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July 22, 2014

Short Wins - the Shameless Promotion Edition

Remember back with this blog was more than just Short Wins? Remember when there were long and loving descriptions of cases?

I still aspire to get back to that vision for the blog - that was fun. Seriously, look for more long write-ups soon. I've been distracted by writing for Above the Law (here is a link to my columns (I particularly like the one about cannibalism)) and my day job as a practicing lawyer.

But, if you're jonesing for those long write-ups again, thanks to the good people at James Publishing, you can now read them in one handy-dandy book. It has the jazzy title Criminal Defense Victories in the Federal Circuits. Or you could just read the archives.

In other self-promoting news, the ABA's annual list of best blogs is open for nominations. Here's the link. It would be nice if you'd say something nice about this blog, but don't feel like you have to.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Flores-Mejia, Third Circuit: The court vacated Appellant's sentence after being convicted of reentry after deportation. The Third Circuit, however, used the opportunity to change its current law and now requires a party to object to procedural errors during the sentencing proceeding once that error is evident, otherwise it is not preserved. Because the new rule cannot apply retroactively, Appellant's case was remanded.

Defense Attorney: Robert Epstein

2. Hurst v. Joyner, Fourth Circuit: The district court improperly denied a petition for habeas corpus. The Fourth Circuit remanded for an evidentiary hearing where a juror communicated with her father during the penalty phase of Appellant's capital murder trial. At her father's suggestion, the juror read a section in the Bible about "an eye for an eye," and then voted in favor of the death penalty the following day. An evidentiary hearing was necessary to determine whether that communication had a substantial and injurious effect or influence on the jury's verdict.

Defense Attorney: Robert Hood Hale

3. United States v. Garrett, Sixth Circuit: Appellant was sentenced to 151 months' imprisonment after pleading guilty to one count of conspiracy to distribute more than 50 grams of crack cocaine. Although that sentence was at the bottom of Appellant's guidelines, the Sixth Circuit determined that Appellant was eligible for resentencing because his sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Appellant's initial Guidelines range was 151 to 188 months, but after the Guidelines Amendment, it would be 120 to 137 months.

Defense Attorneys: Bradley R. Hall and James Gerometta

4. Townsend v. Cooper, Seventh Circuit: Appellant sued a number of officials at his correctional facility and the district court granted summary judgment in favor of the Appellees. The court determined, taken in the light most favorable to Appellant, that Appellant raised genuine issues of material fact about whether he had a liberty interest in avoiding transfer to more restrictive prison conditions, which would require procedural due process. Because there was not appropriate notice or an opportunity to be heard, the district court's grant of summary judgment was vacated and remanded.

5. United States v. Harden, Seventh Circuit: Appellant pled guilty to possession with intent to distribute cocaine and Appellant agreed to allow a magistrate judge perform he plea colloquy. Taking and accepting guilty pleas in felony cases is not one of the enumerated duties of magistrate judges and was determined by the Seventh Circuit to be both important and dispositive. Therefore, magistrate judges are not authorized to accept guilty pleas in felony cases, even if both parties would consent.

6. United States v. Sheth, Seventh Circuit: After pleading guilty to health care fraud, the district court entered an order of criminal forfeiture for cash and investment accounts then valued at about $13 million plus real estate and a vehicle. The forfeited assets would be credited against his $12,376,310 restitution. The government then sought further assets to apply to restitution and the district court ordered Appellant to turn over those assets. The turnover order was vacated and remanded for discovery and an evidentiary hearing to determine whether the first set of forfeited assets was sufficient to cover the restitution order.

7. United States v. Doering, Eighth Circuit: Appellant pled guilty to tampering with evidence and was sentenced to 90 months' imprisonment and ordered to pay $45,382.88 in restitution. The restitution order was vacated and remanded because Appellant's plea agreement did not list, as required, that an offense listed in the Mandatory Victims Restitution Act gave rise to the plea agreement. Without that specific, mandatory term, restitution under the MVRA was unauthorized.

8. United States v. Howard, Eighth Circuit: The order of restitution against Appellant was vacated because the calculation improperly included losses from dates preceding the relevant conduct of Appellant's extortion conviction. The losses arose outsides of the dates listed in the indictment.

9. United States v. Nguyen, Eighth Circuit: Appellant's conviction for knowingly shipping, transporting, receiving, possessing, selling, and distributing contraband cigarettes was reversed because there was insufficient evidence. Specifically, the government had no evidence that Appellant was aware of any applicable sales taxes on the cigarettes; the government had no evidence as to Appellant's knowing violation of the statute.

10. United States v. Thomas, Eighth Circuit: Appellants was sentenced to 120 months' imprisonment after pleading guilty to possession with intent to distribute 50 grams or more of methamphetamine. The case was remanded because the district court's oral sentence was ambiguous about the sentencing guidelines range on which the Appellant's sentence as based. On appeal, that ambiguity made it impossible to determine if the district court committed procedural error.

11. United States v. Gonzalez, Ninth Circuit: The Ninth Circuit remanded Petitioner's case with instructions to grant the writ of habeas corpus based on the prosecution's failure to disclose Brady material that would have impeached the credibility of a critical witness. The California Court of Appeal's decision that Petitioner had not established that the evidence was newly discovered was an unreasonable determination of the facts. The court held that the California Court of Appeal's requirement of due diligence was contrary to, or involved an unreasonable application of, clearly established federal law.

Defense Attorney: John Lanahan

12. Wood v. Ryan, Ninth Circuit: The district court improperly denied Appellant's request for a preliminary injunction delaying his execution, which was scheduled for July 23, 2014. Appellant presented claimed that Department of Corrections violated his First Amendment rights by denying him information regarding the method of his execution. Because Appellant presented serious questions to the merits of the claim, and because the balance of hardships tips in his favor, the preliminary injunction should have been granted

13. United States v. Charles, Eleventh Circuit: Appellant pled guilty to charges relating to a conspiring to use unauthorized access devices. Appellant's sentence was vacated because the district court committed legal error when it included a two-level sentence increase for trafficking in unauthorized access devices (for example, a prepaid debit card). Because Appellant was convicted of aggravated identity theft as well, the district court was precluded from considering any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense.

14. United States v. Estrella, Eleventh Circuit: As part of his sentence for illegal reentry, Appellant's received a sentencing enhancement for a crime of violence based on his prior conviction for wantonly or maliciously throwing, hurling, or projecting a missile, stone, or other hard substance at an occupied vehicle. Under the categorical approach, the Eleventh Circuit determined that a conviction for that crime does not necessarily involve proof of the use, attempt, or threat of force. Therefore, the crime of violence enhancement was improper.

15. Bahlul v. United States, D.C. Circuit: Hamdan II held that there cannot be retroactive prosecution for conduct committed before the Military Commissions Act of 2006 unless that conduct was already prohibited under existing U.S. law as a war crime triable by a military commission. But that understand was contrary to the statutory wording, which allowed for the prosecution of any crimes. The D.C. Circuit, applying an ex post facto analysis, determined that Appellant's conviction for providing material support for terrorism and solicitation of others to commit war crimes were not previously offenses that were triable by a military commission, so the convictions were vacated.

Defense Attorneys: Michel Paradis, Mary R. McCormick, and Todd E. Pierce

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

June 30, 2014

Short Wins - the Seventh Circuit Draws a Line on Supervised Release

There's been a lot in the circuits in the last week, but perhaps the most surprising bit is that the Seventh Circuit issued four opinions on supervised release conditions.

Supervised release may not be the sexiest of issues, but, especially in child pornography cases, it matters a lot. I'm not sure what's in the water in Chicago, but whatever it is reaffirms that these conditions need to be narrowly tailored and properly justified.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Ganias, Second Circuit: Following a jury trial, Appellant was convicted for tax evasion. That conviction was vacated because the district court erred in denying a motion to suppress personal computer records. Those records were retained by the Government for more than two-and-a-half years after Appellant's computer was copied pursuant to a search warrant. This unauthorized retention of personal files violated Appellant's Fourth Amendment rights.

Defense Attorneys: Stanley A. Twardy, Jr. and Daniel E. Wenner

2. United States v. Adepoju, Fourth Circuit: Appellant was convicted by a jury of bank fraud and aggravated identity theft and sentenced to 70 months' imprisonment. During sentencing, Appellant was given a sentencing enhancement for sophisticated means. Completing paperwork to open a bank account in another's name, including obtaining that personal information via internet searched, did not constitute sophisticated means, so the sentence was vacated and the case remanded for resentencing.

Defense Attorney: John O. Iweanoge, II

3. United States v. Henriquez, Fourth Circuit: The Fourth Circuit determined that first degree burglary in Maryland did not constitute a generic burglary and therefore does not qualify as a crime of violence under the U.S. Sentencing Guidelines. Appellant's sentence was reversed because he received a sentencing enhancement for having committed a crime of violence.

Defense Attorneys: Paresh S. Patel and James Wyda

4. United States v. Blevins, Fifth Circuit: Appellant received a sentencing enhancement for having a prior felony drug conviction. In order to apply that enhancement, the Government was required to serve notice on Appellant. The Government's service of such information under a first indictment was insufficient when that indictment was dismissed and the Government then filed a second, separate indictment. The notice must be served as part of the prosecution to which the sentencing is connected, so the case was remanded for further proceedings.

