In U.S. v. Valnor, No. 05-15701 (June 6, 2006), the Court rejected a reasonableness challenge to a 28-month sentence imposed on a defendant convicted of violating 18 U.S.C. § 1028(f) by conspiring to produce identification documents without lawful authority.
Valnor’s offense consisted of issuing fraudulent driver’s licences to illegal immigrants in the South Florida area. The 28-month sentence reflected a downward departure for cooperating with the government’s investigation, but also an upward departure because the crime involved was more serious than the Guideline range indicated, because identification documents are important to the country’s security.
Reviewing the sentence, post-Booker, for reasonableness, the Court found that the district court properly addressed the seriousness of the offense, consistent with 18 U.S.C. § 3553(a)(2), and the need to protect society from middlemen like Valnor. Further, the sentence was well below the statutory maximum. "The district court properly fulfilled its role in considering the Guidelines, but found the Guidelines range to be inadequate to accomplish the statutory goals of providing adequate deterrence and protecting the public from further crimes."
Friday, June 09, 2006
Ortiz-Delgado: Lewd Act On Minor Qualifies as Crime of Violence
In U.S. v. Ortiz-Delgado, No. 05-15466 (June 7, 2006), the Court affirmed treating a defendant’s prior California convictions for attempted lewd acts upon a child and for lewd acts upon a child as "crimes of violence" for purposes of imposing a 16-level sentence enhancement on a defendant convicted of illegal re-entry.
Noting that such crimes involve psychological injury, and the inherent risk of injury to a child of such crimes, the Court sided with all other circuits to have considered the issue.
The Court also rejected Ortiz-Delgado’s challenge to the reasonableness of his sentence. Ortiz-Delgado argued that he re-entered the United States to support a child that was living there. But the Court affirmed the district court’s reasoning that, as a repeat child sex offender, Ortiz-Delgado’s punishment should be sufficient to protect society.
Noting that such crimes involve psychological injury, and the inherent risk of injury to a child of such crimes, the Court sided with all other circuits to have considered the issue.
The Court also rejected Ortiz-Delgado’s challenge to the reasonableness of his sentence. Ortiz-Delgado argued that he re-entered the United States to support a child that was living there. But the Court affirmed the district court’s reasoning that, as a repeat child sex offender, Ortiz-Delgado’s punishment should be sufficient to protect society.
Thursday, June 01, 2006
Gamble: No Faretta violation precludes death penalty
In Gamble v. Sec’y Dep’t Corrections, No. 05-14334 (May 31, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1991 murder.
Applying the deferential AEDPA standard of review, the Court found no error in the Florida Supreme Court’s determination that there was no Farretta violation in the trial court’s failure to conduct an inquiry into the defendant’s wish to represent himself, because the defendant, in fact, never asked to represent himself. Instead, he asked for substitute counsel. The Court agreed with the Florida Supreme Court that that since there was no merit to the Farretta issue, appellate counsel had not been ineffective in failing to raise it on direct appeal. Finally, the Court found no ineffectiveness in counsel’s failure, at the penalty phase, to argue that the murder was not committed for pecuniary gain (an aggravator). The Court pointed out that the jury’s contrary verdict on this point at the guilt phase made such an argument "preposterous."
Applying the deferential AEDPA standard of review, the Court found no error in the Florida Supreme Court’s determination that there was no Farretta violation in the trial court’s failure to conduct an inquiry into the defendant’s wish to represent himself, because the defendant, in fact, never asked to represent himself. Instead, he asked for substitute counsel. The Court agreed with the Florida Supreme Court that that since there was no merit to the Farretta issue, appellate counsel had not been ineffective in failing to raise it on direct appeal. Finally, the Court found no ineffectiveness in counsel’s failure, at the penalty phase, to argue that the murder was not committed for pecuniary gain (an aggravator). The Court pointed out that the jury’s contrary verdict on this point at the guilt phase made such an argument "preposterous."
McGill: DUI qualifies as "crime of violence"
In U.S. v. McGill, No. 05-10285 (June 1, 2005), the Court (Dubina, Marcus, Cox) held that prior Alabama DUI convictions qualified as "crimes of violence" for the purpose of assigning a higher base offense level under USSG § 2K2.1(a)(2) to a sentence for being a felon in possession of a firearm.
The Court noted that the Guideline define a "crime of violence" as one punishable by more than a year of imprisonment and, inter alia, which "otherwise involves conduct that presents a serious potential risk of physical injury to another." The Court found that driving intoxicated met this definition. The Court also found that its decision was not controlled by Leocal v. Ashcroft, 542 U.S. 1 (2004), which did not involve a DUI categorization under the "crime of violence" definition in the Guidelines. The Court also noted that Alabama makes a felony the fourth and subsequent DUIs, and thus McGill’s prior DUIs counted as qualifying felonies because he had five prior DUIs. The Court also rejected the argument that mere control over the vehicle, without its operation, would make a DUI less of a "crime of violence" for sentence-enhancement purposes.
The Court noted that the Guideline define a "crime of violence" as one punishable by more than a year of imprisonment and, inter alia, which "otherwise involves conduct that presents a serious potential risk of physical injury to another." The Court found that driving intoxicated met this definition. The Court also found that its decision was not controlled by Leocal v. Ashcroft, 542 U.S. 1 (2004), which did not involve a DUI categorization under the "crime of violence" definition in the Guidelines. The Court also noted that Alabama makes a felony the fourth and subsequent DUIs, and thus McGill’s prior DUIs counted as qualifying felonies because he had five prior DUIs. The Court also rejected the argument that mere control over the vehicle, without its operation, would make a DUI less of a "crime of violence" for sentence-enhancement purposes.
