Criminal Law

Hunter: Mental Retardation Tolls AEDPA deadline

Posted on November 20, 2009
In Hunter v. Ferrell, No. 08-16597 (Nov. 18, 2009), the Court held that despite the fact that an Alabama inmate missed the deadline for filing a federal habeas petition by eight years, because of his mental retardation he was entitled to an evidentiary hearing on whether the filing deadline should be equitably tolled on account of his retardation...

Hammond: Death penalty affirmed for Georgia inmate

Posted on November 09, 2009
In Hammond v. Hall, No. 08-11109 (Nov. 4, 2009) (Carnes, Marcus, Pryor), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1988 murder.The Court rejected Hammond?s Brady claim that the State suppressed its suspicions that the female accomplice who testified for the State against Hammond at trial had been his accomplice in prior assaults...

Brown: SORNA provides adequate registration requirement notice

Posted on November 05, 2009
In U.S. v. Brown, No. 08-17244 (Nov. 5, 2009), the Court affirmed a conviction for failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), and the imposition of a sentence that included a life term of supervised release...

Sanchez: Errors in 3559 sentence enhancements

Posted on November 03, 2009
In U.S. v. Sanchez, No. 06-15143 (Oct. 30, 2009), the Court affirmed convictions of several defendants relating to the attempted burglary of a marijuana grow-house.The Court rejected defense challenges to the admission of cell phone records, finding them to be reliable business records...

To access blog feed reader register for free. (You will also learn about new ways to read and access the freshest law blogs.)

Harris: Fleeing Police at High Speed is "Crime of Violence"

Posted on November 03, 2009
In U.S. v. Harris, No. 08-15909 (Nov. 3, 2009), the Court affirmed reliance on a prior Florida state conviction for eluding a police officer at a high rate of speed as a ?crime of violence? for Guidelines criminal history sentence enhancement purposes...

Tate: 946-month sentence affirmed for bank robber

Posted on November 02, 2009
In U.S. v. Tate, No. 09-10288 (Oct. 30, 2009), the Court affirmed a defendant?s convictions for multiple bank robberies and firearm-possessions.The Court rejected Tate?s challenge to the warrantless search of his home. The Court pointed out that probable cause suffices to justify search of a home when one would expect the defendant to have hidden stolen materials at his home...

Maples: No Excuse for Procedural Default

Posted on October 27, 2009
In Maples v. Allen, No. 07-15187 (Oct. 26, 2009), the Court affirmed the denial of habeas relief to an Alabama death-row inmate.After his murder conviction and death sentence were affirmed on direct appeal in the Alabama courts, Maples, represented by counsel, filed for collateral relief in Alabama state court...

Velez: Criminal Defense attorney transactions exempt

Posted on October 27, 2009
In U.S. v. Velez, No. 09-10199 (Oct. 26, 2009), the Court affirmed the district court?s dismissal of a money-laundering count in a prosecution against a criminal defense lawyer, in which the government charged that the lawyer approved of the transfer of funds for a drug dealer?s defense knowing that they were derived from criminal activity...

Quintina: Ethnicity not basis for police encounter

Posted on October 23, 2009
In U.S. v. Quintana, No. 08-12967 (Oct. 22, 2009), the Court rejected a defendant?s claim that his right to Equal Protection was violated when the police initiated a consensual encounter with him ? an encounter which ultimately led to a conviction for illegal re-entry in violation of 8 U...

Chavez: Simultaneous Bench and Jury Trials Ok

Posted on October 16, 2009
In U.S. v. Chavez, No. 08-12638 (Oct. 16, 2009), the Court affirmed drug trafficking convictions and sentences.Several defendants were indicted in the case. One pled not guilty. Four pled guilty but reserved the right to have a bench trial requiring proof beyond a reasonable doubt as to the drug quantities...

Martinez: Orchestrator not automatically organizer

Posted on October 05, 2009
In U.S. v. Martinez, No. 08-13846 (Oct. 5, 2009) (Marcus, Hill & Voorhees, b.d.), the Court reversed an "organizer or leader" sentence enhancement, under USSG § 3B1.1(a), that had been imposed on a defendant convicted of marijuana trafficking.At his plea colloquy, Martinez admitted that he "orchestrated" weekly shipments of mail parcels containing marijuana from Texas to various locations in the Middle District of Florida...

Faris: Proposed Guideline Amendment does not affect binding Circuit precedent

Posted on September 23, 2009
In U.S. v. Faris, No. 08-16336 (Sept. 23, 2009), the Court upheld the conviction and sentence of a defendant convicted of possession of child pornography, and enticing a minor to engage in sexual activity.The Court rejected Faris? argument that his prosecution violated the Commerce Clause...

Rhode: No ineffective investigation of mitigation

Posted on September 21, 2009
In Rhode v. Hall, No. 08-16960 (Sept. 17, 2009), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders.The Court rejected all of Rhode?s ineffective assistance of counsel claims. The Court found that counsel adequately investigated mitigation evidence, having, inter alia, traveled out of state to interview ten possible mitigation witnesses...

Segarra: 924(c) means consecutive sentences in all cases

Posted on September 16, 2009
In U.S. v. Segarra, No. 08-17181 (Sept. 15, 2009), the Court, joining the majority of Circuits to have addressed this question of statutory interpretation, held that 18 U.S.C. § 924(c) mandates a consecutive sentence for firearm possession offense in furtherance of a drug trafficking crime, even when the statutory mandatory minimum for the drug trafficking crime exceeds the mandatory minimum for the firearms offense...

Jordan: Rejecting Government Cross-Appeal of Probation Sentence

Posted on September 11, 2009
In U.S. v. Jordan, No. 06-12563 (Sept. 11, 2009), the Court affirmed convictions and sentences arising out of an Alabama Sheriff?s unlawful use of the National Crime Information Center database to obtain the criminal records of those who voted in a Sheriff?s reelection race (which the Sheriff lost)...

Garcia-Bercovich: Shrink wrapped boxes part of same package

Posted on September 10, 2009
In U.S. v. Garcia-Bercovich, No. 08-12061 (Sept. 10, 2009), the Court affirmed convictions for marijuana trafficking.The Court rejected the defendant?s challenge to the sufficiency of the evidence. Garcia-Bercovich traveled across the United States to pick up packages for an individual he barely knew...

Johnson: State Probation does not Suspend Federal Supervised Release

Posted on September 03, 2009
In U.S. v. Johnson, No. 09-10351 (Sept. 2, 2009), the Court held that time spent serving a State sentence on probation, while under a federal sentence of supervised release, does toll the running of the period of supervised release. The fact that the State sentence of imprisonment was suspended so that Johnson could serve it on probation did not affect the tolling analysis...

McIntosh: Second Indictment must be dismissed after guilty plea to first indictment

Posted on August 28, 2009
In U.S. v. McIntosh, No. 08-15549 (Aug. 27, 2009), the Court held that Double Jeopardy barred the government from indicting a defendant for a second time, after the defendant pled guilty to a first indictment charging the same offenses, but on different (erroneous) dates...

Felts: No Plain Error in not instructing jury in the conjunctive

Posted on August 24, 2009
In U.S. v. Felts, No. 08-11450 (Aug. 21, 2009), the Court held that there was no plain error in a money laundering jury instruction.The money laundering statute at issue made it unlawful to transport funds either to promote specified unlawful activity, or to conceal the nature of the proceeds of the specified unlawful activity...

Maxwell: Convictions for MIA Contract Fraud Affirmed

Posted on August 19, 2009
In U.S. v. Maxwell, No. 07-11301 (Aug. 19, 2009), the Court affirmed convictions and sentences arising out of a fraudulent scheme to obtain construction contracts for work at Miami International Airport set aside for socially and economically disadvantaged companies...

Bonilla: Double Jeopardy Violation in Identity Theft Charges

Posted on August 18, 2009
In U.S. v. Bonilla, No. 08-112127 (Aug. 18, 2009), the Court ? on plain error review after a guilty plea ? reversed identify theft convictions, because the indictment was multiplicitous and violative of Double Jeopardy.The defendant was convicted under both 18 U...

