Criminal Law

The End

Posted on December 01, 2008
We are suspending our little blawg, at least for the time being.To our three regular readers, have a great holiday season.Kirk and Melody

Not Just a Technical Requirement

Posted on November 20, 2008
In keeping with my recent trend of stealing from other blogs, here is an excellent but really eggheaded blog from Prof. Friedman at http://confrontationright.blogspot.com/ on chain-of-custody and confrontation. Here's the teaser:Here I will write about the chain of custody, products of a machine, who must testify, and other related topics...

924(c) Cert Grant

Posted on November 17, 2008
From our ever erudite and vigilant Sentencing Resource Counsel's office:The Supreme Court granted cert today in Dean v. United States (08-5274) to decide whether under 18 U.S.C. § 924(c)(1)(A)(iii), the mere discharge of a firearm during a crime of violence or drug trafficking, even if accidental, unintentional or involuntary, is subject to a ten-year sentencing enhancement...

Sexual Offender Registration and Notification Act

Posted on November 10, 2008
With much gratitude to our smart colleague down south in Wichita, David Freund offers this post:On November 5th, the Tenth Circuit held that 18 USC § 2250(a)(2)(B), of the Sexual Offender Registration and Notification Act ( SORNA) applies only to persons who traveled in interstate commerce after July 27, 2006, the effective date of SORNA...

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DNA at the Supreme Court

Posted on November 03, 2008
The Washington Post reports that the US Supreme Court is considering review of a critical DNA issue -- whether one has a constitutional right to have DNA tested.Osborne was convicted, spent more than a decade in prison and gave a detailed confession to a parole board...

Twice in One day

Posted on October 20, 2008
All right, we don't post anything for a week, then twice in one day. But this really caught my attention: the Supreme Court granted cert on the circuit split regarding identity theft. From SCOTUSBlog:The issue is whether the law enhancing the sentence for identity theft requires proof that an individual knew that the identity card or number he had used belonged to another, actual person ? that is, a knowledge requirement...

Postville Update

Posted on October 20, 2008
For those of you who attended the Postville immigration conference last month or who are just keeping track of ICE's shenanigans, here is an update on the town of Postville. From CNN, the Postville mayor reports that "Feds Turned My Town 'Topsy Turvey'":"It makes a person feel kind of angry," Penrod says...

Kansas Case Granted Cert by SCOTUS

Posted on October 01, 2008
In today's Order List from the US Supreme Court, one Kansas case made the cut:07-1356 KANSAS V. VENTRIS, DONNIE R.The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. Under reviw is the Kansas Supreme Court in State v...

Cost of Sex Offender Registration

Posted on September 30, 2008
Also known as SORNA, the Sex Offender Registration and Notification Act greatly expanded the requirements for sex offender registration, and there has been a great deal of successful litigation around the country challenging some of these prosecutions for failure to register...

Bad Labs

Posted on September 26, 2008
This is the reason that we can never become complacent about lab reports, never just take them at face value -- because labs get it wrong, make mistakes, and sometimes just outright cheat. Here's yet another example, following OKC and the FBI, of a lab gone bad...

New Defender Blog

Posted on September 26, 2008
Please direct your attention to a new Federal Defender blog, authored by Rebecca Parnell of the Eastern Washington and Idaho district. Rebecca is trying an approach much different than ours- she drafts incisive, regular, and intelligent posts.Give Rebecca's blog a spin...

More Free CLE

Posted on September 25, 2008
Just a notice about a really good, day-long CLE program hosted by the WDMO FPD. It is slated for October 17th at the Arrowhead Club in KCMO. This is an annual event, and I usually attend, so I can tell you it is a quality program and very well executed...

Plagarize!

Posted on September 15, 2008
Well, not entirely. But now that the structure and empirical validity of a guideline itself is fodder for a sentencing memo, make sure that you have checked the Sentencing Resource Page before you decide on a guideline attack. The National Federal Defender Sentencing Resource Counsel has drafted papers assessing the background and rationale of a number of guidelines, and their work has been used to obtain favorable sentencing results all over the country...

