Articles Tagged with “Short Wins”

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Gentle readers,

I have been remiss in my postings of late. Apologies. Here is, in one place, a mass of cases from the last few weeks.


To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Dominic Pelligrino, Second Circuit.pdf
Appellant Pellegrino was charged with having violated New York’s narcotics laws and pleaded guilty in state court. Although the circuit court found his arguments on appeal without merit, they act nostra sponte to hold that it was an error not to apply the civil forfeiture standards established by the Civil Asset Forfeiture Reform Act of 2000. This led to the district courts verdict being vacated and remanded.

2. United States v. Arqueta-Ramos, Ninth Circuit.pdf
The case of Delicia Arqueta-Ramos illegally entering the United States was vacated and remanded on the grounds that she took a plea en masse. The circuit court held that district court did not err by advising the defendants of their rights en masse, however it did err but not questioning the defendant individually to ensure she understood her rights.

3. United States v. Haggerty, Tenth Circuit.pdf
After pleading guilty to one count of possession with intent to distribute and one count of possession of a firearm by a previously convicted felon, Haggerty appealed his seventy-two-month sentence. His case was reversed and remanded due to the district court’s failure to consider United States Sentencing Guidelines for a one-level reduction for acceptance of responsibility.

4. United States v. Royal, Fourth Circuit.pdf
Royal was convicted by a jury of unlawfully possessing ammunition was sentenced the 188 months imprisonment after it was determined that he is an armed career criminal under the ACCA. Upon his appeal his sentence was affirmed in part, vacated in part, and remanded for resentencing due to the Supreme Court’s recent holding in Descamps v. United States regarding imposition of the ACCA sentencing enhancement.

5. United States v. Liu, Ninth Circuit.pdf
Liu’s convictions and sentencing for criminal copyright infringement and trafficking in counterfeit labels were vacated and remanded for two reasons: (1) the jury was improperly instructed to the criminal statutes of acting “willfully” and “knowingly” at the time of the offense; (2) Liu’s counsel was ineffective by failing to raise an obvious statute-of-limitation defense.

6. United States v. Lang, Eleventh Circuit.pdf
After being charged with 70 counts of Lang’s case was vacated and remanded with directions to dismiss the indictment on the grounds that the indictment was “so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.”

7. United States v. Chandler, Fifth Circuit.pdf
The 420 month sentence Chandler received for engaging in a child exploitation enterprise was vacated and remanded for re-sentencing because 127 months of sentencing imposed on Chandler was partially based on the fact that he was a police officer at the time of the offense. After reviewing the case, the fifth circuit court determined that his status of police officer did not justify the increased sentence.

8. United States v. Gomez, Ninth Circuit.pdf
Appellant Gomez’s case was affirmed in part and vacated in part, and remanded. The court affirmed his indictment charging him with illegal reentry. His sentence for sexual conduct with a minor was vacated and remanded due to the court’s incorrect imposition of a sixteen-level sentencing enhancement by the district court.

9. United States v. Nelson, Fifth Circuit.pdf
Nelson’s conviction for soliciting and receiving bribes as a government official was affirmed, but his sentence was vacated and remanded. This occurred because the district court failed to provide enough evidence to support their decision to apply the Sentencing Guideline that permits the court to increase the offense level corresponding to the bribery amount. The district court valued the bribery amount to be $6,382,000 but only had sufficient evidence to support a claim of $250,000.

10. United States v. Rufai, Tenth Circuit.pdf
All of Mr. Rufai’s convictions of aiding and abetting health care fraud charge were reversed due to the absence of sufficient evidence. The district court failed to provide sufficient evidence that demonstrates that Mr. Rufai knowingly and willfully participated in fraud.

11. United States v. Rodriguez, Eleventh Circuit.pdf
Rodriquez’s conviction was affirmed, but his sentence was reversed and remanded. The circuit court ruled that the district court had enough evidence to support that Mr. Rodriguez had committed wire, however they did not have enough evidence to support the claim that there were more than 50 victims. This led the circuit court to remand the conviction to the district court for resentencing with a 2-level enhancement rather than a 4-level enhancement.