Aguilar-Ortiz: Solicitation of $30 crack not "drug trafficking"
In U.S. v. Aguilar-Ortiz, No. 05-12591 (May 31, 2006), the Court (Tjoflat, Barkett, Goodwin b.d.) vacated a sentence, holding that the district court erred in its Guideline analysis when it treated the defendant’s prior Florida state conviction for solicitation to deliver cocaine as a "drug trafficking offense" for purposes of imposing a 12-level enhancement for being found guilty in the United States after deportation.
The Court noted that under Shepard v. U.S., 544 U.S. 13 (2005), when a court determines whether a prior conviction qualifies for a sentencing enhancement, it may rely on the charging document, written plea agreement, transcript of plea colloquy, and explicit judicial fact-finding. The Court noted that not all Florida solicitation offenses qualify as drug trafficking offenses, because some involve a small amount of drugs for personal use. Examining Aguilar-Ortiz’ prior conviction, the Court concluded that his solicitation offense, which involved the attempted purchase of $30 of crack cocaine from an undercover agent, was akin to attempted possession without intent to distribute. Hence, the conviction did not qualify as a drug trafficking offense, and was not a correct basis for imposing the 12-level enhancement.
The Court noted that under Shepard v. U.S., 544 U.S. 13 (2005), when a court determines whether a prior conviction qualifies for a sentencing enhancement, it may rely on the charging document, written plea agreement, transcript of plea colloquy, and explicit judicial fact-finding. The Court noted that not all Florida solicitation offenses qualify as drug trafficking offenses, because some involve a small amount of drugs for personal use. Examining Aguilar-Ortiz’ prior conviction, the Court concluded that his solicitation offense, which involved the attempted purchase of $30 of crack cocaine from an undercover agent, was akin to attempted possession without intent to distribute. Hence, the conviction did not qualify as a drug trafficking offense, and was not a correct basis for imposing the 12-level enhancement.
Wednesday, May 24, 2006
Arias-Izquierdo: Cuban Aircraft Hijacking Convictions Affirmed
In U.S. v. Arias-Izquierdo, No. 04-12034 (May 22, 2006), the Court affirmed aircraft piracy convictions for six Cuban defendants who diverted an aircraft bound for Havana to Key West, Florida, rejecting each of the defendants’ separate challenge.
As to one defendant, the Court rejected the argument that there was insufficient evidence to support his conviction for aiding and abetting the hijacking, pointing to the testimony that this defendant walked through the aircraft holding a knife or an axe, and exclaimed to passengers during the flight that they should remain seated and quiet.
As to a second defendant, the Court rejected the argument that the district court abused its discretion in refusing to allow cross-examination of government witnesses about their membership in the Communist Party in Cuba. The district court disallowed these questions because it concluded that their purpose was to prejudice anti-Communist members of the jury. The Court noted that the defendant was allowed to question witnesses, inter alia, about whether they received benefits from the Cuban government for their testimony. The Court also noted that questions about Communist Party affiliation would not have been probative of their truthfulness. The Court found no abuse of discretion.
As to a third defendant, the Court rejected the argument that he was not guilty of aircraft piracy because he only acted to secure the aircraft steward, not the pilot. The government proved that he used intimidation and threats of violence to maintain control over the passenger cabin of the aircraft, in a manner meant to influence the flight plan and the pilot. This sufficed to sustain the conviction.
The Court agreed with the defendant that a summary of flight information, prepared by an employee of Cubana Airlines for the prosecution, was not admissible as a "business record" under FRE 803(6). The document was not prepared at or near the time of the event it recorded. The Court also noted that the government did not satisfy FRE 1006, because the underlying records supporting the summary were not provided to the defense. Thus, the district court erred in allowing the document to be admitted. However, in light of the strength of the government’s other evidence, the error was harmless.
The Court rejected the argument that the district court should have instructed the jury that two of the counts charged in the indictment were "lesser included offenses." The Court instruced the jury to consider each count separately. The jury’s verdict showed that it followed this instruction, as it did not convict all defendants on all counts. Thus, the requested instruction was properly denied.
The Court rejected the argument that 20-year sentence was "cruel and unusual punishment." "The hijacking of an aircraft is an extraordinarily dangerous undertaking," the Court noted. Further, the fact that the defendant was fleeing a repressive Cuban government was not a consideration.
As to a fifth defendant, the Court rejected the argument that the jury should have been instructed that "knowingly" meant "not because of . . . [an] innocent reason." The Court found that this language would have misled the jury into thinking that a desire to leave Cuba is an innocent reason for hijacking an aircraft.
The Court found no error in denying post-trial discovery of a Cuban government witness who defected to the United States shortly after the trial. The Court noted that the defense did not show that the witness would have changed his story.
Finally, the Court found Booker error in the district court’s imposition of a two-level obstruction of justice enhancement under a mandatory Guidelines regime. The Court pointed out that the district court at sentencing said it was "reluctant" to impose the enhancement. This indicated a probability of a different result on resentencing, and justified a remand.
As to one defendant, the Court rejected the argument that there was insufficient evidence to support his conviction for aiding and abetting the hijacking, pointing to the testimony that this defendant walked through the aircraft holding a knife or an axe, and exclaimed to passengers during the flight that they should remain seated and quiet.
As to a second defendant, the Court rejected the argument that the district court abused its discretion in refusing to allow cross-examination of government witnesses about their membership in the Communist Party in Cuba. The district court disallowed these questions because it concluded that their purpose was to prejudice anti-Communist members of the jury. The Court noted that the defendant was allowed to question witnesses, inter alia, about whether they received benefits from the Cuban government for their testimony. The Court also noted that questions about Communist Party affiliation would not have been probative of their truthfulness. The Court found no abuse of discretion.