Kaley: Defendants entitled to hearing on seizure of assets pretrial

Posted on August 18, 2009
In U.S. v. Kaley, No. 07-13010 (Aug. 18, 2009), the Court held that the district court should have held an evidentiary hearing to determine whether to lift an injunction preventing the defendants from encumbering their home in order to raise money to pay for defense counsel...

Ponce: Georgia Commercial Vehicle Inspection Is Valid

Posted on August 17, 2009
In U.S. v. Ponce-Aldona, No. 08-13144 (Aug. 12, 2009), the Court rejected a Fourth Amendment challenge to a "safety checkpoint" stop of the defendant?s truck.Georgia police set up a safety checkpoint at an exit to I-85 northbound, to pull over commercial vehicles for inspection...

Windom: Counsel not ineffective in death penalty phase

Posted on August 11, 2009
In Windom v. Sec. Dep?t of Corrections, No. 07-15876 (Aug. 10, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for three murders in 1992.The Court found that even assuming Windom?s counsel?s limited investigation into Wiondom?s background and mental health constituted deficient performance, Windom was not prejudiced thereby...

Bobb: No Double Jeopardy Violation on Receiving and Posssing Child Porn

Posted on August 06, 2009
In U.S. v. Bobb, No. 07-13252 (Aug. 6, 2009), the Court rejected a Double Jeopardy challenge to convictions for receiving and possessing child pornography.The Court agreed with Bobb that in the abstract it could violate Double Jeopardy to prosecute a defendant for both "receiving" and "possessing" child pornography, because this would be multiple punishment for the same offense...

Philmore: Right to Counsel did not yet attach

Posted on July 24, 2009
In Philmore v. McNeil, No. 07-13637 (July 23, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1997 murder.The Court rejected Philmore?s ineffective assistance of counsel claim. Philmore argued that his defense counsel in a bank robbery case was ineffective in allowingd him to speak to law enforcement...

Carroll: Atkins does not compel post-conviction hearing

Posted on July 23, 2009
In Carroll v. Sec. DOC, No. 08-14317 (July 17, 2009), the Court found no constitutional violation in a Florida state court?s denial of an evidentiary hearing, in post-conviction hearings, to a death row inmate who claimed his mental retardation exempted him from the death penalty...

Dasher: A piece of foolish advice

Posted on July 13, 2009
In Dasher v. Witt, No. 08-10363 (11th Cir. July 13, 2009), the Court granted habeas relief based on ineffective assistance of counselDasher decided to reject a plea offer to be sentenced to 13 months, and opted to plead guilty to cocaine trafficking charges "straight up," that is, without any agreement, based on his attorney?s advice that he doubted the sentence would exceed 13 months, and might be less...

Land: Prosecutor Speculation in Closing Argument Error, but Not Reversible Error

Posted on July 10, 2009
In Land v. Allen, No. 08-15254 (July 10, 2009), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for murder.The Court held that despite evidence that a statement was taken from Land by Alabama police while he was in a semi-fetal position, with his hands covering his face, the totality of the circumstances did not indicate that his statement was involuntary...

Goings: Ok for Georgia police to chase into Florida unauthorized

Posted on July 09, 2009
In U.S. v. Goings, No. 08-15705 (July 7, 2009), the Court, citing the Supreme Court?s recent decision in Virginia v. Moore, 128 S.Ct. 1598 (2008) (no Fourth Amendment violation when police officer makes an arrest prohibited by state law but based on probable cause), held that no Fourth Amendment violation occurred when Georgia police, in a hot pursuit car chase, crossed into Florida without authorization and apprehended a defendant...

Valencia-Trujillo: No Extradition Treaty, No Standing

Posted on July 08, 2009
In U.S. v. Valencia-Trujillo, No. 07-10524 (July 7, 2009), the Court affirmed the conviction and sentence of a defendant extradited from Colombia for cocaine trafficking.The Court rejected the defendant?s "rule of specialty" argument, which claimed that he had been prosecuted in the United States for crimes outside the scope of Colombia?s extradition...

Thomas: Law of the case doctrine does not preclude certain 2255 issues

Posted on July 02, 2009
In Thomas v. U.S., No. 06-15651 (June 30, 2009), the Court held that the "law of the case" doctrine did not preclude a federal inmate, in a § 2255 proceeding, from raising a claim of (1) ineffective assistance of counsel, and (2) infirmity of a prior state convictions which called into question his "career offender" status...

Tagg: Pipe Bombs Not Protected by Second Amendment

Posted on July 02, 2009
In U.S. v. Tagg, No 08-16860 (June 30, 2009), the Court affirmed the conviction of a defendant charged with aiding and abetting in the possession of a pipe-bomb.The Court rejected Tagg?s challenge to the sufficiency of the evidence, pointing out that his conduct in helping persons purchase gunpowder, watching them build pipe bombs in his garage, and telling them to go light the bombs somewhere else, sufficed...

Gari: I-123 Immigration forms if Confrontation Clause error, harmless error

Posted on July 02, 2009
In U.S. v. Gari, No. 08-10014 (June 30, 2009), the Court affirmed certain Cuban alien-smuggling convictions, reversed others, and remanded for resentencing.The Court found sufficient evidence to convict the defendants of several counts of alien smuggling...

Moran: No Notice Required Pre-Sentencing for Supervised Release Conditions

Posted on July 02, 2009
In U.S. v. Moran, No. 08-16987 (July 1, 2009), the Court found no error in the sentencing court?s imposition, without prior notice in advance of sentencing, of special conditions of supervised release to address a defendant?s proclivity to sexual misconduct...

Wilk: Self defense not available when defendant had reason to know law enforcement was entering his home

Posted on July 01, 2009
In U.S. v. Wilk, No. 07-14176 (June 29, 2009), the Court affirmed the conviction and sentence of a defendant charged with killing a state law enforcement officer assisting in a federal investigation.Law enforcement officers, suspecting Wilk of possession of impeding a federal investigation, forcibly entered Wilk?s home...

Barner: Prosecutor misled court on reasons for not giving 5K1.1 reduction

Posted on July 01, 2009
In U.S. v. Barner, No. 08-10080 (June 29, 2009), the Court affirmed the conviction of a defendant charged with possession of ecstasy, but reversed the sentence.The Court rejected Barner?s claim that statements were obtained from him in violation of Miranda...

Doorball: State waiver dooms federal habeas petition

Posted on July 01, 2009
In Doorbal v. Dept. of Corrections, No. 08-15869 (June 29, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1994 and 1995 murders.The Court found that the Florida Supreme Court had earlier ruled that Doorbal?s claim of ineffective assistance of counsel was waived because he failed to present the issue on appeal in the Florida state courts...

Flores: Sur-13 gang convictions and sentences affirmed

Posted on June 30, 2009
In U.S. v. Flores, No. 08-10775 (June 29, 2009), the Court affirmed the convictions and sentences of defendants convicted of RICO and murder crimes as members of the Sur-13 gang.The Court found no fault in the district court?s excusing a potential juror for cause when she said she suffered from attention deficit disorder ("ADD"), noting that untreated ADD could interfere with a juror?s ability to pay attention in a lengthy trial...

Gupta: Gupta Sentence Vacated Again

Posted on June 24, 2009
In U.S. v. Gupta, No. 08-12248 (June 23, 2009), on a government appeal, the Court vacated the sentence of three years probation and no restitution imposed on a Medicare fraud defendant.At sentencing, confronted with a government loss estimate of $3.4 million and a defendant estimate of zero, the district court split the difference and determined loss to be $1...

Elso: Case is No Longer Pending Once Eleventh Circuit Mandate Issues

Posted on June 22, 2009
In U.S. v. Elso, No. 06-14954 (June 19, 2009), the Court held that a district court lacked authority to consider the defendant?s motion under Fed. R. Crim. P. 12(b)(3)(B), challenging the subject matter jurisdiction over one of his counts of conviction...

Jefferson: Failure to investigate brain damage not ineffective assistance

Posted on June 17, 2009
In Jefferson v. Hall, No. 07-12502 (June 12, 2009), the Court (2-1, Carnes, J. dissenting) reversed the grant of habeas relief to a Georgia inmate sentenced to death for a 1985 murder.The Court found that counsel had not given ineffective assistance at the penalty phase of the trial...

