Articles Tagged with “Fourth Circuit”

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When police officers can lie and about what they can lie is a recurring issue in criminal appeals. Courts have found that not telling the truth can be a useful tool in investigations, but is checked by the Constitution. For example, a detective can, while interrogating a suspect, lie about the evidence the police already have in their possession. Police can lie about the real reason for stopping a driver — they say it was for speeding, but in fact was because they believed the driver was a drug dealer. But, police cannot tell you they have a search warrant when, in fact, they do not have one.
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Reversals of convictions because the government’s evidence at trial was not sufficient to sustain a conviction, despite a jury finding otherwise, are rarest of appellate victories. They are also the sweetest because the result is not a remand for a retrial, but a remand for the entry of a judgment of acquittal. Given this, it is surprising that there have recently been two such reversals this month. In the second of the two, a writeup of the first is coming soon, Daniel Blue, had his two convictions for possession with intent to distribute 100 grams or more of herion and conspiracy to commit the same vacated.

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This week’s favorite Short Win is United States v. Gray. I say this less because of the legal issue involved – a jury instruction for “malice” – than for how much fun the opinion is to read. Here’s the opening:

Words are slippery things. Take “malice,” its legal definitions alone can encompass: the intent to commit a wrongful act, reckless disregard for the law, ill will, wickedness of heart, and the intent to kill. See Black’s Law Dictionary 968-69 (7th ed. 1999). But can malice’s fifty shades of meaning include “improper motive?” Former flight attendant Nancy Gray, convicted of providing false information regarding a bomb threat on an airplane, seeks to convince us that she was denied a fundamentally fair trial when her jury was instructed that malice meant “evil purpose or improper motive.” Because we find that the district court’s definition just won’t fly, we vacate Gray’s conviction and remand this case for a new trial.

It goes on from there. And, really it’s a sad story about a flight attendant snapping. But it’s good prose.

To the victories!

Thumbnail image for Thumbnail image for you win.jpg1. United States v. Gray, First Circuit: Appellant’s conviction for giving false information regarding a bomb threat on an airplane was vacated and remanded because the trial court improperly instructed the jury on the definition of malice. By instructing he jury that malice could be “an improper purpose,” the trial court reduced the government’s burden of proof.

Defense Attorney: Inga L. Parsons
2. United States v. Medina, First Circuit: After pleading guilty to failure to register as a sex offender, Appellant was sentenced to 30 months’ imprisonment and 20 years of supervised release. This sentence was vacated and remanded for resentencing because the 20-year period of supervised release was based on the erroneous classification of Appeallant’s SORNA violation as a sex offense. In addition, two conditions of supervised release–one restricting Appellant from accessing or possessing a wide range of sexually stimulating material, and the second requiring Appellant to submit to intrusive penile plethysmograph testing–were not justified by the record.

Defense Attorney: Edward J. O’Brien

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In this set of short wins, the one that I’d like to call attention to is United States v. Cuti.

Restitution is not a sexy issue. It isn’t as fun to read about as, say, a Brady fight, or a glaring evidentiary problem at a trial. But it’s important.

Restitution judgments can be massive and, frankly, too many lawyers, judges, and prosecutors phone it in around restitution. United States v. Cuti clarifies that what counts as restitution is not just any money that any person may have spent as a result of the criminal conduct at the heart of the case. If you’ve got a restitution issue coming up, give it a read. Nice stuff.

To the victories!

you win.jpg1. United States v. Cuti.pdf, Second Circuit: Appellant was convicted of conspiracy to make false statements and securities fraud. His sentence included an award of restitution under the Victims and Witnesses Protection Act. The Second Circuit held that legal expenses incurred in connection with a civil arbitration connected to the offense are not deemed “necessary” under the VWPA because they were not undertaken or pursued in aid of the prosecution. In addition, the court held that non-victims are eligible for restitution only to the extent such payments were made on behalf of the victim, and remanded for reconsideration of the restitution order.

Defense Attorneys: Brian C. Brook and Matthew J. Peed
2. United States v. Price, Fourth Circuit: Appellant pled guilty to failing to register as a sex offender and the district court adopted Guidelines based on the fact that such an offense qualified as a ‘sex offense’. That interpretation was wrong; failing to register as a sex offender does not qualify as a sex offense. The court therefore remanded for resentencing under different sentencing guidelines.

Defense Attorneys: Kimberly Harvey Albro and John H. Hare

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And, after a really long break, we’re back. Apologies. This day job has been very busy lately.

And, of course, if you ever find yourself jonesing for my writing, you can always check out my stuff on Above the Law.

You saw our guest post on Hite last week – it’s a great case that bears a close read.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Barnes, First Circuit: Appellant pled guilty to distribution and conspiracy to distribute 50kg of marijuana. At sentencing, the district court attributed 3,000kg of marijuana to Appellant after a judicial finding of that quantity by a preponderance of the evidence. After Alleyne, drug quantities must be proven beyond a reasonable doubt. The First Circuit held that this error was harmful because the government did not provide an explanation that proved, beyond a reasonable doubt, that the error in attributing a larger quantity of drugs did not “contribute” to the complained-about sentence, and therefore vacated the sentence.

Defense Attorney: Judith H. Mizner
2. United States v. Prange, First Circuit: The trial court erred in calculating the loss amount attributable to Appellants when it relied on the PSR, which recommended loss amounts unsupported by law. Appellants were entitled to have the loss amount lowered when the stocks they sold had some value when it was sold. The cases were remanded so the district court could make factual findings as to the value of the shares acquired by the government during the sting.

Defense Attorneys: Steven N. Fuller, Allen Fuller, and Inga L. Parsons
3. United States v. Sevilla-Oyola, First Circuit: After an initial plea hearing and sentencing, Appellant filed a motion challenging his sentence. A number of hearings were held after, during which the trial court lowered the sentence each time. The trial court, however, did not have authority for his actions during a majority of the proceedings. The variety of motions filed by Appellant could not be considered a Section 2255 motion because Appellants only gets one complete round of collateral review and none of the parties had considered Appellant’s motions to be a habeas petition. All of the convictions were vacated and remanded for one final resentencing.

Defense Attorney: Rafael F. Castro Lang
4. United States v. Starks, First Circuit: Appellant was convicted of being a felon in possession of a firearm after a police officer stopped him in a car his son had rented. The district court held that Appellant did not have standing to challenge the stop because Appellant was not the authorized driver of the rental car. But because a mere passenger in a car has standing to challenge the constitutionality of the stop, the First Circuit held that Appellant’s status as an unlicensed, unauthorized driver was no less than that of a passenger and therefore he had standing. This required the conviction to be vacated and remanded for an evidentiary hearing.

Defense Attorney: James L. Sultan
5. United States v. Zhyltsou, Second Circuit: A jury found Appellant guilty of the unlawful transfer of a false identification document. During trial, the court admitted as evidence a printed copy of a social media webpage which the government claimed was created by Appellant. The government did not satisfy the authentication requirement because it did not prove that it was Appellant’s profile page rather than a page on the internet that was about Appellant but which Appellant did not create or control. The conviction was vacated and the case remanded.

Defense Attorney: Yuanchung Lee
6. United States v. Bui, Third Circuit: Appellant’s petition for habeas corpus should have been granted because he received ineffective assistance of counsel. Appellant pled guilty only after his trial counsel provided him with incorrect advice regarding the availability of a sentencing reduction pursuant to the “safety valve.” Although trial counsel filed a motion for such a reduction, he withdrew it after realizing Appellant was ineligible. This amounted to ineffective assistance of counsel.