Climbing the Hill

Posted on September 08, 2008
Always mighty grateful to guest bloggers, here is Charles Dedmon describing the courts' flip-flopping in US v. Jay Hill:The January 15 decision of the Tenth Circuit in United States v. Jay Hill 512 F.3d. 1277 has been vacated. The decision was reheard by the original panel and the Judgment in Mr...

Chambers: Out for a Stroll

Posted on August 28, 2008
Your client has a prior conviction for felony escape. In reality, he just walked away from work release, or didn't go back to the half-way house. But he is still tagged with an escape conviction.Later on, that conviction can trigger (with two other qualifying convictions) a 15 year-mandatory minimum for possession of a weapon, or otherwise increase penalties, such as under the career offender provision...

Something Other than Prison

Posted on August 22, 2008
Something other than prison, or also know as Alternatives to Incarceration. The Sentencing Commission hosted a symposium on this topic last month, finally recognizing publicly that long prison sentences often do more damage than good -- higher recidivism rates, broken families, and ruined lives...

"Remember, remember always, that all of us ... are descended from immigrants and revolutionists."

Posted on August 19, 2008
That quote is from Franklin D. Roosevelt, brought to our attention recently as we register participants for an immigration seminar we are putting together with the NACDL, ACLU and two national immigration lawyer groups. Details: September 18th, 8 to 5, Hyatt at Crown Center, KCMO, lunch provided...

Burning Junk Science

Posted on August 18, 2008
Grits for Breakfast has this excellent post on the unreliability of arson investigation. The fallacy and inconsistency of this 'science' in increasingly apparent. Too often we assume that expert testimony or forensic science is solid, but it does not take much digging to unearth the 'flawed science' of arson investigation...

Defiance, Texas-size

Posted on August 04, 2008
I am a Texan, know the state well, even worked at the death penalty resource center there representing Texas death row habeas appeals. It is a vicious state. Still, you'd think at some point, Texas would blink. But not today, at least not so far.Texas is slated to execute Jose Medellin tomorrow "in defiance of the United Nations, the Organization of American States and national leaders ...

ICEd Down

Posted on August 01, 2008
The ICE raids in Postville, Iowa, have amassed serious criticism from all angles, including Congressional hearings last week and ongoing MSM commentary. Especially sharp has been the outrage over the obvious collusion of the federal district court with the prosecution, as noted in this AILA post: "[T]his travesty could not have occurred without the full complicity of the federal district court for the northern district of Iowa...

Blawg Round-up

Posted on July 29, 2008
Nothin' like having someone else do the work -- here is a blawg review from Simple Justice, with something for everyone. Well worth your perusal, Simple Justice claims the theme of the 14th Amendment:Some, by now, may be asking, "what do all these posts have to do with the 14th Amendment?" Everything, I respond, because everything we do as lawyers and in the law ultimately bears upon due process and equal protection, whether positively or negatively...

Numbers and the Magic Box

Posted on July 22, 2008
Ah, the magic DNA box. Sample goes in, profile comes out, and a match of 1 in 62 kajillion condemns the client. The massive number quantifying the odds that the client?s sample would randomly match the genetic profile of an unrelated person comes from a database of genetic information about which we previously knew very little...

Due Process on ICE

Posted on July 08, 2008
Today we have the pleasure of hosting a guest blogger, David Link, who is the preeminent immigration lawyer in Kansas. Our thought is that if we're not going to do our own work anymore, we might as well have the best people out there do it for us. From time to time we risk becoming inured to the ebb and flow of criminal practice...

The Fourth Amendment in the Electronic Age for Dummies

Posted on June 30, 2008
Confused by cell phone tracking? Flummoxed by file sharing networks? Do you know how to analyze the privacy implications of developing technology when drafting your suppression motion? Yeah- me neither. The folks at the Electronic Freedom Foundation can help...

