Roundup of Criminal Law Decisions in the Circuits (01/30/17-02/03/17)

Summary of published decisions in criminal cases from the federal courts of appeals, along with a sampling of unpublished criminal and prisoner cases.

First Circuit

United States v. Pereira-Vacating convictions for conspiracy to smuggle cocaine into the United States and remanding for a new trial due to prosecutorial misconduct. On cross-examination of the defendant, the prosecutor repeatedly asked whether the defendant believed the cooperating witnesses “made up” these allegations as part of a “setup.” Such questioning is improper under the First Circuit’s rule against were-they-lying questions and  Federal Evidence Rule 608(a). Error was not harmless due to extensive and deliberate nature of misconduct, dearth of other evidence, absence of a curative instruction, and court’s participation in the questions.

United States v. Nieves-Mercado-Affirming above guidelines sentence for a carjacking that exceeded recommendation in plea agreement. (Issues: Procedural and substantive reasonableness of sentence)

United States v. Llanos-Falero-Affirming 137-month sentence for bank robbery and brandishing a firearm in relation to a crime of violence, which was to run consecutively with sentences for Puerto Rico law convictions. (Issues: Propriety of plea inquiry and substantive reasonableness of sentence)

United States v. Perez-Diaz-Affirming conviction for possession of child pornography. (Issue: Fourth Amendment challenge regarding curtilage entry and consensual search)

Second Circuit

No opinions in criminal cases issued

Third Circuit

United States v. Steiner-Affirming conviction for  felon in possession of ammunition, but vacating sentence. Court found error in admitting arrest warrant evidence for background purposes was harmless. District court’s use of a 1993 Pennsylvania burglary conviction as a predicate crime of violence, however, was plain error that affected substantial rights. (Note: Supreme Court had issued a grant, vacate, and remand order for reconsideration of decision in light of Mathis v. United States)

United States v. Mercer (not precedential):  Affirming 168-month sentence for conspiracy to distribute heroin. (Issue: expressly calculating sentence under Guidelines)

United States v. Stroman (not precedential): Affirming within-Guidelines sentence of 151 months for conspiracy to distribute heroin. (Issue: Procedural and substantive reasonableness of sentence)

United States v. Santana (not precedential): Affirming 168-month sentence for conspiracy to distribute heroin. (Issue: Classification as a career offender)

United States v. Bagley (not precedential): Affirming conviction for counterfeiting Federal Reserve notes. (Issue: Particularity of warrant)

Fourth Circuit

United States v. Dozier-Affirming 151-month sentence for distributing cocaine base. Court found harmless error in applying the modified categorical approach to state’s general attempt statute. Court held that sentencing courts must compare the state and generic elements of general attempt statutes when determining whether a prior attempt conviction qualifies as a controlled substance offense. (Issue: Classification as career offender)

United States v. Chittenden-Affirming convictions for mail fraud, bank fraud, and conspiracy  to commit bank fraud. (Issues: Pretrial seizure of assets, sufficiency of the evidence, admission of co-conspirator’s hearsay, constructive amendment of the indictment, and post-trial forfeiture order)

United States v. Evans-Affirming sentence for convictions of robbery, carjacking and  924(c). Court found carjacking statute (18 U.S.C. § 2119) qualifies as a crime of violence under 924(c). (Issue: Classification of a crime of violence)

United States v. Brown (unpublished)-Vacating 24-month sentence imposed upon revocation of supervised release. Court’s failure to abide by requirement that it consider the policy statement range for revocation sentences was unreasonable.

United States v. Jenkins (unpublished)-Affirming 150-month sentence for conspiracy to manufacture methamphetamine, but vacating part of the district court’s forfeiture order. Plain error to order forfeiture where superseding indictment did not contain a forfeiture allegation and the court did not enter a preliminary order of forfeiture prior to the sentencing hearing. (Issues: Substantive reasonableness of sentence and validity of forfeiture order)

United States v. Brown (unpublished)-Affirming conviction for felon in possession of a firearm. (Issue: Existence of probable cause for search)

United States v. Tucker (unpublished)-Affirming 84-month sentence for armed bank robbery. (Issue: Constitutional challenge to mandatory minimum sentence)

United States v. Campbell (unpublished)-Affirming 180-month sentence for felon in possession of a firearm and ammunition. (Issue: Existence of probable cause for search warrant)

United States v. Swiger (unpublished)-Affirming conviction for felon in possession of a firearm. (Issue: Validity of stop and frisk)

United States v. Ramer (unpublished)-Affirming 108-month sentence for conspiracy, wire fraud, and money laundering offenses. (Issue: Procedural and substantive reasonableness of sentence)

Fifth Circuit

United States v. Williams-Affirming  24 month sentence imposed upon revocation of supervised release. (Issue: Admission of hearsay at revocation hearing)

United States v. Chapple-Affirming denial of sentence reduction under 18 U.S.C. § 3582(c)(2). Court found Mr. Chapple ineligible for reduction because he already completed sentence eligible for reduction and was serving time for subsequent offenses. Since Mr. Chapple received his consecutive sentences on separate occasions, the Court sidestepped his argument that consecutive or concurrent imprisonment terms  should be treated as a single, aggregate term of imprisonment.