5. United States v. Escobedo, Fifth Circuit: During trial, the Government introduced evidence of Appellant's withdrawn guilty plea and related inculpatory statements. Appellant withdrew the guilty plea prior to its acceptance by the district court and proceeded to trial instead. The plea included a waiver of Appellant's ability to challenge the introduction of his withdrawn guilty plea and related inculpatory statements. Because the plea was ambiguous about whether that waiver took effect immediately or only upon the acceptance of the plea, the case was reversed and remanded.

6. United States v. Mackay, Fifth Circuit: After pleading guilty to conspiracy to distribute and possession with intent to distribute marijuana. Because of a clerical error, Appellant's PSR and judgment listed cocaine instead of marijuana. Appellant filed a motion to correct that error. The refusal to correct the PSR was reversed. The Fifth Circuit concluded that the PSR is a part of the record under Rule 36 and because the BOP uses the PSR for classification and designation, the error was not harmless.

7. United States v. Rodriguez-Lopez, Fifth Circuit: Appellant was convicted by a jury of conspiracy to distribute marijuana. The district court applied a three-level sentencing enhancement for his managerial or supervisor role in the drug conspiracy. On appeal, the Court vacated and remanded for resentencing because there was no evidence that Appellant had exercised supervisory control over other members of the conspiracy, nor was he involved in the planning of operations of the organization. Instead, he only recruited another to purchase firearms, and that person recruited others. That involvement was insufficient to prove a managerial position for the sentencing enhancement.

8. United States v. Baker, Seventh Circuit: Appellant pled guilty for failing to register as a sex offender and was sentenced to 77 months' imprisonment followed by a life term of supervised release. The judge also imposed eight special conditions of supervised release. The life term of supervised release was vacated because the judge improperly calculated the guidelines and failed to provide for any justification for exceeding the correct 5-year guidelines term. Three special conditions were also vacated because they were not reasonably tailored or properly defined. Finally, the order was deficient in failing to account for Appellant's potential inability to pay for some of the required treatment and tests of his supervision.

9. United States v. Benhoff, Seventh Circuit: Appellant pled guilty to knowingly transporting and shipping child pornography and, along with his sentence, was given special conditions of supervised release. The court's order on two of the special conditions was remanded sot that the trial court can narrowly tailor them. The trial court must clarify what materials are "sexually stimulating" as well as narrow the scope of the no contact with minors order so it does not block Appellant's access to protected speech.

10. United States v. Farmer, Seventh Circuit: Once again, the Seventh Circuit vacated the special conditions of Appellant's supervised release and remanded for further consideration. In this case, the special conditions bore no reasonably direct relationship to Appellant's underlying crime. Appellant pled to attempted extortion and using interstate communications in that attempt. The two conditions--a prohibition on self-employment and a requirement that Appellant submit to a search of his person, vehicle, office, residence, and property without a warrant--were not reasonably related to his convictions.

11. United States v. Garrett, Seventh Circuit: Appellant's sentencing guidelines were miscalculated after his drug offense conviction. The court did not clearly state the drug quantity that it found attributable to Appellant or adequately indicate the evidence it found reliable in determining Appellant's relevant conduct. Appellant's sentence was vacated and the case remanded for resentencing.

12. Henderson v. Ghosh, Seventh Circuit: Appellant, a prisoner, filed suit against health care providers and corrections employees alleging deliberate indifference to his medical needs. During litigation, Appellant's motions for recruitment of counsel were denied. Only once the defendants filed a summary judgment motion was Appellant's motion for recruitment of counsel granted. This trial court did not properly assess Appellant's competence to litigate his claims, which was only exacerbated by his incarceration. In addition, the factual and legal complexity of the claims necessitated the appointment of counsel in this case.

13. United States v. Glover, Seventh Circuit: Appellant's motion to suppress guns, drugs, and paraphernalia seized from his home pursuant to a search warrant was improperly denied. The search warrant had no information regarding the informant's credibility, which undermined the magistrate's ability to be a neutral arbiter of probable cause. The complete absence of that information was sufficient to raise an inference of reckless disregard for the truth, which warranted reversal.

14. United States v. Johnson, Seventh Circuit: Appellant's special condition of supervised release which required him to participate in sex offender treatment was not supported. Appellant's only sex-related offense was a misdemeanor conviction fifteen years before sentencing in the immediate case. That condition of supervised release was therefore vacated.

15. United States v. Nelson, Eighth Circuit: Appellant's currency was seized pursuant to a lawful traffic stop, where Appellant was found to be carrying a small amount of marijuana and paraphernalia. Appellant had gathered the currency in advance of a road trip from his own savings account, stock dividends, and family. Despite the legitimate sources of the currency, the government instituted a forfeiture proceeding claiming that the currency was substantially connected to drug trafficking. The trial court's ruling allowing the forfeiture was reversed because the Government failed to prove that Appellant was planning to purchase and transport large amounts of drugs and other evidence indicated that Appellant was not engaged in trafficking.

16. United States v. Aguilera-Rios, Ninth Circuit: Appellant's conviction for illegal reentry was reversed. The Ninth Circuit found that Appellant's removal order was invalid because it was based on a conviction under the California Penal Code which was not a categorical match for the federal firearms aggravated felony.

Defense Attorney: Kara Hartzler

17. United States v. Jackson, Ninth Circuit: The Ninth Circuit reversed Appellant's conviction for unlawfully manufacturing or possessing an identification card of the design prescribed by the head of any department or agency of the United States. No rational fact-finder could conclude beyond a reasonable doubt that the fake card Appellant was "of the design prescribed by the head of any department or agency of the United States," because the card was created by the maintenance center at a Marine Corps base and Appellant created a copy of the card previously issued to him because he constantly lost his actual card.

Defense Attorney: Davina T. Chen

18. Boyd v. United States, Eleventh Circuit: Appellant's fourth §2255 motion was dismissed as successive. That dismissal was reversed because the term "successive" does not refer to all habeas petitions filed second or successively in time. Instead, it bars only motions which could have been raised in a claim for relief in an earlier motion but were not. Appellant's three previous §2255 motions did not render the fourth successive because the wrong which he now asserts was not obvious until 2003 and the first §2255 motion was in 2001. The second and third §2255 motions were not decided on the merits and therefore did not make this motion successive either.

19. United States v. Dougherty, Eleventh Circuit: Two Appellants' sentences of 428 months were vacated. The trial court improperly applied six-level sentencing enhancements for assaulting a police officer during immediate flight from an offense. The Eleventh Circuit determined that "immediate flight" did not encompass the assault on a police officer which occurred eight days after the flight began. That is, continuing flight does not qualify as immediate flight.

June 16, 2014

Short Wins - The Immunity Edition

Today's featured defense victory is United States v. Barefoot, which deals with a kind of surprising course of conduct in the Fourth Circuit. In Barefoot, a person gave information to the government to help them investigate other crimes. The information was given on the condition that the information not be used to prosecute him. The government broke that condition.

Happily though, the Fourth Circuit enforced it.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Guzman-Montanez, First Circuit: Appellant was sentenced to 60 months imprisonment after being convicted of being a felon in possession of a firearm and possession of a firearm in a school zone. The latter conviction was reversed because the government's evidence was insufficient to prove that Appellant knew or should have known he was in a school zone. Even though the parties stipulated the distance between the location of Appellant and the school, the distance alone is insufficient to establish knowledge.

Defense Attorneys: Víctor J. González-Bothwell, Héctor E. Guzmán-Silva, Jr., Héctor L. Ramos-Vega, and Liza L. Rosado-Rodríguez

2. United States v. Barefoot, Fourth Circuit: Two of Appellant's six convictions were reversed. In a prior case, Appellant provided the government information as part of a plea agreement. In return, the government promised not to use that information in any subsequent prosecution against Appellant, but it did just that. The convictions on those charges were therefore reversed.

Defense Attorney: Joseph Edward Zeszotarski, Jr.

3. United States v. Hairston, Fourth Circuit: Appellant was convicted of conspiracy to possession with intent to distribute narcotics and sentenced to 324 months imprisonment. In calculating the guidelines, the court determined Appellant had a category IV criminal history. Subsequent to the conviction, one of Appellant's prior convictions was vacated and Appellant filed a habeas corpus petition. That petition was dismissed by the district court because Appellant had previously filed other habeas petitions. That decision was reversed on appeal because this new motion was not successive and should therefore be considered.

Defense Attorneys: Stephanie D. Taylor and Lawrence D. Rosenberg

4. United States v. Martin, Fourth Circuit: After pleading guilty to unlawful possession of a firearm by a convicted felon, Appellant was sentenced to 77 months in prison. That sentence is vacated because the district court erred in calculating the sentence. Appellant's prior conviction for fourth-degree burglary should not constitute a crime of violence under the sentencing guidelines.

Defense Attorneys: Paresh S. Patel. (go Paresh!)

5. United States v. Saafir, Fourth Circuit: Appellant entered a conditional guilty plea to being a felon in possession of a firearm. That plea was reversed and vacated because the probable cause on which the search was based was tainted. Appellant's statements which provided probable cause were elicited in response to an officer's manifestly false assertion that he had probable cause and that the search would proceed with or without Appellant's consent.

