Published on:

Short Wins – The Entrapment and Appeal Waiver Edition

There are two cases in this batch of short wins that I think deserve a special shout out.

First, there’s United States v. Torres-Perez. Appeal waivers are the bane of federal criminal practice (or one of them). Their only advantage is that they make prosecutors’ lives easier. The downside, which is significant, is that they discourage the development of the law. I’d rather have the government work more and know what the law is. Though I may be crazy. In Perez, the Fifth Circuit slapped down an appeal waiver requirement in order to get credit for a acceptance.

Second, there’s United States v. Barta – another great entrapment case from the Seventh Circuit. That circuit is bustin out entrapment cases like Taylor Swift and Katy Perry bust out insults of each other. Or something.

To the victories!

you win.jpg1. United States v. Matta, Second Circuit: As part of the conditions for his supervised release, Appellant was required to participate in a drug treatment or detoxification program, but the Probation Department was allowed to decide if that program should be inpatient or outpatient. The delegation of that decision to the Probation Department was improper because the power to impose special conditions of supervised release is vested exclusively in the district court. That condition was vacated and the case remanded for resentencing.

Defense Attorney: Yuanchung Lee
2. United States v. Fernandez, Fifth Circuit: Appellant was convicted of failing to register as a sex offender and as part of his supervised release, was required to install computer filtering software that would block or monitor Appellants access to sexually oriented websites for any computer he possesses or uses. Because neither the failure to register as a sex offender or his underlying offense involved the use of a computer, the special condition was not sufficiently tied to the facts of the case and was vacated.

3. United States v. Torres-Perez, Fifth Circuit: Appellants pled guilty to illegal reentry. Despite timely entry of the plea deals, the government did not move for any reduction for acceptance of responsibility, claiming that it would not do so because Appellants had not waived their rights to appeal. Withholding the sentencing reduction for that reason is impermissible, so the case was remanded for resentencing
4. Unitd States v. Bailey, Seventh Circuit: Appellant pled guilty to distributing crack cocaine and reserved his right to appeal if the Fair Sentencing Act ever was determined to apply to his case. The Supreme Court subsequently decided that the FSA should apply to cases like Appellant’s retroactively. The Seventh Circuit determined that the proper procedural vehicle for Appellant was a petition for relief under Section 2255, and that the proper remedy was a new sentencing hearing.

5. United States v. Barta, Seventh Circuit: Appellant’s conviction for conspiracy to commit bribery was reversed because Appellant was entrapped as a matter of law. In an undercover government sting operation, Appellant and his co-defendants agreed to bribe a fictional county official in California to obtain a government contract. The government admitted that Appellant was not predisposed to committing the crime and the court found that the government had induced the crime through repeated attempts at persuasion, employing both fraudulent misrepresentations and promises of additional reward.

6. United States v. Hawkins, Seventh Circuit: The district court erred in its definition of bribery under the mail fraud statute by including the intent to be rewarded, without anything in return. The statute requires more than just accepting a reward for a person to be guilty of bribery; it requires that the person does something in exchange for the reward. The convictions for mail fraud were vacated.

7. United States v. McMillian, Seventh Circuit: Appellant’s sentence of thirty years was based in part on the application of two sentencing guideline which were created after the dates of Appellant’s offenses. That application violates the ex post facto clause and the court held that Appellant was entitled to resentencing because the new guidelines range would have been 30 years to life. The previous sentence of 30 years was below the guidelines, rather than within it, so it is possible the judge would have decreased Appellant’s sentence if the proper guidelines range was considered.

8. United States v. Thompson, Seventh Circuit: The Seventh Circuit again took issue with a number of conditions of supervised release imposed by the district courts. Although the court notes that it is difficult to determine conditions of release that may not be implemented for years or decades, the Seventh Circuit vacated a number of conditions because the district court did not provide any reasoning or justification, the condition was not orally articulated at sentencing, or because the condition was unrelated to the crime.

9. United States v. McElmurry, Ninth Circuit: Appellants convictions for possession and distribution of child pornography were vacated. The district court’s failure to reading or listen to evidence–including interview statements made in connection with a prior state law child pornography conviction and a letter written to an inmate months before the crime was charged–was improper under Federal Rules of Evidence 403.

Defense Attorney: John Balazs
10. United States v. Rice, Ninth Circuit: The calculation of restitution and forfeiture was flawed where the loss amount included money laundered before Appellant had joined the conspiracy. Thus, the case was remanded for resentencing and recalculation of those amounts.

Defense Attorney: William H. Gamage
11. United States v. Wray, Tenth Circuit: Appellant’s sentencing guidelines were miscalculated because his prior crime of “Sexual Assault – 10 Years Age Difference” under Colorado statute section 18-3-402(1)(e) does not constitute a crime of violence. The definition for “crime of violence” includes forcible sex offenses, but, applying the categorical approach, the statute in question here does not fall under that definition.

Defense Attorneys: Matthew Belcher and Virginia L. Grady