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Short Wins – The More on Restitution Edition

It’s a catch-up blast of short wins today following my Spring Break.

My favorite of the bunch, continuing on our recent restitution cases, is United States v. Foley. There, the district court ordered restitution that was outside the offense of conviction. The First Circuit reversed. Go First Circuit!

To the victories!

you win.jpg1. United States v. Molina-Gomez, First Circuit: The district court erred by denying Appellant’s motion to suppress statements he made to United States Customs and Border Protection officers. The questioning occurred in a small, windowless room and Appellant was not given Miranda warnings prior to being questioned, which amounted to a violation of his Fifth Amendment rights. The case was remanded so Appellant could withdraw his plea and determine how he would like to proceed.

Defense Attorneys: Leonardo M. Aldridge-Kontos, Hector E. Guzman-Silva, Jr., Hector L. Ramos-Vega, and Lisa L. Rosado-Rodriguez
2. Perry v. Roy, First Circuit: Appellant, an inmate, brought a civil rights suit challenging the medical treatment he received after a violent scuffle with prison guards, which left him with a broken jaw. The trial court dismissed the case, holding that Appellant had not presented evidence that prison medical personnel deliberately denied him care. But the First Circuit concluded that the trial court had improperly weighed the evidence, which, when viewed in a light favorable to Appellant, could support a finding that the prison medical personnel were deliberately indifferent to Appellant’s condition.

Inmate’s Attorneys: Benjamin M. McGovern, Amanda O. Amendola


3. United States v. Del Valle-Cruz.pdf, First Circuit: Appellant was convicted of failing to register as a sex offender. The sentencing court imposed special conditions of supervised release that were not imposed at the time of the underlying sex offense conviction, including a condition that prevented Appellant from having contact with, or residing with, minors. The First Circuit vacated this condition to avoid interfering with Appellant’s relationship with his son, and also remanded for reconsideration of other conditions imposed by the sentencing court, noting that the sentencing court failed to explain or justify the conditions.

Defense Attorney: Jedrick H. Burgos-Amador

4. United States v. Foley, First Circuit: Appellant was convicted of 33 counts of wire fraud for submitting false documents to lenders on behalf of buyers of condominiums. The court ordered restitution to the lenders, including a lender that had loaned Appellant funds to purchase a condominium for himself. The First Circuit held that the restitution order should not have included this loan, because it was outside of the fraudulent scheme that was the basis for the conviction. The court specifically noted that this loan was obtained for the Appellant, rather than for other buyers, and that the conduct occurred over a year before the scheme for which Appellant was convicted. The court vacated the restitution order and remanded for recalculation without the loan.

Defense Attorney: Rebecca A. Jacobstein
5. United States v. Melendez-Rivera, First Circuit: After pleading guilty to conspiracy to import and distribute cocaine, Appellant argued at sentencing that he should receive a downward adjustment for timely notifying the government of his intent to plead guilty. The sentencing court concluded that it did not have the discretion to grant this adjustment because the government did not move for it. The First Circuit reversed, holding that the sentencing court should have considered whether the government’s failure to make the motion was motivated by an improper purpose, and remanded for resentencing on this issue.

Defense Attorneys: Joshua L. Solomon, Matthew B. Arnould
6. United States v. Wright-Darrisaw, Second Circuit: Appellant was convicted of violating 18 U.S.C. §871(a) for threatening to kill the President of the United States and her sentence was based, in part, on a finding that the threat was found to involve deliberation. The court remanded because the district court can only make a finding of deliberation if the deliberation related to the communication of the threat itself.

Defense Attorneys: Jeffrey L. Ciccone and Jay S. Ovsiovitch
7. Lee v. Clarke, Fourth Circuit: Appellant’s petition for habeas corpus was dismissed by the district court. That dismissal was based on an unreasonable application of Strickland v. Washington because the court did not appreciate the prejudice inherent to Appellant from the absence of a jury instruction defining heat of passion given that the instruction was crucial to Appellant’s defense.

Defense Attorney: David Bernard Hargett
8. United States v. Lymas, Fourth Circuit: Appellants’ sentences were procedurally unreasonable because the sentencing court varied from the guidelines believing they did not reflect the §3553(a) objectives. Further, the sentencing court decided both Appellants were deserving of the same sentence, which plainly failed to consider the Guidelines principle that require proportionality in sentencing. Without a detailed explanation for the departure, Appellant’s sentences were vacated and remanded.

