In U.S. v. Crawford, No. 03-15136 (May 2, 2005) (Edmondson, Marcus, Pryor), the Court reversed a district court’s sentencing finding that a defendant did not engage in more than minimal planning, and reversed a district court’s downward departure based on restitution. The Court remanded the case for resentencing in the advisory manner explicated by Booker.
The Court recognized that Booker had required a "reasonableness" standard on appellate review of sentences. The Court found that this reasonableness standard did not affect appellate review of the application of the sentencing guidelines. The Court noted that Booker requires a district court to "consult" and "take into account" the Guidelines. This "consultation requirement" obliges the courts to calculate correctly the sentencing range prescribed by the Guidelines.
The Court noted that the more than minimal planning Guideline focuses on "repeated acts over a period of time" which indicate greater culpability. The Court recognized a narrow exception for conduct in response to a sudden, fortuitous opportunity of which the defendant took advantage without deliberation. The Court noted that Crawford wrote 184 checks in furtherance of his illegal scheme. He had many opportunities to consider the consequences of his actions, but never ceased participation. Thus, contrary to the district court’s finding, the defendant’s conduct was not the product of fortuity, and the more than minimal planning enhancement applied.
The Court also reversed the downward departure based on restitution and remorse. The Court noted that the district court ruled before it had the opportunity to consider the Court’s extraordinary restitution opinion in U.S. v. Kim. Therefore, on remand, the Court "must apply the Kim test." The Court rejected as a basis for downward departure the use of unsophisticated means: "A defendant who uses unsophisticated means is not to be rewarded for lack of imagination."
Further, because the government had not filed a substantial assistance motion, assistance was not a basis for downward departure.
Finally, the Court recognized that the reliance on the disproportionate amount of loss amount was a valid basis for departure. The Court noted that "the amount of loss appears proportionate to the criminal acts committed by Crawford."
The Court found that the sentence was based on "an erroneous understanding of the Guidelines." The Court instructed the district court to calculate an advisory guideline range that includes more than minimal planning and considers a downward departure in a range consistent with its opinion.
Tuesday, May 03, 2005
Dacus: Booker plain error where judge would have departed downward
In U.S. v. Dacus, No. 04-15319 (May 3, 2005), the Court held that Booker "plain error" occurred at sentencing when the district stated that if it had the authority to depart downward, it would have done based on Dacus’ rehabilitation efforts.
The Court noted that the defendant failed to raise a Booker challenge in his initial brief, but did not find this was a waiver because of the government’s concession of sentencing error on appeal.
The Court noted that at sentencing, "Dacus did not object to the conclusion of the district court that it was bound by the Guidelines as mandatory." [Note: at the time of sentencing, the Guidelines were mandatory]. The Court therefore reviewed the error for "plain error." Here, the error was "plain," because the district said it would have considered a downward departure but for the mandatory nature of the Guidelines. This showed a reasonable probability of a different result on resentencing. The Court therefore vacated the sentence and remanded for resentencing.
The Court noted that the defendant failed to raise a Booker challenge in his initial brief, but did not find this was a waiver because of the government’s concession of sentencing error on appeal.
The Court noted that at sentencing, "Dacus did not object to the conclusion of the district court that it was bound by the Guidelines as mandatory." [Note: at the time of sentencing, the Guidelines were mandatory]. The Court therefore reviewed the error for "plain error." Here, the error was "plain," because the district said it would have considered a downward departure but for the mandatory nature of the Guidelines. This showed a reasonable probability of a different result on resentencing. The Court therefore vacated the sentence and remanded for resentencing.
Burge: ACCA prior juvenile convictions count
In U.S. v. Burge, No. 04-13468 (May 2, 2005), the Court (Edmondson, Dubina, Hull) affirmed the constitutionality of a sentence imposed under the Armed Career Criminal Act.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
Burge: ACCA counts prior juvenile adjudications
In U.S. v. Burge, No. 04-13468 (May 2, 2005), the Court (Edmondson, Dubina, Hull) affirmed the constitutionality of a sentence imposed under the Armed Career Criminal Act.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
Monday, May 02, 2005
Pace: Artuz distinguished
In Pace v. DiGuglielmo, No. 03-9627 (April 27, 2005), the Supreme Court held that a state post-conviction motion is not "properly filed," within the meaning of the tolling provision of the AEDPA’s statute of limitations, when that motion was denied by the state courts for being untimely under state law. The Court distinguished Artuz v. Bennett, 531 U.S. 4 (2000), which had found that a state petition was "properly filed." The Court pointed out that Artuz involved a state dismissal for procedural default, not, with Pace, a state dismissal for untimeliness. An petition dismissed as untimely cannot be considered "properly filed," the Court concluded.
