February 2013 Archives

February 25, 2013

Short Wins - Three Odd Cases

Three odd cases were decided last week in the federal circuits.

First, the Eleventh Circuit vacated a set of convictions because the indictment didn't successfully allege that the folks who were convicted had committed a crime.

The Sixth Circuit had a two-fer this week; one case involved sentencing irregularities and the other involved irregularities of a more troubling and frequent kind - cops lying.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Izurieta, Eleventh Circuit: Appellants were convicted of one count of conspiring to unlawfully import goods and six counts of smuggling goods into the United States. Because the indictment did not adequately set forth a violation of criminal law on any of the counts, all of appellants' convictions were vacated. The smuggling counts were based on a regulation, the violation of which resulted in paying a fine, not criminal punishment. The conspiracy count did not adequately put appellants on notice as to what criminal statute they were alleged to have violated, especially given that the vast majority of the indictment focused on acts that were not criminal.

2. United States v. Kurlemann, Sixth Circuit: Eric Duke and Bernard Kurlemann were involved in a scheme to sell homes to straw men who couldn't afford them. Kurlemann was convicted of making false statements to a lending institution, among other offenses. Because the jury instructions for the false statements count included an erroneous legal theory, Kurlemann's conviction was reversed and the case remanded for retrial on this count. At Duke's sentencing for loan fraud and making false statements, the court granted his motion for a downward departure under Guideline § 5K1.1 for substantially assisting in Kurlemann's prosecution, but didn't identify Duke's post-departure Guidelines range. As a result, it was unclear whether or by how much the court varied from that range in imposing sentence. For these reasons, the case was remanded for resentencing.

3. United States v. Shaw, Sixth Circuit: Appellant pled guilty to distributing cocaine after officers discovered large amounts of it in his home during a protective sweep. Police unlawfully entered and remained in the home under false pretenses. First, they lied about having a search warrant - it was actually for a neighbor's home - and second, once inside, they lied again about the address on the warrant. Because the officers had no right to enter the house based on a lie and no right to stay there based on a lie, the interaction violated the Fourth Amendment. As a result, the district court's denial of appellant's motion to suppress the cocaine was reversed, and the case remanded for further proceedings.

February 22, 2013

The Supreme Court Says A Seizure Isn't Incident To A Search That Happened A Mile Away

Someone told the police that Chunon Bailey sold drugs. Worse, he sold drugs and had a gun at his house at 103 Lake Drive in Wyandanch, New York.

That someone was a confidential informant.

The police took that tip and got a search warrant for 103 Lake Drive.

The police were getting ready to go into his house - they had set up outside and were watching it.

They saw Mr. Bailey leave the basement apartment at 103 Lake Drive and get in a car. Two officers followed the car as it drove away. The rest of the search team started searching the house.

A mile away, the cops pulled Mr. Bailey over. They ordered him out of the car and patted him down. They found a ring of keys in his pocket.

They then put him in handcuffs and told him that he was being detained incident to a search warrant at 103 Lake Drive - a mile away.

Inside the house they found a number of things that were unlawful to possess. He was charged in the Eastern District of New York with possessing those things.

Detention Incident to a Search Warrant

1038828_u_s__supreme_court_2.jpgNormally, when the police execute a search warrant, they can hold people who are inside the house that's being searched. Even though holding someone is a "seizure" that generally not only allowed under the Fourth Amendment, there's an exception when the person was held while the police execute a search warrant.

Mr. Bailey's case is a little off that mark though.

Sure, if the cops bust in to your house, it makes sense that they'd want to make sure you don't come after them with a gun or take a magnet to all of your hard drives. And the best way to do that is make sure you're not near a gun or a magnet - which will require a little bit of detention.

So courts are sensitive to that and allow the police to detain someone - even though any detention is a "seizure" within the scope of the Fourth Amendment as a part of executing a search warrant. The Supreme Court said that's ok in Michigan v. Summers.

Though, Mr. Bailey's case, the limits of a detention incident to the execution of a warrant grew way beyond what the rule had allowed in the past - following a guy away from his house, stopping him a mile away, and bringing him back just so he could be "incident" to his place being searched.

Nonetheless,

The Court of Appeals for the Second Circuit ruled that Bailey's detention was proper and affirmed denial of the suppression motion. It interpreted this Court's decision in Summers to "authoriz[e] law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable." 652 F. 3d 197, 208 (2011).