As to a third defendant, the Court rejected the argument that he was not guilty of aircraft piracy because he only acted to secure the aircraft steward, not the pilot. The government proved that he used intimidation and threats of violence to maintain control over the passenger cabin of the aircraft, in a manner meant to influence the flight plan and the pilot. This sufficed to sustain the conviction.
The Court agreed with the defendant that a summary of flight information, prepared by an employee of Cubana Airlines for the prosecution, was not admissible as a "business record" under FRE 803(6). The document was not prepared at or near the time of the event it recorded. The Court also noted that the government did not satisfy FRE 1006, because the underlying records supporting the summary were not provided to the defense. Thus, the district court erred in allowing the document to be admitted. However, in light of the strength of the government’s other evidence, the error was harmless.
The Court rejected the argument that the district court should have instructed the jury that two of the counts charged in the indictment were "lesser included offenses." The Court instruced the jury to consider each count separately. The jury’s verdict showed that it followed this instruction, as it did not convict all defendants on all counts. Thus, the requested instruction was properly denied.
The Court rejected the argument that 20-year sentence was "cruel and unusual punishment." "The hijacking of an aircraft is an extraordinarily dangerous undertaking," the Court noted. Further, the fact that the defendant was fleeing a repressive Cuban government was not a consideration.
As to a fifth defendant, the Court rejected the argument that the jury should have been instructed that "knowingly" meant "not because of . . . [an] innocent reason." The Court found that this language would have misled the jury into thinking that a desire to leave Cuba is an innocent reason for hijacking an aircraft.
The Court found no error in denying post-trial discovery of a Cuban government witness who defected to the United States shortly after the trial. The Court noted that the defense did not show that the witness would have changed his story.
Finally, the Court found Booker error in the district court’s imposition of a two-level obstruction of justice enhancement under a mandatory Guidelines regime. The Court pointed out that the district court at sentencing said it was "reluctant" to impose the enhancement. This indicated a probability of a different result on resentencing, and justified a remand.
Thursday, May 18, 2006
Love: Invited Supervised Release Error
In U.S. v. Love, No. 05-11141 (May 18, 2006), the Court held that at sentencing the defendant "invited" any error in his sentence, and was therefore barred from challenging on appeal the legality of a five-year term imposed for his conviction of contempt, in violation of 18 U.S.C. § 401(3).
The defendant was held in contempt for violating a temporary restraining order. At sentencing, the defendant did not object to the PSI determination that the court could impose a term of supervised release of up to five years. Defense counsel repeatedly requested that the court impose a sentence of time served, followed by a term of supervised release. The Court sentenced Love to 45 days’ incarceration followed by five years of supervised release.
On appeal, the defendant argued that because his contempt conviction did not qualify as a "felony or misdemeanor" under the supervised release statute, 18 U.S.C. § 3583(a), or, alternatively, because his contempt conviction counted as a misdemeanor, and therefore was punishable by only up to one year of supervised release, the five year term of supervised release was invalid.
The Court declined to reach the merits of Love’s arguments, finding that any error was "invited" at sentencing, when defense counsel repeatedly agreed to a term of supervised release.
The defendant was held in contempt for violating a temporary restraining order. At sentencing, the defendant did not object to the PSI determination that the court could impose a term of supervised release of up to five years. Defense counsel repeatedly requested that the court impose a sentence of time served, followed by a term of supervised release. The Court sentenced Love to 45 days’ incarceration followed by five years of supervised release.
On appeal, the defendant argued that because his contempt conviction did not qualify as a "felony or misdemeanor" under the supervised release statute, 18 U.S.C. § 3583(a), or, alternatively, because his contempt conviction counted as a misdemeanor, and therefore was punishable by only up to one year of supervised release, the five year term of supervised release was invalid.
The Court declined to reach the merits of Love’s arguments, finding that any error was "invited" at sentencing, when defense counsel repeatedly agreed to a term of supervised release.
Tuesday, May 16, 2006
Shannon: Imprisonment during 15-year window
In U.S. v. Shannon, No. 05-13491 (May 16, 2006), the Court rejected the defendant’s argument that his two prior convictions should not count as prior felony convictions for purposes of the career offender classification of USSG § 4B1.1. Although Shannon committed the prior offenses outside the 15-year window preceding the offense of conviction,m the convictions counted because the sentences imposed for those convictions resulted in Shannon being incarcerated during some part of the 15-year period.
The Court noted that the Guidelines provide that a prior conviction is counted when a prior sentence resulted in the defendant being incarcerated during any part of the 15-year period. Shannon had been convicted twice prior to the 15-year period, but, after revocation of probation on these convictions was resentenced and as a result served a term of incarceration for the two prior convictions during the 15-year window. The Court rejected Shannon’s challenge to the "technical" application of the Guidelines.
The Court noted that the Guidelines provide that a prior conviction is counted when a prior sentence resulted in the defendant being incarcerated during any part of the 15-year period. Shannon had been convicted twice prior to the 15-year period, but, after revocation of probation on these convictions was resentenced and as a result served a term of incarceration for the two prior convictions during the 15-year window. The Court rejected Shannon’s challenge to the "technical" application of the Guidelines.
Monday, May 15, 2006
Segura-Baltazar: No Privacy in Garbage
In U.S. v. Segura-Baltazar, No. 05-12705 (May 12, 2006), the Court upheld the legality of the search of the defendant’s trash outside his home, upheld the legality of a "no-knock" search, and affirmed the imposition of a mandatory sentence based in part on the weight of the carrier in which methaphantamine
The police, with the aid of the local trash collector over a period of several months, obtained the garbage bags which were left for collection outside the home of a suspected drug trafficker. Some of the bags were left on the curb, some were left closer to the house, at a place where they were habitually picked up for disposal by the trash collector. In the garbage, the police found two different magazines for semiautomatic handguns, an empty box of 12-gauge shotgun shells, one live round of .45 caliber ammunition, and empty boxes that likely once contained surveillance cameras and monitors that have the ability to see in low-light conditions.