Martinez: Booker plain error
In U.S. v. Martinez, No. 05-10382 (April 29, 2005), the Court held that "plain error" infected a sentence under Booker, where the district court expressed an "unequivocal desire" to impose a setnence lower than the minimum sentence mandated by the Sentencing Guidelines. The Court vacated the sentence and remanded for resentencing.
Martinez’ pre-Booker Guideline sentence, as a career offender, was 262-327 months. During the sentencing, the district court inquired if there was "any way we can make [the sentence] shorter," and expressed regret that "unfortunately" her power to impose a lower sentence was limited by the Guidelines. The Court noted that the court erred, in light of the intervening Booker decision, in considering the Guidelines to be mandatory, and held that the circumstances constituted "plain error."
Martinez’ pre-Booker Guideline sentence, as a career offender, was 262-327 months. During the sentencing, the district court inquired if there was "any way we can make [the sentence] shorter," and expressed regret that "unfortunately" her power to impose a lower sentence was limited by the Guidelines. The Court noted that the court erred, in light of the intervening Booker decision, in considering the Guidelines to be mandatory, and held that the circumstances constituted "plain error."
Thursday, April 28, 2005
Small
In Small v. U.S., No. 03-750 (April 16, 2005), the Court held that the phrase "convicted in any court" contained in the prohibition in 18 U.S.C. § 922(g)(1) on firearm possession by any person convicted in any court of a crime punishable by imprisonment exceeding one year encompassed only domestic, not foreign, convictions.
The Court noted that it is appropriate to assume that Congress has domestic, not foreign, concerns in mind when it writes criminal statutes. Further, foreign convictions can involve conduct that is not criminal under Amercan laws. The Court pointed out that in view of the language creating exceptions to the firearm possession prohibition, reading the statute to include foreign convictions could create "anomalies," where a foreign conviction, for example for antitrust violations, would count whereas a domestic one would not. The Court recognized that the broad purpose of the statute of protecting public safety by keeping guns out of the hands of those likely to create a threat would support a broad reading of the law. But it concluded that Congress paid no attention to foreign convictions.
The Court noted that it is appropriate to assume that Congress has domestic, not foreign, concerns in mind when it writes criminal statutes. Further, foreign convictions can involve conduct that is not criminal under Amercan laws. The Court pointed out that in view of the language creating exceptions to the firearm possession prohibition, reading the statute to include foreign convictions could create "anomalies," where a foreign conviction, for example for antitrust violations, would count whereas a domestic one would not. The Court recognized that the broad purpose of the statute of protecting public safety by keeping guns out of the hands of those likely to create a threat would support a broad reading of the law. But it concluded that Congress paid no attention to foreign convictions.
Paquantino
In Pasquantino v. U.S., No. 03-725 (April 26, 2005), the Court held that a plot to defraud the Canadian government of tax revenue violates the federal wire fraud statute, 18 U.S.C. § 1343. The plot involved the smuggling of large quantities of liquor from the United States to evade Canada's heavy alcohol import taxes..
The Court found that Canada's right to uncollected excise taxes on liquor is "property" within the wire fraud statute's meaning. Further, the Court found that its construction of § 1343 did not derogate from the common law revenue rule, which prohibits one sovereign from enforcing its tax liabilities in the courts of another sovereign. The Court noted that this criminal prosecution did not have as its purpose the collection of revenues. Further, the prosecution was not the "indirect" enforcement of tax liability collection, and, based on the then-existing caselaw, would not have been regarded as such by the 1952 Congress which enacted the wire fraud statute. In addition, the prosecution poses little risk of the principal evil against which the revenue rule protects: judicial evaluation of the revenue policies of foreign sovereigns. The prosecution was brought by the Executive Branch of the United States government, which is entrusted with primary responsibility for foreign relations. Further, even though part of the criminal judgment involved restitution of the unpaid taxes, this restitution did not matter, as the government had an independent interest in criminal prosecution. The Court also rejected the argument based on the principle of avoiding giving statutes extraterritorial effects, pointing out that the criminal scheme was complete when the scheme was executed in the United States.
