US v. Gordon, No. 04-6384
An order requiring defendant to pay restitution for credit card fraud is vacated and remanded where: 1) contrary to the government's argument that defendant had waived her right to appeal the amount of restitution via her appellate waiver in her plea agreement, she could appeal the restitution order; and 2) the amount of restitution ordered exceeded the statutory amount permissible under the Mandatory Victim Restitution Act (MVRA) because it awarded amounts for losses to other victims in addition to the victim of the offense to which she pled guilty.
Monday, April 30, 2007
vacated where the district court impermissibly based its sentence on the defendant's national origin and thereby rendered the sentence invalid.
US v. Kaba, No. 05-3813
Conviction and sentence based on guilty plea to conspiring to distribute and possess with intent to distribute more than one kilogram of heroin is vacated where the district court impermissibly based its sentence on the defendant's national origin and thereby rendered the sentence invalid. (Amended opinion)
Conviction and sentence based on guilty plea to conspiring to distribute and possess with intent to distribute more than one kilogram of heroin is vacated where the district court impermissibly based its sentence on the defendant's national origin and thereby rendered the sentence invalid. (Amended opinion)
Due Process Clause in notifying plaintiff of the administrative forfeiture of $13,000 seized from him upon his arrest for serious drug crimes is rever
Taylor v. US, No. 06-60275
A determination that the government satisfied the Due Process Clause in notifying plaintiff of the administrative forfeiture of $13,000 seized from him upon his arrest for serious drug crimes is reversed and remanded where, on the record, the government failed to meet its burden to show that its notice was "reasonably calculated
insufficient evidence
US v. Stephens, No. 05-4668
Convictions and sentence for conspiracy to distribute cocaine and firearm-related charges are reversed to the extent the evidence was insufficient to corroborate defendant's statement and thereby establish his guilt of two of the crimes alleged.
Convictions and sentence for conspiracy to distribute cocaine and firearm-related charges are reversed to the extent the evidence was insufficient to corroborate defendant's statement and thereby establish his guilt of two of the crimes alleged.
Friday, April 27, 2007
Santobello issue
US v. Cachucha, No. 06-2215
A sentence for involuntary manslaughter in Indian Country is reversed and remanded for resentencing by a different judge where the government breached the plea agreement because it had promised not to seek a higher offense level or an upward variance from the advisory guidelines range, but the prosecutor nonetheless complained about the applicable Guidelines. Read more...
A sentence for involuntary manslaughter in Indian Country is reversed and remanded for resentencing by a different judge where the government breached the plea agreement because it had promised not to seek a higher offense level or an upward variance from the advisory guidelines range, but the prosecutor nonetheless complained about the applicable Guidelines. Read more...
Wednesday, April 25, 2007
remanded where the district court's supplemental instructions, which foreclosed the jury from considering
US v. Luisi, No. 03-1470
Convictions on cocaine-related charges are vacated and remanded where the district court's supplemental instructions, which foreclosed the jury from considering the defendant's superior's role in the asserted government entrapment of defendant, were erroneous
Convictions on cocaine-related charges are vacated and remanded where the district court's supplemental instructions, which foreclosed the jury from considering the defendant's superior's role in the asserted government entrapment of defendant, were erroneous
Farreta violation
US v. Garey, No. 05-14631
Conviction and sentence for criminal counts arising out of a series of bomb threats are reversed as the district court committed reversible error in finding that defendant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel.
Conviction and sentence for criminal counts arising out of a series of bomb threats are reversed as the district court committed reversible error in finding that defendant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel.
making false statements to the FBI are vacated as to the insurance fraud counts
US v. Kaplan, No. 05-5531
Conviction and sentence for conspiracy, mail fraud, wire fraud, making false statements in connection with health care matters, health care fraud, witness tampering, and making false statements to the FBI are vacated as to the insurance fraud counts where: 1) the district court erred in admitting lay opinion testimony regarding defendant's and other's knowledge of the fraud; and 2) these errors were not harmless.
Conviction and sentence for conspiracy, mail fraud, wire fraud, making false statements in connection with health care matters, health care fraud, witness tampering, and making false statements to the FBI are vacated as to the insurance fraud counts where: 1) the district court erred in admitting lay opinion testimony regarding defendant's and other's knowledge of the fraud; and 2) these errors were not harmless.
Texas conviction for delivery of a controlled substance was not a drug-trafficking offense under U.S.S.G. section 2L1.2(b)(1).
