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 Sentencing. Show all posts
Showing posts with label Sentencing. Show all posts
Seventh Circuit: USA v. Nathaniel Ruth
Third Circuit: USA v. Jamell Birt
As the First Step Act made retroactive the modification of the statutory minimum quantities of prohibited substances, a conviction under the parallel catch-all provision where no minimum quantity is specified was not made subject to retroactive review. Circuit Split flagged.
[Inaugurating the First Step Act tag -- seems to be a thing of late. It's the new ACCA, perhaps.]
Ninth Circuit: USA v. Tuan Luong
Sufficient nexus to interstate commerce for purpose of the Hobbs Act where a BB with servers in the state and redundant servers out of the state is used to facilitate a robbery, since the site operated as an interstate market and facilitated interstate transactions -- the deft's conduct therefore had an impact on interstate commerce.
As the indictment at retrial served for the same complex of facts, it was not constructively amended by the gov't suggestion that the deft's attempted use of a stole debit card was interstate in nature.
Unanimity instruction not required, as interstate commerce theories were alternate means that jurors could have used to convict on the same factual elements.
Jury instruction on "slight but not speculative" effect on interstate commerce was either correct or harmless error.
Even if mere use of the interstate instrumentality is insufficient to satisfy interstate standard, prosc. statements to contrary and statements of duty to convict were not incurable conduct.
Erroneous not to instruct that knowledge of felon status was an element of felon in possession, but not plain error, given deft's many prior felony convictions.
Hobbs Act robbery is a valid ACCA predicate.
Vacated and remanded to determine if the acceptance of responsibility sentencing reduction was inappropriately denied due to the interstate commerce challenge.
Seventh Circuit: USA v. Marcus Durham
No clear error where the revocation sentence is above advisory guidelines, and the court remarks that such increase is fair under the guidelines where the original sentence was varied downward, but the original sentence was lowered due to retroactive amendments to the guidelines rather than discretion, and no timely objection is made at revocation sentencing.
No substantive error under these facts where double guidelines revocation sentence is under the statutory maximum.
Concur: Extensive colloquy reveals court perhaps misunderstood its own authority, nonetheless, it had the authority to impose an above-guidelines revocation sentence.
Sixth Circuit: Eric Dotson v. Gregory Kizziah
Where the Federal court sentence is silent as to whether it is concurrent or consecutive with state imprisonment terms imposed in the future, the Bureau of Prisons placement in a state or federal facility controls whether the Federal sentence is consecutive or concurrent with those future terms.
Sixth Circuit: United States v. Dwight Barber
Where the movant has an opportunity to address resentencing considerations, it is not plain error for the resentencing court not to raise post-conviction conduct.
Procedurally, resentencing court sufficiently explained reasoning.
Sixth Circuit: United States v. Michael Bourquin
Government sentencing memorandum reciting multi-agency response was insufficient for sentencing bump for expenditure of funds, as there must either be a full accounting, or a partial accounting and sufficient facts for the court to reason a full accounting; gov't should not be allowed to amend memorandum on remand.
Fifth Circuit: USA v. Selene Suarez
Where the indictment alleges financial structuring of an amount precisely equal to the statutory limit, the defect is harmless error where the jury might rationally find that related events proved at trial established that an amount greater than the statutory limit was at issue.
Where an employee engages in a course of conduct of structuring bank deposits in furtherance of the employer's illegal scheme, a forfeiture order against the employee personally does not implicate the Excessive Fines clause if the amount is below the statutory maximum and the Guidelines limit.
Eighth Circuit: United States v. Gabriel Sherrod
No clear error in court's holding that police officer's post-incident statement that he kept the door from closing, later described as a poor choice of words, really meant that he had walked in through an open door.
Knock and announce not required where a minor child resident being followed by the police walks into the house without closing the door, it's nighttime, and police have a felony arrest warrant for a resident whom they believe to be inside.
