In San Martin v. McNeil, No. 09-14311 (Feb. 23, 2011), the Court rejected as untimely the federal habeas petition filed by a Florida inmate sentenced to death for a 1991 murder.
San Martin filed his federal habeas petition two weeks after the one-year deadline of AEPDA. He argued that the limitations period should be equitably tolled, because of a two-week delay in his receipt of the decision of the United States Supreme Court that started the period running. Rejecting this argument, the Court noted that San Martin waited 349 days after receipt of the Supreme Court order before filing his state post-conviction claim. The Court also noted that, to invoke equitable tolling, a petitioner must show diligent attempts to ascertain the status of his case – which San Martin failed to do.
Thursday, February 24, 2011
Julian: 924(j) does not require consecutive sentences
In U.S. v. Julian, No. 09-13673 (Feb. 22, 2011), the Court vacated a sentence and remanded for resentencing, because the district court erroneously concluded that it was required by statute to impose consecutive sentences, and lacked discretion to impose concurrent sentences.
Julian pled guilty of several offenses, including a violation of 18 U.S.C. § 924(j), which makes it a crime for a person, in the course of a violation of 18 U.S.C. § 924(c) (use of a firearm during a crime of violence or a drug trafficking offense), to cause the death of a person. At sentencing, the district court concluded that § 924(c)(1)(D)(ii) required it to impose a consecutive sentence of life for the § 924(j) violation. Reversing, the Court held that the district court could impose a concurrent punishment for the § 924(k) violation.
The Court noted that the language of § 924(c) with regard to consecutive sentences referred to “this subsection,” i.e., 924(c), not 924(j). Further, the placement of the “cause of death” provision in a separate subsection of the statute indicated that it was a separate offense, not a sentencing enhancement. Further, the considerable increase in punishment for causing the death of a person indicated that the provision created a separate offense. In addition, the government itself treated causing death as something it had to prove to obtain a conviction, because this fact increased the statutory maximum, thus confirming that the provision was more than a sentencing enhancement. The Court recognized conflict with two other Circuits, but found those opinions unpersuasive.
Julian pled guilty of several offenses, including a violation of 18 U.S.C. § 924(j), which makes it a crime for a person, in the course of a violation of 18 U.S.C. § 924(c) (use of a firearm during a crime of violence or a drug trafficking offense), to cause the death of a person. At sentencing, the district court concluded that § 924(c)(1)(D)(ii) required it to impose a consecutive sentence of life for the § 924(j) violation. Reversing, the Court held that the district court could impose a concurrent punishment for the § 924(k) violation.
The Court noted that the language of § 924(c) with regard to consecutive sentences referred to “this subsection,” i.e., 924(c), not 924(j). Further, the placement of the “cause of death” provision in a separate subsection of the statute indicated that it was a separate offense, not a sentencing enhancement. Further, the considerable increase in punishment for causing the death of a person indicated that the provision created a separate offense. In addition, the government itself treated causing death as something it had to prove to obtain a conviction, because this fact increased the statutory maximum, thus confirming that the provision was more than a sentencing enhancement. The Court recognized conflict with two other Circuits, but found those opinions unpersuasive.
Wednesday, February 16, 2011
Lockley: Florida "Attempted Robbery" is "Crime of Violence"
In U.S. v. Lockley, No. 09-15728 (Feb. 11, 2011), the Court held that a prior conviction for “attempted robbery,” in violation of Fla. Stat. §§ 812.13(1) and 777.04(1) qualified as “crime of violence” for purposes of the career offender Guideline.
The Court noted that the career offender guideline expressly includes “robbery,” which refers to “generic” forms of robbery. The Court found that Florida’s “attempted robbery” offense is a generic form of robbery. The statute requires that a defendant take the money or property of another, with the intent to permanently deprive the person of it, using force, violence, or threats of force. The Court found that the “intimidation” element of the statute was generic.
The Court noted that Florida’s attempt statute, which requires that a “substantial step” be taken toward commission of the offense, falls within the generic meaning of “attempt” in the Guidelines.
The Court further noted that “attempted robbery” would also qualify under the “residual clause” of the career offender Guideline. The Court noted that attempted robbery is similar in degree to the offenses enumerated in the residual clause. Robbery is purposeful, and it is a potentially aggressive and violent act. The Court noted the difference between “robbery” and Florida’s lesser offense of “robbery by sudden snatching.”
The Court noted that the career offender guideline expressly includes “robbery,” which refers to “generic” forms of robbery. The Court found that Florida’s “attempted robbery” offense is a generic form of robbery. The statute requires that a defendant take the money or property of another, with the intent to permanently deprive the person of it, using force, violence, or threats of force. The Court found that the “intimidation” element of the statute was generic.
The Court noted that Florida’s attempt statute, which requires that a “substantial step” be taken toward commission of the offense, falls within the generic meaning of “attempt” in the Guidelines.
The Court further noted that “attempted robbery” would also qualify under the “residual clause” of the career offender Guideline. The Court noted that attempted robbery is similar in degree to the offenses enumerated in the residual clause. Robbery is purposeful, and it is a potentially aggressive and violent act. The Court noted the difference between “robbery” and Florida’s lesser offense of “robbery by sudden snatching.”
Tuesday, February 15, 2011
Ibarquen-Mosquera: DTVIA is Constitutional (Part 2)
In U.S. v. Ibarguen-Mosquera, No. 09-14476 (Feb. 10, 2011), the Court rejected challenges to the constitutionality of the Drug Trafficking Vessel Interdiction Act (DTVIA).
