Sixth Circuit Notes Split Re Existence of Mens Rea Requirement for Sentencing under 18 U.S.C. § 942(c)(1)(A)

Per U.S. v. Nelson, Slip Copy, 2008 WL 1836732 (6th Cir. Apr. 24, 2008):

The statute in question provides that “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm ... shall, in addition to the punishment provided for such crime ... (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” 18 U.S.C. § 942(c)(1)(A). The defendant now contends that because the gun he was admittedly “brandishing” during the attempted robbery was discharged inadvertently-a fact that the government was willing to concede at Nelson's guilty plea hearing-the record fails to establish the requisite mens rea for a mandatory-minimum sentence of 10 years under subsection (iii). Instead, he insists, he should have been sentenced under subsection (ii) of the statute.

In support of this argument, Nelson relies on two recent cases in which sister circuits have found that general intent, at least, is necessary to support sentencing under subsection (iii). Both the D.C. Circuit and the Ninth Circuit consider “an intent requirement [to be] implicit in the discharge provision.” United States v. Brown, 449 F.3d 154, 155 (D.C.Cir.2006) (the subsections “penalize increasingly culpable or harmful conduct” and because subsections (i) and (ii) both require intent, reading a mens rea requirement into the third subsection's “discharge provision would be consistent with this progression”); see also United States v. Dare, 425 F.3d 634, 641 n. 3 (9th Cir.2005) (noting, without analysis, that “discharge” requires a general intent). On the other hand, two other circuit courts have reached the opposite conclusion, creating a circuit split. See United States v. Dean, ---F.3d ----, No. 06-14918, 2008 WL 441602, at *5 (11th Cir. Feb. 20, 2008) (rejecting Brown's progression analysis); United States v. Nava-Sotelo, 354 F.3d 1202, 1204-05 (10th Cir.2003) (under the plain language of subsection (iii), a 10-year minimum sentence is mandatory even if the discharge was accidental or involuntary). In finding that proof of mens rea is not required under subsection (iii), the Tenth and Eleventh Circuits focused on a Supreme Court decision, Harris v. United States, 536 U.S. 545 (2002), in which the Court held that section 924(c)'s brandishing and discharge provisions are “sentencing factors to found by the judge, not offense elements to be found by the jury.” Id. at 556. Those two courts have concluded that “[a]s a result, no mens rea is required.” Nava-Sotelo, 354 F.3d at 1206; see also Dean, 2008 WL 441602, at *4 (subsection (iii) “is a sentence enhancement and merely reflects factors that will enhance sentencing, not elements of an offense”).

The mens rea issue is one on which the Sixth Circuit has not taken a position. It is not one on which we are in a position to rule in this case . . . .

SCOTUS Resolves Split Re Whether State Misdemeanors Can Rank As a "Felony Drug Offence" under 21 U.S.C. § 841(b)(1)(A)

Per Burgess v. U.S., 128 S.Ct. 1572 (Apr. 16, 2008):

Burgess, proceeding pro se, petitioned for a writ of certiorari. We granted the writ, 552 U.S. ----, 128 S.Ct. 740, 169 L.Ed.2d 578 (2007), to resolve a split among the Circuits on the question Burgess presents: Does a drug crime classified as a misdemeanor by state law, but punishable by more than one year's imprisonment, rank as a “felony drug offense” under 21 U.S.C. § 841(b)(1)(A)? Compare 478 F.3d 658 (case below), and Roberson, 459 F.3d 39 (§ 802(44) provides exclusive definition of “felony drug offense”), with United States v. West, 393 F.3d 1302 (C.A.D.C.2005) (both § 802(13) and § 802(44) limit meaning of “felony drug offense”).

