In U.S. v. McGuire, No. 11-12052 (Jan. 30, 2013), the Court rejected a sufficiency of the evidence challenge to a conviction for violating 18 U.S.C. § 32(a)(1) by firing a single shot from a handgun in the general direction of an airborne police helicopter.
McGuire admitted that a witness testified that he saw McGuire shoot a pistol skyward right toward the spotlight where a helicopter orbited. The Court noted McGuire’s argument that he was distraught over losing his girlfriend and his job, and wasn’t really aiming at the helicopter, but concluded that this was for the jury to decide.
The Court also held that a violation of 18 U.S.C. § 32(a)(1) qualifies as a “crime of violence” for purposes of 18 U.S.C. § 924(c). The Court noted that even if the conduct was merely attempting to disable an aircraft, it “still involves an intentional act against another’s property that is calculated to cause damage and that is exacerbated by indifference to others’ wellbeing.”
Wednesday, January 30, 2013
Monday, January 28, 2013
Jimenez: Conflict of Interest alone is insufficient to misapply funds
In U.S. v. Jimenez, No. 11-15039 (Jan. 25, 2013), the Court held that the evidence was insufficient to support a conviction for violating 18 U.S.C. § 666 by intentionally misapplying $5,000 or more from an organization receiving federal funds.
Jimenez was Deputy Director of a Head Start program in Hillsborough County, Florida. During his tenure, the program paid $9,000 to the defendant’s wife to order 750 copies of her book entitled Travel Boy Helps Sebastian Trapping the Germs. It was not Jimenez, but Mason, Jimenez’s superior, who directed the payment of funds. Jimenez failed to complete the required “conflict of interest” disclosure form indicating that his wife had a contractual relationship with Head Start.
The government argued that Jimenez’s skirting of conflict of interest rules established a § 666 violation. The Court rejected this argument. The Court pointed out that the statute makes it unlawful to intentionally misapply funds. Here, it was not Jimenez, but his superior, Mason (who was also charged – and acquitted – of a § 666 violation), who directed the application of funds. The Court held that an undisclosed conflict of interest, standing alone, is insufficient to sustain a § 666 violation.
Jimenez was Deputy Director of a Head Start program in Hillsborough County, Florida. During his tenure, the program paid $9,000 to the defendant’s wife to order 750 copies of her book entitled Travel Boy Helps Sebastian Trapping the Germs. It was not Jimenez, but Mason, Jimenez’s superior, who directed the payment of funds. Jimenez failed to complete the required “conflict of interest” disclosure form indicating that his wife had a contractual relationship with Head Start.
The government argued that Jimenez’s skirting of conflict of interest rules established a § 666 violation. The Court rejected this argument. The Court pointed out that the statute makes it unlawful to intentionally misapply funds. Here, it was not Jimenez, but his superior, Mason (who was also charged – and acquitted – of a § 666 violation), who directed the application of funds. The Court held that an undisclosed conflict of interest, standing alone, is insufficient to sustain a § 666 violation.
Thursday, January 24, 2013
Grim: Statute adequately notifies defendants of death penalty aggravators
In Grim v. Sec. Fla. Dep’t of Corrections, No. 11-11890 (Jan. 22, 2013), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 1998 murder.
The Court rejected the argument that the indictment was defective because it failed to set forth the aggravating factor that was relied on as the basis for the imposition of a death sentence. The Court noted that the Fifth Amendment Indictment Clause is not applicable to the States.
The Court rejected the argument that the sentence was invalid because the jury was not required to find an aggravating factor beyond a reasonable doubt. The Court pointed out that the Florida Supreme Court had found that the jury unanimously found two aggravating factors, and recommended that the defendant be sentenced to death. The Court noted that it had recently held that a system of advisory jury verdicts does not violate the Sixth Amendment.
Finally, the Court rejected the argument that the indictment should have given the defendant notice of the aggravating factors it would rely on in obtaining the death penalty. The Court noted the Florida Supreme Court’s holding that the aggravating factors set forth in Florida’s death penalty statute notify defendants of the factors that support the death penalty, and no United States Supreme Court case has addressed this issue.
The Court rejected the argument that the indictment was defective because it failed to set forth the aggravating factor that was relied on as the basis for the imposition of a death sentence. The Court noted that the Fifth Amendment Indictment Clause is not applicable to the States.