The Court found that Canada's right to uncollected excise taxes on liquor is "property" within the wire fraud statute's meaning. Further, the Court found that its construction of § 1343 did not derogate from the common law revenue rule, which prohibits one sovereign from enforcing its tax liabilities in the courts of another sovereign. The Court noted that this criminal prosecution did not have as its purpose the collection of revenues. Further, the prosecution was not the "indirect" enforcement of tax liability collection, and, based on the then-existing caselaw, would not have been regarded as such by the 1952 Congress which enacted the wire fraud statute. In addition, the prosecution poses little risk of the principal evil against which the revenue rule protects: judicial evaluation of the revenue policies of foreign sovereigns. The prosecution was brought by the Executive Branch of the United States government, which is entrusted with primary responsibility for foreign relations. Further, even though part of the criminal judgment involved restitution of the unpaid taxes, this restitution did not matter, as the government had an independent interest in criminal prosecution. The Court also rejected the argument based on the principle of avoiding giving statutes extraterritorial effects, pointing out that the criminal scheme was complete when the scheme was executed in the United States.
Monday, April 25, 2005
Verbitskaya: Hobbs Act convictions affirmed
In U.S. v. Verbitskaya, No. 03-11870 (April 21, 2005), the Court affirmed convictions and sentences for defendants convicted of extortion in violation of the Hobbs Act.
The Court rejected the argument that the jury was incorrectly instructed that only a "minimal" effet on interstate commerce was necessary to prove a violation of the Hobbs Act. The Court stated that this instruction was consistent the caselaw. The Court also found "legally sufficient" evidence that the different theories of extortion in question – which involved a threatened theft of paintings – interfered with interstate commerce. The Court further held that U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977) had been "discredited" by Schad v. Arizona, 501 U.S. 624 (1991), and that consequently a district court need not instruct a jury that it has to agree unanimously on which theory supported its verdict.
The Court rejected one defendant’s challenge to the sufficiency of the evidence regarding an impact on interstate commerce, pointing out that this effect was shown in the case. The Court summarily rejected a number of other challenges to the conviction, pointing out, inter alia, that comments about a defendant’s connection to the Russian mafia were not "plain error," because of evidence on this point that was part of the trial record.
The Court also rejected an ineffective assistance of counsel claim based on counsel’s absence during closing argument, pointing out that co-counsel, a "seasoned" lawyer, gave the closing.
The Court rejected a challenge to a sentence enhancement for "otherwise using" a fireram. The Court noted that a defendant grabbed a handgun and threatened to shoot the victim. Finally, the Court found that no Booker challenge could be raised, because the defendants waived this issue by failing to raise it in their initial brief on appeal.
The Court rejected the argument that the jury was incorrectly instructed that only a "minimal" effet on interstate commerce was necessary to prove a violation of the Hobbs Act. The Court stated that this instruction was consistent the caselaw. The Court also found "legally sufficient" evidence that the different theories of extortion in question – which involved a threatened theft of paintings – interfered with interstate commerce. The Court further held that U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977) had been "discredited" by Schad v. Arizona, 501 U.S. 624 (1991), and that consequently a district court need not instruct a jury that it has to agree unanimously on which theory supported its verdict.
The Court rejected one defendant’s challenge to the sufficiency of the evidence regarding an impact on interstate commerce, pointing out that this effect was shown in the case. The Court summarily rejected a number of other challenges to the conviction, pointing out, inter alia, that comments about a defendant’s connection to the Russian mafia were not "plain error," because of evidence on this point that was part of the trial record.
The Court also rejected an ineffective assistance of counsel claim based on counsel’s absence during closing argument, pointing out that co-counsel, a "seasoned" lawyer, gave the closing.
The Court rejected a challenge to a sentence enhancement for "otherwise using" a fireram. The Court noted that a defendant grabbed a handgun and threatened to shoot the victim. Finally, the Court found that no Booker challenge could be raised, because the defendants waived this issue by failing to raise it in their initial brief on appeal.
Raad: Alien smuggling mandatory minimum not cruel & unusual
In U.S. v. Raad, No. 03-15300 (April 21, 2005), the Court rejected a challenge to the imposition of a five-year mandatory minimum sentence for smuggling three or more aliens in violation of 8 U.S.C. § 1324(B)(2)(B)(iii). The Court rejected the argument that this punishmnent was "cruel and unusual" punishment under the Eighth Amendment. The Court noted that it had previously upheld mandatory minimums, and found that the five-year punishment was not "cruel and unusual" simply because it fell at the high end of the Guideline range.