Defense Attorneys: John Archibald Dusenbury, Jr. and Louis C. Allen

6. United States v. Garcia-Figueroa, Fifth Circuit: Appellant's sentence was vacated because the district court erred in its application of the grouping guidelines. Appellant's convictions for conspiracy to bring an alien into the United States and for bringing aliens into the United States were grouped, but a third count--illegal reentry of a deported alien--was not grouped. The Fifth Circuit determined that those offenses should be grouped because all are immigration crimes and the victim is therefore the same.

7. United States v. Hill, Fifth Circuit: Appellant was convicted of being a felon in possession of a firearm. He was arrested while sitting in his car in front of his girlfriend's apartment. A police convoy drove through the parking lot and noticed Appellant's girlfriend get out of the car and walk briskly toward her apartment. These facts do not present articulable facts which would allow the officer to suspect that Appellant was engaged in criminal activity. The conviction and sentence were vacated because the seizure violated the Fourth Amendment under Terry v. Ohio, and the firearm should have been suppressed.

8. United States v. Jones, Fifth Circuit: Appellant's conviction for escaping from a halfway house was determined to be a crime of violence under the sentencing guidelines. The Fifth Circuit vacated Appellant's sentence because, unlike some other escape charges, leaving a halfway house does not require overcoming physical barriers or evading security, for example, and therefore does not present a serious potential risk of physical injury to others.

9. United States v. Wright, Fifth Circuit: On remand from the Supreme Court, the court vacated and remanded three cases because the restitution amount must comport with the relative role of the individual in the causal process that underlies the victim's general losses.

10. United States v. Davis, Sixth Circuit: Appellant was sentenced to 262 months' imprisonment after pleading guilty to distribution and possession of child pornography. In calculating that sentence, the trial court erred by applying mandatory statutory minimums. The trial court found that Appellant's 2002 conviction for attempted pandering triggered a sentencing enhancement. The sentencing enhancement is only triggered if the prior crime related to the possession or distribution of child pornography, and Appellant's conviction for attempted pandering did not qualify.

Defense Attorney: Jennifer E. Schwartz

11. United States v. Payton, Sixth Circuit: Appellant's 540-month sentence was vacated as unreasonable. The trial court's sentence was 23 years above the guidelines and 20 years above the government's recommendation. The Sixth Circuit reversed the sentence, citing the goal of reducing recidivism in conjunction with Appellant's age, and determined that the trial court did not provide an adequate explanation for such a departure.

Defense Attorney: Jeffrey P. Nunnari

12. Grandberry v. Smith, Seventh Circuit: Appellant's good time credits were reinstated because there was no evidence that he used prison computers without authorization. All of the work he performed was either at the direction of prison employees or with permission of an appropriate staff person.

13. United States v. Garcia, Seventh Circuit: Appellants were charged with violations under RICO. Appellant Zamora's case was remanded for resentencing because the trial court did not discuss the calculation of the sentencing guidelines nor did it provide an explanation for departing above the guidelines. Appellant Gutierrez's sentence was vacated because the trial court erred by failing to give Appellant credit for acceptance of responsibility.

14. United States v. McGill, Seventh Circuit: A jury found Appellant guilty of both distributing and possessing child pornography. At trial, an entrapment instruction was not provided to the jury. Appellant was charged after his friend, who was arrested for his involvement with child porngraphy, became an FBI informant. After weeks of pestering, Appellant allowed his friend to bring a USB flash drive and copy child pornography from Appellant's computer. Because of those facts, an entrapment instruction was necessary, so the case was reversed and remanded.

15. United States v. Purham, Seventh Circuit: The trial court improperly considered conduct, which occurred outside the charged date range, as relevant conduct during sentencing. The sentence was reversed and remanded for resentencing.

16. United States v. Siegel, Seventh Circuit: Appellants both challenge certain discretionary conditions of their supervised release. The cases were remanded for reconsideration of the overbroad and vague conditions. The Seventh Circuit used these cases as an opportunity to address broad issues with conditions of supervised release. A list of best practices was included in the opinion, which requires probation officers to provide thoughtful justification for each condition, judges to come to an independent conclusion about each condition, and extra clarity in defining the contours of each condition.

17. United States v. Collins, Eighth Circuit: After pleading guilty to being a felon in possession of a firearm, Appellant was sentenced to 100 months' imprisonment. That sentence was vacated because the sentencing enhancement for assaulting a police officer was inappropriate. The court required that the assault occurred during the course of the offense or immediate flight therefrom. Appellant's attempt to stab a police officer with a pen after his arrest while being interviewed did not meet that requirement, so the case was remanded for resentencing.

18. United States v. Volpendesto, Seventh Circuit: Appellant was convicted of a number of racketeering and conspiracy crimes and was sentenced to prison. The court also entered a forfeiture judgment and ordered Appellant to pay $547,597 in criminal restitution. While his appeal was pending, Appellant died. Recognizing a split in other circuits, the Seventh Circuit joining the Fifth, Ninth, and Eleventh Circuits, decided that Appellant' death mooted his case and abated the restitution order.

19. Roundtree v. United States, Eighth Circuit: The case was remanded to the district court for an evidentiary hearing on Appellant's motion to vacate, set aside, or correct his sentence based on ineffective assistance of counsel. An evidentiary hearing is required unless the record conclusively establishes that the attorney's performance was not deficient or that Appellant suffered no prejudice from a deficient performance by the attorney. The Eighth Circuit found that the record was inconclusive about the quality of the trial attorney's performance, so an evidentiary hearing was required.

20. United States v. Aguilar, Eighth Circuit: Appellant's conviction was reversed and remanded because an alternate juror had been present during deliberations. After an initial remand to the trial court to inquire into the alternate's actual participation, the Eighth Circuit found that the alternate's participation prejudiced Appellant. This required reversal and further proceedings.

21. Dixon v. Williams, Ninth Circuit: Petitioner's habeas corpus request challenging a jury instruction on self-defense should have been granted. The inaccurate jury instruction said that an honest but "reasonable" (instead of "unreasonable") belief in the necessity for self-defense does not negate malice and does not reduce the offense from murder to manslaughter. That error was not harmless because it reduced the State's burden.

Defense Attorneys: Randolph Fiedler, Debra A. Bookout, and Rene L. Valladares

22. George v. Edholm, Ninth Circuit: The district court's summary judgment in favor of the police officers was reversed. A doctor, forcibly and without Appellant's consent, removed a plastic bag containing cocaine base from plaintiff's rectum. A reasonable jury could conclude that police officers gave false information about Petitioner's medical condition with the intent of inducing the doctor to perform the search, so summary judgment was inappropriate. Further, if the procedures used by the doctor violated the Fourth Amendment, the officers were not entitled to qualified immunity.

Defense Attorneys: Michael B. Kimberly and Charles Alan Rothfeld

23. United States v. Goldtooth, Ninth Circuit: Appellants' convictions for aiding and abetting a robbery on the Navajo Nation were reversed and remanded. The Ninth Circuit held that no rational juror could find that Appellants had the requisite advance knowledge that the robbery was to occur because the government presented no evidence that that taking of tobacco from the victim was anything but a spontaneous act. The government also did not prove the specific intent element for attempted robbery.

Defense Attorneys: Tyrone Mitchell and James S. Park

24. United States v. Guerrero-Jasso, Ninth Circuit: After pleading guilty to an information alleging that he reentered the country without authorization after being removed, Appellant received a 42-month sentence. The sentence was vacated and the case remanded because the trial court impermissibly relied on a fact that was neither admitted by the Appellant or found by a jury beyond a reasonable doubt. This violated Apprendi and required resentencing.

Defense Attorney: Cynthia C. Lie

25. United States v. Brooks, Tenth Circuit: The trial court applied a sentencing enhancement for Appellant being a career offender. This enhancement was based on classifying a prior state conviction as a felony because it was punishable by more than one year in prison. Such a classification was abrogated by the Supreme Court in Carachuri-Rosendo v. Holder, so the sentence was reversed and remanded.

26. United States v. Davis, Eleventh Circuit: The trial court improperly applied a sentencing enhancement for brandishing a firearm. The jury found that Appellant had possessed a firearm--which requires a mandatory 5-year sentence--but the trial court imposed a mandatory minimum 7-year sentence for brandishing the firearm. Since possessing and brandishing are not one in the same, the case was remanded for resentencing.

27. United States v. Feliciano, Eleventh Circuit: Appellant's conviction for using a gun during a bank robbery was reversed. There was no witness testimony or other evidence about a gun being used during that bank robbery. The insufficient evidence required reversal.

June 5, 2014

Short Wins - the Forfeiture Chart Edition

It's a been a relatively quiet week in the federal circuits. Which is one reason I think this week is a nice one to share this very cool graphic on how forfeiture laws are hurting people in these United States.

Forfeiture is insane. It reminds me too much of the California prison industry lobbying for tough on crime laws - the incentives simply line up wrong (it's a long chart - the short wins are at the bottom).

Here's the chart:

Please include attribution to ArrestRecords.com with this graphic.

Civil Forfeiture, an infographic from ArrestRecords.com

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Ferguson, Fourth Circuit: Appellant was deemed to have violated his supervised release based on possession of marijuana. Because the district court based that finding in part on a laboratory report that was prepared by a forensic examiner who did not testify, the sentence was vacated and remanded.

