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United States v. Fleming, No. 17-3954


Fleming was convicted of possessing cocaine with intent to distribute.  His total offense level was 21, and his criminal history category was II.  He was thought to be a career offender, but his priors did not qualify. His range of punishment was 41 to 51 months, but his mandatory minimum was 60 months.  

 

At the beginning of the hearing the district court provided the parties with copies of a local news article that had been published on Cleveland.com about an Ohio State report documenting an increase in overdose deaths in the state.  The article focused on opiod overdoses mainly, only mentioning cocaine briefly and only in connection with opioids. The article was a little over 200 words. The article observed that “ there are indications that cocaine is increasingly being used with fentanyl and other opiates,” and that 80.2% of all cocaine overdose deaths in 2016 also involved an opiate.  

 

There was no suggestion that there would be a variance at the beginning of the hearing or that the court was considering one.  Both the government and the defense made arguments and asked a sentence of 60 months. Neither side mentioned the article or community harm by opioids.  

 

The court varied upward and imposed a sentence of 120 months in prison.  The court said that “the Guidelines were not ‘sufficient to address the kind of issues that we’re now having with this type of trafficking in these large amounts of cocaine.’”  The district court said that the article was “[i]n large part . . . some indication of why long, lengthy sentences are necessary to try and deter” cocaine trafficking.” The court made no reference to Fleming’s near-status as a career offender.  Fleming appealed stating that his sentence was procedurally and substantively unreasonable.

 

The court noted that a sentence can be procedurally unreasonable when “the facts or issues on which the district court relied to impose a variance came as a surprise and [the defendant’s] presentation to the court was prejudiced by the surprise.”  The court also said that the reliance on information from the article from Clevelnad.com was a surprise and prejudicial to Fleming’s sentencing presentation and as such the sentence was procedurally unreasonable. Fleming’s case was possession of cocaine, not the opioids that were discussed in the article.  Plus there was no evidence of opioids in his case.

 

The court also noted that “the weight the court ultimately assigned to [unexpected] considerations” may contribute to the surprise.  In this case, the court clearly stated that the article was important to the decision. Fleming’s inability to contest the veracity or relevance was part of the prejudice:  He was not able to test the veracity or relevance of the information in the article because it was given to him at the beginning of the hearing.

 

Further, although this was presented to the parties at the beginning of the sentencing hearing they didn’t know how it was going to be used until after counsel made his argument.  

 

The government claimed that the plain error doctrine applied to this case.  Plain error is “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”

 

The court stated that the case was error for the reasons already stated.  The court stated that it was obvious because he district court should have realized that the Cleveland.com article contained information that the parties might reasonably not have anticipated would be relevant. The district court should also have been aware that the structure of the sentencing hearing—in which the parties were given the article only at the start of the hearing, the underlying state report was not provided at all, and the district court did not explain why the article was relevant until after the parties’ arguments—would prevent Fleming from commenting on that information in a meaningful way.”  

 

The court also said that Fleming’s substantial rights were affected.  “A sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, she would have received a more favorable sentence.”  If the judge had given notice of the court’s intent to use the, article then counsel would have been able to persuade that the article was unreliable.

 

The Court determined that the error “affected the fairness, integrity, or public reputation of the judicial proceedings.”  because “Fleming may serve an additional five years in prison based on potentially unreliable and extraneous information that was interjected into the proceedings in a way that ensured no meaningful adversarial testing.”  

 

Because the court determined that the case was procedurally unreasonable by a plain error standard the court determined that it was not necessary to consider substantive unreasonableness.  

 

Fleming also asked that the case be reassigned to a different judge on remand but the court indicated that was not justified in the record.  The court uses three factors to determine whether reassignment is warranted:

 

(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings;

(2) whether reassignment is advisable to preserve the appearance of justice; and

(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

 

Fleming said that reassignment of the case to a different judge was necessary because the judge stated that Fleming had good fortune in avoiding career offender status and that showed that the judge was predisposed to giving Fleming a higher sentence.  However, the district judge also noted that he could not and would not consider Fleming’s “close call” in escaping the career offender enhancement against him. And while Fleming also points out that the Judge indicated the strong likelihood that Fleming would qualify as a career offender, that was before it was determined that he was not a career offender.  Thus the Circuit court declined to hold that Fleming’s case should be reassigned to a different Judge.

