Sentencing
[11/20]
US v. McElroy
Defendants' sentence and conviction for conspiring to defraud the US of employment and income taxes and to commit insurance fraud by use of the mails and for procuring false tax returns is affirmed where: 1) a denial of motion to suppress evidence found at a certain address was correct as the evidence was sufficient to support a finding of probable cause; 2) prosecutor's remarks regarding a trial exhibit did not constitute reversible error; 3) district court did not commit reversible error by admitting into evidence summary testimony and charts; 4) district court did not commit reversible error by allowing the prosecutors to elicit out-of-court testimony identifying one of the defendants; and 5) district court did not err in including unpaid state taxes in the total tax loss amount used to calculate the base offense level for sentencing the defendants.
[11/20]
US v. Thompson
Defendant's sentence to 28 months' imprisonment for possession with intent to distribute cocaine base is affirmed as the district court properly attributed six criminal history points to defendant's prior convictions and two additional points under U.S.S.G. section 4A1.1(e) because the instant offense occurred less than two years after his release from his juvenile confinement, for a total of eight criminal history points and a sentencing guidelines range of 24 to 30 months.
[11/20]
White v. Howes
District court's grant of petition for habeas relief on the ground that the trial court violated the Double Jeopardy Clause by convicting defendant for both the felon in possession statute and the felony firearm statute is reversed as current jurisprudence allows for multiple punishment for the same offense provided the legislature has clearly indicated its intent to so provide and recognizes no exception for necessarily included or overlapping offenses.
[11/18]
US v. Varela
Defendant's firearm possession conviction is affirmed where, according to the Sentencing Guidelines, if a defendant possesses a firearm in connection with the commission of another offense, the district court must apply the offense level for the other offense if the resulting offense level is higher than the offense level as calculated under the provision governing the unlawful possession of firearms.
[11/18]
US v. Johnson
Defendant's sentence for unlawful possession of a firearm by a person previously convicted of a felony is vacated and remanded where: 1) the district court is restricted to considering the materials outlined by the Supreme Court in Sheppard for the sole purpose of determining to which part of the Pennsylvania simple assault statute defendant actually pled guilty to; and 2) in the even the materials do not demonstrate the mens rea to which defendant pled guilty, his simple assault conviction cannot qualify as a crime of violence in this case in light of the government's representation that it does not seek to define that conviction as a crime of violence to the extent it is premised on reckless conduct.
[11/17]
US v. Daniels
Denial of defendant's petition under 28 U.S.C. section 2255 for relief from his marijuana possession sentence is affirmed where, notwithstanding its procedural dismissal based on deferred adjudication, defendant's Texas guilty plea for aggravated assault could count toward defendant's status as a career offender under the Sentencing Guidelines.
[11/17]
People v. Phu
Trial court's order requiring defendant to pay $24,752.35 in restitution to the Municipal Utility District (MUD) after pleading no contest to conspiracy to sell marijuana is affirmed as, under the circumstances, it was reasonable to use the earlier date of when the defendant subscribed for utilities rather than the date when the MUD first determined that power was being illegally diverted into the house.
[11/17]
US v. Pena
Defendant's conviction and sentence for possession of cocaine base with intent to distribute and carrying a firearm is affirmed primarily where: 1) the district court did not err in admitting the testimony of state troopers regarding fingerprint evidence and numerous courts have found expert testimony on fingerprint identification based on the ACE-V method to be sufficiently reliable under Daubert; and 2) the totality of the evidence was sufficient to support the verdict.
[11/17]
US v. Harcum
District court's sentence of defendant to 235-month imprisonment on his conviction for being a felon in possession of a firearm is vacated and remanded as the district court erred when it looked to and relied on the Statement of Charges in determining that defendant's Maryland second-degree assault conviction qualified as a violent felony conviction under the Armed Career Criminal Act (ACCA), as the Statement of Charges was not incorporated into the information.
[11/17]
US v. Stewart
Defendants' convictions for violating government restrictions on communications and other contacts with Sheikh Omar Ahmad Ali Abdel Rahman, a high-security federal prisoner, are affirmed in part where: 1) defendants concealed their efforts to obtain statements from Rahman to publicize on his behalf; 2) Rahman's attorney agreed to the restrictions and thus could not collaterally attack their constitutionality; and 3) a reasonable jury could have found that defendants participated in a conspiracy to murder persons abroad. However, the sentence of one defendant, who was Rahman's attorney, is vacated where the district court needed to 1) reconsider the extent to which her status as a lawyer affected the appropriate sentence; and 2) determine whether defendant's conduct was perjurious and, if so, determine its effect on her sentence.
