Sufficient evidence for conviction where an accomplice testifies to all elements, regardless of credibility issues. Finder of fact is best positioned to make these determinations.
Post-verdict juror's email does not provide a sufficient basis for questioning the jury, as it does not clearly establish any non-speculative misconduct; discussions among jurors were not necessarily deliberations, and a juror's belief "at first sight" that the deft was guilty is not a sufficiently plain demonstration of racial animus.
http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/doc/16-2895_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/2/hilite/
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 FRE. Show all posts
Showing posts with label FRE. Show all posts
First Circuit: US v. Acevedo-Hernandez
Sufficient evidence for conspiracy.
In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.
Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.
As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.
Any sentencing errors harmless. No cumulative error.
http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf
In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.
Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.
As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.
Any sentencing errors harmless. No cumulative error.
http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf
Eighth Circuit: United States v. DNRB, Inc.
Sufficient evidence for conviction of corporation, as the relevant regulation requires that the workers "shall be protected" by the safety device, so mere provision of the device, followed by the supervisor's observation that it wasn't being used sufficed; the fall was a foreseeable and natural result.
Evidence of other safety omissions was properly admitted, as it helped to establish a knowing violation of the rules.
Sentence was procedurally correct, as there was no need to mechanically recite all of the factors, and a fine beyond the apparent means of the corporation might legitimately have been aimed at revealing any hidden funds.
http://media.ca8.uscourts.gov/opndir/18/07/173148P.pdf
Evidence of other safety omissions was properly admitted, as it helped to establish a knowing violation of the rules.
Sentence was procedurally correct, as there was no need to mechanically recite all of the factors, and a fine beyond the apparent means of the corporation might legitimately have been aimed at revealing any hidden funds.
http://media.ca8.uscourts.gov/opndir/18/07/173148P.pdf
Sixth Circuit: United States v. Ramess Nakhleh
The loud and unusual noises in a post office that are prohibited by law are determined by the usual decorum and operation of the post office, as opposed to what might be loud or unusual for the person; sufficient evidence that the deft was loud and unusual; no plain error in refusal to consider an audio recording where that recording only covers part of the incident in question.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0143p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0143p-06.pdf
Sixth Circuit: United States v. Malik Farrad
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
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
Seventh Circuit: Karum Latin America S. de R.L. v. Lowe's Companies, Incorporated
Court did not abuse its discretion in striking expert testimony that had been disclosed as factual testimony, despite the fact that the sanction proved dispositive.
Other claims waived, harmless. Loss from financial instruments subsequent to the plaintiff's withdrawal was correctly categorized as a permissive counterclaim, as the losses did not yet exist at the time of filing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:18-1074:J:Bauer:aut:T:fnOp:N:2186752:S:0
Other claims waived, harmless. Loss from financial instruments subsequent to the plaintiff's withdrawal was correctly categorized as a permissive counterclaim, as the losses did not yet exist at the time of filing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:18-1074:J:Bauer:aut:T:fnOp:N:2186752:S:0
Seventh Circuit: Emma Cehovic-Dixneuf v. Lisa Wong
As the company retained administrative functions, the life insurance plan was within the statute, even though all premiums were paid by the employee; equitable reassignment of the beneficiary is therefore unavailable.
Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0
Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0
Eighth Circuit: Michael Holmes v. Bobby Lee Garrett
Evidence of plaintiff's prior convictions properly excluded in S1983 claim, as a "mere presence" defense does not open the door for an examination of the plaintiff's truthfulness in a S1983 suit; the question being tried is the conduct of the officer. Additionally, not probative of plaintiff's truthfulness.
Admission of prosecutor's testimony about deft's guilty pleas, if error, not prejudicial. Physician expert had appropriate foundation. Sufficient evidence for conspiracy, given pre-existing working relationship; sufficient evidence for state tort claims.