Citing California v. Greenwood, 486 U.S. 35 (1989), the Court held that the defendant had no reasonable expectation of privacy in trash bags left outside his home. While the bags left by the house, no on the curb, presented a "closer" question, the Court noted that bags left in this spot were habitually picked up by the trash collector, diminishing the privacy expectation.
The Court also found no Fourth Amendment in the "no knock" entry into the home. Though noting the law in another circuit that the presence of guns in a home does not standing alone justify a "no knock" entry, here the presence of guns and surveillance cameras easily provided the reasonable suspicion necessary to support a "no knock" entry.
Finally, as to sentencing, the Court rejected the argument that the weight of the "cutting agent" for methamphetamine should not have been counted in determining the weight of drugs that was used as the basis for imposing a ten-year mandatory sentence. Citing Chapman v. U.S., 500 U.S. 453, the Court noted that Congress based sentences on the "mixture" of a substance containing a detectable amount of drugs. This indicated that the cutting agent should be included. The Court distinguished U.S. v. Jackson, 115 F.3d 843 (11th Cir. 1997), because the sugar that was not counted as cocaine in that case was more like a container than a carrier.
The police, with the aid of the local trash collector over a period of several months, obtained the garbage bags which were left for collection outside the home of a suspected drug trafficker. Some of the bags were left on the curb, some were left closer to the house, at a place where they were habitually picked up for disposal by the trash collector. In the garbage, the police found two different magazines for semiautomatic handguns, an empty box of 12-gauge shotgun shells, one live round of .45 caliber ammunition, and empty boxes that likely once contained surveillance cameras and monitors that have the ability to see in low-light conditions.
Citing California v. Greenwood, 486 U.S. 35 (1989), the Court held that the defendant had no reasonable expectation of privacy in trash bags left outside his home. While the bags left by the house, no on the curb, presented a "closer" question, the Court noted that bags left in this spot were habitually picked up by the trash collector, diminishing the privacy expectation.
The Court also found no Fourth Amendment in the "no knock" entry into the home. Though noting the law in another circuit that the presence of guns in a home does not standing alone justify a "no knock" entry, here the presence of guns and surveillance cameras easily provided the reasonable suspicion necessary to support a "no knock" entry.
Finally, as to sentencing, the Court rejected the argument that the weight of the "cutting agent" for methamphetamine should not have been counted in determining the weight of drugs that was used as the basis for imposing a ten-year mandatory sentence. Citing Chapman v. U.S., 500 U.S. 453, the Court noted that Congress based sentences on the "mixture" of a substance containing a detectable amount of drugs. This indicated that the cutting agent should be included. The Court distinguished U.S. v. Jackson, 115 F.3d 843 (11th Cir. 1997), because the sugar that was not counted as cocaine in that case was more like a container than a carrier.
Thursday, May 11, 2006
Cenna: Supervised release doesn't exceed statutory maximum
In U.S. v. Cenna, No. 05-14011 (May 11, 2006), the Court rejected the argument that the imposition of a one-year term of supervised release in addition to the maximum termof one-year’s incarceration under 21 U.S.C. § 844(a), for misdemeanor possession of marihuana and heroin, was illegal, because it violated the statutory maximum.
The Court noted that its caselaw, prior to Johnson v. U.S., 529 U.S. 694 (2000), held that courts can order supervised release in addition to the maximum term of imprisonment available by statute. The Court rejected Cenna’s argument that Johnson changed this result, joining other circuits to have so held.
The Court noted that its caselaw, prior to Johnson v. U.S., 529 U.S. 694 (2000), held that courts can order supervised release in addition to the maximum term of imprisonment available by statute. The Court rejected Cenna’s argument that Johnson changed this result, joining other circuits to have so held.
Izquierdo: Incompetency to Withdraw Guilty Plea
In U.S. v. Izquierdo, No. 04-14641 (May 10, 2006), the Court affirmed the denial of a motion to withdraw a guilty plea based on incompetency.
After pleading guilty to cocaine-trafficking charges, the defendant filed a motion for a psychological evaluation, and attached an expert report which diagnosed him as mentally incompetent. A competency test was ordered, and it also concluded that Izquierdo was incompetent. However, after this report was filed an inmate at Izquierdo’s prison reported that Izquierdo told him that he planned to act crazy in order to be found incompetent. A second competency report was ordered, and it concluded that Izquierdo was competent, and that he had misled the psychologist earlier.
The Court noted that, although the government ordinarily bears the burden of proving a person’s competency to stand trial on criminal charges, here Izquierdo was moving to withdraw his guilty plea. In this circumstance, Izquierdo bore the burden of showing incompetency. The Court found that the district court did not abuse its discretion in giving greater weight to the second competency report, and in therefore denying Izquierdo’s motion to withdraw his guilty plea based on his incompetence.
After pleading guilty to cocaine-trafficking charges, the defendant filed a motion for a psychological evaluation, and attached an expert report which diagnosed him as mentally incompetent. A competency test was ordered, and it also concluded that Izquierdo was incompetent. However, after this report was filed an inmate at Izquierdo’s prison reported that Izquierdo told him that he planned to act crazy in order to be found incompetent. A second competency report was ordered, and it concluded that Izquierdo was competent, and that he had misled the psychologist earlier.