Defense Attorneys: Terry F. Rose, Thomas P. McNamara, and Brett Wentz
9. United States v. Sealed Juvenile, Fifth Circuit: Appellant, aged 15, was convicted of abusive sexual contact with a minor. The district court imposed a term of juvenile delinquent supervision that included several special conditions, including restriction of Appellant’s access to computers and the Internet. The Fifth Circuit ordered the district court to narrowly interpret certain restrictions that it had imposed on the Appellant’s use of the Internet, holding, for example, that requiring Appellant to secure written permission each time he used the Internet would be unreasonably restrictive.

10. Speer v. Stephens & Mendoza v. Stephens, Fifth Circuit: The Fifth Circuit was faced, in two separate cases, with an inmate seeking federal habeas review of his conviction. In both cases, the inmate sought to have new counsel appointed to review his case for claims that should have been raised in an earlier state habeas proceeding. Such claims can only be made if there is an excuse for not raising them in the state proceeding, such as ineffective assistance of counsel. The inmates, Appellants here, argued that new counsel should be appointed, because raising the issue of ineffective assistance of counsel at the state proceeding would be a conflict of interest for the attorney that represented Appellants in those proceedings. The Fifth Circuit held that, while there is no right to counsel in collateral review proceedings, federal district courts have the power to appoint additional counsel for the limited purpose of determining whether there are additional claims that ought to have been brought at an earlier state proceeding. The Fifth Circuit vacated the district courts’ denial of the petitions and remanded for the appointment of additional counsel.

11. King v. McCarty, Seventh Circuit: The district court erred in dismissing Appellant’s Eighth Amendment claim arising from the requirement that he wear a see-through jump suit when being transported from a county jail to state prison. Appellant alleged a plausible Eighth Amendment claim for cruel and unusual punishment by arguing that the jumpsuit had no legitimate correctional purpose but was instead used to humiliate and inflict psychological pain.

12. Owens v. Duncan, Seventh Circuit: Appellant was convicted of murder after a bench trial. The judge’s verdict was based on the fact that Appellant knew the victim and knew that the victim was a drug dealer and claimed that Appellant wanted to kill the victim for that reason. However, there was exactly no evidence that Appellant knew the victim or knew that the victim was a drug dealer, and because that was the only reasoning offered by the trial court for the finding of guilt, the conviction was reversed.

13. United States v. Lockett, Seventh Circuit: Appellant was convicted of being a felon in possession of a firearm and was sentenced under the mandatory minimum sentencing provisions of the Armed Career Criminal Act (ACCA). The sentencing court determined that Appellant’s previous drug convictions were predicates that subjected him to ACCA, because he was eligible to be sentenced for those convictions under a state recidivist statute. But the Seventh Circuit reversed and remanded for resentencing, holding that, to constitute a predicate conviction under ACCA, the government must show, not only that the recidivist enhancement hypothetically could have been applied, but that Appellant actually faced the possibility of the recidivist enhancement when he was sentenced. To make such a showing, the government would have to point to actual court records, such as the plea colloquy.

14. United States v. Kappes, Seventh Circuit: In three separate cases, the Seventh Circuit addressed special conditions of supervised release imposed on defendants. The Seventh Circuit remanded each of the cases for reconsideration of the imposed conditions, in light of four principles outlined by the court: (1) a defendant should receive advance notice of any conditions being considered; (2) the court should provide a statement of its reasoning when imposing conditions, tying them to statutory sentencing factors; (3) the conditions should be tailored to the defendant’s offense and personal history, and should be no greater than reasonably necessary; and (4) the conditions should be given to the defendant by the court orally, in unambiguous terms.

15. United States v. Grandison, Eighth Circuit: Convicted of conspiracy to distribute cocaine, Appellant was sentenced to 360 months in prison. The trial court applied a sentencing enhancement based on Appellant’s having held drugs in her home. But the Eighth Circuit held that the enhancement could not be applied, because it did not become effective until two years after Appellant had ceased her drug activities. The Eighth Circuit concluded that resentencing was appropriate, because the erroneous enhancement increased Appellant’s guidelines range, and the district court explicitly adopted the government’s recommendation to sentence Appellant at the bottom of the range.