United States v. Buck-Affirming  convictions for offenses related to a a Hobbs Act robbery and sentences in excess of 100 years. Court found no error in classifying a Hobbs Act robbery as a crime of violence under § 924(c)(3)(A). (Issues: Constitutionality of retrial, jury instructions, sentencing (abduction enhancement, Eighth Amendment), restitution)

 United States v. Thomas-Affirming 36-month sentence and convictions for theft from a program receiving federal funds, money laundering, and payment structuring. Jury could reasonably find that contractor for the New Orleans Traffic court who provided accounting services was an agent of the City of New Orleans. (Issues: sufficiency of the evidence, admission of expert testimony and 404(b) evidence, and Batson)

United States v. Mendez-Henriquez-Affirming 44-month sentence for illegal reentry after removal. California conviction for maliciously and willfully discharging a firearm at an occupied motor vehicle qualified as a crime of violence under  § 2L1.2 of the Guidelines. Judge Costa dissented.

United States v. Jarman-Affirming convictions for receipt and attempted receipt of child pornography. Good faith exception applied to any defects in search warrant and any delay in government’s post-seizure review of defendant’s computer data was reasonable under the circumstances. (Issues: Good faith exception, probable cause warrant delay in search)

United States v. Mendoza-Velasquez-Affirming participation in a mental health program and costs associated with the program (based on ability to pay) as a special condition of supervised release. Requiring participation in a mental health program does not so seriously undermine fairness, integrity, or the court’s public reputation to require correction.

United States v. Renteria-Martinez-Affirming 16-level enhancement for prior Texas drug trafficking offense under § 2L1.2  under plain error review. Court found error in applying the 16-level enhancement as Guidelines’s criteria for drug trafficking offense was not satisfied. The PSR described the prior conviction as a felony drug trafficking offense (possession of cocaine with intent to deliver (greater than 4 grams, but less than 200 grams). The state court judgment, however, indicated the conviction was for unlawful possession of cocaine; a second-degree offense. The Court declined to correct the error as the state court documents, other than the judgment, indicated the prior conviction did involve a felony intent to deliver.

United States v. Montiel-Cortes-Affirming 16-level enhancement for crime of violence under § 2L1.2. Court found that a conviction under Nevada’s robbery statute, Nev. Rev. Stat. Ann § 200.380, necessarily is a crime of violence under the categorical framework.

Sixth Circuit

United States v. LaVictor-Affirming convictions for sexual and physical assaults committed on an Indian reservation. Court found no error in challenged evidentiary rulings, including (1) admitting expert testimony on domestic violence and victim recantation based on witness’s personal experience in interviewing victims of domestic abuse, (2) admitting 404(b) evidence about Mr. LaVictor’s prior assaults against women to demonstrate the absence of mistake and intent to commit the assault, and (3) admitting Rule 413 evidence on two alleged prior rapes committed by Mr. LaVictor. (Issues: Expert testimony, 404(b) evidence, Rule 413 evidence, admission of grand jury testimony, due process, cumulative error, and sufficiency of the evidence).

Seventh Circuit

United States v. Rivera-Affirming mandatory minimum sentence for convictions of Hobbs Act robberies and brandishing a firearm in furtherance of a crime of violence. Reaffirming a previous decision that a Hobbs Act robbery qualifies as a crime of violence under §  924(c) against an argument that Mathis v. United States undermines that decision. Also, district court’s statement it was “obliged” to impose 5-year supervised release term (the maximum) indicated a moral rather than a legal duty. (Issues: Classification of crime of violence and imposition of supervised release term)

Brown v. Brown-Reversing district court’s dismissal of Mr. Brown’s habeas corpus petition and remanding for an evidentiary hearing. Court held that the Martinez-Trevino doctrine can apply to claims for ineffective assistance of counsel arising from the Indiana state courts. Although Indiana law does not always require ineffective assistance by trial counsel claims to be brought on collateral review, Indiana’s Supreme Court has adopted rules and doctrines that strongly discourage any other path. In practice, discouragement by Indiana’s Supreme Court has worked to force all such claims to wait for collateral review. Judge Skyes dissented. (Issues: Ineffective assistance of counsel for failure to demand Bruton limiting instruction and procedural default)

Tatum v. Foster-Reversing district court’s denial of Mr. Tatum’s habeas corpus petition and remanding with instructions to issue the writ of habeas corpus unless the state initiates a new trial. Wisconsin courts’ consideration of competence in the sense of accomplishment rather than mental functioning resulted in a contrary and unreasonable application of the Supreme Court’s right to self-representation cases. (Issues: Right to self-representation)

