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.
Tuesday, July 17, 2007
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.
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