The Court noted that, although the government ordinarily bears the burden of proving a person’s competency to stand trial on criminal charges, here Izquierdo was moving to withdraw his guilty plea. In this circumstance, Izquierdo bore the burden of showing incompetency. The Court found that the district court did not abuse its discretion in giving greater weight to the second competency report, and in therefore denying Izquierdo’s motion to withdraw his guilty plea based on his incompetence.
Tuesday, May 09, 2006
Scott: Not yet "found" in the U.S.
In U.S. v. Scott, No. 05-13276 (May 8, 2006), the Court (Anderson, Fay & Siler b.d.) held that the sentencing court erroneously added one criminal history point under USSG § 4A1.1(e) to Scott’s criminal history. This Guideline provides for a one-point offense level enhancement if the defendant committed the offense (in this case, illegal reentry) less than than two years after release from a sentence. The district court found that Scott illegally rentered the U.S. while he was serving a 180-day State sentence for probation violation.
Reversing, the Court found that Scott was "found" in the U.S., i.e., violated the illegal reentry statute, at the time he was initially interviewed by federal authorities. This interview occurred before his incarceration on State charges. At that timehe was not yet under a sentence of imprisonment. Therefore, the § 4A1.1(e) enhancement was inapplicable.
Reversing, the Court found that Scott was "found" in the U.S., i.e., violated the illegal reentry statute, at the time he was initially interviewed by federal authorities. This interview occurred before his incarceration on State charges. At that timehe was not yet under a sentence of imprisonment. Therefore, the § 4A1.1(e) enhancement was inapplicable.
Friday, May 05, 2006
Alvarez-Coria: Knowledge of Drug Type is "immaterial"
In U.S. v. Alvarez-Corria, No. 05-15683 (May 4, 2006), the Court affirmed an 86-month sentence imposed on a cocaine and methamphetamine-trafficking defendant.
The Court rejected the argument that the defendant was entitled to a minor role sentence reduction. The Court pointed out that the defendant was only held accountable for the drugs that he admitted conspiring to transport. His actual and relevant conduct were therefore the same and he did not play a minor role in that conduct.
Further, the defendant was as culpable as some of his accomplices. He gave his truck as security for the transaction. The higher-ups in the conspiracy used him to coordinate the movements of others. And he was, most importantly, entrusted to drive away with the drugs at the end of the transaction.
The Court rejected the argument that the defendant thought cocaine, not methamphetamine, was being transported, and therefore should only be punished for cocaine. The Court noted that the defendant’s knowledge of the type of drug involved was "immaterial."
The Court rejected the argument that the defendant was entitled to a minor role sentence reduction. The Court pointed out that the defendant was only held accountable for the drugs that he admitted conspiring to transport. His actual and relevant conduct were therefore the same and he did not play a minor role in that conduct.
Further, the defendant was as culpable as some of his accomplices. He gave his truck as security for the transaction. The higher-ups in the conspiracy used him to coordinate the movements of others. And he was, most importantly, entrusted to drive away with the drugs at the end of the transaction.
The Court rejected the argument that the defendant thought cocaine, not methamphetamine, was being transported, and therefore should only be punished for cocaine. The Court noted that the defendant’s knowledge of the type of drug involved was "immaterial."
Owens: Prior Firearm Possession Qualifies as Crime of Violence
In U.S. v. Owens, No. 05-10753 (May 4, 2006), the Court affirmed the imposition of a sentence enhancement based on a finding that a prior conviction for possession of an unregistered firearm constituted a "crime of violence."
The defendant was convicted in 1995 of possession of an unregistered rifle with a seven-inch barrel, in violation of the National Firearms Act, 26 U.S.C. § 5681(d). In 2004, the defendant was convicted of being a felon in possession of a firearm. This offense calls for a Guideline enhancement if the prior felony was a "crime of violence."
Rejecting the argument that the prior felony was not a crime of violence, the Court aligned itself with other circuits which have held that a § 5681 conviction qualifies as a crime of violence. The possession of firearms is outlawed by § 5681 because of the "virtual inevitability that such possession will result in violence." The Court also rejected the defendant’s reliance on U.S. v. Spell, 44 F.3d 936 (11th Cir. 1995), which held that a court could look at the circumstances of the predicate offense to determine if it qualifies as a crime of violence. Spell only applies if there is an "ambiguity" about the nature of the prior conviction. No ambiguity arose here.
The defendant was convicted in 1995 of possession of an unregistered rifle with a seven-inch barrel, in violation of the National Firearms Act, 26 U.S.C. § 5681(d). In 2004, the defendant was convicted of being a felon in possession of a firearm. This offense calls for a Guideline enhancement if the prior felony was a "crime of violence."
Rejecting the argument that the prior felony was not a crime of violence, the Court aligned itself with other circuits which have held that a § 5681 conviction qualifies as a crime of violence. The possession of firearms is outlawed by § 5681 because of the "virtual inevitability that such possession will result in violence." The Court also rejected the defendant’s reliance on U.S. v. Spell, 44 F.3d 936 (11th Cir. 1995), which held that a court could look at the circumstances of the predicate offense to determine if it qualifies as a crime of violence. Spell only applies if there is an "ambiguity" about the nature of the prior conviction. No ambiguity arose here.
Garcia: DEA expert testimony admissible
In U.S. v. Garcia, No. 04-14763 (May 3, 2006), the Court affirmed drug trafficking convictions and rejected the defendant’s challenges to the admission of expert testimony evidence concerning the secret codes of drug traffickers.
The recorded conversations introduced in evidence at trial included references, inter alia, to "shirts." The government introduced expert testimony of a DEA agent, who had spoken to a testifying government informant, and who testified that the defendants were speaking, as Mexican drug dealers do, in code, and that the word "shirts" referred to shipments of "cocaine."
