Gonzalez: No Plain Error in sentencing where court would have reached same result absent error

In U.S. v. Gonzalez, No. 08-10008 (Dec. 12, 2008), the Court rejected challenges to a sentence of 50-months for a defendant convicted of illegal re-entry.
The defendant argued that error occurred because the sentencing court relied on a since-amended Guideline, § 2B1.2(b)(1)(A)(ii), and treated a prior bank robbery as a basis for a 16-level sentence enhancement. Reviewing for "plain error," the Court noted that the amended guideline gave the sentencing court discretion to impose a 16-level enhancement based on this prior offense. Thus, even though the enhancement was no longer mandatory, the error was not plain because nothing in the record suggested that the court would impose a lesser sentence on resentencing.
The Court also rejected the argument that the sentence was unreasonable. "In consideration of the § 3553(a) factors, the district court does not need to discuss or state each factor explicitly. An acknowledgment the district court has considered the defendant’s arguments and the § 3553(a) factors will suffice." Here, the district court satisfied these requirements.

Jones: No Crack Reduction for 1994 12kilos offender

In U.S. v. Jones, No 08-13298 (Nov. 19, 2008), the Court upheld the denial of a § 3582(c)(2) sentence reduction to a crack offender.
Jones was originally sentenced in 1994 based on Guideline offense level 38, for a quantity of crack cocaine he admitted was in excess of 12 kilos. The current Guidelines still provide for level 38 for offenders at this quantity of cocaine, even after the recent Guideline amendments. Accordingly, Jones did not qualify as an offender who guideline range was lowered, and therefore was not eligible for a sentence reduction under § 3582(c)(2).
The Court rejected Jones’ reliance on Booker. The Court pointed out that his sentence might be higher today as result of a Booker variance. Further, § 3582(c)(2) allows sentence reduction only when lowered by the Sentencing Commission. Booker was therefore inapplicable.

James: No 3852 reduction when offense level unchanged

In U.S. v. James, No. 08-12067 (Nov. 12, 2008), the Court held that a crack cocaine offender was not eligible for Amendment 706’s retroactive sentence reduction, because the Amendment did not affect the calculation of James’ offense level in a way favorable to him. At his original 1989 sentencing, the base offense level for James 10-15 kilos of crack cocaine was 36. The Guidelines were later amended to increase the punishment to level 38. As a result, James was not entitled to resentencing under 18 U.S.C. § 3582(c)(2).

Steed: Alabama statute not "clearly unconstitutional" for 4th Amend. purposes

In U.S. v. Steed, No. 08-10557 (Nov. 10, 2008), the Court affirmed a marihuana trafficking conviction.
The Court rejected the argument that the marihuana seized from the tractor-trailer the defendant was driving should have been suppressed because the Alabama statute pursuant to which the police officer inspected the truck’s paperwork and equipment (and ultimately discovered marihuana) was clearly unconstitutional. Without reaching the question whether the Alabama statute was, in fact, unconstitutional, the Court held that it was not "clearly unconstitutional," and the police could therefore in good faith rely on it and conduct the inspection.
The Alabama statute permitted police in effect to inspect trucks at any time, at any place, and for any reason. The Court nonetheless concluded that it was not "clearly unconstitutional."
The statute gave "notice" that specifically designated officials may inspect vehicles. The scope of the inspection was limited to "commercial motor vehicles." Although the statute in effect allowed inspections at any time, this was reasonable because commercial trucks operate at all hours. Although the state lacked a limitation with respect to place, this too was reasonable because it is easy for trucks to avoid designated checkpoints. Finally, although the statute placed no limitation on the police’s discretion to inspect, this presented no concern.
The Court rejected the argument that the police officer, testifying as an expert, was permitted to give hearsay testimony about police knowledge of trends in drug trafficking. The Court found no violation of FRE 703, noting that the testimony was not improperly conveying conversations between the police officer and non-testifying witnesses and co-defendants, but instead properly establishing how his "personal training and experience" formed the basis for his knowledge of drug trafficking, criminal indicators, and the commercial trucking industry.
The Court also rejected the argument that the officer violated Rule 704(b) by testifying as to the defendant’s state of mind, an issue that should have been left to the trier of fact. The Court found that the officer properly testified about the nervousness of the defendant, but left it to the jury to decide whether this nervousness established a guilty state of mind.
The Court rejected a challenge to the "deliberate ignorance" instruction, finding that any impropriety in giving this instruction was not prejudicial because the judge also gave the jury an "actual knowledge" instruction and there was sufficient evidence to support this instruction, in light of the defendant’s nervousness and the suspicious state of his paperwork.

