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.
Reference in sentencing colloquy to an ethnicity shared with the defendant was sufficiently counterbalanced by race-neutral reasoning on the subject, establishing that the court did not rely upon impermissible factors.
Incomplete brain development in the late teens and early twenties is a generic, stock argument, and not a valid mitigating factor.
Declining the invitation to object to a sentence element during colloquy forfeits the challenge, resulting in plain error review; as the omission was accidental, the objection wasn't waived.
Plain error for the court to sentence to a fixed term of supervised release while stating that they believed it to be the minimum, as the duration of supervised release is a different consideration than any given condition of the release.
Denial of compassionate release based on a single sentencing factor wasn't an abuse of discretion, since the arguments were considered, and there was a reasoned basis for the decisionmaking.
The sentence disparities referenced in the rules refer to national disparities, not disparities between sentences handed down for the same occurrences.
Jeopardy does not always attach at acceptance of a guilty plea; the relevant criteria for determining the point at which jeopardy attaches are the deft's finality interests and the risk of prosecutorial overreach. Circuit split flagged on both the proposition and the criteria.
Finality interests look to preserving jury verdicts, the chance for the state to marshal its evidence, and the forseeability of the the second charge. The relevant factors for overreach are whether the second charge was pending, and whether the government had a full and fair opportunity to convict.
As deft pleaded to conspiracy involving the statutory offense with a minimum quantity, but the plea, the magistrate's report and the acceptance of plea reflected the statutory offense with no minimum quantity, jeopardy did not attach at the acceptance of the plea, and the court could amend the order to reflect the second statute.
Foreign name of cartel with which the deft had entirely domestic contacts suffices for the sentencing increase for foreign importation.
Forging of clients' signatures on immigration petitions without the knowledge of the clients constitutes sufficient unauthorized use of their personal information under the aggravated identity theft statute.
Material falsity of the filing is sufficiently independent from the use of the forged signature to justify the independent sentencing increase.
Sufficient evidence for the relevant hundred-document threshold by a preponderance where it was established that 100 basically identical petitions of factual clams were filed.
CONCURRENCE:
While lawful, the indictment's additional charge of identity theft was possibly an unfair use of prosecutorial discretion.
Joseph Watley, Karin Hasemann v. Department of Children and Families
Since the sentencing judge indicated that the eventual sentence was the correct sentence irrespective of the dispute over which sentencing guidelines should apply, the eventual application of the higher range was, at most, harmless error.
Sentencing judge's remark to witness was, at most, ill-advised attempt to put them at ease, insufficient for a determination of judicial bias.
420 Month below-guidelines sentence not unreasonable. Seriousness of the offense outweighed the mitigating factors.
Absent a showing of reasonable probability that the sentence would have been different otherwise, no plain error in imposition of lifetime supervised release despite three year limit in statute, given imposition of lifetime supervised release under separate count.
Court did not abuse its discretion in revisiting the petitioner's sentence under the statute by first deciding that the petitioner was eligible; second calculating the revised sentencing range using only the changes described in the statute; third, calculating the new sentencing range accounting for all intervening changes in the law; and fourth, considering the facts of the offense and equitable factors from conduct while incarcerated.
Where the statute allows for resentencing for extraordinary and compelling reasons, the court has discretion to consider each case individually, rather than considering the manner in which other courts have handled similar petitions.
Contemporaneous objection to the substance of a sentence condition does not preserve a procedural objection against the explanation of the sentence, which is then reviewed for plain error.
On plain error review, deft carries the burden to establish that the error was dispositive.
Court did not commit plain error in imposing a release condition broadly banning types of obscene content, given the history and characteristics of the offenses, including uncharged acts.
The statute is not a valid sentencing predicate, since it encompasses threats to property, and both the common law crime and the predicate option of extortion require threats against the person.
Since counsel had an obligation during plea negotiations to assess the potential sentence and communicate the potential sentence to the deft, impending challenges to sentencing practices, even if not generally being made at the time, can be sufficiently foreshadowed to require a hearing for a later Habeas petition for ineffective assistance.
Showing of prejudice not required, since the calculated sentence range serves as a lodestar for its subsequent modification.
Since a sentence was pronounced and the state court record indicates that the deft was credited for time served, rather than simply released, a challenge to the duration of sentence for purposes of subsequent sentencing factors is determined by the state court record of judgment, which can only be altered by a collateral challenge to the earlier conviction.
Since the dictionary definition quoted in an earlier holding to exemplify the plain meaning of a term isn't itself binding in its terms, the activity proscribed under the state statute that reached beyond the bounds of the federal law before the term in the federal law was interpreted to merely have the plain meaning is still within the plain meaning of federal law, despite possibly being outside the dictionary definition quoted.
Objection to the disclosure of the deft's past occupation was waived when deft raised it several times during the trial.
Deft affirmatively agreed to the admission of the draft email at trial, waiving any subsequent objection.
Appellant carries burden on plain error review to show why forfeited objection at trial meets the standard for plain error.
Sufficient evidence to establish that deft had the requisite intent to defraud and was an active and knowing participant, since deft knew that the funds were illicit, and continued to spend them.
Alteration of another person's tax forms and pay records in order to secure a lease is sufficient for the sophisticated means sentencing bump.
Considering the situation under the supervisory powers of the appellate court over the proceedings in the District Court, rather than under Due Process: the District Court did not evaluate the defendant's defense, make a finding as to the willfulness of the violation, or sufficiently explain the sentence in light of the parsimony principle and the sentencing statute.
No plain error in sentencing court's omission of the finding that the possession of the firearm facilitated the possession of the drugs, since the court determined that the firearm was used for protection during drug-related activity, rather than simply assuming a connection from physical proximity.
Refusal to vary downward not unsupported by the record; within-Guidelines sentence not unreasonable.
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.
Holding a substantive RICO conviction -- in which the underlying offense ple(a)d(ed) to or proven involved as an element the use of force -- to be a crime of violence is, under de facto modified categorical review, not plain error. Prior circuit precedent requiring two of the three underlying offenses to involve the use of force is dicta as to convictions with only one offense involving the use of force.
Sentence was not substantively unreasonable.
Re-sentencing under the statute is not a plenary re-sentencing is not a plenary review of all intervening changes in the law, but an imposition of a sentence incorporating the specific changes mandated by the statute. The judge is then free to weigh the intervening changes in the law in the subsequent discretionary resentencing. Affording plenary sentencing would unfairly reward those who had been convicted of the predicate offense.
Tenfold, almost equally divided circuit split flagged.
DISSENT:
No need to bifurcate the process; once the court determines the eligibility for resentencing according to the law at the time of the original sentencing, before making the gating decision, the court is then free to consider subsequent legal and factual developments before deciding on whether to grant the motion to revisit the sentence.
As both the state crime of aiding and abetting and the federal application of the generic offense require intentionality but contemplate presence as a means of establishing intention, the state statute is a crime of violence under the Guidelines and ACCA.
Sufficient evidence for drug conspiracy, since, despite the fact that drugs were never mentioned between the the two, the structure and manner of the single transaction, combined with the amount of drugs involved, would allow a reasonable finder of fact to convict. Deft's version of events did not have to be disproven.
Given statutory mandatory minimums, sentencing instructions that looked to the whole conspiracy to establish drug quantities, rather than calculating the amount that each defendant was either responsible for or might reasonably have thought to be involved was harmless error, as there was only a single unit involved in the single transaction.
For the Obstruction of Justice sentencing bump, the court needed to make specific findings of the material hindrance to the investigation caused by deft's throwing the cell phone against the ground; although the sentence ultimately varied downward, remanded for reconsideration.