The term “felony drug offense” contained in § 841(b)(1)(A)'s provision for a 20-year minimum sentence, we hold, is defined exclusively by § 802(44) and does not incorporate § 802(13)'s definition of “felony.” A state drug offense punishable by more than one year therefore qualifies as a “felony drug offense,” even if state law classifies the offense as a misdemeanor

Eleventh Circuit Discusses Split Re whether Requirements of § 303(b) Are Jurisdictional

Per In re Trusted Net Media Holdings, LLC, --- F.3d ----, 2008 WL 1816396 (11th Cir. Apr. 23, 2008):

[T]he circuits, and other courts, are split on whether the requirements of § 303(b) must be satisfied to convey subject matter jurisdiction over an involuntary case upon the bankruptcy court or whether, instead, they are merely “substantive matters which must be proved or waived for petitioning creditors to prevail in involuntary proceedings.” In re Rubin, 769 F.2d 611, 614 n.3 (9th Cir.1985). In other words, do the commencement requirements of § 303(b) in Title 11 address the jurisdictional power of the court to hear an involuntary case or, rather, does Title 28 contain the jurisdictional grant and do § 303(b)'s requirements simply constitute elements that must be established to sustain an involuntary proceeding?

. . .

The Second Circuit, on the other hand, has held that § 303(b)'s requirements are subject matter jurisdictional. In re BDC 56 LLC, 330 F.3d 111, 118 (2d Cir.2003). . . . Most courts to consider the issue have reached the conclusion that § 303(b)'s filing requirements are not subject matter jurisdictional. See, e.g., Rubin, 769 F.2d at 614-15; In re Earl's Tire Serv., 6 B.R. 1019, 1022-23 (D.Del.1980); In re Saunders, 379 B.R. 847, 855-57 (Bankr.D.Minn.2007); In re MarketXT Holdings Corp., 347 B.R. 156, 161-62 (Bankr.S.D.N.Y.2006); In re Coppertone Commc'ns, Inc., 96 B.R. 233, 234-35 (Bankr.W.D.Mo.1989); In re Alta Title Co., 55 B.R. 133, 136-37 (Bankr.D.Utah 1985). . . . we find the reasoning of the decisions that hold § 303(b)'s requirements are not subject matter jurisdictional to be more persuasive. . . .

E.D. Ark. Notes Split Re Authority to Order Restitution Beyond 90 Days after Sentencing

Per U.S. v. Balentine, Slip Copy, 2008 WL 1699225 (E.D. Ark. Apr. 9, 2008):

The Eighth Circuit has not ruled under which circumstances, if any, a court may impose an order for restitution beyond 90 days after sentencing. There is a split among the Circuits that have addressed this issue. A majority of the Circuits that considered the question found that the 90-day limit will not bar an order for restitution, at least in certain circumstances.^FN36 The Sixth Circuit, however, held that when the “90-day clock runs out, the judgment of conviction and sentence, including the restitution provision, becomes final by operation of the statute.” ^FN37

FN36. United States v. Cheal, 389 F.3d 35, 47 (1st Cir.2004), United States v. Zakhary, 357 F.3d 186, 191 (2d Cir.2004), United States v. Johnson, 400 F.3d 187, 199 (4th Cir.2005), United States v. Moreland, 509 F.3d 1201, 1223 (9th Cir.2007), United States v. DeAngelis, 243 Fed. Appx. 471, 475-76 (11th Cir .2007), United States v. Terlingo, 327 F.3d 216, 220 (3d Cir.2003), United States v. Dando, 287 F.3d 1007, 1011 (10th Cir .2002).

FN37. United States v. Jolivette, 257 F.3d 581, 584 (6th Cir.2001). See also United States v. Farr, 419 F.3d 621 (7th Cir.2005) (vacating a restitution order entered three years after sentencing).