Garey: Upholding Domestic Terrorism Enhancement

In U.S. v. Garey, No. 05014631 (Oct. 31, 2008), the Court, on remand from an en banc decision that affirmed the defendant’s conviction, affirmed the defendant’s sentence.
Garey argued that the increase in his Guideline sentence for a felony that "involved or was intended to promote a ‘federal crime of terrorism’" was unwarranted, because the enhancement requires conduct that transcends national boundaries, and his crime was "purely domestic." The Court found that the plain language of the Guidelines references conduct calculated to influence the conduct of government, without regard to national boundaries. Although a defendant’s conduct must transcend national boundaries to sustain a conviction under 18 U.S.C. § 2332b, the Guidelines do not predicate an upward adjustment on this basis.
The Court also rejected Garey’s challenge to the reasonableness of his 360-month sentence, pointing out that it was below the low-end of the Guideline range.

Anton: Court failed to explain reliability of hearsay relied on at sentencing

In U.S. v. Anton, No. 07-13124 (Oct. 30, 2008), the Court affirmed a conviction for being a felon in possession of a firearm, but vacated the sentence and remanded for resentencing.
The Court rejected Anton’s argument that his nolo contendere plea to a prior Florida state crime precluded qualifying it as a "felony." The Court pointed out that the Florida state court did not withhold adjudication, and the prior crime therefore counted as a felony.
Turning to the sentence, the Court found that the district court relied on hearsay statements in determining the number of firearms that Anton should be held accountable for, yet failed to make any findings regarding the credibility and reliability of these hearsay statements. The Court therefore remanded the case because the district court relied on "supported conclusions."

mcNeese: Govt Controls Rule 35(b) resentencing minimum

In U.S. v. McNeese, No. 08-10093 (Nov. 3, 2008), the Court held that the government does have the authority to limit a Rule 35(b) motion for reduction of sentence to one count of an indictment, and thereby preclude a district court from resentencing a defendant to sentence less than that previously imposed on a separate count of the indictment.
The defendant was convicted on two counts. On one count the court imposed a life sentence, on the other count it imposed a 240-month sentence. After the defendant gave "substantial assistance" to law enforcement, the government moved, under Rule 35(b), to reduce sentence on the count for which a life sentence was imposed, but not on the other count. The defendant wanted a sentence below 240 months. The court imposed a 240 month sentence, noting that it could not resentence below 240 months because the government had not moved for a Rule 35(b) reduction for that count.
The Court rejected McNeese’s argument that the sentencing court had authority to sentence below 240 months. The Court noted that the government could control McNeese’s sentence, and that its failure to seek a sentence reduction could only be challenged if it had "unconstitutional motives" for not doing so – something McNeese did not allege.

Prevatte: Prior Georgia Conviction Valid

In Prevatte v. French, No. 07-14536 (Oct. 28, 2008), the Court affirmed the denial of habeas relief to a North Carolina inmate, rejecting his challenges to the validity of prior Georgia convictions that were used as aggravating factors in a North Carolina death penalty sentencing. The Court rejected the argument that defense counsel had a conflict of interest at trial, crediting the state court fact-finding that no conflict existed. The Court also rejected the argument that the prosecution improperly relied on the defendant’s post-arrest silence, finding the evidence of guilt overwhelming.