The Court held that it was not an abuse of discretion to admit the expert testimony concernng the practices of drug organizations. The DEA agent in question had been involved in at least 50 prior drug investigations. Further, the testimony was highly probative as it explained how the evidence showed that the defendants were advancing the goals of the drug trafficking organization.
The Court also held that no Confrontation Clause violation occurred when the DEA agent testified that he relied in part on what he was told by the government informant about the meaning of "shirts." This informant also testified at trial, and therefore the defendants had an opportunity to confront him and cross-examine him.
The Court also found that the expert testified to matters within his expertise, and that his reliance on hearsay evidence was therefore legitimate.
The Court rejected one defendant’s claim that the district court should have disqualified his attorney when a conflict became apparent a trial between this lawyer’s representation of both himself and a co-defendant. The Court pointed out that the Magistrate Judge held a complete hearing on this subject at which the defendant knowingly waived his right to obtain his own attorney.
Finally, the Court rejected all challenges to the sufficiency of the evidence, pointing out, for example, that cell phone calls were placed on a phone to which one of the defendants subscribed, to a co-defendant cousin to whom the defendant referred as "cuz."
The recorded conversations introduced in evidence at trial included references, inter alia, to "shirts." The government introduced expert testimony of a DEA agent, who had spoken to a testifying government informant, and who testified that the defendants were speaking, as Mexican drug dealers do, in code, and that the word "shirts" referred to shipments of "cocaine."
The Court held that it was not an abuse of discretion to admit the expert testimony concernng the practices of drug organizations. The DEA agent in question had been involved in at least 50 prior drug investigations. Further, the testimony was highly probative as it explained how the evidence showed that the defendants were advancing the goals of the drug trafficking organization.
The Court also held that no Confrontation Clause violation occurred when the DEA agent testified that he relied in part on what he was told by the government informant about the meaning of "shirts." This informant also testified at trial, and therefore the defendants had an opportunity to confront him and cross-examine him.
The Court also found that the expert testified to matters within his expertise, and that his reliance on hearsay evidence was therefore legitimate.
The Court rejected one defendant’s claim that the district court should have disqualified his attorney when a conflict became apparent a trial between this lawyer’s representation of both himself and a co-defendant. The Court pointed out that the Magistrate Judge held a complete hearing on this subject at which the defendant knowingly waived his right to obtain his own attorney.
Finally, the Court rejected all challenges to the sufficiency of the evidence, pointing out, for example, that cell phone calls were placed on a phone to which one of the defendants subscribed, to a co-defendant cousin to whom the defendant referred as "cuz."
McVay: Probation only reversed for HealthSouth Officer
In U.S. v. McVay, No. 04-13455 (May 5. 2006), the Court, on a government appeal, reversed the sentence of probation only imposed on a former financial officer of HealthSouth, who pled guilty to fraud charges that resulted in losses of $400 million.
At sentencing, the government moved for a § 5K1.1 reduction of sentence, based on McVay’s cooperation. The Guideline sentence was 87 months. The district court departed well below the government’s recommended level, imposing a 60-month sentence of probation, and no jail term.
The Court pointed out that the sentencing court’s only explanation for its downward departure was the defendant’s "exemplary record" before he committed the offense, and the circumstances surrounding his daughter. The Court pointed out that none of these factors were relevant to the 5K1.1 factors identified in the Guidelines, such as the usefulness of the defendant’s assistance to the government, and the reliability of his information. The Court therefore remanded for resentencing, pointing out that even under advisory guidelines a sentencing court must correctly calculate the Guideline sentence. The Court further noted that, under advisory Guidelines, the farther the court diverges from the advisory guideline sentence, the more compelling the reasons for its divergence must be. The Court concluded that, in the absence of truly compelling reasons, a probation sentence for a multi-billion dollar securities fraud at the expense of the investing public was "not easily reconcilable" with the purposes of punishment set forth in 18 U.S.C. § 3553(a).
At sentencing, the government moved for a § 5K1.1 reduction of sentence, based on McVay’s cooperation. The Guideline sentence was 87 months. The district court departed well below the government’s recommended level, imposing a 60-month sentence of probation, and no jail term.
The Court pointed out that the sentencing court’s only explanation for its downward departure was the defendant’s "exemplary record" before he committed the offense, and the circumstances surrounding his daughter. The Court pointed out that none of these factors were relevant to the 5K1.1 factors identified in the Guidelines, such as the usefulness of the defendant’s assistance to the government, and the reliability of his information. The Court therefore remanded for resentencing, pointing out that even under advisory guidelines a sentencing court must correctly calculate the Guideline sentence. The Court further noted that, under advisory Guidelines, the farther the court diverges from the advisory guideline sentence, the more compelling the reasons for its divergence must be. The Court concluded that, in the absence of truly compelling reasons, a probation sentence for a multi-billion dollar securities fraud at the expense of the investing public was "not easily reconcilable" with the purposes of punishment set forth in 18 U.S.C. § 3553(a).
Wednesday, April 26, 2006
Thomas: no Booker ex post facto violation
In U.S. v. Thomas, No. 05-14151 (Apr. 26, 2006), the Court rejected the defendant’s Booker/Blakely-based ex post facto challenge to his sentence, as well as a Fifth Amendment Indictm Clause argument.