16. United States v. Petruk, Eighth Circuit: Appellant was found guilty of various charges related to his theft of a pickup truck. Two of those charges–carjacking and obstruction–were reversed. The Eighth Circuit held that there was insufficient evidence for the carjacking charge because one element the government must prove is that the vehicle was taken from the person or presence of another or accomplished by force and violence or by intimidation. The evidence here showed that the taking occurred at a time separate from any assault against the owner and that the truck was unoccupied when it was taken, failing to prove this element of carjacking. There was also insufficient evidence to prove the obstruction charge because that charge requires proof beyond a reasonable doubt that Appellant contemplated a particular, foreseeable proceeding and that such a proceeding must be an “official proceeding,” but that the definition of official proceeding does not include state proceedings. Here, the conduct that allegedly amounted to obstruction was an attempt by Appellant to secure statements from false alibi witnesses while incarcerated on state charges. Appellant’s convictions for carjacking and obstruction were vacated.

17. United States v. Woodall, Eighth Circuit: Appellant was convicted and sentenced for failing to register as a sex offender. As a condition of supervised release, the sentencing court prohibited Appellant from consuming alcohol or entering bars or similar establishments. The Eighth Circuit struck this condition, noting that Appellant only lightly consumed alcohol and occasionally used marijuana. Absent evidence that Appellant was “drug dependent,” or that alcohol spurred his criminal behavior, the court held that the condition could not be justified.

18. United States v. Haischer, Ninth Circuit: Appellant was tried and convicted for wire fraud for submitting false loan documents. During her trial, Appellant raised two defenses: duress and lack of knowledge that the documents were false. After Appellant’s trial counsel abandoned the duress defense, the trial court excluded evidence that Appellant had been abused. The Ninth Circuit reversed, holding that the evidence of abuse was sufficiently probative to whether Appellant knew (or was deliberately ignorant) of the documents’ falsity.

Defense Attorney: Franny Forsman
19. United States v. Hymas, Ninth Circuit: After being convicted of wire fraud for submitting a false loan document, Appellant was sentenced to 24 months’ imprisonment. The Ninth Circuit held that the trial court improperly applied a “preponderance of the evidence” standard to the amount of loss determination required under the sentencing guidelines. A “clear and convincing evidence” standard was required, the Ninth Circuit held, because the amount of loss determination more than doubled Appellant’s sentencing range under the guidelines.

Defense Attorney: Marcus R. Mumford
20. United States v. Marcia-Acosta, Ninth Circuit: Appellant was convicted of unlawful reentry to the United States, and was sentenced to 77 months in prison. The trial court applied a sentencing enhancement based on a previous conviction for aggravated assault, determining that it was a “crime of violence.” The Ninth Circuit remanded for resentencing, holding that the trial court improperly relied on statements made by Appellant’s trial counsel at the plea hearing in making this determination. Relying on such statements, rather than only the conviction documents, is improper under the “modified categorical approach,” set forth by the Supreme Court for determining whether a crime constitutes a “crime of violence.”

Defense Attorney: Diego Rodriguez
21. United States v. Zaragoza-Moreira, Ninth Circuit: An indictment charged Appellant with importation of methamphetamine. Appellant moved to dismiss the indictment, arguing that the government had destroyed evidence that may have supported her defense of duress. The Ninth Circuit agreed, holding that Appellant had been denied due process, where a government agent knew of the potential usefulness of evidence and acted in bad faith by failing to preserve it. The Ninth Circuit directed the trial court to dismiss the indictment.

Defense Attorney: Harini P. Raghupathi
22. United States v. Simmons, Ninth Circuit: After being convicted of drug and firearm offenses, Appellant was sentenced as a “career offender” under the sentencing guidelines. The sentencing court concluded that this classification applied, in part, because of Appellant’s previous conviction for “second degree escape,” a state offense that the sentencing court concluded was a “crime of violence.” Applying the modified categorical approach, the Ninth Circuit vacated the sentence and remanded for resentencing. The Ninth Circuit determined that neither the generic crime “second degree escape,” nor the specific crime of conviction, “escape from custody,” were crimes of violence because they did not have, as an element, the use of force, and did not otherwise involve a risk similar to those offenses classified as crimes of violence in the sentencing guidelines.

Defense Attorney: Peter C. Wolff, Jr.

23. Doe v. Ayers, Ninth Circuit: Appellant filed a federal habeas petition, challenging his death sentence on the basis that his counsel was ineffective at the penalty phase of the trial. The district court held that, by failing to put on significant mitigating evidence, the trial attorney’s performance had been deficient. But the district court denied the petition, holding that Appellant had not shown a reasonable probability that, but for the deficiency, the sentence would have been different, as required by Strickland v. Washington. The Ninth Circuit disagreed, holding that there was a substantial probability that the mitigating evidence would have affected the sentence. The Ninth Circuit ordered that the case be returned to state court with instructions to either reduce the sentence to life without parole or hold a new sentencing proceeding.

