September 2013 Archives

September 16, 2013

Short Wins - A Twofer week

Due to my own sloth, we're presenting two weeks of short wins in one post. Here it is!

There are some good cases here, featuring the Armed Career Criminal Act, the Fourth Amendment, and law enforcement agents testifying as experts.

In other news, the Sentencing Commission has put out two "quick fact" sheets. One is on "Theft Property Destruction and Fraud" and the other is on Mandatory Minimum Penalties.pdf. My favorite fun fact - the median loss in federal fraud cases is $95,408.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bonilla-Guizar, Ninth Circuit.pdf: Appellants were convicted of conspiracy to commit hostage taking, hostage taking, and harboring an alien. At sentencing, the court applied two improper enhancements: (1) to Bonilla, the enhancement for a leadership role was improper because the court's findings on this enhancement were ambiguous; (2) for both appellants, the enhancement for use of a firearm was improper, because the evidence was that appellants merely brandished a firearm. For these reasons, appellants' sentences were remanded for a hearing on the leadership role enhancement and to vacate the use of a firearm enhancement.

Attorneys: for Appellants, Francisco Leon and Rosemary Márquez

2. United States v. Lopez-Cruz, Ninth Circuit: Appellant was charged with conspiracy to transport illegal aliens after police answered appellant's cell phone posing as appellant, when appellant had only given police consent to search the phone. The appellate court affirmed the order suppressing evidence obtained from the call because appellant had standing to claim that his Fourth Amendment rights were violated when police answered the call and the consent to search the phone did not extend to answering incoming calls. Further, the district court did not abuse its discretion in denying the government's motion for reconsideration, which raised an exigent circumstances argument for the first time.

Attorney: Devin Burstein for the appellant

3. United States v. Richard North, Fifth Circuit: The district court erred in denying appellant's motion to suppress evidence obtained from the interception of his cellphone, which led to his arrest for possession of cocaine, for three reasons: (1) it lacked jurisdiction to permit interception of cell phone calls from Texas at a listening post in Louisiana under the criminal investigations wiretap statute; (2) the court's non-compliance with the wiretap statute implicates a core concern of the statute; and (3) the government failed to comply with minimization protocols when it monitored one of the phone calls at issue. The denial of the motion to suppress was reversed and the case remanded for further proceedings.

4. United States v. Bahr, Ninth Circuit: Appellant pled guilty to possessing child pornography and was sentenced to two 240-month concurrent sentences. In a prior period of post-release supervision, appellant made statements that were incorporated into his presentence report for the current case. This violated appellant's Fifth Amendment privilege against self-incrimination and, as a result, his sentence was vacated and the case remanded for resentencing.

Attorney for Appellant: Thomas J. Hester

5. United States v. Descamps, Ninth Circuit:The Supreme Court reversed the Ninth Circuit's decision in United States v. Descamps, 466 F. App'x 563 (9th Cir. 2012). The Supreme Court held that (1) courts may not apply the modified categorical approach to sentencing under the Armed Career Criminal Act ("ACCA") when the offense of conviction has a single, indivisible set of elements, and (2) appellant's prior burglary conviction under California law was not for a violent felony within the meaning of ACCA. The Ninth Circuit, in turn, reversed its prior decision and remanded the case for further proceedings.

6. United States v. Freeman, Sixth District.pdf Appellant was convicted by a jury of conspiracy to use interstate commerce facilities in the commission of murder for hire and was sentenced to life without parole. After bringing an appeal, the court ruled that his conviction be vacated and remanded for a new trial on the grounds that the lay testimony given by an FBI agent did not show any clear expert methodology on the formation of his opinions. In other words, the agent's testimony failed to live up to the requirement of Rule 702 that states "the product of reliable principles and methods...reliably applied... to the facts of the case".

7. United States v. Hockenberry & Gray, Sixth District.pdf One of two Appellants' sentences was in part affirmed and reversed. Appellant Hockenberry's district court sentence was vacated and remanded for sentencing on the grounds of the district court erring on their denial of the appellants' motion to suppress and their classifications as armed career criminals. Appellant Gray's sentence was affirmed.

September 10, 2013

Short Wins - Sleepy Time In The Circuits

It's a sleepy week in the Circuits last week - a resentencing and a restitution remand.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Daniels, et al., Fifth Circuit: Appellants were convicted of conspiring to distribute and to possess with intent to distribute five kilograms or more of cocaine. The finding as to drug quantity was vacated because there was insufficient evidence to support it. Appellants' sentences were vacated and the case remanded for resentencing for the court to recalculate appellants' Guidelines range calculations, which were driven by the conspiracy's vacated five kilogram finding.

2. United States v. Edwards, et al., Eleventh Circuit: Appellants were convicted of wire fraud, mail fraud, and money laundering, and ordered to pay over $6 million in restitution. Because the government had no evidence to demonstrate that five of the alleged victims were entitled to restitution, the court clearly erred in awarding restitution with respect to these victims. The restitution order was vacated and the case remanded for a hearing on whether the five individuals at issue are entitled to restitution.

September 3, 2013

Definitely Not Short Wins

On this, the Monday after Labor Day, I suspect many of us have the feeling that work piles up when you leave the office. And, with last week off from Short Wins, that's definitely what happened here.

Without further ado, to the victories!

1155650_berlin_siegessule.jpg1. Miller v. United States, Fourth Circuit: Appellant was convicted of possession of a firearm by a convicted felon. For appellant's two prior convictions (upon which the instant offense was based), he was sentenced to 6 to 8 months for each offense. He filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing that his prior convictions were not qualifying predicate convictions. The court agreed, vacated appellant's conviction, and remanded for the petition to be granted.

Attorney: Ann Loraine Hester for Appellant.

