tag:blogger.com,1999:blog-325835682024-02-08T03:34:47.646-08:00WINNING FEDERAL CRIMINAL CASESParalegal Mark Anthony Given compiles Winning Federal Criminal Cases published in the Federal Reporters on subjects from Habeas Corpus, Social Security Disability and the Bureau of Prisons as is available for legal writing and research. markamania2002@yahoo.comUnknownnoreply@blogger.comBlogger135125tag:blogger.com,1999:blog-32583568.post-89590779342968226042008-08-20T08:07:00.000-07:002008-08-20T08:08:28.820-07:00Speedy trial violationCRIMINAL LAW & PROCEDURE<br />US v. Henry , No. 07-4578, 07-4587<br />Denial of defendants' motions to dismiss their indictment related to marijuana growing is reversed, and their convictions and sentences vacated and remanded where the continuance of trial for 103 days could not be excluded from defendant's speedy trial clock, which caused the total delay in defendant's case to exceed the seventy days allowed by the Speedy Trial Act.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-49569921613100060212008-05-14T08:52:00.000-07:002008-05-14T08:53:56.693-07:00conviction for for transporting illegal aliens is reversedU.S. v. Valadez-Valadez, No. 06-2341<br />Driving at a speed moderately below the speed limit does not, without more, constitute obstructing or impeding traffic. A conviction for for transporting illegal aliens is reversed and remanded pursuant to a claim of erroneous denial of a motion to suppress where an officer lacked reasonable suspicion to stop defendant for violating a state law against impeding traffic, based on his driving about 10 m.p.h. below the speed limit on a highway. Read more...Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-39715899244963468202008-05-14T08:50:00.000-07:002008-05-14T08:52:01.663-07:00Sex Offender Registration and Notification conviction vacatedCRIMINAL LAW & PROCEDURE, SENTENCING<br />U.S. v. Sanchez, No. 07-30578<br />Where, at the time of sentencing there is no guideline in effect for the particular offense of conviction, and the Sentencing Commission has promulgated a proposed guideline applicable to the offense of conviction, the district court's failure to consider the proposed guideline when sentencing the defendant may result in reversible plain error. The imposition of a 60-month sentence for defendant's failure to register pursuant to the Sex Offender Registration and Notification Act (SORNA) is vacated and remanded where: 1) the court's failure to consider proposed guidelines that existed at the time before sentencing constituted plain error; and 2) defendant's right were affected since he could show that but for the misapplication of the Guidelines he could have received a lesser sentence. Read more...Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-85120683218158520242008-05-14T08:45:00.000-07:002008-05-14T08:48:29.000-07:00the district court needed to review the state trial court recordCRIMINAL LAW & PROCEDURE, EVIDENCE, HABEAS CORPUS<br />Ferguson v. Culliver, No. 07-13030<br />Denial of petitioner's 28 U.S.C. section 2254 habeas corpus petition is vacated and remanded where: 1) in the habeas context, the district court needed to review the state trial court record, rather than rely solely on the state appellate court's findings as to what the trial record contained; and 2) the absence of the trial record precluded the district court from conducting a meaningful review of the state court decision, even under the deferential standard imposed by the AEDPA. Read more...Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-1184751042811268742007-11-01T08:49:00.000-07:002007-11-01T08:51:18.903-07:00undischarged term of state imprisonment is reversible errorUS v. Gibbs, No. 06-1916<br />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 resentenciUnknownnoreply@blogger.com1tag:blogger.com,1999:blog-32583568.post-17061552874824349232007-11-01T08:48:00.000-07:002007-11-01T08:49:26.614-07:00government had not shown that the officers had a reasonable suspicion that the passenger was armedUS v. Wilson, No. 06-6339<br />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 searchUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-7907438515032684182007-11-01T08:46:00.000-07:002007-11-01T08:47:32.067-07:00small religious sect that opposes payment of taxesUS v. McKee, No. 05-3297, 05-3469, 05-3357<br />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.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-33223030828294561862007-11-01T08:44:00.000-07:002007-11-01T08:45:44.475-07:00Armed Career Criminal Act vacatedUS v. Hollis, No. 06-50784<br />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 multiplicitousUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-58293399937625820632007-11-01T08:40:00.001-07:002007-11-01T08:40:59.065-07:00insufficient evidenceUS v. Moore, No. 07-10237<br />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.