 

The Sixth Circuit vacated the sentence and remanded the case for resentencing.  No. 17-3954

McCalla pled guilty to conspiracy to possess at least five kilograms of cocaine with intent to distribute. The Mandatory minimum, in that case, was ten years. His range of punishment was 136 to 168 months. He was sentenced to 126 moths and the court found that a sentence below the advisory guideline range would be sufficient but not greater thank necessary to comply with the requirements of section 3553. McCalla was informed that he had the right to appeal. He did not file a direct appeal. In his 2255 motion he alleged that he would have appealed his sentence if counsel had consulted him and that counsel knew that McCalla was unhappy with the indictment and sentence. McCalla also stated that he “expressed his desire to challenge [this] unbelievable result” and requested an evidentiary hearing.

The magistrate replied that he McCalla’s motion should be denied, that McCalla did not ask counsel to file an appeal, that counsel did not have a duty to consult McCalla and that “no rational defendant would have wonted to appeal.” The magistrate ruled that McCalla was not entitled to an evidentiary hearing because his claim was meritless. The District court adopted the recommendation of the Magistrate’s court and denied the certificate of appealability.

On appeal the court started by stating that both a direct appeal and effective assistance of counsel are rights. Further, the accused has the authority to make certain decisions regarding the case such as whether to take the appeal. Counsel is to advise the defendant about the advantages and disadvantages of taking an appeal and make a reasonable effort to discover the defendant’s wishes. When a defendant has not instructed counsel to file a notice of appeal there is a constitutional duty to consult when a defendant reasonably demonstrated to counsel that he was interested in appealing. When counsel’s performance deprives a defendant of an appeal that he would have otherwise taken then that is prejudice even if the appeal would not have won.

McCalla’s statement that he wanted to challenge his sentence showed that he was interested in appealing. Counsel was to advise McCalla about the advantages of taking an appeal. Counsel did not. If counsel had done their duty then McCalla would have asked his attorney to appeal the sentence. This showed that McCalla had alleged facts, that, if true, established a successful ineffective assistance of counsel claim entitling him to an appeal Neither the fact that he not have been successful nor the fact that the sentencing judge notified Thompson that he had a right to appeal changes the conclusion of the court. This means that the district court abused their discretion when they denied his evidentiary hearing on this.

The Eleventh circuit reversed with orders to schedule an evidentiary hearing.

McCalla v. United States. No. 16-15623, 2018 WL 1747722

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

The Tenth Circuit recently reversed in United States v. Dahda. Dahda was convicted on a drug conspiracy for over 1,000 kilograms or more of marijuana. On appeal, Dahda alleged seven grounds for relief, including that the district court erred in applying Dahda’s base offense level by miscalculating the amount of marijuana attributed to Dahda.

While the rest of the grounds were rejected on appeal, the Tenth Circuit reversed on Dahda’s claim that the district court miscalculated the base offense level. 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 a ‘minimum indicia of reliability.’”

However, the Tenth Circuit found the information used to sustain Dahda’s offense level was not reliable. The appellate court found that the quantities of marijuana found in pallets varied. The government’s witnesses indicated that each pallet had between five to ten to eighty pounds of marijuana. Toward 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. There was also no indication of the time periods that the government’s witnesses were referencing when discussing the pallets that contained 80 pounds. The court found that there was no way to tie the testimony of the government’s witnesses to the shipments that were attributed to Dahda and as such, it was insufficient. The court also rejected the government’s harmless error analysis.

The Tenth Circuit reversed, United States v. Dahda, No. 15-3237

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

United States v. Wheeler, __F.3d__, 2018 WL 1514418 (4th Cir. 2018)

The Fourth Circuit recently handed down a very important and precedential decision on the applicability of the savings clause to the legality of a petitioner’s sentence.

Appellant Gerald Wheeler was charged in the United States District Court for the Western District of North Carolina of conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana, possession of a firearm during and in relation to a drug trafficking crime, and possession of a firearm by a convicted felon. Wheeler pled guilty pursuant to a plea agreement, which agreed to an enhanced penalty pursuant to 21 U.S.C. 851 for the drug count.

