Di Pietro: Immigration Marriage Law Not Void for Vagueness

In U.S. v. Di Pietro, No. 09-13726 (Aug. 27, 2010), the Court affirmed a conviction for aiding and abetting individuals to enter into marriage for the purpose of evading federal immigration laws, and rejected constitutional challenges to 8 U.S.C. § 1325(c).

The Court rejected a void for vagueness challenge to the law, pointing out that Di Pietro conceded that the law was not vague as it applied to her. She could not challenge the law as it applied to others. The Court recognized that certain First Amendment “overbreadth” challenges can be raised by one person for others. Here, however, Di Pietro was raising a void for vagueness challenge, and her arguments did not implicate sufficiently “weighty” concerns for others to support her going forward on her challenge.

The Court also rejected the argument that the immigration law unconstitutionally preempts Florida’s marriage law. The Court noted that, to the extent there was a conflict, federal law would invalidate state law. Moreover, there was no conflict: the federal law was like other criminal laws that involve the use of legal means for illegal purposes.

Zaldivar: Alien Smuggling Enhancement for Death on Board

In U.S. v. Zaldivar, No. 09-12035 (Aug. 24, 2010), the Court affirmed a ten-level sentence enhancement for a defendant convicted of alien smuggling, based on the death of one of the aliens.

The alien died as a result of injuries sustained when the boat he was on was being chased by a Coast Coard cutter on the high seas. The defendant stated that he was not the person who operated the boat when it was fleeing from the Coast Guard, and that he requested the driver to stop for the Coast Guard. The Court noted that the relevant conduct for the offense included all “foreseeable” actions that could result in death. The Guidelines do not require that an individual’s actions be the proximate cause of the death. Here, the death was foreseeable because Zaldivar participated in the illegal transportation of 32 Cubans in an overcrowded boat that was designed to travel at high rates of speed. The boat did not contain enough life preservers for all its passengers. It was traveling in the dark, without headlights, to avoid detection. Weather conditions on the open seas have the potential to deteriorate. It was foreseeable to Zaldivar that the operator of the boat would attempt to evade interdiction by fleeing at a high speed.

The Court also found that Zaldivar had not established that he was entitled to a sentence reduction based on his claim that he was involved in alien smuggling for a reason “other than for profit.” The Court noted that Zaldivar’s family was not on the boat, and that aliens who were on the boat stated that they expected to pay for the trip.

Johnson: Counsel not ineffective in failing to call prison expert

In Johnson v. Upton, No. 09-16090 (Aug. 23, 2010), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1994 murder.

The Court rejected the claim that counsel was ineffective for failing to call a penological expert who would have testified, at the penalty phase of Johnson’s trial, that, statistically inmates who serve long prison sentences (instead of being sentenced to death) do not present a future danger because of their tendency to adjust to prison life. The Court found that evidence of Johnson’s own history of having attacked a jailer, and escaped, would undermine the expert’s testimony. Moreover, the statistical evidence was not conclusive. Further, it would have assumed that Johnson would be classified as a high security inmate, a fact unhelpful in mitigation.

The Court also found that any of the claimed ineffective assistance would not have prejudiced Johnson in the penalty phase, in view of the particularly gruesome nature of the murder, and Johnson’s subsequent assault when he escaped from jail.

Bellizia: Ineffective Counsel for Failing to argue heroin was not weighed

In Bellizia v. Dep’t of Corrections, No. 09-13838 (Aug. 20, 2010), the Court affirmed the grant of habeas relief to a Florida inmate because his defense counsel was constitutionally ineffective in failing to challenge the State’s failure to weigh each of the pellets of heroin found on Bellizia..

The Court noted that under Florida caselaw, which had been controlling law for many years, visual examination of drug packages is insufficient to determine the weight of the package. The State must weigh and test every package. Here, the State failed to weigh the drugs and Belizia was sentenced to a 22-year term based on an estimate of the weight of the drugs. No competent counsel would have failed to argue that the weight was illegally calculated.

Chirino-Alvarez: Alien Smuggler Participated Throughout

In U.S. v. Chirino-Alvarez, No. 09-11317 (Aug. 23, 2010), the Court rejected sufficiency of the evidence challenges to alien-smuggling convictions.

Citing the Ninth Circuit’s en banc decision in U.S. v. Lopez, the Court recognized that the evidence would be insufficient if Chirino-Alvarez’ participation in the alien-smuggling scheme occurred only after the aliens arrived in the United States. However, the Court found that based on the evidence, including admissions to an undercover agent, the jury could reasonably infer that Chirino-Alvarez “was involved in the scheme throughout.”

The Court declined to reach Chirino-Alvarez’ challenge to the Guideline computation of his sentence, noting that he was sentenced to a statutory mandatory minimum, and that any error in the Guideline calculation was therefore harmless.

