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
Thursday, November 01, 2007
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
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.
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
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.
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
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
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
Wednesday, October 10, 2007
21 U.S.C. section 860(a)
US v. Powell, No. 05-3202
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)
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)
Monday, October 01, 2007
police failed to scrupulously respect her demand to remain silent by putting her in an interrogation room
US v. Lafferty, No. 06-1901
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 interrogation
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 interrogation
Wednesday, August 22, 2007
court erred in imposing a condition of supervised release tolling the term of release while defendant is outside the United States
US v. Catalan, No. 06-5259
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.
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.
Tuesday, July 24, 2007
district court applied a rebuttable presumption that defendant
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.
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 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.
Friday, June 29, 2007
Methamphetamine winner? Very Rare!
US v. Jensen, No. 06-2284, 06-2497
A sentence for and conspiring and possessing with intent to distribute methamphetamine is vacated where: 1) although the district court's reduction of defendant's sentence by the equivalent of six guideline ranges was not an abuse of discretion; nevertheless 2) it erred in further reducing defendant's sentence from 216 to 180 months, as when the government files a motion under 18 U.S.C. section 3553(e) for a reduction below the statutory minimum, the court cannot reduce the sentence further based on other factors unrelated to the assistance.
A sentence for and conspiring and possessing with intent to distribute methamphetamine is vacated where: 1) although the district court's reduction of defendant's sentence by the equivalent of six guideline ranges was not an abuse of discretion; nevertheless 2) it erred in further reducing defendant's sentence from 216 to 180 months, as when the government files a motion under 18 U.S.C. section 3553(e) for a reduction below the statutory minimum, the court cannot reduce the sentence further based on other factors unrelated to the assistance.
Attorney failed to file appeal as instructed
CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, SENTENCING
US v. Poindexter, No. 05-7635, 05-7636
Denial of motion to vacate sentence under 28 U.S.C. section 2255 is vacated and remanded as an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal, even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement
US v. Poindexter, No. 05-7635, 05-7636
Denial of motion to vacate sentence under 28 U.S.C. section 2255 is vacated and remanded as an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal, even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement
Thursday, June 28, 2007
US v. Spear, No. 06-1296
In a criminal matter involving a defendant who worked as a federal immigration employee responsible for the intake of certain immigration applications, and who kept the accompanying fees but threw the applications in the trash, a sentence for embezzlement of government funds in excess of $1,000 is reversed and remanded where defendant's position lacked the authority and discretion required for the abuse of public trust sentence enhancement
In a criminal matter involving a defendant who worked as a federal immigration employee responsible for the intake of certain immigration applications, and who kept the accompanying fees but threw the applications in the trash, a sentence for embezzlement of government funds in excess of $1,000 is reversed and remanded where defendant's position lacked the authority and discretion required for the abuse of public trust sentence enhancement
Tuesday, June 26, 2007
California burglary not "crime of violence"
US v. Ortega-Gonzaga, No. 06-40493
A sentence for reentering the U.S. following deportation is vacated and remanded pursuant to a claim that the district court erred in concluding that defendant's previous California conviction for burglary, Cal. Penal Code section 459, was a "crime of violence" under the sentencing guidelines.
Monday, June 25, 2007
Defendant-Sheriff Conviction reversed on jury instruction error
US v. Holly, No. 05-7130
Defendant-sheriff's convictions for offenses, including counts of felony deprivation of rights under color of law involving aggravated sexual abuse, are reversed in part as to four felony deprivation of rights counts where the district court erroneously instructed the jury on the definition of aggravated sexual abuse as: 1) the district court used language suggesting the victim need only be placed in fear of "some bodily harm", impermissibly reducing the degree of fear necessary to sustain a conviction; and 2) the error was not harmless as to four counts.
Defendant-sheriff's convictions for offenses, including counts of felony deprivation of rights under color of law involving aggravated sexual abuse, are reversed in part as to four felony deprivation of rights counts where the district court erroneously instructed the jury on the definition of aggravated sexual abuse as: 1) the district court used language suggesting the victim need only be placed in fear of "some bodily harm", impermissibly reducing the degree of fear necessary to sustain a conviction; and 2) the error was not harmless as to four counts.
Procedural Bar?
Kuenzel v. Allen, No. 06-11986
Denial of habeas petition is vacated and remanded where the district court has not addressed the issue of whether petitioner has satisfied the exceptions to the procedural bar announced in Siebert v. Allen, 455 F.3d 1269 (11th Cir. 2006), and where the district court erred in holding that the intervening authority of Pace v. DiGuigliemo, 125 S. Ct. 1807 (2005), effectively overruled the decision in Siebert
Denial of habeas petition is vacated and remanded where the district court has not addressed the issue of whether petitioner has satisfied the exceptions to the procedural bar announced in Siebert v. Allen, 455 F.3d 1269 (11th Cir. 2006), and where the district court erred in holding that the intervening authority of Pace v. DiGuigliemo, 125 S. Ct. 1807 (2005), effectively overruled the decision in Siebert
District Court failed to explain sentence
US v. Walters, No. 05-51634
A discharged Air Force airman's 982 month sentence for the use of a destructive device in a crime of violence and related offenses is vacated and remanded where the district court did not give adequate explanation justifying a non-Guideline 60 year sentence
A discharged Air Force airman's 982 month sentence for the use of a destructive device in a crime of violence and related offenses is vacated and remanded where the district court did not give adequate explanation justifying a non-Guideline 60 year sentence
Thursday, June 21, 2007
preliminary injunction, prohibiting the government from seizing "the contents of any personal e-mail account maintained by an Internet Service Provide
Warshak v. US, No. 06-4092
A preliminary injunction, prohibiting the government from seizing "the contents of any personal e-mail account maintained by an Internet Service Provider in the name of any resident of the Southern District of Ohio without providing the relevant account holder or subscriber prior notice and an opportunity to be heard on any complaint, motion, or other pleading seeking issuance of such an order" is affirmed, with slight modification, where the district court correctly determined that e-mail users maintain a reasonable expectation of privacy in the content of their e-mails, and the injunctive relief it crafted was largely appropriate.
