Happy New Year!
In our first “Short Wins” of the new year, the Eighth Circuit reverses a district court’s order restricting a person in BOP custody from communicating with folks on the outside, the Ninth Circuit reverses on a career offender determination, and the Sixth Circuit reversed when a district court didn’t give a person counsel in a competency hearing.
My personal favorite, though, is the Ninth Circuit’s remand in a mail fraud case that, the court of appeals determined did not involve the mails.
Sometimes it’s the little things.
To the victories!
1. United States v. Allmon, Eighth Circuit: After appellant was convicted of offenses arising out of his involvement in a drug trafficking operation and a conspiracy to kill a witness, the district court granted the government’s motion to restrict appellant from communicating with 29 people. Years later, the court on its own motion ordered more stringent restrictions on appellant’s communications after it learned that appellant circumvented the initial restrictions. Because the Director of the Bureau of Prisons did not make a motion to further restrict appellant’s communications, this was error. As a result, the order requiring more stringent restrictions was vacated.
2. United States v. Lee, Ninth Circuit: Appellant was convicted of distributing crack cocaine and was sentenced as a career offender under Sentencing Guideline section 4B1.1 based on two prior convictions that the district court identified as controlled substance offenses. Because the government failed to meet its burden of showing that one of the two convictions qualifies as a predicate offense, the case was remanded for the district court to consider appellant’s career offender status.
3. United States v. Phillips, Ninth Circuit: Appellant was convicted of mail fraud, among other offenses, arising out of his scheme to defraud his company. Because appellant’s fraudulent scheme did not depend in any way on the use of the mails, his conviction for mail fraud was reversed.
4. United States v. Pileggi, Fourth Circuit: Appellant was convicted of various offenses as a result of his involvement in a fraudulent sweepstakes scheme. He was sentenced to 50 years in prison and ordered to pay more than $ 4 million in restitution. Appellant appealed his sentence, but not the restitution amount. On remand for resentencing, the court increased the restitution amount to more than $ 20 million. Because the appellate court’s mandate did not give the district court the authority to change the restitution amount, the second restitution order was vacated and the case remanded for the district court to reinstate the first order.
5. United States v. Ross, Sixth Circuit: Appellants Bryan Ross and Robert Burston were convicted of offenses arising out of their involvement in a counterfeit check scheme. With respect to Mr. Ross, the district court erred when, upon granting a competency hearing, it failed to reappoint full-time counsel to represent Mr. Ross until the issue of competency was resolved. Mr. Ross’ case was remanded for an evidentiary hearing to determine whether he was unconstitutionally deprived of counsel at the competency hearing. If the district court determines that Mr. Ross was deprived of counsel, his conviction and sentence will be vacated.
6. United States v. Watson, Fourth Circuit: Appellant was convicted of being a felon in possession of a firearm and ammunition. The district court denied appellant’s motion to suppress a statement he made after being detained by police for three hours without probable cause. This was error because (1) appellant’s three-hour detention was an unlawful custodial arrest in violation of his Fourth Amendment rights, (2) the taint of this unlawful arrest was not purged by the two Miranda warnings provided during his detention or by any intervening circumstance, and (3) the erroneous admission of appellant’s statement was not harmless. As a result, appellant’s convictions were vacated and the case remanded to the district court.
7. United States v. Xu, Ninth Circuit: Four Chinese nationals appealed their convictions arising out of their scheme to steal funds from the Bank of China and retain the proceeds by illegal transfers of funds and by immigration fraud. Because the district court erred in applying Sentencing Guideline section 2S1.1(a)(1) instead of section 2S1.1(a)(2), which resulted in a higher base offense level, the case was remanded for resentencing.