Kottwitz: Good Faith Reliance Instruction Should Have Been Given

In U.S. v. Kottwitz, No 08-13740 (Aug. 19, 2010), the Court held that the evidence was insufficient to sustain some tax fraud charges, and that a new trial was required on others because the district court denied a special instruction regarding the defendants’ good faith reliance on their accountant’s advice.

The Court found that the evidence was sufficient to show that the owners of a closely held corporation fraudulently failed to report to the IRS as personal income moneys received from their corporation to pay for personal expenses, such as suits, night-club visits, and landscaping fees. However, as to this conduct, the district court erred in not failing to give the good faith reliance instruction requested by the defense, because it was supported by evidence that the defendants (1) provided all material information to their accountant, (2) and relied on their accountant’s advice and decisions.

As to other counts of conviction, the Court found no evidence to support them, and therefore vacated those convictions.

Newman: Taking Child to Yemen Not "Otherwise Extensive" Offense

In U.S. v. Newman, No. 09-14557 (Aug. 17, 2010), the Court affirmed the imposition of a sentence enhancement under USSG § 2J1.2(b)(2) for “substantial interference with the administration of justice.” Newman was convicted of removing his child outside the United States with the intent to obstruct the other parent’s lawful exercise of parental rights. The enhancement was based on Newman’s “self-help” reaction in response to a state court custody order. The Court rejected the argument that this basis created a “per se rule” that the enhancement would apply in all custody cases where an order has issued. It is the nexus between Newman’s dissatisfaction with the custody determination and his intent to frustrate it, not the order itself, that renders the enhancement applicable.

The Court reversed a § 2J1.2(b)(3) enhancement that had been based on a finding that because Newman took the child to Yemen, the offense was “otherwise extensive in scope, planning, or preparation.” The Court noted that nothing in the record supported a finding that Newman took his son to Yemen because it would be difficult to find him there. Rather, the evidence indicated that Newman went to Yemen for “religious and cultural reasons.”

The Court also rejected the argument that the duration of the removal counted as “extensive.” The Court held that “duration” is a separate aspect of an offense from “scope.”

Villarreal: 10-year delay not speedy trial violation

In U.S. v. Villarreal, No. 09-11348 (Aug. 13, 2009), the Court rejected a constitutional speedy trial right challenge to an indictment, and affirmed a 328-month sentence on a defendant convicted of trafficking in more than 10,000 kilograms of marijuana.

The Court recognized that because the defendant was arrested ten (10) years after the indictment was filed, the delay was “clearly” presumptively prejudicial. However the Court found that (1) Villarreal engaged in evasive tactics to impede the government’s efforts to arrest him, although this factor did not weigh heavily in the government’s favor because of “gaps in the government’s efforts to locate Villarreal,” (2) Villarreal knew that the government was seeking to arrest and prosecute him for charges stemming from a Florida drug bust, (3) Villarreal failed to show actual prejudice from the delay – he did not show how missing business records would help his case, and the government suffered prejudice in locating witnesses for trial. On balance, the factors weighed against a speedy trial violation.

Turning to sentencing, the Court found that the witnesses who testified about marijuana purchases from Villarreal supported the quantity attributed to him. The evidence also supported a leadership role enhancement, and an enhancement for constructive possession of a firearm. The 328-month sentence fell within the Guideline range and was reasonable.

Jackson: 3582(c)(2) does not encompass safety-valve

In U.S. v. Jackson, No. 08-13645 (Aug. 9, 2010), the Court held that a defendant cannot obtain a safety-valve sentence reduction at a resentencing under 18 U.S.C. § 3582(c)(2).

The Court noted that the safety-valve statute references findings “at sentencing.” A § 3582(c)(2) proceeding is not a “sentencing,” but a limited resentencing. The Court noted the policy statements of the Sentencing Guidelines which provided that § 3582(c)(2) resentencings leave other guideline application decisions “unaffected.”

The Court recognized that its holding created a conflict with the contrary decisions of the Eighth and Sixth Circuits, which have held that the safety-valve does apply in § 3582(c)(2) proceedings.

Epps: Pillowcase not protected by Fourth Amendment

In U.S. v. Epps, No. 09-12285 (Aug. 6, 2010), the Court rejected a Fourth Amendment challenge to the police’s seizure of the contents of a pillow case.

The defendant was running away after a bank robbery, pointing a gun toward the police. A police officer in a police car stopped him by hitting him with the front of his patrol car. The defendant rolled off the car’s hood and the gun and pillow case he was holding “went flying.” The pillow case had some pink stains – suggestive of the dye pack that had stained cash stolen during a bank robbery. The police searched the pillow case and found, inter alia, currency marked with a red dye.