Happily for Mr. Bailey, we have a Supreme Court.

The Court, in United States v. Bailey, held that Mr. Bailey was not detained as a part of a search that was happening a mile away from a place he was trying to leave.

One opinion, written by Justice Kennedy, said this was because the Fourth Amendment balancing of harms that's necessary to figure out if a seizure is "reasonable" cuts against this kind of search. Another opinion, written by Justice Scalia, said this was because Summers announced a bright line rule that just doesn't apply to this case.

But, in the end, Mr. Bailey's detention was not lawful.

February 19, 2013

Short Wins - President's Day Edition

It's a scattershot collection of sentencing remands in this week's short wins.

Also, Happy Belated President's Day everyone, or, as OPM says, happy Washington's Birthday:

This holiday is designated as "Washington's Birthday" in section 6103(a) of title 5 of the United States Code, which is the law that specifies holidays for Federal employees. Though other institutions such as state and local governments and private businesses may use other names, it is our policy to always refer to holidays by the names designated in the law.

Used car dealers with their "President's Day Sales" may differ though.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Battle, Tenth Circuit: Appellant was convicted of conspiracy to possess with an intent to distribute 50 grams or more of crack. He was sentenced to 360 months in prison, and was later resentenced to 324 months after he filed a motion to reduce his sentence based on the retroactive amendment of the crack cocaine guidelines. The 324-month sentence was based in part on the court's finding that appellant was responsible for more than 3.4 kilograms of crack. Because the record did not support attributing this amount to appellant, the court reversed and remanded for resentencing.

2. United States v. Epps, D.C. Circuit: Appellant was convicted of various drug offenses under a Rule 11(c)(1)(C) plea agreement. He was sentenced to 188 months in prison followed by five years of supervised release. The court had jurisdiction to hear the appeal notwithstanding appellant's release from prison and the start of his supervised release. The appeal was not moot because appellant's term of supervised release may be impacted by the outcome of the appeal. Finally, appellant was entitled to a reduction of his sentence under the revised guidelines. For these reasons, the case was reversed and remanded.

3. United States v. May, Ninth Circuit: Appellants pled guilty to receipt of stolen mail and mail theft. The court's loss calculation included expenses the U.S. Postal Service ("USPS") incurred to avert future thefts. The court improperly ordered restitution for USPS' expenses because the mail theft of which the defendants were convicted occurred after, and could not have caused, USPS' delivery procedure change. As a result, the portion of the restitution order awarding restitution for USPS' expenses was vacated.

4. United States v. Patrick, Seventh Circuit: Appellant pled guilty to sex trafficking and was sentenced to 360 months in prison, to be served consecutive to a 20-year state court sentence appellant was serving. Because the court failed to discuss appellant's cooperation with authorities, appellant's sentence was vacated and the case remanded for further proceedings.

5. United States v. Capers, et al., Eleventh Circuit: Bishop Capers, Leon Frederick, and Larry Little were convicted of conspiracy to possess with intent to distribute cocaine and crack cocaine. The court ruled that the Fair Sentencing Act, which reduced the guidelines ranges for the offenses at issue, did not apply to Mr. Capers and Mr. Little's sentencing guidelines calculations because their offenses were committed before the Act was passed. This was error. Consequently, Mr. Capers and Mr. Little's sentences were vacated and the case remanded for resentencing.

February 12, 2013

You Can't Suppress The Body, But You Can Suppress The Fake ID Used To Find The Body

The Supreme Court has said that you can never suppress the body of a person accused of a crime - the person's identity is not able to be kept out of evidence, even if that identity is the result of an unlawful arrest or search.

This is a huge issue in illegal reentry cases. If a person is deported then returns to this crime, that's illegal reentry. If the person is deported after having been convicted of certain kinds of felonies - whoa buddy, that's illegal reentry after having been convicted of an aggravated felony.

In light of the Supreme Court's rule about how you can't suppress the body of the person accused, many people who handle illegal reentry cases find them massively depressing. If you can't suppress the person's identity, even if the knowledge comes from an unlawful search, then you've gutted the Fourth Amendment for people accused of illegal reentry.

