US v. Wilms, No. 06-1896
Sentence for bank robbery and attempted bank robbery is vacated and remanded where the district court applied a rebuttable presumption that defendant should have been sentenced within the applicable Guidelines range.
Tuesday, July 24, 2007
Tuesday, July 17, 2007
ACCA Error
US v. Collier, No. 06-1395
A sentence for being a felon in possession of a firearm is vacated and remanded where the trial court erred in applying an enhancement under the Armed Career Criminals Act (ACCA) as defendant's conviction for prison escape under Mich. Comp. Laws Ann. section 750.193 did not qualify as a "violent felony" under the ACCA.
A sentence for being a felon in possession of a firearm is vacated and remanded where the trial court erred in applying an enhancement under the Armed Career Criminals Act (ACCA) as defendant's conviction for prison escape under Mich. Comp. Laws Ann. section 750.193 did not qualify as a "violent felony" under the ACCA.
Ineffective Assistance of counsel defective indictment
US v. Weathers, No. 06-3022
Conviction and sentence for rape and attempted murder, denial of ineffective assistance of counsel claim are reversed where trial counsel provided constitutionally inadequate assistance by failing to challenge two counts of the indictment related to defendant's threats to injure the prosecutor as multiplicitous and in violation of the Double Jeopardy Clause. Read more...
Conviction and sentence for rape and attempted murder, denial of ineffective assistance of counsel claim are reversed where trial counsel provided constitutionally inadequate assistance by failing to challenge two counts of the indictment related to defendant's threats to injure the prosecutor as multiplicitous and in violation of the Double Jeopardy Clause. Read more...
Friday, July 13, 2007
trial court erred in applying an enhancement under the Armed Career Criminals Act (ACCA)
US v. Collier, No. 06-1395
A sentence for being a felon in possession of a firearm is vacated and remanded where the trial court erred in applying an enhancement under the Armed Career Criminals Act (ACCA) as defendant's conviction for prison escape under Mich. Comp. Laws Ann. section 750.193 did not qualify as a "violent felony" under the ACCA.
A sentence for being a felon in possession of a firearm is vacated and remanded where the trial court erred in applying an enhancement under the Armed Career Criminals Act (ACCA) as defendant's conviction for prison escape under Mich. Comp. Laws Ann. section 750.193 did not qualify as a "violent felony" under the ACCA.
government breached its duty under defendant's plea agreement
US v. VanDam, No. 06-4104
A sentence for a drug trafficking offense is vacated and remanded where: 1) the government breached its duty under defendant's plea agreement by failing to recommend a term of imprisonment at the bottom of the applicable range under the sentencing guidelines; 2) under applicable precedent, it was inappropriate to apply a harmless-error analysis; and 3) defendant was entitled to specific performance before the same judge. Read more
A sentence for a drug trafficking offense is vacated and remanded where: 1) the government breached its duty under defendant's plea agreement by failing to recommend a term of imprisonment at the bottom of the applicable range under the sentencing guidelines; 2) under applicable precedent, it was inappropriate to apply a harmless-error analysis; and 3) defendant was entitled to specific performance before the same judge. Read more
possession of stolen mail is vacated and remanded
US v. Ikechukwu, No. 06-11239
A sentence for possession of stolen mail is vacated and remanded where, although defendant was a courier who regularly transported pieces of United States mail, he was not an employee of the United States Postal Service for purposes of a sentence enhancement under the guidelines
A sentence for possession of stolen mail is vacated and remanded where, although defendant was a courier who regularly transported pieces of United States mail, he was not an employee of the United States Postal Service for purposes of a sentence enhancement under the guidelines
Tuesday, July 10, 2007
US V. FORRESTER
(U.S. 9th Circuit) - Defendants' convictions and sentences for various offenses relating to the operation of a large Ecstasy-manufacturing laboratory are reversed in part as to one defendant where a district court's omission and misstatement with regard to the charge and potential prison term meant that defendant's waiver of his right to counsel was not knowing and intelligent, and that the Sixth Amendment was violated when he was allowed to proceed pro se. The conviction of another defendant is affirmed where the monitoring of his email and Internet activities did not constitute a search for Fourth Amendment
