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The defendant was found guilty of one count of possession of child pornography for owning a collection of the material and bringing it across the US-Canada Border on the way to a family vacation for personal viewing.  He was sentenced to 120 months for the possession and 225 months for the transportation (the max was 240 months).  He was also sentenced to 25 years of supervised release with extensive conditions including the inability to use or possess any computer or any other device with online capabilities at any location except at his work unless participating in the computer restriction and monitoring program, a mandate that the probation was allowed to conduct periodic unannounced examinations of any computer equipment that he used, not being allowed to have any direct contact with a person under the age if 18 without supervision or any indirect contact with someone under 18 such as online.  He was also directed to “reasonably avoid and remove” himself from situations where he has any other form of contact with a minor and not to be in any area where persons under the age of 18 are likely to congregate like school grounds child care centers or playgrounds.

The defendant was a 44 year old white male with a life expectancy of 76.5 years at the time of his sentencing.

The court noted that a sentence is substantively unreasonable if it “cannot be located within the range of permissible decisions” as well as noting that the length of a sentence my be excessively punitive or needlessly harsh with or without far reaching post-release restrictions.  The court determined that the review of a sentence for substantive reasonableness is governed by the 3553 factors with particular attention to the need for the sentence to reflect the seriousness of the offense and to promote respect for the law.  In addition, supervised release conditions are also governed by the same factors as well as involving no greater deprivation of liberty than is necessary to implement the statutory purposes of sentencing and that they are consistent with pertinent Sentencing Commission Policy statements.

The court noted that the guideline starting point in this case was 2g2.2 and that guideline is fundamentally different from most and must be applied with great care in order to prevent unreasonable sentences.  The court also noted that the offense level failed to sufficiently differentiate between offenders who distribute for pecuniary gain and those who distribute for personal noncommercial reasons.  The Appellate court noted that these concerns weren’t considered by the district court.

The court identified that 2g2.2 resulted in a sentence that came from outdated enhancements related related to the defendant’s collecting behavior even though he was not alleged to be involved in the production or distribution of such material.  The court also noted that the the defendant’s sentence was higher than that for individual who engaged in sexual conduct with in-person victims.  Simply put, he wasn’t the worst of the worst but he was sentenced as such; someone convicted of a more severe crime than the defendant in this case was given a less severe sentence.

With regard to his supervised release, the defendant would have been prohibited from interacting with family members or friends who have children under the age of 18 until he was 88 years old, well above his life expectancy and the condition that bars him form “indirect contact” is also confusing because it is unclear and could mean that he wouldn’t be able to go to sporting events, natural history museums or street fairs.

The court reversed  United States v. Jenkins 14-4295-cr

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

An inmate in the First Circuit pled guilty to Felon in Possession of Ammunition.  He had two ACCA-Qualifying Maine Burglary conditions as well as a 2001 Maine Robbery Conviction and a 2004 Maine Drug-Trafficking conviction.  The District Court applied the enhancement.

On appeal, the Government argued that the inmate pled to a section of the Maine Robbery Statute that criminalized the “use of physical force on another” and noted that Maine’s Highest court recognized that “any physical force” suffices to satisfy the physical force element, even physical force that does not make direct contact with the victim. That means that the crime does not need a showing of force capable of “causing physical pain or injury” which is required under Johnson.  And that means that this particular crime cannot be used against him for ACCA purposes.

With regard to the inmate’s drug trafficking conviction, the court determined that it was not a “serious drug offense.”  The court determined that by rejecting that the Maine Legislature designates the crime as “trafficking” and that means buying and selling because the “meaning of the ACCA’s terms do not depend on the definition adopted by the State of conviction.”  The court also held that while the amount of drugs possessed can serve as an indicator of the purposes for which the drugs were possessed, at certain levels it is a rough and imprecise indicator and noted that the inmate’s quantity of drugs in this case (2 grams) would not rise to the level where the court could infer intent to distribute.

