Thursday, November 01, 2007

undischarged term of state imprisonment is reversible error

US v. Gibbs, No. 06-1916
Treating U.S.S.G. section 5G1.3(c) as leaving the district court without discretion to impose a federal sentence concurrent or partially concurrent with an undischarged term of state imprisonment is reversible error requiring a remand for resentenci

government had not shown that the officers had a reasonable suspicion that the passenger was armed

US v. Wilson, No. 06-6339
In a case involving the constitutionality of a pat-down search of a car passenger that resulted in the discovery of over one pound of powder cocaine, grant of a motion to suppress evidence in the prosecution for drug-related offenses is affirmed where the district court did not err in finding that the government had not shown that the officers had a reasonable suspicion that the passenger was armed and dangerous before conducting the pat-down search

small religious sect that opposes payment of taxes

US v. McKee, No. 05-3297, 05-3469, 05-3357
In a case involving a small religious sect that opposes payment of taxes based upon members' religious opposition to war and the taxes that fund it, defendants' convictions for conspiracy to obstruct a government function, failure to pay federal employment taxes, and failure to file individual income tax returns for certain years are vacated in part, and reversed in part, where: 1) the district court's jury instruction constructively amended the indictment, for purposes of the convictions on tax evasion charges; and 2) the evidence was insufficient to establish guilt beyond a reasonable doubt on two counts.

Armed Career Criminal Act vacated

US v. Hollis, No. 06-50784
A sentence under the Armed Career Criminal Act (ACCA) and associated provisions of the U.S.S.G. for being a felon and a fugitive in possession of a firearm is vacated as there was insufficient evidence in the record to show that defendant was represented by counsel or validly waived his right to counsel in proceedings leading to a prior conviction on which the sentence under the ACCA was predicated. Also, the conviction on the felon in possession count is vacated as multiplicitous

insufficient evidence

US v. Moore, No. 07-10237
Convictions of multiple counts of theft of government property are reversed as there was insufficient evidence for a reasonable jury to have found beyond a reasonable doubt that defendants, husband and wife, knew that they were not entitled to continue receiving VA benefits that husband's mother had been receiving before she died.

no evidence before the district court established that a guilty plea resulting in a predicate state conviction

US v. Rosa, No. 05-3621
A sentence to the statutory mandatory minimum, based on the court's finding that defendant is a violent felon under the Armed Career Criminal Act, is vacated under Shepard v. US, 544 U.S. 13 (2005), where no evidence before the district court established that a guilty plea resulting in a predicate state conviction necessarily admitted and supported a conviction for a crime or act of juvenile delinquency involving the use or carrying of a firearm that would be punishable by imprisonment for a term exceeding one year

Sentence for drug conspiracy is vacated

US v. Milo, No. 06-2185
Sentence for drug conspiracy is vacated and remanded where the sentence lacked the plausible explanation needed for such a significant sentence reduction, despite the court's notice of the defendant's contrition and cooperation