Defense Attorneys: Maria K. Pulzetti and Brett G. Sweitzer
7. United States v. Paladino, Third Circuit: Appellant challenged the district court’s judgment revoking Appellant’s supervised release and imposing a prison sentence. The judgment was vacated and the case remanded for resentencing because Appellant was denied the right to allocute at sentencing when the court did not address Appellant personally or permit him to speak or present information in mitigation of the sentence.

Defense Attorney: Sarah S. Gannett
8. United States v. Catone, Fourth Circuit: A jury convicted Appellant of one count of making a false statement in connection with his receipt of federal workers’ compensation benefits and was sentenced to 16 months’ imprisonment and to pay $106,411.83 in restitution. The sentence must be vacated because the jury did not make a finding that the offense led to more than $1,000 in falsely obtained benefits, so Appellant could only be given a maximum 12-month, misdemeanor sentence. The loss calculation was wrong because it should have reflected the difference between the amount of benefits that he actually received and the amount that he would have received but for the false statement. Instead, restitution was vacated because the loss amount was calculated as the full amount Appellant had received in workers’ compensation during that time period.

Defense Attorneys: Joshua B. Carpenter and Ross Hall Richardson
9. United States v. Randall, Fifth Circuit: Although Appellant pled guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, the factual basis on which his plea was based and the PSR found that Appellant was only responsible for less than 200 grams of cocaine. Appellant’s sentence, which was based on his liability for five kilograms of cocaine, was vacated and remanded because Appellant should be sentenced based only on the facts adopted by the court–that is, the amount attributable only to him and not to the conspiracy as a whole–and that amount did not require a mandatory minimum sentence.

10. United States v. Snelling, Sixth Circuit: Appellant was convicted of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion and sentenced to 131 months in prison. In determining the sentencing guidelines range, the court failed to take into account sums paid back to the Ponzi scheme’s investors in the course of the fraud. This resulted in a higher loss value, and therefore a larger sentencing enhancement. The sentence was therefore vacated and remanded for recalculation.

Defense Attorney: Kevin M. Schad
11. Swisher v. Porter Co Sheriff’s Dept., Seventh Circuit: Appellant brought a §1983 complaint based on a pretrial denial of medical care for a bullet wound to his abdomen. Appellant had not exhausted all administrative remedies, so the district court dismissed his complaint. The denial was reversed because Appellant had not been advised of the grievance procedure and was told by the Warden not to file a grievance.

12. United States v. Bowling, Seventh Circuit: Appellants convictions for making false statements in connection with the purchase of a firearm were reversed and the case remanded for a new trial. The Seventh Circuit held that Appellant had to be given the opportunity to present a mistake of fact defense because, although he was charged with a felony at the time, he was also aware that the plea deal offered was for a misdemeanor. The Court held that Appellant should not have to testify in order to present the defense, but instead can cross-examine other witnesses.

13. United States v. Hinds, Seventh Circuit: Appellant’s case was remanded for resentencing because the district court improperly imposed two special conditions of supervised release. The condition requiring Appellant to pay for a portion of his court-ordered substance abuse treatment and drug testing was in error because the district court expressly found that Appellant lacked the ability to pay the interest requirement on the restitution and the court did not order a fine based on the same inability to pay. And the condition requiring Appellant to submit to suspicionless searches and seizures was also in error, and the government conceded at oral argument that this invasive condition has already been banned by the court.

14. United States v. Myers, Seventh Circuit: Appellant was convicted of several identity theft-related crimes and sentenced to 132 months imprisonment. The sentence was vacated because the six-level enhancement for 250 or more victims violated the Ex Post Facto Clause. The guidelines in place at the time of the crime would not have characterized many of the individuals as victims.

15. United States v. Reid, Eighth Circuit: Appellant was convicted of unlawful possession of a firearm by a felon, which carries a ten year maximum sentence. The court found that Appellant’s prior conviction qualified him under the Armed Career Criminal Act to a guidelines range of fifteen years to life imprisonment. Because Appellant’s prior conviction was not a violent felony, as required by the Armed Career Criminal Act, his sentence was vacated.

16. Deck v. Jenkins, Ninth Circuit: Petitioner’s writ of habeas corpus should have been granted where the prosecutor, in closing argument, negated an essential element of the intent to commit a lewd act upon a child. The prosecutor argued that the intent element could be proven if Petitioner intended to commit the act not on the day of his arrest, but at some point in the future. This prosecutorial error was not harmless where the jury was confused, a corrective instruction was not given, and the written jury instructions did not address the subject of the jury’s confusion.

Defense Attorney: Charles M. Sevilla
17. Sessoms v. Grounds, Ninth Circuit: Petitioner’s writ of habeas corpus should have been granted because a reasonable law enforcement officer should have understood Petitioner’s statements as an unambiguous request for counsel. In light of Salinas v. Texas, the requirement of an unambiguous invocation of the right to counsel applied to pre-Miranda statements like Petitioner’s.

Defense Attorney: Eric Weaver
18. United States v. Aguilera-Rios, Ninth Circuit: Petitioner’s conviction for illegal reentry was reversed because his prior removal order was invalid. The removal order was based on a conviction for unlawful possession of a firearm. The statute criminalizing that conduct did not have an antique firearms exception and therefore was not a categorical match for the Immigration and Nationality Act’s firearm offense. Since there was no categorical match, the removal order was invalid.

Defense Attorney: Kara Hartzler
19. United States v. Bell, Ninth Circuit: After being convicted of making false, fictitious, and fraudulent claims to the US treasury, filing false tax returns, contempt, and mail fraud, Appellant was sentenced and, as part of supervised release, required to undergo substance abuse treatment and abstain from consuming alcohol. That condition was vacated and the case remanded because the record contained no evidence showing that Appellant abused any substance.

Defense Attorney: Gregory Charles Link
20. United States v. Brown, Ninth Circuit: A case arising from a Ponzi scheme and bankruptcy fraud was remanded for resentencing. The sentencing court erroneously imposed an enhancement for endangering the solvency or financial security of 100 or more victims where the government did not provide evidence of the impact of the crimes on the requisite number of victims. In addition, Appellant Eddings’ sentence also included an erroneous leadership role adjustment because the trial court noted that it wasn’t clear whether Eddings controlled a particular participant, and the record does not indicate that he controlled any other criminally responsible participant in the scheme. Further, it was error to apply a sentencing enhancement for having 250 or more victims when the district court relied on 148 victims who were not included in the loss calculation.

Defense Attorneys: Heather Williams, David M. Porter, Rachelle Barbour, and John Balazs
21. United States v. Bryant, Ninth Circuit: Appellant moved to dismiss the indictment charging him with two counts of domestic assault by a habitual offender. Appellant was previously convicted in tribal court of domestic abuse, which the government used to establish the element of a prior offense. The Court held that only tribal court convictions obtained when Appellant had a right to counsel which is, at a minimum, coextensive with the Sixth Amendment right to counsel, can be used in a subsequent prosecution. Because Appellant did not have such a right to counsel during his tribal court convictions, they could not be used against him in this case and the indictment should have been dismissed.

Defense Attorneys: Steve C. Babcock and Anthony R. Gallagher
22. United States v. Castro-Ponce, Ninth Circuit: Appellant’s sentence enhancement for obstruction of justice was vacated because the trial court did not explicitly find that Appellant’s false testimony was also willful and material.