Yet, in United States v. De La Cruz, the Tenth Circuit said that a motion to suppress should have been granted when the subject of the motion to suppress was whether a man's identification was taken against his Fourth Amendment rights.

1337574_clean_my_car_3.jpgMr. De La Cruz Was in the Wrong Place

Three ICE agents were staking out Gill's Truck Wash in Tulsa, Oklahoma. They were looking for a man who they thought was in the country illegally. The truck wash wasn't open yet.

A car pulled up with tinted windows. A passenger got out. The agents got a one or two second glimpse of the person driving the car.

They decided that the person driving the car may be the guy they're looking for.

They pulled the car over.

The car was not driven by the man they were looking for - instead, it was driven by Enrique De La Cruz.

Mr. De La Cruz was dropping off his brother Armando. In the backseat of the car sat Mr. De La Cruz's wife and his mother in law. They were joined by Armando's wife.

The agents asked Mr. De La Cruz if he was the man they were looking for. They compared the way he looked to the picture they had of the other man. Mr. De La Cruz was not the other man.

The agent, figuring that he had already pulled the guy over, asked Mr. De La Cruz for his identification. Mr. De La Cruz gave them a fake id. They used the fake id to figure out who he is. Turns out he was in the country illegally - after having been previously deported.

The Tenth Circuit

The Tenth Circuit found that this stop and search violated Mr. De La Cruz's rights under the Fourth Amendment.

The interesting part, though, is what they held about whether he's allowed to complain about the stop.

As the Tenth Circuit set it up

In Lopez-Mendoza, a case addressing civil deportation hearings, the Supreme Court noted that "[t]he 'body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." Id. at 1039. Lopez-Mendoza, however, does not "exempt[] from the 'fruits' doctrine all evidence that tends to show a defendant's identity." Rather, Lopez-Mendoza's "statement that the 'body' or identity of a defendant are 'never suppressible' applies only to cases in which the defendant challenges the jurisdiction of the court over him or her based upon the unconstitutional arrest, not to cases in which the defendant only challenges the admissibility of the identity-related evidence."

So, Mr. De La Cruz can challenge the admissibility of the fake id at his trial. That fake license was taken in violation of his Fourth Amendment rights, so it won't come in at trial.

February 11, 2013

Short Wins - Resentencings Abound

It's been a big week for resentencings - especially in the Sixth and Seventh Circuits.

The DC Circuit came in with an important decision on the BOP's Inmate Financial Responsibility Program. The Ninth Circuit weighed in on supervised release conditions in a sex case.

Though, really, six opinions from our federal circuits last week and all of them involve a resentencing. It's a sad kind of winning.

To the victories?

1155650_berlin_siegessule.jpg1. United States v. Godoy, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 60 months in prison, and ordered to enroll in the Inmate Financial Responsibility Program. Because he could not be ordered to enroll in the program, his sentence was modified to reflect that enrollment was voluntary.

2. United States v. Preston, Ninth Circuit: Appellant was convicted of abusive sexual contact and sentenced to 50 months in prison and lifetime supervised release, subject to several conditions: (1) participating in plethysmograph testing; (2) prohibiting the possession/viewing of "any other material" of a sexual nature; and (3) prohibiting contact with or being "in the company of" children under 18. The court did not make specific factual findings before ordering the testing in condition (1). On remand, if the court again orders testing, factual findings must be made. Because condition (2)'s reference to "any other material" was too broad, remand for clarification on this point was warranted. Finally, remand on condition (3) was appropriate to add a mens rea requirement and for the court to explain its reasons for imposing the condition, given that it implicates significant liberty interests, or, if it cannot, to narrow the condition appropriately.

3. United States v. Deen, Sixth Circuit: Appellant was convicted of distributing crack and sentenced to 66 months in prison and four years of supervised release. After violating supervised release, he was sentenced to two years in prison to "give the Bureau of Prisons another chance to do some in-depth rehabilitation." Because the Sentencing Reform Act prohibits a court from imposing a sentence to enable a person to complete a treatment program or otherwise promote rehabilitation, the court erred in imposing a sentence based on appellant's rehabilitative needs. His sentence was vacated and the case remanded for resentencing.

4. United States v. Love, Seventh Circuit: Appellant was convicted of distributing and conspiring to distribute crack. Because he committed these offenses before the effective date of the Fair Sentencing Act, but was sentenced after, he was entitled to resentencing under the Act's less stringent crack provisions. Resentencing was also proper because the court incorrectly calculated the guidelines sentence. For these reasons, his sentence was vacated and the case remanded for resentencing.