Attorneys: Nia Ayanna Vidal and Michael S. Nachmanoff

2. United States v. Villegas Palacios, Fifth Circuit: Appellant pled guilty to reentry of a deported alien. He was denied a one-level reduction in the sentencing guidelines because he refused to waive his right to appeal. An amendment to the sentencing guidelines became effective after Appellant's sentencing but pending appeal. Those guidelines apply and require the one point reduction.

3. Vega v. Ryan, Ninth Circuit: The court reversed a denial of Petitioner's habeas corpus petition challenging a conviction for sexual abuse. Trial counsel was ineffective when he failed to review the Petitioner's file and interview a witness who would say the victim recanted the allegations. This was objectively unreasonable and had a reasonable probability of affecting the result of the proceedings.

Attorney: Patricia A. Taylor

4. United States v. Isaacson, Eleventh Circuit: After a jury trial, Appellant was convicted of conspiring to commit securities fraud. His sentence included 36 months' imprisonment and $8 million in restitution. The sentence was vacated and the case remanded because the government did not carry its burden in attributing losses to Appellant's participation in the conspiracy. This affected both a sentencing enhancement for loss amount as well as the amount of restitution owed.

May 21, 2014

Short Wins - the Expert Testimony Edition

In this edition, I think the most interesting case (of a number of interesting cases) is United States v. Garcia.

There, the government had an agent testify as an expert. The Fourth Circuit reversed, because the agent's "expert testimony" exceeded the bounds of what counts as expert testimony.

The way agents get qualified as experts is, often, nuts. It's good to see the Fourth Circuit rolling it back.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Jones, First Circuit: Appellant was sentenced to two life sentences, as well as various other 10-to-40 year sentences, related to child pornography and child sex act charges. The First Circuit found that Appellant's prior conviction did not require proof that he acted with the intent to degrade, humiliate, or arouse the victim and therefore did not qualify as a predicate offense requiring a life sentence. Because the sentences for the other charges were impacted by the two life sentences, the case was remanded for resentencing.

Defense Attorney: Jonathan G. Mermin

2. United States v. Lucena-Rivera, First Circuit: Appellant pled guilty to one count of conspiracy to commit money laundering and was sentenced to 220 months in prison. Because the trial court did not make sufficient findings of facts regarding the sentencing enhancement for being "in the business of laundering funds" the case was remanded for factual findings.

Defense Attorneys: Martin G. Weinberg and Kimberly Homan

3. United States v. Santiago-Burgos, First Circuit: After pleading guilty to a drug conspiracy charge, Appellant was sentenced to 97 months' imprisonment. Appellant argued, and the government conceded, that two criminal history points were improperly assessed. The First Circuit therefore remanded for resentencing.

Defense Attorney: Heather Golias

4. United States v. Sepulveda-Hernandez, First Circuit: The First Circuit held that a statute which doubles the maximum available penalty for drug distribution in close proximity to a youth center is an independent offense and not just a sentence-enhancing factor. The evidence at trial was not sufficient to support a conviction for that offense, so the conviction was vacated.

Defense Attorney: Irma R. Valldejuli

5. United States v. Gill, Second Circuit: Appellant's collateral challenge to his order of deportation was denied by the district court, which relied on the fact that §212(c) of the Immigration and Nationality Act had been repealed. The repeal of §212 effectively eliminated statutorily-provided discretionary relief from deportation to a class of non-citizens, including Appellant. Allowing deportation of Appellant would have an impermissible retroactive effect on those who relied on §212 when they were tried and convicted. The case was therefore remanded.

6. United States v. Pena, Second Circuit: During sentencing, Appellant received a sentencing enhancement for obstruction of justice based on written statements he made in support of a motion to suppress. In denying the motion to suppress, the trial judge found Appellant's statements not credible. The sentencing judge then applied a sentencing enhancement based on the trial judge's finding of falsity in Appellant's statements. The Second Circuit found that the district court committed clear error in determining that Appellant willfully made false statements and remanded for resentencing.

7. United States v. Smith, Third Circuit: As part of Appellant Smith's sentence for bank fraud and aggravated identity theft, he was ordered to pay restitution of $68,452. The case was remanded once prior, and Appellant's restitution amount was increased to $77,452. Because the district court exceeded the scope of remand by revisiting the restitution amount, the additional $9,000 in restitution was vacated.

Defense Attorney: Peter A. Levin

8. Barnes v. Joyner, Fourth Circuit: Petitioner, who was convicted of first-degree murder and sentenced to death, appeals the denial of his writ of habeas corpus. Because the post-conviction court failed to apply a presumption of prejudice and also failed to investigate the alleged juror misconduct which led to the petition, the case was remanded for an evidentiary hearing.

Defense Attorneys: Milton Gordon Widenhouse, Jr. and George B. Currin

9. United States v. Blackledge, Fourth Circuit: Appellant was civilly committed as a sexually dangerous person under the Adam Walsh Child Protection and Safety Act. During the commitment hearings, Appellant's lawyers had twice moved to withdraw as counsel, but both motions were denied. The Fourth Circuit found that it was abuse of discretion to deny the motions to withdraw because the trial judge did not engage in an adequate inquiry as to the substance of the motion to withdraw. The district court erred in failing to examine the length of time Appellant and his attorney had ceased communication and trial preparation. The judgments on the motions to withdraw were vacated and the case remanded for further consideration.

Defense Attorney: Richard Croutharmel

10. United States v. Garcia, Fourth Circuit: After a jury trial, Appellant was convicted of narcotics trafficking. Those convictions were vacated because the trial court abused its discretion by allowing an FBI agent to testify as both an expert and lay witness. The court's cautionary instruction to the jury and sustaining some objections was not sufficient to mitigate the risk of prejudice.

Defense Attorney: Todd Michael Brooks and Erek L. Barron

11. United States v. Ocasio, Fourth Circuit: Appellant was convicted by a jury for extortion under the Hobbs Act and was ordered to pay restitution to Erie Insurance as part of his sentence. The Fourth Circuit vacated the restitution order because Erie Insurance was never proven, or even alleged, to be a victim of the conspiracy, and restitution awards must be tied to the loss caused by the convicted offense.

Defense Attorneys: Matthew Scott Owen and Daniel S. Epps

12. United States v. Ramirez-Castillo, Fourth Circuit: Appellant was sentenced to 33 months' imprisonment after a jury determined that two objects he made while in prison were weapons and violated a federal statute prohibiting the possession of those weapons. The convictions were vacated because the jury was never asked whether Appellant was guilty, but only whether the first object was a weapon and whether the second object was possessed by Appellant.

Defense Attorney: Cameron Jane Blazer

13. United States v. Sadler, Sixth Circuit: Appellants, a husband and wife, were convicted of various crimes associated with operating pain-management clinics. One of Mrs. Sadler's convictions - for wire fraud - was not supported by the evidence so the conviction was reversed. The wire fraud statute does not punish those who simply use a scheme to defraud, but instead only those who use a scheme to defraud with the intention of depriving others of money or property. The government did not prove Mrs. Sadler's intent to defraud others of money or property.

Defense Attorney: William G. Brown

14. Avila v. Richardson, Seventh Circuit: The Court reversed the denial of habeas relief and remanded for further proceedings because the state court applied a rule of law contrary to controlling precedent of the Supreme Court. Appellant's claim of ineffective assistance of counsel was wholly denied because the court said such an appeal was waived by his plea. However, the Supreme Court has held that a guilty plea can be challenged if the plea itself was the result of ineffective assistance of counsel.

15. United States v. Ford, Eighth Circuit: On remand from the Supreme Court following United States v. Burrage, the Eighth Circuit held that the government had not proven at trial that the drugs Appellant sold were a but-for cause of death of a buyer. The conviction and sentence were vacated.

16. United States v. Shaw, Eighth Circuit: Appellant was sentenced to 378 months' imprisonment after the court determined a mandatory-minimum 7-year sentence was required for brandishing a firearm in furtherance of a drug-trafficking offense. Because the jury had not made a specific finding about the firearm, the sentence was vacated and remanded for resentencing.

17. United States v. Stokes, Eighth Circuit: Appellant pled guilty to possession with intent to distribute. The sentencing judge based the sentence in part on the idea that Appellant's long-term unemployment was indicative of being a drug dealer. The Eighth Circuit found that this determination was clearly erroneous because the facts in the records only supported the fact that Appellant had previous used drugs. The case was remanded for reconsideration of Appellant's request for a downward variance.

18. Butler v. Long, Ninth Circuit: The Ninth Circuit reversed the district court's denial of an untimely habeas petition. Petitioner was not provided an opportunity to amend the previously-field habeas petition and so was entitled to equitable tolling from the date of the first dismissal until the filing of the current petition.

Defense Attorney: John Ward

19. Dixon v. Williams, Ninth Circuit: Petitioner filed a habeas corpus petition challenging the jury instruction on self-defense. Because the trial court's instruction was inaccurate--asking for an honest but "reasonbale" (instead of "unreasonable) belief in the necessity for self-defense--and it lowered the State's burden of proof, the writ of habeas corpus must be granted.

Defense Attorneys: Randolph Fiedler and Debra A. Bookout

20. Frost v. Boening, Ninth Circuit: The writ for habeas corpus should be granted because the trial court infringed on Petitioner's Sixth and Fourteenth Amendment rights when it precluded counsel from making a reasonable doubt argument to the jury. The Ninth Circuit held that Petitioner was deprived of his right to demand that the jury find him guilty of all elements of the crime and that the burden of proof had shifted.