'Refreshing' Sentencing News

Posted on June 26, 2008
We love guest bloggers, not just because we are sometimes (often) lazy, but because they offer you some variety. Today we have our very bright colleague from Wichita, David Freund, who offers this post: In a refreshing change from the usual affirmance of above guidelines sentences based on the deferential abuse of discretion standard of review after Gall & Kimbrough, in United States v...

Not that Tiger

Posted on June 25, 2008
The Tenth held, in US v. Tiger, that DUI convictions are not 'crimes of violence' for career offender purposes, overruling precedent based on the SCt's recent ruling in Begay. "[T]he definition of 'crime of violence' contained in USSG §4B1.2(a) is virtually identical to that contained in the ACCA...

Porn: Must Read

Posted on June 24, 2008
If you are defending against a computer child porn case, this Slate article is required reading:Why Would a Virus Look at Kiddie Porn? The answer is,So other people could secretly view the porn. Fiola's computer had been taken over remotely by "botnet" operators, who lowered its security protections and may have sold child-porn enthusiasts access to the machine...

Wittig "for the third time"

Posted on June 18, 2008
David Wittig's sentencing appeal from his first trial was finally affirmed. The 10th vacated his two prior sentences (51 months and 60 months), but we see the down side of Gall as this panel affirms this 24 month sentence. The correct guideline range was 0-6 months...

Greenhouse Cooling

Posted on June 16, 2008
When news breaks of a new US Supreme Court decision, I'm sure many of you go straight to the opinion, hot off the press, read it, thoughtfully digest it, then move on to secondary sources to determine the import.Me, I usually skip the USSCT version and go straight to NYTimes reporter Linda Greenhouse...

Notice and GITMO

Posted on June 12, 2008
Bad news: our clients are not entitled to notice that the sentencing court intends to exceed the guideline range. US v. Irizarry was issued by the USSCT today, and held that, "Any constitutionally protected expectation that a defendant will receive a sentence within the presumptively applicable Guidelines range did not, however, survive United States v...

Summer Reading

Posted on June 09, 2008
After you are done with the summer blockbusters, the murder mysteries, the spy novels (my favorite) and, yes, for some of you, Danielle Steele, you need something to make you feel smart again. I have the perfect book: Making Your Case: The Art of Persuading Judges...

Judge Blogger

Posted on June 02, 2008
One of the most innovative and erudite federal judges on the bench, D. Mass. Judge Nancy Gertner, is moonlighting as a blogger for Slate. Judge Gertner was the defense hero of downward departures during that long, dark night of mandatory guidelines. Here is an excerpt from a great Boston Globe article...

Good Reading

Posted on May 29, 2008
If you are enough of a geek to be interested in the various splits and leanings of the United States Supreme Court justices, here is a very good and nuanced New York Times article by Linda Greenhouse entitled "At Supreme Court, 5-to-4 Rulings Fade, but Why?" She discusses the role that Kennedy played in the last term, and how that has changed...

Finally, a little help....

Posted on May 21, 2008
Please welcome a new guest blogger- Paige Nichols. Paige's submission today concerns United States v. Hasan, an interesting case concerning interpreters, conflicting trial court rulings, and plain error. Though the trenchant analysis and careful exposition of case facts clearly distinguish the rest of this post from the usual cobbled-together tripe around here, to be clear, the following was contributed by Paige:This week the Tenth Circuit decided United States v...

Fun with Crimes of Violence

Posted on May 21, 2008
A pair of Tenth Circuit opinions today serve to remind that there is much hay to be made about the categorization of prior crimes. In United States v. Hayes, the defendant was indicted as a possessor of a firearm after a domestic violence conviction. Mr...

