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In the 2002 science fiction thriller Minority Report, Tom Cruise manipulated a futuristic computer interface by donning special gloves and waving his hands in the air to manipulate holographic screens of images and data. Using this sytem, he was able to see crimes before they were committed, so that the would-be perpetrators could be pre-emptively arrested and punished. This worked in the movie, because the computer interface was connected to a coven of clairvoyant psychics. And because it was just a movie. And because, well, he’s Tom Cruise. But do not try this if you are a federal district judge ruling on a Rule 29 motion in a drug-distribution conspiracy case, because you will only be waving your hands in the air. And that, luckily for Mr. Samuel Navarette-Aguilar, is not good enough.

Mr. Navarette was indicted on a number of drug charges, the aggregate effect of which was to subject him to a mandatory minimum 20-year sentence if, and only if, the jury found beyond a reasonable doubt that he conspired to distribute a kilogram or more of heroin. The pertinent evidence consisted of the testimony of Mr. Equihua-Ramirez, who obtained heroin from Mr. Navarette, and Mr. Burns, who bought heroin from Mr. Equihua-Ramirez. Faced with Mr. Navarette’s Rule 29 challenge to the sufficiency of the evidence to support the one-kilogram finding, the district judge engaged in a sort of evidentiary reverse-Tetris, trying to stack these witnesses’ vague and cryptic quantity and frequency references on top of one another such that they would reach the one-kilogram mark. It could not be done.

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Most cases before the Court of Appeals are there because the District Court accepted the arguments of one party or the other. The party that did not prevail noted an appeal and the two sides continue to advocate for their respective positions before the appeals court. There is, however, a narrow subsection of cases where the parties agreed as to what the correct ruling in a case should be, but the District Court nonetheless rules otherwise. We are then faced with the odd situation where the defense and the government are jointly asking the appellate court to reverse the judgment of the District Court. In these cases, the parties usually get what they wanted in the first place, but not before the Court of Appeals recruits an attorney to defend the District Court’s ruling.

This sequence of events played out in Lance Williams’s case. In 2008, Williams pleaded guilty to distributing crack and faced an enhanced mandatory minimum sentence of 240 months’ incarceration. Absent the government’s motion for that enhanced sentence, his advisory sentencing guidelines range would have been 130 to 162 months’ incarceration. Shortly before his sentencing, the government moved for a downward departure based on his substantial assistance to law enforcement. He therefore received a 180-month sentence on the government’s recommendation.

Three years later, Williams filed a pro se motion for sentence reduction under 18 U.S.C. § 3582(c)(2). In the motion, he argued that amendments to the sentencing guidelines, which were expressly retroactive, made him eligible for a sentence reduction. As the case progressed, the probation office, Williams’s newly appointed attorney, and the government all argued that Williams should receive a sentence reduction.

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If a defendant takes the stand during a pre-trial evidentiary hearing, or during a trial, and provides testimony that is materially false, it can form the basis for a two point sentencing guidelines enhancement for obstruction of justice. In 1993 the U.S. Supreme Court in U.S. v. Dunnigan, stated that when deciding whether to apply this enhancement, the court must use the federal perjury statute (18 U.S.C. 1621) as a guide. The trial court must review the evidence and make an independent finding that material testimony was not only false but also intentionally misleading.

In a December 9, 2015 opinion entitled U.S. v. Thompson, the Second Circuit granted the Defendant’s appeal and found that the district trial judge failed to make a finding of specific intent to obstruct justice by simply adopting the general conclusions of the pre sentencing report.

When the DEA executed an arrest warrant for Thompson, he allegedly consented to a search of his home. Later he was indicted for conspiracy to possess with the intent to distribute controlled substances. Thompson challenged the search of his home seeking to suppress the digital scales and cash recovered. During an evidentiary hearing Thompson testified that the DEA agents said that if he did not consent to searching his home, his sister and girlfriend would be arrested thereby improperly coercing his consent. Continue reading →

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Reversals of convictions because the government’s evidence at trial was not sufficient to sustain a conviction, despite a jury finding otherwise, are rarest of appellate victories. They are also the sweetest because the result is not a remand for a retrial, but a remand for the entry of a judgment of acquittal. Given this, it is surprising that there have recently been two such reversals this month. In the second of the two, a writeup of the first is coming soon, Daniel Blue, had his two convictions for possession with intent to distribute 100 grams or more of herion and conspiracy to commit the same vacated.

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Charles Williams, Jr. was driving a rented car through central North Carolina in February 2012 when he was stopped for speeding. As is typical in a traffic stop, the deputy sheriff collected Williams’s documentation, issued a written warning, and then returned the documents. After all that occurred, a second deputy conducted a dog sniff of the car. The dog alerted to the trunk of the car and a search revealed crack cocaine in the trunk. Williams and his girlfriend were both arrested.1

Like most Fourth Amendment cases, this one turns on a constellation of facts that are uniquely arrayed in the case. But, since traffic stops and subsequent dog sniffs happen so frequently, the issue of what is reasonable articulable suspicion sufficient to extend a routine traffic stop into an investigatory stop matters.

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On December 15th the D.C. Circuit overturned for plain procedural error a severe sentence in another of those child pornography sting operation cases that appear with some frequency in this jurisdiction.

