Gomez: Consecutive Sentences Not Substantively Unreasonable

In United States v. Gomez, No. 19-10609 (Apr. 14, 2020) (Rosenbaum, Jill Pryor, Branch) (per curiam), the Court affirmed the defendant’s sentences.

The Court clarified that, where no challenge is made to the district court’s legal authority, the decision to run sentences consecutively is reviewed for abuse of discretion under 3553(a).  The Court found that a 46-month guideline-range sentence for ill re-entry, run consecutively with a low-end 21-month sentence for a violation of supervised release, was not substantively unreasonable.  Based on the particular facts of this case, the Court rejected the arguments that the district court failed to properly consider the deterrent effect of prior sentence for sexual battery or that it was already factored in to his guideline range.

Wild: Victims' Rights Don't Attached Pre-Charge Under CVRA

In In re Wild, No. 19-13843 (Ap. 14, 2020) (Newsom, Tjoflat, Hull), the Court denied a petition for mandamus brought by victims of Jeffrey Epstein.

The Court held, reluctantly, that the rights of victims under the Crime Victims’ Rights Act of 2004, including the right to confer with prosecutors and be treated fairly, do not attach until federal criminal proceedings are initiated.  Here, there was no federal criminal proceeding brought.  So, despite evidence of a secret non-prosecution agreement between the government and Epstein, the victims’ statutory rights were never triggered.  The majority “sincerely regrets” this outcome but thinks it is compelled by the statute Congress wrote.

Judge Tjoflat concurred in full, but wrote separately to explain that allowing victims to sue prosecutors to enforce a right to confer pre-charge would require courts to interfere with the executive’s investigation and prosecution of crimes, and that would raise serious separation of powers problems.

Judge Hull authored a lengthy dissent, opining that the statute confers rights on victims before charges are brought.  She criticized the majority for effectively deprived the victims of any rights at all for the government’s egregious violations in this case.   She and the majority criticized each other for their rhetoric.

Maher: Rejecting Statute of Limitations Argument to Receiving/Concealing/Retaining Government Property

In United States v. Maher, No. 19-10074 (Apr. 8, 2020) (William Pryor, Branch, Luck), the Court—without oral argument—rejected the defendant’s statute of limitations argument.

The defendant was convicted of conspiracy to defraud the United States by committing mail fraud, wire fraud, and receiving/concealing/retaining  government property.  The Court affirmed that conspiracy conviction because, although the defendant argued that he was not timely indicted for receiving/concealing/retaining government property, there was no dispute about the other two objects of the conspiracy, for which the jury found him guilty in a special verdict.

The Court also concluded that the government timely indicted the defendant for receiving/concealing/retaining government property.  Although the defendant focused only on the date he received the property, the alternative means of retaining property rendered it a continuous offense.  And because the government charged the defendant within five years of the last date he retained the property, there was no statute of limitations problem.