The Court found no Fourth Amendment violation in the search of the pillow case. The Court noted that the pink stains were indicative of an exploding dye pack. The Court found that the contents of the pillow case could be inferred from its outward appearance, and therefore fell outside the ambit of Fourth Amendment protection.

The Court found no improper vouching in the prosecutor’s statement during closing argument that “somebody else” – a witness who had not testified -- was present with the testifying police officer when Epps confessed to police.

Epps: No Fourth Amendment Protection for I

Mills: Mandatory Minimum Crack Offenders Not Eligible for Crack Amendment Reductions

In U.S. v. Mills, No. 08-11760 (Aug. 5, 2010), the Court rejected the argument that defendants convicted of a crack cocaine offense who were originally subject to mandatory minimum sentences, but received substantial assistance sentence reductions below the mandatory minimums, could, in a proceeding for reduction of sentence under 18 U.S.C. § 3582(c)(2), get the benefit of the Sentencing Commission’s 2007 amendment to the crack cocaine Guidelines.

The Court reasoned that the defendants were ineligible for the Guideline amendments, because their original sentences were based on the statutory mandatory minimum. The Court noted that in U.S. v. Moore it had held that career offenders were categorically ineligible for the Guideline amendment reductions. Further, in U.S. v. Williams, it had held that a defendant was ineligible for the Guideline amendment reductions because he was sentenced to a mandatory minimum under the drug statute, based on his two prior convictions. The Court rejected concerns about the “arbitrariness” of its result: “To the extent that defendants believe that . . . the Guidelines led to ‘arbitrary’ results in their cases, their redress is with Congress and the mandatory minimum sentences for drug offenses it has set.”

Irey: En Banc reversal of child molester sentence

In U.S. v. Irey, No. 08-10997 (July 29, 2010) (en banc), the Court reversed as substantively unreasonable a sentence of 210 months, below the Guidelines advisory sentence (and statutory maximum) of 360 months, because the district court failed to adequately punish a sex offender convicted of coercing minors to engage in sexually explicit conduct outside the United States, in violation of 18 U.S.C. § 2251(c).

The Court noted that, contrary to other Circuits, it found no “parsimony principle” in 18 U.S.C. § 3553(a)’s instruction to impose a sentence “sufficient, but not greater than necessary,” to achieve the listed sentencing purposes. The Court stated that the statute is “result neutral.”

The Court noted that the government did not appeal any of the district court’s findings of fact. The Court therefore assumed that these findings were correct. But if found a number of legal errors in the district court’s weighing of the sentencing factors.

The Court faulted the district court for stating that Irey was a “victim” when he was a predator. This finding “tainted its weighing of the § 3553(a) factors.”

The Court also faulted the district court for stating that pedophilia was an illness, noting that just as there is a line between alcoholism and driving under the influence, there is a line between pedophilia and child molestation. The district court erred in reducing Irey’s sentence because Irey’s offense was only partly volitional, and this error warranted “closer review” of the sentence.

The Court also faulted the district court for relying on a finding that Irey was a good family man, and good to his community. The Court equated this to finding that Ted Bundy was a valuable member of his community, and that “but for his taste for human flesh and how he satisfied it, Jeffrey Dahmer was not so bad.” The Court noted that Irey’s family support for him, while admirable, was not supported by the record. The Court also faulted the district court for relying on Irey’s age, finding his age no different from those of other persons in middle age convicted of serious crimes.

The Court also noted the “horrific” nature of the multiple crimes, pointing out that the 210 months sentence would amount to only 4 months and a week punishment for each of the 50 children Irey raped, sodomized or tortured.

The Court pointed out that the 210 months was just 30 months more than Irey would have received had he been convicted of taking a single obscene photograph of a minor.

Turning to deterrence, the Court faulted the district court’s “idiosyncratic doubts” about whether pedophiles could be deterred from committing crimes. The Court noted these views conflicted with the policy judgments of Congress. The Court added that age, for this offense, did not reduce the risk of recidivism.

The Court noted that the district court imposed a lifetime of supervised release, but stated that supervised release does not offer the level of protection of incarceration.

The Court noted that the Guidelines sentence was life, reduced to 30 years on account of the statutory maximum. The Court further noted a number of Guideline provisions that counseled against sentence reductions based on some of the factors the district court cited, for example, the instruction not to depart downward on account of diminished capacity when the offense is violent. The Court found that the district court “ignored” the advisory Guidelines, contrary to § 3553(a) instruction that they be considered.

Turning to sentencing disparity, the Court reviewed a number of cases, and found that Irey’s sentence fell below sentences for other child sex offenders. The disparity resulted from the fact that Irey received a reduction that he should not have received.

The Court disagreed with the district court that its sentence would promote respect for the law. “Nothing less than the advisory guidelines sentence of 30 years, which is the maximum available, will serve the sentencing purposes set out in § 3553(a).”