Articles Posted in Interpreting Statutes

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Talk to anyone lucky enough to earn his/her livelihood through criminal appellate practice, and you’ll likely hear some version of the following complaint: the Government is never held to the same standard as the criminal defendant on appeal.  Whether it’s waiver during the trial-level proceedings, or a purported waiver during oral argument or in the briefing, it often seems like appellate courts give the Government a degree of latitude that is not usually afforded to the defense.  This case is an exception and a refreshing reminder to the Government that not dotting i’s and crossing t’s can have some meaningful consequences.

In United States v. Reyes-Rivas, the defendant/appellant argued during sentencing and on appeal that he did not meet the criteria for a “career offender” enhancement under section 4B1.1 of the Sentencing Guidelines.  Specifically, he argued one of his priors – a Puerto Rico conviction for fourth degree aggravated battery – did not qualify as a “crime of violence.”  He also argued that the conviction could not qualify as a “crime of violence” under the residual clause of section 4B1.1.  He reasoned that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) applied to the career offender enhancement because the residual clause language in the Armed Career Criminal Act was almost identical to the residual clause language in the Sentencing Guidelines.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He is a First Circuit CJA attorney and practices in federal appellate courts around the country.  He is also the founding member of The Brownlee Law Firm.  To learn more, visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com. 

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The First Circuit’s decision in United States v. Lopez-Pastrana, 15-1894 (1st. Cir. May 4, 2018) is long, but can be summed up simply: federal courts can’t impose a term of supervised release on a charge that resulted in no prison time, even if the sentencing court is trying to help the defendant obtain federally-subsidized medical care for a serious condition.  Here’s what happened in Lopez-Pastrana:

The Government charged Mr. Lopez-Pastrana with two drug crimes and two weapons crimes.  He entered into a plea agreement.  Mr. Lopez-Pastrana would plead guilty to possession of marijuana with intent to distribute (Count III) and possession of a firearm in furtherance of drug trafficking (Count IV).  In exchange, the Government would dismiss Counts I and II.  The agreed-upon (but non-binding) sentencing range was zero to six months imprisonment for Count III, and a 60 month mandatory-minimum on Count IV.  Of course, there was an appeal waiver in the plea agreement.

At sentencing, Mr. Lopez-Pastrana explained he has Chronic Obstructive Pulmonary Disease (“COPD”), which, if you believe the commercial, makes you feel like an elephant or some other large animal is sitting on your chest.  His sentencing attorney told the district court that Mr. Lopez-Pastrana had a 20% chance of surviving the next four years.  The Government thought he was overstating the matter.  According to the Government, the Bureau of Prisons represented that “his medical condition is not an end-stage disease” and that his condition had improved during the four months he was incarcerated and awaiting sentencing.  (Aside: BOP has a very high opinion of its ability to care for sick people.  Check out the 11th Circuit’s opinion in United States v. Seecharan, where a defendant’s doctor opined the defendant would die of infection if he went to prison, and the district court ordered incarceration based on BOP’s response was that it “could handle anything.”  Happily, the 11th Circuit reversed for resentencing).

Back to Mr. Lopez-Pastrana. The district court sentenced him to 60 months in a prison medical facility on Count IV, with 5 years of supervised release.  But the sentence on Count III engendered some debate.  The district court basically gave Mr. Lopez-Pastrana an ultimatum.  Option 1: 12 months of home confinement with federally funded medical care as a condition of supervised release, and no time in prison.  Option 2: 6 months in prison.  Mr. Lopez-Pastrana took the 12 months of home confinement and appealed.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

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Lester and Nancy Sadler, a husband and wife, ran a series of pain management clinics in Ohio.

As the Sixth Circuit explained, “these were not conventional plain clinics.” For example, at one clinic

patients would arrive well before it opened, filling the clinic’s parking lot and the lots of nearby businesses. While waiting for the clinic to open, the patients used drugs and traded prescription forms for cash in the parking lots. The patients often traveled long distances (and in large groups) to come to the Sadlers’ shops, sometimes as much as 316 miles in a roundtrip, even though most of the patients lived much closer to other clinics.

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When you go to a restaurant, you have to pay for the meal – there’s a quid pro quo. But you don’t have to leave a tip (we’re leaving aside situations where you have a large party and they automatically add 18%). A tip you leave because you want to note and appreciate the service you received. Maybe a tip is expected, but a waiter can’t sue you for not leaving one.

So too with bribes, gratutities, and law makers. If a member of Congress makes a deal with you where you’ll give him $10,000 in exchange for voting for your favorite bill, that’s a bribe. But if he votes for your favorite bill and then you send him $10,000 because you’re excited about his vote, that’s a gratuity.

As the Supreme Court has said,

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Does marriage fraud happen in the marriage, or at the wedding? As it happens, marriage fraud, at least according to the Eleventh Circuit, is a bit of a misnomer – it’s really better thought of as wedding fraud.

The statute is 8 U.S.C. § 1325(c). It says that it’s a marriage fraud whenever “[a]ny individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws.” The case is United States v. Rojas.

2.jpgYunier Rojas and Soledad Marino were friends. Good friends, but just friends. Apparently not even friends with benefits. Just friends.

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United States v. Izurieta is an odd opinion. Turns out the Eleventh Circuit was a very good defense attorney in this case.

Two brothers – Yuri and Anneri Izurieta – ran an import/export business. They brought food into the United States from Central America.

999830__3.jpgThey were charged with not following FDA procedures when they brought food into the country that – according to a trial stipulation – contained e coli and salmonella.

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Tamatha Hilton was the bookkeeper for a company called Woodsmith’s. Woodsmith’s made furniture. Ms. Hilton made bad decisions.

Specifically, for a few years, she took checks written by Woodsmith’s customers and gave them to her husband, Jimmy Hilton. Mr. Hilton did not work at Woodsmith’s.

Mr. Hilton gave the checks to his ex-wife, Jacqueline Hilton. Ms. Hilton opened a bank account at Suntrust in her name, saying that she was the owner of a company called Woodsmiths Furniture Company.

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Sometimes a boat ride – a three hour cruise – can take you places you could never have anticipated.

For Yimmi Bellaizac-Hurtado, Pedro Felipe Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado, a ride in a wooden boat off the coast of Panama took them to the Eleventh Circuit, the Bureau of Prisons, and through the heart of the Constitution’s grant of power to Congress to make laws to punish “Offenses against the Law of Nations.”

Welcome to the Jungle

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If you’re ever involved in a bank fraud case, you should probably read the Second Circuit’s opinion reversing Mr. Felix Nkansah’s bank fraud conviction. If the government wants to convict someone for bank fraud, the Second Circuit says they’ve got to show that the person was trying to defraud a bank (as opposed to trying to defraud someone or something else).

The Company You Keep

Felix Nkansah fell in with some bad company.

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Ronda Nixon’s career was on the upswing. She had logged her time as a Mary Kay Cosmetics representative. She had spent time in a job working at a small law firm – first as an assistant and then she worked her way up to bookkeeper and paralegal.

Finally, she was ready to make her move. She left her old jobs behind to go to law school. She was moving on up.

1031341_makeup_kit.jpgUnfortunately, her former boss – Garis Pruit – took ill. While he was recovering from surgery, he received a call from the bank.

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