[11/17]
US v. Livesay
In a case arising from the huge accounting fraud conspiracy at HealthSouth Corporation, defendant's securities fraud sentence is vacated on appeal by the government where the purely probationary sentence imposed by the district court was patently unreasonable in light of defendant's role in the massive corporate fraud at issue. The court of appeals further rules that any sentence of probation would be unreasonable given the magnitude and seriousness of defendant's criminal conduct, and only the imposition of a meaningful period of incarceration will achieve Congressional sentencing goals.
[11/16]
US v. Bain
Defendant's child pornography sentence is affirmed where: 1) although the district court committed Gall error by requiring extraordinary circumstances to justify the requested non-Guidelines sentence, defendant failed to establish a reasonable probability that he would have received a lower sentence absent the error; and 2) the sentence was not outside the range of choice dictated by the facts of the case.
[11/16]
Wong v. Belmontes
In capital habeas proceedings, a circuit court's order requiring the petition to be granted is reversed where petitioner did not establish that defense counsel prejudiced petitioner by providing him ineffective assistance at the penalty phase of his trial, because petitioner failed to show a reasonable probability that the jury would have rejected a capital sentence after it weighed the entire body of mitigating evidence against the entire body of aggravating evidence.
[11/16]
Langhorne v. Sup. Ct.
Petitions for writ of mandate challenging trial court's denial of petitioners' motions to dismiss recommitment petitions, brought after the trial court granted People's motions to convert petitioners' involuntary two-year commitment under the Sexually Violent Predator Act (SVPA) to an indeterminate term under the 2006 amendment to the SVPA, are denied where: 1) substantial evidence supports the trial court's finding that the People made a good faith mistake of law when they failed to timely file the recommitment petitions before the expirations of petitioners' most recent two-year commitment periods; 2) the good-faith exception of section 6601(a)(2) precludes dismissal of the untimely recommitment petitions because petitioners' unlawful custody was due to People's mistake of law; and 3) therefore, the trial court properly denied petitioners' motions to dismiss and the court has jurisdiction to proceed on the petitions.
[11/13]
People v. Pakes
Defendant's sentence to an indeterminate term of 25 years to life to run consecutive to a determinate term of four years for child endangerment, evading a police officer, and hit and run causing property damage, is reversed and remanded for resentencing where the trial court's determination that defendant maintained multiple criminal objectives with regard to his conviction for evading a police officer was not supported by sufficient evidence. Also, on resentencing, the court may reconsider its ruling on a one-year prior enhancement pursuant to Penal Code section 1385.
[11/13]
Puglisi v. US
In an appeal from the district court's denial of defendant's 28 U.S.C. section 2255 motion to vacate his conviction and sentence due to ineffective assistance of counsel, the order is affirmed where defendant failed to produce or identify evidence of actual prejudice.
[11/12]
US v. Jensen
Defendant's drug conspiracy sentence is vacated where the Supreme Court's decisions in Gall and Burns changed the law of the circuit and granted authority to district courts that they lacked under the Eighth Circuit's pre-Gall precedents, including the authority to make certain major reductions in the absence of extraordinary assistance.
[11/10]
US v. Jasso
Defendant's illegal reentry sentence is affirmed where: 1) the district court erred in assigning defendant two additional criminal history points, pursuant to U.S.S.G. sections 4A1.2(e) and (k), based on his prior assault conviction in state court, because it was error to count defendant's entire sentence issued upon his violation of probation, rather than considering only the portion of the sentence he actually served; but 2) the error did not affect defendant's substantial rights and thus was not plain error.
[11/10]
US v. Reeves
Defendant's drug possession sentence is affirmed where: 1) the district court did not err in imposing an obstruction of justice enhancement because defendant failed to appear at his arraignment hearing; and 2) the district court did not plainly err in concluding that defendant's acceptance of responsibility, which did not occur until after he was re-arrested for another crime, was insufficiently timely to warrant a reduction for acceptance of responsibility.
[11/10]
US v. Hasan
Defendant's conviction and sentence for making a false statement on a passport application is affirmed where: 1) 18 U.S.C. section 1542 does not require that the false statement on a passport application be "material"; and 2) the district court did not err in imposing an enhancement for obstruction of justice where defendant's abduction of his children prevented proper legal proceedings from occurring by taking matters completely outside the purview of the administration of justice.
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