Eye Witness ID Jury Instruction

Posted on May 13, 2008
Recently, Kirk posted on eyewitness ID here. On that same subject, Carl Folsom over at the excellent KansasDefenders.blogspot.com , has a post on a new ABA Model cautionary jury instruction on cross-racial eye-witness identification, here. Well worth reading, and it comes with some interesting resource cites.

How Slow is Too Slow?

Posted on May 13, 2008
Nice reversal of a traffic stop by the 10th in US v. Valdez-Valdez. The trooper stopped Valdez-Valdez for impeding the flow of traffic -- he was driving 45 in a 55 mph zone. That didn't cut it for Judge Hartz. This is a fact-intense opinion, lots of transcript quotes...

Indictment Dismissed, with Prejudice, for Discovery Violation

Posted on May 12, 2008
Tried to think of a clever title for this blog, but few things get our attention like "dismissal" and "discovery violation." This is from Sady's 9th Circuit blog, "Can an AUSA's reckless disregard for his or her constitutional discovery obligations serve as a basis for a dismissal of an indictment -- with prejudice? Yep, after a great discovery decision last week by Judge Kim Wardlaw (left)...

Discretion Exercised the Right Way

Posted on May 07, 2008
Discretion exercised the right way means, of course, a below-guideline sentence that stands up on appeal. The government cried foul when the district court imposed a year-and-a-day sentence rather than the 4-plus years called for by the guideline for transporting heroin, in US v...

I Wear My Sunglasses . . . in Court

Posted on May 06, 2008
The Tenth Circuit didn't give any relief to Mr Thompson here, but some interesting identification thoughts can be generated out of this published opinion. Mr Thompson was charged with bank robbery and weapons violations. At the prosecution's request, the district court made Mr Thompson put on sunglasses so that the jury could compare that real life, in-court image of him with the bank videotape of the robber...

Cracked

Posted on April 28, 2008
Over the last few months, we've been busy with retroactive crack cases. We set up sort of a working committee, with the blessing of Chief Judge Vratil, that included the US Attorney's Office, US Probation, and our office to try to work through these cases and get relief where relief is due...

Kimbrough Applied to Meth

Posted on April 22, 2008
Nice reversal by the 10th in US v. Santillanes. Here's the case in a nutshell:At sentencing, Santillanes requested a downward variance, arguing the disparity between mixed and actual methamphetamine in the Guidelines produced a sentence that was greater than necessary under the factors delineated in 18 U...

Practicality

Posted on April 18, 2008
This week, on the same day that the US Supreme Court handed down the much-publicized Baze decision that lethal injection is just fine in this country, two other decisions were also published. These are less dramatic, and -- thankfully -- much shorter and simpler...

Two Good Words: Free CLE

Posted on April 14, 2008
Just in case you haven't heard, the annual Panel Counsel Training Seminar will be offered April 24th (Lawrence) and April 25th (Wichita). Call Cindy Johnson in our office for info and to register (785.232.9828, 800.359.9492, cindy_johnson@fd.org). Topics will include the ever-evolving practice of federal sentencing, criminal history, fascinating BOP issues, and the keys to electronic filing...

Serial Number Enhancements in Gun Cases

Posted on April 11, 2008
We have seen a few PSRs enhancing gun defendants because the weapon did not have a serial number. This is not a valid enhancement, for two reasons. First, the enhancement applies to an "obliterated" serial number, not an absent one. Second, many older firearms never had a serial number in the first place...

Giving Up Too Much?

Posted on April 10, 2008
This is not so much a law topic as strategy session. With the advent of Gall and Kimbrough, this is the question: when should we use written plea agreements? Given all the concessions that the prosecution demands on guideline sentences and appeal waivers, the benefit to our clients is often negligible...

New Online Resource For Eyewitness ID Cases

Posted on March 31, 2008
There is a new website available for eyewitness identification cases- http://www.eyeid.org/. This site has a number of links to bibliographies, a blog, and other resources for defense counsel faced with a case in which eyewitness identification is a substantial issue...