Defense Attorney: Erik B. Levin

21. United States v. Brooks, Ninth Circuit: The district court failed to set time limitations on an involuntary medication order. Because over a year had passed from the order, the Ninth Circuit ordered a new inquiry pursuant to Sell v. United States.

Defense Attorney: C. Renee Manes

22. United States v. Preston, Ninth Circuit: Appellant's conviction was reversed and the case remanded for a new trial because the trial court improperly admitted a confession by the Appellant. Taking into consideration the particular circumstances of the Appellant, the Ninth Circuit held that the confession was involuntary because the tactics used by law enforcement, along with Appellant's intellectual disability, created a coercive interrogation and an involuntary confession.

Defense Attorneys: Keith Swisher

23. United States v. Ramirez-Estrada, Ninth Circuit: Appellant's convictions for attempted entry after deportation and making a false claim to United States citizenship were reversed. The Ninth Circuit held that Appellant's post-invocation silence was improperly used to impeach him at trial.

Defense Attorney: Caitlin E. Howard

24.United States v. Thum, Ninth Circuit: Appellant's supervised release was revoked by the trial court after it found him guilty of encouraging or inducing an illegal alien to reside in the United States. The judgment was reversed and the case remanded with instruction to dismiss the petition because merely escorting an alien from a fast food restaurant near the border to a nearby vehicle does not violate the statute.

Defense Attorney: Devin Burstein

25. United States v. Castro-Perez, Tenth Circuit: Appellant pled guilty to distributing cocaine and was sentenced to 63 months' imprisonment and three years of supervised release. Under the sentencing guidelines, Appellant received a two-level enhancement for committing a drug crime while possessing a dangerous weapon. The Tenth Circuit held that there was no physical relation between the weapon and the drug trafficking activity as required for the sentencing enhancement and therefore remanded for resentencing.

Defense Attorney: Deborah Roden

26. United States v. Hill, Tenth Circuit: Appellant was convicted of charged related to a bank robbery. During trial, an FBI agent was allowed to testify as an expert about his interrogation of Appellant and about Appellant's credibility. The Tenth Circuit found that it was plain error to allow expert testimony opining on the credibility of a witness, including the Appellant, and that this error affected Appellant's substantial rights. The convictions were reversed.

Defense Attorneys: Howard A. Pincus and Warren R. Williamson

27. United States v. Thomas, Tenth Circuit: After a jury trial, Appellant was found guilty of two drug charges and sentenced to 130 months in prison. Appellant's sentence was vacated because the district court erred during sentencing by applying harsher guidelines based on six prior convictions. The government's evidence had only addressed one of the six convictions, so it was improper for the sentencing court to rely on the other five.

Defense Attorney: Thomas D. Haney

28. United States v. Harrell, Eleventh Circuit: Appellant pled guilty to robbery charges and received an agreed-upon sentence of 25 years. This conviction was vacated because the trial court was improperly involved in plea negotiations. The trial court instigated and orchestrated the plea negotiations, commenting on the potential sentences both after trial and after a plea. This seriously affected the integrity and fairness of the judicial proceeding, so Appellant must be allowed to withdraw the guilty plea.

April 23, 2014

Short Wins - the "Venue in a Federal Criminal Case Is Not Infinite" Edition

There's a lot in this week's edition of Short Wins, but my favorite is United States v. Aurenheimer.

Federal venue is a broad thing. It's nice to see a circuit push back a little on just how broad it can be.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Millan-Isaac, First Circuit: Appellants pled guilty to aiding and abetting a robbery and possession of a firearm. On appeal, the First Circuit held that the district court erred in sentencing both Appellants. During Appellant Cabezudo's sentencing, the court erred by failing to calculate or discuss the appropriate sentencing guidelines range. During Appellant Millan's sentence hearing, the court considered new information for which Appellant did not have notice. Therefore both sentences are vacated and remanded.

Defense Attorneys: Megan Barbero, Gregory P. Teran, Rachel I. Gurvich, and Julie Soderlund

2. United States v. Aurenheimer, Third Circuit: Appellant's conviction was vacated because the district court did not have proper venue. For a cybercrime conspiracy case, proper venue exists only where one accessed information without authorization or obtained information, neither of which occurred in New Jersey.

Defense Attorneys: Tor B. Ekeland, Mark H. Jaffe, Orin S. Kerr, Marcia C. Hofmann, and Hanni M. Fakhoury

3. United States v. Velazquez, Third Circuit: Appellant's motion to dismiss should have been granted because his right to speedy trial was violated. The government tried for nearly five years to apprehend Appellant by running his name through the NCIC database, but other leads were also available. Those standard practices for finding a wanted person should have been attempted.

Defense Attorney: Jerome Kaplan

4. United States v. White, Third Circuit: Appellant's conviction was vacated because the court improperly denied Appellant's motion to suppress. A search of Appellant's house, which had turned up guns, was unlawful because Appellant was arrested outside of the house. The district court should have considered whether there was an articulable basis for the protective sweep of the home.

Defense Attorneys: Leigh M. Skipper, Brett G. Sweitzer, Sarah S. Gannett, and Keith M. Donoghue

5. United States v. Whiteside, Fourth Circuit: The Court held that federal inmates may use a federal habeas corpus motion to challenge a sentence that was based on the career offender sentencing guidelines enhancement when case law has determined that the enhancement was inapplicable to the Appellant. The court therefore vacated the sentence and remanded for resentencing.

Defense Attorneys: Ann Loraine Hester and Henderson Hill

6. United States v. Barbour, Sixth Circuit: Appellant pled guilty to a federal firearms defense. At sentencing the government argued that two previous robberies - which had occurred on the same night at the same gas station - constituted two offenses. The Sixth Circuit held that the government has the burden of showing the offenses were committed on different occasions from one another and the government failed to meet that burden here so the case was remanded for resentencing.

Defense Attorney: Laura E. Davis

7. United States v. Kamper, Sixth Circuit: Appellant Head's sentence was vacated because the district court erred in applying sentencing enhancements for obstruction of justice and playing an aggravating role as manager or supervisor of a conspiracy. The Court explained that telling an obvious lie under oath is insufficient to support a sentencing enhancement for obstruction of justice when the trial court did not make factual findings regarding the elements of perjury including materiality and intent. Without determining the proper standard of review, the Court held that the aggravating role enhancement was improper because it requires management of participants, not merely management of the criminal scheme.

Defense Attorney: Allison L. Ehlert

8. United States v. Kilgore, Sixth Circuit: Appellant challenged a four-level sentencing enhancement for being a felon in possession of a firearm. Appellant became a felon when he stole two unloaded firearms from a police station, and because he had stolen firearms, was "in possession" of them. However, the Sixth Circuit held that the sentencing enhancement can only be applied to those whose offense triggering application of the enhancement is separate and distinct conduct from the underlying offense. In this case there was not "another felony offense" so the sentence was vacated.

Defense Attorney: Laura E. Davis

9. United States v. Farano, Seventh Circuit: Appellants were convicted by a jury of mail and wire fraud, money laundering, and theft of government funds. The order for restitution was vacated and remanded so the district judge could consider evidence on whether the refinancing banks had based their decision in whole or in part on fraudulent representations by the Appellants.

10. United States v. Martins, Eighth Circuit: The case was reversed because the district court improperly denied a post-trial motion to suppress evidence. The Eighth Circuit found that there was not probable cause for the traffic stop because the officer's inability to read a license plate controls, not a post-arrest determination regarding the percentage or portion of the text covered. The trial court therefore erred by not suppressing the evidence because the office stated he was able to read the license plate within 100 feet of the car.

11. United States v. Anthony Fast Horse, Eighth Circuit: Appellant was convicted of one count of criminal sexual conduct. The jury instruction during trial failed to require the jury to find that Appellant had knowledge that the victim lacked the capacity to consent to the sexual conduct. The conviction was reversed and remanded for a new trial.

12. United States v. Curtis, Eighth Circuit: After being found incompetent to stand trial, Appellant was required to take medication involuntarily. In ordering the involuntary medication, the trial court failed to consider all the circumstances relevant to Appellant and the consequences and purposes of that medication required by Sell v. United States. The case was remanded for further findings.

13. United States v. Christian, Ninth Circuit: Appellant was convicted of two counts of transmitting threats through interstate commerce. The Ninth Circuit vacated both convictions because the district court abused its discretion by excluding Appellant's expert solely because the expert examined Appellant for competency rather than diminished capacity and would testify regarding diminished capacity. The district court should have evaluated whether the substance of the testimony would help the jury make a determination of Appellant's ability to for the specific intent of the crime. A new trial was required.

Defense Attorney: Jess R. Marchese

14. United States v. Dominguez-Maroyoqui, Ninth Circuit: Appellant's sentence was vacated and remanded because the trial court imposed a sentencing enhancement based on Appellant's 1996 conviction for assaulting a federal officer under 18 U.S.C. §111(a). The Ninth Circuit held that a conviction under §111(a) is not categorically a crime of violence and does not require, as a necessary element, proof that Appellant used, attempted to use, or threatened to use physical force.

Defense Attorney: Gary P. Burcham

15. United States v. Emmett, Ninth Circuit: The district court denied Appellant's motion for early termination of supervised release. That order was vacated and remanded for further proceedings because the trial court denied the motion without a hearing or any response from the government or probation office. The trial court's only reasoning was that Appellant had not demonstrated undue hardship caused by supervised release, but that was not an adequate basis for denying Appellant's motion.

