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Short Wins

I was lucky last week to be able to get together with a fan of this blog (yes, there are fans of this blog who are not my mother. I’m kind of surprised too.).

The reader I was lucky to meet with had a wonderful suggestion. He saw the point behind not doing a full treatment of each case, as I described earlier.

Yet, he said, I could still do a very quick treatment of each case, even if not every case gets the loving and lengthy discussion that may be the reason folks read this and is the fun behind writing it.

1146459_victory.jpgSo, we’re going to experiment with that. Here is the inaugural post of “Short Wins” – short descriptions of wins in the federal circuits.

This installment isn’t going to be comprehensive — there’s too big a gap since I started being selective about what gets posted. But hopefully soon, we’ll start doing this weekly and updating on the criminal defense wins from the past week.

And, as always, please let us know what we can do better in the comments.

1. United States v. White, Second Circuit: On appeal of appellant’s conviction for possession of a weapon by a person previously convicted of a felony, the district court erred in (1) excluding evidence that the government initially charged other occupants of car in which he was traveling with possession of the firearm the government claimed was found on his person and (2) improperly limited cross-examination of a government witness by barring the appellant’s use of a prior adverse credibility finding in a similar but unrelated case. Vacated conviction and remanded for a new trial.

2. United States v. Reyes, Second Circuit: On appeal of appellant’s 188-month sentence for bank robbery, holding that a district court erred in relying on the Presentence Report’s description of the appellant’s pre-arrest conduct that culminated in a prior conviction to determine whether that prior conviction constituted a “crime of violence” under U.S.S.G. § 4B1.2(a)(1) where the appellant did not object to the report’s description.

3. United States v. Beardsley, Second Circuit: In child pornography case, district court erred in sentencing appellant to the mandatory minimum sentence established by 18 U.S.C. § 2252A(b)(1) because the “categorical approach,” rather than the “modified categorical approach,” was the appropriate standard to use to analyze the facts of appellant’s prior state conviction for endangering the welfare of a child. Vacated sentence and remanded for resentencing.

4. United States v. Davis, Second Circuit: Because there was no evidence that the appellant engaged in any conduct that demonstrated a desire to injure a DEA agent or would cause an agent to apprehend immediate injury, appellant’s conviction for resisting arrest was overturned.

5. United States v. Graham, Second Circuit: Reversing appellant’s conviction for using an explosive to commit a felony because the gun cartridge used did not constitute an “explosive” for purposes of 18 U.S.C. § 844(h)(1).

6. United States v. Wernick, Second Circuit: In child pornography case, remanding for resentencing because the district court erred in considering certain sexual conduct directed at young children not charged in the indictment or proven at trial as “relevant conduct” that increased the appellant’s Guidelines offense level on his conviction for persuading, inducing, and enticing minors to engage in sexual activity.

7. United States v. Highsmith, Second Circuit: Remanding for resentencing on appellant’s conviction for conspiracy to distribute at least 50 grams of crack cocaine to apply the reduced mandatory minimum sentences prescribed by the Fair Sentencing Act, which was passed after the appellant committed this offense but before he was sentenced.

8. United States v. Worley, Fourth Circuit: In drug case, reversing three conditions of supervised release that affected the appellant’s relationship with his girlfriend and children because the restrictive conditions, which were based on the appellant’s more than decade-old state sex offense conviction, were not supported by evidence that the appellant was a danger to his family. The remaining conditions, which went “well beyond” state sex offender registration requirements, were vacated and remanded for further proceedings because the appellant’s state sex offense conviction, standing alone, was insufficient to support the conclusion that his current behavior required the restrictions.

9. United States v. Akinsade, Fourth Circuit: Vacating appellant’s conviction for embezzlement and granting petition for writ of error coram nobis because defense counsel’s affirmative misrepresentations that the crime was non-deportable prejudiced the appellant and resulted in a fundamental error requiring coram nobis relief.

10. United States v. Gomez, Fourth Circuit: Where appellant pled guilty to unlawful reentry of a deported alien after an aggravated felony conviction, the district court erred in applying the “modified categorical approach” to determine that appellant’s prior child abuse conviction constituted a crime of violence under Guideline §2L1.2(b)(1)(A)(ii) because there was no divisible use-of-force element under the child abuse statute. Because the error was not harmless, the sentence was vacated and the case remanded for resentencing.

11. United States v. Horton, Fourth Circuit: In possession of a firearm by a convicted felon case, the district court erred in applying the cross-reference provision in Guideline § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which substantially increased appellant’s advisory guidelines range. Vacated sentence and remanded for resentencing.