5. United States v. Wren, Seventh Circuit: Appellants were convicted of crack offenses. They both had original Guideline ranges above the statutory floor and received sentences below that floor because of the substantial assistance they provided to the prosecutor. After they were sentenced, the Sentencing Commission made changes to the Guideline ranges for crack that would have permitted a reduction in their sentences. Because the court erred in ruling that appellants were prevented from receiving lower sentences under Guideline § 5G1.1, the case was remanded.

6. United States v. Macias-Farias, Sixth Circuit: Appellant was convicted of drug trafficking and sentenced to 320 months in prison. Because the court failed to make the findings necessary to enhance appellant's sentence for obstruction of justice under Guideline § 3C1.1, remand for resentencing was required.

February 7, 2013

It's Hard To Lie (Though Not For The Reason You Think); or You Haven't Made A False Statement If The Statement You Made Isn't False

Daniel Castro was a high-ranking person in the Philadelphia Police Department. And the Third Circuit's opinion in his case - United States v. Castro - may just be the most awesome published opinion I've seen in months.

Mr. Castro was charged with three separate extortion conspiracies and also with making a false statement to federal agents - a violation of 18 U.S.C. § 1001.

The jury hung on the extortion charges. They convicted on the false statement charge.

He pled to one extortion conspiracy to avoid retrial and the plea agreement had an appeal waiver.

Yet, despite that, the Third Circuit reversed his false statement conviction because the government hadn't proven it. The Third Circuit held that he was so clearly not guilty of making a false statement that it would be a manifest injustice to not reverse on those grounds - so the appeal waiver didn't bar their consideration of the issue.

1095398_right_or_wrong.jpgThe (Not) False Statement

Mr. Castro had a friend, Rony Moshe. Mr. Castro lost some money in a bad investment. He thought of his losses as a debt owed to him by the person he invested with - a man named Encarnacion. Mr. Moshe proposed that he could refer some tough debt collectors to help Mr. Castro collect this "debt" from Mr. Encarnacion. Mr. Moshe really went out of his way to try to work with Mr. Castro.

As you may have already suspected, Mr. Moshe was also an FBI informant.

After a lot of back and forth and a lot of regrettable statements on wires, Mr. Moshe gave Mr. Castro some money that he told Mr. Castro came from Encarnacion. In fact, it came from the FBI.

The FBI interviewed Mr. Castro. The asked him if he ever got money from Mr. Encarnacion.

Mr. Castro said that he did not. Though of course he thought that he did. Though he didn't - the money came from the FBI.

His statement that he didn't get any money from Encarnacion was the basis of his false statement conviction.

Failing to Fib

On appeal, Mr. Castro argued that this wasn't a false statement. In fact, it was a true statement - he did not, in fact, get any money from Encarnacion.

Mr. Castro didn't know that the statement was true - he intended to lie. But, despite his best efforts, he failed to fib.

The Third Circuit set out the standard for a false statement prosecution:

To establish a violation of §1001, the government [is] required to prove each of the following five elements: (1) that [the accused] made a statement or representation; (2) that the statement or representation was false; (3) that the false statement was made knowingly and willfully; (4) that the statement or representation was material; and (5) that the statement or representation was made in a matter within the jurisdiction of the federal government.

The second element is plain as day. And Mr. Castro's statement wasn't false. So, the Third Circuit reversed his conviction for making a false statement.

The Government's (Rejected) Arguments

The government was unhappy with this result - Mr. Castro thought he was committing a crime, even if he actually wasn't. The Third Circuit empathized, but disagreed:

In the broadest sense, it is surely so that Castro was morally wrong even if not legally guilty, but our legal system does not convict people of being bad. If they are to be convicted, it is for specific crimes, and the government here undertook the burden of proving that Castro had committed each element of the specific crime set forth in § 1001. It failed to do that.

The government was really unhappy with this result. They argued that there's a "sting operation exception" to the requirement that a person make a false statement for there to be a successful false statement prosecution. Undercover operations do odd things to the truth. Many is the time I've sat with someone after they've been arrested in a sting and the predominant emotion is betrayal. Folks just can't get over being lied to by someone who turned out to be a federal agent.

