Sufficient evidence for the finder of fact to have determined that the gentleman in the Facebook photos with the gun was the deft.
Social media photos are not self-authenticating business records, but there is no need for the identity of the page to be established -- the identity of the subject of the photo is a matter for the finder of fact, and are admissible so long as there is sufficient evidence that they are what they appear to be.
Shaky qualifications for expert testimony on Facebook photo-posting habits of suspects ultimately harmless.
Predicate offenses properly counted for sentencing where each is defined as happening on or about a certain day, despite being connected by a common conspiracy.
No plain error in counting convictions in absentia as predicate convictions.
Sentence increase due to predicate offenses didn't need to be separately charged.
Warrant not defective when it identifies the Facebook data as present in the jurisdiction.
Year and a half delay after service of warrant on FB didn't invalidate the warrant.
Execution of warrant outside of district not plain error, cf. 2703(A).
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0141p-06.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Showing posts with label ACCA / Crime of Violence. Show all posts
Showing posts with label ACCA / Crime of Violence. Show all posts
Eighth Circuit: United States v. Allen Gaines
Under modified categorical review, state statute prohibiting harmful or offensive contact is a valid predicate crime of violence.
Second sentence procedurally reasonable, as speculative interpretations of the guidelines need not be addressed; also substantively reasonable.
http://media.ca8.uscourts.gov/opndir/18/07/171274P.pdf
Second sentence procedurally reasonable, as speculative interpretations of the guidelines need not be addressed; also substantively reasonable.
http://media.ca8.uscourts.gov/opndir/18/07/171274P.pdf
First Circuit: US v. Barbosa
Deft did not make sufficient showing for a Franks hearing, as misstatement of ages and sizes didn't impugn the narrative, and forcible entry isn't an element of the state's crime of armed home invasion; nothing in a more full investigation of the victims' delay in reporting or checking the victims for outstanding warrants would have put the terms of the affidavit in doubt.
Given circuit precedent, ACCA predicates are valid, including a conviction with a maximum sentence under the terms of the statute, but within the statute's range when prosecuted in state court.
http://media.ca1.uscourts.gov/pdf.opinions/17-1284P-01A.pdf
Given circuit precedent, ACCA predicates are valid, including a conviction with a maximum sentence under the terms of the statute, but within the statute's range when prosecuted in state court.
http://media.ca1.uscourts.gov/pdf.opinions/17-1284P-01A.pdf
Eighth Circuit: United States v. Jeffrey Joseph Pendleton
Given circuit precedent, state Assault statute prohibiting causing the fear of illness or injury is a valid predicate violent crime.
http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf
Eighth Circuit: United States v. Keidell Doyal
Prior panel decision partially affirming grounds of an earlier decision vacated by Supreme Court binds the present panel, and circuit precedent holds that under modified categorical review, the state statute is a valid predicate crime of violence. As the charging documents alleged attempt, the only provision of the statute that criminalizes attempt was the provision under which the deft was convicted.
http://media.ca8.uscourts.gov/opndir/18/07/171320P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171320P.pdf
Sixth Circuit: United States v. Dallas Maynard
As the state Assault Under Extreme Emotional Disturbance statute requires the intentional infliction of injury, it is categorically a predicate violent crime.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0130p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0130p-06.pdf
DC Circuit: USA v. Marlon Haight
No abuse of discretion in denial of delay in trial when gov't moves to include new holograph evidence two weeks before trial.
Harmless non-abuse-of-discretion to allow hearsay report of identification of deft, as declarant was available to testify at trial, and did testify at trial, and, on direct, didn't remember the identification.
No abuse of discretion in admission of deft's holograph writings in backpack, as sufficiently authenticated, and probative of deft's ownership of backpack and general knowledge of guns and drugs.
Ineffective assistance remanded for factual development.
District Assault with a Dangerous Weapons statute is a valid ACCA predicate, given its elements; a violent force can be indirect or made with merely reckless intent.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6DDDED8EB99FE1A5852582B4004FFDDF/$file/16-3123.pdf
Harmless non-abuse-of-discretion to allow hearsay report of identification of deft, as declarant was available to testify at trial, and did testify at trial, and, on direct, didn't remember the identification.
No abuse of discretion in admission of deft's holograph writings in backpack, as sufficiently authenticated, and probative of deft's ownership of backpack and general knowledge of guns and drugs.
Ineffective assistance remanded for factual development.
District Assault with a Dangerous Weapons statute is a valid ACCA predicate, given its elements; a violent force can be indirect or made with merely reckless intent.
https://www.cadc.uscourts.gov/internet/opinions.nsf/6DDDED8EB99FE1A5852582B4004FFDDF/$file/16-3123.pdf
Second Circuit: Villanueva v. United States of America
Given Supreme Court precedent relating to another statute, a state Assault statute is a valid violent crime predicate under modified categorical review.