The First Circuit Reversed.  US. v. Mulkern, 1st Circuit No. 16-1146

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

As many of you know, Congress and the President passed the Consolidated Appropriations Act of 2017, otherwise known as the federal budget, this past week.  The bill funds the government until the end of September 2017. Remember, the fiscal year of the government is October 1 to September 30.

We are still waiting to hear about specific reforms to the government and the bureau of prisons.  As we find those I will let you know.  The text of the bill is below:

Salaries and Expenses (including transfer of funds)

For necessary expenses of the Federal Prison System for the administration, operation, and maintenance of Federal penal and correctional institutions, and for the provision of technical assistance and advice on corrections related issues to foreign governments, $7,008,800,000:  Provided, That the Attorney General may transfer to the Department of Health and Human Services such amounts as may be necessary for direct expenditures by that Department for medical relief for inmates of Federal penal and correctional institutions:

Provided further, That the Director of the Federal Prison System, where necessary, may enter into contracts with a fiscal agent or fiscal intermediary claims processor to determine the amounts payable to persons who, on behalf of the Federal Prison System, furnish health services to individuals committed to the custody of the Federal Prison System:

Provided further, That not to exceed $5,400 shall be available for official reception and representation expenses:

Provided further, that not to exceed $50,000,000 shall remain available for necessary operations until September 30, 2018:

Provided further that, of the amounts provided for contract confinement, not to exceed $20,000,000 shall remain available until expended to make payments in advance for grants, contracts and reimbursable agreements, and other expenses:

Provided further, That the Director of the Federal Prison System may accept donated property and services relating to the operation of the prison card program from a not-for-profit entity which has operated such program in the past, notwithstanding the fact that such not-for-profit entity furnishes services under contracts to the Federal Prison System relating to the operation of pre-release services, halfway houses, or other custodial facilities.

Buildings and Facilities

For planning, acquisition of sites and construction of new facilities; purchase and acquisition of facilities and remodeling, and equipping of such facilities for penal and correctional use, including all necessary expenses incident thereto, by contract or force account; and constructing, remodeling, and equipping necessary buildings and facilities at existing penal and correctional institutions, including all necessary expenses incident thereto, by contract or force account, $130,000,000, to remain available until expended, of which $50,000,000 shall be available only for costs related to construction of new facilities:

Provided, that labor of United States prisoners may be used for work performed under this appropriation.

Federal Prison Industries, Incorporated

The Federal Prison Industries, Incorporated, is hereby authorized to make such expenditures within the limits of funds and borrowing authority available, and in accord with the law, and to make such contracts and commitments without regard to fiscal year limitations as provided by section 9104 of title 31, United States Code, as may be necessary in carrying out the program set forth in the budget for the current fiscal year for such corporation.

Limitation on Administrative Expenses, Federal Prison Industries, Incorporated 

Not to exceed $2,700,000 of the funds of the Federal Prison Industries, Incorporated, shall be available for its administrative expenses, and for services as authorized by section 3109 of title 5, United States Code, to be computed on an accrual basis to be determined in accordance with the corporation’s current prescribed accounting system, and such amounts shall be exclusive of depreciation, payment of claims, and expenditures which such accounting system requires to be capitalized or charged to cost of commodities acquired or produced, including selling and shipping expenses, and expenses in connection with acquisition, construction, operation, maintenance, improvement, protection, or disposition of facilities and other property belonging to the corporation or in which it has an interest.

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

The Tenth Circuit recently reversed the conviction in U.S. v. Dahda.  Roosevelt Dahda was convicted on a drug conspiracy with over 1,000 kilograms or more of marijuana.  On appeal, Dahda alleged 7 grounds for appeal, including that the District Court erred setting [Dahda’s] base-offense level by miscalculating the amount of marijuana attributed to [Dahda].