Thomas: Armed Career Offenders Not Eligible for Crack Guideline Reduction

In U.S. v. Thomas, No. 08-11492 (Oct. 23, 2008), the Court, applying U.S. v. Moore, 541 F.3d 1323 (11th Cir. 2008) (career offenders are categorically ineligible for the two-level reduction made retroactively available to crack cocaine offenders), held that armed career offenders, like career offenders, are not eligible for an Amendment 706 sentence reduction. The Court reasoned that the base offense level reduction relating to crack quantities had not effect on the sentencing range of an armed career offender, which is based on USSG § 4B1.4.

Singleton: Can't Assume Powder will all become crack

In U.S. v. Singleton, No. 07-13329 (Oct. 16, 2008), the Court held that the district erred in establishing the base offense for Singleton’s crack and powder cocaine offenses at level 36, instead of level 34.
The district court arrived at the weight quantity of cocaine by assuming that the powder cocaine seized at Singleton’s motel room could all be converted to crack cocaine. This resulted in a higher base offense level, since crack cocaine is punished more severely than powder. However, the motel room did not contain enough quantities of baking soda for Singleton to convert all the powder to crack. In addition, the baggies in which the powder was found indicated that Singleton also dealt in powder cocaine, not exclusively crack. Hence, the district court’s calculation was speculative. The Court vacated the sentence and remanded for resentencing.

Valladares: 35 days is enough to prepare for Medicare fraud trial

In U.S. v. Valladares, No. 07-14592 (Oct. 9, 2008), the Court upheld the conviction and sentence of a defendant convicted of defrauding Medicare by bribing doctors to prescribe medically unnecessary medication.
The Court rejected Valladares’ argument that the district court abused its discretion when it denied her request for a continuance of the trial. The trial began 35 days after arraignment. The Court noted that the government had identified all the documents it intended to use. Further, Valladares failed to show how other billing records, if presented by her at trial, would have changed the outcome of the case.
Turning to the sentencing issues, the Court rejected the argument that the district court erred in using the commercial bribery guideline in USSG § 2B4.1 instead of the fraud guideline of § 2B1.1 to determine the base offense level. The Court noted that this case involved "fraud achieved through bribery" rather than "straight bribery" and the district court therefore applied the correct guideline.
The Court rejected the argument that fraud in which Valladares used her company in the scheme could not be counted for sentence enhancement purposes, or for calculating the restitution amount, finding that this part of the scheme was part of the "relevant conduct."
Finally, the Court rejected the argument that Ex Post Facto principles barred the imposition of forfeiture for the portion of the conspiracy that predated the effective date of one of the statutes of conviction. The Court noted that no Ex Post Facto violation occurs when a conspiracy does not end until after a statute takes effect.

Jackson: 851 approval not jurisdictional

In U.S. v. Jackson, No 07-13374 (Oct. 7, 2008), the Court held that the requirement that the government obtain approval for an appeal of a sentence from the Solicitor General was not jurisdictional. Thus, it rejected the argument that it lacked jurisdiction to consider the government’s appeal of the defendant’s sentence. The Court also rejected the argument that, in order to appeal a district court’s striking of a sentence enhancement notice pursuant to 18 U.S.C. § 851, the government must appeal before sentencing.
The Court also rejected the argument that the government’s § 851 notice was defective because it was not personally signed or approved by the United States Attorney. The Court held that this power can be delegated to Assistant United States Attorneys.

Dombrowski: 5th Amend. Right Not "Clearly Established" for Prior Conviction Admissions

In Dombrowski v. Mingo, No. 05-13140 (Oct. 3, 2008), the Court affirmed the denial of habeas corpus relief to a Florida inmate, who claimed that a Florida state judge violated his Fifth Amendment privilege against self-incrimination when, without warning Mingo of the consequences, he asked Mingo to admit, for purposes of enhancing his sentence as a Florida "habitual offender," that he had several prior felony convictions.
The Court recognized that in Miranda the Supreme Court broadly stated the scope of the privilege, and recognized caselaw in other circuits which held that the privilege applies when a court inquires of a defendant’s previous convictions for habitual offender enhancement purposes. However, the Court noted that some circuits did not construe the Fifth Amendment to apply in this situation. Thus, the right was not "clearly established." Hence, the Florida state court’s failure to apprise Mingo of his Fifth Amendment privilege was not contrary to "clearly established" law – and therefore could not give rise to habeas corpus relief.