United States v. Kohli-Affirming convictions for prescribing narcotics without a legitimate medical purpose (21 U.S.C. §  841(a)). (Issues: Sufficiency of the evidence, admission of expert testimony under Rule 704, impeachment by contradiction on collateral matters, jury instruction)

United States v. Covarrubias-Affirming convictions for conspiracy and possession with intent to distribute methamphetamine. Motion to suppress correctly denied where defendant lacked standing to contest the admission of drugs into evidence. (Issue: Standing to challenge a search)

United States v. Hollins-Affirming 28-month imposed upon revocation of supervised. (Issues: Procedural and substantive reasonableness of sentence)

United States v. SchenianAffirming 144-month sentence for drug and firearms charges. Court found remand in light of prosecutor’s error in reading drug tests would be a waste of time as district judge had clarified this correction did not alter his sentencing decision. (Issues: Procedural sentencing challenge)

Delatorre v. United States-Affirming denial of § 2255 motion. (Issues: Procedural default, prosecutorial misconduct, and ineffective assistance of counsel)

Eighth Circuit

United States v. Lamb-Affirming conviction for being a felon in possession of a firearm and 180-month mandatory minimum under Armed Career Criminal Act. Supreme Court issued a grant, vacate, and remand order for reconsideration in light of Mathis v. United States. Court concluded Mr. Lamb’s prior Michigan robbery convictions still qualified as ACCA violent felonies. (Issue: Classification of violent felony)

United States v. Sims-Affirming convictions or conspiring to distribute and aiding and abetting distribution of heroin, and being a felon in possession of a firearm. Government not blameworthy for a 12.5 month delay to seek an interlocutory appeal of ruling to exclude DNA evidence as a sanction for government’s late discovery disclosure, nor did Mr. Sims establish prejudice from the delay.  (Issues: Right to a speedy trial)

United States v. McCoy-Affirming 121-month sentence for possessing child pornography. (Issues: Warrantless search on supervised release, sufficiency of evidence, and denial of downward departure)

United States v. Russell-Affirming convictions for being a felon in possession of a firearm. (Issues: Existence of probable cause to search vehicle)

United States v. Plume-Affirming convictions for assault resulting in serious bodily injury and child abuse. (Issues: Sufficiency of the evidence, Confrontation Clause, and abuse of discretion in excluding evidence)

United States v. Lynch (unpublished)-Affirming conviction for being a felon in possession of a firearm. (Issues: Prosecutorial misconduct and Compulsory Process Clause)

Ninth Circuit

United States v. Laursen-Affirming convictions for production and possession of child pornography. Court found taking consensual nude selfies involving a 45-year-old man and 16-year-old girl was sufficient to violate federal criminal laws on child pornography. Adopting the plain meaning of use (to put into action or employ), Mr. Laursen “used” the minor to produce explicit images by telling her they looked good together and “he wanted to take pictures.” Judge Hawkins wrote a concurrence stating he would require the government to show some “taking unfair advantage of” the minor to establish “uses” under the statute. (Issues: Sufficiency of the evidence, constitutional challenge to the law (overbroad, vague, and violated Tenth Amendment), and evidentiary challenges)

United States v. Niebla-Torres-Affirming convictions for conspiracy to possess with intent to distribute marijuana. (Issues: Sufficiency of evidence and corpus delicti doctrine)

Dixon v. Baker-Reversing district court’s dismissal of Mr. Dixon’s habeas petition and remanding with instructions to enter a stay while Mr. Dixon pursues his unexhausted claims in state court. District court should have granted stay where Mr. Dixon established good cause and at least one of his unexhausted claims was not plainly meritless. (Issues: Exhaustion of state claims and ineffective assistance of counsel)

Tenth Circuit

United States v. Henry-Vacating 24-month sentence upon revocation of supervised release. (Issue: Procedural reasonableness of sentence) (Opinion written by Judge Gorsuch)

United States v. Evans (unpublished)-Vacating 121-month sentence for mail and wire fraud, and remanding to resentence Mr. Evans without applying enhancements for loss or the number of victims. (Issue: Procedural reasonableness of sentence)

United States v. Jones (unpublished)-Affirming 48-month sentence for second violation of supervised release. (Issue: Substantive reasonableness of sentence)

United States v. Dickerson (unpublished)-Affirming 121-month sentence for conspiracy and robbery offenses, but reversing restitution order. (Issues: Procedural and substantive reasonableness of sentence and restitution)

United States v. Fykes (unpublished)-Affirming convictions for felon in possession of a firearm and 60-month sentence. (Issues: Existence of probable cause for arrest, jury instruction, and procedural and substantive reasonableness of sentence)

Eleventh Circuit 

United States v. Scheels-Affirming 600-month sentence for production and receipt of child pornography. No error in applying enhancement for portrayal of sadistic or masochistic conduct, where the conduct was directed at the defendant rather than the child victim. (Issues: Procedural reasonableness of sentence)

D.C. Circuit

No opinions in criminal cases issued

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