Dorsey: Failure to file 5K1.1 for going to trial can be vindictive

In U.S. v. Dorsey, No. 06-16698 (Aug. 31, 2007), the Court vacated a sentence based on the defendant’s claim that the government vindictively refused to file a USSG § 5K1.1 motion for reduction of sentence because he went to trial.
After his arrest, Dorsey provided information to law enforcement which immediately led to the arrest of a cocaine-trafficking accomplice. The government then promised him a 5K1.1 departure if he pled guilty. Dorsey elected to go to trial. He was convicted. The government then declined to move for a 5K1.1 departure, claiming that the assistance was "minimal" and that Dorsey started dealing drugs again.
The Court held that a vindictive refusal by the government to move for a 5K1.1 reduction based on a defendant’s exercise of his right to jury trial could be an unconstitutional motive. However, the defendant bears the burden of proving prosecutorial vindictiveness. In some cases, a defendant may rely on a presumption of vindictiveness, which can then be rebutted. In this case, the government had rebutted the presumption, by claiming that the assistance was minimal, and that Dorsey started dealing drugs again, thus proffering legitimate reasons for its failure to file a 5K1.1 motion.
Dorsey therefore had to establish actual vindictiveness. This would require more than showing that the government carried out a threat not to move for a 5K1.1 unless the defendant pled guilty. Because the record was not clear why the government failed to move for a § 5K1.1, the Court remanded the case to the district court for fact-finding at a new sentencing hearing.

Agbai: Cookie-cutter sentence ok

In U.S. v. Agbai, No. 06-15691 (Aug. 31, 2007), the Court affirmed the imposition of a 41-month sentence on a defendant convicted of use of a counterfeit device in connection with credit card fraud.
The Court rejected the argument that the district court erred when it treated the guidelines as "presumptively reasonable." Noting that Rita v. U.S., 127 S.Ct. 2456 (2007) stated that when a judge decides to follow the Guidelines in a particular case, and when the defendant does not argue that this Guideline is unsound generally, a lengthy explanation is not required.
The Court also rejected the argument that the 41-month sentence was unreasonable, noting the district court’s finding that Agbai’s offense presented a "cookie-cutter case."

Taber: Use of Minor Enhancement

In U.S. v. Taber, No. 07-10973 (Aug. 29, 2007), the Court affirmed the imposition of a two-level sentence enhancement under USSG § 3B1.4 for use of a minor in the commission his theft of firearms.
USSG § 3B1.4 provides for a sentence enhancement if the defendant used a person less than 18 years old to commit the offense. The Court recognized that in this case the minor devised the crime, and invited Tabor to participate in the theft of firearms. Nonetheless, it rejected the argument that the § 3B1.4 enhancement should not apply. The Court found that Taber took affirmative acts to involve the minor, by encouraging and helping the minor steal the firearms. These subsequent affirmative acts warranted the § 3B1.4 enhancement.

Gordon: No ineffectiveness in failing to object to non-allocution

In Gordon v. U.S., No. 05-16703 (Aug. 23, 2007), the Court denied habeas relief to a federal inmate who claimed that his counsel was ineffective for failing to object to the district court’s failure to inform him of the charges to which he was pleading, and failure to address the defendant personally regarding his right to allocute.
The Court assumed that the district court erred when it did not advise Gordon of the charges to which he was pleading, but denied relief because this error did not affect Gordon’s substantial rights. The record showed that both defense counsel and the prosecutor had explained the charges to Gordon.
Because defense counsel might reasonably have decided, for strategic reasons, not to object to the absence of inquiry about Gordon’s right to allocute – because Gordon would have seemed even "less honest" if he had addressed the court – the Court found no ineffectiveness here as well.

Jones: No Unequivocal Request to Proceed Pro Se

In Jones v. Walker, No. 04-13562 (Aug. 27, 2007), the Court granted habeas relief to a Georgia state inmate on the ground that the state erroneously deprived him of the right to counsel in circumstances where the defendant, though unhappy with his trial counsel, had not unequivocally assert a desire to waive counsel and to represent himself, yet was ordered to proceed pro se. The Court found that the state courts erroneously found that trial counsel had advised the defendant of the "dangers" of self-representation, when in fact she had not. The Court further found that the defendant’s complaints about the incompetence of his court-appointed lawyer did not amount to a clear and unequivocal request to proceed pro se. The Count noted that the legal standard governing this issue is now before it en banc in U.S. v. Garey.

