Dean: Accidental Discharge Still Triggers Higher Penalty

In U.S. v. Dean, No. 06-14918 (Feb. 20, 2008) (Hull, Pryor, Moore, KM, b.d.), the Court affirmed the conviction and sentences of defendants convicted as a result of an armed bank robbery which netted them $3,642.
Rejecting the challenge to a Hobbs Act conviction based on the government’s Confrontation Clause violation in proving up the fact of FDIC insurance, the Court held that no such proof was required. For Hobbs Act violations, unlike bank robbery, proof of FDIC insured status is not a required element of the offense.
The Court further rejected the argument that a sentence should not have been enhanced under 18 U.S.C. § 924(c)(1)(A)(iii) for "discharge" of a firearm, because here the discharge was "accidental." The Court noted that § 924(c) contains no separate intent element. Though noting a Circuit split on this point, the Court held that an accidental discharge sufficed to impose the higher penalty.
Finally, the Court rejected one defendant’s argument that the sentencing court improperly counted four separate prior convictions in the criminal history score, when they should have been treated as "related cases." The Court held that any error need not be addressed because the sentencing court stated that even if its calculation were wrong it would still impose the sentence it did, this time under its § 3553(a) sentencing discretion – and the Court found that such a sentence would have been "reasonable."

Fotopoulos: Not Ineffective Not to Challenge Inconsistent Theories

In Fotopoulos v. Secretary, Dep’t of Corrections, No. 07-11105 (Feb. 17, 2008), the Court reversed the grant of habeas relief to a Florida inmate sentenced to death for two 1989 murders.
The Court rejected the fact-finding that Fotopoulos’s counsel was ineffective for allowing the state to put on inconsistent theories regarding Fotopoulos’ guilty, one which emphasized his domination of his accomplice, and one which did not. The Court found that defense counsel’s testimony indicated that he made a reasonable strategic decision on how to address the inconsistent arguments of the State – and the district court should have deferred to the fact-finding by the State of Florida on this point. Finally, no prejudice to Fotopoulos occurred, as he acknowledged his "prime responsibility" for the murders.
The Court also rejected the district court’s conclusion that the State’s reliance on inconsistent theories violated Due Process. The Court noted that the Supreme Court of the United States had not squarely held that putting on inconsistent theories violated Due Process at the time of the State court decision affirming the death sentence. Consequently, under AEDPA, the State court judgment was not "clearly contrary" to Supreme Court precedent, and deserved deferrence.

De La Garza: No Plain Error in Gov't Violation of Plea Agreement

In U.S. v. De La Garza, No. 06-13396 (Feb. 15, 2008), the Court affirmed the conviction of a defendant who pled guilty to conspiracy to possess more than five kilos of cocaine with intent to distribute, in violation of the Marine Drug Law Enforcement Act ("MDLEA").
The Court first rejected the challenge to the guilty plea based on the defendant’s breach of the plea agreement. The Court agreed with De La Garza that the government breached the agreement when it argued that his credibility at sentencing was not "credible," when it had agreed in the plea to the very version of events to which De La Garza later testified. However, reviewing the issue for "plain error," the Court found no violation of De La Garza’ substantial rights, because the district court credited De La Garza’s testimony even as it imposed the sentence it did.
The Court also rejected De La Garza challenge to subject matter jurisdiction. The Court noted that the defendant, at the plea colloquy, admitted that his vessel was without nationality, and thus established the fact sufficient to establish subject matter jurisdiction.

Pugh: Five Years Probation Unreasonable for Child Pornography Possessor

In U.S. v. Pugh, No. 07-10183 (Jan. 31, 2008), in its first sentencing decision applying the Supreme Court’s recent Gall and Kimbrough holdings, the Court held that the district abused its discretionary by imposing a probationary sentence on a defendant convicted of possession of images of child pornography.
Despite a low-end recommended guideline range of 97 months, and supervised release, the district court sentenced Pugh to five years probation. The district court held two sentencing hearings, and concluded that Pugh had a low-risk of recidivism.
The Court faulted the sentencing court for relying on only one § 3553(a) sentencing factor – the history and characteristics of the defendant -- which suggested an unreasonable sentence because of the failure to consider "all" of the § 3553(a) factors. The Court faulted the sentencing court for not giving due emphasis to the fact that the some of the images were "grotesque," and for focusing on the defendant’s motivation, when his willfulness in committing the offense was undisputed.
Turning to the § 3553(a) factors, the Court found that the sentencing court had no adequately considered the "general deterrence," purpose of § 3553(a) – a factor particularly important in combating "the child pornography market." The Court also noted the "devastating" impact of child pornography on the children, and pointed out how Congress has progressively stiffened the penalties for child pornography. The district court’s sentence, therefore, "did not reflect the seriousness of the crime." The Court noted that the defendant himself was willing to submit to a lifetime of supervised release, a much greater period of supervision than five years of probation. This called into question whether adequate rehabilitation could be achieved.
The Court also noted that the sentence deviated sharply from the Guidelines sentence of 97 months at the low-end. This "major" departure was not supported by the sentencing court’s mere reliance on Pugh’s characteristics and motive. In addition, unlike the crack guidelines at issue in Kimbrough, the child pornography guidelines did not suffer from "criticisms." The Court also noted that its caselaw showed that offenders like Pugh typically receive much harsher sentences. Thus Pugh’s sentence created a disparity. The Court recognized that there might be cases where a non-custodial sentence would be reasonable for a child pornography offender, but this was not one of them.