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Criminal Law

Puerto Rico Association of Criminal Defense Lawyers

By Tom Lincoln

Post Frequency: 1.2/day

Last Entry: January 21, 2011 at 18:55:44

Reminder: Roundtable Discussion - Friday, Sept. 24th at 3:30 p.m. @ Federal Public Defender's

Posted on September 23, 2004
Please remember that the roundtable discussion with the our distinguished U.S. Magistrate Judges is scheduled for Friday, September 24, 2004, at 3:30 p.m. at the Federal Public Defender's office. We have now been given a topic - "The Practice of Law in Our District" - which I assume means that practice here is somewhat sui generis.

Civil Forfeiture & Appointment of Counsel under CAFRA

Posted on September 22, 2004
I know many of you are well versed in matters of civil forfeiture. However, for those that are not, and wish an easy reading recent case from the First Circuit that will give you some idea of how it operates post-CAFRA (Civil Asset Forfeiture Reform Act of 2000), I refer you to today's opinion in United States v...

A Healthy Exchange on Goldings v. Winn

Posted on September 22, 2004
I am posting an exchange from the BOPWatch listserve, which directly pertains to the Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004) we covered in an earlier post here, and which I believe may be of assistance to all of us. The question raised by one of the listserve members was as follows: Once a person is in BOP custody, can an attorney help them get transferred from a camp to 1/2 house or home detention? One client is young man with fraud conviction & no priors who didn't make it at boot camp (not sure why he...

Briefs filed Today by Respondents Booker, Fanfan and their Amici

Posted on September 21, 2004
Here are the links to the merits briefs filed today by respondents Booker and Fanfan and their amici. The links to the petitioner's (United States) and amici's (US Sentencing Commission, and Senators Hatch, Kennedy & Feinstein) briefs can be found in this post...

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Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)

Posted on September 18, 2004
. . . In other words, a "place of imprisonment" is a penal or correctional facility that is a place of imprisonment. That is the government's circular definition pressed upon the First Circuit in Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004), in a faulty attempt to exclude community correction centers (CCCs) from the meaning of place of imprisonment and, thus, from 18 U...

Mystery Mini-Seminar and Roundtable Discussion

Posted on September 14, 2004
A mystery mini-seminar roundtable discussion will be held on September 24th at 3:30 p.m. at the Federal Public Defender's Office. The speakers will be all 4 of our U.S. Magistrate Judges. If you plan to attend, you should contact Ms. Mildred Ward by e-mail or telephone or fax as soon as possible...

"It all depends on what the meaning of statutory is"

Posted on September 08, 2004
I never thought that there would come a time when I would be awaiting for the Supreme Court to let me know about the meaning of ?statutory.? Welcome to Apprendictionary-land.

More from the First Circuit on Blakely - and it's not good

Posted on September 03, 2004
In United States v. Morgan, No. 03-1768 (1st Cir. September 2, 2004) (not for publication), the First Circuit addresses issues of "waiver" and "forfeiture" of claims (in this case a Blakely claim). Morgan was sentenced before Blakely was decided, and he contested the drug quantity at sentencing...

Booker/Fanfan Briefs Filed Today by Petitioner United States, by amici USSC and Senators Hatch, Kennedy and Feinstein

Posted on September 01, 2004
Briefs filed today in Booker and Fanfan: United States' brief in Booker and Fanfan, (via Sentencing Law and Policy); U.S. Sentencing Commission's amicus brief in Booker and Fanfan; and amicus brief by Senators Hatch, Kennedy and Feinstein which Professor Berman has posted at Sentencing Law and Policy...

PRACDL Board Meeting

Posted on September 01, 2004
The next PRACDL Board Meeting will be held on September 9, 2004 at 6:00 p.m. at Lydia Lizarribar's office. All Board members are urged to attend since we will be need to finalize all details of the upcoming assembly and elections.