In 2008, the district court sentenced Wheeler to 120 months in prison on Count One based on the statutory mandatory minimum under 21 U.S.C. 841(b)(1)(B) and 851. The Fourth Circuit affirmed Wheeler’s sentence in 2009. United States v. Wheeler, 329 Fed. Appx. 481 (4th Cir. 2009).

In 2010, Wheeler filed a motion pursuant to 28 U.S.C. 2255 alleging his counsel was ineffective for, inter alia, failing to argue that Wheeler’s 1996 North Carolina conviction for possession of cocaine did not qualify to enhance his sentence under section 851. The district court dismissed Wheeler’s 2255 motion as foreclosed by the Fourth Circuit’s holdings in United States v. Harp, 406 F.3d 242 (4th Cir. 2005) and United States v. Simmons, 635 F.3d 140 (4th Cir. 2011). Those decisions held, “[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], … we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” Harp, 406 F.3d at 246; Simmons, 635 F.3d at 146. Pursuant to this reasoning, the district court found that Wheeler received a 6 to 8-month sentence for the 1996 conviction, thus, “his offense was punishable by imprisonment for more than a year” because it was a Class I felony which carried a maximum sentence of 15 months. Wheeler filed a notice of appeal and motion for COA with the Fourth Circuit on August 3, 2011.

While Wheeler’s motion for COA was pending, the Fourth Circuit overturned Simmons on rehearing en banc. The court determined that “in deciding whether a sentencing enhancement was appropriate under the Controlled Substances Act, a district court could no longer look to a hypothetical defendant with the worst possible criminal history…. [A] sentencing court may only consider the maximum possible sentence that the particular defendant could have received.” United States v. Kerr, 737 F.3d 33, 37 (4th Cir. 2013). Even so, the Fourth Circuit denied Wheeler’s motion for COA because it determined Simmons did not apply retroactively to cases on collateral review.

Wheeler subsequently submitted a request for authorization to file a second 2255 motion with an alternative petition pursuant to 28 U.S.C. 2241 seeking application of the savings clause (28 U.S.C. 2255(e)). The Fourth Circuit denied Wheeler’s request to file a second or successive 2255 but did not address his 2241 petition which was pending at the time before the district court.

The district court stayed the 2241 petition pending the resolution of United States v. Surratt, No. 14-6851. The majority panel in Surratt distinguished the court’s decision in In re Jones, which granted savings clause relief after setting forth a three-part test based on the legality of a petitioner’s conviction, but not his sentence. Following Surratt, the district court denied Wheeler’s 2241 petition because it did not challenge the legality of his conviction, only his sentence.

Wheeler once again appealed, and the Fourth Circuit subsequently granted rehearing en banc in Surratt, thus vacating the panel’s prior opinion. However, rehearing in Surratt was found to be moot after his sentence was commuted by President Obama. The Fourth Circuit lifted the stay pending rehearing and has finally addressed the merits of Wheeler’s 2241 claims.

First, the Fourth Circuit addressed the government’s “shifting position” on jurisdiction. The government initially conceded that Wheeler met the savings clause requirements before the district court. However, on appeal, the government did an “about-face,” and argued that the court was without jurisdiction because Wheeler had failed to satisfy the savings clause requirements. The Fourth Circuit concluded that “[b]ecause the savings clause requirements are jurisdictional, we must reject Appellant’s waiver argument. Though the Government’s change of position is a ‘distasteful occurrence[ ]’ and is ‘not to be encouraged, its about-face is irrelevant to our resolution of’ this appeal.”

The court then turned to whether Wheeler’s 2241 petition satisfied the savings clause requirements of the circuit. The Fourth Circuit’s seminal decision, In re Jones, held that a petitioner must satisfy three elements to meet the savings clause requirements:

[Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of 2255 because the new rule is not one of constitutional law.

The question now before the court was whether Jones applies to sentencing arguments. The Fourth Circuit held it does and announced a new savings clause test for erroneous sentences:

“[W]e conclude that 2255 is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; subsequent to the prisoner’s direct appeal and first 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping requirements of 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

After applying the new savings clause test to Wheeler’s 2241 claims, the Fourth Circuit held that Wheeler did, in fact, show that 2255 is inadequate and ineffective to test the legality of his detention.