Defense Attorney: James H. Locklin

16. United States v. French, Ninth Circuit: Appellant was convicted by jury of two money laundering convictions. Both convictions were reversed because there was insufficient evidence to support them. The trial court also erred by failing to define "proceeds" as "profits" during jury instructions.

Defense Attorneys: Michael J. Kennedy, Rene Valladares, and Dan C. Maloney

17. United States v. Harrington, Ninth Circuit: The Ninth Circuit reversed Appellant's conviction for refusing to submit to a blood alcohol test in a national park. It was a violation of due process to convict Appellant when park rangers told him three times that his refusal to submit to the test was not a crime itself, even though it was.

Defense Attorney: Katherine L. Hart

18. United States v. Brown: A magistrate judge ruled on Appellants motion to vacate his sentence under 28 U.S.C. §2255. The Eleventh Circuit held that a §2255 motion is not a civil matter and magistrate judges only have statutory over civil matters under the Federal Magistrate Act of 1979. The motion was therefore vacated and remanded.

19. United States v. Ransfer, Eleventh Circuit: A jury convicted Appellants of multiple counts of robbery, conspiracy, and firearm charges. The Eleventh Circuit vacated convictions for Appellant Lowe arising out of one robbery because there was no evidence that he took any action in furtherance of that crime. The case was remanded for resentencing.

April 7, 2014

Short Wins - The "the victims a person is convicted of defrauding have to be the same ones as the ones he was indicted for defrauding" edition

Last week was a busy week in the federal circuits. There's a lot there to be interested in, especially if you have a case at the intersection of mental health issues and the law.

If, however, your interests are a bit more prosaic, you might want to read United States v. Ward. There, the person accused was convicted of defrauding different people than the indictment alleged he defrauded.

Amazing stuff.

To the victories!

1155650_berlin_siegessule.jpg1. Davis v. Humphreys, Seventh Circuit: The Seventh Circuit indicated that mental incompetence can justify tolling the statute of limitations for a motion under 28 U.S.C. §2244 in certain situations. Because the district court did not conduct proper fact finding to determine Appellant's mental limitations here, the Court chose to remand and did not yet articulate the standard it will use in these situations.

2. United States v. DeBenedetto, Seventh Circuit: The district court's commitment order was vacated and the case remanded for further proceedings because the hearing and written findings were inadequate. To require a person to undergo involuntary mental health treatment, there are four findings that the district court must make, but failed to do so. On remand, the district court is required to make explicit findings about each of the factors.

3. United States v. Long, Seventh Circuit: One Appellant must be resentenced under the Fair Sentencing Act, which is applicable to any person sentenced after the Act was enacted, regardless of when the underlying conduct occurred. The district court had applied the pre-FSA mandatory minimum based on findings which would not be enough under the Fair Sentencing Act.

4. United States v. Burrage, Eighth Circuit: On remand from the Supreme Court, the Eighth Circuit reversed Appellant's conviction for one count - the distribution of heroin resulting in death - based on improper jury instructions. The case was remanded to the district court to enter a conviction for the lesser-included offense of distribution of heroin because the evidence was insufficient to support a conviction for distribution resulting in death.

5. United States v. Emly, Eighth Circuit: Appellant was convicted of one count of receipt of materials involving sexual exploitation of children and three counts of possession of materials involving the sexual exploitation of children. The three possession counts are multiplicitous - the possession of copies of several different files on separate devices constitutes only a single violation. The case was remanded with instructions to vacate all but one of the possession charges.

6. Albino v. Baca: The Court held that the appropriate procedural device for a pretrial determination of whether administrative remedies have been exhausted under the Prisoner Litigation Reform Act is a motion for summary judgment. Summary judgment should have been granted for Appellant because he satisfied the exhaustion requirement because no administrative remedies were available at the jail where Appellant was confined.

Defense Attorney: Andrea Renee St. Julian

7. United States v. IMM, Juvenile Male, Ninth Circuit: Appellant's conviction for child sex abuse was reversed and remanded because Appellant was not Mirandized and was in custody when he made inculpatory statements. This violation of Appellant's Fifth Amendment requires suppression of the statements.

Defense Attorney: Jill E. Thorpe

8. United States v. Ward, Ninth Circuit: Appellant's convictions for two counts of aggravated identity theft were reversed. The district court improperly allowed the jury to convict Appellant of stealing identities of victims who were not the specific victims named in the indictment.

Defense Attorney: Davina T. Chen

9. United States v. Feliciano, Eleventh Circuit: Appellant was convicted of bank robbery charges and use of a firearm. There was insufficient evidence of one gun charge. The evidence was that an accomplice never saw Appellant with a gun and knew Appellant did not have a gun at one robbery. This required reversal of the conviction.

10. United States v. Grzybowicz, Eleventh Circuit: Appellant's conviction for distribution of child pornography. The court determined that distribution required delivery or transfer to another person and Appellant had only emailed images to himself. Because the evidence was insufficient to convict Appellant on this charge, the conviction was vacated and the case remanded for resentencing.

11. United States v. Clark, D.C. Circuit: Appellant was convicted of bank and wire fraud. The district court applied Sentencing Guidelines, which were not published until after the crimes. This retroactive application violated the Ex Post Facto Clause and required remand for resentencing.

Defense Attorneys: Jessica L. Ellsworth, Peter S. Spivack, and Matthew J. Iaconetti

April 1, 2014

Short Wins - The Forfeiture Order Gets Reversed Version

There were a handful of good wins in the federal circuits last week. Notably, United States v. Annabi, pushed back on a government forfeiture because the language in the indictment was inadequate. Forfeiture is a huge issue in criminal cases in federal court these days - it's good to see the home team winning in this area.

Also of note is In re Joannie Plaza-Martinez dealing with a sanction of an AFPD. It's sad to see a criminal defense lawyer sanctioned, especially an AFPD. So it's nice to see that sanction reversed.

To the victories!

1155650_berlin_siegessule.jpg1. In re Joannie Plaza-Martinez, First Circuit: Appellant is an Assistant Federal Public Defender who was sanctioned by the trial judge for asking to postpone a sentencing in one case because she was starting a trial in another case. Finding an abuse of discretion, the First Circuit vacated the sanction.

Defense Attorneys: Hector E. Guzman, Jr., Hector L. Ramos-Vega, and Patricia A. Garrity

2. United States v. Annabi: Appellant was convicted of three counts of mortgage fraud and the trial court ordered forfeiture for all three counts. The indictment for one of those counts did not use the properly statutory language to allow for forfeiture, so that forfeiture was vacated and remanded.

Defense Attorneys: Edward v. Sapone and Paula Schwartz Frome

3. United States v. Vargem, Ninth Circuit: Appellant's sentence was miscalculated under the sentencing guidelines. The court erred in applying a six-level enhancement based on weapons found in Appellant's home and also miscalculated the base offense level.

Defense Attorneys: Steven G. Kalar, Candis Mitchell, and Steven J. Koeninger

4. Davis v. Walker, Ninth Circuit: The district court denied Appellant's request to appoint a guardian ad litem and instead stayed Appellant's civil rights case until Appellant was restored to competency. The Ninth Circuit held that the indefinite stay was a final appealable decision. The stay was vacated because it failed to adequately protect Appellant's rights.

Defense Attorney: Kayvan B. Sadeghi

March 28, 2014

Short Wins - The Smurfing Edition

The big news in this edition of Short Wins is United States v. Abair - a simply crazy Seventh Circuit.

I already wrote about it for a general legal audience on Above the Law (Inspector Javert Goes Smurfing in Indiana) - for our purposes, the legal issue is whether she was appropriately crossed on statements in her tax returns or student loan applications.

I had a case years ago where the AUSA and I litigated whether he could use similar statements in cross if my client testified. We lost. Happily, we weren't able to appeal the decision, but it's freakin' insane the way this stuff comes in sometimes. Abair is a nice step in moving the law in the right way.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Diaz-Rodriguez, First Circuit: Appellant was convicted at trial of aiding and abetting interference with commerce by threats of violence and one count of using a firearm during the commission of a crime of violence. Those convictions were vacated because Appellant was denied his Sixth Amendment Right to Counsel when it forbade him from retaining new counsel during trial without inquiring into his conflict with his present counsel.

Defense Attorney: Rafael F. Castro Lang

2. United States v. Abair, Seventh Circuit: During Appellant's trial for structuring financial transactions in order to evade federal reporting requirements, the prosecutor cross-examined Appellant about alleged false statements on a tax return and student financial aid applications. Because the government lacked a good faith basis for believing Appellant had lied on those documents, the Seventh Circuit reversed the conviction and remanded for a new trial. The Seventh Circuit determined that the information elicited during that cross-examination was prejudicial and harmful error.

3. United States v. Cabrera-Gutierrez, Ninth Circuit: The Court withdrew its June 3, 2013 Opinion and filed this Amended Opinion. The Court held that the district court erred in sentencing Appellant as a Tier III sex offender based on a prior conviction under an Oregon statute. The district court improperly applied the categorical approach to determine how that prior conviction would impact Appellant's sentencing enhancement, so Appellant's sentence was vacated.