US v. Gonzales, No. 05-41221
Defendant's sentence for reentry of a removed alien is vacated where the district court committed plain error in applying a 16-level enhancement for a prior drug-trafficking conviction, because his Texas conviction for delivery of a controlled substance was not a drug-trafficking offense under U.S.S.G. section 2L1.2(b)(1).
Defendant's sentence for reentry of a removed alien is vacated where the district court committed plain error in applying a 16-level enhancement for a prior drug-trafficking conviction, because his Texas conviction for delivery of a controlled substance was not a drug-trafficking offense under U.S.S.G. section 2L1.2(b)(1).
Invalid search warrant
US v. Blatstein, No. 06-4210, 06-4285
Conviction for mail fraud based on conditional plea, reserving right to appeal adverse suppression ruling, is affirmed over claim that search warrants were constitutionally invalid. Defendant's sentence is vacated based on the Government's forceful challenges to several of the factors on which the court relied in varying downward.
Conviction for mail fraud based on conditional plea, reserving right to appeal adverse suppression ruling, is affirmed over claim that search warrants were constitutionally invalid. Defendant's sentence is vacated based on the Government's forceful challenges to several of the factors on which the court relied in varying downward.
government is collaterally estopped from retrying defendant for conspiracy
US v. Ohayon, No. 05-17045
Defendant's acquittal on a charge of an attempted drug offense requires dismissal of a charge of a drug conspiracy on which the jury was unable to reach a verdict, as the government is collaterally estopped from retrying defendant for conspiracy to possess with intent to distribute drugs.
Defendant's acquittal on a charge of an attempted drug offense requires dismissal of a charge of a drug conspiracy on which the jury was unable to reach a verdict, as the government is collaterally estopped from retrying defendant for conspiracy to possess with intent to distribute drugs.
18 U.S.C. section 921(a)(33)(A)
US v. Hayes, No. 06-4087
Conviction based on conditional guilty plea to one count of three-count indictment for possessing firearms, after having been convicted of the predicate offense of a "misdemeanor crime of domestic violence," is reversed as the predicate offense was not an MCDV as defined in 18 U.S.C. section 921(a)(33)(A), and thus the charges in the indictment fail as a matter of law.
Conviction based on conditional guilty plea to one count of three-count indictment for possessing firearms, after having been convicted of the predicate offense of a "misdemeanor crime of domestic violence," is reversed as the predicate offense was not an MCDV as defined in 18 U.S.C. section 921(a)(33)(A), and thus the charges in the indictment fail as a matter of law.
Sentencing Enhancement Notice defective
US v. Arnold, No. 05-40877
Following a limited remand, defendant's sentence on one count is vacated pursuant to the district court's finding that he was prejudiced by the government's statutory citation error in a pre-trial Sentencing Enhancement Notice, which reflected its intention to seek a sentence of ten years to life.
Following a limited remand, defendant's sentence on one count is vacated pursuant to the district court's finding that he was prejudiced by the government's statutory citation error in a pre-trial Sentencing Enhancement Notice, which reflected its intention to seek a sentence of ten years to life.
multiplicitous inductment
US v. Buchanan, No. 04-41364
A conviction and sentence for receiving child pornography transported in interstate commerce by computer and possession of child pornography is vacated in part and remanded where four counts against defendant were multiplicitous as the government did not offer any proof that he took more than one action to receive the four images that were the basis of his convictions under 18 U.S.C. section 2252(a)(
A conviction and sentence for receiving child pornography transported in interstate commerce by computer and possession of child pornography is vacated in part and remanded where four counts against defendant were multiplicitous as the government did not offer any proof that he took more than one action to receive the four images that were the basis of his convictions under 18 U.S.C. section 2252(a)(
waiver of appellate rights
US V. HUDSON (U.S. 10th Circuit) -
Regardless of whether a defendant's waiver of appellate rights via a plea agreement would otherwise be enforceable, he cannot be deemed to have waived his right to appeal the legality of a court's restitution order. A restitution order imposed following defendant's plea to conspiracy to infringe a copyright is reversed where the government failed to prove that the copyright holder, Microsoft, suffered any actual loss and, consequently, no restitution should have been ordered.
Regardless of whether a defendant's waiver of appellate rights via a plea agreement would otherwise be enforceable, he cannot be deemed to have waived his right to appeal the legality of a court's restitution order. A restitution order imposed following defendant's plea to conspiracy to infringe a copyright is reversed where the government failed to prove that the copyright holder, Microsoft, suffered any actual loss and, consequently, no restitution should have been ordered.
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