Defense Attorney: Lynn T. Hamilton
23. United States v. Heredia, Ninth Circuit: The government made repeated and inflammatory references to Appellant’s criminal history throughout its sentencing memorandum. Because those references served no practical purpose but to argue implicitly for a higher punishment than it had agreed to recommend, Appellant’s sentence was vacated and remanded.

Defense Attorneys: Sean K. Kennedy and Jonathan D. Libby
24. United States v. Hernandez, Ninth Circuit: As part of Appellant’s sentence for illegal reentry, the district court added a sentencing enhancement for Appellant’s prior conviction of being a felon in possession of a firearm under the California Penal Code. Because that statute does not include an antique-firearm exception, it is not a categorical match for the federal firearms offense. Therefore the enhancement was improper and the case was remanded for resentencing.

Defense Attorneys: Sean K. Kennedy and James H. Locklin
25. United States v. Mavromatis, Ninth Circuit: Appellant’s conviction for being in possession of a firearm after being committed to a mental institution. This conviction was barred by double jeopardy because Appellant was previously acquitted on a charge based on the same incident of possession.

Defense Attorneys: Rich Curtner and Noa Oren
26. United States v. Melot, Tenth Circuit: Appellants were held in contempt and sanctions imposed after the district court believed the Appellants fraudulently intervened in the foreclosure of their properties. The sanctions were reversed because Appellants only had notice that the court was considering contempt. The lack of notice of sanctions or the opportunity to be heard was a denial of due process in violation of the Fifth Amendment.

Katherine L. Melot and Billy R. Melot proceeded pro se.

27. United States v. Reyes Vera, Ninth Circuit: Appellants were convicted of a drug conspiracy and the use of a minor to commit a drug trafficking offense. During trial, a police officer was called as an expert to explain the drug jargon used in wiretapped phone calls. The Ninth Circuit held that this testimony was a mix of lay and expert opinion, and the trial court’s failure to explain that distinction to the jury was in error. Because this error affected the drug quantities found by the jury in a special verdict (which itself impacted the mandatory minimum sentences), the case was remanded for proper determination of drug quantity.

Defense Attorneys: Gretchen Fusilier and Thomas Paul Slesinger
28. Williams v. Swarthout, Ninth Circuit: Petitioner’s writ of habeas corpus should have been granted where the trial court made a misstatement immediately before trial that Petitioner had pled guilty, and that misstatement was not corrected until the jury began to deliberate. This deprived Petitioner of the presumption of innocence and violated his Sixth Amendment right to an impartial jury because the error was not rendered harmless by curative instructions.

Defense Attorneys: William J. Capriola and John P. Ward
29. United States v. Bear, Tenth Circuit: Appellant pled guilty to failing to register or update a registration as a sex offender. The special condition of supervised release restricting Appellant’s contact with his children was reversed. Any condition that interferes with the right of familial association can do so only in compelling circumstances, and here the government did not present evidence that Appellant displayed a propensity to commit future sexual offenses or exhibited any proclivity toward sexual violence, nor has he shown any display of danger to his own children.

Defense Attorney: Brooke A. Tebow
30. United States v. Powell, Tenth Circuit: Appellant was convicted of numerous counts related to making, uttering, or possessing a forged security after he altered payee information or forged endorsements and then deposited checks stolen from the United States mail into his bank accounts at various banks. That crime requires the government to prove that the security (including checks) belonged to an organization (such as a bank). His convictions were vacated because proof that the checks were deposited into a federally insured bank was not proof that the checks were “of” the depository banks.

Defense Attorney: Ty Gee
31. United States v. Hite, DC Circuit: Appellant’s conviction for attempting to persuade a minor to engage in unlawful sexual activity was vacated. Although it is not necessary for the communication to be directly to a minor, the government must prove that the communications with an intermediary are aimed at persuading, inducing, enticing, or coercing the minor. The jury instructions did not reflect such an understanding and require Appellant’s conviction to be vacated. In addition, Appellant should have been permitted to introduce expert evidence about Appellant’s lack of sexual interest in children since that question is relevant to proving intent.

Defense Attorneys: Lawrence S. Robbins, Barry J. Pollack, A.J. Kramer, Jonathan Jeffress, and Rosanna M. Taormina

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It’s been an interesting few weeks in the circuits (and, apologies for the gap in posting – pesky family vacations).

Probably my favorite is United States v. Mergen, about whether an FBI agent’s statements that what the guy charged with a crime was doing were ok and legal were admissible. I tend to think FBI stings that take advantage of how weak the entrapment defense is are one of the more loathsome things our federal government does – any time you can poke holes in that I think it’s a good thing.

Also of note is United States v. Bagdy – there, a guy who spent an inheritance on stuff that wasn’t restitution, instead of restitution, didn’t violate his supervised release conditions. Supervised release can be insane – especially when restitution is in play. Nice work for the Third Circuit in dialing it back.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Martinez, First Circuit: Appellant pled guilty to one count of being a felon in possession of a firearm and was sentenced to 70 months’ imprisonment. That sentence was vacated because the district court erred in applying a six-level sentencing enhancement for having previously committed a crime of violence. The First Circuit held that a conviction for assault and battery in Massachusetts is categorically not necessarily a crime of violence because it does not require proof of intent.

Defense Attorney: William W. Fick
2. United States v. Ramos, First Circuit: Appellant was convicted of various child pornography charges, and as part of his supervised release, was forbidden from using a computer or the internet without permission and also was forbidden from having pornographic material. Those conditions were vacated because they are not reasonably related to Appellant’s characteristics and history and thus deprive him of more liberty than is reasonably necessary to achieve the goals of sentencing.

Defense Attorney: Steven A. Feldman
3. United States v. Mergen, Second Circuit: Appellant’s conviction under the Travel Act was vacated because the district court erred by excluding as hearsay a recording in which the FBI agent assured Appellant that he had done nothing wrong. The statements should not be excluded as hearsay where prior inconsistent statements are offered for impeachment, and the fact that some portions of the recording were inaudible was not a proper basis for exclusion under the authentication rule.

Defense Attorneys: Andrew J. Frisch and Jeremy B. Sporn
4. United States v. Bagdy, Third Circuit: The district court cannot revoke supervised release based on Appellant’s purposeful dissipation of an inheritance he received instead of using the money to pay restitution he owed. While that conduct is reprehensible, it did not violate a specific condition of Appellant’s supervised release. The judgment was vacated and the case remanded.

Defense Attorney: Candace Cain
5. United States v. Mark, Third Circuit: After being convicted of conspiracy to possess with intent to distribute a controlled substance, Appellant was sentenced to 210 months’ imprisonment. The court remanded for resentencing because the Court did not provide a basis for its findings on the amount of drugs attributable to Appellant and Appellant had disputed the amount as indicated in the PSR. The court’s conclusory statements were insufficient since the amount to attribute was in dispute.

Defense Attorney: Pamela L. Colon
6. United States v. McLaurin, Fourth Circuit: Appellant’s sentence was vacated because his criminal history calculation included two common law robbery convictions when Appellant was 16. Because this miscalculation was plain error, the case was remanded for resentencing with a lower sentencing range.

Defense Attorneys: Joshua B. Carpenter, Lawrence W. Hewitt, and Henderson Hill
7. United States v. Juarez-Velasquez, Fifth Circuit: Appellant’s probation revocation was reversed and vacated because his supervised release expired prior to the date the Probation Office petitioned the court for revocation, depriving the court of jurisdiction. Tolling a term of supervised release is appropriate only when Appellant was imprisoned in connection to a criminal conviction, and Appellant’s imprisonment was only while he was awaiting trial for charges for which he was acquitted.