Friday, April 22, 2005
Abreu: Fingerprint expert ok
In U.S. v. Abreu, No. 04-14376 (April 20, 2005), the Court affirmed a conviction for marihuana distribution, rejecting the defendant’s argument that the government’s fingerprint expert failed to satisfy the requirements of FRE 702.
The Court noted that other Circuits have found that fingerprint evidence is sufficiently reliable and meets the standards of FRE 702. Moreover, in view of the "broad latitude" of district courts in admitting evidence, the district court did not err in relying on the "general acceptance" of such evidence.
The Court noted that other Circuits have found that fingerprint evidence is sufficiently reliable and meets the standards of FRE 702. Moreover, in view of the "broad latitude" of district courts in admitting evidence, the district court did not err in relying on the "general acceptance" of such evidence.
Thursday, April 21, 2005
Rodriguez: rehearing en banc denied
In U.S. v. Rodriguez, No. 03-00217 (April 19, 2005) (no plain error under Booker where the defendant could not show he would get a lower sentence at resentencing), the 11th Circuit denied rehearing en banc. Judges Tjoflat and Barkett dissented at length from the denial of rehearing en banc, and Judge Carnes wrote a long opinion concurring in the result.
Monday, April 18, 2005
Day: Vulnerable victim enhancement
In U.S. v. Timothy Day, No. 04-10551 (April 15, 2005), the Court (Marcus, Fay & Siler b.d.) affirmed the convictions and sentences of defendants convicted of mail fraud.
The Court rejected one defendant’s challenge to a USSG § 3A1.1 vulnerable victim upward sentence adjustment. The defendant claimed that she did not know that the victims of the fraud scheme were "vulnerable." The Court pointed out that an important part of the scheme was the "reloading process," in whcih individuals who had already been victimized were contacted again and defrauded into sending more money. The Court noted that the defendant had a role in compiling the list of those who had already donated to the sham organization, and concluded that the enhancement was well-founded.
The Court rejected another defendant’s argument that the conspiracy count should have severed from the underlying fraud counts, noting that the conspiracy charged a single conspiracy, which gave rise to the fraud counts charged in the indictment.
The Court also found no error in the district court’s initiative in getting a government witness to clarify confusing testimony.
The Court summarily rejected the argument that a defendant should have been allowed a resentencing after the district court did not impose a vulnerable victim enhancement on one co-defendant.
The Court rejected one defendant’s challenge to a USSG § 3A1.1 vulnerable victim upward sentence adjustment. The defendant claimed that she did not know that the victims of the fraud scheme were "vulnerable." The Court pointed out that an important part of the scheme was the "reloading process," in whcih individuals who had already been victimized were contacted again and defrauded into sending more money. The Court noted that the defendant had a role in compiling the list of those who had already donated to the sham organization, and concluded that the enhancement was well-founded.
The Court rejected another defendant’s argument that the conspiracy count should have severed from the underlying fraud counts, noting that the conspiracy charged a single conspiracy, which gave rise to the fraud counts charged in the indictment.
The Court also found no error in the district court’s initiative in getting a government witness to clarify confusing testimony.
The Court summarily rejected the argument that a defendant should have been allowed a resentencing after the district court did not impose a vulnerable victim enhancement on one co-defendant.
Friday, April 15, 2005
Custer revisited
In U.S. v. Custer, No. 04-14111 (April 13, 2005), the Court (Tjoflat, Dubina, Marcus), on a petition for panel rehearing, the Court vacated Custer’s sentence and remanded for resentencing consistent with the Supreme Court’s opinion in Booker. The Court noted that its prior decision rejecting Custer’s challenge to his sentence came down shortly before the Supreme Court decided Booker. The Court noted that Custer had raised Booker-type challenges to his sentence in his initial brief, had preserved the issue in the district court, and not waived the issue in his plea agreement.
Thursday, April 07, 2005
Orduno-Mireles: Almendarez-Torres still good law
In U.S. v. Orduno-Mireles, No. 04-12630 (April 6, 2005), the Court (Birch, Barkett, Marcus) rejected post-Booker challenges to a defendant’s 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A), after a conviction for illegal re-entry after being deported subsequent to an aggravated felony conviction.
The Court rejected the argument that the defendant’s prior convictions for unlawful sexual activity with certain minors, and burglary of a dwellin, can be used to support a 16-level enhancement. The Court noted that these offenses are specifically listed in the Guideline as qualifying offenses. The Court rejected the argument that the vacatur of one conviction after Orduno-Mireles’ return to the United States meant that it should not count for enhancement purposes. The Court pointed out that the Guideline was worded to take account of convictions prior to deportation, and that it did not matter whether the conviction was subsequently vacated.
