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Criminal Law

Defense Newsletter Blog

Breaking news supplementing the Defense Newsletter covering 11th Circuit and Supreme Court Cases.
By Tim Cone

Post Frequency: 2.1/day

Last Entry: May 07, 2013 at 14:19:00

Dupree v. Warden: Recommending Stricter Review of Unobjected to R&R Issue

Posted on May 07, 2013
In Dupree v. Warden, No. 11-12888 (May 7, 2013), the Court vacated the denial of habeas relief because the district court failed to address all issues raised in a habeas petition, in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc) (district court must address all issues raised in a habeas petition, regardless of whether relief is granted or denied)...

Hamilton: Crack Cocaine offender bears burden to show whether cocaine amount makes him eligible for reduction

Posted on April 24, 2013
In U.S. v. Hamilton, No. 12-10899 (April 23, 2013), the Court reversed the denial of a crack cocaine offender?s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Based on Hamilton?s ?relevant conduct? and the ?reasonably foreseeable acts of others in furtherance of jointly undertaken criminal activity,? the district court at the initial sentencing held Hamilton accountable for ?at least 1...

Williams: Nonexistent precedent precludes habeas relief

Posted on April 24, 2013
In Williams v. Warden, No. 11-13306 (Apr. 11, 2013) (2-1), the Court held that the ?savings clause? of 28 U.S.C. § 2255 did not authorize Williams to bring a habeas petition under 28 U.S.C. § 2241 challenging whether three violent felony predicate convictions supported his sentence enhancement under the Armed Career Criminal Act (ACCA)...

Hinds: Post-FSA Sentencing qualifies for FSA lower minimums

Posted on April 18, 2013
In U.S. v. Hinds, No. 11-16048 (April 9, 2013), the Court held that the Fair Sentencing Act (FSA)?s lower mandatory minimum term applied to a defendant who was resentenced after the FSA took effect. The Court noted that it had not addressed whether the FSA applied to a defendant who was resentenced (as opposed to originally sentenced) post-FSA...

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Melson: Habeas Petitioner failed to Establish Reasonable Diligence

Posted on April 11, 2013
In Melson v. Comm?r, Ala. Dep?t of Corrections, No. 11-13512 (April 4, 2013), the Court affirmed the dismissal as time-barred of Melson?s federal habeas petition. The Court found no need to address whether the AEDPA one-year limitations period should equitably tolled based on Melson?s counsel?s failure to timely file a state post-conviction motion, because Melson?s himself repeatedly failed to pursue his federal habeas proceeding with reasonable diligence.

Overstreet: Wife's Murder is valid basis for upward variance to 420 months

Posted on April 02, 2013
In U.S. v. Overstreet, No. 11-16031 (March 28, 2013), the Court affirmed a 420-month sentence imposed on a defendant convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g), finding that the variance above the Guideline range of 180-188 months was supported by the district court?s finding, by a preponderance of the evidence, that the defendant murdered his wife...

Coronado-Cura: Simple Vehicle Flight is Aggravated Felony

Posted on March 27, 2013
In U.S. v. Coronado-Cura, No. 12-12344 (March 26, 2013), the Court held that ?simple vehicle flight? in violation of Fla. Stat. § 316.1935(2) qualifies as an ?aggravated felony? for purposes of an 8-level Guideline sentence enhancement for a defendant convicted of illegally entering the United States...

Cruz: Target Cashier Abused Her Trust

Posted on March 27, 2013
In U.S. v. Cruz, No. 11-12568 (March 26, 2013), the Court, for an offense involving aggravated identity theft, upheld (1) the imposition of a sentence enhancement under U.S.S.G. § 2B1.10(b)(1) for the use of device-making equipment, and (2) a sentence enhancement under § 3B1...

Carillo-Ayala: Firearms sales make drug trafficker safety-valve ineligible

Posted on March 25, 2013
In U.S. v. Carillo-Ayala, No. 11-14473 (March 22, 2013), the Court held that a defendant who sold drugs and firearms was not eligible for a ?safety-valve? sentence reduction, because of the ?connection? between the firearms and the drugs. Defendants like Carillo-Avala, who are convicted of trafficking in certain quantities of drugs are subject to statutory mandatory minimum sentences ? unless they qualify for the ?safety-valve...

