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Short Wins – The Withdrawal of a Plea and Schaedenfraude Edition

It’s been an interesting week in the federal circuits. Aside from the normal and expected sentencing appeals, there are two cases that caught my eye.

The first is United States v. Fard on withdrawing a plea. I often hear from people who have entered a plea and want to talk about hiring me to withdraw it. It can be maddening to see how other lawyers have poorly advised their clients, or have simply had them enter pleas that their client does not understand (sometimes, especially when the lawyer has no prior criminal defense experience, I fear the lawyer doesn’t understand the plea either). Fard helps, a bit, in attacking pleas that aren’t knowing and voluntary.

The second case I find interesting solely for the schaedenfraude it gives me. The case is United States v. Smith. There, an AUSA was appointed and confirmed to be a judge. As a judge, he worked on a case he also worked on as an AUSA. Hijinks ensue.

To the victories!

(Please note, I have a new “victory” photo. I’d love your feedback. On one hand, I think it’s cheeky. On the other, so many of these victories aren’t really “you win” moments. Please email me if you have thoughts.)

you win.jpg1. United States v. Ramos-Gonzalez, First Circuit: Appellant was sentenced to 327 months in prison for drug trafficking. That sentence was based, in part, on a finding that Appellant qualified as a career offender. The predicate offense that the district court relied on–a controlled substance offense under Article 256 of the Puerto Rico Penal Code–does not qualify for that purpose so the case was remanded for resentencing. That article criminalizes not only a crime of violence but also actions which do not require physical force.

Defense Attorney: Linda Backiel
2. United States v. Coppenger, Sixth Circuit: Appellant pled guilty to conspiracy to commit mortgage fraud and, as part of the plea agreement, the government promised not to recommend a sentence in excess of the applicable Guidelines range. The district court varied upward after considering information in the presentence report to increase the number of co-conspirators. The case was remanded for resentencing because Appellant wasn’t given a meaningful opportunity to respond to the information relied upon by the court to vary upward.

Defense Attorney: Evan B. Smith
3. Sultan v. Fenoglio, Seventh Circuit: The district court, on its own initiative, dismissed Appellant’s case for Appellant’s failure to pay the initial partial filing fee. This was an abuse of discretion because he had gone through the appropriate procedures with the prison to have the filing fee paid from his prison funds account, and Appellant should not be penalized because the prison administrator failed to forward the money as directed by the court.

4. United States v. Cary, Seventh Circuit: Appellant pled guilty to one count of failing to register as a sex offender and was given a number of special conditions to his supervised release. A hearing is necessary to determine the nature and scope of the computer and internet software as well as prohibited webpages.

5. United States v. Fard, Seventh Circuit: Appellant’s guilty plea was vacated because it was not knowing and voluntary. There were many factors which indicated to the Seventh Circuit that Appellant’s plea was not knowing and voluntary, including Appellant’s trial counsel’s testimony that Appellant was confused by the nature of the charges combined with the fact that the court did not explain what intent to defraud means or what a fraudulent scheme is.

6. United States v. Morris, Seventh Circuit: After pleading guilty to one count of distribution of crack cocaine, Appellant was sentenced to 48 months. Although that sentence was below the guidelines, the record is unclear about whether the court considered Appellant’s arguments in mitigation when fashioning the sentence, so the case is remanded for resentencing.

7. United States v. Smith, Seventh Circuit: The judge who sentenced Appellant had previously worked on his case as an Assistant United States Attorney before becoming a judge. The record did not adequately allow the Seventh Circuit to determine whether the judge, in doing so, violated the Judicial Code and should have recused herself. The judgment was therefore vacated and remanded for resentencing with a different judge.

8. Williams v. Paramo, Ninth Circuit: The district court’s grant of summary judgment in favor of the defendants was vacated because, under the Prison Litigation Reform Act, Appellant should have been allowed to proceed in forma pauperis. The Ninth Circuit held that a prison who has three strikes under 28 U.S.C. ยง 1915(g) and who wishes to qualify under the imminent danger exception can do so by alleging that prison officials continue with a practice that has injured Appellant or others, or that there is a continuing effect resulting from such a practice.

Defense Attorneys: Jennifer Chou, Strefan Fauble, and Carlos M. Lazatin