The Court also rejected the argument that the fact of prior conviction should have been submitted to a jury. The Court pointed out that Almendarez-Torres remains good law. The Court added that the recent Shephard v. U.S. case did not alter this result, because Shephard involved the resolution of disputed issues of fact, and, here, the facts underlying the prior convictions were not in dispute.
In a lengthy footnote, the Court noted that there was no "plain error" in the imposition of mandatory Guideline enhancements, post-Booker, because the sentencing court declined a motion for downward departure, thereby undermining a showing (required in the third prong of Booker plain error analysis in the Eleventh Circuit) of a reasonable probability of a different result if the Guidelines had been applied in an advisory fashion. [Note: Given the strict pre-Booker limitations on obtaining downward departures, it seems questionable whether this is a reliable indicator of a different result under an advisory regime. In this case, one prior qualifying conviction was vacated, and the district court might have been more concerned about this vacatur had it realized that the Guideline language which made this vacatur irrelevant was not binding.]
The Court rejected the argument that the defendant’s prior convictions for unlawful sexual activity with certain minors, and burglary of a dwellin, can be used to support a 16-level enhancement. The Court noted that these offenses are specifically listed in the Guideline as qualifying offenses. The Court rejected the argument that the vacatur of one conviction after Orduno-Mireles’ return to the United States meant that it should not count for enhancement purposes. The Court pointed out that the Guideline was worded to take account of convictions prior to deportation, and that it did not matter whether the conviction was subsequently vacated.
The Court also rejected the argument that the fact of prior conviction should have been submitted to a jury. The Court pointed out that Almendarez-Torres remains good law. The Court added that the recent Shephard v. U.S. case did not alter this result, because Shephard involved the resolution of disputed issues of fact, and, here, the facts underlying the prior convictions were not in dispute.
In a lengthy footnote, the Court noted that there was no "plain error" in the imposition of mandatory Guideline enhancements, post-Booker, because the sentencing court declined a motion for downward departure, thereby undermining a showing (required in the third prong of Booker plain error analysis in the Eleventh Circuit) of a reasonable probability of a different result if the Guidelines had been applied in an advisory fashion. [Note: Given the strict pre-Booker limitations on obtaining downward departures, it seems questionable whether this is a reliable indicator of a different result under an advisory regime. In this case, one prior qualifying conviction was vacated, and the district court might have been more concerned about this vacatur had it realized that the Guideline language which made this vacatur irrelevant was not binding.]
Paz: Booker error not Harmless
In U.S. v. Paz, 2005 WL 757876 (Apr. 5, 2005), the Court (Tjoflat, Anderson, Pryor), in its first post-Booker application of harmless error review of a sentence, vacated a sentence and remanded for resentencing because the district court at sentencing stated that, were the Guidelines not mandatory, it would impose a lesser sentence.
Tuesday, April 05, 2005
Johnson AEDPA requires due diligence
In Johnson v. U.S., No. 03-9865 (Apr. 4, 2005), the Supreme Court held that, in a case of a prisoner’s collateral attack on a federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated, the one-year statute of limitations of 28 U.S.C. § 2255 ¶ 6 begins to run when a prisoner receives notice of the order vacating the conviction, provided that the prisoner sought the vacatur with due diligence in state court after entry of the federal judgment with the enhanced sentence.
In so ruling, the Supreme Court rejected the Eleventh Circuit’s test, which had dismissed the prisoner’s claim on the ground that that the state court order did not start the limitations period. However, the Supreme Court ultimutely upheld the decision of the Eleventh Circuit, finding that Johnson had not acted with due diligence in seeking vacatur of his prior conviction, and therefore finding that his § 2255 petition was time-barred.
In so ruling, the Supreme Court rejected the Eleventh Circuit’s test, which had dismissed the prisoner’s claim on the ground that that the state court order did not start the limitations period. However, the Supreme Court ultimutely upheld the decision of the Eleventh Circuit, finding that Johnson had not acted with due diligence in seeking vacatur of his prior conviction, and therefore finding that his § 2255 petition was time-barred.
Friday, March 25, 2005
Byrd: Defendant can't testify after govt rebuttal
In U.S. v. Byrd, No. 04-12188 (March 25, 2005), the Court (Carnes, Hull, Wilson), affirmed convictions for armed bank robbery, use of a firearm during the commission of a bank robbery, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 2113(a), (d), 924(c) & 922(g).