8. United States v. Hackett, Sixth Circuit: Appellant was convicted by a jury of various gang-related, weapons, and drug offenses as well as a RICO conspiracy charge and was sentenced to 440 months’ imprisonment. The mandatory-minimum sentence on a firearms count was imposed in violation of Alleyne–because the indictment did not allege that Appellant discharged the weapon–and therefore Appellant’s sentence was vacated and remanded for resentencing.

Defense Attorney: David L. Doughten
9. United States v. Noble, Sixth Circuit: During their trial for various drug trafficking charges, Appellants moved to suppress evidence obtained from a frisk during a traffic stop. The decision to perform the frisk was based solely on: 1) a passenger acting extremely nervous; 2) the DEA task force told the officer that the vehicle was suspected to be involved in drug trafficking; and 3) the idea that subjects involved in drug trafficking often carry a weapon to protect themselves. That was not enough to amount to a reasonable suspicion so the convictions were vacated and the case remanded.

Defense Attorneys: Frederick J. Anderson, Charles P. Gore, and Katherine A. Crytzer
10. United States v. Tomlinson, Sixth Circuit: Appellant was convicted by a jury for being a felon in possession of a firearm. Appellant timely raised his Batson challenge before the jury was sworn and the trial commenced, so the case was remanded for a Batson hearing. The Sixth Circuit held that a Batson challenge does not have to happen contemporaneously for each stricken juror.

Defense Attorney: Valentine C. Darker
11. United States v. Toviave, Sixth Circuit: Appellant was convicted of forced labor for requiring his young relatives to cook, clean, and do household chores. The Court found that Appellant’s behavior was reprehensible, but did not amount to forced labor. Requiring a child to do chores cannot possibly amount to forced labor, and physically punishing children for failing to perform those chores does not change the nature of the work from chores into forced labor. His conviction was therefore vacated.

Defense Attorney: Christopher Keleher
12. Socha v. Boughton, Seventh Circuit: The district court abused its discretion when it rejected Petitioner’s equitable tolling argument when requesting habeas relief. Although he failed to file his petition within the given time limits, equity required that the deadline be forgiven. Petitioner faced many difficulties in filing his petition, none of which were his fault, including his inability to obtain his case file for almost a year from the public defender despite numerous requests.

13. United States v. Adame-Hernandez, Seventh Circuit: The district court withdrew Appellant’s guilty plea over his objection. This violated the procedures of Rule 11 which allows a district court to reject a plea agreement and then allow Appellant to either stand by the plea or withdraw it. It was an abuse of discretion for the court to make that choice for Appellant. The court also erred in believing Appellant had breached the plea agreement.

14.United States v. Domnenko, Seventh Circuit: A 14-point sentencing enhancement was not sufficiently explained or supported and therefore required remand. Appellants were convicted of fraud, but a conviction for their involvement does not necessarily mean that all economic damages were reasonably foreseeable.

15. United States v. Jones, Seventh Circuit: The sentences for three Appellants were vacated and remanded for resentencing. Jones’ request to be sentenced under the Fair Sentencing Act was erroneously denied. Mockabee was sentenced under a more recent version of the sentencing guidelines which resulted in a higher guidelines range than the previous version. Drake’s sentence was also vacated and remanded for resentencing because the jury failed to make specific findings regarding drug quantities which increased the mandatory minimum. All three must be resentenced.

16. United States v. Moore, Seventh Circuit: A jury convicted Appellant of using or carrying a firearm during and in relation to a crime of violence but was unable to reach a verdict on the predicate violent crime itself. The conviction was vacated because the trial court solicited a partial verdict form the jury before the jurors indicated that no further deliberations would be useful. Because this could have resulted in a premature verdict, the conviction must be vacated.

17. United States v. Walton, Seventh Circuit: The trial court’s denial of Appellant’s motion to suppress was in error. Appellant had Fourth Amendment standing despite the fact that he was a parolee because parolees do not receive fewer constitutional protections based on their status. Further, the person who is listed on a rental agreement for a rental car does possess an expectation of privacy that enables him to challenge a search under the Fourth Amendment. Thus, the denial of the suppression motion was reversed and remanded for further proceedings.

18. United States v. Zheng, Seventh Circuit: After pleading guilty to aggravated identity theft and conspiracy to misuse Social Security numbers and commit passport fraud, Appellant was sentenced to 61 months in prison. A two-level sentencing enhancement for fraudulent use of a foreign passport was applied. The case was remanded for resentencing because the application of the enhancement would double-count conduct that was already considered in the aggravated identity theft conviction and therefore was improper.

19. Franco v. United States, Eighth Circuit: After pleading guilty to conspiracy to distribute methamphetamine, Appellant was sentenced to 120 months’ imprisonment. Appellant filed a habeas petition arguing that his sentence should be vacated because his attorney failed to file a requested notice of appeal. The district court erred by denying the habeas petition without an evidentiary hearing to determine whether Appellant had asked his attorney to file an appeal. The denial of the petition was reversed and remanded.

20. Colwell v. Bannister, Ninth Circuit: The district court’s grant of summary judgment was reversed in a §1983 claim. The Nevada Department of Corrections’ categorical denial of Petitioner’s request to have cataract surgery amounted to deliberate indifference when it was based on an administrative policy that one eye was good enough for prison inmates. The case was remanded for trial.

Defense Attorneys: Mason Boling, Lauren Murphy, Dustin E. Buehler, Michelle King, Joy Nissen, and Gregory C. Sisk
21. Hernandez v. Spearman, Ninth Circuit: The district court erred in failing to apply the prison mailbox rule when dismissing Petitioner’s habeas corpus petition as untimely. The mailbox rule applies when a pro se habeas petitioner gives his petition to a third party to mail from within the prison.

Defense Attorney: Tony Faryar Farmani
22. Nordstrom v. Ryan, Ninth Circuit: Petitioner’s allegations that prison officials violated his constitutional rights when they read a confidential letter to his lawyer should not have been dismissed for failure to state a claim. Petitioner stated a Sixth Amendment claim by alleging that officials read his legal mail, claimed entitlement to do so, and his right to private consultation with counsel had been chilled. Those allegations also supported Petitioner’s claim for injunctive relief. The district court’s dismissal was reversed.

Defense Attorneys: Michelle King, Joy Nissen, Gregory C. Sisk, Mason Boling, Lauren E. Murphy, and Dustin E. Buehler.

23. United States v. JDT, Juvenile Male, Ninth Circuit: The adjudications of delinquency for six counts of aggravated sexual abuse were vacated and remanded for reconsideration. The district court abused its discretion in denying Appellant’s requests to suspend his status as a juvenile delinquent because the court did not weigh the factors bearing on suspension.

Defense Attorney: Keith J. Hilzendeger
24. United States v. Mageno, Ninth Circuit: Appellant’s conviction for conspiracy to distribute methamphetamine was reversed because the prosecutors made several factual misstatements in closing arguments which encouraged the jury to convict Appellant based on evidence not presented at trial. The Ninth Circuit determined that there was a reasonable probability that the misstatements affected the outcome of Appellant’s trial.