A preliminary injunction, prohibiting the government from seizing "the contents of any personal e-mail account maintained by an Internet Service Provider in the name of any resident of the Southern District of Ohio without providing the relevant account holder or subscriber prior notice and an opportunity to be heard on any complaint, motion, or other pleading seeking issuance of such an order" is affirmed, with slight modification, where the district court correctly determined that e-mail users maintain a reasonable expectation of privacy in the content of their e-mails, and the injunctive relief it crafted was largely appropriate.
unlawful possession of a firearm by a convicted felon are reversed
US v. Sumlin, No. 05-51720
A conviction and sentence imposed on defendant for unlawful possession of a firearm by a convicted felon are reversed and remanded where the district court erred in admitting the testimony of the arresting officer regarding the unproven extrinsic bad act by defendant of transporting drugs, and the error was not harmless.
A conviction and sentence imposed on defendant for unlawful possession of a firearm by a convicted felon are reversed and remanded where the district court erred in admitting the testimony of the arresting officer regarding the unproven extrinsic bad act by defendant of transporting drugs, and the error was not harmless.
Distribution of cocaine is vacated
US v. Garner, No. 05-4215, 05-4337
A sentence for conspiracy to distribute cocaine is vacated and remanded where the district court erred in sentencing defendant to a term of 96 months of imprisonment as the jury's findings, together with a sentencing enhancement for a prior felony drug conviction filed by the government prior to defendant's trial, required imposition of at least a mandatory minimum sentence of 120 months of imprisonment
A sentence for conspiracy to distribute cocaine is vacated and remanded where the district court erred in sentencing defendant to a term of 96 months of imprisonment as the jury's findings, together with a sentencing enhancement for a prior felony drug conviction filed by the government prior to defendant's trial, required imposition of at least a mandatory minimum sentence of 120 months of imprisonment
unlawful possession of a firearm by a felon is vacated
US v. Littlejohn, No. 05-3081
Conviction for unlawful possession of a firearm by a felon is vacated where the district court’s use of compound voir dire questions deprived defendant of his Sixth Amendment right to an impartial jury.
Conviction for unlawful possession of a firearm by a felon is vacated where the district court’s use of compound voir dire questions deprived defendant of his Sixth Amendment right to an impartial jury.
Monday, June 18, 2007
wilful failure to pay state court-ordered child support payments is reversed and remanded where the district court erred
US v. Brazell, No. 06-30102
A failure to pay child support constitutes a continuing offense. A sentence for wilful failure to pay state court-ordered child support payments is reversed and remanded where the district court erred in its application of a two-point enhancement at sentencing because there was insufficient evidence to conclude that defendant had violated a statute while under a criminal sentence.
A failure to pay child support constitutes a continuing offense. A sentence for wilful failure to pay state court-ordered child support payments is reversed and remanded where the district court erred in its application of a two-point enhancement at sentencing because there was insufficient evidence to conclude that defendant had violated a statute while under a criminal sentence.
Speedy trial Violation Pro-se Disbarred Attorney
US v. Stephens, No. 04-30185, 05-30668
Defendant's convictions and sentence for various charges arising out of a string of armed bank robberies in Louisiana are reversed and vacated, respectively, where neither a codefendant's guilty plea nor defendant's own severance motion rendered a particular 7 week-period excludable from the speedy trial clock, and thus, the Speedy Trial Act was violated
Defendant's convictions and sentence for various charges arising out of a string of armed bank robberies in Louisiana are reversed and vacated, respectively, where neither a codefendant's guilty plea nor defendant's own severance motion rendered a particular 7 week-period excludable from the speedy trial clock, and thus, the Speedy Trial Act was violated
Pro-se habeas winner
Ogle v. Johnson, No. 06-11074
Dismissal of federal habeas petition is reversed where a pro se petitioner fairly presents his claim to a state habeas court when he makes a bare allegation of ineffective assistance of appellate counsel in his state habeas petition and then describes in briefs and testimony in later proceedings several instances of alleged ineffective assistance
Dismissal of federal habeas petition is reversed where a pro se petitioner fairly presents his claim to a state habeas court when he makes a bare allegation of ineffective assistance of appellate counsel in his state habeas petition and then describes in briefs and testimony in later proceedings several instances of alleged ineffective assistance
Tuesday, June 12, 2007
district court erred in failing to state its specific findings
US v. Bearam, No. 05-2823
Conviction and sentence for conspiring to distribute cocaine base, operating a business that distributed controlled substances, and distributing and possessing with intent to distribute controlled substances are affirmed except as to sentence which is remanded for resentencing where the district court erred in failing to state its specific findings regarding the amount of narcotics for which defendant is responsible and defendant's role in the offense
Conviction and sentence for conspiring to distribute cocaine base, operating a business that distributed controlled substances, and distributing and possessing with intent to distribute controlled substances are affirmed except as to sentence which is remanded for resentencing where the district court erred in failing to state its specific findings regarding the amount of narcotics for which defendant is responsible and defendant's role in the offense
CRIMINAL LAW & PROCEDURE, EVIDENCE, HABEAS CORPUS
Fry v. Pliler, No. 06-5247
In 28 U.S.C. section 2254 proceedings, a federal court must assess the prejudicial impact of constitutional error in a state-court criminal trial under Brecht's "substantial and injurious effect" standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U.S. 18, 24
In 28 U.S.C. section 2254 proceedings, a federal court must assess the prejudicial impact of constitutional error in a state-court criminal trial under Brecht's "substantial and injurious effect" standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U.S. 18, 24
Wednesday, June 06, 2007
Special conditions, which a district court imposed on defendant's lifetime term of supervised release after he pled guilty to possessing child pornogr
US v. Voelker, No. 05-2858
Special conditions, which a district court imposed on defendant's lifetime term of supervised release after he pled guilty to possessing child pornography, are vacated and remanded where: 1) an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involved a greater deprivation of liberty than was reasonably necessary, and was not reasonably related to the applicable statutory factors; 2) a lifetime ban on possessing "sexually explicit materials" was overly broad and unsupported by the district court's analysis; and 3) although a restriction on defendant's associating with children, including his own, may have been supported, the district court improperly delegated absolute authority to a probation office over such restrictions.
