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Short Wins – A Twofer week

Due to my own sloth, we’re presenting two weeks of short wins in one post. Here it is!

There are some good cases here, featuring the Armed Career Criminal Act, the Fourth Amendment, and law enforcement agents testifying as experts.

In other news, the Sentencing Commission has put out two “quick fact” sheets. One is on “Theft Property Destruction and Fraud” and the other is on Mandatory Minimum Penalties.pdf. My favorite fun fact – the median loss in federal fraud cases is $95,408.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bonilla-Guizar, Ninth Circuit.pdf: Appellants were convicted of conspiracy to commit hostage taking, hostage taking, and harboring an alien. At sentencing, the court applied two improper enhancements: (1) to Bonilla, the enhancement for a leadership role was improper because the court’s findings on this enhancement were ambiguous; (2) for both appellants, the enhancement for use of a firearm was improper, because the evidence was that appellants merely brandished a firearm. For these reasons, appellants’ sentences were remanded for a hearing on the leadership role enhancement and to vacate the use of a firearm enhancement.

Attorneys: for Appellants, Francisco Leon and Rosemary Márquez
2. United States v. Lopez-Cruz, Ninth Circuit: Appellant was charged with conspiracy to transport illegal aliens after police answered appellant’s cell phone posing as appellant, when appellant had only given police consent to search the phone. The appellate court affirmed the order suppressing evidence obtained from the call because appellant had standing to claim that his Fourth Amendment rights were violated when police answered the call and the consent to search the phone did not extend to answering incoming calls. Further, the district court did not abuse its discretion in denying the government’s motion for reconsideration, which raised an exigent circumstances argument for the first time.

Attorney: Devin Burstein for the appellant

3. United States v. Richard North, Fifth Circuit: The district court erred in denying appellant’s motion to suppress evidence obtained from the interception of his cellphone, which led to his arrest for possession of cocaine, for three reasons: (1) it lacked jurisdiction to permit interception of cell phone calls from Texas at a listening post in Louisiana under the criminal investigations wiretap statute; (2) the court’s non-compliance with the wiretap statute implicates a core concern of the statute; and (3) the government failed to comply with minimization protocols when it monitored one of the phone calls at issue. The denial of the motion to suppress was reversed and the case remanded for further proceedings.

4. United States v. Bahr, Ninth Circuit: Appellant pled guilty to possessing child pornography and was sentenced to two 240-month concurrent sentences. In a prior period of post-release supervision, appellant made statements that were incorporated into his presentence report for the current case. This violated appellant’s Fifth Amendment privilege against self-incrimination and, as a result, his sentence was vacated and the case remanded for resentencing.

Attorney for Appellant: Thomas J. Hester

5. United States v. Descamps, Ninth Circuit:The Supreme Court reversed the Ninth Circuit’s decision in United States v. Descamps, 466 F. App’x 563 (9th Cir. 2012). The Supreme Court held that (1) courts may not apply the modified categorical approach to sentencing under the Armed Career Criminal Act (“ACCA”) when the offense of conviction has a single, indivisible set of elements, and (2) appellant’s prior burglary conviction under California law was not for a violent felony within the meaning of ACCA. The Ninth Circuit, in turn, reversed its prior decision and remanded the case for further proceedings.

6. United States v. Freeman, Sixth District.pdf Appellant was convicted by a jury of conspiracy to use interstate commerce facilities in the commission of murder for hire and was sentenced to life without parole. After bringing an appeal, the court ruled that his conviction be vacated and remanded for a new trial on the grounds that the lay testimony given by an FBI agent did not show any clear expert methodology on the formation of his opinions. In other words, the agent’s testimony failed to live up to the requirement of Rule 702 that states “the product of reliable principles and methods…reliably applied… to the facts of the case”.

7. United States v. Hockenberry & Gray, Sixth District.pdf One of two Appellants’ sentences was in part affirmed and reversed. Appellant Hockenberry’s district court sentence was vacated and remanded for sentencing on the grounds of the district court erring on their denial of the appellants’ motion to suppress and their classifications as armed career criminals. Appellant Gray’s sentence was affirmed.

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