Defense Attorney: Mace J. Yampolsky
25. United States v. Hale, Tenth Circuit: Appellant was convicted of making a materially false statement under oath in a bankruptcy case. That conviction cannot stand where the questions giving rise to the allegation were ambiguous and the answers provided by Appellant may have been valid under one interpretation of the questions asked. That conviction was reversed.

Defense Attorney: Joseph Alexander Little, IV
26. United States v. Roy, Eleventh Circuit: Appellant’s conviction for possession of child pornography was vacated and the case remanded for a new trial because the trial court allowed the government to elicit testimony and evidence even though defense counsel was not in the courtroom. This was a violation to Appellant’s 6th Amendment right to counsel because the government was allowed to examine its computer forensics expert witness and admit inculpatory evidence (pictures) even though defense counsel was not in the courtroom.

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Remember back with this blog was more than just Short Wins? Remember when there were long and loving descriptions of cases?

I still aspire to get back to that vision for the blog – that was fun. Seriously, look for more long write-ups soon. I’ve been distracted by writing for Above the Law (here is a link to my columns (I particularly like the one about cannibalism)) and my day job as a practicing lawyer.

But, if you’re jonesing for those long write-ups again, thanks to the good people at James Publishing, you can now read them in one handy-dandy book. It has the jazzy title Criminal Defense Victories in the Federal Circuits. Or you could just read the archives.

In other self-promoting news, the ABA’s annual list of best blogs is open for nominations. Here’s the link. It would be nice if you’d say something nice about this blog, but don’t feel like you have to.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Flores-Mejia, Third Circuit: The court vacated Appellant’s sentence after being convicted of reentry after deportation. The Third Circuit, however, used the opportunity to change its current law and now requires a party to object to procedural errors during the sentencing proceeding once that error is evident, otherwise it is not preserved. Because the new rule cannot apply retroactively, Appellant’s case was remanded.

Defense Attorney: Robert Epstein
2. Hurst v. Joyner, Fourth Circuit: The district court improperly denied a petition for habeas corpus. The Fourth Circuit remanded for an evidentiary hearing where a juror communicated with her father during the penalty phase of Appellant’s capital murder trial. At her father’s suggestion, the juror read a section in the Bible about “an eye for an eye,” and then voted in favor of the death penalty the following day. An evidentiary hearing was necessary to determine whether that communication had a substantial and injurious effect or influence on the jury’s verdict.

Defense Attorney: Robert Hood Hale
3. United States v. Garrett, Sixth Circuit: Appellant was sentenced to 151 months’ imprisonment after pleading guilty to one count of conspiracy to distribute more than 50 grams of crack cocaine. Although that sentence was at the bottom of Appellant’s guidelines, the Sixth Circuit determined that Appellant was eligible for resentencing because his sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Appellant’s initial Guidelines range was 151 to 188 months, but after the Guidelines Amendment, it would be 120 to 137 months.

Defense Attorneys: Bradley R. Hall and James Gerometta
4. Townsend v. Cooper, Seventh Circuit: Appellant sued a number of officials at his correctional facility and the district court granted summary judgment in favor of the Appellees. The court determined, taken in the light most favorable to Appellant, that Appellant raised genuine issues of material fact about whether he had a liberty interest in avoiding transfer to more restrictive prison conditions, which would require procedural due process. Because there was not appropriate notice or an opportunity to be heard, the district court’s grant of summary judgment was vacated and remanded.

5. United States v. Harden, Seventh Circuit: Appellant pled guilty to possession with intent to distribute cocaine and Appellant agreed to allow a magistrate judge perform he plea colloquy. Taking and accepting guilty pleas in felony cases is not one of the enumerated duties of magistrate judges and was determined by the Seventh Circuit to be both important and dispositive. Therefore, magistrate judges are not authorized to accept guilty pleas in felony cases, even if both parties would consent.

6. United States v. Sheth, Seventh Circuit: After pleading guilty to health care fraud, the district court entered an order of criminal forfeiture for cash and investment accounts then valued at about $13 million plus real estate and a vehicle. The forfeited assets would be credited against his $12,376,310 restitution. The government then sought further assets to apply to restitution and the district court ordered Appellant to turn over those assets. The turnover order was vacated and remanded for discovery and an evidentiary hearing to determine whether the first set of forfeited assets was sufficient to cover the restitution order.

7. United States v. Doering, Eighth Circuit: Appellant pled guilty to tampering with evidence and was sentenced to 90 months’ imprisonment and ordered to pay $45,382.88 in restitution. The restitution order was vacated and remanded because Appellant’s plea agreement did not list, as required, that an offense listed in the Mandatory Victims Restitution Act gave rise to the plea agreement. Without that specific, mandatory term, restitution under the MVRA was unauthorized.

8. United States v. Howard, Eighth Circuit: The order of restitution against Appellant was vacated because the calculation improperly included losses from dates preceding the relevant conduct of Appellant’s extortion conviction. The losses arose outsides of the dates listed in the indictment.

9. United States v. Nguyen, Eighth Circuit: Appellant’s conviction for knowingly shipping, transporting, receiving, possessing, selling, and distributing contraband cigarettes was reversed because there was insufficient evidence. Specifically, the government had no evidence that Appellant was aware of any applicable sales taxes on the cigarettes; the government had no evidence as to Appellant’s knowing violation of the statute.

10. United States v. Thomas, Eighth Circuit: Appellants was sentenced to 120 months’ imprisonment after pleading guilty to possession with intent to distribute 50 grams or more of methamphetamine. The case was remanded because the district court’s oral sentence was ambiguous about the sentencing guidelines range on which the Appellant’s sentence as based. On appeal, that ambiguity made it impossible to determine if the district court committed procedural error.

11. United States v. Gonzalez, Ninth Circuit: The Ninth Circuit remanded Petitioner’s case with instructions to grant the writ of habeas corpus based on the prosecution’s failure to disclose Brady material that would have impeached the credibility of a critical witness. The California Court of Appeal’s decision that Petitioner had not established that the evidence was newly discovered was an unreasonable determination of the facts. The court held that the California Court of Appeal’s requirement of due diligence was contrary to, or involved an unreasonable application of, clearly established federal law.

Defense Attorney: John Lanahan
12. Wood v. Ryan, Ninth Circuit: The district court improperly denied Appellant’s request for a preliminary injunction delaying his execution, which was scheduled for July 23, 2014. Appellant presented claimed that Department of Corrections violated his First Amendment rights by denying him information regarding the method of his execution. Because Appellant presented serious questions to the merits of the claim, and because the balance of hardships tips in his favor, the preliminary injunction should have been granted
13. United States v. Charles, Eleventh Circuit: Appellant pled guilty to charges relating to a conspiring to use unauthorized access devices. Appellant’s sentence was vacated because the district court committed legal error when it included a two-level sentence increase for trafficking in unauthorized access devices (for example, a prepaid debit card). Because Appellant was convicted of aggravated identity theft as well, the district court was precluded from considering any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense.

14. United States v. Estrella, Eleventh Circuit: As part of his sentence for illegal reentry, Appellant’s received a sentencing enhancement for a crime of violence based on his prior conviction for wantonly or maliciously throwing, hurling, or projecting a missile, stone, or other hard substance at an occupied vehicle. Under the categorical approach, the Eleventh Circuit determined that a conviction for that crime does not necessarily involve proof of the use, attempt, or threat of force. Therefore, the crime of violence enhancement was improper.