U.S. v. Messino, No. 02-1411 (7th Cir. August 31, 2004)

Posted on August 31, 2004
In a follow-up to Booker, the 7th Circuit issued today its opinion in U.S. v. Messino, No. 02-1411 (7th Cir. August 31, 2004). The Court's opinion is written by Judge Bauer, and there is an opinion by Judge Easterbrook, concurring in part and dissenting in part, who also dissented in Booker...

Memorandum Highlights Need for Defense Counsel to Continue Ascertaining PSR's Accuracy - even when it does not impact sentence

Posted on August 29, 2004
Professor Berman has posted at Sentencing Law and Policy here an August 27th Memorandum from Honorable Sim Lake, Chair of the Committee on Criminal Law of the Judicial Conference of the United States to all federal judges wherein it is requested that in all cases they complete a supplemental statement of reasons form dealing with how the Court applied Blakely -if at all- to the case...

Campbell v. U.S., No. 02-2387 (1st Cir. August, 25, 2004)

Posted on August 26, 2004
In Campbell v. United States, slip op. No. 02-2387 (1st Cir. August 25, 2004) (not for publication), the Court, in denying a Certificate of Appealability to one who had his 2255 motion denied, stated, in part, as follows: Finally, Campbell is not entitled to a COA to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely v...

Important Request from NACDL

Posted on August 24, 2004
I'm including here a request from Barry Scheck, on behalf of NACDL: If and when the Supreme Court holds that Blakely v. Washington applies to the Federal Sentencing Guidelines (and maybe sooner), Congress may act quickly to pass "corrective" legislation...

Judge Posner guest-blogging this week at Lessig Blog

Posted on August 23, 2004
Seventh Circuit Judge Richard A. Posner is guest-blogging this week over at Lessig Blog. Should be interesting. Are any of the First Circuit Judges bloggers?

Wrong severability analysis, again --and-- why would you use an unconstitutional guideline as advisory?

Posted on August 22, 2004
I have been informed that Judge Garc�a-Gregory has held that Blakely applies to the sentencing guidelines and has held them unconstitutional in their entirety, but will use them as, well, "advisory." This is all hearsay information, but Rachel promised a real run-down on each Judge's stance and I'm still waiting for her report to be posted...

Cell phones at the US District Court

Posted on August 20, 2004
PRACDL is in the process of requesting approval of the use of cell phones by counsel in the courthouse lobby for emergencies and to simply contact one's office an take care of other client-attorney matters. We strongly feel that if prosecutors and federal public defenders can have such privilege, panel and non-panel defense counsel should be entitled to equal treatment...

First Circuit Watch: Court finds Blakely argument inapplicable, waived, and forfeited

Posted on August 19, 2004
In United States v. Carlos Lopez, No. 03-1767 (1st Cir. August 19, 2004), the Court stated at n. 1: Counsel for appellant submitted two letters pursuant to Fed. R. App. P. 28(j) in which he asserted that, under Blakely v. Washington, 124 S.Ct. 2531 (2004), this court should strike down the federal sentencing guidelines and remand this case...

USSC Staff Members Think Court Will Uphold Guidelines ... (and they're pooling their money to buy the Brooklyn Bridge)

Posted on August 19, 2004
Oops! Apparently I don't know what I'm talking about when I say I cannot imagine the Supreme Court not applying Blakely to the federal sentencing guidelines. Check out this post at Sentencing Law and Policy, where it is reported that Various staff members of the U...

US v. Kincade (9th Cir. August 18, 2004) - mandatory DNA profiling and the 4th Amendment

Posted on August 19, 2004
Recommended reading: U.S. v. Kincade, No. 02-50380 (9th Cir. August 18, 2004). Topic: whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes...

Blakely and the Loss of Intellectual Honesty in Some Circuits

Posted on August 18, 2004
For all my differences with many of the views of Justice Scalia, in Blakely he took the bull by the horns and decided according to law, instead of figuring political or practical consequences. After all, the dissent by Justice O'Connor is really a pathetic cry for not rocking the boat, rather than a reasoned legal argument...