The defendant, who committed his offense pre-Booker, when the Guidelines were not yet advisory, claimed that the Guidelines could not be applied in an advisory way to his conduct without violating ex post facto principles. Rejecting this argument, the Court found no ex post facto because, at the time Thomas committed his crime, the United States Code specified a statutory maximum of life imprisonment for his crime, and the Guidelines informed the defendant that the sentencing judge could engage in fact-finding and could impose a possible life sentence. Thomas said he understood this during the plea colloquy. Thus, the Court found no merit in the argument that Thomas relied on the constitutional implication of Blakely: both at the time he committed his crime and at the plea colloquy, Thomas was on notice that he could receive a sentence within the statutory range based on judicial factfinding that went beyond the jury’s verdict or the facts he admitted in his plea colloquy.
The Court was also unpersuaded by the argument that all facts used to enhance Thomas’s sentence should have been alleged in the indictment. The Court pointed out that under Booker only the use of facts under a mandatory guidelines system created constitutional problems. Here, the district court enhanced Thomas’ sentence based on advisory guidelines.
Finally, the Court rejected Thomas’ challenge to the reasonableness of his sentence. The Court found that the 121-month sentence for being the ring-leader in an attempted robbery was reasonable, and noted that the district court imposed a low-end Guideline sentence based on Thomas’ remorse.
The defendant, who committed his offense pre-Booker, when the Guidelines were not yet advisory, claimed that the Guidelines could not be applied in an advisory way to his conduct without violating ex post facto principles. Rejecting this argument, the Court found no ex post facto because, at the time Thomas committed his crime, the United States Code specified a statutory maximum of life imprisonment for his crime, and the Guidelines informed the defendant that the sentencing judge could engage in fact-finding and could impose a possible life sentence. Thomas said he understood this during the plea colloquy. Thus, the Court found no merit in the argument that Thomas relied on the constitutional implication of Blakely: both at the time he committed his crime and at the plea colloquy, Thomas was on notice that he could receive a sentence within the statutory range based on judicial factfinding that went beyond the jury’s verdict or the facts he admitted in his plea colloquy.
The Court was also unpersuaded by the argument that all facts used to enhance Thomas’s sentence should have been alleged in the indictment. The Court pointed out that under Booker only the use of facts under a mandatory guidelines system created constitutional problems. Here, the district court enhanced Thomas’ sentence based on advisory guidelines.
Finally, the Court rejected Thomas’ challenge to the reasonableness of his sentence. The Court found that the 121-month sentence for being the ring-leader in an attempted robbery was reasonable, and noted that the district court imposed a low-end Guideline sentence based on Thomas’ remorse.
Tuesday, April 25, 2006
Ingram: Speedy Trial Violation
In U.S. v. Ingram, No. 05-10866 (Apr. 25, 2006), the Court (Black, Barkett, Cox) reversed the conviction and remanded with instructions to dismiss the indictment, finding that the delay of over two years between indictment and trial deprived Ingram of his Sixth Amendment right to a fair trial.
In February 2000, Ingram, a convicted felon, while purchasing a firearm from a Greenacres City Pawn Shop, answered "no" to a question on a BATF form which asked whether he had ever been convicted of a felony. In October 2002, the government indicted Ingram for making a false statement to a firearms dealer in connection with an attempted acquisition of a firearm. The indictment was sealed, and a warrant was issued for Ingram’s address.
Between October 2002 and July 2004, the ATF agent made "minimal efforts" to contact Ingram. When Ingram was finally contacted and told he was indicted, he agreed to surrender in court; he filed a motion to dismiss the indictment on Speedy Trial grounds.
The Court noted that under Barker v. Wingo, 407 U.S. 514 (1972) four speedy trial factors are considered: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the speedy trial right; and (4) prejudice to the defendant. If, all three first factors weigh "heavily" against the government, the defendant need not show actual prejudice.
Here, the more than two-year delay satisfied the first factor.
The Court rejected the district court’s conclusion that Ingram contributed to the delay by making himself difficult to locate. The Court pointed out that Ingram was never aware that he was indicted during the two-year period. He therefore could not having been evading prosecution. The fact that his phone numbers changed also did not show this: "There are many innocent reasons why someone’s phone numbers might change over the course of two and one-half years." The Court found that the delay was caused by the government.
Finally, the defendant did assert his rights.
The Court found that all of these three factors weighed "heavily" in Ingram’s favor, pointing further to the delay between the date of the commission of the offense and the indictment date, the fact that this was not a complex case, and that the ATF agent had knowledge of Ingram’s whereabouts. Consequently, Ingram did not have to show "actual prejudice" from delay in order to establish a Speedy Trial violation.
In February 2000, Ingram, a convicted felon, while purchasing a firearm from a Greenacres City Pawn Shop, answered "no" to a question on a BATF form which asked whether he had ever been convicted of a felony. In October 2002, the government indicted Ingram for making a false statement to a firearms dealer in connection with an attempted acquisition of a firearm. The indictment was sealed, and a warrant was issued for Ingram’s address.
Between October 2002 and July 2004, the ATF agent made "minimal efforts" to contact Ingram. When Ingram was finally contacted and told he was indicted, he agreed to surrender in court; he filed a motion to dismiss the indictment on Speedy Trial grounds.
The Court noted that under Barker v. Wingo, 407 U.S. 514 (1972) four speedy trial factors are considered: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the speedy trial right; and (4) prejudice to the defendant. If, all three first factors weigh "heavily" against the government, the defendant need not show actual prejudice.
Here, the more than two-year delay satisfied the first factor.
The Court rejected the district court’s conclusion that Ingram contributed to the delay by making himself difficult to locate. The Court pointed out that Ingram was never aware that he was indicted during the two-year period. He therefore could not having been evading prosecution. The fact that his phone numbers changed also did not show this: "There are many innocent reasons why someone’s phone numbers might change over the course of two and one-half years." The Court found that the delay was caused by the government.
Finally, the defendant did assert his rights.