Docampo: 270 month sentence on 18 year old is reasonable

Posted on June 16, 2009
In U.S. v. Docampo, No. 08-10698 (June 15, 2009), the Court (2-1, Barkett, J., dissenting in part) affirmed as "reasonable" a sentence of 210 months, plus a 60 month consecutive sentence, for cocaine trafficking and gun conviction convictions.The Court agreed with Docampo that the district court erred in admitting the hearsay statement of an accomplice?s girlfriend about a threatening phone call that Docampo made to the girlfriend...

Sarras: 1,200-month sentence for step-daughter child porn affirmed

Posted on June 16, 2009
In U.S. v. Sarras, No. 08-11757 (June 16, 2009), the Court affirmed convictions and sentences for persuading a step-daughter to engage in sexually explicit conduct for photos.The Court rejected the argument that a doctor the defense called as a witness should have been permitted to opine that, based on his expertise in examining penises, the penis shown on photographs was not that of the defendant...

Demarest: Yacht dealer money laundering conviction upheld

Posted on June 15, 2009
In U.S. v. Demarest, No. 08-12296 (June 10, 2009), the Court affirmed money-laundering convictions and sentences for a yacht dealer who agreed to sell a yacht for cash to undercover agents posing as narcotics traffickers.The Court found that the jury reasonably rejected Demarest?s defense that he was intoxicated when he agreed to the deal...

Kapordelis: 420 month sentence for child porn

Posted on June 03, 2009
In U.S. v. Kapordelis, No. 07-14499 (June 1, 2009), the Court affirmed the convictions and 420-month sentence of an anesthesiologist charged with producing, receiving and possessing child pornography.The Court rejected Kapordelis' argument that some of his photos were taken in Greece and the statute should not apply extraterritorially...

Hoffman-Vaile: Dermatologist Obstruction Conviction Affirmed

Posted on May 27, 2009
In U.S. v. Hoffman-Vaile, No. 07-12629 (May 27, 2009), the Court affirmed the convictions of a dermatologist charged with Medicare fraud and obstruction of justice.Applying plain error review, the Court rejected a challenge to the admission of reports prepared by a private administrator that processes and reviews claims for Medicare...

Spoerke: PVC pipe bombs are "destructive devices"

Posted on May 27, 2009
In U.S. v. Spoerke, No. 08-12910 (May 22, 2009), the Court held that a homemade explosive device made of polyvinyl chloride (PVC) pipe that could propel shrapnel was a "destructive device"under 26 U.S.C. §§ 5801 et seq. The Court noted that Spoerke admitted that his devices could hurt people...

Lamarca: No Habeas Relief for Murder of Daughter's Husband

Posted on May 21, 2009
In Lamarca v. Sec. Dep?t of Corrections, No. 08-16775 (May 19, 2009), the Court denied habeas relief to a Florida inmate sentence to death for the 1995 murder of his son-in-law.The Court rejected most of Lamarca?s claims because they were not presented to the Florida state courts, and therefore were not exhausted...

Owen: Appellate Counsel Not Ineffective

Posted on May 20, 2009
In Owen v. Dep?t of Corrections, No. 07-14727 (May 18, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for murders committed in 1984.The Court rejected the argument that Owen?s appellate counsel was ineffective because he labored under a conflict once Owen filed a bar complaint against him...

Smith: No Abuse in Imposing High End of Guidelines in Amended Crack Sentence

Posted on May 19, 2009
In U.S. v. Smith, No. 08-13215 (May 19, 2009), the Court held that the district court, at a resentencing pursuant to 18 U.S.C. § 3582(c)(2) for a defendant eligible for a sentence reduction pursuant to the recent Amendment to the crack cocaine Guidelines, did not err in failing to adequately address the § 3553(a) factors when it imposed sentence at the high end of the amended guideline range...

Payne: Appellate counsel not ineffective

Posted on May 12, 2009
In U.S. v. Payne, No. 08-12944 (May 7, 2009), the Court rejected an inmate?s motion under 28 U.S.C. § 2255 which claimed ineffective assistance of appellate counsel.Payne pointed out that his appellate counsel had failed to challenge on appeal the district court?s imposition of a two-level "abuse of trust" sentence enhancement based on Payne?s status as a pastor...

Bautista-Silva: Reasonable Suspicion to Stop Suburban on I-95

Posted on May 12, 2009
In U.S. v. Bautista-Silva, No. 08-13803 (May 11, 2009) (2-1) (Barkett, J., dissenting), the Court reversed the district court?s suppression of statements and physical evidence obtained as a result of a traffic stop which resulted in the arrest of five illegal aliens from Mexico...

Aldrich: Masturbating on internet is "sexual contact"

Posted on April 28, 2009
In U.S. v. Aldrich, No. 08-15556 (April 27, 2009), the Court held that the "sexual contact" sentence enhancement of USSG § 2G2.1(b)(2)(A) includes the act of masturbating on the internet. The Court explained that the guideline definition of "contact" refers to contact with "any person" ? which includes the defendant.

Carter: Reasonable Suspicion Suffices to Search Probationer's Home Without Warrant

Posted on April 27, 2009
In U.S. v. Carter, No. 08-14460 (April 27, 2009), the Court held that "reasonable suspicion" sufficed to justify a warrantless search of the home of a probationer.Carter was serving probation after arrests for battery and possession of cocaine. Carter?s probation officer became suspicious that Carter was engaging in drug trafficking after noticing changes in Carter?s lifestyle (despite a meager income), his association with a person with a criminal record, and his apparent gang affiliation...

Schultz: Magistrate Judge can decide self-representation

Posted on April 23, 2009
In U.S. v. Schultz, No. 06-11673 (April 22, 2009), the Court affirmed fraud convictions and dismissed the defendant?s appeal in part for lack of jurisdiction.The Court found no error in having a Magistrate Judge, as opposed to an Article III district court, decide Schultz?s Faretta motion for self-representation...

Mitchell: unreasonable 21-day delay in seeking warrant to search hard drive

Posted on April 23, 2009
In U.S. v. Mitchell, No. 08-10791 (April 22, 2009), the Court reversed the denial of a motion to suppress, holding that the 21-day delay between the seizure of a computer hard drive and obtaining a warrant to search the hard drive constituted an unreasonable delay, in violation of the Fourth Amendment?s warrant requirement...

Covington: 404(b) admissible in murder for hire

Posted on April 22, 2009
In U.S. v. Covington, No. 08-10513 (April 22, 2009), the Court affirmed the convictions and sentence of a defendant charged with having hired a murderer to kill a girlfriend.Covington was arrested and charged with assaulting his girlfriend. He allegedly hired a hitman to murder his girlfriend to avoid having her testify against him...

Lopez-Garcia: No Interrogation where interrogator would not have known of incriminating possibility

Posted on April 22, 2009
In U.S. v. Lopez-Garcia, No. 08-12662 (April 21, 2009), the Court affirmed the conviction and sentence of a defendant for having been unlawfully found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).The Court rejected the argument that incriminating statements he gave were tainted as the "fruit of the poisonous tree" because they resulted from his initial seizure in violation of the Fourth Amendment...

Emmanuel: Fourth Amendment does not reach Bahamas

Posted on April 22, 2009
In U.S. v. Emmanuel, No. 07-10378 (April 21, 2009), the Court affirmed drug trafficking convictions.The Court rejected the argument that a wiretap of the defendants under Bahamian law so "shocked the conscience" as to warrant suppression of its fruits, because no neutral magistrate need approve the wiretap...

Parker: No Purposeful Discrimination in Peremptory Strikes

Posted on April 20, 2009
In Parker v. Allen, No. 05-16907 (April 20, 2009), the Court affirmed the denial of habeas relief to an Alabama inmate convicted of a 1988 murder.The Court rejected Parker?s Batson challenge to the peremptory strikes used against black venirepersons. The Court noted that the Alabama courts had considered this claim, and found no error in a finding of an absence of "purposeful discrimination...

Beckles: Undisputed PSI sawed-off shotgun establishes crime of violence

Posted on April 20, 2009
In U.S. v. Beckles, No. 07-15062 (April 17, 2009), the Court affirmed a conviction and sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).The Court rejected Beckles? argument that his confession was obtained in violation of Miranda...