Today's Read: "To Sever or Not To Sever? Why Blakely Requires Action by Congress"

Posted on August 17, 2004
At Sentencing Law and Policy Professor Berman has posted a link here to an article by University of Chicago Professor Albert W. Alschuler entitled "To Sever or Not To Sever? Why Blakely Requires Action by Congress." It is interesting reading, and it proposes Congressional action on the guidelines to accomodate Blakely...

Comments on US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004)

Posted on August 17, 2004
In U.S. V. Leach, No. 03-CR-114-H (N.D. Ok. August 13, 2004)Chief Judge Holmes follows the same approach he followed in U.S. v. O'Daniel which we commented upon here, inasmuch as he granted defendant the opportunity to withdraw the pre-Blakely plea and, when defendant did not, took this to mean that it was a voluntary and intelligent plea, as well as a waiver of a jury as fact-finder, and then proceeded to sentence her using the guidelines - to some extent - but not in full, as he did used the beyond a reasonable doubt standard rather than the preponderance of...

PRACDL Board Meeting

Posted on August 15, 2004
The next PRACDL Board Meeting will be held on Thursday, August 26, 2004 at Frank Inserni's office.

Blakely?s Wake: Should the Federal Sentencing Guidelines Be Saved or Scrapped?

Posted on August 13, 2004
The Cato Institute and the Federalist Society will hold a policy forum on August 26, 2004, at noon EDT (DC) on: Blakely?s Wake: Should the Federal Sentencing Guidelines Be Saved or Scrapped? The featured speakers are Honorable William Young, Chief Judge, U...

Today's Reads (the day is still young)

Posted on August 12, 2004
Check out DOJ Orchestrated Media Campaign? You really think John Ashcroft would do something like that? over at Macondo Law. Also a good read is Blakely v. Washington- Spending the Summer in a Tsunami by Jeffrey Jamison, Blog Editor at what is turning out to be a superb ACS Blog.

Order for rehearing en banc in U.S. v. Mooney

Posted on August 09, 2004
Order of August 6, 2004 in U.S. v. Michael Alan Mooney, No. 02-3388 (8th Cir. July 27, 2004) stating: On the court?s own motion, rehearing en banc is granted in this case. The opinion and judgment of this court filed July 23, 2004, are vacated. The en banc argument will be held at a time and place to be announced...

Comments on US v. O'Daniel, No. 02-CR-159-H (N.D. Okl., August 6, 2004)

Posted on August 08, 2004
In United States v. Danny Eugene O?Daniel, No. 02-CR-159-H (N.D. Oklahoma, August 6, 2004),(link below) a case involving a pre-Blakely guilty plea with a rather detailed plea agreement, the district held: Blakely applicable to the federal sentencing guidelines; that defendant had waived his right to jury fact-finding (the Court had earlier indicated intent to vacate guilty plea post-Blakely, the Government and defendant objected, with defendant insisting his plea was a voluntary and knowing one, so the court said it would then proceed to sentencing with judicial fact-finding); that the Rules of Evidence would apply at sentencing as to any sentencing...

Second Circuit Issues Administrative and Procedural Measures for Dealing with Blakely Pending Decison in Booker/Fanfan

Posted on August 06, 2004
The U.S. Court of Appeals for the Second Circuit announced today a set of procedural and administrative measures that the court is adopting pending the Supreme Court?s decision in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105 (to be argued October 4, 2004)...

Steps for Release Pending Appeal

Posted on August 05, 2004
To assist those who may have clients with cases on appeal presenting Blakely issues, and whose sentences may already be served if Blakely violations happened and had to be resentenced without any enhancements, I am reproducing -without identifying data- an exchange from a First Circuit CJA Group listserv: Appellant is currently incarcerated for 15 months and has filed a Blakely Brief...

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