Perez-Oliveros: Importation is continuous until destination reached

In U.S. v. Perez-Oliveros, No. 06-12757 (Feb. 22, 2007), the Court affirmed the conviction and sentence of a defendant convicted of methamphetamine trafficking.
The Court affirmed the sentence enhancement under USSG § 2D1.1(b)(4), which calls for a two-level increase if the offense involved the importation of methamphetamine. The Court noted that from the fact of Perez’ truck having crossed the Mexican border 14 hours prior to Perez’ arrest, the sentencing court could infer that the methamphetamine was in Perez’ truck when it crossed the border. The Court also rejected the argument that no evidence showed Perez was in the truck when it crossed the border. The Court pointed out that the enhancement applies if the offense "involved" importation. The Court also rejected the argument that the importation had ended by the time Perez began driving the truck. The Court noted that importation is a continuous crime that is not complete until the controlled substance reaches its final destination point, which in this case was Mobile, Alabama, where Perez was destined.

Yost: Attempt means beginning to make arrangements

In U.S. v. Yost, No. 06-10911 (Feb. 26, 2007), the Court affirmed the conviction of a defendant convicted of attempt to use the Internet to entice a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b), rejected Yost’s arguments that the evidence was insufficient to convict.
The Court found that Yost satisfied the intent element of the attempt offense when he initiated contact with two (undercover agents posing as) underage girls, was told they were under-age, and repeatedly ask them to engage in oral sex.
The Court further found that Yost satisfied the "substantial step" element of the offense when he engaged in conduct which strongly corroborates the required culpability. Here, even though Yost never arrived at the agreed meeting place, he "crossed the line" when he made arrangements to meet, and took steps enticing the minors to engage in criminal sexual activity.

Patrick: Loss amount wrong

In U.S. v. Patrick, No. 05-17111 (Feb. 20, 2007), the Court reversed the conviction of a defendant convicted of embezzlement.
The district court based its sentence on the estimated loss of $1.4 million, a number based on the tax liability of the victim of Patrick’s embezzlement – but a liability "unconnected to Patrick in any way." Further, the loss amount included amounts that, as the government conceded, should not have been included. The judgment was therefore vacated and reversed.

Evans: Anthrax hoax not serious violent felony

In U.S. v. Evans, No. 05-14498 (Feb. 16, 2007), the Court affirmed in part and reversed in part a sentence imposed on a defendant who, while a state inmate serving a 100-year sentence, committed an anthrax hoax by mailing a letter with a harmless powder substance to the Pensacola federal courthouse.
The Court found no plain error in the acceptance of a guilty plea for violations of 18 U.S.C. §§ 2332a and 876(c), which criminalize threatening to use a weapon of mass destruction, and threatening to injury by mail. Evans claimed that these statute involved only threats of a future act, as opposed to an immediate threat. The Court sided with three Circuits to have considered this issue, and held that the statutes did not required threats of a future act. For this reason, the guilty plea was valid.
The Court agreed with Evans, however, that his anthrax hoax did not qualify as a "serious violent felony" for purposes of triggering the mandatory life sentence under 18 U.S.C. § 35599c)(2)(F). The government claimed that the arterial blood draws which medical personnel may perform on potentially exposed persons, as well as the physical force used in evacuating a building both provided the element of physical force necessary for a serious violent felony. The Court rejected this argument as over-broad, transforming virtually any crime into a serious violent felony, as there always some risk that police will use force during arrest. Moreover, the new statute criminalizing anthrax hoaxes establishes a maximum 5 year punishment, below the 10-year threshold for "serious violent felonies" – further confirming that this crime should not qualify.

Koblan: Death moots appeal

In U.S. v. Koblan, No. 05-13038 (Feb. 16, 2007), the Court reaffirmed the rule that, when a criminal defendant dies while an appeal is still pending, the appeal must be dismissed as moot, and the judgment must be vacated by the district court. The Court held that this rule applied even when, as here, the judgment included a sizeable restitution order in favor of the defendant’s victims. The Court noted that the victims could still bring a civil suit against the defendant’s estate. The Court recognized a circuit split on this issue.

Madison: Enhancement for sentence for Pimp's use of force to keep prostitute in employ

In U.S. v. Madison, No. 06-11914 (Feb. 12, 2007), the Court affirmed the use, by cross-reference, of a criminal sex abuse sentence enhancement under USSG § 2A3.1, for a defendant who pled guilty to sex trafficking by force.
The defendant argued that the sentence enhancement applied in cases of forcible rape, not for using violence (as he did) to keep a prostitute in his employ.
The Court recognized that because the Guideline provision was amended in 2004, its prior caselaw was not applicable. However, under the current law, the application of the cross-reference was correct. The use of fear and violence to keep a person in one’s employ to commit sex acts qualified as the use of force, and therefore qualified for the cross-reference enhancement.