Adkins: Habeas relief for Batson violation

Posted on March 15, 2013
In Adkins v. Warden, No. 11-12389 (Feb. 27, 2013) (2-1), the Court granted habeas relief to an Alabama inmate sentenced to death for a 1988 murder, finding that the State exercised peremptory strikes to eliminate potential black jurors in violation of Batson v...

Nelson: Honest services statute not void-for-vagueness

Posted on March 14, 2013
In U.S. v. Nelson, No. 12-11066 (March 13, 2013) (2-1), the Court rejected a void-for vagueness challenge to the constitutionality of the honest-services mail fraud statute, and affirmed convictions of mail fraud and bribery of a former member of the Board of the Jacksonville, FL Port Authority...

Hippolyte: Mandatory minimum Crack Offender Not Eligible for sentence reduction

Posted on March 14, 2013
In U.S. v. Hippolyte, No. 11-15933 (March 14, 2013), the Court held that a crack cocaine offender sentenced in 1996 to a statutory mandatory minimum sentence was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the recent Guideline Amendments...

Weeks: Judge may find "different occasions" ACCA enhancement

Posted on March 12, 2013
In U.S. v. Weeks, No. 12-11104 (Jan. 31, 2013), the Court affirmed the imposition of a mandatory minimum 180-month sentence under the Armed Career Criminal Act (?ACCA?), rejecting the argument that the sentencing court?s finding that the prior burglary offenses were not ?committed on occasions different from one another? violated the Sixth Amendment, because this finding had to be made by a jury...

Kuhlman: Chiropractor's sentence "substantively unreasonable"

Posted on March 12, 2013
In U.S. v. Kuhlman, No. 11-15959 (March 8, 2013), on a government cross-appeal of a sentence, the Court held that a sentence of probation and community service was ?substantively unreasonable,? for a chiroptractor convicted of health care fraud involving close to $ 3 million...

Hoffman: Mandatory Life Sentence Not Plainly Cruel and Unusual

Posted on March 07, 2013
In U.S. v. Hoffman, No. 12-11529 (Feb. 26, 2013), the Court rejected the argument that a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(viii) was ?cruel and unusual? punishment in violation of the Eighth Amendment. Hoffman argued that his sentence violated the Eighth Amendment because he committed the two prior convictions that triggered the mandatory life sentence when the was a juvenile...

Dell: Constitution does not require "innovative" defense counsel

Posted on March 01, 2013
In Dell v. U.S., No. 11-12904 (Feb. 27, 2013), the Court rejected a claim that defense counsel was constitutionally defective, under Strickland v. Washington, for failing to argue, either during sentencing or on direct appeal, for a downward variance based on the substantial disparity between the Sentencing Guidelines? treat of crack and powder cocaine...

Gandy: Affirming ACCA sentence

Posted on February 28, 2013
In U.S. v. Gandy, No 11-15407 (Feb. 27 , 2013), the Court rejected a challenge to the determination that a defendant?s three prior convictions qualified as ?violent felonies? for purposes of the mandatory 15-year sentence under the Armed Career Criminal Act (?ACCA?)...

Turner: No ACCA relief for 2255 movant

Posted on February 26, 2013
In Turner v. Warden, No. 10-12094 (Feb. 22, 2013), the Court affirmed the denial of a § 2241 motion by a defendant who claimed that his prior offenses did not qualify as ?violent felonies? for purposes of a sentence enhancement under the Armed Career Criminal Act (?ACCA?)...

Joseph: 30 year sentence for physician who dispense drugs unlawfully

Posted on February 25, 2013
In U.S. v. Joseph, No. 09-11984 (Feb. 21, 2013), the Court affirmed the convictions and sentences of a medical physician and his assistant convicted of dispensing controlled substances to drug abusers and pushers without a legitimate medical purpose and outside the usual course of professional conduct, in violation of 21 U...

Izurieta: Rule of Lenity precludes conviction based on arguably non-criminal regulation

Posted on February 22, 2013
In U.S. v. Izurieta, No. 11-13585 (Feb. 22, 2013), the Court, having spotted the issue sua sponte and asked the parties to brief it after oral argument, held that an indictment charging unlawful importation of foods into the United States, in violation of 18 U...