Williams: Counsel Ineffective for Failing to Investigate Defendant's Life History

In Williams v. Allen, No. 07-11393 (Sept. 17, 2008), the Court (Birch, Dubina, Wilson) reversed the denial of habeas relief to an Alabama inmate sentenced to death for a 1988 murder.
The Court found that Williams’ counsel were ineffective at the sentencing stage in failing to broaden the scope of their investigation with regard to Williams’ life history. As a result, counsel "obtained an incomplete and misleading understanding of Williams’ life history." Minimal investigation would have led counsel to follow up on the information about Williams’ psychological problems chronicled in reports, and to interview family members who could corroborate evidence of abuse.
The Court found that Williams was prejudiced by counsel’s failure to investigate, because the evidence of Williams’ repeated beatings in childhood was not presented. Further, the murder here was not "highly aggravated," as evidenced by the fact that the jury recommended a life-sentence by a 9-3 vote (the judge nonetheless imposed the death sentence). The Court held that the Alabama Supreme Court decision, which found no prejudice, was an unreasonable application of Strickland, because the mitigating evidence, taken as a whole, "might have altered the trial judge’s appraisal of Williams’ moral culpability."

Antonelli: Parole Commission 2241 Challenge Not subject to gatekeeping

In Antonelli v. Warden, U.S.P. Atlanta, No. 08-10608 (Sept.17, 2008), the Court held that habeas petitions under 28 U.S.C. § 2241 that challenge denials of credit by the United States Parole Commission are not subject to the gatekeeping requirements of AEDPA (which require such petitioners to first obtain permission from the Court of Appeals before filed a "second or successive" petition).
As to Antonelli’s petition, however, the Court held that it was properly dismissed, because the issue it presented – whether his prior Illinois state convictions were unconstitutional – had been previously adjudicated in a prior federal habeas proceeding. Citing 28 U.S.C. § 2244(a).

Wood: No Deficient Performance on Mental Deficiency Evidence

In Wood v. Hall, No. 06-16412 (Sept. 16, 2008) (2-1, Barkett, J., dissenting), the Court reversed the grant of habeas relief to an Alabama inmate sentenced to death for a 1993 murder.
The district court granted habeas relief based on counsel’s ineffective assistance in failing to put on evidence, during the sentencing phase, of the defendant’s diminished mental capacity.
Reversing, the district court noted that trial counsel had presented some mitigating evidence, and were entitled to deference in not presented further mitigating evidence in light of the downside of this evidence, e.g. a doctor’s evaluation concluded that despite Wood’s "borderline intellectual functioning," he "still had a complete memory of his behavior at the time of the murder." The Court added that even if counsel had been deficient, there was no prejudice to Wood, given evidence of Wood’s "adaptive functioning."

Blankenship: Counsel Not Ineffective to only address guilt,not mitigation

In Blankenship v. Hall, No. 08-10511 (Sept. 15, 2008), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1978 murder.
Blankenship claimed that his state trial counsel provided constitutionally deficient representation by failing to investigate and present evidence of Blankenship’s traumatic childhood at the sentencing phase.
The Court noted that Blankenship bore the burden of proof on this issue. The Court noted counsel’s vague memories, owing to the length of time that elapsed after the trial and before they were questioned about their performance. However, the record showed that counsel knew about Blankenship’s struggle with drugs and alcohol, the family history of schizophrenia, and his "difficult background." Further, Blankenship himself was "in the best position" to inform his counsel on such matters. In order to prove that his counsel was deficient, Blankenship had to show his counsel were unaware of these matters. Blankenship did not show this. Further, Blankenship instructed counsel not to contact his family.
Finally, the Court found that counsel’s strategy at sentencing was to create doubt about Blankenship’s guilt for the murder, to the exclusion of mitigating evidence regarding punishment. "[F]aced with a brutal rape and murder of an elderly woman," Counsel’s strategy was "far from baseless," and, in fact, "sensible."