Trial by Certificate: Are Lab Reports Testimonial?

Posted on March 26, 2008
The answer seems obvious to most defense attorneys, yet prosecutors routinely try to bypass witness testimony by just offering the report. Now the US Supreme Court has granted cert. in Melendez-Diaz v. Mass. to determine whether the certificates of forensic lab reports are testimonial under Crawford...

Qwested

Posted on March 21, 2008
On Monday, the Tenth Circuit reversed the conviction of a Qwest exec convicted of insider trading because the trial court excluded defense expert testimony, in a rather abrupt and ungracious manner. Prof Ellen Podger at White Collar Crime Prof Blog has this excellent summary here, and includes these two notes:The court notes the difference between civil and criminal cases - "Unlike under the civil rules, an expert in a criminal case is not required to present and disclose an expert report in advance of testimony...

Felony Assault: Not Always a Crime of Violence

Posted on March 15, 2008
Which state felonies constitute crimes of violence is a complicated area, and we should never make assumptions based on the label of conviction. That point was proved again this week by the Tenth Circuit in an immigration case, US v. Rodriguez-Enriquez...

Failed Federal Death Penalties

Posted on March 10, 2008
Today, the New York Times has an excellent article about the repeated failures of federal death penalty prosecutions in New York. A couple of selections:[F]ederal prosecutors in New York State have asked juries to impose death sentences 19 times since 1988...

Judge Lucero: "Overruled"

Posted on March 05, 2008
Again borrowing from the erudite Prof Berman and his blog, here's the big news on the 10th Circuit front today:In a lengthy decision, a split Tenth Circuit panel upheld the reasonableness of a below-guideline sentence in a sex offense case in US v. Smart, No...

Crack Excuse

Posted on February 15, 2008
Well, we've been buried in retro-crack cases around here, it dominates our work right now.That's why we haven't been blogging much, our apologies. Meanwhile, I thought I'd link you to the best federal defender blog ever, Steve Sady's Ninth Circuit, so you can see how it ought to be done...

Leon Can't Save This

Posted on February 06, 2008
The Tenth Circuit reversed a denial of a search warrant challenge, and found that the usually omnipotent Leon did not save this unlawful execution. In US v. Amber Young, the police wanted to search Ms Young's apartment and her person. The SW found probable cause for both the residence and Ms Young herself, but the command line authorized only, ?YOU ARE THEREFORE COMMANDED ...

Gould Gold

Posted on January 18, 2008
US v. Jay Hill is an important case for anyone with either gun cases or criminal history issues. Excellent win for Charles Dedmon (and Dave Phillips, who argued the case for Sparky), and a continuation of his good work started in US v. Norris.Here's the short version: Kansas felonies are measured by the maximum time that the individual defendant was exposed to at the time of sentencing, not the possible sentence for any defendant in that category...

Bring us your tired, your poor, your crack defendants eligible for retroactive sentencing relief

Posted on January 10, 2008
Since the amendment lowering sentences for crack offenses has been made retroactive, the lot of us have been running around with our heads cut off trying to figure out what to do. The primary challenges are organizational, which is not my or Melody's strong suit...

Reversal of Low-End Guideline Sentence

Posted on December 28, 2007
The Tenth Circuit recognized Gall and Kimbrough today in an unpublished reversal of a low-end guideline sentence. The decision begins:Having interpreted this court?s precedents as virtually foreclosing variances from the United States Sentencing Guidelines, the district court imposed a sentence at the bottom of the Guidelines range...

What 'in custody' Really Means

Posted on December 21, 2007
With the kvetching about the Speedy Trial Act case, don't overlook the good Miranda "in custody" case handed down today, US v. Revels, (which, incidentally, is from the same Northern Dist. of Oklahoma judge as the Speedy Trial case). The government appealed a suppression, and unsuccessfully argued that the 'custody' was really just an investigative detention during execution of a search warrant...