Conspiracy instruction did not lower the threshold; court did not err in adding a definition of "instigate" to the standard instruction; damages can be prospective under state law.
http://media.ca8.uscourts.gov/opndir/18/07/171309P.pdf
Admission of prosecutor's testimony about deft's guilty pleas, if error, not prejudicial. Physician expert had appropriate foundation. Sufficient evidence for conspiracy, given pre-existing working relationship; sufficient evidence for state tort claims.
Conspiracy instruction did not lower the threshold; court did not err in adding a definition of "instigate" to the standard instruction; damages can be prospective under state law.
http://media.ca8.uscourts.gov/opndir/18/07/171309P.pdf
Seventh Circuit: USA v. Ronald Norweathers
As the prosecution might legitimately have expected that deft would say that someone else sent the files, court's admission of uncharged emails was not unduly prejudicial; the emails were also not used to establish propensity, as the primary fact asserted was the identity of the emailer. If error, harmless, given other evidence.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-1311:J:Bauer:aut:T:fnOp:N:2184049:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-10/C:17-1311:J:Bauer:aut:T:fnOp:N:2184049:S:0
Seventh Circuit: Thomas Lovelace v. Todd McKenna
Court did not abuse its discretion in barring physician's record of statement that prison inmate asserted that the guards had beaten him, as it address the truth of the matter asserted, rather than the reason that treatment had been sought.
Witness' statement that he feared retribution from guards permissibly barred as more prejudicial than probative.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-1393:J:Kanne:aut:T:fnOp:N:2181083:S:0
Witness' statement that he feared retribution from guards permissibly barred as more prejudicial than probative.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-1393:J:Kanne:aut:T:fnOp:N:2181083:S:0
Fourth Circuit: US v. Chavez
No Brady violation in nondisclosure of prosecution witness immigration records, as not prejudicial, and the favorable immigration treatment was sufficiently raised during trial to discredit the testimony.
No Napue violation, as gov't didn't know of the misstatement in advance, and it was corrected on cross.
Scattered prosecutorial misconduct incidental.
No error on not instructing on the lesser included crimes, as a murder was committed, and the defts didn't have to actually physically participate in the murder to be found guilty of it.
Admission of evidence on uncharged murder not dispositive, and arguendo, harmless error.
Claiming lack of foreknowledge not enough to justify severance as an antagonistic defense.
Statute requiring second chair counsel in capital cases requires prompt request for replacement by the deft; court did not abuse its discretion in denying severance and continuance.
Sufficient evidence.
Historical cell site information admitted under the good faith exception.
No Eighth Amendment violation in life sentence for crime committed at 18 without specific findings from jury.
http://www.ca4.uscourts.gov/opinions/164499.P.pdf
No Napue violation, as gov't didn't know of the misstatement in advance, and it was corrected on cross.
Scattered prosecutorial misconduct incidental.
No error on not instructing on the lesser included crimes, as a murder was committed, and the defts didn't have to actually physically participate in the murder to be found guilty of it.
Admission of evidence on uncharged murder not dispositive, and arguendo, harmless error.
Claiming lack of foreknowledge not enough to justify severance as an antagonistic defense.
Statute requiring second chair counsel in capital cases requires prompt request for replacement by the deft; court did not abuse its discretion in denying severance and continuance.
Sufficient evidence.
Historical cell site information admitted under the good faith exception.
No Eighth Amendment violation in life sentence for crime committed at 18 without specific findings from jury.
http://www.ca4.uscourts.gov/opinions/164499.P.pdf
Second Circuit: United States v. Gasperini
No plain error from claimed unconstitutional vagueness of statute (CFAA), as the conduct here was squarely within the core prohibition.
As the statute (SCA) does not provide for the exclusion of evidence as a remedy, no abuse of discretion in allowing evidence from extraterritorial searches.
Mere gov't request to foreign agency is not enough to bring the subsequent extraterritorial search under the protections of the Fourth Amendment.