Davis: AEDPA bars "actual innocence" claim of death row inmate

Posted on April 17, 2009
In In Re Davis, No. 08-16009 (11th Cir. 2009) (2-1, Barkett, J. dissenting), the Court held that Davis failed to meet the statutory requirements of AEDPA for a second or successive habeas petition, and affirmed the district court?s dismissal of his petition that challenged his death sentence for a 1989 murder...

Webb: No 3582 crack reduction where no change in original sentencing range

Posted on April 14, 2009
In U.S. v. Webb, No. 08-13405 (April 13, 2009) (Birch, Marcus, Anderson), the Court held that a crack cocaine offender was not eligible for a 2-level sentence reduction pursuant to Guideline Amendment 706 and 18 U.S.C. § 3582(c)(2). The Court also held that defendants are entitled to representation by counsel in § 3582(c)(2) proceedings only at the court?s discretion, and not as a matter of right...

Kimbrough: Strategic decision not ineffective assistance

Posted on April 14, 2009
In Kimbrough v. Secretary, DOC, No. 08-11421 (April 13, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death in 1994.The Court rejected the argument that trial counsel was ineffective for failing to present mental health mitigating evidence at the sentencing phase...

Jimenez: No Confrontation Clause plain error in brother's statement

Posted on April 09, 2009
In U.S. v. Jimenez, No. 08-14192 (April 7, 2009), the Court affirmed marijuana trafficking convictions.The trial court admitted the testimony of a detective, that, before resuming the questioning of Jimenez inside the marijuana grow house where Jimenez was arrested, he went over to the defendant?s brother in the grow house, and the brother said that Jimenez was living with him and helping him with the marijuana plants...

Irey: Sex Offender 100-month downward Variance Reasonable

Posted on April 09, 2009
In U.S. v. Irey, No. 08-10997 (March 30, 2009), the Court rejected a government appeal of a 240-month sentence imposed on a defendant convicted of using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting the images to the United States...

Seher: Money Laundering mens rea implicit in indictment

Posted on April 06, 2009
In U.S. v. Seher, No. 07-13935 (March 26, 2009), the Court affirmed money laundering convictions but vacated the forfeiture judgment, in a case arising out of the use of jewelry stores in Atlanta to launder cocaine trafficking cash proceeds.The Court rejected the argument that the indictment failed to charge the requisite mens rea for the money laundering offenses...

Williams: Life Sentence Affirmed

Posted on April 06, 2009
In U.S. v. Williams, No. 08-10185 (March 31, 2009), the Court affirmed the district court?s re-imposition of a life sentence.In a prior appeal, the Court had vacated the life sentence because the district court failed to give a reason for imposing a life sentence...

Bornscheuer: Extortion includes fear of economic loss

Posted on April 06, 2009
In U.S. v. Bornscheuer, No. 06-14607 (March 31, 2009), the Court affirmed Hobbs Act convictions arising out of extortion.The Court rejected the argument that the "fear" that underlies an extortion conviction must relate only to fear of physical violence, not, as the jury was instructed to fear "of economic loss as well as fear of physical violence...

McGahee: Batson violation warrants habeas relief

Posted on March 11, 2009
In McGahee v. Alabama Dep?t of Corrections, No. 07-15602 (March 4, 2009), the Court granted a writ of habeas corpus to an Alabama death row inmate, finding that Alabama violated Batson v. Kentucky by using its peremptory strikes in a discriminatory manner at his trial for 1986 murders...

Willis: FEMA fraud sentenced up to maximum disbursement

Posted on March 11, 2009
In U.S. v. Willis, No. 08-10305 (March 3, 2009), the Court affirmed the Guideline loss amount imputed to a defendant convicted of defrauding FEMA by seeking fraudulent post-Hurricane Katrina aid.Under the FEMA program, an applicant Hurricane victim was entitled to $4,358 automatically...

Carmichael: Jury Pool Ok in Middle District of Alabama

Posted on March 10, 2009
In U.S. v. Carmichael, No. 07-11400 (March 5, 2009), the Court rejected the defendant?s challenge to the validity of his Alabama jury venire.The Court recognized that as a result of errors and technical glitches, the Jury Administrator re-summoned more than 15% of previously deferred jurors, a court-imposed limit that was designed to prevent jury venires from being disproportionately white...

Ambert: SORNA is constitutional

Posted on March 10, 2009
In U.S. v. Ambert, No. 08-13139 (March 6, 2009), the Court rejected a defendant?s challenge to his conviction for failing to register under the Sex Offender Registration and Notification Act ("SORNA").The Court rejected Ambert?s argument that his travel in interstate commerce occurred before the Attorney General determined that SORNA?s registration requirements applied on February 28, 2007 to previously convicted sex offenders, and therefore did not subject him to criminal liability for failing to register...

Siegelman: Governor's Bribery Convictions Affirmed

Posted on March 09, 2009
In U.S. v. Siegelman, No. 07-13163 (March 6, 2009), in a lengthy opinion, the Court reversed two bribery-related convictions of the former Governor of Alabama, but otherwise affirmed other convictions.The Court rejected Siegelman?s argument that a jury instruction on bribery, in violation of 18 U...

Shaw: Variance to Statutory Maximum Not Unreasonable

Posted on March 06, 2009
In U.S. v. Shaw, No. 07-14693 (Mar. 3, 2009), the Court affirmed an upward variance from a guideline range of 30-37 months to the statutory maximum of 120 months, for an offender convicted of being a felon in possession of a firearm, in violation of 18 U...

Harrision: Fleeing Police Lights & Siren not "Violent Felony"

Posted on February 20, 2009
In U.S. v. Harrison, No. 08-12636 (Feb. 19, 2009), the Court (Hull, Wilson, Hill, JJ.) held that a violation of subsection 2 of Florida?s willful fleeing statute, Fla. Stat. § 316.1935(2) is not a "violent felony" for purposes of the 15-year mandatory minimum of 18 U...

Guzman: ok to require address in Mexico on supervised release

Posted on February 20, 2009
In U.S. v. Guzman, No. 08-14077 (Feb. 18, 2009), the Court held that the district court did not exceed its authority when it imposed a special condition of supervised release, requiring Guzman to inform the probation officer in writing of his address in Mexico within 72 hours of his deportation from the United States...

Vasquez: No Authority to Vary from Career Offender Guidelines

Posted on February 13, 2009
In U.S. v. Vasquez, No. 08-10671 (Feb. 12, 2009), the Court held that a sentencing court lacks the authority to vary from the Guidelines? career offender provision on the ground of a "disagreement" with this Guideline.The Court first held that the appeal waiver provision of Vasquez? plea agreement did not waive his appeal of his sentence...

Williams: Failure to file anything with Magistrate Judge can be fatal

Posted on February 13, 2009
In Williams v. McNeil, No. 08-11259 (Feb. 10, 2009), the Court affirmed the denial of habeas relief. After the issue of the timeliness of his habeas petition was assigned to a Magistrate Judge, Williams neglected to file any memorandum on this issue with the Magistrate Judge...

Williams: 3582(c)(2) judgment reversed for failure to consider 3553(a) factors

Posted on February 13, 2009
In U.S. v. Williams, No. 08-11361 (Feb. 9, 2009), the Court reversed the denial of an 18 U.S.C. § 3582(c)(2) sentence reduction to a Georgia crack cocaine offender, because the district court at resentencing, in reducing sentence by less than the two-level offense level reduction authorized by the crack cocaine sentence reduction Amendment, failed to address the 18 U...

Tompkins: No Certificate of Appealability for Death-Row Inmate

Posted on February 13, 2009
In Tompkins v. Sec., Dep?t of Corrections, No. 09-10022 (Feb. 9, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for a 25-year old murder.Tompkins argued that his latest § 2254 motion should not be considered "second or successive," and should therefore not require a certificate of appealability, because Panetti v...

Whisenant: No Actual Bias of Judge

Posted on February 10, 2009
In Whisenhant v. Allen, No. 04-15810 (Feb. 3, 2009), the Court affirmed the denial of habeas relief to an Alabama death row inmate convicted of a 1976 murder.The Court rejected the argument that counsel was ineffective for failing to present an insanity defense...