The Court rejected the argument that the sentence was invalid because the jury was not required to find an aggravating factor beyond a reasonable doubt. The Court pointed out that the Florida Supreme Court had found that the jury unanimously found two aggravating factors, and recommended that the defendant be sentenced to death. The Court noted that it had recently held that a system of advisory jury verdicts does not violate the Sixth Amendment.
Finally, the Court rejected the argument that the indictment should have given the defendant notice of the aggravating factors it would rely on in obtaining the death penalty. The Court noted the Florida Supreme Court’s holding that the aggravating factors set forth in Florida’s death penalty statute notify defendants of the factors that support the death penalty, and no United States Supreme Court case has addressed this issue.
Thursday, January 17, 2013
Hall: Transfer of identity is not "use"
In U.S. v. Hall, No. 11-14698 (Jan. 16, 2013), the Court held that the district court erroneously found that the offense involved more than 50 victims and therefore erroneously applied the four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B).
Hall, an office assistant in a doctor’s office, unlawfully sold to accomplices identifying information of approximately 65 to 141 patients, for the purpose of misusing their identity. However, only 12 of these patients’ personal information was actually used to obtain fraudulent credit cards.
The Court noted that the additional individuals were not “victims” for purposes of Application Note 1 of the Guideline, because they did not sustain “any part of the actual loss.” The Court found that the individuals did not qualify as victims under Application Note 4E because their identification was not “used.” The Court found that while the identities were “transferred” they were not “used.” “Transfer means something distinctly different than use.” The Court stated:
The purpose of the conspiracy in this case was to obtain cash advances and purchase items by using fraudulent credit cards. Hall’s sale of the unauthorized identifying information to her co-conspirators did not implement the purpose of the conspiracy. Hall’s mere transfer of the personal identifying information, without more action, did not employ that information for the purpose for which the conspiracy was intended . . . the personal information was not used, as that term is ordinarily understood, until Hall’s co-conspirators secured the fraudulent credit cards. At that point, the 12 individuals whose personal information was compromised became victims.
Because it was unclear whether the district court’s misapplication of the Guidelines might have affected the sentence, the Court vacated the sentence and remanded the case for resentencing.
Hall, an office assistant in a doctor’s office, unlawfully sold to accomplices identifying information of approximately 65 to 141 patients, for the purpose of misusing their identity. However, only 12 of these patients’ personal information was actually used to obtain fraudulent credit cards.
The Court noted that the additional individuals were not “victims” for purposes of Application Note 1 of the Guideline, because they did not sustain “any part of the actual loss.” The Court found that the individuals did not qualify as victims under Application Note 4E because their identification was not “used.” The Court found that while the identities were “transferred” they were not “used.” “Transfer means something distinctly different than use.” The Court stated:
The purpose of the conspiracy in this case was to obtain cash advances and purchase items by using fraudulent credit cards. Hall’s sale of the unauthorized identifying information to her co-conspirators did not implement the purpose of the conspiracy. Hall’s mere transfer of the personal identifying information, without more action, did not employ that information for the purpose for which the conspiracy was intended . . . the personal information was not used, as that term is ordinarily understood, until Hall’s co-conspirators secured the fraudulent credit cards. At that point, the 12 individuals whose personal information was compromised became victims.
Because it was unclear whether the district court’s misapplication of the Guidelines might have affected the sentence, the Court vacated the sentence and remanded the case for resentencing.
Friday, January 11, 2013
McIntosh: Indictment unnecessary to sustain sentence
In U.S. v. McIntosh, No. 10-15894 (Jan. 7, 2013),
the Court held that the dismissal of an original indictment did not result in the district court’s loss of jurisdiction over a guilty plea entered before dismissal of the indictment. The Court noted that only an indictment’s failure to describe conduct proscribed by a federal statute is a jurisdictional defect. McIntosh’s original indictment did not suffer from this kind of defect (it alleged the wrong date for the commission of the offense).
The Court rejected the argument that because the indictment had been dismissed prior to sentencing, the sentencing violated the Fifth Amendment’s Grand Jury Clause, which provides that a person shall not “answer for” a crime unless indicted. The Court found that once a defendant has been convicted, the indictment no longer serves a function. “An indictment defect that exists only after a conviction is, at most, a technical defect because it has no bearing on the substantive fairness of the conviction or the process by which it was obtained.”
The Court rejected the argument that allowing a district court to proceed with sentencing after the indictment had been dismissed usurped on the Executive Branch’s sole authority to bring cases. The Court noted that the prosecutor retained the power to unequivocally terminate cases by moving to vacate convictions.