12. United States v. Moore, Fifth Circuit.pdf
Defendant Moore pleaded guilty to one count for her role in a conspiracy to steal mail from six collection boxes. She appeals her sentence on the grounds that her recommended enhancement was miscalculated. The court ruled that Moore was correct and that she should have only received a 4-level enhancement not the 6-level enhancement she was given. Her sentence was vacated and remanded for resentencing.

13. United States v. Smith, Tenth Circuit.pdf
After pleading guilty to two counts of wire fraud, Mr. Smith was assigned a total offense level of 16, a criminal history category of VI, and sentenced to a term of 180 months’ imprisonment on each count of wire fraud. The court ordered these sentences run concurrently and consecutively to a Kansas state sentence Mr. Smith is serving for burglaries and thefts underlying the fraud offenses. This sentence was reversed and remanded on the grounds of a sentencing disparity argument the court found to be a reversible error.

14. United States v. North, Fifth Circuit.pdf
North appeals the district court’s denial of his motion to suppress evidence from interception of his cellular phone. The court reversed the denial of his motion on the grounds that the FBI agents recording his call failed to perform minimization efforts and remanded the case for further proceedings.

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It’s a slow week here in the federal circuit courts, at least for people accused of a crime who won their cases – only three cases were reversed in the federal court of appeals in published opinions last week.

Happily, what last week’s opinions lost in quantity they made up in quality.

Judge Posner weighed in on restitution in child porn cases. Always a fun writer to read.

In other child pornography news, the First Circuit reversed and remanded in a Confrontation Clause case. If you have a Confrontation Clause case on appeal, you should read United States v. Cameron.

Finally, the Tenth Circuit reversed a sentence because the defendant was denied a right to allocute. We’ve seen this issue before, and, frankly, I find it bizarre that district court’s don’t get this right every time.

If you’re traveling this week, be safe. And remember, take the turkey out of the wrapper before you cook it.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Laraneta, Seventh Circuit (Posner, J.): In child pornography case, the restitution award to two women, pornographic images of whom were found in appellant’s possession, required remand for the district court to determine (1) how much to subtract from one of the victim’s losses to reflect payment of restitution that she has received in other cases, and (2) whether appellant uploaded any of the victims’ images. Additionally, the district court erred in ruling that appellant’s liability for restitution was joint and several, as appellant was the sole defendant in this case and could not seek contribution from others.

2. United States v. Cameron, First Circuit: Appellant was convicted of 13 crimes involving child pornography. Because the admission of certain reports violated appellant’s Confrontation Clause rights, and because these errors were not harmless with respect to six of the offenses, appellant’s convictions for the six offenses were reversed and his sentences vacated.

3.United States v. Castillo, Tenth Circuit: In felon in possession of a firearm case, the district court violated appellant’s right of allocution when it failed to allow him a meaningful opportunity to speak on his own behalf before the imposition of his 28-month sentence. Consequently, the case was remanded to the district court with directions to vacate appellant’s sentence and for resentencing.

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It’s another relatively slow week in the federal appeals courts of our great nation. Perhaps folks are too saturated with election coverage to issue opinions.

Of the three courts that issued opinions this week, only one is in a battleground states (or quasi battleground state) – the Tenth Circuit in Colorado.

The Eleventh Circuit based in Georgia and the Fifth Circuit in New Orleans surely are not drowning in direct mail pieces or television ads.

Perhaps their productivity isn’t crippled by constant refreshing of Real Clear Politics.

And, perhaps that explains why we haven’t heard from the Sixth Circuit — normally a prolific creator of news for this blog — which is based in the uber-battleground state of Ohio.

In any event, there are a few great cases from the last week, especially the Tenth Circuit’s multiplicity opinion in United States v. Frierson. As the feds use conspiracy charges ever more frequently, multiplicity arguments are a good way to reign in the metaphysical problems of profligate conspiracy theories (e.g., If a thousand angels are dancing together on the head of a pin, how many conspiracies to dance together can there be?).

And, looking forward, there’s a huge event on Tuesday. That’s right — the Federal Public Defender for DC, A.J. Kramer, will be arguing a withdrawal from a conspiracy case in the Supreme Court. I would expect there will be coverage lots of places, including here.

Also, if you’re an undecided voter and didn’t know it, the election is Tuesday.