Special conditions, which a district court imposed on defendant's lifetime term of supervised release after he pled guilty to possessing child pornography, are vacated and remanded where: 1) an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involved a greater deprivation of liberty than was reasonably necessary, and was not reasonably related to the applicable statutory factors; 2) a lifetime ban on possessing "sexually explicit materials" was overly broad and unsupported by the district court's analysis; and 3) although a restriction on defendant's associating with children, including his own, may have been supported, the district court improperly delegated absolute authority to a probation office over such restrictions.
court impermissibly and prejudicially participated in plea negotiations with defendant
US v. Baker, No. 06-3115
Sentence based on guilty plea to fraud and related offenses is vacated where the court impermissibly and prejudicially participated in plea negotiations with defendant.
Sentence based on guilty plea to fraud and related offenses is vacated where the court impermissibly and prejudicially participated in plea negotiations with defendant.
conspiring to deal in and transport firearms is vacated
US v. Cavera, No. 05-4591
Sentence based on guilty plea to conspiring to deal in and transport firearms is vacated where the district court's reliance on community-specific characteristics, such as population density, to impose a non-Guidelines sentence constituted legal error and rendered defendant's sentence unreasonable
Sentence based on guilty plea to conspiring to deal in and transport firearms is vacated where the district court's reliance on community-specific characteristics, such as population density, to impose a non-Guidelines sentence constituted legal error and rendered defendant's sentence unreasonable
Monday, June 04, 2007
indictment did not allege a scheme to defraud anyone of money or property
US v. Ratcliff, No. 05-30666
In a prosecution for mail fraud based on alleged activities involving election fraud in Louisiana, dismissal of mail fraud counts based on a conclusion that the indictment did not allege a scheme to defraud anyone of money or property, thereby failing to state the offense of mail fraud under 18 U.S.C. section 1341, is affirmed over the government's claim that a scheme to obtain the salary and employment benefits of elected office through election fraud satisfies the requirements of the mail fraud statute.
In a prosecution for mail fraud based on alleged activities involving election fraud in Louisiana, dismissal of mail fraud counts based on a conclusion that the indictment did not allege a scheme to defraud anyone of money or property, thereby failing to state the offense of mail fraud under 18 U.S.C. section 1341, is affirmed over the government's claim that a scheme to obtain the salary and employment benefits of elected office through election fraud satisfies the requirements of the mail fraud statute.
Friday, June 01, 2007
one count of bank fraud is reversed
U.S. V. RIGAS
(U.S. 2nd Circuit, May 24, 2007) - In the high-profile case charging former owners of Adelphia Communications, Timothy and John Rigas, with securities fraud conspiracy, one count of bank fraud is reversed. Their convictions and sentences, however, are affirmed. These include convictions for: 1) conspiracies to commit securities fraud, to make and cause to be made false statements in filings with the SEC, and to commit bank fraud; 2) securities fraud; and 3) bank fraud.
(U.S. 2nd Circuit, May 24, 2007) - In the high-profile case charging former owners of Adelphia Communications, Timothy and John Rigas, with securities fraud conspiracy, one count of bank fraud is reversed. Their convictions and sentences, however, are affirmed. These include convictions for: 1) conspiracies to commit securities fraud, to make and cause to be made false statements in filings with the SEC, and to commit bank fraud; 2) securities fraud; and 3) bank fraud.
Tuesday, May 29, 2007
judge created an appearance of partiality and recusal was required
US v. Amico, No. 03-1737
Convictions and sentences on charges arising from a mortgage fraud scheme are vacated as the district judge's handling of, and reaction to, his prior dealings with the government's main cooperating witness concerning a mortgage application for the judge created an appearance of partiality and recusal was required.
Convictions and sentences on charges arising from a mortgage fraud scheme are vacated as the district judge's handling of, and reaction to, his prior dealings with the government's main cooperating witness concerning a mortgage application for the judge created an appearance of partiality and recusal was required.
Tuesday, May 22, 2007
district court failed to give an adequate explanation of its reasons
US v. Sindima, No. 06-2245
Conviction and sentence to probation based on guilty plea to federal mail fraud charges, with probation later being violated by new crimes resulting in a prison sentence 26 months above the high end of the advisory Guidelines range, are remanded where the district court failed to give an adequate explanation of its reasons for the length of the sentence.
Conviction and sentence to probation based on guilty plea to federal mail fraud charges, with probation later being violated by new crimes resulting in a prison sentence 26 months above the high end of the advisory Guidelines range, are remanded where the district court failed to give an adequate explanation of its reasons for the length of the sentence.
Thursday, May 10, 2007
district court misinterpreted U.S.S.G. section 1B1.3 and misapplied the specific offense characteristic under section 2D1.1(b)(3)
US v. Dugger, No. 06-4552
Conviction and sentence for distribution of cocaine base is vacated where the district court misinterpreted U.S.S.G. section 1B1.3 and misapplied the specific offense characteristic under section 2D1.1(b)(3)
Conviction and sentence for distribution of cocaine base is vacated where the district court misinterpreted U.S.S.G. section 1B1.3 and misapplied the specific offense characteristic under section 2D1.1(b)(3)
Tuesday, May 08, 2007
firearm was tainted by legal error that is impermissible in Fourth Amendment analysis
US v. Wright, No. 06-1351
Conviction for possession of a firearm by a felon is vacated and remanded where the court's examination of the officers' reasonable suspicion for the search that produced the firearm was tainted by legal error that is impermissible in Fourth Amendment analysis.
Conviction for possession of a firearm by a felon is vacated and remanded where the court's examination of the officers' reasonable suspicion for the search that produced the firearm was tainted by legal error that is impermissible in Fourth Amendment analysis.