The Third Circuit didn't much care for the "sting operation exception"

The ready and dispositive response to that argument is that, even if a "sting exception" to the strictures of § 1001 is a good idea, it is simply not in the statute. Congress knows how to pass laws that penalize statements made to law enforcement officers by a defendant who incorrectly believes the statements to be false. Compare 18 U.S.C. § 1956(a)(1) ("knowing" laundering of funds "which in fact involves the proceeds" of a crime), with id. §1956(a)(3) (intentional laundering of funds "represented to be" proceeds of a crime). But it did not do so when it enacted § 1001, and we are not free to amend the law.

In a desperate move, the government then argued that the money really came "from" Encarnacion, even though they came from the FBI.

The Third Circuit's response - "It is not clear how the quotation marks around the word "from" in that sentence help the argument."

Ouch.

As a result, Mr. Castro's false statement conviction was reversed.

So many ways to be wrong, but morally and in terms of what happened. Yet they add up to make something so right.

February 6, 2013

If A Person Ought To Have A Franks Hearing, Then They Ought To Have A Franks Hearing; Pre Franks Is Not Franks Enough

In a criminal case, most lawyers need to figure out what motions to file. A big part of this is to sit down with the government's evidence and try to figure out what parts of the government's case came from something that violated the constitution.

It's frustrating when some part of the evidence came from a search warrant - challenges to search warrants are tricky, because a judge already signed off on the warrant. It's not to say it can't be done, it's just different than challenging, say, if the FBI ran into a client's office and took a bunch of stuff without a warrant.

Sometimes you can challenge a warrant if the affidavit in support of the warrant clearly didn't establish probable cause to think there was going to be evidence where the cops searched.

The trouble with that is that normally the district court judge won't let you examine any witnesses to rule on the issue - if part of the point of filing pretrial motions is to learn more about the government's case and learn more about what their witnesses are going to be like, then this kind of a challenge to a warrant doesn't get you what you want.

file000265247244.jpgAnother thing you can do, though, is challenge the warrant because the cops lied or left something out of the application for the warrant that was really important. This is called a Franks challenge.

As the Seventh Circuit explained in United States v. McMurtrey,

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that when a defendant makes a substantial preliminary showing that the police procured a warrant to search his property with deliberate or reckless misrepresentations in the warrant affidavit, and where such statements were necessary to the finding of probable cause, the Fourth Amendment entitles the defendant to an evidentiary hearing to show the warrant was invalid.

So, when is it that a person bringing a Franks challenge has made that preliminary showing? That's the subject of United States v. McMurtrey.

But first, the Seventh Circuit explains what the district court's options are when a Franks challenge to a warrant has been made:

A district court that is in doubt about whether to hold a Franks hearing has discretion to hold a so-called "pre-Franks" hearing to give the defendant an opportunity to supplement or elaborate on the original motion. Though permissible, this procedural improvisation is not without risk, as the sparse case law indicates. In such a pre-Franks hearing, the natural temptation for the court will be to invite and consider a response from the government. However, the court should not give the government an opportunity to present its evidence on the validity of the warrant without converting the hearing into a full evidentiary Franks hearing, including full cross-examination of government witnesses. We emphasize that the option to hold such a limited pre- Franks hearing belongs to the district court, not the defendant. If the defendant's initial Franks motion does not make the required "substantial preliminary showing," the court need not hold a pre-Franks hearing to provide the defendant a further opportunity to do so.

I've never seen a district court order a pre-Franks hearing. Now I kind of want to see one - it looks cool. The government doesn't get to talk, but the defense lawyer does. Awesome. It's like the inverse of a grand jury proceeding.

In Mr. McMurtrey's case, there were two affidavits in support of the warrant. They contradicted each other. So one had to be wrong.

At least one.

So, Mr. McMurtrey made a sufficient showing to get a Franks hearing.

That's not quite what the district court wanted to do though.

As the Seventh Circuit explained it

Rather than hold a full Franks hearing, however, the district court held a truncated pre-Franks hearing. The district court permitted the government to offer additional evidence to explain the discrepancies in the affidavits. That evidence should have required a full Franks hearing, yet the defendant was not permitted full cross-examination on the government's new evidence. The court then relied on the untested government evidence to find that the defendant had failed to make a showing sufficient to obtain a full Franks hearing.