The Fourth Circuit VACATED and REMANDED to the district court to have his 2241 petition addressed on the merits.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

In United States of America vs. Perlaza-Ortiz, No. 16-40331, the Fifth Circuit vacated a sentence that was enhanced under USSG 2L1.2, an immigration guideline, in light of the Supreme Court’s decision in Mathis v. United States.

Perlaza-Ortiz pleaded guilty to unlawfully reentering the U.S. At sentencing Perlaza-Ortiz was enhanced 16 levels under 2L1.2 of the guidelines because of a prior “crime of violence” for a Texas conviction for a crime called “Deadly Conduct.” This enhancement helped produce a Guideline range of 46-57 months in criminal history category III, but the court downwardly departed to criminal history category II resulting in a guideline range of 41-51 months. The court then sentenced Perlaza-Ortiz to 41 months. In imposing sentence the judge said:

“I also want to be very clear in this case that this sentence, if there is any some – for whatever reason, any miscalculation or inappropriate determination of a guideline range, based on the 3553(a) factors, this would definitely still be my sentence as to what would be the appropriate sentence with the 3553(a) factors taken as a whole.” Perlaza-Ortiz argued that he should have only received an 8-level enhancement.

Texas Deadly Conduct is found in Section 22.05 of the Texas Penal Code which states:

“A person commits an offense if he knowingly discharges a firearm at or in the direction of:

(1) one or more individuals; or

(2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.”

In assessing whether Perlaza-Ortiz was entitled to relief, the Fifth Circuit stated:

“This case requires us to revisit the question of whether Section 22.05(b) is divisible, because Mathis supplants any of our precedents inconsistent with its methodology for identifying “truly divisible statutes.”A statute is “divisible” if it “defines multiple crimes.” If a statute is divisible, the court may use the “modified categorical approach,” which “permit[s] courts to examine ‘a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.’”

“Some criminal statutes appear divisible but are not.” Id. “These statutes, rather than providing alternative elements, instead list ‘various factual means of committing a single element.’ “In Mathis, the Supreme Court held that the modified categorical approach is not appropriate for this species of criminal statute.” Id.

“Mathis provided helpful guidance for determining whether a predicate statute of conviction is divisible.” “[I]n light of Mathis, we know that we must determine whether ‘listed items’ in a state statute ‘are elements or means . . . .’”“Elements must be agreed upon by a jury.” “When a jury is not required to agree on the way that a particular requirement of an offense is met, the way of satisfying that requirement is a means of committing an offense[,] not an element of the offense.” Id. “[I]f ‘a state court decision definitively answers the question’ our inquiry is at an end.” As a final note, there is a “demand for certainty” when evaluating “whether a defendant was convicted of a generic offense.”

The Fifth Circuit then looked at several UNPUBLIBSHED Texas state cases to illustrate that the subsections of 22.05 are alternate means as opposed to elements. The court looked at unpublished cases because they can provide some help to determine if a statute is divisible or not. Not only that but they looked at the underlying indictments in those cases as well. And then the court looked at legislative history including a final conference committee report and bill analysis in order to determine whether the the statute was divisible or not.

The court determined that the legislative history and the case law was clear but if it wasn’t then they cold look at the record of the conviction itself under Mathis including the indictment and the jury instructions.

As the Fifth Circuit held,

“Here, there can be no doubt that the indictment references “one . . . term to the exclusion of all others”5; it charges Perlaza-Ortiz unmistakably with a violation of 22.01(b)(1), and makes no mention of habitations, buildings, or vehicles. Still, the indictment, along with the other arguments the Government presents, would not be enough to establish with the requisite “certainty” that Perlaza-Ortiz was convicted of a generic offense, especially when it is balanced against the clear, if unpublished, Texas case law.”

Finally, the court also determined that the error wasn’t harmless. According to the Fifth Circuit:

The Government has not carried its burden of demonstrating that Perlaza-Ortiz’s sentence “was not influenced in any way by the erroneous Guideline calculation.’”