Thursday, May 03, 2007
CRIMINAL LAW & PROCEDURE, EDUCATION LAW, EVIDENCE, INDIAN LAW
US v. Velarde, No. 06-2126
In proceedings following defendant's conviction for sexually abusing a minor within Indian country, denial of his motion for a new trial under Rule 33(b) of the Federal Rules of Criminal Procedure based on a Brady claim is reversed where the district court erred in holding that suppressed evidence was immaterial without first either resolving a disputed question regarding whether the government suppressed information regarding the victim's supposed false accusations at school or allowing discovery to determine the nature and veracity of her supposed accusations against her teacher and vice principal.
Monday, April 30, 2007
An order requiring defendant to pay restitution for credit card fraud is vacated
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.
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.
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.
Wednesday, March 28, 2007
prosecution's evidence was insufficient to establish the necessary mens era requirement.
US v. Nieves-Castano, No. 06-1517 (1st Cir. March 27, 2007)
Conviction for possession of a machine gun is reversed and a verdict for defendant ordered where the prosecution's evidence was insufficient to establish the necessary mens era requirement. Conviction for possession of a firearm within a school zone is affirmed over defendant's argument that the statute is unconstitutionally void for vagueness under the Fifth Amendment's Due Process Clause because it fails to specify how to measure the 1000 foot distance from a school that marks the boundary of a school zone. The sentence is remanded for reconsideration in light of the reversal of the first charge.
http://laws.lp.findlaw.com/1st/061517.html
Conviction for possession of a machine gun is reversed and a verdict for defendant ordered where the prosecution's evidence was insufficient to establish the necessary mens era requirement. Conviction for possession of a firearm within a school zone is affirmed over defendant's argument that the statute is unconstitutionally void for vagueness under the Fifth Amendment's Due Process Clause because it fails to specify how to measure the 1000 foot distance from a school that marks the boundary of a school zone. The sentence is remanded for reconsideration in light of the reversal of the first charge.
http://laws.lp.findlaw.com/1st/061517.html
Sunday, March 25, 2007
government's confession of error.
US v. Latu (03/19/07 - No. 05-10815)
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
Saturday, March 24, 2007
Montana bound
Hell, I was waiting to hear from you. Everything same here....told my boss and landlord I was leaving next weekend so its set in stone short of severe weather...Gonna take the local bus as far west up the beach as it goes at Long Beach Miss, where I will continue the last ten miles of a 26 mile hike up the beach from Ocean Springs to Bay St Louis white sandy made made beach with what used to be antebellum homes where I now camp on their fron yard at will... the sun is brutal in the day time and you cant sleep right on the beach ceacuse of the sand mites but since the hurricane the water is pristine clean the only down side is that the water is so shallow you have to walk ut a half mile to get waist deep.. AAs pretty in the daylight as the night....espeially when the weather is nice which is most of the time...very little open so I have to pack my own water...
Kurt Vandervalk
Kurt Vandervalk
what happened to you, havent heard from you in a while. you must still be enjoying ther sun, i dont blame you. later kuurtOn 3/17/07, Paralegal Services <markamania2002@yahoo.com> wrote:small dark and quite to start preferably with a tv in the room ....
Id take either
big fan of natural light and quite
thanks for helping me
many people make the amateur mistake of attacking the people (the courts, the people detaining them, the police for arresting them, etc.), and detracts your focus from the merits of the case, I'll show you how to handle them civil servants and having them dancing like puppets with the one thing they understand.....paper work!!
In the mean time, plead for continuance, you need more time, you don't have the complete record, whatever, just stall them till I see what you got
Have you got a case # or caption? mark
Kurt Vandervalk <mtcabins@gmail.com> wrote:Markheres is a copy of the last letter i got from comp. How people can lie about things like that and keep there job is beond me? there so full of shit, i cant see why people like that even get hired. i still have some records to try to track down. the fund got my records from my by pass surgrey, witch they said in mediation that they would send me copies of and they still havent, makes me wonder what they dont want me to see. i am going to set up a computer for you to use, would you rather have it in a small room or living room. difference being veiw of town, bright and sunny or small dark room 1 window quite? your call. Kurt
Mark Anthony GivenParalegal Serviceshttp://winning-federal-criminal-cases.blogspot.com
http://dissentingopinions.blogspot.com
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http://ineffectiveassistanceofcounsel.blogspot.comMontana Winning Cases http://montana-winning-criminal-cases.blogspot.comWinning SSI Disability Cases - http://winningsssdisabilitycases.blogspot.comMark Given Photographs- http://markgivenphotographs.blogspot.comHelena, Montana
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testimony of an informant represented the only evidence against petitioner
Barajas v. Wise, No. 06-15494 (9th Cir. March 23, 2007)
Clearly established federal law requires the prosecution to provide reasons specific to the case in litigation if it declines to disclose the names and addresses of key witnesses. Grant of habeas relief in a drug-related case is affirmed where the testimony of an informant represented the only evidence against petitioner, and the state provided no reasons specific to the case for why it should not disclose the requested information.
http://caselaw.lp.findlaw.com/data2/circs/9th/0615494p.pdf
Clearly established federal law requires the prosecution to provide reasons specific to the case in litigation if it declines to disclose the names and addresses of key witnesses. Grant of habeas relief in a drug-related case is affirmed where the testimony of an informant represented the only evidence against petitioner, and the state provided no reasons specific to the case for why it should not disclose the requested information.
http://caselaw.lp.findlaw.com/data2/circs/9th/0615494p.pdf
Courts of appeal have jurisdiction under 18 U.S.C. section 3742 to review a sentence challenged as "unreasonable," even if it was imposed within a cor
US v. Trejo-Martinez, No. 05-6078 (6th Cir. March 23, 2007)
Courts of appeal have jurisdiction under 18 U.S.C. section 3742 to review a sentence challenged as "unreasonable," even if it was imposed within a correctly calculated guidelines range.