While the rest of the grounds were overruled on appeal, ground 5, which alleged that the district court erred in estimating that each pallet of drugs in this case contained 80 pounds of marijuana, was sustained.  The court indicated that “the government bears the burden to prove drug quantity through a preponderance of the evidence,” and the base-offense level may consist of an estimate if it contains some record support and is based on information bearing “minimum indication of reliability.” Basically that means that the amount of marijuana was discussed in the trial or the sentencing and that the information was reliable.

However, in this case, the information wasn’t reliable.  The appellate court found that the quantities in the pallets varied.  The government’s witnesses indicated that each pallet had “between five or ten to eighty pounds of marijuana.”  Near the end of the conspiracy, each pallet usually contained 80 pounds but there “could have been” times when the pallets contained more than 80 pounds.  The government witnesses also failed to mention a time frame for when the pallets contained 80 pounds.  The court indicated there was no way to tie the testimony of the government’s witnesses to the shipments that were attributed to Roosevelt and, as such, it was insufficient.  The court also rejected the government’s harmless error analysis because while the government’s argument on harmlessness refers to other drugs that were found on other co-defendants, the drugs that were found in total were not even close to the amount of drugs that the defendant was found  to be responsible for.

The Tenth Circuit Reversed, U.S. v. Dadha, No. 15-3237

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

In U.S. v. Ricky Davis, the Ninth Circuit Appeals Court vacated and remanded a conviction for attempted sex trafficking of a minor.

The defendant in that case was accused of bringing a minor to his house and discussing the possibility of the minor making money by going on dates, taking photos of her and assisting her in getting the photos online to a known escorting website.

Davis was arrested and indicted for sexual exploitation of a minor (18 USC 2251) and attempted sex trafficking either by force or of a minor (18 USC 1591 (a), 1594).

The indictment alleging that Davis violated 1591 stated that he,

“knowingly attempted to recruit, entice, harbor, transport, provide, obtain, and maintain by any means, a person to engage in a commercial sex act, to wit: a minor female victim, . . . knowing or in reckless disregard of the fact that the person had not attained the age of 18 years[.]”

However at trial the jury instruction as to that count provided that

“The elements of sex trafficking are: . . . (2) knowing that [the minor] had not attained the age of 18 years, or recklessly disregarded that fact, or the defendant had a reasonable opportunity to observe [the minor], and that [the minor] would be caused to engage in a commercial sex act . . . [.]”

This was also in another place in the jury instructions AND the prosecutor argued the same thing in the closing argument.  The clause stating that “the defendant had a reasonable opportunity to observe [the minor]” is new.  The court should not have used this in the grand jury or in closing statements because the grand jury didn’t indict him for it.

The court held that a constructive amendment occurred because

“the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved.”

The court also held that this was a constructive amendment and not a variance.  The court indicated that the difference was that

“An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.”

The appellate court indicated that the district court’s jury instruction and the government’s argument had the effect of altering the terms of the amendment.

The Ninth Circuit reversed U.S. v. Davis, No. 15-10402

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

Antwon Jenkins was convicted of kidnapping and using and carrying a firearm in furtherance of a crime of violence. The firearm conviction required a consecutive sentence to the kidnapping charge.

Jenkins argued on appeal that his federal kidnapping offense was not a crime of violence, and thus his gun charge under 18 U.S.C. 924(c) could not stand. The Seventh Circuit agreed.

A conviction can constitute a “crime of violence” under the “force clause” of 924(c) or the “residual clause.” However, the Seventh Circuit in United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016) held that the “residual clause” of 924(c) is unconstitutionally vague. Thus, if the kidnapping charge was not a crime of violence under the “force clause,” the 924(c) conviction was improper.

A conviction qualifies under the “force clause” if the crime “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. 924(c)(3)(A).

The Seventh Circuit held that “kidnapping as defined in 18 U.S.C. § 1201(a) does not require the use of force as an element.”

Because the kidnapping offense could not be used to support Jenkins’ conviction on the 924(c) charge, Jenkins’ conviction on the 924(c) count was reversed. See: United States v. Jenkins, No. No. 14-2898 (7th Cir. 2017).

