Public Defense

Late April/Early May First Circuit Summaries

By Chris Goddu

Where no indication apparent on face of record that juvenile court had consolidated prior crimes for sentencing, no clear error in not finding them consolidated under USSG 4A1.2(a)(2). One cluster of crimes consisted of 3 crimes occurring over a span of 14 days for which D was arrested at same time, each offense assigned a separate docket number, resolved at unified dispositional hearing, with separate sentences imposed for each, to run concurrently. A second cluster consisted of 5 crimes occurring over 5 months, each was assigned separate docket number resolved at unified dispositional hearing; whereas unified Judgment and Commitment order imposed a single sentence of commitment in a juvenile detention facility to age 19, docket sheets indicate there were variations among sentences imposed for each crime.

05/09/07

Parilla Roman ? Important.

Vacated. Court erred in applying enhancement for abuse of position of trust (USSG 3B1.3) to coDs who were ?fleet service clerks? - baggage handlers with security clearances - convicted of drug smuggling at airport. ?A security clearance cannot transmogrify a menial position into a position of trust.? Court?s focus on the fact that the position gave Ds access to commit crime ignored requirement that Ds must first occupy a position of trust. Ability of D to commit crime does not entail that D must have had an unsupervised position. Where D waived right to appeal judgment and sentence aside from position of trust issue, no right to appeal fine.

05/04/07

Wright ? Important.

Vacated. Court?s factual finding in suppression hearing that D ran from police because he had a gun, and that he was grabbing at his sweatshirt because he had a gun, based on the fact that police officers discovered the gun after seizing D, was clearly erroneous because court may not use fruits of a search to establish its validity. High crime area is a factual issue, relevant evidence for which includes: 1)nexus between type of crime common in area and type of crime suspected in instant case, 2) limited geographic area being evaluated and 3) temporal proximity between evidence of heightened criminal activity and date of stop at issue.

04/24/07

Ossai

No due process violation in failing to preserve evidence where store manager testified that she had forgotten to insert new tape in store video surveillance system, and that she reviewed prior tape with policeman and they determined that it ended several hours before robbery, and policeman testified that he never got prior tape, though manager believed she had given it to him. Missing tape neither exculpatory nor would police have found its exculpatory value readily apparent. Evidence sufficient that Hobbs Act robbery (18 USC 1951(a)) of Dunkin Donuts for $782 obstructed, delayed or affected interstate commerce despite testimony that the loss would not have reduced purchase orders by that amount because they depended on volume of sales. Inability to deposit that money in the business account caused depletion in business assets, and that was sufficient nexus. No error in enhancement for physical restraint (USSG 2B3.1(b)(4)(B)) where D placed gun to head of victim to force him to kneel, as well as placed his hand on victim?s neck and shoulder, saying ?I don?t want to hurt you.? No double-counting in applying restraint and use of a dangerous weapon enhancement where D did not only use gun for restraint. Imposition of 100 month sentence not unreasonable on grounds that most Hobbs Act robbery prosecutions do not involve such small sums, or they involve crime, gang activity or wide-ranging schemes. Decision to exceed the maximum guidelines sentence not unreasonable in light of use of dangerous weapon and physical restraint of victim, D?s lengthy criminal history, threat to victim, D?s conduct while incarcerated, and D?s resistance to psychological treatment.

Full post as published by First Circuit Federal Defender Blog on May 15, 2007 (boomark / email).