Ramirez: Second 851 Notice Unnecessary

In U.S. v. Ramirez, No. 06-16404 (Sept. 11, 2007), the Court held that when the government, after filing an original notice of intent to seek a mandatory life sentence, in accordance with 21 U.S.C. § 851(a)(1), thereafter filed a new information, but neglected to file a new § 851 notice, the omission did not prevent the imposition of a life-sentence.
The Court noted that in U.S. v. Thompson, 473 F.3d 1137 (11th Cir. 2006), the Court had held that an original § 851 notice sufficed, notwithstanding the failure to file a new notice after the government had filed a superseding indictment. Here, the government filed a new information, under a new case number. The Court held that, as in Thompson, "a second notice was unnecessary." The Court pointed out that Ramirez had notice of the government’s intent to seek the enhanced sentence. The Court cautioned that it might reach a different result if the § 851 notice related to a case "dismissed long ago."

Fields: Knowledge of out of state residency of child is essential element

In U.S. v. Fields, No. 06-13784 (Sept. 21, 2007), the Court reversed the conviction of a defendant convicted of willfully failing to pay past due child support, in violation of 18 U.S.C. § 228(a)(1).
The elements of the offense are (1) a willful failure to pay, (2) past due support, (3) to a child who resides in another state. The defendant claimed that since his ex-wife, without his knowledge, moved with their child out of Florida, he, a Florida resident, lacked the willful mens rea of the statute as to the out-of-state status of his child. The district court rejected this argument, finding that the out-of-state status of the child was a mere jurisdictional hook, as to which no mental state was required. Reversing, the Court pointed out that since child support obligations always arose out of state court judgments, the federal duty to pay child support, violation of which can give rise to federal criminal liability, can only arise when the child resides out of state. Federal criminal statutes generally require proof of the defendant’s knowledge of the facts that give rise to a violation of the law, and here one of the facts was the child’s out-of-state residence. The removal of the child by the mother out of state is what made the defendant’s failure to pay child support criminal under federal law, and this event was hidden from the father by the mother. Thus, there was no "willful" violation of the statute. The Court therefore reversed the conviction.

Valdes: No reasons for extraordinary variance

In U.S. v. Valdes, No. 06-15951 (Sept. 18, 2007), the Court vacated a 108-month sentence, which exceeded the 41-51 month range of the PSI, and the 57-71 month range urged by the government.
The Court noted that if the district court intended to apply an upward departure under USSG 4A1.3, if failed to follow the requisite procedures, namely it failed to first consider the next criminal history category and make a determination whether its range was appropriate. The Court further noted that if the district court intended to rely on 18 U.S.C. § 3553(a) to vary upward from the Guidelines, the reasons discussed were inadequate to support an extraordinary variance. The Court noted that nothing extraordinary about the case justified the extreme variance, pointing out that even though the offense of conviction involved counterfeiting checks from the clerk of the District Court, this office was no different from any other fraud victim.

Otero: Counsel not ineffective for failing to appeal

In U.S. v. Otero, No. 06-15791 (Sept. 17, 2007), the Court held that Otero’s lawyer had no constitutional duty under the criteria of Roe v. Flores-Ortega, 528 U.S. 470 (2000) to consult Otero about an appeal, and therefore denied Otero’s § 2255 motion based on counsel’s failure to file an appeal.
Otero pled guilty to drug trafficking charges. He waived his right of appeal in his plea agreement. Consequently, he had no non-frivolous issues for appeal. Hence, no rational defendant in Otero’s position would have sought to appeal, and counsel therefore did not render ineffective assistance.
The Court also rejected Otero’s claim that he specifically instructed his lawyer to file an appeal. The Court adopted the district court’s credibility determinations that Otero never indicated a desire to appeal.

Marzurky: Cap on Supervised Release

In U.S. v. Mazarky, No. 06-13316 (Sept. 12, 2007), the Court, adopting the view of all other Circuits to have construed the statute, held that a new term of supervised release imposed after two successive revocations of supervised release must be reduced from the statutory maximum by the aggregate length of imprisonment imposed in both revocations. The Court therefore vacated the sentence and remanded for resentencing.
The statutory maximum term of supervised release for Mazarky’s original offense of conviction was three years. After his first revocation of supervised release he was sentenced to 10 months imprisonment. After his second revocation of supervised release he was sentenced to 8 months imprisonment – and the district court also imposed a 28-month term of supervised release. Mazarky argued that the 28-month term was invalid, because the statute required that he be given credit for the aggregate 18 months prison sentence off the 36-month cap, resulting in a maximum of 18 months of supervised release. The Court agreed, noting the interpretations of the applicable statutes, 18 U.S.C. §§3583(e)(3) & (h), by other Circuits.
The Court rejected the government’s argument, first raised in this appeal, that the statutory supervised release maximum was greater than three years, because the drug trafficking offense of conviction carried a statutory maximum greater than the three years provided in the supervised release statute. The Court noted that Mazarky’s guilty plea was based on a three-year maximum for supervised release, and "in order to preserve notice to the defendant" it declined to consider this new argument.

Maturin: 15-year old conviction counts as aggravated felony

In U.S. v. Maturin, No. 07-10481 (Sept. 11, 2007), the Court held that a more than 15-year old conviction for drug trafficking qualified as an "aggravated felony" and therefore subjected Maturin to a 17-month sentence enhancement for his conviction for illegally reentering the United States after deportation.
The Court held that the plain meaning of the statutory phrase that limited convictions more than 15 years old from qualifying as aggravated felonies referred only to foreign, not domestic, convictions. The Court rejected Maturin’s contrary interpretation.

Fleet: Federal Forfeiture Preempts Florida Homestead

In U.S. v. Fleet, No. 06-12454 (Sept. 5, 2007), the Court held that the provision of the federal criminal forfeiture statute, 21 U.S.C. § 853(p), which authorizes the forfeiture of a criminal defendant’s substitute property in the event moneys traceable to the crime cannot be located or have been transferred to a third-party, preempts Florida’s homestead exemption and property law governing tenancies by the entireties.
The Court recognized that unlike the general provision governing criminal forfeiture, which expressly preempts State law, the provision governing substitute property did not contain an express preemption provision. The Court noted, however, that the Supreme Court has stated that the inclusio unius est exclusio alterius logic does not apply to express/implied preemptions. The Court therefore turned to words of the forfeiture statute, which broadly authorized the courts to forfeit "any" substitute property. Further, the Court noted that its interpretation was consistent with the remedial purpose of forfeiture, which is to enforce the old adage that crime does not pay.