2. United States v. Avila, Tenth Circuit: Appellant was charged with possession with intent to distribute a controlled substance. After his motion to suppress was denied, he entered an unconditional guilty plea to the charge. Because the district court informed appellant that he would retain a right to appeal following the entry of his plea without ensuring he understood that the plea might limit that right, the plea was not knowing and voluntary. Appellant's conviction was vacated and the case remanded with instructions for the court to allow appellant to withdraw his guilty plea.

Attorney: Kari S. Schmidt for Appellant.

3. United States v. Booker, Sixth Circuit: Appellant was convicted of possession of a five-ounce rock of crack cocaine, which he had hidden in his rectum. The police took appellant to an emergency room doctor who, using a procedure appellant did not consent to, removed the rock. The court attributed the doctor's actions to the state for Fourth Amendment purposes. Because the unconsented procedure shocks the conscience and violates due process, the crack rock should have been excluded. Appellant's conviction was reversed.

Attorney: Robert L. Jolley, Jr. for Appellant

4. United States v. Cabrera-Umanzor, Fourth Circuit: Appellant pled guilty to unlawful reentry. At sentencing, the court used the "modified categorical approach" to find that appellant's prior state conviction was a "crime of violence," which increased appellant's base offense level by 16. This was error, as the categorical approach should have been used, which would have resulted in a finding that the prior conviction was not a crime of violence. The case was remanded for resentencing.

Attorneys: Joanna Beth Silver, James Wyda for Appellant

5. United States v. Evans, Ninth Circuit: In two cases, appellant was charged with being an alien in the U.S. after deportation and misrepresenting his identity and citizenship to fraudulently obtain social security benefits, food stamps, make a claim of citizenship, and apply for a passport. His primary defense was that he was a citizen. His primary evidence to support the defense was a delayed Idaho state birth certificate. The certificate was excluded before trial because the court ruled it was "substantively fraudulent." This violated appellant's Fifth Amendment due process right to present a defense. The error was not harmless. Appellant's convictions were vacated and the case remanded for new trials.

Attorney: Stephen R. Hormel

6. United States v. Flores, et al., Ninth Circuit: Appellants pled guilty to conspiring to possess an unregistered firearm arising out of their purchase of a grenade launcher and ammunition for the launcher. At sentencing, the court enhanced appellants' sentences 15 levels after finding that the offense involved a missile under Guideline § 2K2.1(b)(3)(A). This was error because the ammunition did not qualify as missiles. The sentences were vacated and the case remanded for resentencing.

Attorneys: Richardo M. Gonzalez for Appellant Alfredo Lara; Barbara M. Donovan for Appellant Arturo Lara; Frederick Carroll for Appellant Flores.

7. United States v. John Doe, Sixth Circuit: Appellant pled guilty to two counts of distributing over 50 grams of crack cocaine and was sentenced to 130 months after a downward departure was applied. The Fair Sentencing Act was passed four years later, substantially reducing the mandatory minimum and advisory range applicable to appellant's offense. Because appellant's original sentence was based on an advisory range which was subsequently lowered, and because the reduction is consistent with the Sentencing Commission's policy statement in § 1B1.10, he was eligible for a sentence reduction. The sentence was vacated and the case remanded.

Attorney: Melissa M. Salinas

8. United States v. McKye, Tenth Circuit: Appellant was convicted of conspiring to commit money laundering and securities fraud. At trial, the court refused to give an instruction appellant tendered that would have permitted the jury to decide whether the investment notes at issue constituted securities. Instead, the court instructed the jury that the term "security" includes a "note." Because whether a note is a security is a mixed question of law and fact, the court erred in giving that instruction. The government failed to show the error was harmless. Appellant's conviction was reversed.

Attorneys: Howard A. Pincus, Raymond P. Moore, for Appellant

9. United States v. Sedaghaty, Ninth Circuit: Appellant was convicted of conspiring to defraud the United States and filing a false return on behalf of a tax exempt organization. Several errors were made below that, cumulatively prejudiced appellant: the government violated its obligations under Brady v. Maryland by withholding significant impeachment evidence; the court erred in approving an inadequate substitution for classified material in violation of the Classified Information Procedures Act; and the government's search of appellant's hard drives went far beyond the scope of the warrant. The case was remanded for a new trial.

Attorneys: Steven T. Wax, Lawrence Matasar

10. United States v. Swor, Ninth Circuit: Appellant pled guilty to investment fraud and was ordered to pay restitution under the Mandatory Victims Restitution Act. The court abused its discretion by including in the restitution order losses suffered by victims of an investment scheme that began two months after, and was separate from, the scheme in which appellant was involved. These losses were too attenuated to impose liability on appellant. Appellant's sentence was vacated with regard to the amount of restitution order and remanded to reduce the restitution amount.

11. United States v. Thompson, et al., Ninth Circuit: Appellants were convicted of bank larceny and their sentences were enhanced because they were convicted of using a thermal lance to open the back of an ATM to steal the money inside. Their sentences were enhanced under 18 U.S.C. § 844(h)(1), which imposes a mandatory 10-year consecutive sentence (in addition to the underlying felony) on anyone who "uses fire . . . to commit any felony." Because the enhancement does not apply to the use of a thermal lance, the case was remanded for resentencing.

Attorneys for Appellants: Mark Yanis; Gretchen Fusilier; Sean K. Kennedy; Samuel A. Josephs.

12. United States v. Tragas, Sixth Circuit: Appellant was convicted of offenses arising out of her involvement in an international credit and debit card fraud conspiracy. She was sentenced to 300 months in prison. Because the district court used an incorrect version of the Guidelines when sentencing appellant, appellant's sentence was vacated and the case remanded for resentencing.

Attorneys: Erik W. Scharf, Wayne R. Atkins