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-45063471527326524842007-11-01T08:13:00.000-07:002007-11-01T08:15:19.331-07:00no evidence before the district court established that a guilty plea resulting in a predicate state convictionUS v. Rosa, No. 05-3621<br />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 yearUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-992907492885764952007-11-01T08:11:00.000-07:002007-11-01T08:13:20.048-07:00Sentence for drug conspiracy is vacatedUS v. Milo, No. 06-2185<br />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 cooperationUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-29682819748387531402007-10-10T12:20:00.000-07:002007-10-10T12:21:47.840-07:0021 U.S.C. section 860(a)US v. Powell, No. 05-3202<br />Conviction for violating 21 U.S.C. section 860(a), which enhances a sentence for drug offenses occurring within 1000 feet of a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, is vacated where the government concedes did not present evidence to show that the school near the intersection where the police arrested defendant was of a type covered by section 860(a)Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-38842649881562267892007-10-01T13:52:00.000-07:002007-10-01T13:53:52.613-07:00police failed to scrupulously respect her demand to remain silent by putting her in an interrogation roomUS v. Lafferty, No. 06-1901<br />In a prosecution for offenses arising from a burglary, denial of defendant's motion to suppress statements she and an alleged confederate made during a custodial interrogation is reversed as: 1) police failed to scrupulously respect her demand to remain silent by putting her in an interrogation room with her alleged confederate after she had invoked her right to remain silent and after he promised to give a confession; 2) no valid and meaningful waiver of her rights occurred; and 3) a ruling that the confederate's statements were admissible against her as adoptive admissions was improper as a court errs in permitting the government to use a criminal defendant's silence in the face of police interrogationUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-2635296512262301242007-08-22T14:08:00.000-07:002007-08-22T14:10:03.162-07:00court erred in imposing a condition of supervised release tolling the term of release while defendant is outside the United States<strong><em>US v. Catalan,</em></strong> No. 06-5259<br />A conviction for conspiracy to possess with intent to distribute cocaine and for the underlying possession is affirmed over a claim of insufficient evidence, but the sentence is vacated where the district court erred in imposing a condition of supervised release tolling the term of release while defendant is outside the United States.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-47075721702809900652007-07-24T13:48:00.000-07:002007-07-24T13:49:16.310-07:00district court applied a rebuttable presumption that defendant<strong><em>US v. Wilms,</em></strong> No. 06-1896<br />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.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-34394026517988344712007-07-17T14:17:00.000-07:002007-07-17T14:18:23.965-07:00ACCA Error<strong><em>US v. Collier,</em></strong> No. 06-1395<br />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.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-75056480218894919102007-07-17T14:07:00.000-07:002007-07-17T14:08:06.462-07:00Ineffective Assistance of counsel defective indictment<strong><em>US v. Weathers,</em></strong> No. 06-3022<br />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...Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-68429064229263586982007-07-13T09:02:00.000-07:002007-07-13T09:03:39.844-07:00trial court erred in applying an enhancement under the Armed Career Criminals Act (ACCA)<strong><em>US v. Collier,</em></strong> No. 06-1395<br />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.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-13851652374071685492007-07-13T09:00:00.000-07:002007-07-13T09:01:42.661-07:00government breached its duty under defendant's plea agreement<strong><em>US v. VanDam,</em></strong> No. 06-4104<br />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 moreUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-19306158920267466332007-07-13T08:56:00.000-07:002007-07-13T08:57:23.698-07:00possession of stolen mail is vacated and remanded<strong><em>US v. Ikechukwu,</em></strong> No. 06-11239<br />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 guidelinesUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-50123045167860175262007-07-10T14:32:00.000-07:002007-07-10T14:34:44.231-07:00<strong><em>US V. FORRESTER</em></strong><br />(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 AmendmentUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-75587826310950164292007-07-06T10:17:00.000-07:002007-07-06T10:18:33.916-07:00Ex Post facto sentencing Violation<strong><em>US v. Kilkenny,</em></strong> No. 05-6847<br />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 ConstitutionUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-24237233193037590322007-07-05T10:51:00.001-07:002007-07-05T10:51:50.444-07:00Substantial Assistance?<strong><em>US v. Villareal,</em></strong> No. 05-6838<br />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 assistanceUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-71121610536574715072007-07-03T11:48:00.000-07:002007-07-03T11:50:07.445-07:005K Motion Compelled<strong><em>US v. Villareal,</em></strong> No. 05-6838<br />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 assistanceUnknownnoreply@blogger.com0tag:blogger.com,1999:blog-32583568.post-37771816464235553982007-07-03T11:33:00.000-07:002007-07-03T11:34:25.460-07:00Appeal Waiver dosent matterU<strong><em>S v. Tapp,</em></strong> No. 05-30222<br />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 waiverUnknownnoreply@blogger.com0