Articles Tagged with “Plea Agreement”

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

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

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

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

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

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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!

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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!

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In this edition, I think the most interesting case (of a number of interesting cases) is United States v. Garcia.

There, the government had an agent testify as an expert. The Fourth Circuit reversed, because the agent’s “expert testimony” exceeded the bounds of what counts as expert testimony.

The way agents get qualified as experts is, often, nuts. It’s good to see the Fourth Circuit rolling it back.