Defense Attorney: Rebecca L. Pennell

4. United States v. Cortes, Ninth Circuit: Appellant was tried for drug conspiracy charges after he was arrested during an undercover reverse sting operation. The conviction was reversed because the district court gave the jury an improper jury instruction on an entrapment defense. In giving the jury instruction, the district court erred in excluding that drugs or any profit from the sale of drugs could be a basis for inducement.

Defense Attorney: Gary P. Burcham

5. United States v. Montes-Ruiz, Ninth Circuit: The district court erred in sentencing Appellant by ordering a sentence which was to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case. Since it is impermissible to impose a sentence which will run consecutively to a hypothetical sentence, Appellant's sentence was vacated and the case remanded for resentencing.

Defense Counsel: Devin Burstein

6. United States v. Peyton, D.C. Circuit: The trial court admitted evidence gathered from Appellant's apartment as a part of two separate warrantless searches. Because the first warrantless search was not lawfully permitted, the convictions were vacated and remanded.

March 18, 2014

Short Wins - The Money Laundering Leadership Edition

It's a good week for sentencing remands in the federal circuits. To my mind, the most interesting case is United States v. Salgado, where the Eleventh Circuit reversed a district court for considering the person who was being sentenced's role in the underlying offense that money was laundered in connection with, when the person was sentenced for money laundering. When you're figuring out the guidelines, the Eleventh Circuit said you can't do that.

Mr. Salgado was a leader in the drug operation in the case, but he wasn't a leader in the money laundering. It turns out there's an application note that says leadership on one offense doesn't translate into leadership for the other.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Aviles-Santiago, First Circuit: At his sentencing, the district court increased Appellant's sentence based on information the court knew only from sentencing Appellant's wife in an earlier case. Because Appellant was not given notice of that issue, and because the information was not supported by the record, Appellant's sentence was vacated.

Defense Attorney: Raymond L. Sanchez Maceira

2. United States v. Ortiz-Vega, Third Circuit: The Third Circuit decided, as an issue of first impression, that sentence modifications for crack cocaine offenses under 18 U.S.C. §3582(c)(2) are retroactive. Appellant's request for modification, which was denied at the district court, is granted, and the case remanded.

Defense Attorneys: Sarah S. Gannett and Christy Unger

3. United States v. Salgado, Eleventh Circuit: In calculating the guidelines range for a money laundering offense, the district court considered both the money laundering offense and Appellant's role in the drug conspiracy which generated the money laundering. Because the sentencing guidelines do not allow consideration of the underlying offense, the sentence was vacated and the case remanded.

March 12, 2014

Short Wins - The Aggravated Identity Theft, 18 U.S.C. § 1028A, and Stacking Edition

Aggravated identity theft - charged under 1028A - seems like it's getting more and more popular among federal prosecutors. It does come with massive leverage in plea negotiations; a conviction for a violation of 18 U.S.C. § 1028A carries a mandatory 2 years in prison, consecutive to any other count of conviction. I'm starting to see these in cases beyond the garden variety identity fraud gift card cases - like tax and health care fraud.

The statute says that for subsequent 1028A convictions, a district court has discretion whether to stack them. And United States v. Chibuko addresses exactly that issue and the importance of reading a statute.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Chibuko, Second Circuit: Appellant was convicted of various fraud crimes, including three counts of aggravated identity theft under 18 U.S.C. § 1028A. Although sentences under § 1028A usually carry a two-year sentence, each to run consecutive to each other, Appellant's charges are part of the same scheme involving the same victim. Because the district court did not appreciate its ability to have those sentences run concurrently, the case is remanded for resentencing.

2. United States v. Taylor, Second Circuit: Appellants' convictions for robbery of a pharmacy were vacated. Statements from Taylor were used during trial against all appellants, but those statements were found to be involuntary because Taylor had ingested a large number of pills as he was arrested. Admitting those statements against each of the Appellants was not harmless error, so their convictions were vacated and the cases remanded for new trials.

Defense Attorneys: Kelley J. Sharkey, Jillian S. Harington, and Colleen P. Cassidy

3. United States v. Strayhorn, Fourth Circuit: Appellants were convicted on a number of robbery charges. On appeal, the Fourth Circuit held that a partial fingerprint found on duct tape was insufficient evidence to convict Janson Strayhorn of robbery. The court also held that Jimmy Strayhorn's sentence must be vacated because the district court failed to instruct the jurors, for the brandishing charge, that they needed to find Jimmy Strayhorn had brandished a gun.

Defense Attorneys: James B. Craven III and Tony E. Rollman,

4. United States v. Debenedetto, Seventh Circuit: After being arrested, Appellant was found mentally incompetent and was committed for further evaluation, including an order for involuntary treatment with psychotropic medications. The Seventh Circuit vacated the commitment order because the hearing and written findings of the district court failed to comply with Sell v. United States by not considering less intrusive measures.

5. United States v. Poulin, Seventh Circuit: Appellant pled guilty and received 115 months' imprisonment for possession of child pornography. The sentence was vacated and remanded because the court made not harmless procedural errors, imposing both a sentence and special conditions without providing adequate reasons.

6. United States v. Woodard, Seventh Circuit: Appellant was charged with health care fraud and sentenced to 80 months' imprisonment after pleading guilty. This sentence violated the ex post facto clause because she was sentenced under the wrong version of the sentencing guidelines.

7. United States v. Burrage, Eighth Circuit: On remand from the Supreme Court, the Eighth Circuit reversed Appellant's conviction of distribution of heroin resulting in death. The jury instruction was improper because it did not require the jury to find that the heroin was the proximate cause of the death.

8. Clabourne v. Ryan, Ninth Circuit: The district court denied Appellant's habeas corpus petition which claimed ineffective assistance of counsel at resentencing. The Ninth Circuit issued a certificate of appealability and vacated the denial of relief because there was potential merit to the claim that counsel was ineffective for failing to object to the sentencing court's consideration of a 1982 confession.

Defense Attorney: S. Jonathan Young

9. United States v. Tanke, Ninth Circuit: The Ninth Circuit held that it was plain error to include restitution amounts that were not part of the offenses of conviction and therefore vacated and remanded for resentencing.

March 4, 2014

Short Wins - The "A U.S. Attorney in California Does the Right Thing Edition"

There are two interesting opinions I'd like to highlight from this crop.

First, there's United States v. Prado from the Seventh Circuit. Every now and again, in sentencing, a district court will say it can't consider something. It seems to me that whatever that something is, these days, a district court can probably consider it. Prado is another example of that proposition.

More sensationally, check out the Ninth Circuit's opinion in United States v. Maloney! Laura Duffy, the AUSA for the Southern District of California, watched the en banc argument in this case, decided the government's position was wrong and asked the Ninth Circuit to vacate the conviction. Nice.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Fish, First Circuit: Appellant was convicted of being in possession of body armor after having been convicted of a crime of violence. The conviction was reversed because none of Appellant's previous convictions qualifies as a crime of violence.

Defense Attorney: Thomas J. O'Connor, Jr.

2. Kovacs v. United States, Second Circuit.pdf: The Eastern District of New York denied Appellants' petition for writ of error coram nobis. The Second Circuit reversed and granted the writ after it found that Appellant's lawyer rendered ineffective assistance of counsel. Appellant's lawyer gave erroneous advice regarding deportation after pleading guilty.

Defense Attorney: Nicholas A. Gravanta, Jr.

3. United States v. Maynard, Second Circuit: Appellants were convicted after a series of bank robberies and ordered to pay restitution. Because the amount of restitution included bank expenses beyond the amount taken, the Second Circuit vacated and remanded for a new determination of restitution.

4. United States v. Salazar, Fifth Circuit: After violating the terms of his supervised release, Appellant was sentenced to prison and an additional period of supervised release, including special conditions. The Fifth Circuit found that the district court abused its discretion by ordering imposing the special condition without demonstrating that the condition was reasonably related to statutory factors.

5. United States v. Urias-Marrufo, Fifth Circuit: The district court denied Appellant's motion to withdraw her guilty plea. On appeal, the Fifth Circuit vacated and remanded because the district court did not properly consider the merits of Appellant's ineffective assistance of counsel claim.

6. United States v. Adams, Seventh Circuit: Two of the appellants received sentencing enhancements for maintaining a "stash house" after being convicted of drug offenses. Because the sentencing guideline provision which allowed that enhancement was not in place at the time of the offense, their sentences were reversed and remanded.

7. United States v. Maloney, Ninth Circuit: The United States Attorney moved to vacate the sentence and remand the case after reviewing a video of the en banc oral argument. The court agreed that the prosecutor had made references during rebuttal that were inappropriate and granted the motion to vacate.

8. United States v. Harrison, Tenth Circuit: After being convicted by a jury for a drug conspiracy charge, Appellant was sentenced to 360 months in prison. The sentence was vacated and remanded because the court improperly adopted the calculation in the presentence report showing that Appellant was responsible for more than 1.5 kilograms of methamphetamine.

Defense Attorneys: O. Dean Sanderford and Raymond P. Moore

9. United States v. Jones, Eleventh Circuit: Appellant was sentenced to 180 months for being a felon in possession of a firearm. After the Supreme Court ruling in Descamps, it is clear that Appellant's prior convictions cannot serve as an Armed Career Criminal Act predicate offense. Because a sentencing enhancement was incorrectly applied, the sentence is vacated and remanded.

