Ninth Circuit: USA v. Amauje Jason Ferguson

 

Magistrate Judge's omission of query about compulsion from the plea acceptance colloqouy was insufficient plain  error for reversal, since, absent a claim that compliance with the rule would have resulted in a different plea, there was no effect on substantial rights, and the text of the rule deems errors that don't affect substantial rights to be harmless.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-10228.pdf

Eighth Circuit: United States v. Shawn Thomason

 

As the writings found in the defendant's car supported the theory of the crime and established a potential future danger to the community, consideration in sentencing was not a violation of the First Amendment.

As the deft requested the change late in the trial, the claim of prosecutorial misconduct due to the use of gender-specific pronouns was waived; alternatively, pronouns are not dispositive.  Misgendering is insufficient basis for a claim of judicial bias; no error in denial of motion to recuse.

Plea deal identifying one act as applicable for restitution did not preclude the seeking or award of restitution under an additional act.

Interstate stalking statute does not unconstitutionally co-opt state authorities.

United States  v.  Shawn Thomason

Seventh Circuit: USA v. Korrtel Filzen

 

Sentence imposed pursuant to a plea agreement that had incorrectly calculated the mandatory fees payable by the deft but in practice imposed the higher fee required by law was insufficient plain error to revisit the sentence, despite the deft's inability to withdraw from the agreement at sentencing.

USA v.  Korrtel Filzen

Ninth Circuit: USA v. Juan Fuentes-Galvez

 

As  ensuring that the plea is knowing and voluntary under FRCrimP. Rule 11 implicates an alien deft's 5A Due Process rights, magistrate judge's plea colloquy that merely asked deft if his plea was voluntary was plain error.

USA v. Juan Fuentes-Galvez

Fifth Circuit: SA v. Noel Jones

 

Sufficient basis for plea to specific drug quantities, given duration of daily drug sales; sufficient basis for conspiracy plea as to buyer/seller relationship where the relationship goes on for long enough and sufficient mutual trust is established.

Court's instructions at plea colloquy did not rise to the level of plain error.

Ineffective assistance waived for not being raised below, preserved for collateral challenge.

SA v. Noel Jones

Fifth Circuit: USA v. Robert Brandon

As deft took affirmative steps to conceal possession of firearm, court's acceptance of guilty plea without colloquy or finding on scienter to establish that deft knew that his previous conviction would prohibit possession was not plain error.

USA v. Robert Brandon

First Circuit: US v. Irizarry-Rosario

References in closing to potentially aggravating factors do not breach  the plea deal, so long  as the tactic is not an end run around the plea agreement, and the government doesn't express regret or a desire to be free of the terms of the deal.

http://media.ca1.uscourts.gov/pdf.opinions/17-1117P-01A.pdf

Fifth Circuit: USA v. Raylin Richard

Plea bargain appeals waiver bars challenge to element of crime charged in bill of information; a guilty plea to the bill with a factual resume concedes all elements of conviction.

Sentence increase for causing victim to engage in certain behavior does not require that the victim is conscious of engaging in the behavior.

Sentence increase for obstruction justified when the obstruction is in a closely related matter.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30654-CR0.pdf

Second Circuit: United States v. Lloyd

Although the court erred in not reciting the elements of the crime during the plea colloquy, there is insufficient proof on appeal that the deft would have otherwise rejected the plea. 

Ample grounds in the facts stipulated and the PSR for the court to be satisfied that the plea was legitimate.

Ineffective assistance claim reserved for collateral challenge to allow for development of the record.

http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/1/doc/16-3169_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18117533-af8c-4c92-8e88-1a67ed0ac49a/1/hilite/

First Circuit: US v. Villodas-Rosario

Consideration of whether enforcing an appellate waiver in a plea deal would be a miscarriage of justice refers to the harm alleged in the appeal, not whether the mechanics of the plea deal itself work a miscarriage of justice.

http://media.ca1.uscourts.gov/pdf.opinions/15-1981P-01A.pdf

Third Circuit: US v. Ronald Peppers

ACCA residual clause minimum Habeas showing is a mere possibility that the sentencing court acted under that section of the law.

