Roundup of Criminal Law Decisions in the Circuits (02/06/17-02/10/17)

List of published decisions in criminal cases from the federal courts of appeals, along with a sampling of unpublished criminal and prisoner cases.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. Taylor-Affirming convictions related to robbing a postal worker, but vacating the due to incorrect Guidelines calculation. Upheld 924(c) crime of violence application by finding aggravated assault qualified under statute’s force clause, even though aggravated assault was not listed as a predicate crime in the indictment. The Court, however, vacated the sentence due to an erroneous categorization of defendant’s prior larceny conviction as a crime of violence in the Guidelines calculation. (Issues: Exclusion of defense evidence, improper comments in prosecutor’s closing argument, classification of crime of violence, and substantive reasonableness of sentence)

United States v. Irizarry-Colon-Vacating district court’s denial of motion to dismiss the indictment based on violations of the Speedy Trial Clause and remanding to conduct full Barker analysis. District court erred in calculating length of delay by measuring from the fourth indictment, delay should be measured from the initial indictment.(Issues: Speedy Trial (statutory and constitutional) and due process)

United States v. Roman-Huertas-Vacating 46-month sentence for convictions of possession of a firearm by a felon where district court erred in improperly relying on an untranslated document relating to defendant’s prior criminal record.

United States v. Herman-Affirming convictions and 84-month sentence for conspiracy, willful violation of the Investments Advisers Act, wire fraud, and corruptly impeding the administration of internal revenue laws. (Issues: Reasonable doubt jury instruction and refusal to grant downward departures for defendant’s physical impairments and familial caretaking responsibilities)

Second Circuit

No opinions issued in criminal cases

Third Circuit

Williams v. Sec. PA Dep’t Corrections-Court declared that inmates on death row whose death sentences have been vacated have a due process right to avoid continued placement in solitary confinement on death row, absent procedural protections. Two inmates brought a 1983 action alleging due process violations from their extended time in solitary confinement after their death sentence had been vacated and they were awaiting resentencing. One plaintiff was kept in solitary for 6 years after his sentence was vacated, the other 8 years. The Court found plaintiff’s significant and atypical conditions of confinement gave rise to a protected liberty interest. Scientific research on effects of solitary confinement was noted as further informing, contextualizing, and confirming the significant, atypical deprivation solitary confinement can cause. The Court did affirm summary judgment for the State, however, as this right was not clearly established at the time, so officials were entitled to qualified immunity.

Fourth Circuit

United States v. Spencer-Affirming 45-month sentence for mailing a threatening letter. District court’s migration between a sentencing variance and departure was imprecise, but defendant failed to prove the lack of notice affected his substantial rights. The district court failed to provide notice it was considering an upward departure and repeatedly stated it would “upwardly depart” at the hearing. But, its reasons rested on § 3553(a) factors and the Statement of Reasons for the judgment checked the box for a variance sentence. (Issues: Procedural and substantive reasonableness of the sentence)

Gray v. BallardAffirming the denial of petitioner’s writ of habeas corpus as untimely. (Issues: Due diligence)

Fifth Circuit

United States v. Cruz-Romero-Dismissing appeal of 60-month sentence for possession with intent to distribute marijuana. Defendant failed to show government’s opposition to his eligibility for a safety valve adjustment, based on his failure to comply with requirement to provide all information and evidence regarding the offense, was inconsistent with a reasonable understanding of the plea agreement.  (Issue: Enforceability of appellate waiver)

United States v. Shepherd-Affirming 46-month sentence for possession of a firearm by a felon. Any error in Guidelines calculation was harmless where  record clearly showed district court wanted to moot defendant’s objection, and ordered a sentence that effectively granted the defendant’s objection to the calculation. (Issue: Procedural reasonableness of sentence)

United States v. Lobaton-Andrade (unpublished)-Vacating 47-month sentence for illegal reentry after deportation. District court erred in applying 16-level crime of violence enhancement based on an Arkansas manslaughter conviction. The Arkansas manslaughter statute covered a greater swath of conduct than the Guideline’s offense of manslaughter. And, the Government could not establish the Arkansas manslaughter statute was divisible in light of the text and the Arkansas Supreme Court’s interpretation of that text.

Sixth Circuit

United States v. Powell-Affirming the judgments against two defendants for offenses related to a large narcotics distribution operation, but vacating the judgment against the third defendant. District court abused its discretion in insisting the trial go forward without allowing for substitute counsel where the request for new counsel was timely and a month before trial, the inquiry into this was delayed, and there was a complete breakdown in the attorney-client relationship. Affirmed district court’s denial of defendants’ motion to suppress raising a slew of issues, including applying the good faith exception to warrants for real time cell-phone location information and pre-Jones warrantless GPS vehicle tracking, and finding no reasonable expectation of privacy or physical intrusion in warrantless utility-pole camera surveillance. Judge Moore  dissented in part, believing one defendant’s motion to represent himself should have been permitted. (Issues: Fourth Amendment, Sixth Amendment, sufficiency of the evidence)

Seventh Circuit

United States v. Nichols-Affirming  convictions and 27-month sentence for possession of a firearm by a felon. No error in applying the obstruction of justice enhancement, refusing to grant downward adjustment for acceptance of responsibility, or refusing a reduction under the sporting purposes guideline. (Issues: Voluntariness of a statement  and procedural reasonableness of the sentence)

United States v. Hoffman-Affirming 25-year sentence for exploitation of a child and one count of possession of child pornography. Any error in finding § 5G1.3 of the Guidelines inapplicable was harmless where district judge would have declined to impose concurrent sentence. (Issue: Procedural reasonableness of the sentence)