http://caselaw.lp.findlaw.com/data2/circs/6th/056078p.pdf
Courts of appeal have jurisdiction under 18 U.S.C. section 3742 to review a sentence challenged as "unreasonable," even if it was imposed within a correctly calculated guidelines range.
http://caselaw.lp.findlaw.com/data2/circs/6th/056078p.pdf
Friday, March 23, 2007
CRIMINAL LAW & PROCEDURE, ELECTIONS
US v. Tobin, No. 06-1883 (1st Cir. March 21, 2007)
In a criminal case against the former New England Regional Director of the Republican National Committee arising out of an operation on election day 2002 to flood telephone numbers belonging to the Democratic Party and its supporters with hang-up calls, conviction and sentence on charges of telephone harassment are reversed and remanded where a jury instruction inappropriately broadened the scope of the statute with its definition of "intent to harass." The case is remanded to the district court for development of the intent issue, since a reasonable jury could have convicted defendant on the evidence unless it found that the statute required an explicit "purpose" of harassment, rather than a mere knowledge that harassment was likely to occur.
http://laws.lp.findlaw.com/1st/061883.html
In a criminal case against the former New England Regional Director of the Republican National Committee arising out of an operation on election day 2002 to flood telephone numbers belonging to the Democratic Party and its supporters with hang-up calls, conviction and sentence on charges of telephone harassment are reversed and remanded where a jury instruction inappropriately broadened the scope of the statute with its definition of "intent to harass." The case is remanded to the district court for development of the intent issue, since a reasonable jury could have convicted defendant on the evidence unless it found that the statute required an explicit "purpose" of harassment, rather than a mere knowledge that harassment was likely to occur.
http://laws.lp.findlaw.com/1st/061883.html
COPA Ruled Unconstitutional
| COPA Ruled Unconstitutional |
CRIMINAL LAW & PROCEDURE, PER CURIAM, SENTENCING
CRIMINAL LAW & PROCEDURE, PER CURIAM, SENTENCING
US v. Leatch, No. 06-10526 (5th Cir. March 22, 2007)
In devising a sentencing range for a crack-related offense, a sentencing court may not deviate from the 100:1 crack-powder ratio reflected in the sentencing guidelines based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair.
http://caselaw.lp.findlaw.com/data2/circs/5th/0610526cr0p.pdf
US v. Leatch, No. 06-10526 (5th Cir. March 22, 2007)
In devising a sentencing range for a crack-related offense, a sentencing court may not deviate from the 100:1 crack-powder ratio reflected in the sentencing guidelines based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair.
http://caselaw.lp.findlaw.com/data2/circs/5th/0610526cr0p.pdf
Tuesday, March 20, 2007
Government's Confession of Error
US v. Latu, No. 05-10815 (9th Cir. March 19, 2007)
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
Monday, March 19, 2007
Reversible errors
United States v. Cruz, 127 F.3d 791 (9th Cir. 1997) (A defendant could not join a conspiracy that was already completed).
United States v. Farrell, 126 F.3d 484 (3d Cir. 1997) (Urging a witness to "take the fifth" was not witness tampering).
United States v. Bowen, 127 F.3d 9 (1st Cir. 1997) (Amendment defining hashish oil was applied ex post facto).
United States v. Stein, 127 F.3d 777 (9th Cir. 1997) (Upward departure based on more than minimal planning and multiple victims was unwarranted).
United States v. Otis, 127 F.3d 829 (9th Cir. 1997) (1. Evidence did not support management of CCE; 2. Duress instruction was omitted).
United States v. Allen, 127 F.3d 260 (2d Cir. 1997) (Insufficient evidence of extortionate credit).
United States v. Corrigan, 128 F.3d 330 (6th Cir. 1997) (Neither, number of victims, number of schemes, nor amount of loss, supported upward departure).
United States v. Rogers, 126 F.3d 655 (5th Cir. 1997) (An attempted drug crime did not support career offender enhancement).
United States v. Emerson, 128 F.3d 557 (7th Cir. 1997) (Money laundering and mail fraud should have been grouped).
United States v. Cross, 128 F.3d 145 (3d Cir. 1997) (Fixing cases was not mail fraud just because court mailed disposition notices).
United States v. Graham, 128 F.3d 372 (6th Cir. 1997) (An eight-year delay between indictment and trial violated the sixth amendment).
United States v. Monus 128 F.3d 380 (6th Cir. 1997) (A court did not adequately explain loss findings).
United States v. Wolff, 127 F.3d 84 (D.C. Cir. 1997) (Government's failure to argue for acceptance of responsibility breached agreement and required entire sentence to be reconsidered).
United States v. Rounsavall, 128 F.3d 665 (8th Cir. 1997) (Defendant was entitled to an evidentiary hearing to determine if the government's failure to move for a reduced sentence was irrational, in bad faith, or unconstitutionally motivated).
United States v. Alvarez, 127 F.3d 372 (5th Cir. 1997) (A warrant affidavit contained a false statement made in reckless disregard for the truth).
United States v. Johnston, 127 F.3d 380 (5th Cir. 1997) (A prosecutor commented on the defendant's failure to testify and asked questions highlighting defendant's silence).
United States v. Foster, 128 F.3d 949 (6th Cir. 1997) (Exculpatory grand jury testimony should have been admitted at trial).
United States v. LaBarbara, 129 F.3d 81 (2d Cir. 1997) (Government failed to show use of mails in a fraud case).
United States v. Glass, 128 F.3d 1398 (10th Cir. 1997) (The introduction of a co-defendant's incriminating statement violated Bruton).
United States v. Schroeder, 129 F.3d 439 (8th Cir. 1997) (A warrant did not authorize a search of adjoining property).
United States v. Hudson, 129 F.3d 994 (8th Cir. 1997) (A firearm enhancement was not proven).
United States v. Senn, 129 F.3d 886 (7th Cir. 1997) (Lying about minor details to grand jury was not obstruction).