Defense Attorneys: John R. Grele, David W. Fermino
24. Barnett v. Norman, Ninth Circuit: Appellant, an inmate, brought a civil rights suit against prison guards for excessive force. At trial, Appellant called three other inmates to testify, all of whom refused to give testimony. The presiding judge made no attempt to compel the witnesses to testify by, for example, informing the witnesses of the possibility of contempt. The jury found in favor of the prison guards. The Ninth Circuit reversed and remanded for a new trial, holding that the presiding judge had abused her discretion by failing to attempt to compel the witnesses to testify.

Inmate’s Attorney: Ian Samuel
25. United States v. Sahagun-Gallegos, Ninth Circuit: Appellant pled guilty to illegal reentry to the United States. The sentencing court applied a sentencing enhancement based on Appellant’s previous state conviction for aggravated assault, determining that the conviction constituted a “crime of violence.” The Ninth Circuit reversed and remanded for resentencing, holding that the sentencing court erred in making this determination by considering the defense attorney’s statements at the aggravated assault plea hearing. This, the Ninth Circuit held, was impermissible under the “modified categorical approach” set out by the Supreme Court for determining whether an offense constitutes a crime of violence.

26. United States v. Urrutia-Contreras, Ninth Circuit: While on supervised release, Appellant was convicted of illegal reentry to the United States. At a hearing to impose sentence for violating the terms of Appellant’s supervised release, the sentencing court did not ask for the government’s sentencing recommendation before imposing sentence. The Ninth Circuit reversed and remanded for resentencing, holding that the requirement that the government be permitted to make a statement on sentencing applies at proceedings to revoke supervised release.

27. United States v. Figueroa-Labrada, Tenth Circuit: Appellant was convicted of conspiracy to possess with intent to distribute methamphetamine, and was sentenced to 120 months’ imprisonment. The Tenth Circuit vacated this sentence. On remand to the trial court for resentencing, Appellant sought–for the first time–to qualify for a “safety valve” provision allowing a defendant to avoid a mandatory minimum sentence by providing the government with information and evidence. But the trial court held that the Appellant could not do so because he had not provided the information before the first sentencing hearing. On appeal, the Tenth Circuit again reversed, holding that a defendant may satisfy this provision at any time before the new sentencing hearing.

Defense Attorneys: Virginia L. Grady, O. Dean Sanderford
28. United States v. White, Tenth Circuit: After Appellant pled guilty to failing to register as a sex offender, the sentencing court classified him as a “tier III” sex offender under the Sex Offender Registration and Notification Act (SORNA). SORNA categorizes state sex offenses by comparing them to federal sex offenses, as well as by reference to the age of the victim. In determining that Appellant’s state sex offense conviction was “tier III,” the sentencing court followed a “circumstance-specific approach,” looking not merely to the elements of the state offense, but also to police reports describing the offense. The Tenth Circuit reversed and remanded for resentencing, holding that the circumstance-specific approach is proper in SORNA classification only to determine the age of the victim, not to compare the offense to federal sex offenses.

Defense Attorneys: Carl Folsom, III; Julia L. O’Connell
29. United States v. Edmond, Eleventh Circuit: Indicted for conspiracy to commit access device fraud and aggravated identity theft, Appellant entered a plea agreement with the government. But that agreement inadvertently referred to an offense for which he had not been indicted, possession of access control devices. The error went unnoticed not only by the government’s and Appellant’s attorneys, but also by the trial court, which accepted the plea and sentenced the Appellant. The error was first noted by the Eleventh Circuit, after hearing oral argument on Appellant’s unrelated arguments. The Eleventh Circuit found it was plain error to accept a plea agreement as to a charge not alleged in the indictment and therefore reversed the lower court’s acceptance of the plea agreement.

30. United States v. Symington, Eleventh Circuit: Appellant entered a plea agreement with the government which, in part, determined that the Armed Career Criminal Act (ACCA) would not apply. The PSI determined, however, that the ACCA did apply. At sentencing, the court refused to allow Appellant to withdraw his guilty plea despite the mutual misunderstanding between the government and Appellant. This was an abuse of discretion because Appellant presented a fair and just reason for withdrawing the plea–that is, the plea court had explained that a 10-year maximum sentence would apply, but the sentencing court imposed a sentence above that when it was determined that Appellant should be sentenced in line with the ACCA. The conviction and sentence were vacated and remanded.