10. United States v. Baldwin, Second Circuit: Appellant was sentenced to 87 months' imprisonment after pleading guilty to possession of child pornography, and possession of a firearm by a convicted felon. During sentencing a two-level enhancement for distribution of child pornography was imposed. The sentence was vacated because there was no finding of knowledge as required to impose that two-level enhancement.

11. United States v. Lagrone, Fifth Circuit: Appellant was charged with two felony theft counts and sentenced to two concurrent terms of 45 months' imprisonment. Because each of the two theft offenses involved Government property with a value less than $1,000, she could not be convicted of more than a single felony count. The case was therefore vacated and remanded.

12. United States v. Prado, Seventh Circuit: After pleading guilty to one count of extortion, Appellant asked the district court, during sentencing, to consider a similar case and the sentence imposed during that case. The court did not allow that information to be introduced. Appellant's sentence was reversed and remanded because the court erred in not understanding that it had discretion to hear Appellant's argument and that error was not harmless.

13. United States v. Shannon, Seventh Circuit: One of Appellant's special conditions of supervised release was that he could not possess any sexually explicit material. This condition was not discussed by anyone prior to its imposition. Based on that lack of findings or explanation on the lifetime ban, the condition was vacated.

14. United States v. Howard, Eighth Circuit: Appellant's sentence was vacated and remanded for resentencing because one of his prior convictions no longer qualified as a "violent felony" under the Armed Career Criminal Act after the Supreme Court's decision in Descamps v. United States, ____ U.S. ____, 133 S.Ct. 2276 (2013).

February 21, 2014

Short Wins - A Dog's Breakfast of Victories

It's a grab bag of victories in the federal circuits for last week. A few sentencing remands - including one based on a loss calculation in a health care fraud case - but the most interesting remand is in the First Circuit's opinion in United States v. Delgado-Marrero.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Delgado-Marrero, First Circuit: Delgado-Marrero and Rivera-Claudio were both convicted by a jury of drug and gun charges and sentenced to 15 years in prison. Delgado-Marrero was granted a new trial because the district court erred by excluding testimony of a defense witness. The First Circuit also found error with regard to Rivera-Claudio's sentence because the district court failed to properly instruct the jury that in answering a post-verdict special question regarding quantity of drugs, they needed to be sure of the quantity beyond a reasonable doubt.

Defense Attorneys: Rafael F. Castro-Lang, Linda Backiel

2. United States v. Johnson, Seventh Circuit: Appellant's sentence was vacated because a sentencing enhancement was incorrectly applied. Based on the victim's testimony at sentencing, Appellant had not committed a sex offense while in failure to register status, so that enhancement was improper.

3. United States v. Perry, Seventh Circuit: Appellant twice violated the terms of his supervised release. Based on the second violation, he was sentenced to five years' imprisonment. Because the original conviction had a statutory maximum term of imprisonment of two years, the new sentence for five years' imprisonment was vacated and remanded.

4. United States v. Bankhead, Eighth Circuit: Appellant received a 180-month mandatory minimum sentence under the Armed Career Criminal Act ("ACCA") after pleading guilty to being a felon in possession of a firearm. His sentence was reversed and remanded because a predicate juvenile offense, which was used in determining sentence, did not qualify as an ACCA predicate offense.

5. United States v. Gonzalez-Monterroso, Ninth Circuit: Appellant's sentence was vacated and remanded. The district court erred in determining that Appellant's prior Delaware conviction for attempted rape in the fourth degree was a crime of violence warranting a 16-level sentencing enhancement. The Ninth Circuit determined that Delaware's statutory definition of "substantial step" criminalized more conduct than the generic federal statutory definition.

6. United States v. Popov, Ninth Circuit: Appellants were convicted of conspiracy to commit health care fraud arising from the submission of fraudulent bills to Medicare. The Ninth Circuit reversed the district court's findings regarding the amount of loss, holding that evidence can be submitted to show that the amount billed to Medicare overestimates the actual loss amount.

February 12, 2014

Short Wins - We Aren't Dead Edition

Gentle readers,

The Courts of Appeal have been more diligent in issuing opinions than we've been in posting them. Apologies. As those of you who do trial work can understand, sometimes it's really hard to do anything other than eat and sleep when there are witnesses to prepare for and arguments to make. Alas.

That said, wow, these are a bunch of cases that a scholar of sentencing and supervised release law would love. Enjoy!

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Pena, First Circuit: Appellant pled guilty to conspiracy to distribute and also to possession with intent to distribute a drug and was sentenced to 12 years' imprisonment. Because the plea proffer did not contain an admission that Appellant's actions resulted in the death of a person, and the government did not prove that element beyond a reasonable doubt, the sentence was vacated and the case remanded for resentencing.

Defense Attorney: Robert L. Sheketoff

2. United States v. Rodriguez-Santana, First Circuit: Appellant challenged the special sex-offender conditions of his supervised release. The First Circuit vacated the special condition that Appellant permit monitoring of any device with internet access or data or video storage or sharing capabilities because the government conceded that this condition may not be justified.

Defense Attorneys: Thomas J. Trebilcock-Horan, Hector E. Guzman, Jr., Liza L. Rosado-Rodriguez

3. United States v. Williams, Seventh Circuit: Appellant pled guilty to identity theft-related crimes and was sentenced to 56 months' imprisonment. That sentence was calculated using sentencing guidelines in effect at the time of sentencing, rather than at the time the crimes were committed. Because this resulted in higher sentencing guidelines, the sentence was vacated and the case remanded for resentencing.

4. United States v. Maynard Williams, Ninth Circuit: The Ninth Circuit reversed and vacated the district court's order revoking Appellant's supervised release. Appellant had entered an Alford plea. The Ninth Circuit held that such a plea is insufficient to prove commission of a state crime for purposes of a federal supervised release violation because the state itself does not treat such a plea as probative of the Appellant's guilt.

Defense Attorney: Alison K. Guernsey

5. U.S. v. Benns, Fifth Circuit: Appellant was convicted of making false statements on a credit card application. His sentence was reversed and the case remanded for resentencing because the district court improperly calculated the loss amount attributable to him.

6. U.S. v. Robinson, Fifth Circuit: Appellant was convicted of child pornography charges and sentenced to 720 months in prison. On appeal, the sentence was vacated and remanded because the trial court did not appreciate its authority to consider evidence of the Appellant's cooperation during sentencing.

7. U.S. v. Wooley, Fifth Circuit: Appellant was sentenced to 30 months imprisonment during a probation violation hearing. The trial court stated that it imposed that sentence because of the court's belief that Appellant had an untreated drug problem. The sentence was reversed because a sentencing court is prohibited from increasing or lengthening a prison sentence to promote rehabilitation.

8. U.S. v. Whitlow, Seventh Circuit: Appellant was convicted and sentenced for drug-related offenses. The Seventh Circuit remanded to allow the trial court to exercise discretion on whether to give credit for eight months Appellant spent in in pretrial custody.

9. U.S. v. Rouillard, Eighth Circuit: Appellants conviction for sexual abuse of an incapacitated person under 18 U.S.C. § 2242(2) was reversed and remanded. The Eighth Circuit, en banc, recently clarified the mens rea requirement of 18 U.S.C. §2242(2) and this development requires remand in this case because the Appellant's request for a jury instruction on his knowledge of the incapacity of the person was denied.

10. U.S. v. Mathauda, Eleventh Circuit: Appellant was convicted of various mail and wire fraud charges and sentenced to 252 months' imprisonment. The sentence was vacated and remanded for resentencing because the district court erred in adding a sentence enhancement for Appellant's alleged violation of a prior court order.

11. U.S. v. Hagman, Fifth Circuit: After pleading guilty to two firearms charged, Appellant challenged a four point sentencing enhancement for bartering 8 to 24 firearms. The Fifth Circuit vacated the sentence and remanded because the government failed to prove by a preponderance of the evidence that Appellant had possessed or unlawfully sought to obtain that many firearms.

12. U.S. v. Adkins, Seventh Circuit: Appellant pled guilty to receipt of child pornography and was sentenced to 210 months in prison and a number of special conditions. The Seventh Circuit vacated Appellant's sentence and remanded the case because one special condition - to not view or listen to any pornography or sexually stimulating material or sexually oriented material or patronize locations where such material is available - was unconstitutionally vague and overbroad.

13. U.S. v. Jordan, Seventh Circuit: Appellant was sentenced to 24 months in prison for violating terms of his supervised release. On appeal, he challenged the revocation of his supervised release arguing that the district court erred by considering hearsay evidence without first making the "interest of justice' finding required when the defendant was denied the right to question an adverse witness under the Federal Rules of Criminal Procedure. The Seventh Circuit agreed, and reversed and remanded.

14. U.S. v. Tucker, Eight Circuit: Appellant's sentence was vacated and remanded for resentencing because the elements under the Nebraska statute, under which Appellant was convicted, do not ordinarily encompass conduct that presents a serious potential risk of physical injury to another. Therefore Appellant inappropriately received an enhanced sentence under the Armed Career Criminal Act.

15. U.S. v. Ransfer, Eleventh Circuit: After a jury trial, Appellants were convicted of sixteen counts involving robbery, conspiracy, and using and carrying firearms. The Eleventh Circuit found that there was no evidence that one appellant, Lowe, took any action in furtherance of one of the robberies. His conviction was vacated on those related counts and the case remanded for sentencing.