15. Bahlul v. United States, D.C. Circuit: Hamdan II held that there cannot be retroactive prosecution for conduct committed before the Military Commissions Act of 2006 unless that conduct was already prohibited under existing U.S. law as a war crime triable by a military commission. But that understand was contrary to the statutory wording, which allowed for the prosecution of any crimes. The D.C. Circuit, applying an ex post facto analysis, determined that Appellant’s conviction for providing material support for terrorism and solicitation of others to commit war crimes were not previously offenses that were triable by a military commission, so the convictions were vacated.

Defense Attorneys: Michel Paradis, Mary R. McCormick, and Todd E. Pierce

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There’s been a lot in the circuits in the last week, but perhaps the most surprising bit is that the Seventh Circuit issued four opinions on supervised release conditions.

Supervised release may not be the sexiest of issues, but, especially in child pornography cases, it matters a lot. I’m not sure what’s in the water in Chicago, but whatever it is reaffirms that these conditions need to be narrowly tailored and properly justified.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Ganias, Second Circuit: Following a jury trial, Appellant was convicted for tax evasion. That conviction was vacated because the district court erred in denying a motion to suppress personal computer records. Those records were retained by the Government for more than two-and-a-half years after Appellant’s computer was copied pursuant to a search warrant. This unauthorized retention of personal files violated Appellant’s Fourth Amendment rights.

Defense Attorneys: Stanley A. Twardy, Jr. and Daniel E. Wenner
2. United States v. Adepoju, Fourth Circuit: Appellant was convicted by a jury of bank fraud and aggravated identity theft and sentenced to 70 months’ imprisonment. During sentencing, Appellant was given a sentencing enhancement for sophisticated means. Completing paperwork to open a bank account in another’s name, including obtaining that personal information via internet searched, did not constitute sophisticated means, so the sentence was vacated and the case remanded for resentencing.

Defense Attorney: John O. Iweanoge, II
3. United States v. Henriquez, Fourth Circuit: The Fourth Circuit determined that first degree burglary in Maryland did not constitute a generic burglary and therefore does not qualify as a crime of violence under the U.S. Sentencing Guidelines. Appellant’s sentence was reversed because he received a sentencing enhancement for having committed a crime of violence.

Defense Attorneys: Paresh S. Patel and James Wyda
4. United States v. Blevins, Fifth Circuit: Appellant received a sentencing enhancement for having a prior felony drug conviction. In order to apply that enhancement, the Government was required to serve notice on Appellant. The Government’s service of such information under a first indictment was insufficient when that indictment was dismissed and the Government then filed a second, separate indictment. The notice must be served as part of the prosecution to which the sentencing is connected, so the case was remanded for further proceedings.

5. United States v. Escobedo, Fifth Circuit: During trial, the Government introduced evidence of Appellant’s withdrawn guilty plea and related inculpatory statements. Appellant withdrew the guilty plea prior to its acceptance by the district court and proceeded to trial instead. The plea included a waiver of Appellant’s ability to challenge the introduction of his withdrawn guilty plea and related inculpatory statements. Because the plea was ambiguous about whether that waiver took effect immediately or only upon the acceptance of the plea, the case was reversed and remanded.

6. United States v. Mackay, Fifth Circuit: After pleading guilty to conspiracy to distribute and possession with intent to distribute marijuana. Because of a clerical error, Appellant’s PSR and judgment listed cocaine instead of marijuana. Appellant filed a motion to correct that error. The refusal to correct the PSR was reversed. The Fifth Circuit concluded that the PSR is a part of the record under Rule 36 and because the BOP uses the PSR for classification and designation, the error was not harmless.

7. United States v. Rodriguez-Lopez, Fifth Circuit: Appellant was convicted by a jury of conspiracy to distribute marijuana. The district court applied a three-level sentencing enhancement for his managerial or supervisor role in the drug conspiracy. On appeal, the Court vacated and remanded for resentencing because there was no evidence that Appellant had exercised supervisory control over other members of the conspiracy, nor was he involved in the planning of operations of the organization. Instead, he only recruited another to purchase firearms, and that person recruited others. That involvement was insufficient to prove a managerial position for the sentencing enhancement.

8. United States v. Baker, Seventh Circuit: Appellant pled guilty for failing to register as a sex offender and was sentenced to 77 months’ imprisonment followed by a life term of supervised release. The judge also imposed eight special conditions of supervised release. The life term of supervised release was vacated because the judge improperly calculated the guidelines and failed to provide for any justification for exceeding the correct 5-year guidelines term. Three special conditions were also vacated because they were not reasonably tailored or properly defined. Finally, the order was deficient in failing to account for Appellant’s potential inability to pay for some of the required treatment and tests of his supervision.

9. United States v. Benhoff, Seventh Circuit: Appellant pled guilty to knowingly transporting and shipping child pornography and, along with his sentence, was given special conditions of supervised release. The court’s order on two of the special conditions was remanded sot that the trial court can narrowly tailor them. The trial court must clarify what materials are “sexually stimulating” as well as narrow the scope of the no contact with minors order so it does not block Appellant’s access to protected speech.

10. United States v. Farmer, Seventh Circuit: Once again, the Seventh Circuit vacated the special conditions of Appellant’s supervised release and remanded for further consideration. In this case, the special conditions bore no reasonably direct relationship to Appellant’s underlying crime. Appellant pled to attempted extortion and using interstate communications in that attempt. The two conditions–a prohibition on self-employment and a requirement that Appellant submit to a search of his person, vehicle, office, residence, and property without a warrant–were not reasonably related to his convictions.

11. United States v. Garrett, Seventh Circuit: Appellant’s sentencing guidelines were miscalculated after his drug offense conviction. The court did not clearly state the drug quantity that it found attributable to Appellant or adequately indicate the evidence it found reliable in determining Appellant’s relevant conduct. Appellant’s sentence was vacated and the case remanded for resentencing.

12. Henderson v. Ghosh, Seventh Circuit: Appellant, a prisoner, filed suit against health care providers and corrections employees alleging deliberate indifference to his medical needs. During litigation, Appellant’s motions for recruitment of counsel were denied. Only once the defendants filed a summary judgment motion was Appellant’s motion for recruitment of counsel granted. This trial court did not properly assess Appellant’s competence to litigate his claims, which was only exacerbated by his incarceration. In addition, the factual and legal complexity of the claims necessitated the appointment of counsel in this case.

13. United States v. Glover, Seventh Circuit: Appellant’s motion to suppress guns, drugs, and paraphernalia seized from his home pursuant to a search warrant was improperly denied. The search warrant had no information regarding the informant’s credibility, which undermined the magistrate’s ability to be a neutral arbiter of probable cause. The complete absence of that information was sufficient to raise an inference of reckless disregard for the truth, which warranted reversal.

14. United States v. Johnson, Seventh Circuit: Appellant’s special condition of supervised release which required him to participate in sex offender treatment was not supported. Appellant’s only sex-related offense was a misdemeanor conviction fifteen years before sentencing in the immediate case. That condition of supervised release was therefore vacated.

15. United States v. Nelson, Eighth Circuit: Appellant’s currency was seized pursuant to a lawful traffic stop, where Appellant was found to be carrying a small amount of marijuana and paraphernalia. Appellant had gathered the currency in advance of a road trip from his own savings account, stock dividends, and family. Despite the legitimate sources of the currency, the government instituted a forfeiture proceeding claiming that the currency was substantially connected to drug trafficking. The trial court’s ruling allowing the forfeiture was reversed because the Government failed to prove that Appellant was planning to purchase and transport large amounts of drugs and other evidence indicated that Appellant was not engaged in trafficking.