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

“Prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected,” the U.S. Court of Appeals for the Ninth Circuit recently held. See: Mangiaracina v. Penzone, No. 14-15271 (9th Cir. 2017).

Nick Mangiaracina, an Arizona prisoner, sued jail officials after his properly marked legal mail was opened twice. Mangiaracina filed grievances about the opening of his legal mail. Mangiaracina also alleged that jail staff told him that they“’can open legal mail outside our presence if they want to,’ that there is no law against it, and that ‘they just do it in our presence as a courtesy.’”

While Mangiaracina’s legal mail was only opened twice outside his presence, the Ninth Circuit held that “even isolated incidents of improper mail opening may, in appropriate circumstances, be sufficient to allege a Sixth Amendment violation.”

Jail officials argued that Mangiaracina was also required to allege that his mail was actually read by guards, but the Ninth Circuit disagreed.

“If the practice of opening legal mail in the presence of the prisoner is designed to prevent correctional officers from reading it, then the natural corollary is that a prisoner whose mail is opened outside his presence has no way of knowing whether it had been (permissibly) inspected or (impermissibly) read. In other words, Mangiaracina could not in good faith have alleged that jail employees had read his mail, since he had no basis for knowing what had happened to his mail prior to delivery,” the court wrote.

The court also concluded that jail officials could not “identify any legitimate penological interest that would be served by opening legal mail outside Mangiaracina’s presence,” citing the jail’s own policy that required legal mail to be opened in the presence of inmates. “Defendants have identified no reason in their briefing for deviating from this policy. No special deference is therefore required,” the court held.

The district court’s dismissal of Mangiaracina’s suit was accordingly reversed, and the case was remanded for further proceedings.

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

Rosario Vazquez-Hernandez was charged with attempted illegal re-entry. Vazquez-Hernandez frequently entered the pre-inspection area of a U.S. border crossing so he could wash windows. The Government contended that his presence in the pre-inspection area constituted a criminal offense because Vazquez-Hernandez had been previously deported. The Ninth Circuit disagreed.

“To convict a defendant of attempted illegal reentry, the Government must prove beyond a reasonable doubt that the defendant crossed into the United States with the specific intent to enter the country free from official restraint,” the Ninth Circuit wrote.

Vazquez-Hernandez could not be convicted of attempted illegal re-entry based on his presence in the pre-inspection area, the Ninth Circuit concluded, because he was not free from “official restraint” in the pre-inspection area.

“The official restraint doctrine was intended to safeguard the presence of uninspected immigrants in precisely the type of area in to which Vazquez-Hernandez entered and where he remained. The freedom from official restraint requirement addresses the practical concern that failing to require such a finding would lead to the criminalization of individuals who arrive at a port of entry but have not yet had an opportunity to apply for inspection,” the court explained.

Vazquez-Hernandez was also not free from official restraint because he was “in an area that [wa]s subject to constant government surveillance,” the court wrote. “Here, the government’s witnesses testified that the pre-inspection area was subject to surveillance by hundreds of cameras, with small blind spots, and was surrounded on all sides either by walls or law enforcement agents.”

The court also held that “there is no doubt in this case that Vazquez-Hernandez was not free to travel at will beyond the points of inspection. The area was largely walled off from U.S. territory not subject to such surveillance and monitored by Border Patrol agents who attempted to stop individuals from proceeding into the United States without inspection. Therefore, given this evidence on the conditions of the pre-inspection area, no rational jury could have concluded beyond a reasonable doubt that Vazquez-Hernandez was free from official restraint in this area, or that he intended to be by entering it.”

The court also found that there was insufficient evidence that Vazquez-Hernandez “intended to go beyond the pre-inspection area so as to be free to go at large and at will within the United States.”

His conviction for attempted illegal re-entry was accordingly reversed. See: United States v. Vazquez-Hernandez, No. 15-10009 (9th Cir. 2017)

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.