Watkins: Solicitation Sentence reduction can be fact-intensive

In U.S. v. Watkins, No. 05-15444 (Feb. 8, 2007) (Carnes, Marcus, Kravitch), the Court held that USSG § 2X1.1(b), which provides for a three-level decrease in the base offense level for solicitation offenses, does not apply when the circumstances demonstrate to the defendant that the person solicited was about to complete the substantive offense.
Watkins solicited a person to commit arson. Unbeknownst to him, the person was an undercover police agent. At sentencing, the district court declined to reduce the sentence pursuant to § 2X1.1(b) for solicitation, because, from Watkins’ perspective, everything was done to successfully complete the arson.
Reversing, the Court held that the relevant test was whether the person solicited had taken all the crucial steps necessary to demonstrate to the defendant that the offense was about to be completed. Here, more fact-finding was necessary to determine whether the undercover agent’s actions made it clear to Watkins that the agent was about to complete the offense. The Court therefore remanded for resentencing, noting that post-Booker, the district court was not bound by the attempt guideline.

Malol: Enhancement for Violating Order Requires Final Agency Action

In U.S. v. Malol, No. 05-10688 (Feb. 2, 2007), the Court affirmed part of the sentence and vacated part of it, for a defendant convicted of frauds arising out of his practice of increasing the moving costs for customers after giving them a lower initial estimate.
The Court rejected the argument that the prosecution improperly used a summary chart in evidence. The Court found that even if the summary chart was improperly admitted, any error was harmless because of the overwhelming victim testimony of the defendant’s practice of inflating moving costs.
The Court also rejected the challenge to the over $1 million loss calculation. The jury found that the fraud amount exceeded $1 million, beyond a reasonable doubt. The district court could therefore find that this amount was exceeded, by a preponderance of the evidence.
The Court, however, reversed the sentence enhancement based on the commission of a fraud in violation of an order, pursuant to USSG § 2B1.1(b)(7). The Court noted that the administrative body in question, the Federal Motor Carrier Safety Administration, never held a hearing regarding Malol’s conduct, and never adjudicated his conduct; it merely sent out a notice that Malol’s conduct might be illegal. It was therefore improper to impose a sentence enhancement because there was no final agency action.

Stewart: No Deficient Failure to Present Mitigating Evidence

In Stewart v. Sec’t, Dept. of Corrections, No. 06-11684 (Jan. 31, 2007), the Court affirmed the denial of habeas corpus relief to a Florida death row inmate convicted of a 1985 murder.
The Court rejected the argument that counsel was ineffective in failing to put on sufficient mitigating evidence regarding the abuse Stewart suffered during his upbringing. The Court found that counsel supplied the mental health expert with ample evidence, and that Stewart withheld other evidence from trial counsel. The Court also noted the mental health expert’s testimony at a state post-conviction hearing that the new evidence "wouldn’t have made any difference" in his final opinion.
The Court also found no deficient performance in the defense’s failure to present evidence of substance and alcohol abuse by the defendant, noting that this would have weakened the argument that tragic family circumstances set in motion Stewart’s violent behavior.

Spottsville: Equitable Tolling for Misled Habeas Petitioner

In Spottsville v. Terry, No. 05-12656 (Feb. 1, 2007), the Court held that a habeas petitioner had been misled by a written order of a court as to his filing deadline and was therefore entitled to equitable tolling of his habeas petition.
While incarcerated in Georgia and seeking post-conviction relief, Spottsville was given incorrect instructions by a state court as to where to file a petition seeking appellate relief. As a result, his petition was dismissed in the Georgia courts. Further, once Spottsville filed for federal habeas relief, the time period for filing the petition had lapsed, because his case was not "properly filed" in Georgia courts during the relevant time period.
The Court held that although Spottsville’s federal habeas petition was time-barred under the AEDPA, the doctrine of "equitable tolling" applied, because the untimeliness of the federal habeas petition was due to the misleading order the Georgia state court. The Court therefore reversed the dismissal of the petition.

Ramirez: Consensual Encounter, not an Illegal Detention

In U.S. v. Ramirez, No. 05-12765 (Feb. 1, 2007), the Court affirmed the denial of a motion to suppress, holding that the police did not detain Ramirez in violation of his Fourth Amendment rights.
Ramirez was pulled over for a traffic infraction. After police had determined that he had no outstanding warrants, and after they had issued him a citation and handed him back his papers, a police officer asked Ramirez if he was carrying anything illegal in the car. Ramirez consented to a search of his car, in which 7 kilos of cocaine were found.
Rejecting the argument that the police officer’s question constituted an unreasonable detention, the Court held that at this point the traffic stop had converted into a "consensual encounter." A reasonable person would have felt free to leave and to decline the request for more information.