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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.

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