Capers: Insufficient foundation for audio recording of drug buy

Posted on February 19, 2013
In U.S. v. Capers, No 10-14332 (Feb. 14, 2013), the Court affirmed crack-cocaine trafficking convictions in a case involving co-conspirators in Coconut Grove, Florida. Because the defendants were sentenced after the Fair Sentencing Act took effect, the Court remanded for a new sentencing in light of this Act...

Gibson: No Standing to challenge GPS-search of vehicle

Posted on February 14, 2013
In U.S. v. Gibson, No. 10-15629 (Feb. 14, 2013), the Court held that a defendant had standing to challenge the use of a GPS tracking device to locate a vehicle the defendant possessed ? but only when the device was installed, not when the device was later used to seize incriminating evidence while the vehicle was being driven by another person Gibson was not the registered owner of an Avalanche vehicle (it was owned by Burton), but he used it frequently...

Slaughter: No Suppression of statement under Harris

Posted on February 12, 2013
In U.S. v. Slaughter, No. 11-15262 (Feb. 11, 2013), the Court affirmed convictions for use of the internet to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The Court rejected the argument that the district court should have suppressed a statement Slaughter gave to police after they entered his home without a warrant, and brought him to the police station...

Davis: Dismissal of juror "manifestly necessary"

Posted on February 12, 2013
In U.S. v. Davis, No. 12-10938 (Feb. 12, 2013), the Court held that the district court?s declaration of a mistrial after the trial commenced, the dismissal of two jurors, and the defendant?s refusal to proceed with a jury of less than 12, was supported by the doctrine of ?manifest necessity,? and consequently did not violate Double Jeopardy...

In Re Grand Jury Proceedings No. 4-10: Required Records Exemption applies

Posted on February 11, 2013
In In Re: Grand Jury Proceedings, No. 4-10, No. 12-13131 (Feb. 7, 2013), the Court rejected the argument by targets of a grand jury investigation that their Fifth Amendment privilege against self-incrimination shielded their records of foreign bank accounts from production to the government in compliance with a grand jury subpoena...

Colon: Crack cocaine offender not 750 eligible when original sentence was already below new range

Posted on February 11, 2013
In U.S. v. Colon, No. 12-12794 (Feb. 6, 2013), the Court held that a crack cocaine offender who received a downward variance at her original sentencing could not benefit under Amendment 750 to the Sentencing Guidelines for a sentence reduction under 18 U...

Penney: 3.800 Motion not properly filed

Posted on February 05, 2013
In Penney v. Sec., Dep?t of Corrections, No. 10-14628 (Feb. 5, 2013), the Court held that a federal habeas petition was untimely because it was filed after the one-year limitations period under AEDPA.The Court noted that the one-year period is tolled while a state prisoner has a ?properly filed? state post-conviction motion pending in state court...

Fordham:Skilling Not basis for invaliding bribe scheme

Posted on February 01, 2013
In Fordham v. U.S., No. 12-10299 (Jan. 31, 2013), the Court rejected a § 2255 challenge to convictions for defrauding a mental health center.The defendants argued that their convictions should be vacated in light of Skilling v. U.S., 130 S.Ct. 2896 (2010), which limited ?honest-services fraud? under 18 U...

McGuire: Upholding Conviction and Sentence for firing at a helicopter

Posted on January 30, 2013
In U.S. v. McGuire, No. 11-12052 (Jan. 30, 2013), the Court rejected a sufficiency of the evidence challenge to a conviction for violating 18 U.S.C. § 32(a)(1) by firing a single shot from a handgun in the general direction of an airborne police helicopter...

Jimenez: Conflict of Interest alone is insufficient to misapply funds

Posted on January 28, 2013
In U.S. v. Jimenez, No. 11-15039 (Jan. 25, 2013), the Court held that the evidence was insufficient to support a conviction for violating 18 U.S.C. § 666 by intentionally misapplying $5,000 or more from an organization receiving federal funds.Jimenez was Deputy Director of a Head Start program in Hillsborough County, Florida...

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