Plea deal did not waive Habeas challenge to sentence, so long as the Habeas minimum showing is met, as parties can't stipulate to a sentence in excess of legal limits.

So long as there is a valid petition arising from a Supreme Court holding made retroactive to cases on collateral review, non-retroactive cases decided in the interval can cited to describe the current state of the law.

Under categorical review, state robbery statute isn't a valid predicate; petitioner did not brief whether state burglary statute is covered under the elements clause of the law; challenge to that predicate conviction is therefore waived.

http://www2.ca3.uscourts.gov/opinarch/171029p.pdf

Sixth Circuit: Larry Slusser v. United States

Knowing and voluntary appeals waiver in plea deal forfeited the right to challenge a sentence that, given subsequent developments in the law, has become in excess of the statutory maximum sentence for the crime.  Circuit precedent to the contrary was dicta.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0136p-06.pdf

DC Circuit: USA v. Carlos Aguiar

Insufficient prejudice from closing of voir dire to justify federal habeas.

Government's intent to increase the charges to a potential life sentence were clear and easily determined; a claim of ineffective assistance based on not advising the deft of this therefore justifies a hearing.

Partial dissent: no contemporaneous evidence that deft would have accepted the plea.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8471B6FE7C0D7212852582BF0050A06F/$file/15-3027.pdf

Fourth Circuit: Lee Malvo v. Randall Mathena

Given the substantive right of a juvenile not to be sentenced to a mandatory life without parole sentence articulated by the Supreme Court and made retroactive to cases on collateral review, petitioner's initial sentencing must be reviewed, as it was unclear at trial whether the judge could suspend part of the life sentence, and additionally, relief might be warranted outside of mandatory sentences in the strict sense.

As there was no finding of incorrigibility, the jury's vote for life without parole needs to be revisited.  Additional sentences imposed under plea deal are not shielded from review by the appeals waiver, as collateral challenges of new rights and assertions of substantive constitutional violations weren't enforceably waived.

Interesting peroration.

http://www.ca4.uscourts.gov/opinions/176746.P.pdf

First Circuit: US v. Cabrera-Rivera

Given the previous discussion among counsel during which they looked up the relevant statutes on their cellphones, plea bargain was sufficiently knowing and voluntary, despite deft's contention that he understood the term of the sentence to include any periods of supervised release.

Although the rest of the conditions of supervised release don't rise to the level of miscarriage of justice that would justify looking past the appeals waiver in the plea bargain, the unexplained provision barring unapproved contact with deft's children was plain error.

Concurrence: When supervised release conditions don't match the plea deal, contract principles come into play.

Dissent: Conditions weren't a miscarriage of justice, all considered.  Seemingly excessive conditions give probation officers useful power.

http://media.ca1.uscourts.gov/pdf.opinions/15-1337P-01A.pdf

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

Fourth Circuit: US v. Darra Lee Shephard

No error in sentencing determination that vulnerable victims were targeted by telemarketing scheme and deft was aware of theiir vulnerability, as scheme targeted those who had already fallen for it once.

No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.

No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.

http://www.ca4.uscourts.gov/opinions/174148.P.pdf

Seventh Circuit: USA v. Todd Dyer

Where deft challenges plea at trial by asserting grounds of innocence, an appellate challenge to the plea on other grounds is reviewed for plain error.

No plain error in magistrate's acceptance of plea where deft made one or two word answers in colloquy and court did not inquire into possible bipolar disorder.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-13/C:17-1776:J:PerCuriam:aut:T:fnOp:N:2169817:S:0

First Circuit: US v. Rivera-Hernandez

Sentencing judge appropriately considered deft's particular situation, given reasoning outside of the sentencing memorandum.

No error in within-guidelines sentence above the level set by plea deal.

http://media.ca1.uscourts.gov/pdf.opinions/16-1597P-01A.pdf

Eighth Circuit: United States v. Ler Wah Guide

District Court judge's recognition at sentencing of a language barrier did not undercut the court's finding that an earlier waiver of jury trial and guilty plea had been knowing and voluntary, despite the deft's claim that simultaneous translation had made the proceedings impossible to follow.  (Also given a written form.)

http://media.ca8.uscourts.gov/opndir/18/06/172431P.pdf