In a split opinion that is somewhat remarkable for its composition (Senior Circuit Judge Edwards and Circuit Judge Henderson comprising the majority with Senior Circuit Judge Sentelle dissenting) the Circuit reversed the conviction of James Brown, a defendant with a seeming penchant for sexual relations with underage females, including his daughter and at least one granddaughter. The Court found that the district court had plainly erred in sentencing Mr. Brown to a 144-month prison term, which was 47 months in excess of a jointly-requested low end of the Guidelines range and 23 months above the high end. In finding procedural error, the court sidestepped the appellant’s alternative claim of substantive unreasonableness. In particular, the panel found that the lower court’s explanation for an above-Guidelines sentence was inadequate under United States v. Akhigbe, 642 F.3d 1078, 1085-86 (D.C. Cir. 2011)).

Writing for the majority, Judge Edwards found that the district court had plainly failed to provide adequate in-court and written explanations for imposing a sentence that neither the prosecution nor the defendant had sought. Describing the Trial Judge’s in-court characterization of Brown’s conduct “spare and unparticularized,” the panel pointed out that the lower court’s explanation for the above-Guidelines sentence to have been a “‘mere recitation of . . . § 3553(a) factor[s] without application to the defendant being sentenced [which] does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.’” (slip op. at 12) (quoting Akhigbe, 642 F.3d at 1086). Nor did the trial judge’s “unparticularized references to “actual abuse of children’ and ‘predatory conduct’ provide [any] basis for suggesting why the conduct described was more harmful or egregious than that accounted for in the Guidelines calculation, let alone why that conduct merited a sentence 23 months in excess of the applicable Guidelines range.” (slip op. at 12-13). In a similar vein, the Court found “unenlightening” the trial judge’s comment that “the combination of behaviors to which Brown pled is ‘not conduct we normally get around here,’” for that comment failed to explain why Brow’s behavior “was more egregious or harmful than that accounted for by the applicable Guidelines calculation.” (Id. at 3-14).

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In a memorable Saturday Night Live sketch following the power failure that inserted a long intermission in the middle of Super Bowl XLVII, cast members parodied the frazzled NFL commentators desperately trying to fill the empty airtime. Each time the in-studio commentators ran out of things to say, they would bark “Back to you!”, sending the feed to the on-field commentator. The on-field commentator would scramble for insights for a few seconds, then free himself with a “Back to you!”, punting the feed back to the studio. When the latter sent the feed back too quickly, the former angrily objected: “You can’t ‘Back to you’ me – I just ‘Back to you’d you!” It was a humorous, but accurate, portrayal of the frustration and awkwardness that ensues when no one knows just what to do, but everyone knows they have to do something.

Wondering what this has to do with restitution in child porn cases? Everything. Liability for child porn offenses extends well beyond the person who directly abuses the child. It also draws in those who possess and distribute images created by the original abuser, perhaps long after the abuse is over. The notion that theirs is a victimless crime has been rejected, on the rationale that each possession and distribution re-victimizes the victim. All well and good as far as it goes – but how are courts to assign this somewhat abstract concept a dollar value in individual cases? After all, thousands of offenders may possess and view images of any particular victim over the course of years or decades, and generally they come before the court one at a time.

The question cannot be avoided, because Congress provided that restitution for “the full amount of the victim’s losses,” including losses “suffered by the victim as a proximate result of the offense,” is mandatory. 18 U.S.C. § 2259. After much consternation in the circuit courts, the Supreme Court took on the question last year, and . . . punted? The majority in Paroline v. United States, 134 S. Ct. 1710 (2014), confirmed that courts must award restitution “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” For a defendant who is one of possibly thousands who only possessed or distributed images, the award should fall somewhere between “token” and “severe.”

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Rodney Vinson allowed police officers to search his house. The officers found a rifle and ammunition. We don’t know why the police were at his home or whether they were looking for guns or something else, but in keeping with a theme from United States v. McLeod, we again are interested in what happened in a state court years before the federal case.

Mr. Vinson had pleaded guilty to a misdemeanor offense in North Carolina that the government contended was a misdemeanor crime of domestic violence (MCDV). A conviction for an MCDV bars someone from possessing a firearm, but if the conviction is for a crime that is not an MCDV, as Mr. Vinson argued, he did not violate any federal laws by owning a rifle.

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Gregory McLeod pleaded guilty to being a felon in possession of a firearm. The Government sought an enhanced penalty under the Armed Career Criminal Act (ACCA), arguing that Mr. McLeod had at least three prior violent felony convictions, all of which were South Carolina second-degree burglaries. If the Government was right, and the District Court believed it was, Mr. McLeod faced a prison term of fifteen years to life. If Mr. McLeod was right, he faced no more than ten years in prison. The Fourth Circuit doesn’t tell us more about the facts of his offense because what we really care about is what happened in South Carolina state court in 1998.[1]

Mr. McLeod had a total of five convictions for second degree burglary. The District Court found that all five convictions were violent felonies. The indictments in “those cases charged McLeod with breaking and entering a commercial building with the intent to commit a crime.” Seems simple enough, right? But sometimes a state burglary isn’t a federal burglary.

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There have not been many decisions from the D.C. Circuit in recent months – criminal or otherwise. But a rare reversal in an unusual coram nobis proceeding is worth mentioning as we swing into those grey winter months.

In an opinion remarkable for its turnaround – announced only 45 days after oral argument – the Circuit concluded that Kerry Newman, a permanent resident alien since 1980, had established one viable ground on which to claim that his defense counsel might have rendered ineffective assistance by providing erroneous advice at sentencing about the potential consequences of a guilty plea to a felony offense. United States v. Newman, _ F.3d _, 2015 U.S. App. LEXIS 1988 (D.C. Cir., Oct. 2, 2015).

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