Turning to sentencing, the Court agreed with both McIntosh and the government that he should be resentenced in accordance with the Fair Sentencing Act’s revised penalty provisions, because he was sentenced after the FSA took effect. “The FSA’s revised penalties apply to defendants sentenced after the FSA’s effective date, even if their offenses occurred prior to that date.”
the Court held that the dismissal of an original indictment did not result in the district court’s loss of jurisdiction over a guilty plea entered before dismissal of the indictment. The Court noted that only an indictment’s failure to describe conduct proscribed by a federal statute is a jurisdictional defect. McIntosh’s original indictment did not suffer from this kind of defect (it alleged the wrong date for the commission of the offense).
The Court rejected the argument that because the indictment had been dismissed prior to sentencing, the sentencing violated the Fifth Amendment’s Grand Jury Clause, which provides that a person shall not “answer for” a crime unless indicted. The Court found that once a defendant has been convicted, the indictment no longer serves a function. “An indictment defect that exists only after a conviction is, at most, a technical defect because it has no bearing on the substantive fairness of the conviction or the process by which it was obtained.”
The Court rejected the argument that allowing a district court to proceed with sentencing after the indictment had been dismissed usurped on the Executive Branch’s sole authority to bring cases. The Court noted that the prosecutor retained the power to unequivocally terminate cases by moving to vacate convictions.
Turning to sentencing, the Court agreed with both McIntosh and the government that he should be resentenced in accordance with the Fair Sentencing Act’s revised penalty provisions, because he was sentenced after the FSA took effect. “The FSA’s revised penalties apply to defendants sentenced after the FSA’s effective date, even if their offenses occurred prior to that date.”
Friday, January 04, 2013
Garcia-Sandobal: Disorderly Intoxication Counts as Criminal History
In U.S. v. Garcia-Sandobal, No. 11-12196 (Jan. 3, 2013), the Court held that a prior conviction for “disorderly intoxication,” in violation of Fla. Stat. § 856.011, counts for purposes of increasing a defendant’s criminal history category under the Sentencing Guidelines.
Garcia-Sandobal pled guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(b)(2). The Court rejected Garcia-Sandobal’s argument that he had not committed a “crime of violence” prior to his illegal re-entry, noting that during his plea colloquy Garcia-Sandobal unequivocally pleaded guilty to violating § 1326(b)(2), thereby waiving his right to appellate review of this issue.
The Court rejected the argument that Garcia-Sandobal’s prior conviction for disorderly intoxication should not have caused a two point increase in his Guidelines criminal history score. Applying the Guidelines’ five-factor “common sense approach” to this issue, the Court noted that the Florida offense carried a maximum penalty of 60 days in jail, and Garcia-Sandobal was initially sentenced to 50 days, and then an additional 60 days when probation was revoked. “It is difficult to imagine a scenario where an individual spends nearly one-third of a year in jail for endangering the public or causing a disturbance, yet his conviction is not considered serious enough to count toward his criminal history score.”
The Court emphasized that under Florida law, as opposed to the law in other states, disorderly intoxication “requires proof that the defendant endangered someone or created a public disturbance.” The Court also noted Garcia-Sandobal’s underlying conduct: “someone who gets drunk and walks in the middle of a public road at 2:36 a.m., nearly causing a collision with an oncoming vehicle, engages in conduct that suggests the likelihood of recurring criminal conduct.”
Garcia-Sandobal pled guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(b)(2). The Court rejected Garcia-Sandobal’s argument that he had not committed a “crime of violence” prior to his illegal re-entry, noting that during his plea colloquy Garcia-Sandobal unequivocally pleaded guilty to violating § 1326(b)(2), thereby waiving his right to appellate review of this issue.
The Court rejected the argument that Garcia-Sandobal’s prior conviction for disorderly intoxication should not have caused a two point increase in his Guidelines criminal history score. Applying the Guidelines’ five-factor “common sense approach” to this issue, the Court noted that the Florida offense carried a maximum penalty of 60 days in jail, and Garcia-Sandobal was initially sentenced to 50 days, and then an additional 60 days when probation was revoked. “It is difficult to imagine a scenario where an individual spends nearly one-third of a year in jail for endangering the public or causing a disturbance, yet his conviction is not considered serious enough to count toward his criminal history score.”
The Court emphasized that under Florida law, as opposed to the law in other states, disorderly intoxication “requires proof that the defendant endangered someone or created a public disturbance.” The Court also noted Garcia-Sandobal’s underlying conduct: “someone who gets drunk and walks in the middle of a public road at 2:36 a.m., nearly causing a collision with an oncoming vehicle, engages in conduct that suggests the likelihood of recurring criminal conduct.”