The Court found that all of these three factors weighed "heavily" in Ingram’s favor, pointing further to the delay between the date of the commission of the offense and the indictment date, the fact that this was not a complex case, and that the ATF agent had knowledge of Ingram’s whereabouts. Consequently, Ingram did not have to show "actual prejudice" from delay in order to establish a Speedy Trial violation.
Underwood: Co-Conspirator statements not "testimonial" under Crawford
In U.S. v. Underwood, No. 04-15750 (Apr. 25, 2006), the Court, on plain error review, rejected the argument that 21 U.S.C. § 841 is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court also rejected a plain error Booker challenge to the sentence. The Court also held that the admission of co-conspirator statements does not violate Crawford’s Confrontation Clause holding.
Underwood argued that Booker error existed based on the fact that the district court applied then-mandatory guidelines, and imposed a sentence at the low-end of the sentence. The Court found that this did not satisfy Underwood’s burden of showing that the sentence would have been lower under an advisory guidelines system.
The defendant argued that § 841 did not conform with Apprendi because it contained sentencing factors, which direct judges to make fact-findings. The Court rejected this argument, noting that an Apprendi issue only arises if a judge makes findings which cause a sentence to go above the applicable statutory maximum. Here, Underwood’s 135 month sentence was well below the statutory maximum of life.
At trial, the district court admitted, over Crawford objections, recorded statements which Underwood’s brother made during the unlawful drug transactions. The Court found that these statements were made by a co-conspirator, and therefore admissible under FRE 801(d)(2)(E). The Court rejected Underwood’s Crawford-based Confrontation Clause objection, finding that these statements were not "testimonial." The Court noted that Confrontation Clause rights protect only "testimonial" statements, i.e., the equivalent of pretrial statements that the declarant would reasonably expect to be used prosecutorially. Here, the incriminating statements caught on tape were not made to police with a view to prosecution; indeed, Underwood’s brother would likely not have said anything had he known he was dealing with a police informant, and that his statements were being recorded.
Underwood argued that Booker error existed based on the fact that the district court applied then-mandatory guidelines, and imposed a sentence at the low-end of the sentence. The Court found that this did not satisfy Underwood’s burden of showing that the sentence would have been lower under an advisory guidelines system.
The defendant argued that § 841 did not conform with Apprendi because it contained sentencing factors, which direct judges to make fact-findings. The Court rejected this argument, noting that an Apprendi issue only arises if a judge makes findings which cause a sentence to go above the applicable statutory maximum. Here, Underwood’s 135 month sentence was well below the statutory maximum of life.
At trial, the district court admitted, over Crawford objections, recorded statements which Underwood’s brother made during the unlawful drug transactions. The Court found that these statements were made by a co-conspirator, and therefore admissible under FRE 801(d)(2)(E). The Court rejected Underwood’s Crawford-based Confrontation Clause objection, finding that these statements were not "testimonial." The Court noted that Confrontation Clause rights protect only "testimonial" statements, i.e., the equivalent of pretrial statements that the declarant would reasonably expect to be used prosecutorially. Here, the incriminating statements caught on tape were not made to police with a view to prosecution; indeed, Underwood’s brother would likely not have said anything had he known he was dealing with a police informant, and that his statements were being recorded.
Monday, April 24, 2006
Arbane: Insufficient evidence to import cocaine into U.S.
In U.S. v. Arbane, No 04-15277 (Apr. 21, 2006) (2-1, Wilson, J. dissenting), the Court held that insufficient evidence supported a conviction of defendant convicted of conspiring to import cocaine into the United States.
The Court first rejected the argument that there was no jurisdiction to prosecute Arbane, because he was arrested, without an extradition process, when his flight from Ecuador to Iran stopped in Houston, Texas, on a stopover. Citing U.S. v. Alvarez-Machain, 504 U.S. 655 (1992), the Court noted that the extradition treaty did not divest U.S. Courts of jurisdiction when a defendant’s presence in the United States was obtained otherwise than through a treaty’s extradition process.
The Court, however, found insufficient evidence. The Court noted that in a drug trafficking conspiracy the government had to prove an agreement to import drugs into the U.S. with someone other than a government informant. Here, there was evidence of another co-conspirator, but no evidence that this person, though aware of the existence of drugs, knew that the purpose of the scheme was to import drugs into the U.S. Hence, the evidence was insufficient. The Court pointed out that in a drug importation prosecution, the destination of the drugs (the U.S.) was an essential element of the crime, particularly when, as here, all of the conduct took place in Ecuador, outside the United States, and not even on the High Seas on the way to the United States. "There can be no meeting of the minds if only one mind contains knowledge of the object of the agreement," the Court noted.
The Court first rejected the argument that there was no jurisdiction to prosecute Arbane, because he was arrested, without an extradition process, when his flight from Ecuador to Iran stopped in Houston, Texas, on a stopover. Citing U.S. v. Alvarez-Machain, 504 U.S. 655 (1992), the Court noted that the extradition treaty did not divest U.S. Courts of jurisdiction when a defendant’s presence in the United States was obtained otherwise than through a treaty’s extradition process.
The Court, however, found insufficient evidence. The Court noted that in a drug trafficking conspiracy the government had to prove an agreement to import drugs into the U.S. with someone other than a government informant. Here, there was evidence of another co-conspirator, but no evidence that this person, though aware of the existence of drugs, knew that the purpose of the scheme was to import drugs into the U.S. Hence, the evidence was insufficient. The Court pointed out that in a drug importation prosecution, the destination of the drugs (the U.S.) was an essential element of the crime, particularly when, as here, all of the conduct took place in Ecuador, outside the United States, and not even on the High Seas on the way to the United States. "There can be no meeting of the minds if only one mind contains knowledge of the object of the agreement," the Court noted.
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