- Eric, who years is 35 old and resides in ing surgery to both. The defendant has Tennessee. Mr. Pauli indicated Katherine undergone also Angioplasty and had two Rather, is not his biological daughter. she placed stents in his heart after suffering a daughter brother, is the of his Phillip, heart attack in January 2007. Mr. Pauli is whom the defendant and his currently wife obtained participating in cardiovascular stated he as therapy. The defendant episodes vertigo regularly
prone prescribed help Valium to reduce the of the attacks. Mr. Pauli stated
frequency triggers episodes
it is unknown what experienced
vertigo and indicated last January episode 2007. America,
UNITED STATES of
Plaintiff-Appellee,
George BOOTH, Defendant-Appellant.
No. 07-5476. Appeals,
United States Court of
Sixth Circuit.
Argued: Oct. 2008.
Decided and Filed: Jan. Dietriek, H.
ARGUED: Robert Duane Morris, D.C., Washington, Appellant. Poole, Christopher D. Assistant United Tennessee, Attorney, Chattanooga, *19 BRIEF: H. Appellee. for ON Robert Morris, D.C., Dietriek, Washington, Duane Poole, Christopher D. As- Appellant. Attorney, sistant United States Chattanoo- Tennessee, Appellee. ga,