July 6, 2014

Short Wins - the Presentment Delay Issue

It's a relatively slow week in the federal circuits.

My favorite case of the last week is United States v. Torres Pimental. You've got to love a suppression motion being granted off of a government delay in presentment.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Spann, Seventh Circuit: Appellant was sentenced to 97 months' imprisonment after pleading guilty to possession with intent to distribute. The sentence was reversed because the judge failed to justify the sentence. The reasoning for the top-of-the-guidelines sentence was improper because it would in essence equate to every drug trafficker being sentenced at the top of the guidelines unless there are unusual circumstances justifying a reduction.

2. United States v. Lopez Martinez, Eighth Circuit: The Eighth Circuit held that a district court, when performing a modified categorical analysis to determine whether a prior state conviction qualifies for a sentencing enhancement, may not rely upon allegations in a superseded indictment to which the defendant did not plead guilty. Appellant's sentence was reversed because his conviction for solicitation to commit "misconduct involving weapons" should not have qualified as a firearms offense under the Sentencing Guidelines.

3. United States v. Lopez-Chavez, Ninth Circuit: Appellant's conviction for illegal reentry was reversed and the case remanded for dismissal of the indictment. The Ninth Circuit decided Appellant's counsel was ineffective where counsel conceded removability of Appellant base on a prior conviction for possession of marijuana with intent to distribute and for failing to pursue appellant proceedings that the BIA had announced could result in a holding that Appellant's conviction did not constitute a removable offense. The prior conviction covers conduct that may fit under either the felony or misdemeanor provisions of the Controlled Substances Act and thus is not necessarily a removable offense.

Defense Attorney: Harini P. Raghupathi

4. United States v. Torres Pimental, Ninth Circuit: Appellant's conviction for importing marijuana was vacated after the Ninth Circuit reversed the denial of a motion to suppress. A four-day delay in presenting Appellant to a magistrate was unreasonable and unnecessary so the statements Appellant made to a federal agent forty-eight hours after arrest, but before he was presented to a magistrate, must be suppressed.

Defense Attorney: Zandra L. Lopez

5. United States v. Medina-Copete, Tenth Circuit: Appellants' convictioins of drug trafficking charges were vacated and remanded. During trial, the district court allowed expert testimony (by a law enforcement officer) on certain religious iconography which purported to prove that the occupants of the vehicle were aware of the presence of drugs. The witness was also allowed to render theological opinions about the legitimacy of religious icons vis-à-vis other venerated figures. Testimony about the connection between a religious icon and drug trafficking was improper under Daubert and Kumho.

Defense Attorneys: Kevin Nault, Amy Sirignano, Kari Converse, and Joseph W. Gandert

6. United States v. Smith, Tenth Circuit: Appellant was convicted of two counts of robbery and two counts of using a gun during and in relation to those crimes of violence. During sentencing the trial court ignored the sentence it had imposed for the gun charges when determining the sentence for the robbery charges. The Tenth Circuit reversed, finding it inappropriate to categorically disregard a sentence for a gun conviction when sentencing for a related crime.

Defense Attorneys: O. Dean Sanderford and Warren R. Williamson

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