Indeed, the defense lawyer started to cross the cop on his affidavit but was shut down on the grounds that the district court wasn't having a Franks hearing.

Because the court didn't give Mr. McMurtrey his full hearing, the case was remanded and his conviction was vacated.

February 4, 2013

Short Wins - The Seventh Circuit Goes Strong, But the Ninth Circuit Goes Interesting; Resentencing, Discovery Violations, And Money Laundering

It's a good week in the circuits for folks accused of federal crimes.

The Seventh Circuit has been active (though sadly without Judge Posner). United States v. Diaz-Rios looks interesting - it's a remand for resentencing in a mitigation role case. Personally, I think the mitigating role reduction is too rarely applied (though I would say that). I'm always happy to see pro-defendant law made on that guideline.

Perhaps most interesting, though, is United States v. Doe - a Ninth Circuit discovery violation case. Looks like all of DOJ's Brady training may not have eliminated the whole problem. Shocking.

Speaking of things that are only shocking ironically, the New York Times had a nice piece on police lying. Though, realistically, if our country is going to put more people in prison than Stalin had in his gulags, a little bit of government lying is going to be hard to avoid.

Also well worth a look is United States v. Demmitt - a reversal for money laundering where the government failed to show that the folks accused of the crime intended to conceal where the money came from.

To the Victories:

1155650_berlin_siegessule.jpg1. United States v. Diaz-Rios, Seventh Circuit: Appellant pled guilty to trafficking a large amount of cocaine. At sentencing, both appellant and the government agreed that a two-level mitigating-role reduction under Sentencing Guideline § 3B1.2 was warranted. Because the reasons the district court gave for refusing this reduction did not show that the court evaluated all of the relevant factors under this Guideline, remand was required for the district court to explain its basis for rejecting the reduction.

2. United States v. Vidal, Seventh Circuit: Appellant pled guilty to offenses arising out of his participation in a scheme to rob a stash house. At sentencing, he argued that he should be sentenced to the mandatory minimum because of his psychological problems. Because the district court's reasons for rejecting appellant's argument that his psychiatric issues warranted a below-guidelines sentence were not clear from the record, his sentence was vacated and the case remanded for resentencing.

3. United States v. Doe, Ninth Circuit: Appellant was convicted of various drug felonies. Because the district court erred in denying two of appellant's discovery requests as overbroad, his conviction was vacated and the case remanded for a hearing to determine (1) whether the requested documents contain or would have led to information that may have altered the verdict and (2) whether the government discharged its obligation to provide the defense with material exculpatory evidence. The court also made several procedural errors at sentencing: (1) failing to accurately state the Guidelines range; (2) failing to give the parties a chance to recommend a sentence; and (3) failing to address all but one of appellant's objections to the Presentence Report and his arguments for further Guideline reductions. For these reasons, if appellant's conviction is reinstated, resentencing is required.

4. United States v. Cervantes, et al., Fifth Circuit: Appellants Mark Milan, Cristobal Cervantes, and Luis Alvarez were convicted of offenses arising out of their scheme to conduct an armed home invasion to steal a large quantity of drugs. In sentencing Mr. Cervantes and Mr. Alvarez, the district court applied a two-level enhancement under Guideline § 2D1.1(b)(1) because the drug conspiracy involved firearms. This was error because Mr. Cervantes and Mr. Alvarez were also separately sentenced for possession of a firearm in furtherance of a drug trafficking crime. Consequently, the case was remanded for resentencing.

5. United States v. Block, et al., et al., Seventh Circuit: Eight appellants pled guilty to offenses arising out of their involvement in a large heroin distribution conspiracy. One of the appellants, Samuel Peeples, received a two-level enhancement under Guideline § 2D1.1(b)(1) for possession of firearms by his co-conspirators. Because this enhancement was not supported by the record, Mr. Peeples' sentence was vacated and the case remanded for resentencing.

6. United States v. Demmitt, Fifth Circuit: Appellant was convicted of money laundering and other offenses. The government failed to present evidence that that the wire transfer at issue was designed to conceal or disguise the nature, location, source, ownership, or control of the fraudulently obtained money. Because no rational trier of fact could have found that the evidence established all of the elements of money laundering beyond a reasonable doubt, appellant's conviction was vacated.