Christmas Miracle -- or not

Posted on December 21, 2007
From the Tenth Circuit today:This case requires us to dismiss a criminal indictment because of the failure to comply with the requirements of the Speedy Trial Act of 1974 (the ?Act?), 18 U.S.C. §3161 et seq.Thought it'd never happen, didn't ya? Well, in US v...

Retro-crack

Posted on December 17, 2007
Well, about everyone knows now that the Sentencing Commission has decided that the November 1, 2007, amendments to the crack guidelines should be retroactively applied, lowering the BOL by 2 levels. That is a small measure of justice, but some is better than none...

But I #%@*! Forgot to Raise the Gall Issue!

Posted on December 10, 2007
So- your client has an appeal pending, and you didn?t raise a sentencing issue now impacted by Gall or Kimbrough. That is bad. How do you fix it? Don?t just send a letter of additional authority- ask to brief the issue. We have been through this before...

Holiday Spirit from Justice Ginsburg

Posted on December 10, 2007
"It is better to receive than to give, the Court holds today, at least when the subject is guns." That is Justice Ginsburg's take on the Watson v. United States decision handed down today.The short of it is this: in a drugs-for-guns trade, the one getting the drugs may be up for a section 924c conviction under the 'use' prong, while the one receiving the gun is not guilty, at least of 'using' a gun 'during and in relation to a drug-trafficking crime'...

Good Day?

Posted on December 10, 2007
Looks like Gall, Kimbrough and Watson are all down fron the US SCt today, and in a good way, at first glance.Decisions available here at Scotus blog.More later . . . .

Scalia: "Sue him or something"

Posted on December 05, 2007
Slate's Dahlia Lithwick is again spot on in her coverage of this Supreme Court Batson-based argument (Snyder v. Louisiana) in Race to the Bottom: The Supreme Court takes on the O.J.-obsessed prosecutor. Snyder is represented by the incredibly smart Stephen Bright...

What Wisconsin Writes is Not What the Feds Read: Guns and Civil Rights

Posted on December 04, 2007
Resolving a circuit split, Justice Ginsburg wrote the unanimous decision in Logan v. US, which addresses a statutory exception to the felon-in-possession prohibition. Here is the summed-up defense loss:Does the ?civil rights restored? exemption contained in §921(a)(20) encompass, and therefore remove from ACCA?s reach, state-court convictions that at no time deprived the offender of civil rights? We hold that the §921(a)(20) exemption provision does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation...

Math is Hard

Posted on November 30, 2007
Blatantly stealing from other blogs because I don't have anything quasi-original today, this interesting case is straight from Appellate Law and Practice, a very nice blog that we've added to our blog roll.One lesson here is that waivers should not deter us from reviewing for basic errors such as these...

Misjoinder

Posted on November 27, 2007
A rare reversal for misjoinder of tax and non-tax charges, and for consequential and prejudicial misjoinder of defendants, from the Second Circuit. This is a long opinion, but a careful analysis of Rule 8(a), concluding,Because commission of the alleged wire fraud and conspiracy neither depended upon nor necessarily led to the commission of the alleged 1996 tax misconduct and proof of the one act neither constituted nor depended upon proof of the other, joinder was improper...

Too Much Time

Posted on November 19, 2007
We know all too well that too many of our clients are going to prison for too long. Here is an article from Reuters with some good but depressing statistics from a recently released report. We need to find a way, in some cases, to integrate this sort of argument into our sentencing memoranda...

Guideline Goodness II: Inside the Gift Horse's Mouth

Posted on November 02, 2007
The now-effective changes in the crack guidelines are the Sentencing Commission?s attempt to make the best of a bad situation. Because the Commission believes it must peg crack sentences to the mandatory minimums in 18 U.S.C. § 841, it has still tied the guidelines (albeit in a more lenient fashion) to the five and ten year statutory minimums...