Accordingly, the Fifth Circuit Reversed, 16-40331

Jeremy’s Take: Yesterday I was on the phone with a loved one of a prisoner. I tried to explain the complexity of the categorical approach and consequently why it is important to have an attorney look at state court opinions, statutes and other sources in order to determine if an enhancement was properly applied. This decision proves my point. The Fifth Circuit considered unpublished court opinions, state legislature conference committee reports from 1993, among other materials. This is NOT something that you can done via a cursory phone call or even looking at just a PSI. Further, as you all know, the BOP does not make state law available in its law libraries.

The case also said that your attorney has to communicate the statutory maximums and minimums but also has to “know the guidelines.” That is up to interpretation by the courts. If you have a case where a lawyer did not adequately advise you or your loved one about the advantages and disadvantages of pleading guilty, then contact us today.

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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 United States v. Vaughn, No. 16-3138, the Third Circuit reversed the denial of a 2255 for failure to hold an evidentiary hearing.

Vaughn was charged with conspiracy to commit money-laundering, conspiracy to commit mail and wire fraud, wire fraud and use of a fictitious name in relation to mail fraud.   He was convicted and sentenced to 72 months and 62 months to run concurrently. He filed a motion to vacate his sentence claiming that his lawyer was ineffective.

Vaughan stated in his affidavit accompanying the 2255 motion that the government offered him an 11(c)(1)(C) plea of 60 months (remember that Fed. R. Cri. P. 11(c)(1)(C) says that if the parties “agree that a specific sentence … is the appropriate disposition of the case” then “such a recommendation or request binds the court once the court accepts the plea agreement”). He also stated that his lawyer refused to tell him of his trial sentence exposure, stating that “he only practiced in facts not fairy tales and further that he practiced in guarantees not what ifs.” The government later offered a plea to two counts with no 11(c)(1)(C) plea. Vaughn said in his affidavit that his lawyer pushed him to take this deal, stating that the judge ‘hinted’ that he would sentence him below the guidelines.

His lawyer’s affidavit stated that he gave the client an estimate of what the likely guidelines range would be and they talked it over at length. There were also emails between the two of them where they talked about the likely sentencing effects of pleading guilty to the second plea offer.

The 2255 claimed that the lawyer provided ineffective assistance of counsel during the plea-bargaining and sentencing processes for the first plea (of 60 months). Both Vaughan and his counsel submitted affidavits. Even though they conflicted with each other the District Court denied them without a hearing.

On appeal the court indicated that Vaughan’s statements in his affidavit would mean that the lawyer was ineffective. Further, the government admitted that it’s basically Vaughn against his lawyer in competing affidavits. The Third Circuit also indicated that the statements made at the change of plea hearing were not appropriate evidence of what the lawyer had said because those were about the offer that was accepted, not what was turned down (because there wouldn’t be talk at a plea hearing about a plea that you didn’t take). The third circuit also indicated that there was no talk about the prejudice prong of the 2255 as well (remember, to prevail on a 2255 you have to show deficient performance and prejudice).

The Third Circuit Reversed, No. 16-3138

JEREMY’S TAKE: When you are filing a 2255 indicating that your lawyer was ineffective it is IMPORTANT to file a declaration with it stating the ways that (s)he was ineffective. What did they say? What did they do? How did they respond to your questions about the plea deal? Is there anything that they said that surprised you?   And when they give you their answers then you write it down for your own records. Maybe even email a copy of the conversation to your loved one in case your legal paperwork gets “taken away” or lost. Keep notes of these things so that you can give them to an attorney later for a possible 2255 case.

The case also said that your attorney has to communicate the statutory maximums and minimums but also has to “know the guidelines.” That is up to interpretation by the courts. If you have a case where your lawyer did not adequately advise you about the advantages and disadvantages of pleading guilty, then contact us today.

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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.

 

Juarez was convicted of conspiring to distribute drugs and conspiring to possess firearms in the furtherance of a drug trafficking crime. At sentencing, the Pre-Sentencing Report (PSR) recommended a four-level enhancement because Juarez allegedly sold bulletproof vests to two people and the “vests were kept in stash houses where drugs drug proceeds and firearms were kept.”