Obstruction sentencing bump is not an abuse of discretion where deft testifies that the police kicked the door, but the court can't discern it in the audio.
Below-guidelines statutory maximum sentence not substantively unreasonable.
Second Circuit: United States v. Traficante
As the judicial order that modifies a certain sentencing condition interposes a finding by a District Court, challenge to the order is reserved for that step, and is not ripe until then.
First Circuit: US v. Capelton
As the subsequent caselaw discussed the willingness to assist if necessary in terms of the intent that the crime be committed, there was not a realistic probability that courts would convict under the statute without intent as an element -- the offense is therefore categorically a predicate offense under the sentencing law.
Eighth Circuit: United States v. Jeffrey Rodd
Eighth Circuit: United States v. Shari Natysin
Seventh Circuit: USA v. Aga Khan
Plain error in procedural sentencing error resulting on one of the concurrent terms of supervised relief being in excess of the statute, since a revocation proceeding would address all terms of supervised release.
Absent showing that victim bank intended to hold collateral real estate s investment, no error in not offsetting the restitution by the value of the unliquidated collateral; no obligation on the victim bank to notify parties of subsequent sale of the collateral.
Sentencing court's allocation of restitution to a certain percentage of deft's future income sufficiently considered deft's financial circumstances, as under the statute no such consideration is due when determining the total amount.
Fifth Circuit: USA v. Louis Luyten
Eighth Circuit: United States v. Dante Benson-Henry
Social media posts showing person possessing firearm, one of which was in front of deft's garage, suffice to sufficiently establish felony possession for purposes of parole revocation and subsequent sentence.
Sentence substantively reasonable given public safety and substance abuse treatment needs.
Eighth Circuit: United States v. Kenton Eagle Chasing
Collateral challenge to federal jurisdiction for original crime cannot be made when appealing revocation of supervised release, as there is a separate statutory basis for revocation proceedings.
No Sixth Amendment right to jury trial in parole revocation proceedings, given circuit precedent to contrary.
Court's spoken opinions during revocation proceedings did not sufficiently demonstrate deep-seated antagonism.
No abuse of discretion in court's finding that escape from designated residence was excessive, if necessary.
Tribal police car without other markings was sufficiently marked by the emergency light to fall within the statute, alternately, harmless error.
Previous waiver of challenge to PSR elements permitted court to consider them, though disputed at revocation hearing.
Sentence substantively reasonable.
SIxth Circuit: United States v. Michael Stephens
Vacate and remand, given recent circuit precedent holding that Attempt is not a valid predicate for ACCA sentencing bump.
Fifth Circuit: USA v. Chia Lee, et al
Sufficient evidence, given facts.
Where deft lives in a certain judicial district and has a bank in that district, jury might have legitimately found that venue was proper in conspiracy in prosecution; vicinage concerns are not implicated where deft lives in the district.
Jury sending note to judge during proceedings asking for clarification of charges is insufficient to establish improper deliberations where individually interviewed jurors claim that discussion of the merits had not occurred.
Govt experts general statements based on small fraction of files reviewed were harmless error.
Although instruction on deliberate ignorance was an abuse of discretion given lack of purposeful contrivance, inclusion was harmless error.
No clear error where sentencing report estimates drug quantities without a showing on the percentage of lawful prescriptions.
No plain error where conflicting findings would result from using the totality of either of the two versions of the Guidelines, rather than the combination of the two elected by the sentencing court.
Firearm in adjoining office sufficient for sentencing bump where prescriptions were written in an examination room.
Fifth Circuit: USA v. James Perryman
Commerce Clause sufficient justification for law barring convicted felon's possession of weapon that at some point previous travelled in interstate commerce; present interstate travel need not be established.
PSR's unsworn statements describing previous proceeding are sufficient to establish perjury for the purpose of sentencing bump where the court also adopts an addendum that contains the relevant record excerpts.
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