Internet archive screenshots properly admitted as business records, given testimony by staffers that they were created in the course of business.
http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/doc/17-2479_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/hilite/
As the statute (SCA) does not provide for the exclusion of evidence as a remedy, no abuse of discretion in allowing evidence from extraterritorial searches.
Mere gov't request to foreign agency is not enough to bring the subsequent extraterritorial search under the protections of the Fourth Amendment.
Internet archive screenshots properly admitted as business records, given testimony by staffers that they were created in the course of business.
http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/doc/17-2479_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/hilite/
First Circuit: MAZ Partners LP v. Shear
Under state law, a non-majority shareholder director can be said to hold a controlling interest in the corporation when he or she evinces actual control of the company; control of a class of shares with the power to block corporate actions, the power to appoint directors, and actual control of past transactions are among the indicia of control.
Outside of closely held corporations, shareholder ratification isn't a safe-harbor against a basic fairness inquiry, given the way that the statute is written.
As the intent of the statute is to reverse the common-law presumption of voidability for interested transactions, it does not legitimate shifting the burden to the plaintiff in cases of ratified transactions when the plaintiff is not seeking to void the deal.
Breach of fiduciary duty sounds in equity, so disgorgement is an appropriate remedy; the court did not abuse its discretion in allotting the windfall to the wronged party.
Declining curative instruction as to evidence admitted presents virtually insuperable bar to raising the claim on appeal.
Wilkes Booth given his cue at 16, Polonius pops up at 21.
http://media.ca1.uscourts.gov/pdf.opinions/17-1821P-01A.pdf
Outside of closely held corporations, shareholder ratification isn't a safe-harbor against a basic fairness inquiry, given the way that the statute is written.
As the intent of the statute is to reverse the common-law presumption of voidability for interested transactions, it does not legitimate shifting the burden to the plaintiff in cases of ratified transactions when the plaintiff is not seeking to void the deal.
Breach of fiduciary duty sounds in equity, so disgorgement is an appropriate remedy; the court did not abuse its discretion in allotting the windfall to the wronged party.
Declining curative instruction as to evidence admitted presents virtually insuperable bar to raising the claim on appeal.
Wilkes Booth given his cue at 16, Polonius pops up at 21.
http://media.ca1.uscourts.gov/pdf.opinions/17-1821P-01A.pdf
DC Circuit: USA v. Gregory Sitzmann
Consideration of extraterritorial conduct did not violate the presumption against extraterritoriality, given the domestic elements of the conspiracy.
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.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
Eighth Circuit: United States v. Gervais (Ken) Ngombwa
No ineffective assistance where attorney declines to investigate family relations, thinking there to be a substantial likelihood that unsavory details might be discovered.
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Seventh Circuit: Brooks Goplin v. WeConnect, Incorporated
No clear error where the court reviews a website discussed in briefing and uses the content in coming to a decision, as the other party had to carry the burden, and the proof introduced was minimal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:18-1193:J:Barrett:aut:T:fnOp:N:2174452:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:18-1193:J:Barrett:aut:T:fnOp:N:2174452:S:0
Eighth Circuit: United States v. Nicholas Ryan Hemsher
Inconsistencies in self-interested witnesses' testimony were subject to cross, and do not establish lack of sufficient evidence.
Exclusion of prior inconsistent statement to police was harmless, as inconsistencies explored elsewhere, and no contemporaneous proffer; exclusion of exited utterances by police during search was proper, since police officers don't get excited--also harmless.
Sufficient evidence for sentence enhancement based on number of firearms. Enhancement for another felony found by a preponderance can apply to firearm trafficking and possession, so long as it's not the actual underlying crime charged. Texts from incarceration referencing "snitches" sufficed for obstruction enhancement. Disparities in co-conspirators' sentences not per se unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/172189P.pdf
Exclusion of prior inconsistent statement to police was harmless, as inconsistencies explored elsewhere, and no contemporaneous proffer; exclusion of exited utterances by police during search was proper, since police officers don't get excited--also harmless.