Thursday, January 03, 2013
Petite: Any Intentional Vehicle Flight is a "Violent Felony"
In U.S. v. Petite, No. 11-14996 (Jan. 3, 2013), the Court, relying on Sykes v. U.S., 131 S.Ct. 2267 (2011) and overruling U.S. v. Harrison, 558 F.3d 1280 (11th Cir. 2009), held that a prior conviction for intentional vehicular flight from an authorized law enforcement patrol car, in violation of Fla. Stat. § 316.1935(2), qualifies as a “violent felony” for purposes of the higher mandatory minimum punishment for convicted felons under the Armed Career Criminal Act (“ACCA”).
The Court noted that Sykes involved a “strikingly similar” Indiana vehicular flight statute, in which the Supreme Court held that because of the inherent risk in vehicular flight, the offense qualified as a “violent felony.” The Court noted that Sykes had “sharply curtailed” the reach of cases like Begay, by determining that the requirement of “purposeful, violent and aggressive” conduct “no longer applies to intentional crimes like vehicle flight.
The Court rejected the argument that Sykes could be distinguished because, unlike Florida, Indiana did not have a “gradient of penalties for different levels of vehicle flight.” Although Sykes left “for another day” the issue of how escalating tiers of punishment might affect the analysis, the Court found “little meaningful distinction” in the existence of a gradient of offenses. The Court found that any intentional flight “provokes a dangerous confrontational response” from police, which creates the “serious risk” of injury that qualifies an offense as a “violent felony” under ACCA.
The Court noted that Sykes involved a “strikingly similar” Indiana vehicular flight statute, in which the Supreme Court held that because of the inherent risk in vehicular flight, the offense qualified as a “violent felony.” The Court noted that Sykes had “sharply curtailed” the reach of cases like Begay, by determining that the requirement of “purposeful, violent and aggressive” conduct “no longer applies to intentional crimes like vehicle flight.
The Court rejected the argument that Sykes could be distinguished because, unlike Florida, Indiana did not have a “gradient of penalties for different levels of vehicle flight.” Although Sykes left “for another day” the issue of how escalating tiers of punishment might affect the analysis, the Court found “little meaningful distinction” in the existence of a gradient of offenses. The Court found that any intentional flight “provokes a dangerous confrontational response” from police, which creates the “serious risk” of injury that qualifies an offense as a “violent felony” under ACCA.
Wednesday, January 02, 2013
Smith: No Abandonment by lawyers
In Smith v. Comm. Ala. Dep’t of Corrections, No. 11-13802 (Dec. 28, 2012) (2-1), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1994 murder, finding his petition to be time-barred under AEDPA.
Smith filed for an application post-conviction relief in Alabama within the one-year period during which the filing for State post-conviction relief tolls the federal AEDPA statute of limitations. However, the lawyers who filed the application neglected to pay the filing fee, or to seek leave of court to proceed in forma pauperis. Consequently, the application was not “properly filed” under Alabama law – and, therefore, for purposes of tolling the AEDPA limitations period.
One of the lawyers had an ongoing history of substance abuse, and was charged with possessing a controlled substance – less than a month after Smith’s application was filed. The other lawyer was not admitted to the Alabama bar, and did not move for admission pro hac vice. The Court nonetheless found that Smith was not “abandoned” by his lawyers and therefore could not qualify for equitable tolling of the AEDPA limitations period. The mere fact of failing to pay a filing fee, or to move for pro hac vice status, does not constitute abandonment.
Smith filed for an application post-conviction relief in Alabama within the one-year period during which the filing for State post-conviction relief tolls the federal AEDPA statute of limitations. However, the lawyers who filed the application neglected to pay the filing fee, or to seek leave of court to proceed in forma pauperis. Consequently, the application was not “properly filed” under Alabama law – and, therefore, for purposes of tolling the AEDPA limitations period.
One of the lawyers had an ongoing history of substance abuse, and was charged with possessing a controlled substance – less than a month after Smith’s application was filed. The other lawyer was not admitted to the Alabama bar, and did not move for admission pro hac vice. The Court nonetheless found that Smith was not “abandoned” by his lawyers and therefore could not qualify for equitable tolling of the AEDPA limitations period. The mere fact of failing to pay a filing fee, or to move for pro hac vice status, does not constitute abandonment.
Subscribe to:
Posts (Atom)