16. United States v. Aguilera-Rios, Ninth Circuit: Appellant’s conviction for illegal reentry was reversed. The Ninth Circuit found that Appellant’s removal order was invalid because it was based on a conviction under the California Penal Code which was not a categorical match for the federal firearms aggravated felony.

Defense Attorney: Kara Hartzler
17. United States v. Jackson, Ninth Circuit: The Ninth Circuit reversed Appellant’s conviction for unlawfully manufacturing or possessing an identification card of the design prescribed by the head of any department or agency of the United States. No rational fact-finder could conclude beyond a reasonable doubt that the fake card Appellant was “of the design prescribed by the head of any department or agency of the United States,” because the card was created by the maintenance center at a Marine Corps base and Appellant created a copy of the card previously issued to him because he constantly lost his actual card.

Defense Attorney: Davina T. Chen
18. Boyd v. United States, Eleventh Circuit: Appellant’s fourth §2255 motion was dismissed as successive. That dismissal was reversed because the term “successive” does not refer to all habeas petitions filed second or successively in time. Instead, it bars only motions which could have been raised in a claim for relief in an earlier motion but were not. Appellant’s three previous §2255 motions did not render the fourth successive because the wrong which he now asserts was not obvious until 2003 and the first §2255 motion was in 2001. The second and third §2255 motions were not decided on the merits and therefore did not make this motion successive either.

19. United States v. Dougherty, Eleventh Circuit: Two Appellants’ sentences of 428 months were vacated. The trial court improperly applied six-level sentencing enhancements for assaulting a police officer during immediate flight from an offense. The Eleventh Circuit determined that “immediate flight” did not encompass the assault on a police officer which occurred eight days after the flight began. That is, continuing flight does not qualify as immediate flight.

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Today’s featured defense victory is United States v. Barefoot, which deals with a kind of surprising course of conduct in the Fourth Circuit. In Barefoot, a person gave information to the government to help them investigate other crimes. The information was given on the condition that the information not be used to prosecute him. The government broke that condition.

Happily though, the Fourth Circuit enforced it.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Guzman-Montanez, First Circuit: Appellant was sentenced to 60 months imprisonment after being convicted of being a felon in possession of a firearm and possession of a firearm in a school zone. The latter conviction was reversed because the government’s evidence was insufficient to prove that Appellant knew or should have known he was in a school zone. Even though the parties stipulated the distance between the location of Appellant and the school, the distance alone is insufficient to establish knowledge.

Defense Attorneys: Víctor J. González-Bothwell, Héctor E. Guzmán-Silva, Jr., Héctor L. Ramos-Vega, and Liza L. Rosado-Rodríguez
2. United States v. Barefoot, Fourth Circuit: Two of Appellant’s six convictions were reversed. In a prior case, Appellant provided the government information as part of a plea agreement. In return, the government promised not to use that information in any subsequent prosecution against Appellant, but it did just that. The convictions on those charges were therefore reversed.

Defense Attorney: Joseph Edward Zeszotarski, Jr.

3. United States v. Hairston, Fourth Circuit: Appellant was convicted of conspiracy to possession with intent to distribute narcotics and sentenced to 324 months imprisonment. In calculating the guidelines, the court determined Appellant had a category IV criminal history. Subsequent to the conviction, one of Appellant’s prior convictions was vacated and Appellant filed a habeas corpus petition. That petition was dismissed by the district court because Appellant had previously filed other habeas petitions. That decision was reversed on appeal because this new motion was not successive and should therefore be considered.

Defense Attorneys: Stephanie D. Taylor and Lawrence D. Rosenberg
4. United States v. Martin, Fourth Circuit: After pleading guilty to unlawful possession of a firearm by a convicted felon, Appellant was sentenced to 77 months in prison. That sentence is vacated because the district court erred in calculating the sentence. Appellant’s prior conviction for fourth-degree burglary should not constitute a crime of violence under the sentencing guidelines.

Defense Attorneys: Paresh S. Patel. (go Paresh!)

5. United States v. Saafir, Fourth Circuit: Appellant entered a conditional guilty plea to being a felon in possession of a firearm. That plea was reversed and vacated because the probable cause on which the search was based was tainted. Appellant’s statements which provided probable cause were elicited in response to an officer’s manifestly false assertion that he had probable cause and that the search would proceed with or without Appellant’s consent.

Defense Attorneys: John Archibald Dusenbury, Jr. and Louis C. Allen
6. United States v. Garcia-Figueroa, Fifth Circuit: Appellant’s sentence was vacated because the district court erred in its application of the grouping guidelines. Appellant’s convictions for conspiracy to bring an alien into the United States and for bringing aliens into the United States were grouped, but a third count–illegal reentry of a deported alien–was not grouped. The Fifth Circuit determined that those offenses should be grouped because all are immigration crimes and the victim is therefore the same.

7. United States v. Hill, Fifth Circuit: Appellant was convicted of being a felon in possession of a firearm. He was arrested while sitting in his car in front of his girlfriend’s apartment. A police convoy drove through the parking lot and noticed Appellant’s girlfriend get out of the car and walk briskly toward her apartment. These facts do not present articulable facts which would allow the officer to suspect that Appellant was engaged in criminal activity. The conviction and sentence were vacated because the seizure violated the Fourth Amendment under Terry v. Ohio, and the firearm should have been suppressed.

8. United States v. Jones, Fifth Circuit: Appellant’s conviction for escaping from a halfway house was determined to be a crime of violence under the sentencing guidelines. The Fifth Circuit vacated Appellant’s sentence because, unlike some other escape charges, leaving a halfway house does not require overcoming physical barriers or evading security, for example, and therefore does not present a serious potential risk of physical injury to others.

9. United States v. Wright, Fifth Circuit: On remand from the Supreme Court, the court vacated and remanded three cases because the restitution amount must comport with the relative role of the individual in the causal process that underlies the victim’s general losses.

10. United States v. Davis, Sixth Circuit: Appellant was sentenced to 262 months’ imprisonment after pleading guilty to distribution and possession of child pornography. In calculating that sentence, the trial court erred by applying mandatory statutory minimums. The trial court found that Appellant’s 2002 conviction for attempted pandering triggered a sentencing enhancement. The sentencing enhancement is only triggered if the prior crime related to the possession or distribution of child pornography, and Appellant’s conviction for attempted pandering did not qualify.

Defense Attorney: Jennifer E. Schwartz
11. United States v. Payton, Sixth Circuit: Appellant’s 540-month sentence was vacated as unreasonable. The trial court’s sentence was 23 years above the guidelines and 20 years above the government’s recommendation. The Sixth Circuit reversed the sentence, citing the goal of reducing recidivism in conjunction with Appellant’s age, and determined that the trial court did not provide an adequate explanation for such a departure.

Defense Attorney: Jeffrey P. Nunnari
12. Grandberry v. Smith, Seventh Circuit: Appellant’s good time credits were reinstated because there was no evidence that he used prison computers without authorization. All of the work he performed was either at the direction of prison employees or with permission of an appropriate staff person.

13. United States v. Garcia, Seventh Circuit: Appellants were charged with violations under RICO. Appellant Zamora’s case was remanded for resentencing because the trial court did not discuss the calculation of the sentencing guidelines nor did it provide an explanation for departing above the guidelines. Appellant Gutierrez’s sentence was vacated because the trial court erred by failing to give Appellant credit for acceptance of responsibility.