Farias-Gonzalez: Identity Not Suppressible

Posted on February 10, 2009
In U.S. v. Farias-Gonzalez, No. 08-10508 (Feb. 3, 2009), the Court held that "identity-related evidence," i.e., evidence of who the defendant is, obtained after an unconstitutional search and seizure, is not suppressible in a criminal prosecution.The Court assumed arguendo that a Fourth Amendment violation occurred when the defendant was told to lift his shirt, revealing identifying gang marks...

Pace: Failure to Investigate Crack Addiction Not Ineffective

Posted on February 10, 2009
In Pace v. McNeil, No. 07-15528 (Feb. 3, 2008), the Court affirmed the denial of habeas relief to a Florida death-row inmate convicted of a 1988 murder.The Court rejected Pace?s claim of ineffective assistance of counsel. Pace claimed that counsel failed to adequately investigate Pace?s addiction to crack cocaine...

Svete: Brown Overruled; Fraud Aimed at Gullible is Actionable

Posted on February 10, 2009
In U.S. v. Svete, No. 05-13809 (Feb. 2, 2009) (en banc), the Court, reversing U.S. v. Brown, 79 F.3d 1550 (11th Cir. 1996), held that proof of mail fraud does not require proof that a scheme is capable of deceiving a reasonably prudent person. Schemes aimed at the gullible or improvident are also prohibited...

Melvin: No discretion to reduce more than 2 levels for crack offenders

Posted on February 06, 2009
In U.S. v. Melvin, No. 08-13497 (Feb. 3, 2008) the Court held that sentencing courts are not authorized to grant a sentence reduction greater than the two-level reduction provided by the Sentencing Commission for crack cocaine offenders eligible under its Amendment 706...

Dumont: SORNA criminalizes failure to register, not interstate travel

Posted on January 27, 2009
In U.S. v. Dumont, No. 08-11187 (Jan 26, 2009), the Court upheld a conviction for failing to register as a sex offender, as required by 18 U.S.C. § 2250(a) of SORNA.On February 28, 2007, the Attorney General issued a rule stating that SORNA?s registration requirements applied retroactively...

Magwood: AEPDA Bars Claim In 2nd Petition That Could Have Been Raised In First

Posted on January 26, 2009
In Magwood v. Culliver, No. 07-12208 (Jan. 23, 2009), the Court denied habeas relief to an Alabama inmate sentenced to death for a 1979 murder of a Sheriff.Magwood claimed that at his Alabama resentencing, the retroactive application of an Alabama Supreme Court precedent interpreting its death penalty statute violated Due Process...

Bennett: Lifting Mattress Not Unreasonable Search

Posted on January 23, 2009
In U.S. v. Bennett, No. 08-12352 (Jan. 21, 2009), the Court held that no Fourth Amendment violation occurred when police searched under a mattress at a suspect?s mother apartment.The Court noted that, in the circumstances ? e.g., Bennett had delivered a rent check to the landlord ? the police reasonably believed that Bennett resided in his mother?s apartment...

Dodge: SORNA registration not required for emailing obscene materials

Posted on January 21, 2009
In U.S. v. Dodge, No. 08-10802 (Jan. 14, 2009) (2-1, Wilson, J., dissenting), the Court held that SORNA?s sex offender registration requirement did not apply to a defendant convicted of transferring obscene material to a minor, in violation of 18 U.S...

Betancourth: Subject Matter Jurisdiction Can't be Waived by Guilty Plea

Posted on January 14, 2009
In U.S. v. Betancourth, No. 07-14710 (Jan. 13, 2009), the Court held that a defendant cannot waive, by pleading guilty, an objection to the district court?s subject matter jurisdiction under the Maritime Drug Law Enforcement Law, 46 U.S.C. § 70501. However, the Court held that under the facts presented ? certifications from the United States Department of State stating that the government of Ecuador had waived objection to the enforcement of United States law against the apprehended vessels ? jurisdiction existed.

Dorsey: No Impermissible 5K1.1 refusal

Posted on January 14, 2009
In U.S. v. Dorsey, No. 06-16698 (Jan. 9, 2009), the Court, upon sua sponte reconsideration of its prior decision, vacated its prior opinion and substituted another, finding that there was sufficient corroborating information in affidavits supporting search warrants, and holding that the government did not unconstitutionally punish Dorsey when it refused to file a motion to reduce his sentence pursuant to 5K1...

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

Posted on December 16, 2008
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...

Jones: No Crack Reduction for 1994 12kilos offender

Posted on November 20, 2008
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...

James: No 3852 reduction when offense level unchanged

Posted on November 14, 2008
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...

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

Posted on November 13, 2008
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...

Garey: Upholding Domestic Terrorism Enhancement

Posted on November 04, 2008
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...

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

Posted on November 04, 2008
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...

mcNeese: Govt Controls Rule 35(b) resentencing minimum

Posted on November 04, 2008
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...

Prevatte: Prior Georgia Conviction Valid

Posted on October 29, 2008
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...

Thomas: Armed Career Offenders Not Eligible for Crack Guideline Reduction

Posted on October 27, 2008
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...

Singleton: Can't Assume Powder will all become crack

Posted on October 20, 2008
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...

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

Posted on October 15, 2008
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...

Jackson: 851 approval not jurisdictional

Posted on October 14, 2008
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...

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

Posted on October 06, 2008
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...

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

Posted on September 22, 2008
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...

Antonelli: Parole Commission 2241 Challenge Not subject to gatekeeping

Posted on September 22, 2008
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)...

Richardson: Single Conspiracy, not multiple

Posted on July 09, 2008
In U.S. v. Richardson, No. 06-12610 (July 3, 2008), the Court rejected the defendant?s contention that his various illegal agreements with several drug coconspirators constituted not one but multiple conspiracies.Richardson claimed that the evidence showed unconnected drug conspiracies, not the single conspiracy charged in the indictment...

Campa: Cuban Shootdown convictions upheld

Posted on June 06, 2008
In U.S. v. Campa, No. 01-17176 (June 4, 2008), the Court affirmed all convictions of all defendants convicted of espionage and related offenses.The Court rejected the challenges to evidence obtained from searches authorized under the Foreign Intelligence Surveillance Act...

Johnson: Florida battery is a "violent felony" for ACCA

Posted on June 04, 2008
In U.S. v. Johnson, No. 07-13497 (May 30, 2008), the Court held that a defendant?s prior Florida state conviction for battery qualifies as a "violent felony" for purposes of the ACCA mandatory minimum for felon in possession of ammunition offenders who have three prior convictions...

Day: Challenge to Georgia Parole Board Timely

Posted on May 30, 2008
In Day v. Hall, No. 06-16060 (May 29, 2008), the Court held that a Georgia inmate?s federal habeas petition should not have been dismissed as untimely, and therefore reversed the district court?s dismissal. The Court rejected the argument that the AEDPA one-year statute of limitations started to run from date Day was first denied parole...

Young: Superseding Indictment Violates Speedy Trial Act

Posted on May 29, 2008
In U.S. v. Young, No. 07-13626 (May 27, 2008), the Court held that one count of conviction should have been dismissed (with or without prejudice) for violation of the Speedy Trial Act.The government initially indicted Young on a single count for possessing an unregistered silencer...

Mendez: 371 requires United States to be conspiracy's target

Posted on May 23, 2008
In U.S. v. Mendez, No. 07-13433 (May 21, 2008), the Court reversed a conspiracy to defraud the United States conviction, under 18 U.S.C. § 371, because the fraud involved Florida commercial driver?s licenses, which did not defraud the "United States," as the statute requires...

Carruth: Failure to give Defendant Right to Allocute is Plain Error

Posted on May 23, 2008
In U.S. v. Carruth, No. 07-12060 (May 22, 2008), the Court vacated a sentence for violation of supervised release because the district court failed to give the defendant an opportunity to allocute, as required by Fed. R. Crim. P. 32.1(b)(2)(E).On plain error review, the Court cited the text of the Rule, Supreme Court precedent, and its own precedent, for the principle that a district "must personally extend to the defendant the right of allocution...

Madera: Attorney General Decides Sex Offender Retroactivity

Posted on May 23, 2008
In U.S. v. Madera, No. 07-12176 (May 23, 2008), the Court reversed the district court for failing to dismiss an indictment that charged Madera with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006...