Dissent: All the courts are doing it, but that doesn't make it right. Scotus specifically said it doesn't apply in this context; where the statute applies to non-forceful harm such as poison, it's an offensive touching, not a use of force.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/doc/16-2528_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/hilite/
Dissent: All the courts are doing it, but that doesn't make it right. Scotus specifically said it doesn't apply in this context; where the statute applies to non-forceful harm such as poison, it's an offensive touching, not a use of force.
http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/doc/16-2528_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/3/hilite/
Fifth Circuit: USA v. Latroy Burris
State Robbery statute does not have violence as an element, and, as the relevant standard implies physical force as opposed to offensive touching, can be accomplished without the use of force; it is therefore not a valid ACCA predicate under the elements prong.
Third Circuit: USA v. Juan Ramos
Statute is divisible for purposes of modified categorical review despite the fact that governing precedent allows indictment and conviction without requiring the finder of fact to agree on the theory of the crime; i.e., a jury could split between the elements.
State statute categorically a crime of violence, as it is inconceivable that someone could try to injure another with a deadly weapon without using force.
http://www2.ca3.uscourts.gov/opinarch/172720p.pdf
State statute categorically a crime of violence, as it is inconceivable that someone could try to injure another with a deadly weapon without using force.
http://www2.ca3.uscourts.gov/opinarch/172720p.pdf
Tenth Circuit: United States v. Driscoll
When determining the timeliness of a Habeas petition, the critical element is the right asserted; the question of whether an ambiguous conviction is or is not contradicted by the new rule is a matter for merits consideration.
As the petitioner was convicted under a statute broader than the generic offense, it is more likely than not that they were convicted under the unconstitutional residual clause, justifying the granting of the writ.
On merits, granted as not harmless error.
https://www.ca10.uscourts.gov/opinions/16/16-8118.pdf
As the petitioner was convicted under a statute broader than the generic offense, it is more likely than not that they were convicted under the unconstitutional residual clause, justifying the granting of the writ.
On merits, granted as not harmless error.
https://www.ca10.uscourts.gov/opinions/16/16-8118.pdf
Eighth Circuit: United States v. Hosea Swopes
State statute is a valid ACCA predicate.
Per curiam, simple assertion of precedent.
http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
Per curiam, simple assertion of precedent.
http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
First Circuit: US v. Benitez-Beltran
Territory's crime of Attempted Murder is a valid predicate offense, since (1) Territory's definition of murder requires purposeful or knowing conduct, and the generic offense merely requires reckless indifference; and (2) the act or omission required for the attempt could be counted as the substantial step in furtherance, cf. MPC.
Government's mention of impermissible sentencing factors at sentencing was insufficient to establish that the court relied on them in sentencing.
No substantive error in upward variance, as court developed a theory of recidivism; no error in court's using arguments offered in mitigation as factors weighing in favor of a higher sentence, given the concern with recidivism.
No substantive error for a ten-year felon-in-possession sentence to be served consecutively to the existing 90 year sentence for aggravated robbery.
http://media.ca1.uscourts.gov/pdf.opinions/17-1161P-01A.pdf
Government's mention of impermissible sentencing factors at sentencing was insufficient to establish that the court relied on them in sentencing.
No substantive error in upward variance, as court developed a theory of recidivism; no error in court's using arguments offered in mitigation as factors weighing in favor of a higher sentence, given the concern with recidivism.
No substantive error for a ten-year felon-in-possession sentence to be served consecutively to the existing 90 year sentence for aggravated robbery.
http://media.ca1.uscourts.gov/pdf.opinions/17-1161P-01A.pdf
Tenth Circuit: United States v. Melgar-Cabrera
Federal statute providing for incarceration for murder with a firearm is a separate offense, not a sentencing enhancement, given post-Apprendi jurisprudence.
Statute requiring the element of physical force in the commission of a felony implies the requirement of violent force.
Offensive touching can be sufficient force for Hobbs Act robbery.
Indirect force can be a use of physical force under the statute.
https://www.ca10.uscourts.gov/opinions/16/16-2018.pdf
Statute requiring the element of physical force in the commission of a felony implies the requirement of violent force.
Offensive touching can be sufficient force for Hobbs Act robbery.
Indirect force can be a use of physical force under the statute.
https://www.ca10.uscourts.gov/opinions/16/16-2018.pdf
Ninth Circuit: US v. Hans Elding
State assault with a deadly weapon statute is a valid predicate crime of violence, as the requirement that the victim's immediate fear of reasonable bodily harm implies a use or threatened use of physical force.
As state robbery statute can be violated with violence to property, it isn't a categorical predicate crime of violence, and it doesn't match the generic definitions of robbery and extortion.
Questions about advisory sentencing guidelines are addressed under the rule of lenity.
As there is no requirement that the force used be violent, the state extortion statute isn't a predicate crime of violence.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf
As state robbery statute can be violated with violence to property, it isn't a categorical predicate crime of violence, and it doesn't match the generic definitions of robbery and extortion.
Questions about advisory sentencing guidelines are addressed under the rule of lenity.
As there is no requirement that the force used be violent, the state extortion statute isn't a predicate crime of violence.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf
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