14. United States v. McGill, Seventh Circuit: A jury found Appellant guilty of both distributing and possessing child pornography. At trial, an entrapment instruction was not provided to the jury. Appellant was charged after his friend, who was arrested for his involvement with child porngraphy, became an FBI informant. After weeks of pestering, Appellant allowed his friend to bring a USB flash drive and copy child pornography from Appellant’s computer. Because of those facts, an entrapment instruction was necessary, so the case was reversed and remanded.

15. United States v. Purham, Seventh Circuit: The trial court improperly considered conduct, which occurred outside the charged date range, as relevant conduct during sentencing. The sentence was reversed and remanded for resentencing.

16. United States v. Siegel, Seventh Circuit: Appellants both challenge certain discretionary conditions of their supervised release. The cases were remanded for reconsideration of the overbroad and vague conditions. The Seventh Circuit used these cases as an opportunity to address broad issues with conditions of supervised release. A list of best practices was included in the opinion, which requires probation officers to provide thoughtful justification for each condition, judges to come to an independent conclusion about each condition, and extra clarity in defining the contours of each condition.

17. United States v. Collins, Eighth Circuit: After pleading guilty to being a felon in possession of a firearm, Appellant was sentenced to 100 months’ imprisonment. That sentence was vacated because the sentencing enhancement for assaulting a police officer was inappropriate. The court required that the assault occurred during the course of the offense or immediate flight therefrom. Appellant’s attempt to stab a police officer with a pen after his arrest while being interviewed did not meet that requirement, so the case was remanded for resentencing.

18. United States v. Volpendesto, Seventh Circuit: Appellant was convicted of a number of racketeering and conspiracy crimes and was sentenced to prison. The court also entered a forfeiture judgment and ordered Appellant to pay $547,597 in criminal restitution. While his appeal was pending, Appellant died. Recognizing a split in other circuits, the Seventh Circuit joining the Fifth, Ninth, and Eleventh Circuits, decided that Appellant’ death mooted his case and abated the restitution order.

19. Roundtree v. United States, Eighth Circuit: The case was remanded to the district court for an evidentiary hearing on Appellant’s motion to vacate, set aside, or correct his sentence based on ineffective assistance of counsel. An evidentiary hearing is required unless the record conclusively establishes that the attorney’s performance was not deficient or that Appellant suffered no prejudice from a deficient performance by the attorney. The Eighth Circuit found that the record was inconclusive about the quality of the trial attorney’s performance, so an evidentiary hearing was required.

20. United States v. Aguilar, Eighth Circuit: Appellant’s conviction was reversed and remanded because an alternate juror had been present during deliberations. After an initial remand to the trial court to inquire into the alternate’s actual participation, the Eighth Circuit found that the alternate’s participation prejudiced Appellant. This required reversal and further proceedings.

21. Dixon v. Williams, Ninth Circuit: Petitioner’s habeas corpus request challenging a jury instruction on self-defense should have been granted. The inaccurate jury instruction said that an honest but “reasonable” (instead of “unreasonable”) belief in the necessity for self-defense does not negate malice and does not reduce the offense from murder to manslaughter. That error was not harmless because it reduced the State’s burden.

Defense Attorneys: Randolph Fiedler, Debra A. Bookout, and Rene L. Valladares
22. George v. Edholm, Ninth Circuit: The district court’s summary judgment in favor of the police officers was reversed. A doctor, forcibly and without Appellant’s consent, removed a plastic bag containing cocaine base from plaintiff’s rectum. A reasonable jury could conclude that police officers gave false information about Petitioner’s medical condition with the intent of inducing the doctor to perform the search, so summary judgment was inappropriate. Further, if the procedures used by the doctor violated the Fourth Amendment, the officers were not entitled to qualified immunity.

Defense Attorneys: Michael B. Kimberly and Charles Alan Rothfeld
23. United States v. Goldtooth, Ninth Circuit: Appellants’ convictions for aiding and abetting a robbery on the Navajo Nation were reversed and remanded. The Ninth Circuit held that no rational juror could find that Appellants had the requisite advance knowledge that the robbery was to occur because the government presented no evidence that that taking of tobacco from the victim was anything but a spontaneous act. The government also did not prove the specific intent element for attempted robbery.

Defense Attorneys: Tyrone Mitchell and James S. Park
24. United States v. Guerrero-Jasso, Ninth Circuit: After pleading guilty to an information alleging that he reentered the country without authorization after being removed, Appellant received a 42-month sentence. The sentence was vacated and the case remanded because the trial court impermissibly relied on a fact that was neither admitted by the Appellant or found by a jury beyond a reasonable doubt. This violated Apprendi and required resentencing.

Defense Attorney: Cynthia C. Lie
25. United States v. Brooks, Tenth Circuit: The trial court applied a sentencing enhancement for Appellant being a career offender. This enhancement was based on classifying a prior state conviction as a felony because it was punishable by more than one year in prison. Such a classification was abrogated by the Supreme Court in Carachuri-Rosendo v. Holder, so the sentence was reversed and remanded.

26. United States v. Davis, Eleventh Circuit: The trial court improperly applied a sentencing enhancement for brandishing a firearm. The jury found that Appellant had possessed a firearm–which requires a mandatory 5-year sentence–but the trial court imposed a mandatory minimum 7-year sentence for brandishing the firearm. Since possessing and brandishing are not one in the same, the case was remanded for resentencing.

27. United States v. Feliciano, Eleventh Circuit: Appellant’s conviction for using a gun during a bank robbery was reversed. There was no witness testimony or other evidence about a gun being used during that bank robbery. The insufficient evidence required reversal.

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It’s a been a relatively quiet week in the federal circuits. Which is one reason I think this week is a nice one to share this very cool graphic on how forfeiture laws are hurting people in these United States.

Forfeiture is insane. It reminds me too much of the California prison industry lobbying for tough on crime laws – the incentives simply line up wrong (it’s a long chart – the short wins are at the bottom).

Here’s the chart:

Please include attribution to ArrestRecords.com with this graphic.

Civil Forfeiture, an infographic from ArrestRecords.com

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Ferguson, Fourth Circuit: Appellant was deemed to have violated his supervised release based on possession of marijuana. Because the district court based that finding in part on a laboratory report that was prepared by a forensic examiner who did not testify, the sentence was vacated and remanded.

Attorneys: Nia Ayanna Vidal and Michael S. Nachmanoff
2. United States v. Villegas Palacios, Fifth Circuit: Appellant pled guilty to reentry of a deported alien. He was denied a one-level reduction in the sentencing guidelines because he refused to waive his right to appeal. An amendment to the sentencing guidelines became effective after Appellant’s sentencing but pending appeal. Those guidelines apply and require the one point reduction.

3. Vega v. Ryan, Ninth Circuit: The court reversed a denial of Petitioner’s habeas corpus petition challenging a conviction for sexual abuse. Trial counsel was ineffective when he failed to review the Petitioner’s file and interview a witness who would say the victim recanted the allegations. This was objectively unreasonable and had a reasonable probability of affecting the result of the proceedings.

Attorney: Patricia A. Taylor
4. United States v. Isaacson, Eleventh Circuit: After a jury trial, Appellant was convicted of conspiring to commit securities fraud. His sentence included 36 months’ imprisonment and $8 million in restitution. The sentence was vacated and the case remanded because the government did not carry its burden in attributing losses to Appellant’s participation in the conspiracy. This affected both a sentencing enhancement for loss amount as well as the amount of restitution owed.