Seventh Circuit Notes Split Re Whether Contents of Bag Were in "Plain View" Because Known By Police With Certainty

Per U.S. v. Tejada, --- F.3d ----, 2008 WL 962837 (7th Cir. April 10, 2008):

The police unquestionably were lawfully in the apartment, and unquestionably entitled to open the cabinet in the entertainment center. And there in plain view was the blue travel bag that they knew contained cocaine. (Whether, though the bag itself did not reveal its contents, those contents could be thought in “plain view” because known with certainty, is an issue that has divided the circuits, e.g., compare United States v. Gast, 405 F.3d 797, 801-02 (9th Cir.2005), with United States v. Williams, 41 F.3d 192, 197-98 (4th Cir.1994), and on which our court has not taken a position and need not do so in this case.)

S.D.N.Y. Notes Split Re Whether ERISA Plan Administrators Are Required to Recognize a Beneficiary's Waiver of Benefits in External Documents

Per Hallingby v. Hallingby, --- F.Supp.2d ----, 2008 WL 878290 (S.D.N.Y. Mar. 26, 2008):

Section 1104 [of ERISA] requires plans to be administered “in accordance with the documents and instruments governing the plan.” As noted in McGowan, there is a Circuit split regarding whether administrators of an ERISA plan are required to recognize a beneficiary's waiver of his or her benefits in external documents. Id. at 244. The majority of Circuits have looked to federal common law to hold that such waivers are valid under certain circumstances, but the minority view is that plan administrators need not look beyond the documents on file with the plan to determine whether there has been a valid waiver effectuated in outside private documents. See id. ( citing Altobelli v. International Bus. Mach. Corp., 77 F.3d 78 (4th Cir.1996) (majority view); Mohamed v. Kerr, 53 F.3d 911 (8th Cir.1995) (majority view); Brandon v. Travelers Ins. Co., 18 F.3d 1321 (5th Cir.1994) (majority view); Metropolitan Life Ins. Co. v. Hanslip, 939 F.2d 904 (10th Cir.1991) (majority view); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275 (7th Cir.1990) (en banc) (majority view); Krishna v. Colgate Palmolive Co., 7 F.3d 11 (2d Cir.1993) (minority view); McMillan v. Parrott, 913 F.2d 310 (6th Cir.1990) (minority view)). As noted, the Second Circuit adheres to the minority rule. See id. ( citing Krishna, 7 F.3d at 16 (2d Cir.1993) (“It would be counterproductive to compel the Policy administrator to look beyond designations [in plan documents] into varying state laws regarding wills, trusts and estates, or domestic relations to determine the proper beneficiaries of Policy distributions.”)) In the instant case, requiring plan administrators to look beyond the plan documents to marital property settlements to determine a beneficiary of a survivor annuity would be inconsistent with the clear directives of § 1104 and the Second Circuit's decision in Krishna.

Eighth Circuit Notes Intra-Circuit Split Re Appropriateness of Plain-Error Review in the Habeas Context

Per Chang v. Minnesota, --- F.3d ----, 2008 WL 850210 (8th Cir. Apr. 01, 2008):

There appears to be a decisional split within our Circuit regarding the appropriateness of plain-error review in the habeas context. In James v. Bowersox, Chief Judge Loken wrote that “we may not simply conduct our own plain error review de novo,” but must apply AEDPA (and, according to the Supreme Court in Fry, Brecht ). 187 F.3d 866, 869 (8th Cir.1999). This rule is in line with the Supreme Court's ruling in Frady. In that case, the Court held that “the ‘plain error’ standard is out of place when a prisoner launches a collateral attack against a criminal conviction.” United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (ruling in the context of a § 2255 proceeding); see also id., at 181 (Brennan, J., dissenting) (noting that the “Court's assumption that [plain-error review] is inapplicable to proceedings under § 2255 is built upon dictum in Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), which suggests that the plain-error Rule is inapplicable in a habeas corpus action under 28 U.S.C. § 2254”). In contrast, courts such as the Richardson court have reviewed for plain error when the state court did so. 188 F.3d at 979. When there is an intra-circuit split, we are free to choose which line of cases to follow, and we choose to follow James and Frady. Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n. 8 (8th Cir.1995).