Public Defense

Some November and December Case Summaries

By Chris Goddu

Vazquez-Rivera

On re-sentencing after Booker remand, evidence sufficient that D responsible for at least 5K cocaine where witnesses testified to approximate amounts and times, because use of ?reasoned estimates? are appropriate. Where D managed drug point, and co-conspirators testified about selling, giving and carrying guns to store at drug point and for protection, evidence sufficient that it was foreseeable to D that firearms would be used to further drug conspiracy. (USSG 2D1.1(b)(1)). Saying that court will ?heed? to Guidelines, and that it would apply the guidelines in all but unusual cases conflicts with circuit law that guidelines are not presumptively reasonable and that case nees not be unusual to consider 18 USC 3553(a) factors. Nevertheless, sentence was reasonable given substantial weight of sentencing guidelines, where D?s primary argument was unwarranted sentencing disparity (3553(a)(6)) between co-Ds who pleaded guilty and D, who went to trial, and disparity is not unwarranted. D?s gainful employment and marriage did not render sentence unreasonable.

12/11/06

Rodriguez-Pena

No error in denial of motion for reduction of sentence under 18 USC 3582(c) where change in guidelines affecting role in the offense (USSG 3B1.1), requiring management of at least one participant for adjustment, not retroactive under USSG 1B1.10(c) and in any case record showed D did manage at least one participant. Issuance of Booker opinion does not provide grounds for relief under 3582(c) because Booker issued from Supreme Court, not Sentencing Commission and, where D already filed a first 28 USC 2255 motion, consideration of motion for reduction would subvert limitations on second and successive 2255 motions. Post-judgment rehabilitation not a basis for reduction of sentence under 3582. District court need not explain reasons for denial of motion when they are self-evident.

12/06/06

Milkiewicz

Case involved tax fraud and defrauding US District Court (D/MA) in collaboration with court administrator by selling office supplies at inflated prices and billing for quantities in excess of what was delivered. No error in admitting summary evidence under F.R.E. 1006 on grounds underlying evidence, in whole or in part, is in evidence. Chart or summary tool as pedagogical aid may also be used under F.R.E. 611(a), where linked to evidence previously introduced, though usually it is not admitted as evidence. Under F.R.E. 703, court has discretion to admit a summary chart of facts or data underlying expert opinion. No error in court?s allowance of summaries as exhibits under FRE 611 and 703 where it gave cautionary instruction typically used to ensure that jurors focus on underlying documents rather than summaries. Where D stipulated to underlying records, objection that they were inaccurate waived, where underlying records flawed, D had opportunity to cross-examine witneses, and flaws did not undermine value of summary charts as pedagogical aids. No error under FRE 703 in allowing jury to examine summaries of tax obligations presented by IRS agent. Booker does not bar judges from finding facts necessary to impose restitution order.

12/01/06

Gaffney

Where constitutional claim interwoven with guilty plea, plea arguably does not waive claim. Denial of D?s request at plea hearing for continuance to explore possibility of obtaining new counsel construed as denial for request for continuance rather than denial of request for substitution of counsel where D did not fire present attorney, hire new one, and cause present attorney to withdraw. Right to choice of counsel not absolute and must be balanced against efficient administration of justice. Where colloquy indicated D had communicated with counsel, was advised of charges and substance of plea agreement, did not want to go to trial but just was unhappy with sentencing exposure and pace of proceedings, no abuse of discretion in denying continuance to explore getting new counsel.

11/29/06

Teague ? Important.

Texas child endangerment conviction not a crime of violence under career offender guideline where conviction covered conduct placing child in danger of mental, not only physical, impairment, and government provided no evidence within limitations of Shepard to show conduct met definition of crime of violence. Though court erred in determining that conviction was crime of violence, error was harmless where court determined that career offender guideline too punitive in circumstances, and sentenced D to high end of guideline range based on nature of crime (?big-time drug trafficking?), D?s role, and that D had a ?real record?. (N.B. Court shifts from career offender analysis to ACC analysis).

11/28/06

Pelletier

Valid parole violation warrant, issued on basis of reasonable grounds to believe parolee has violated conditions of parole, adequate to support entry into parolee?s home to execute warrant. Violation of knock and announce requirement, in context of executing arrest warrant, does not require suppression of evidence discovered. No clear error in factual findings that statements made by D during execution of warrant not prompted by improper threats or promises, and so were voluntary. Failure of government to produce copy of federal drug conviction as underlying career offender predicate, where D did not object to it in PSI, did not render career offender enhancement inapplicable. Court?s statement that high end of guideline range was D?s ?maximum? sentence did not demonstrate that it viewed guidelines as mandatory. Sentence at low end of guideline range not imposed in disregard of mitigating factors where court said it took all 3553(a) factors into account and cited D?s recidivism as grounds for sentence.

11/28/06

Mueffelman

In mail fraud case, even if D believed his business would succeed, where he lied to secure funds from clients, evidence sufficient. Good faith instruction overly generous to D not legal yardstick for judging sufficiency. No constructive amendment or fatal variance between crime charged and evidence offered at trial where indictment included allegations of both a sham enterprise and false representations, there was evidence of false representations, and no prejudice shown. District?s court?s pre-Booker treatment of guidelines coincided with circuit law on post-Booker sentencing: it treated guidelines as advisory but worthy of weight and took account of 3553 factors advanced by D. Not unreasonable to decline to depart to probationary sentence in order to facilitate D?s ability to pay restitution. Co-defendant disparity argument failed because national disparity is prime concern of need to avoid unwarranted disparity, D was sentenced within guideline range, and co-D pled guilty and assisted gov?t.

Full post as published by First Circuit Federal Defender Blog on December 18, 2006 (boomark / email).