(U.S. 9th Circuit) - Defendants' convictions and sentences for various offenses relating to the operation of a large Ecstasy-manufacturing laboratory are reversed in part as to one defendant where a district court's omission and misstatement with regard to the charge and potential prison term meant that defendant's waiver of his right to counsel was not knowing and intelligent, and that the Sixth Amendment was violated when he was allowed to proceed pro se. The conviction of another defendant is affirmed where the monitoring of his email and Internet activities did not constitute a search for Fourth Amendment
Friday, July 06, 2007
Ex Post facto sentencing Violation
US v. Kilkenny, No. 05-6847
Sentence based on guilty plea to bank fraud, mail fraud, and structuring a financial transaction to evade currency reporting requirement requires remand where the district court's use of the 2002 version of the U.S. Sentencing Guidelines violated the Ex Post Facto Clause of Article I of the Constitution
Sentence based on guilty plea to bank fraud, mail fraud, and structuring a financial transaction to evade currency reporting requirement requires remand where the district court's use of the 2002 version of the U.S. Sentencing Guidelines violated the Ex Post Facto Clause of Article I of the Constitution
Thursday, July 05, 2007
Substantial Assistance?
US v. Villareal, No. 05-6838
A sentence pursuant to a plea agreement to distribution and possession with the intent to distribute cocaine and an order denying defendant's motion to compel the government to file a motion for a downward departure is remanded for further proceedings as it was unclear whether the government exercised its discretion under the plea agreement in deciding whether defendant provided substantial assistance
A sentence pursuant to a plea agreement to distribution and possession with the intent to distribute cocaine and an order denying defendant's motion to compel the government to file a motion for a downward departure is remanded for further proceedings as it was unclear whether the government exercised its discretion under the plea agreement in deciding whether defendant provided substantial assistance
Tuesday, July 03, 2007
5K Motion Compelled
US v. Villareal, No. 05-6838
A sentence pursuant to a plea agreement to distribution and possession with the intent to distribute cocaine and an order denying defendant's motion to compel the government to file a motion for a downward departure is remanded for further proceedings as it was unclear whether the government exercised its discretion under the plea agreement in deciding whether defendant provided substantial assistance
A sentence pursuant to a plea agreement to distribution and possession with the intent to distribute cocaine and an order denying defendant's motion to compel the government to file a motion for a downward departure is remanded for further proceedings as it was unclear whether the government exercised its discretion under the plea agreement in deciding whether defendant provided substantial assistance
Appeal Waiver dosent matter
US v. Tapp, No. 05-30222
The rule of Flores-Ortega, 528 U.S. 470 (2000), which held that the failure to file a requested notice of appeal (NOA) is per se ineffective assistance of counsel, applies even where a defendant has waived his right to direct appeal and collateral review. In such circumstances, if the petitioner is able to demonstrate by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal, regardless of whether he is able to identify any arguably meritorious grounds for appeal that would not be precluded by the terms of his appeal waiver
The rule of Flores-Ortega, 528 U.S. 470 (2000), which held that the failure to file a requested notice of appeal (NOA) is per se ineffective assistance of counsel, applies even where a defendant has waived his right to direct appeal and collateral review. In such circumstances, if the petitioner is able to demonstrate by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal, regardless of whether he is able to identify any arguably meritorious grounds for appeal that would not be precluded by the terms of his appeal waiver
Methamphetamine sentence reversed
US v. Mills, No. 06-1952, 06-2154
A sentence for conspiracy to distribute methamphetamine is reversed and remanded where; 1) a departure granted by the district court violated 18 U.S.C. section 3742(g) as criminal history overrepresentation did not appear as a grounds for departure in the district court's first written statement of reasons; and 2) the district court did not engage in the required section 3553(a) analysis.
A sentence for conspiracy to distribute methamphetamine is reversed and remanded where; 1) a departure granted by the district court violated 18 U.S.C. section 3742(g) as criminal history overrepresentation did not appear as a grounds for departure in the district court's first written statement of reasons; and 2) the district court did not engage in the required section 3553(a) analysis.
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