The Court held that the trial court did not abuse its discretion when it refused to allow the defendant to testify after the close of the government’s rebuttal case, and the defendant voluntarily waived his right to testify in his defense (but later changed his mind and wanted to testify. The Court agreed with other Circuits to have considered the issue, and noted that "reasonable rules" must govern trial proceedings. The Court recognized that Byrd asked to testify before closing arguments, and that his testimony was of "inherent significance." However, allowing Byrd to testify could have prejudiced the prosecution, because he should not have been able to take the stand and "say whatever he wanted to without much fear of anybody being around to rebut it." Moreover, having heard the rebuttal witnesses, Byrd could manufacture explanations, "smoothing over to some extent the discrepancies between the testimony of his alibi witnesses and the government’s rebuttal witness."
Finally, the only explanation Byrd gave was that he changed his mind. This was not a valid reason for not testifying at the proper time.
The Court summarily rejected Byrd’s challenge to the sufficiency of the evidence, noting, among other things: "The robber took $4,680 from the bank, and the police found $4,650 in a box under Byrd’s bed."
The Court held that the trial court did not abuse its discretion when it refused to allow the defendant to testify after the close of the government’s rebuttal case, and the defendant voluntarily waived his right to testify in his defense (but later changed his mind and wanted to testify. The Court agreed with other Circuits to have considered the issue, and noted that "reasonable rules" must govern trial proceedings. The Court recognized that Byrd asked to testify before closing arguments, and that his testimony was of "inherent significance." However, allowing Byrd to testify could have prejudiced the prosecution, because he should not have been able to take the stand and "say whatever he wanted to without much fear of anybody being around to rebut it." Moreover, having heard the rebuttal witnesses, Byrd could manufacture explanations, "smoothing over to some extent the discrepancies between the testimony of his alibi witnesses and the government’s rebuttal witness."
Finally, the only explanation Byrd gave was that he changed his mind. This was not a valid reason for not testifying at the proper time.
The Court summarily rejected Byrd’s challenge to the sufficiency of the evidence, noting, among other things: "The robber took $4,680 from the bank, and the police found $4,650 in a box under Byrd’s bed."
Thursday, March 24, 2005
Peters: Sale of firearm to convicted felon
In U.S. v. Peters, No. 04-11658 (March 24, 2005), the Court (Marcus, Fay, Siler b.d.) affirmed a convcition for sale of a firearm and ammunition to a convicted felon, in violation of 18 U.S.C. § 922(d)(1).
The Court rejected a sufficiency of the evidence challenge. The Court found that, based on the exchanges between the seller and a confidential informant, the seller was told by the buyer of the firearms that the buyer was a convicted felon. This constituted sufficient evidence from which a jury could find that Peters had reasonable cause to believe that his buyer had a prior felony conviction.
The Court also rejected a Commerce Clause challenge to the federal statute which criminalizes the sale of a firearm to a convicted felon. The Court noted that the sale of a firearm is "economic activity," and therefore fell within Congress’ Commerce Clause power. Further, just as the Court had held that a felon’s possession of a firearm can be made a federal crime, likewise the sale of a firearm to a convicted felon can be a federal crime.
The Court rejected a sufficiency of the evidence challenge. The Court found that, based on the exchanges between the seller and a confidential informant, the seller was told by the buyer of the firearms that the buyer was a convicted felon. This constituted sufficient evidence from which a jury could find that Peters had reasonable cause to believe that his buyer had a prior felony conviction.
The Court also rejected a Commerce Clause challenge to the federal statute which criminalizes the sale of a firearm to a convicted felon. The Court noted that the sale of a firearm is "economic activity," and therefore fell within Congress’ Commerce Clause power. Further, just as the Court had held that a felon’s possession of a firearm can be made a federal crime, likewise the sale of a firearm to a convicted felon can be a federal crime.
Adams: 10-year window of prior criminal conviction
In U.S. v. Adams, No. 03-15111 (March 23, 2005), the Court (Marcus, Fay, Siler b.d.) held that a prior conviction was within the 10-year window of USSG § 4A1.2(e)(2) for purposes of assessing a criminal history point, even though the prior conviction was based on an offense which occurred more than 10 years before the commencement of the offense of conviction. The Court noted that the Guidelines provide that the 10 year window goes back to the date of sentencing, not the date of the offense. Further, it did not matter that the sentencing was postponed because of a court backlog. The plain language of the Guideline did not recognize such an exception.
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