Guideline Goodness: Part I

Posted on November 01, 2007
A new series of guideline amendments are effective as of today. While the downward revisions to the crack guideline will garner the most interest, a small change to the criminal history guidelines should also have a big impact. The commission has amended § 4A1...

"A Very Rough Place to Serve Time"

Posted on October 30, 2007
For anyone with federal clients at Jackson County, Kansas, here's a thought straight from Prof Berman's blog Sentencing Law and Policy. The judge reduced the sentence because the federal detainee spent seven months in horrid pre-trial confinement:As detailed in this article from the Newark Star-Ledger , a district judge in New Jersey last week granted a variance in response to evidence that prison conditions in a county jail were horrid...

Invoking the Rule

Posted on October 24, 2007
While invoking the rule of sequestration didn't really help Mr Avalos on appeal yesterday, see US v. Avalos, the Tenth Circuit still provides a good synopsis of what the trial court is supposed to do when counsel invokes the Rule under FRE 615:The witnesses should be clearly directed, when theRule is invoked, that they must all leave the courtroom (with theexceptions the Rule permits), and that they are not to discuss the caseor what their testimony has been or would be or what occurs in thecourtroom with anyone other than counsel for either side...

Sometimes the Constitution Beats the Federal Rules of Evidence

Posted on October 11, 2007
Sometimes, when the Constitution crashes up against Federal Rules of Evidence, the Constitution wins. Not often enough, but sometimes. The 6th Am. confrontation right was bolstered a couple of years ago when the SCt decided Crawford. The overlap between that constitutional right and the hearsay rules continues to evolve, and the rules of hearsay must be adjusted accordingly...

Bad Advice

Posted on October 04, 2007
A while back, Kirk posted on the new, and utterly ridiculous, state law that requires registration of certain drug offenders. This is retroactive and requires those offenders to register three times a year at the sheriff's office, at $20.00 a pop.This post is a warning -- before a client registers, make sure that they NEED to register...

Most Excellent New Supreme Court Resource

Posted on October 03, 2007
The good folks over at SCOTUSblog have created a new Supreme Court wiki, which we have added to our helpful links. This new addition is a fabulous (yes, fabulous) resource for tracking the progress of a particular case. When you open the wiki, click on the cases to watch feature, which will pull up an index...

Dahlia

Posted on October 03, 2007
Both Gall and Kimbrough were argued yesterday before the Supreme Court, and reports from the argument sound as if district courts will have true sentencing discretion, guidelines be damned (or at least marginalized), and the appellate courts will truly have a secondary role, sort of, I don't know, call it appellate review, rather than standing in as the actual sentencer...

Moore Supreme Court

Posted on September 25, 2007
The only Fourth Amendment cert grant this week was in Virginia v. Moore. This is a govt appeal based on a circuit split. Here's the (govt written) issue:Does the Fourth Amendment require the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates state law?Virginia and the Ninth Circuit (no, Virginia is in the Fourth Circuit, but this is the circuit split the govt notes) answer yes, and other states and some other circuits say no...

Cert Grants on ACCA Cases

Posted on September 25, 2007
Today the Supreme Court granted cert in two ACCA cases. The first, United States v. Begay, comes from the Tenth Circuit and concerns whether driving under the influence is a violent felony. The second, United States v. Rodriquez, concerns a Ninth Circuit ruling that the defendant?s prior drug convictions from Washington did not constitute ?serious drug felonies? because in each, the defendant was subject to a statutory maximum of five years, and the ACCA requires that the conviction subject the defendant to a term of ten years or more...

First Monday in October

Posted on September 21, 2007
No, not the really unfortunate TV show of a few years ago, but the real (and sometimes unfortunate) thing. October 1 starts the new term for the US Supreme Court, although they conference this coming Monday. Two important federal sentencing cases are slated for argument on the first Tuesday:US v...