Schwartz: Affidavit Admission Was Bruton Error

In U.S. v. Schwartz, No. 05-11715 (Sept. 5, 2008), the Court reversed a $30 million fraud conviction because the admission of one defendant’s incriminatory affidavit incriminated his co-defendant, in violation of Bruton v. U.S., 391 U.S. 123 (1968).
During its case in chief, the prosecution introduced in evidence a defendant’s affidavit which set forth the name of a corporation that was using investor monies to line the personal business coffers of the persons who controlled it. Then, in closing argument, the prosecutor expressly linked a co-defendant to this corporation, as the person who controlled the corporation.
The Court found that even if the affidavit itself was insufficient to compel an incriminatory inference against the co-defendant, the prosecutor’s closing statement made the inference inevitable – and therefore "devastating." Hence, a Bruton error occurred. Moreover, the error was not harmless because the affidavit and the closing argument, though repetitive of other testimony, summarized points contained in disparate parts of a lengthy trial, and had "singular credibility," coming as it did from an alleged participant in the fraud. The Court vacated this conviction.
As to another defendant, the Court rejected the argument that the government violated his use immunity agreement by using statements in the grand jury that the defendant gave to a law enforcement agent, to obtain his indictment. The Court noted that the use immunity agreement contained a "Kastigar waiver." A Kastigar waiver means that the defendant waived his right to challenge use of his statements before a grand jury because they were obtained in violation of the Fifth Amendment. The Court inferred that by waiving the Kastigar remedy the defendant meant to waive challenges to the use of his statements before the grand jury.
The Court rejected the sufficiency of the evidence challenge of two other defendants. The Court found that the evidence showed that they knowingly participated in fraud conspiracy.

Moore: Career Offenders Not Eligible for Crack Amendment Reduction

In U.S. v. Moore, No. 08-11230 (Sept. 5, 2008), the Court ruled that career offenders are not eligible for a sentence reduction under the recent retroactive amendment to the crack quantity Guideline.
The Court noted that 18 U.S.C. § 3582(c)(2) only authorizes a sentence reduction if a defendant’s sentence is "based on a sentencing range that has subsequently been lowered." The Court ruled that this "plain language" made career offenders ineligible for a crack amendment sentence reduction. The Court explained that career offenders sentences are "based on the guideline ranges applied to career offenders under § 4B1.1." Thus the crack quantity amendments, which affected § 2D1.1, "played no role" in the calculation of career offender sentences. The Court noted that USSG § 1B1.1 "further support[ed]" this interpretation, because it provided that a retroactive amendment does not apply when it does not have the effect of lowering the a defendant’s sentence. The Court distinguished other cases in which career offenders did get the benefit of the retroactive amendment, noting that the original sentences in these cases were not based on the career offender guidelines. [Note: In relying on USSG § 1B1.1, the Court did not address whether the Guidelines are advisory in § 3582(c)(2) proceedings].

Gonzalez: No basis for $250,000 fine

In U.S. v. Gonzalez, No. 06-15365 (Sept. 2, 2008), the Court reversed the imposition of a $250,000 fine on a defendant convicted of fraud.
The Court noted that the PSI concluded that the defendant lacked the ability to pay a fine. The district court at sentencing stated without explanation that Gonzalez was able to pay a fine, and imposed a $250,000 fine. This fine was three times the maximum provided by the Guidelines. The defendant objected.
Because the record provided no explanation regarding the basis for the fine, the Court vacated the sentence and remanded for resentencing.