Young: Battery Involving Fluids is 4B1.1 crime of violence

Posted on May 20, 2008
In U.S. v. Young, No. 07-14780 (May 19, 2008), the Court held that a prior Florida state conviction for "Battery of a Child Involving Fluids" qualifies as a crime of violence for purposes of the career offender enhancement, USSG § 4B1.1. The Court noted that a "crime of violence" involves the use of "physical force...

Newland: No ineffectiveness in failing to establish confession was coerced

Posted on May 16, 2008
In Newland v. Hall, No. 05-15981 (May 14, 2008), the Court affirmed the denial of habeas relief to a Georgia death row inmate.The Court rejected the argument that defense counsel was ineffective for failing to introduce in evidence police threats to charge the defendant?s wife with aggravated assault, and murder, to establish that the defendant?s confession was coerced...

Williams: No Organizer Enhancement where Husband was not criminally responsible

Posted on May 16, 2008
In U.S. v. Williams, No. 06-15318 (May 16, 2008), the Court affirmed the convictions of a defendant convicted of fraud in connection with the unauthorized use of federal grant moneys to a daycare center, but reversed parts of the sentence.Reviewing for plain error, the Court rejected Williams? Double Jeopardy claim that her conviction for theft of federal funds was duplicative of her conviction for wire fraud...

Hendrix: Judge's Appearance of Bias not a basis for habeas relief

Posted on May 16, 2008
In U.S. v. Hendrix, No. 07-12117 (May 13, 2008), the Court denied habeas relief to a Florida death row inmate sentenced.The Court rejected Hendrix? challenge to the refusal of the state court judge to recuse himself. The Court noted that Hendrix bore the burden of showing that the presiding judge had considered matters not disclosed to the defendant...

Ferguson: Faretta Habeas Claim requires review of state trial transcript

Posted on May 16, 2008
In Ferguson v. Culliver, No. 07-13030 (May 13, 2008), the Court reversed the denial of habeas relief to an Alabama inmate.The defendant claimed that the Alabama state trial court denied him his Faretta right to self-representation. In habeas proceedings, the State did not produce the transcripts of Ferguson?s trial, but instead relied on an appellate court decision which had affirmed the denial of Farretta relief...

Padron: Criminal Forfeiture of Money Applies to Fraud

Posted on May 16, 2008
In U.S. v. Padron, No. 07-11228 (May 13, 2008), the Court affirmed the conviction and sentence of a defendant convicted of a mail fraud scheme arising out of a personal injury clinic that obtained money from insurance companies by submitting false claims...

Williams: Coca Cola Trade Secrets Theft Judgment Affirmed

Posted on May 12, 2008
In U.S. v. Williams, No. 07-12526 (March 20, 2008), the Court affirmed convictions and sentences imposed on two defendants who attempted to sell Coca-Cola trade secrets to Pepsi, in violation of 18 U.S.C. § 1832(a)(1), (3) and (5).The Court rejected the argument that defense cross-examination of a cooperating prosecution witness was unduly limited, pointing out that defense counsel had already presented the jury with substantial evidence to draw a fair inference about the witness? credibility, and that the witness? further testimony would not have given the jury a different impression...

Harris: Search of Cab Passenger Compartment Did not Violate 4th Amend.

Posted on May 08, 2008
In U.S. v. Harris, No. 07-13473 (May 8, 2008), the Court affirmed the denial of a motion to suppress a firearm found after a search of a taxi in which the defendant had been riding.An Atlanta, Georgia, police officer saw Harris remove what appeared to be a handgun from bushes, and get into a taxi...

Hunt: Affirming police officer's false report obstruction conviction

Posted on May 06, 2008
In U.S. v. Hunt, No. 06-16641 (May 5, 2008), the Court affirmed a conviction and sentence for making a false entry in a police report with the intent to impede an FBI investigation.Hunt, a Prichard, Alabama police officer, was involved in an arrest where he threw the person to the ground, causing injury and permanent hearing loss...

Edwards: Conspiracy Evidence Sufficient

Posted on May 06, 2008
In U.S. v. Edwards, No. 06-11643 (May 5, 2008), the Court affirmed fraud and money laundering convictions arising out of a Ponzi scheme involving investments in coin-operated payphones.Edwards failed to renew his motion for judgment of acquittal at the close of all the evidence, as required by Fed...

Brown: Plea Voluntary Even If Court does not explain essential elements of the offense

Posted on May 01, 2008
In U.S. v. Brown, No. 05-16128 (April 29, 2008), the Court affirmed the conviction and 235 month sentence of a defendant convicted of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).Reviewing the issue for plain error, the Court rejected the argument that Brown?s plea was involuntary because the district court did not explain the elements of the offense...

Moore: Sex for Contraband Conspiracy Affirmed

Posted on April 24, 2008
In U.S. v. Moore, No. 07-10326 (April 22, 2008), the Court affirmed the convictions of two correctional officers convicted of "bribery."The Court rejected a challenge to the sufficiency of the conspiracy evidence, noting that while the government witness gave conflicting testimony, the jury was free to credit the testimony that the correctional officers agreed to participate in a "sex for contraband conspiracy...

Livesay: Inadequate Explanation for sentence variance

Posted on April 24, 2008
In U.S. v. Livesay, No. 06-11303 (April 23, 2008), the Court reversed the sentence of 60 months? probation imposed on a former controller at HealthSouth corporation, for his role in this company?s $1.4 billion fraud. The sentence reflected a downward 5K1...

Velasquez: Immigration Status Not a Proper Sentencing Factor

Posted on April 21, 2008
In U.S. v. Velasquez, No. 06-16637 (April 21, 2008), the Court vacated a nine-month sentence imposed on a defendant for violation of supervised release.The defendant pled guilty and was sentenced to time served and two years supervised release for use of a counterfeit visa for entry into the United States, in violation of 18 U...

Begay: DUI is not a "violent felony"

Posted on April 16, 2008
In Begay v. U.S., No. 06-11543, the Supreme Court held that a felony conviction for driving under the influence of alcohol (DUI) falls outside the scope of the "violent felony" definition, for purposes of imposing a mandatory 15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior "violent felony" convictions...

Mock: Attempted Murder Enhancement Requires Findings

Posted on April 15, 2008
In U.S. v. Mock, No. 06-15861 (April 14, 2008), the Court affirmed a defendant?s arson convictions, but reversed the sentence because the district court did not make explicit findings of fact to support its attempted murder enhancement.The Court rejected a challenge to remarks in the prosecutor?s closing argument, noting that while "colorful," they did not jeopardize the fairness of the trial...

Ellisor: Christmas Show Fraud Punished by 87 months

Posted on April 10, 2008
In U.S. v. Ellisor, No. 05-14459 (April 7, 2008), the Court affirmed the mail fraud convictions and 87-month sentence of a defendant convicted of defrauding schools and children?s parents of money paid for tickets for a non-existent "Christmas Around the World Show...

Svete: Mail Fraud Instruction Defective

Posted on March 27, 2008
In U.S. v. Svete, No. 05-13809 (March 26, 2008), the Court reversed mail fraud convictions for two defendants based on an erroneous jury instruction, but otherwise rejected the defendants? challenges to their convictions and sentences. The case arose out of an $80 million fraud on investors in life insurance benefits...

McNeil: Extraordinary Attorney Negligence Tolls AEDPA period

Posted on March 26, 2008
In Downs v. McNeil, No. 05-10210 (March 24, 2008), the Court held that equitable tolling may apply to a Florida death row inmate?s otherwise untimely federal habeas petition.The Court recognized that a showing of "ordinary" attorney negligence would not suffice to equitably toll AEDPA?s statute of limitations...

Maupin: Florida nolo contendere w/ adjudication withheld counts as prior conviction

Posted on March 25, 2008
In United States v. Maupin, No. 07-03341 (March 24, 2008), the Court held that a child pornography offender?s prior Florida nolo contendere plea with adjudication withheld to Florida child pornography charges counted as a prior conviction for purposes of the sentencing enhancement under 18 U...