The Court rejected a challenge based on international law principles, noting that these principles only apply to laws that govern the conduct of flagged vessels, whereas the DTVIA applies to stateless vessels.
The Court rejected the argument that the terms “semi-submersible vessel” and “intent to evade” were void for vagueness. The Court found that the application of both terms to defendants was clear: “Defendants traveled in a Vessel that sat very low in the water, was painted ocean-blue, and had no headlights or signals.”
The Court also rejected the argument that the conspiracy and substantive offenses were double punishment for the same offense, noting that conspiracy involves “collaboration” to violate the statute while the substantive offense does not.
The Court ruled that the statute does not require that a defendant “knowingly” navigate on the high seas. The high seas element was merely a jurisdictional element of the statute.
The Court rejected a challenge based on international law principles, noting that these principles only apply to laws that govern the conduct of flagged vessels, whereas the DTVIA applies to stateless vessels.
The Court rejected the argument that the terms “semi-submersible vessel” and “intent to evade” were void for vagueness. The Court found that the application of both terms to defendants was clear: “Defendants traveled in a Vessel that sat very low in the water, was painted ocean-blue, and had no headlights or signals.”
The Court also rejected the argument that the conspiracy and substantive offenses were double punishment for the same offense, noting that conspiracy involves “collaboration” to violate the statute while the substantive offense does not.
The Court ruled that the statute does not require that a defendant “knowingly” navigate on the high seas. The high seas element was merely a jurisdictional element of the statute.
Saac: DTVIA is Constitutional (Part I)
In U.S. v. Saac, No. 09-14204 (Feb. 9, 2011), the Court upheld the constitutionality of the Drug Trafficking Vessel Interdiction Act of 2008 (DTVIA). The defendants were convicted under the DTVIA of operating a semi-submersible vessel in international waters.
The Court rejected the argument that the defendants’ unconditional guilty pleas waived their right to challenge the constitutionality of the DTVIA on appeal. The Court ruled that the constitutionality of a criminal statute to which a defendants pleads guilty is a jurisdictional issue that a defendant does not waive upon pleading guilty.
The Court rejected the argument that the “High Seas” clause of the Constitution, which vests Congress with power to define crimes on the High Seas, requires that the crime have a connection with the United States. The Court noted that drug trafficking is condemned universally by law-abiding nations.
Turning to sentencing, the Court found that, in the absence of a promulgated Guideline at the time of sentencing with respect to submersible vessels, the district court did not err in declining to impose sentence based on the Guideline governing tunnels and subterranean passages. The district court did not abuse its discretion in finding the tunnel guideline insufficiently “analogous” for sentencing purposes.
The Court rejected the argument that a sentence was excessive because the alien-defendant would not be eligible for certain vocational programs. The Court noted that the sentence was well below the statutory maximum.
The Court rejected the argument that the defendants’ unconditional guilty pleas waived their right to challenge the constitutionality of the DTVIA on appeal. The Court ruled that the constitutionality of a criminal statute to which a defendants pleads guilty is a jurisdictional issue that a defendant does not waive upon pleading guilty.
The Court rejected the argument that the “High Seas” clause of the Constitution, which vests Congress with power to define crimes on the High Seas, requires that the crime have a connection with the United States. The Court noted that drug trafficking is condemned universally by law-abiding nations.
Turning to sentencing, the Court found that, in the absence of a promulgated Guideline at the time of sentencing with respect to submersible vessels, the district court did not err in declining to impose sentence based on the Guideline governing tunnels and subterranean passages. The district court did not abuse its discretion in finding the tunnel guideline insufficiently “analogous” for sentencing purposes.
The Court rejected the argument that a sentence was excessive because the alien-defendant would not be eligible for certain vocational programs. The Court noted that the sentence was well below the statutory maximum.
Friday, February 04, 2011
Lee: Conspiracy not "Crime of Violence"
In U.S. v. Lee, No. 10-10926 (Feb. 2, 2011)
the Court held that a prior New Jersey conviction for conspiracy to commit armed robbery did not qualify as a “crime of violence” for purposes of the Guidelines career offender enhancement, but a prior New Jersey conviction for eluding police did so qualify.
The Court noted that it had previously held that a non-overt act conspiracy is not a “crime of violence” for career offender purposes. New Jersey’s statute criminalizing conspiracy to commit armed robbery did not require an overt act. It therefore did not qualify as a “crime of violence.”
As for the eluding police conviction, the Court noted that the offense involves a motorist who “knowingly” flees after receiving a signal from law enforcement, in a flight that “creates a risk of death or injury to any person.” The Court found that such a motorist poses a danger to himself, other drivers, passengers, pedestrians and law enforcement officers. The Court concluded that fleeing at high speed amounts to holding a finger on the trigger of a deadly weapon. The offense therefore qualified as a crime of violence..
the Court held that a prior New Jersey conviction for conspiracy to commit armed robbery did not qualify as a “crime of violence” for purposes of the Guidelines career offender enhancement, but a prior New Jersey conviction for eluding police did so qualify.
The Court noted that it had previously held that a non-overt act conspiracy is not a “crime of violence” for career offender purposes. New Jersey’s statute criminalizing conspiracy to commit armed robbery did not require an overt act. It therefore did not qualify as a “crime of violence.”
As for the eluding police conviction, the Court noted that the offense involves a motorist who “knowingly” flees after receiving a signal from law enforcement, in a flight that “creates a risk of death or injury to any person.” The Court found that such a motorist poses a danger to himself, other drivers, passengers, pedestrians and law enforcement officers. The Court concluded that fleeing at high speed amounts to holding a finger on the trigger of a deadly weapon. The offense therefore qualified as a crime of violence..
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