United States v. Patton-Affirming 244-month below-guidelines sentence for drug charges. Although the defendant cooperated with the government in a gun investigation, he disappeared for six months, and, according to the government, protected higher-level sources and families and friends. Government acted within its discretion in refusing to file a substantial-assistance motion. (Issue: Substantial-assistance motion)

United States v. Litos-Vacating a $893,015 restitution order in a mortgage fraud case. Judge Posner pens a devastating rebuke to order’s underlying premise that Bank of America was a victim. The bank was knowingly involved in a potential harmful activity. It knew it would receive mortgage applications from people who would misrepresent financial information to obtain the loan and had no or little likelihood of repayment, but was indifferent because it could sell the mortgages to Fannie Mae. The bank was not a proper victim under the Mandatory Victim Restitution Act. Seventh Circuit instructed district court to consider ordering a fine of the ill-gotten gains on remand. (Issue: Restitution order)

McDaniel v. Polley-Affirming the denial of a writ of habeas corpus filed by a state prisoner sentenced for murder. Petitioner could not show prejudice from his claim that counsel was ineffective in failing to argue his confession was fruit of an unlawful arrest. The confession would have been admissible even if arrest was unlawful, because officer’s conduct was not flagrant or purposeful and intervening events attenuated the confession from the arrest. (Issues: Ineffective assistance of counsel and exclusionary rule (attenuation doctrine exception))

Eighth Circuit

United States v. Johnson-Affirming a 72-month sentence for possession of a firearm by a felon. No error in finding the firearm facilitated possession with intent to distribute in applying § 2K2.1(b)(6)(B) enhancement. (Issue: Procedural reasonableness of the sentence)

United States v. Crossland-Affirming denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Defendant ineligible because his sentences for the drug offenses were based on the applicable statutory maximums, not the Guidelines. (Issue: Sentence reduction)

United States v. LaFontaineAffirming conviction and 18-month sentence for making a threatening communication. (Issues: Prosecutorial misconduct in closing argument, Rule 404(b) evidence, and  conditions of supervised release)

Ninth Circuit

United States v. Loucious-Reversing district court’s order suppressing defendant’s statements during a custodial interrogation. Although Miranda warnings given prior to questioning did not explicitly inform defendant that he had the right to consult an attorney before questioning, the warnings did adequately convey that right to him through inference. (Issue: Miranda rights)

United States v. Peralta-Sanchez-Affirming conviction  for illegal reentry. Court rejected defendant’s argument that his 2012 removal order violated due process and could not serve as the predicate for his conviction. Expedited removal was not fundamentally unfair. There was no prejudice from immigration officer’s failure to notify Mr. Peralta-Sanchez of the possibility of withdrawing his application for admission to the U.S. and denying counsel in an expedited removal proceeding does not violate due process. Judge Pregerson dissented, would hold that there is a due process right to hire a lawyer (at no cost to the government) during expedited removal proceedings. (Issues: Illegal reentry and due process)

Tenth Circuit

United States v. Bowers-Affirming  conviction and 15-month sentence for criminal contempt (18 U.S.C. § 401(3)). Copy of the criminal referral made by district judge who presided over the civil proceedings was not discoverable. (Issues: Conditions of supervised release, discovery, and maximum punishment for 18 U.S.C. § 401(3))

In re: Jones: Denying request for authorization to file a second or successive habeas petition under 28 U.S.C. § 2254. Assuming Hurst announced a new rule of constitutional law, the Supreme Court had not declared the ruling retroactive and thus petitioner could not meet requisites for authorization. (Issue: Procedural requirements for second or successive habeas application from state prisoner)

United States v. Hernandez-Affirming the district court’s order to suppress evidence obtained from illegal seizure. Sufficient show of authority to cross into a seizure where the defendant “was in an unlit area on a dark night with no one else around and with two uniformed and armed officers closely following him in a marked police car after he had indicated by walking away that he did not want to talk to them.” District court did not err in finding stop was based on inchoate suspicions and unparticularized hunches, where government’s suspicion rested on defendant failing to use a sidewalk while dressed in black with two backpacks as he was walking in a high crime area near a construction site that had previously had materials stolen. Court refused to consider fact not argued below- that defendant said he was coming from his grandmother’s house but could not recite her address. Besides, Court didn’t think this fact worthy of much weight anyway. Judge Briscoe dissented, would find a consensual encounter up until police discovered the defendant’s outstanding warrant, or in the alternative, the officers had reasonable articulable suspicion. (Issues: Investigative detention and reasonable suspicion)

United States v. Verduzco (unpublished)-Affirming denial of defendant’s motion for a sentence reduction. District court within its discretion to consider post-sentencing conduct in motion for sentence reduction, including 26 disciplinary infractions some of which exhibited violent behavior. (Issue: Sentence reduction)

United States v. Jordan-Affirming conviction and a 6-month below Guidelines sentence for transmitting a threat in interstate commerce. Rejecting defendant’s claim that  because the defendant had referenced the Columbine shooting in her own threats, the district judge was biased from his own connections to Columbine shooting. (Issue: Judicial bias and procedural reasonableness of sentence)

Eleventh Circuit

United States v. Ortega (unpublished)-Affirming child pornography conviction. Defendant argued that a subpoena issued to Comcast which provided the information supporting probable cause was issued without authorization and in violation of the Electronic Communications Privacy Act. Court rejected argument because the defendant had no reasonable expectation of privacy in subscriber information that was voluntarily transmitted and stored by the third party internet service provider. (Issues: Probable cause for warrant and third-party doctrine)

United States v. Zama (unpublished)-Affirming convictions for aggravated identity theft and conspiracy to commit wire fraud and bank fraud. (Issue: Withdrawing guilty plea)

D.C. Circuit

No opinions issued in criminal cases

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