Devine: No further duty to consult about appeal

Posted on March 20, 2008
In Devine v. U.S., No. 07-11206 (March 20, 2008), the Court held that defense counsel was not ineffective for failing to file a notice of appeal.The defendant pled guilty. The plea was valid. His plea included an appeal waiver. The waiver provided that the only issue he could appeal was the legality of his sentence...

Burgest: Dual Sovereignty Precludes Suppression

Posted on March 14, 2008
In U.S. v. Burgest, No. 06-11351 (March 13, 2008), the Court rejected the defendant?s argument that statements he gave to federal investigators should be suppressed, because his right to counsel had attached in State criminal proceedings for the same drug offense, and the statements were obtained in violation of his right to counsel...

Stratton: Kimbrough remand

Posted on March 14, 2008
In U.S. v. Stratton, No. 06-10080 (March 13, 2008), the Court remanded a case for resentencing on Kimbrough grounds. The Court noted that the defendant had preserved the Kimbrough issue by challenging the crack/powder disparity in his appeal. Further, the district court at sentencing specifically rejected Stratton?s argument that it had the authority to consider the crack/powder disparity as a basis for a sentence reduction.

Lawhorn: Habeas relief granted on ineffectiveness grounds

Posted on March 14, 2008
In Lawhorn v. Allen, No. 04-11711 (March 11, 2008), the Court (Barkett, Wilson, Cox), affirmed a district court?s grant of habeas relief to an Alabama death row inmate, on ineffective assistance of counsel grounds.The district court had ruled that Lawhorn was entitled to habeas relief on the ground that a confession that he gave was the product of an unlawfully long five-day detention without access to counsel...

Gordon: Counsel not ineffective in failure to insist on allocution

Posted on March 14, 2008
In Gordon v. U.S., No. 05-16703 (March 7, 2008), the Court held that the defendant did not establish ineffective assistance of counsel. Gordon claimed that his counsel was ineffective for failing to object to the district court?s failure to address Gordon personally at sentencing...

Michel: 2255 motion unsigned but timely

Posted on March 14, 2008
In Michel v. U.S., No. 06-13982 (March 11, 2008), the Court held that even though an inmate initially filed an unsigned § 2255 motion, and only later filed a signed motion ? after the running of the statute of limitations ? the timeliness of the initial unsigned prevented his motion from being dismissed on untimeliness grounds...

Aviles: Withdrawal determines which Guideline manual to apply in "constant" conspiracies

Posted on March 06, 2008
In U.S. v. Aviles, No. 05-14446 (March 4, 2008), the Court, on a government appeal, reversed the district court for possibly using the wrong Guidelines manual at sentencing.A sentencing court should apply the Guidelines manual in effect at the time of sentencing, unless use of this manual would violate the Ex Post Facto Clause (because the punishment increased after the defendant committed the offense), in which case it should use the manual in effect at the time the crime was committed...

Deverso: Mistake of Age not a 2252 defense

Posted on March 06, 2008
In U.S. v. Deverso, No. 06-16048 (March 5, 2008), the Court affirmed convictions for using a minor to engage in sexually explicit conduct outside the United States for the purpose of producing a visual depiction of such conduct within the United States...

Dean: Accidental Discharge Still Triggers Higher Penalty

Posted on February 25, 2008
In U.S. v. Dean, No. 06-14918 (Feb. 20, 2008) (Hull, Pryor, Moore, KM, b.d.), the Court affirmed the conviction and sentences of defendants convicted as a result of an armed bank robbery which netted them $3,642.Rejecting the challenge to a Hobbs Act conviction based on the government?s Confrontation Clause violation in proving up the fact of FDIC insurance, the Court held that no such proof was required...

Fotopoulos: Not Ineffective Not to Challenge Inconsistent Theories

Posted on February 19, 2008
In Fotopoulos v. Secretary, Dep?t of Corrections, No. 07-11105 (Feb. 17, 2008), the Court reversed the grant of habeas relief to a Florida inmate sentenced to death for two 1989 murders.The Court rejected the fact-finding that Fotopoulos?s counsel was ineffective for allowing the state to put on inconsistent theories regarding Fotopoulos? guilty, one which emphasized his domination of his accomplice, and one which did not...

De La Garza: No Plain Error in Gov't Violation of Plea Agreement

Posted on February 19, 2008
In U.S. v. De La Garza, No. 06-13396 (Feb. 15, 2008), the Court affirmed the conviction of a defendant who pled guilty to conspiracy to possess more than five kilos of cocaine with intent to distribute, in violation of the Marine Drug Law Enforcement Act ("MDLEA")...

Pugh: Five Years Probation Unreasonable for Child Pornography Possessor

Posted on February 01, 2008
In U.S. v. Pugh, No. 07-10183 (Jan. 31, 2008), in its first sentencing decision applying the Supreme Court?s recent Gall and Kimbrough holdings, the Court held that the district abused its discretionary by imposing a probationary sentence on a defendant convicted of possession of images of child pornography...

Al-Arian: Promise not to Subpoena Must be Explicit in Plea Agreement

Posted on January 30, 2008
In U.S. v. Al-Arian, No. 06-16008 (Jan. 25, 2008), the Court held that when a plea agreement contains no agreement providing that a defendant is immune from a future grand jury subpoena, the plea agreement does not prevent the government from subpoenaing the defendant to testify before a grand jury...

Masferrer: Bank CEO fraud conviction affirmed

Posted on January 23, 2008
In U.S. v. Masferrer, No. 06-14223 (Jan. 22, 2008), the Court affirmed the conviction and sentence of a bank CEO convicted of bank and securities fraud. The fraud arose out of Masferrer?s attempt to conceal bad bank investments in Russian assets.The Court rejected the challenge to the technical violation of the recusal rules when the case was directly reassigned to another judge...

Flint: Shelton Not Extended

Posted on January 23, 2008
In Flint v. Jordan, No. 06-11897 (Jan. 22, 2008), the Court held that a § 2255 petition was untimely, even though the prior state conviction which the defendant challenged had been obtained without the assistance of counsel. The Court noted that the Supreme Court?s decision in Alabama v...

Johnson: State extension of time does not create federal equitable tolling

Posted on January 22, 2008
In Johnson v. Fla. Dep?t of Corrections, No. 07-12115 (Jan. 17, 2008), the Court held that a Florida death row?s federal habeas petition was untimely.The state inmate claimed that there was a delay in the appointment of his post-conviction lawyer in Florida state court...

Dorsey: Failure to File 5K1.1 can be unconstitutional

Posted on January 15, 2008
In U.S. v. Dorsey, No. 06-16698 (Jan. 14, 2008), in a case of first impression in the Circuit, the Court held that the government?s alleged refusal to file a once-promised § 5K1.1 motion for reduction of sentence because the defendant elected to go to trial instead of pleading guilty could constitute an "unconstitutional motive," and could therefore be the basis for a district court?s downward departure based on the defendant?s cooperation, independent of a government motion...

Brown: Letters to parole board don't toll AEDPA

Posted on January 11, 2008
In Brown v. Barrow, No. 06-11004 (Jan. 11, 2008), the Court held that a Georgia inmate?s federal habeas petition challenging a denial of parole was time-barred by AEDPA?s one-year statute of limitations, when it was filed seven years later. The Court rejected the argument that the inmate?s letters to the parole board tolled the limitations period...

Snipes: No interlocutory appeal of venue

Posted on January 09, 2008
In U.S. v. Snipes, No. 08-10114 (Jan. 8, 2008), the Court dismissed a defendant?s interlocutory appeal. The defendant sought to appeal, prior to trial, the venue in his case. The Court noted that an order pertaining to venue is effectively reviewable after entry of judgment, citing U...

Palma: Facts Did not Support "Innocent Transitory Possession" Defense

Posted on January 04, 2008
In U.S. v. Palma, No. 06-14884 (Jan. 4, 2008), the Court rejected the defendant?s claim that, at his trial for being a felon in possession of a firearm and ammunition, the district court should have instructed the jury that a "transitory or temporary innocent possession" would be a defense to the charge...