United States v. Clark, 128 F.3d 122 (2d Cir. 1997) (Downward departure for a lesser harm was available in a felon in possession case).
United States v. Soto-Silva, 129 F.3d 340 (5th Cir. 1997) (Deliberate ignorance instruction was not warranted for charge of maintaining premises for drug distribution).
United States v. Soliz, 129 F.3d 499 (9th Cir. 1997) (Questioning should have stopped when defendant invoked right to silence).
United States v. Cain, 128 F.3d 1249 (8th Cir. 1997) (Sales made before defendant was hired were not relevant conduct toward fraud).
United States v. Patterson, 128 F.3d 1259 (8th Cir. 1997) (Failure to provide allocution at supervised release revocation was plain error).
United States v. Hunt, 129 F.3d 739 (5th Cir. 1997) (There was insufficient evidence of an intent to distribute).
United States v. Castro, 129 F.3d 752 (5th Cir. 1997) (Inventory search could not be used as ruse to investigate).
United States v. Word, 129 F.3d 1209 (11th Cir. 1997) (1. Lay testimony of abuse to defendant was admissible; 2. Fraud, before defendant joined conspiracy, was not relevant conduct).
In Re Grand Jury Investigation, 130 F.3d 853 (9th Cir. 1997) ( Search warrant was over broad).
United States v. Iribe-Perez, 129 F.3d 1167 (10th Cir. 1997) (Jury was told that the defendant would plead guilty before start of trial).
United States v. Norman, 129 F.3d 1393 (10th Cir. 1997) (1. Felon whose civil rights had been restored was not illegally in possession of firearm; 2. Concealing drugs at scene of crime was not obstruction).
United States v. Mayer, 130 F.3d 338 (8th Cir. 1997) (Restitution should not have been higher than the loss stipulated in the plea agreement).
United States v. Christo, 129 F.3d 578 (11th Cir. 1997) (A check kiting scheme was not money laundering).
United States v. Gilchrist, 130 F.3d 1131 (3d Cir. 1997) (A plea agreement was breached by imposing a higher term of supervised release).
United States v. Kuku, 129 F.3d 1435 (11th Cir. 1997) (A defendant retains his privilege against self-incrimination, through sentencing).
United States v. Dearies, 129 F.3d 1293 (D.C. Cir. 1997) (The court should have given an advice of counsel instruction on an embezzlement count).
United States v. Doyle, 130 F.3d 523 (2d Cir. 1997) (Erroneous instructions stated that presumption of innocence and reasonable doubt were to protect only the innocent).
United States v. Turner, 130 F.3d 815 (8th Cir. 1997) (Prosecution of count, identical to one previously dismissed, was barred).
United States v. Perez, 129 F.3d 1340 (9th Cir. 1997) (1. A firearm found near defendant was not used or carried; 2. Jury should have been required to decide the type of firearm).
United States v. Barracked, 130 F.3d 1448 (11th Cir. 1997) (1. Abuse of trust did not apply to a false tax return charge; 2. Enhancement for sophisticated means could not be based on acquitted conduct).
United States v. Borne, 130 F.3d 1444 (11th Cir. 1997) (Applying both brandishing weapon and threat of death enhancements was double counting).
United States v. Carter, 130 F.3d 1432 (10th Cir. 1997) (A requested instruction on venue should have been given).
United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (Gun possession convictions for the same firearm were multiplicious).
United States v. Davenport, 131 F.3d 604 (7th Cir. 1997) (A violation of a state civil provision was not covered by Assimilative Crimes Act).
Friday, March 16, 2007
possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination
US v. Green, No. 05-3830 (2d Cir. March 13, 2007)
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination could be made as to whether defendant was convicted of a narcotics offense that involved an intent to distribute, which was required for the application of U.S.S.G. section 2K2.1(a)(4)(A).
http://caselaw.lp.findlaw.com/data2/circs/2nd/053830p.pdf
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination could be made as to whether defendant was convicted of a narcotics offense that involved an intent to distribute, which was required for the application of U.S.S.G. section 2K2.1(a)(4)(A).
http://caselaw.lp.findlaw.com/data2/circs/2nd/053830p.pdf
Thursday, March 15, 2007
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence
US v. Green, No. 05-3830 (2d Cir. March 13, 2007)
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination could be made as to whether defendant was convicted of a narcotics offense that involved an intent to distribute, which was required for the application of U.S.S.G. section 2K2.1(a)(4)(A).
http://caselaw.lp.findlaw.com/data2/circs/2nd/053830p.pdf
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination could be made as to whether defendant was convicted of a narcotics offense that involved an intent to distribute, which was required for the application of U.S.S.G. section 2K2.1(a)(4)(A).
http://caselaw.lp.findlaw.com/data2/circs/2nd/053830p.pdf
Conviction for a single delivery of crack cocaine is vacated
US v. Simpson, No. 05-2993 (7th Cir. March 13, 2007)
Conviction for a single delivery of crack cocaine is vacated and remanded for a new trial where portions of the prosecution's closing argument, and the evidence on which it was based, improperly appealed to defendant's propensity to deal in crack cocaine.
http://caselaw.lp.findlaw.com/data2/circs/7th/052993p.pdf
Conviction for a single delivery of crack cocaine is vacated and remanded for a new trial where portions of the prosecution's closing argument, and the evidence on which it was based, improperly appealed to defendant's propensity to deal in crack cocaine.
http://caselaw.lp.findlaw.com/data2/circs/7th/052993p.pdf
Tuesday, March 13, 2007
district court's failure to find a "clear connection" between the firearm
US v. Howse, No. 06-5017 (6th Cir. March 06, 2007)
A sentence for being a felon in possession of a firearm is vacated where the district court's failure to find a "clear connection" between the firearm used in the charged offense and a firearm used in the enhancement offense indicated that an enhancement pursuant to U.S.S.G. section 2K2.1(b)(5) may have been improperly imposed.