Mattern: Habeas Claim not Moot re: prior conviction

In Mattern v. Sec. Dep’t of Corrections, No. 05-15161 (Aug. 7, 2007), the Court reversed the denial of a habeas petition by a state inmate.
After being convicted for aggravated battery, and being sentenced to probation, Mattern’s probation was revoked. At his probation revocation hearing he argued, correctly, that his prior conviction should have been for simple battery, not aggravated battery. This argument failed, and, after exhausting his state post-conviction remedies, he brought this claim in a federal habeas proceeding. By then, he had been released from incarceration – but arrested on another battery charge, for which the prior aggravating battery conviction would increase his potential sentence. The district court dismissed the petition on mootness grounds.
Reversing, the Court noted that because Mattern had been arrested at the time he brought his federal habeas claim, and the prior conviction was used to enhance his punishment for this latest crime, his challenge to this conviction was not moot.
The Court noted the remaining question of whether Mattern had exercised due diligence in timely asserting his challenge to the prior aggravated battery conviction, and remanded the case for an evidentiary hearing on this issue.

Gaskin: Death row inmate habeas denied

In Gaskin v. Sec. Dep’t Corrections, No. 06-12351 (Aug. 3, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for two 1989 murders.
The Court rejected the claim that defense counsel was ineffective for failing to present mitigation evidence. The Court found that defense counsel made a defensible strategic decision in view of the damaging evidence that would have come out had the defendant’s personal history become an issue.
The Court also rejected Gaskin’s challenge to the failure to grant his change of venue motion, based on pretrial publicity. The Court found that he failed to show the kind of saturated publicity that would allow the Court to presume prejudice.

Vance: Enhancements for Unlawful Travel for Sex with Minor

In U.S. v. Vance, No. 06-13035 (Aug. 3, 2007), the Court affirmed the conviction and sentence of a defendant for attempting to travel in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor.
The Court found no plain error in the district court’s exclusion, on hearsay grounds, of a defense witness’ statement that the defendant claimed would have been a "prior consistent statement," admissible to counter the government’s claim of recent fabrication. The Court noted defense counsel’s failure to proffer any basis for the statement’s admission at trial, and the district court’s judgment that the statement might have been part of the fabrication.
The Court also affirmed a sentence enhancement for unduly influencing a minor, despite the fact that the only person with whom the defendant communicated was an undercover police officer, not a minor. The Court held that by employing the undercover officer as an intermediary to effectuate his influence, he unduly influenced a minor. The focus is on the defendant’s state of mind, regardless of whether the victim is fictitious.
The Court also affirmed the imposition of an enhancement for use of a computer, rejecting the defendant’s argument that the officer, not him, did the "soliciting." The Court noted that the defendant used a computer to communicate with someone he believed had custody of a minor.

Ferreira: Habeas Petition Timely Filed after Resentencing

In Ferreira v. Sec. Dept. of Corrections, No. 04-15761 (Aug. 7, 2007), the Court held that Burton v. Stewart, __U.S. __, 127 S.Ct. 793 (2007) effectively overruled Rainey v. Sec’y for the Dep’t of Corr., 443 F.3d 1323 (11th Cir. 2006), and therefore, on remand from the United States Supreme Court, it reinstated as timely Ferreira’s federal habeas petition.
Ferreira filed a federal habeas petition within the one-year statute of limitations after he had been resentenced on a state conviction, but after the expiration of the limitations period after the original judgment of conviction. The Court noted that the Supreme Court in Burton made clear that the limitations provisions of AEDPA are focused on the judgment which holds the petitioner in confinement. Therefore, the statute of limitations period begins to run from the date both the conviction and the sentence the petitioner is serving become final. Hence, Ferreira’s federal habeas petition was timely, because filed within the limitations period that followed his resentencing.

Haun: False Coast Guard Distress Call

In U.S. v. Haun, No. 06-14556 (Aug. 6, 2007), the Court affirmed a conviction for causing the Coast Guard to attempt to save his life, when no help was needed, in violation of 14 U.S.C. § 88(c). The defendant allegedly faked his disappearance while out on a boating trip off of Panama City, Florida. A Coast Guard search for him ensued.
Haun claimed that he did not violate the statute, because a state agency, not Haun himself, nor even the persons on the boat from which he disappeared, placed the distress call to the Coast Guard. Citing the legislative history of the statute, the Court noted that Congress meant to punish not just those who send a false distress message, but also those who, indirectly, by their conduct, cause the Coast Guard to attempt to save life when no help is needed. Here, Haun’s actions were done intentionally, with a bad purpose. He faked his disappearance to avoid a court date, and knew that his disappearance would be reported to authorities.