Sufficient evidence for sentence enhancement based on number of firearms. Enhancement for another felony found by a preponderance can apply to firearm trafficking and possession, so long as it's not the actual underlying crime charged. Texts from incarceration referencing "snitches" sufficed for obstruction enhancement. Disparities in co-conspirators' sentences not per se unreasonable.
http://media.ca8.uscourts.gov/opndir/18/06/172189P.pdf
Seventh Circuit: USA v. Donald S. Harden
Sufficient evidence to establish death from the drugs sold where timeline suggests proximate consumption, despite statements in the record to the contrary regarding the substance's toxicity.
Sentencing enhancement for death requires merely actual causation, not proof of proximate cause; conspiracy provision does not imply reasonable forseeability.
Court's exclusion of testimony about another source for drugs was harmless error and not an abuse of discretion, as it might have tended to confuse.
Giving a timestamped convenience store surveillance photograph of the deft to the jury during deliberations did not warrant a mistrial.
Prosecution statements in closing and rebuttal closing (saying that the deft knew the present batch of heroin to be fatal, as opposed to the previous batch; saying that deft furnished drugs on both days as opposed to just one) don't warrant reversal, sufficiently cured ("if what the lawyers said is different than the evidence that you remember, the evidence is what counts.")
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1270:J:Flaum:aut:T:fnOp:N:2173545:S:0
Sentencing enhancement for death requires merely actual causation, not proof of proximate cause; conspiracy provision does not imply reasonable forseeability.
Court's exclusion of testimony about another source for drugs was harmless error and not an abuse of discretion, as it might have tended to confuse.
Giving a timestamped convenience store surveillance photograph of the deft to the jury during deliberations did not warrant a mistrial.
Prosecution statements in closing and rebuttal closing (saying that the deft knew the present batch of heroin to be fatal, as opposed to the previous batch; saying that deft furnished drugs on both days as opposed to just one) don't warrant reversal, sufficiently cured ("if what the lawyers said is different than the evidence that you remember, the evidence is what counts.")
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1270:J:Flaum:aut:T:fnOp:N:2173545:S:0
DC Circuit: US v. Dawayne Brown
Error on admission of prior conviction was invited, as counsel insisted that it be included.
No plain error in lack of special unanimity instruction.
No error in use of the term "narcotics" in Burglary instruction where illegal nature of drugs was necessarily implied.
Sufficient evidence for constructive possession inside the apartment.
Plea colloquy impermissibly suggested that deft may later challenge the reasonableness of the sentence.
Clear error for the sentencing court not to refer to the sentencing guidelines' recommendation that the sentence be imposed to run concurrent with the prior sentence.
Upward variance insufficiently explained.
Concurrence: acquitted conduct shouldn't be used to increase the sentence.
Dissent in part: Terms of written waiver were plain, upward departure sufficiently explained.
https://www.cadc.uscourts.gov/internet/opinions.nsf/11D51D8162565F72852582AD0054B1E6/$file/15-3056-1736068.pdf
No plain error in lack of special unanimity instruction.
No error in use of the term "narcotics" in Burglary instruction where illegal nature of drugs was necessarily implied.
Sufficient evidence for constructive possession inside the apartment.
Plea colloquy impermissibly suggested that deft may later challenge the reasonableness of the sentence.
Clear error for the sentencing court not to refer to the sentencing guidelines' recommendation that the sentence be imposed to run concurrent with the prior sentence.
Upward variance insufficiently explained.
Concurrence: acquitted conduct shouldn't be used to increase the sentence.
Dissent in part: Terms of written waiver were plain, upward departure sufficiently explained.
https://www.cadc.uscourts.gov/internet/opinions.nsf/11D51D8162565F72852582AD0054B1E6/$file/15-3056-1736068.pdf
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