McBride: No Clear Error in 84-month sentence for child pornography distributor

Posted on January 02, 2008
In U.S. v. McBride, No. 06-16544 (Dec. 28, 2007) (2-1) (Dubina, J., dissenting), on a government appeal, the Court affirmed an 84-month sentence ? below the 151-188 months guideline range ? and a ten-year term of supervised release ? below the Guideline recommended life term ? for a defendant convicted of distributing child pornography in violation of 18 U...

King: No Reasonable Expectation of Privacy in Shared Computer Files

Posted on December 17, 2007
In U.S. v. King, No. 07-11808 (Dec. 14, 2007), the Court rejected Fourth Amendment challenges to a computer search of a defendant convicted of possessing child pornography, and, ruling against the government?s sentencing appeal, affirmed the district court?s ruling that King?s contemporaneous conviction for transporting child pornography did not count as a "prior conviction" for the purpose of imposing a mandatory ten years? sentence...

Straub: No Subject Matter Jurisdiction needed for Criminal Contempt

Posted on November 30, 2007
In U.S. v. Straub, No. 06-14354 (Nov. 29, 2007), the Court affirmed the criminal contempt conviction of a defendant who violated a court order to not be present during the removal of property from specific premises.The defendant claimed that the district court lacked jurisdiction to hold him in criminal contempt, because the court later determined that it lacked subject matter jurisdiction over the case...

Dohan: No Improper Vouching

Posted on November 29, 2007
In U.S. v. Dohan, No. 06-14320 (Nov. 28, 2007), the Court affirmed the conviction of a defendant charged with fraud and money-laundering.Reviewing for "plain error," the Court rejected the argument that the government should have corrected a cooperating witness testimony that he was testifying of his own volition, when he was in fact still subject to supervised release...

Foley: Sentencing Court abdicated responsibility

Posted on November 26, 2007
In U.S. v. Foley, No. 06-11145 (Nov. 21, 2007), on a government appeal of a sentence of a defendant convicted of fraud, the Court reversed the sentence and remanded for resentencing.The Court agreed with the government that the district court erred in believing that the forfeiture amount found by the jury bound the court when calculating the amount of "loss" for sentencing purposes...

Hurtado: Misuse of Identification Does not require theft

Posted on November 26, 2007
In U.S. v. Hurtado, No. 07-11138 (Nov. 21, 2007), the Court affirmed the conviction of a defendant convicted of unlawfully using another person?s identification, in violation of 18 U.S.C. § 1028A(a)(1).The Court rejected the argument that the conviction should be vacated because proof that the defendant "stole" the identification of another, and proof that the defendant knew that the identification was of an "actual person," were elements of the offense, which the government failed to prove...

Drury: Denial of rehearing not AEDPA limitations start point

Posted on November 14, 2007
In Drury v. U.S., No. 07-12130 (Nov. 13, 2007), the Court held that, for purposes of determining the starting point for AEDPA?s one-year statute of limitations for § 2255 claims, the period begins to run when the Supreme Court denies certiorari, not thereafter, when the Supreme Court denies a motion to rehear the denial of certiorari...

Davis v. Jones: Appearance of Impartiality not required by due process

Posted on November 13, 2007
In Davis v. Jones, No. 06-15530 (Nov. 8, 2007), the Court denied habeas relief to an Alabama inmate who claimed that the fact that the State?s attorney was the brother of the Alabama judge who presided over certain pre-trial proceedings created an appearance of impartiality that violated Due Process...

Jackson: Physical evidence resulting from un-Mirandized statement

Posted on November 13, 2007
In U.S. v. Jackson, No. 06-15186 (Nov. 9, 2007), the Court affirmed the denial of a Miranda-based motion to suppress.The defendant gave an un-Mirandized statement to police, as a result of which the police found a firearm and ammunition in his home. The statement itself was voluntary, and the defendant was not seeking to suppress the statement, but the fruit of the search based on the statement...

Mintmire: Lawyer Obstruction Conviction Upheld

Posted on November 13, 2007
In U.S. v. Mintmire, No. 06-11212 (Nov. 13, 2007), the Court affirmed the convictions of a Florida lawyer charged with attempting to obstruct a grand jury investigation into a stock sale.The Court rejected a challenge to the sufficiency of the evidence...

Mangaroo: Probation Plain Error for 924(c) sentence

Posted on October 31, 2007
In U.S. v. Mangaroo, No. 06-14766 (Oct. 29, 2007), on a government appeal, the Court vacated the sentences of probation imposed on three women college roommates who pled guilty to robbery and firearm offenses in which they helped others "case" places in advance of robberies...

Moore: Rule 29 Motion in VA theft

Posted on October 29, 2007
In U.S. v. Moore, No. 07-10237 (Oct. 26, 2007), the Court reversed the district court?s denial of a Rule 29 motion for judgment of acquittal for defendants convicted by a jury of theft of government property in violation of 18 U.S.C. § 641.A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son...

Robison: CWA Convictions Reversed

Posted on October 26, 2007
In U.S. v. Robison, No. 05-17019 (Oct. 24, 2007), the Court reversed the convictions of defendants found guilty of Clean Water Act violations, and also reversed a conviction for giving a false statement.The Court held that the definition of "navigable waters" under the CWA in the jury instructions was erroneous under Rapanos v...

Brown: Union officials convictions upheld

Posted on October 25, 2007
In U.S. v. Brown, No. 05-11137 (Oct. 25, 2007), the Court affirmed the convictions and sentences of defendants convicted of fraud involving union moneys, in violation of RICO and Taft-Hartley Act laws. The defendants were the executive director of a union and his assistant, who received payments from firms who employed potential union members...

Jones: Jury Instruction to Continue Deliberating Impermissibly Coercive

Posted on October 23, 2007
In U.S. v. Jones, No. 06-15203 (Oct. 22, 2007), the Court reversed a conviction, finding plain error when a district court instructed a deadlocked jury: "We will do this [deliberate] until you reach a verdict." The district court also told the jury, after substituting an alternate juror for one who was sick: "There?s no need of sending any notes that you can?t agree, because you are going to stay here for a long time...

Delancy: Consensual search not fruit of poisonous tree

Posted on October 04, 2007
In U.S. v. Delancy, No. 06-13718 (Oct. 3, 2007), the Court held that the district court properly denied a motion to suppress evidence seized from the home of a defendant?s girlfriend?s home, because even assuming the initial "protective sweep" of the home was illegal, the subsequent search was consensual...

Khanani: "Proceeds" are not proceeds of the labor

Posted on October 02, 2007
In U.S. v. Khanani, No. 05-11689 (Oct. 2, 2007), the Court affirmed the judgments of defendants convicted of encouraging unauthorized aliens to reside in the United States, and of harboring these aliens. The Court also affirmed the district court?s entry of a judgment of acquittal on the money laundering counts...

Ramirez: Second 851 Notice Unnecessary

Posted on September 27, 2007
In U.S. v. Ramirez, No. 06-16404 (Sept. 11, 2007), the Court held that when the government, after filing an original notice of intent to seek a mandatory life sentence, in accordance with 21 U.S.C. § 851(a)(1), thereafter filed a new information, but neglected to file a new § 851 notice, the omission did not prevent the imposition of a life-sentence...

Fields: Knowledge of out of state residency of child is essential element

Posted on September 21, 2007
In U.S. v. Fields, No. 06-13784 (Sept. 21, 2007), the Court reversed the conviction of a defendant convicted of willfully failing to pay past due child support, in violation of 18 U.S.C. § 228(a)(1).The elements of the offense are (1) a willful failure to pay, (2) past due support, (3) to a child who resides in another state...

Valdes: No reasons for extraordinary variance

Posted on September 20, 2007
In U.S. v. Valdes, No. 06-15951 (Sept. 18, 2007), the Court vacated a 108-month sentence, which exceeded the 41-51 month range of the PSI, and the 57-71 month range urged by the government.The Court noted that if the district court intended to apply an upward departure under USSG 4A1...

Otero: Counsel not ineffective for failing to appeal

Posted on September 18, 2007
In U.S. v. Otero, No. 06-15791 (Sept. 17, 2007), the Court held that Otero?s lawyer had no constitutional duty under the criteria of Roe v. Flores-Ortega, 528 U.S. 470 (2000) to consult Otero about an appeal, and therefore denied Otero?s § 2255 motion based on counsel?s failure to file an appeal...