http://caselaw.lp.findlaw.com/data2/circs/6th/065017p.pdf
A sentence for being a felon in possession of a firearm is vacated where the district court's failure to find a "clear connection" between the firearm used in the charged offense and a firearm used in the enhancement offense indicated that an enhancement pursuant to U.S.S.G. section 2K2.1(b)(5) may have been improperly imposed.
http://caselaw.lp.findlaw.com/data2/circs/6th/065017p.pdf
Sentence for wire fraud and money laundering offenses is vacated
US v. Muhammad, No. 06-4516 (4th Cir. March 06, 2007)
Sentence for wire fraud and money laundering offenses is vacated as the district court plainly erred by denying defendant the opportunity to allocute at his resentencing hearing.
http://caselaw.lp.findlaw.com/data2/circs/4th/064516p.pdf
Sentence for wire fraud and money laundering offenses is vacated as the district court plainly erred by denying defendant the opportunity to allocute at his resentencing hearing.
http://caselaw.lp.findlaw.com/data2/circs/4th/064516p.pdf
district court's statement of reasons for the length of the sentence are not sufficiently compelling
US v. Sindima, No. 06-2245 (2d Cir. March 05, 2007)
Probation and prison sentence for mail fraud is remanded as the district court's statement of reasons for the length of the sentence are not sufficiently compelling and present to the degree necessary to support the sentence imposed.
http://caselaw.lp.findlaw.com/data2/circs/2nd/062245p.pdf
Probation and prison sentence for mail fraud is remanded as the district court's statement of reasons for the length of the sentence are not sufficiently compelling and present to the degree necessary to support the sentence imposed.
http://caselaw.lp.findlaw.com/data2/circs/2nd/062245p.pdf
Monday, March 12, 2007
In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where:
US v. Freeman, No. 05-3437 (10th Cir. March 08, 2007)
In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where: 1) the search at issue was not valid without reasonable suspicion; 2) under the totality of the circumstances, officers did not have a reasonable suspicion to search defendant's home without consent, without the presence of a parole officer, and in violation of Kansas Department of Corrections rules governing parolee searches; and 3) the search could not be upheld as a protective sweep.
http://laws.lp.findlaw.com/10th/053437.html
In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where: 1) the search at issue was not valid without reasonable suspicion; 2) under the totality of the circumstances, officers did not have a reasonable suspicion to search defendant's home without consent, without the presence of a parole officer, and in violation of Kansas Department of Corrections rules governing parolee searches; and 3) the search could not be upheld as a protective sweep.
http://laws.lp.findlaw.com/10th/053437.html
Saturday, March 03, 2007
wiretap used in the government's case
US v. Rice, No. 06-5245 (6th Cir. March 02, 2007)
Orders suppressing the fruits of a wiretap used in the government's case against defendants for drug-related offenses, and denying a motion for reconsideration, are affirmed where: 1) the district court did not err in suppressing the fruits of the wiretap; and 2) there is no good-faith exception for warrants improperly issued under Title III of the Omnibus Crime Control and Safe Streets Act. http://caselaw.lp.findlaw.com/data2/circs/6th/065245p.pdf
Orders suppressing the fruits of a wiretap used in the government's case against defendants for drug-related offenses, and denying a motion for reconsideration, are affirmed where: 1) the district court did not err in suppressing the fruits of the wiretap; and 2) there is no good-faith exception for warrants improperly issued under Title III of the Omnibus Crime Control and Safe Streets Act. http://caselaw.lp.findlaw.com/data2/circs/6th/065245p.pdf
Wrong drug quantity
US v. Sells, No. 04-7061, 04-7072 (10th Cir. March 01, 2007)
Defendants' convictions and sentences for drug- and firearm- related offenses arising from their participation in a methamphetamine manufacturing and distribution operation are affirmed as to one defendant, but other defendant's sentence is reversed and remanded where: 1)the district court committed Booker error which was not harmless; and 2) a determination as to the drug-quantity attributable to defendant was insufficiently particularized.http://laws.lp.findlaw.com/10th/047061.html
Thursday, March 01, 2007
likely future deportation
US v. Wills, No. 06-0115 (2d Cir. February 26, 2007)
Sentence imposed based on conviction of cocaine and crack-related crimes is vacated as the district court did not properly apply the statutory factors listed in 18 U.S.C. section 3553(a) when it considered defendant's likely future deportation under the need to protect the public, or the extent of the difference between defendant's sentence and his co-defendant's. http://caselaw.lp.findlaw.com/data2/circs/2nd/060115p.pdf
Sentence imposed based on conviction of cocaine and crack-related crimes is vacated as the district court did not properly apply the statutory factors listed in 18 U.S.C. section 3553(a) when it considered defendant's likely future deportation under the need to protect the public, or the extent of the difference between defendant's sentence and his co-defendant's. http://caselaw.lp.findlaw.com/data2/circs/2nd/060115p.pdf
Wednesday, February 28, 2007
relevant conduct vacated
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. McGowan, No. 06-1546 (7th Cir. February 28, 2007)
Sentence for distributing cocaine is vacated and remanded to the district court where the government did not meet its burden of proving that relevant conduct used to enhance defendant's sentence was part of the same course of action or common scheme or plan that gave rise to the defendant's conviction.
[To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw.com/data2/circs/7th/061546p.pdf
US v. McGowan, No. 06-1546 (7th Cir. February 28, 2007)
Sentence for distributing cocaine is vacated and remanded to the district court where the government did not meet its burden of proving that relevant conduct used to enhance defendant's sentence was part of the same course of action or common scheme or plan that gave rise to the defendant's conviction.
[To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw.com/data2/circs/7th/061546p.pdf
Uncharged Contact
- JULIUS OBASOHAN v. U.S. ATTY. GEN.
No. 0513332p - 02/23/07 - # JULIUS OBASOHAN v. U.S. ATTY. GEN.
