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Short Wins – The Third Level Edition

The third level for acceptance of responsibility is interesting – it’s one area where some courts have held the government has pretty much unfettered discretion to decide whether or not it should apply. Basically, a person is supposed to get the third level only if she’s pled guilty early enough to keep the government from working. Though some U.S. Attorney’s offices are more or less stingy about how early is early enough.

Regardless, it can be hard to overcome an unreasonable government position on the applicability of the third-level for acceptance.

Which is why I was glad to see United States v. Castillo – which challenges the sovereignty of the government’s decisionmaking about the third level and its applicability. Good stuff there.

To the victories!

Thumbnail image for you win.jpg1. United States v. Alejandra-Montanez, First Circuit: Appellants were convicted of criminal conspiracy charges for importing cocaine. Because of recent amendments to the sentencing guidelines that retroactively reduced most drug quantity base offense levels, the case was remanded for reconsideration of Appellants’ sentences.

Defense Attorneys: David A.F. Lewis, Leslie W. O’Brien, and Joshua L. Gordon
2. United States v. Martinez-Rodriguez, First Circuit: Appellants were convicted of drug and firearms offenses. Appellant Rodriguez’s conviction for the drug offense was reversed because the evidence was insufficient to connect him to Appellant Santini’s possession of narcotics. And the evidence connecting Appellant Santini to Appellant Rodriguez’s possession of a firearm was also insufficient, so that conviction was reversed as well. The only evidence of a connection between Appellants, who are brothers-in-law, was that they had been in a car together when the car was stopped. But the lack of evidence about the full nature of their relationship, of any plan they had to carry out a drug-trafficking offense, and of their prior dealings with each other was insufficient to show that the two had the requisite knowledge of the other’s offense.

Defense Attorneys: Michael R. Hasse and Victoria M. Bonilla-Argudo
3. United States v. Castillo, Fifth Circuit: Appellant’s case was remanded for reconsideration of the sentence after the government initially refused to move for an additional one-level reduction at sentencing based on acceptance of responsibility. The court held that the government may withhold such a motion based on an interested identified in Section 3E1.1 of the sentencing guidelines, but the trial court failed to make the proper findings of fact which would allow the government to withhold the motion.

4. United States v. Fidse, Fifth Circuit: Appellant pled guilty to two obstruction offenses and his sentence was based, in part, on a substantial sentencing enhancement that applies when “the offense is a felony that involved, or was intended to promote, a federal crime of terrorism. Because Appellant’s underlying conviction was not for a federal crime of terrorism, the district court was required to identify the crime of terrorism committed by Appellant based on the evidence presented at sentencing. The district court failed to do so, and made inconsistent findings about the evidence presented. Therefore Appellant’s sentence was vacated and remanded.

5. United States v. Garcia-Perez, Fifth Circuit: Appellant’s prior conviction for manslaughter as defined by the Florida statute was not a crime of violence for purposes of a sentencing enhancement. A conviction under the Florida manslaughter statute does not qualify as a crime of violence for the sentencing enhancement because the government is not required to prove force as an element of the offense. Appellant’s sentence was vacated and remanded for resentencing.

6. Pola v. United States, Sixth Circuit: The Sixth Circuit vacated the district court’s denial of an evidentiary hearing to Appellant for potential ineffective assistance of counsel claims. First, the court held that it had jurisdiction to hear this issue despite Appellant being released from prison because he will continue to suffer the burden of a criminal conviction, including being deported. Second, the trial court erred in denying Appellant an evidentiary hearing because the record did not conclusively show that he was entitled to no relief and because the trial court only had parts of the record before it when making its determination.

Defense Attorney: Kent Wicker
7. United States v. Moslavac, Seventh Circuit: During a parole revocation hearing, the government did not call either witness to an alleged battery, but called only the father of a witness who was a minor, who testified about what his daughter told him. In addition, the court allowed the government to introduce a voicemail from the minor witness to her father under the excited utterance exception. Because the court did not explicitly balance the interests of the parties as required by the Federal Criminal Procedure Rule 32.1, the parole revocation was reversed.

8. United States v. Dunn, Tenth Circuit: The Tenth Circuit held that it is multiplicitous to sentence a person for both possession and receipt of child pornography in violation under the Double Jeopardy Clause. The court also vacated a number of special conditions of supervised release because the district court failed to find that they were minimally restrictive, and remanded for reconsideration with proper findings. Finally, ordering Appellant to pay $583,955 to one victim depicted in the child pornography was inconsistent with Paroline. The restitution order was vacated and remanded.

Defense Attorneys: Scott Wilson and Kathryn N. Nester
9. United States v. Ferdman, Tenth Circuit: The district court erred in calculating restitution under the Mandatory Victims Restitution Act. The restitution order must be based on the full amount of victim’s losses without consideration of the economic circumstances of Appellant and the restitution order cannot exceed the actual loss caused by Appellant’s conduct. Here, the court’s award exceed the actual losses by assessing the value of lost merchandise based on the retail unsubsidized price, meaning the restitution included the profit the company would have made from the sale without any evidence that there was such an actual loss.

Defense Attorney: John V. Butcher

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