With that, on to the victories:

1155650_berlin_siegessule.jpg1. United States v. Frierson, Tenth Circuit: In case involving two convictions for conspiracy to distribute crack cocaine, appellant’s convictions were plainly multiplicitous because the jury was not instructed that they could not find appellant guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law. Because neither the instructions nor the government suggested that the first conspiracy count was anything other than part of the larger conspiracy alleged in the second, the Tenth Circuit remanded with instructions to vacate appellant’s conviction and sentence on either the first or the second conspiracy counts.

2. United States v. Murray et al, Fifth Circuit: Three defendants were convicted of crimes arising out of their participation in a Ponzi scheme and, at the time of sentencing, were not ordered to pay restitution. Because the district court sentenced the defendants without ordering restitution and found that, from the facts on the record, 18 U.S.C. § 3663A(c)(3) applied, the “shall order” provision in § 3663A(a) did not authorize the court to reopen its judgment more than sixth months later to add an order of restitution.

3. United States v. Miller, Eighth Circuit: In case arising out of a husband and wife’s methamphetamine-related convictions, the district court committed two procedural sentencing errors in determining that the wife’s advisory guidelines sentencing range was 188-235 months in prison: (1) the court failed to apply Guideline § 2D1.1(a)(5), which may have substantially increased her advisory guidelines range; and (2) the “confused sentencing record” casts doubt on the court’s drug quantity finding. For these reasons, the wife’s sentence was vacated and remanded for resentencing.

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It’s a dog’s breakfast of victories in the nation’s federal criminal appellate courts.

Personally, I love a good case on the district court’s contempt power — look to see the Fourth Circuit’s contempt reversal in United States v. Peoples profiled in more depth a little later in the week. The case has everything — a pro se litigant, a finding of contempt, and profanity (which is tastefully referred to in the opinion). It reminds me of another great pro se contempt case from last year. It reminds me, too, of the Sixth Circuit’s relatively recent case on the limits of a district court’s power to sanction a lawyer. Always good stuff.

Which is not to give short shrift to the two other wins from last week — resentencing in an illegal reentry case and unsupported supervised release conditions in a federal sex case.

And, of course, this week the Supreme Court is hearing more arguments and it’s a relatively criminal heavy week. Tuesday has a Padilla case, as well as a nice Fourth Amendment question — can the cops detain someone incident to a search warrant if the person is not actually present when the search warrant is executed. Wednesday is dog sniff day.

Of course, that assumes that Frankestorm doesn’t blow the Eastern Seaboard away. Wish us luck with that.

1155650_berlin_siegessule.jpgOn to the victories:

1. United States v. Peoples, Fourth Circuit: On appeal of appellant’s two criminal contempt convictions, the Fourth Circuit held that, as to the second conviction, the district court committed plain error when it summarily imposed a contempt sanction for appellant’s tardiness because the court failed to provide appellant with notice and an opportunity to be heard, and because this failure affected appellant’s substantial rights.

2. United States v. Rodriguez-Escareno, Fifth Circuit: In illegal reentry case, the district court applied a 16-level enhancement to appellant’s sentence because it considered his earlier crime, conspiracy to distribute methamphetamine, to be a “drug trafficking offense” under Guideline § 2L1.2(b)(1)(A)(i). The court erred in applying the enhancement because the elements of the conspiracy conviction under 21 U.S.C. § 846 are not consistent with the meaning of “conspiring” under the relevant Guideline: the Guideline requires an overt act, while § 846 does not. This was plain error because it was obvious and affected appellant’s substantial rights: had his sentence been properly calculated, his Guidelines range would have been 15-21 months, as opposed to the 41-51 months determined by the court. Appellant’s 48-month sentence was vacated and the case remanded for resentencing.

3. United States v. Child, Ninth Circuit: Appellant was convicted of attempted sexual abuse. A condition of supervised release prohibited him from residing with or being around children under age 18, including his daughters, and from socializing with or dating anybody with children under age 18, including his fiancée, without prior approval from his probation officer. The court failed to make specific findings on the record addressing the necessity of restricting appellant’s ability to have contact with his children and fiancée. Because of the significant liberty interest implicated, these errors – as well as the absence in the record of any evidence supporting the condition – rendered the condition substantively unreasonable. The condition was also overbroad. For these reasons, the condition was vacated and the case remanded.