No. 0513332p - 02/23/07
Immigration Judge’s (“IJ”) denial of Obasohan’s motion for reconsideration. The
BIA affirmed the IJ’s determination that Obasohan’s prior conviction qualified as
an “aggravated felony” under Section 101(a)(43)(M)(i) of the Immigration and
Nationality Act (“INA”) (codified as 8 U.S.C. § 1101(a)(43)(M)(i)) because it
involved “fraud or deceit in which the loss to the victim or victims exceed[ed]
$10,000.” We conclude that the IJ and BIA erred by relying on conduct that was
not charged, proven or admitted to determine that Obasohan had been convicted of
an “aggravated felony.” The petition is therefore GRANTED.
Saturday, February 24, 2007
Illegal Sentence
US v. Watson, No. 06-3012 (D.C. Cir. February 23, 2007)
Sentence for being a felon in possession of a firearm and of possession of marijuana is reversed where the district court plainly erred in thinking the statutory maximum to which defendant could be sentenced was 20 years, when in fact it was 10 years.http://caselaw.lp.findlaw.com/data2/circs/dc/063012b.pdf
Thursday, February 15, 2007
FBI INFORMANT DIRTY COP
Valdes v. US, No. 03-3066 (D.C. Cir. February 09, 2007)
In case where undercover FBI informant gave cash to defendant detective as a reward for searching police databases to supply otherwise publicly available information to the informant, conviction for receiving an illegal gratuity for or because of an official act is reversed as the government failed to show that the acts for which defendant received compensation fell within the scope of 18 U.S.C. section 201(c)(1)(B) and the court's jury charge was error. http://caselaw.lp.findlaw.com/data2/circs/dc/033066b.pdf
In case where undercover FBI informant gave cash to defendant detective as a reward for searching police databases to supply otherwise publicly available information to the informant, conviction for receiving an illegal gratuity for or because of an official act is reversed as the government failed to show that the acts for which defendant received compensation fell within the scope of 18 U.S.C. section 201(c)(1)(B) and the court's jury charge was error. http://caselaw.lp.findlaw.com/data2/circs/dc/033066b.pdf
guilty plea vacated
US v. Pickett, No. 05-3179 (D.C. Cir. February 13, 2007)
Sentence based on guilty plea to distributing more than five grams of crack cocaine is vacated as to defendant's sentence where the district court erred in refusing to evaluate whether sentencing defendant in accordance with U.S.S.G. section 2D1.1, and its 100-to-1 ratio, would effectuate the purposes of sentencing set forth in 18 U.S.C. section 3553(a). http://caselaw.lp.findlaw.com/data2/circs/dc/053179a.pdf
Sunday, February 04, 2007
US Supreme Court
THE SUPREME COURT INVALIDATES CALIFORNIA'S "DETERMINATE SENTENCING" LAW: PART ONE IN A TWO-PART SERIES ON YET MORE CASES INVOLVING JUDICIAL FACTFINDING IN SENTENCING
U.S. Supreme Court decision invalidating California's "determinate sentencing" law. Amar explains in detail each of the crucial Supreme Court Sixth Amendment sentencing precedents that led to the decision -- each deriving from the key principle that juries, not judges, must find (beyond a reasonable doubt) the facts that determine the length of the sentence imposed in a criminal case. http://writ.lp.findlaw.com/amar/20070202.html Opinionhttp://laws.findlaw.com/us/000/05-6551.html
Monday, January 22, 2007
structural error
US v. Smith-Baltiher, 424 F.3d 913 (9th Cir. 2005)
(defendant was entitled to present defense that he mistakenly believed he was a United States citizen at the time of his attempted entry; 2. exclusion of evidence proffered by defense to challenge his alienage was structural error).
(defendant was entitled to present defense that he mistakenly believed he was a United States citizen at the time of his attempted entry; 2. exclusion of evidence proffered by defense to challenge his alienage was structural error).
Wednesday, January 17, 2007
Illegal Traffic Stop
US v. Spinner, No. 05-3160 (D.C. Cir. January 16, 2007)
Denial of motion to suppress, made prior to guilty plea to one count of being a felon in possession of a firearm, is reversed as the police did not have the reasonable suspicion defendant was armed and dangerous necessary to justify their search of his vehicle. http://caselaw.lp.findlaw.com/data2/circs/dc/053160a.pdf
Denial of motion to suppress, made prior to guilty plea to one count of being a felon in possession of a firearm, is reversed as the police did not have the reasonable suspicion defendant was armed and dangerous necessary to justify their search of his vehicle. http://caselaw.lp.findlaw.com/data2/circs/dc/053160a.pdf
Tuesday, January 16, 2007
Double Jeopardy
, No. 05-6273 (10th Cir. January 04, 2007)Grant of a petition for habeas corpus, which ordered dismissal of pending first-degree manslaughter charges against petitioner arising from a traffic accident and enjoined the state from retrying or further prosecuting her for the same incident, is affirmed where: 1) Younger abstention is unwarranted where a criminal accused presents a colorable claim that a forthcoming second state trial will constitute a violation of her double jeopardy rights; 2) 28 U.S.C. section 2241 is the proper avenue by which to challenge pretrial detention, including when such challenges are based on double jeopardy grounds; and 3) under the circumstances, a witness's absence did not give rise to manifest necessity for the mistrial, over petitioner's objection, for double jeopardy purposes. http://laws.lp.findlaw.com/10th/056273.htmlWalck v. Edmondson
Habeass winner ineffective assistance of counsel
US v. Segarra-Rivera, No. 05-1582 (1st Cir. January 11, 2007)
Denial of motions to withdraw a guilty plea and for new counsel is reversed and remanded for an evidentiary hearing where the defendant made a sufficient showing of an actual conflict of interest on the part of his attorney to render his claim colorable and justify further inquiry by the district court. http://laws.lp.findlaw.com/1st/051582.html
Denial of motions to withdraw a guilty plea and for new counsel is reversed and remanded for an evidentiary hearing where the defendant made a sufficient showing of an actual conflict of interest on the part of his attorney to render his claim colorable and justify further inquiry by the district court. http://laws.lp.findlaw.com/1st/051582.html
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