Juarez argued that the vests were never “used” in the furtherance of the conspiracy. The district court disagreed, finding that “use” could be interpreted along with “barter” as an exchange of body armor for money. As a result, Juarez was sentenced to 365 months, the TOP of the guideline range after the increased sentence for the body armor. The court also said that if 3b1.5(2)(B) didn’t apply then an upward variance would have been applied and Juarez would have still gotten the same sentence.

3b1.5 says:

If—

(1) the defendant was convicted of a drug trafficking crime or crime of violence;

and

(2) (apply the greater)—

(A) the offense involved the use of body armor, increase by 2 levels; or

(B) the defendant used body armor during the commission of the offense, in preparation for the offense, or in an attempt to avoid apprehension for the offense, increase by 4 levels.

The Fifth Circuit, agreeing with Juarez, held that the plain language of the Guideline showed that this enhancement was inapplicable. The language states that “use” either means “active employment in a manner to protect the person from gunfire” or “use as a means of bartering.” The Fifth Circuit has previously held that “barter” means to exchange one thing for another WITHOUT the use of money. Selling bulletproof vests for money, as Juarez did, was not “bartering.” The government argued that this would go against the purpose of the guideline and common sense, but was unable to support its position with any case law.

Next, the Fifth Circuit turned to whether this Guideline application error was harmless. An error is harmless only if the GOVERNMENT proves:

(1) “the district court would have imposed a sentence outside the properly calculated sentencing range for the same reasons it provided at the sentencing hearing” and (2) “the sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.”

In this situation, the court not only sentenced Juarez to a higher range because of the body armor, but sentenced him to the high end of that range. However, the fact that Juarez was sentenced to the high end of the range was insufficient to show that the error was harmless.

Accordingly, the Fifth Circuit reversed. United States v. Juarez, No. 16-30773 (5th Cir. 2017).

JEREMY’S TAKE: You can’t barter something if you are actually selling it for cold hard dollars. A barter would be if you said, “I’ll give you ten macks if you cut my hair.” Or, “I got a book for one of them banana pudding bowls.” There is an exchange there, but not one of money. The other important thing about this decision is that the Fifth Circuit still ordered a resentencing in spite of the judge’s comments that he would have given the same sentence anyways. This goes to show how high the harmless error burden really is, if applied properly.

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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.

 

Madkins was convicted of distribution of cocaine base and distribution of cocaine base within 1000 feet of a school. He was found guilty and was designated a career offender. He had two prior convictions in the state of Kansas for possession with intent to sell cocaine and marijuana. Madkins claimed that the Kansas statutes included possession of a controlled substance with intent to offer for sale, which is outside of 4b1.2. The District Court disagreed.

The Tenth Circuit reviewed the Kansas statute, which said: [I]t shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver, or distribute; prescribe; administer; deliver; distribute; dispense or compound any opiates, opium or narcotic drugs, or any stimulant drug.

Kansas Law defines sale as “offer to sell.” And because that is broader than a generic federal controlled substance offense, it does not qualify as proper predicate for the career offender enhancement. This is similar to United States v. Hinkle, which was decided by the Fifth Circuit. Hinkle was enhanced as a career offender based on a prior conviction for delivery of a controlled substance. However, Texas law, like Kansas, defines “distribution” as including an “offer to sell.” As such, the Fifth Circuit held that Texas distribution priors were no longer qualifying for career offender purposes.. Similarly, in United States v. Savage, 542 f3d 959 (2nd Cir. 2008), there was a Connecticut statute that penalized the “sale” of a controlled substance. But the definition of “sale” also included “any form of delivery[,] which includes barter, exchange or gift, or offer therefor.”

Madkins sentence was accordingly reversed, and the case was remanded for further proceedings. United States v. Madkins, No. 15-3299 (10th Cir. 2017).

JEREMY’S TAKE: The “categorical approach,” which requires examination of state statutes, is complicated. Many lawyers do not understand it. However, in light of Mathis, a decision from the Supreme Court in 2016, we are slowly seeing more and more appeals courts crack the door for individuals serving a long recidivist-based sentence.

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WERE YOU ENHANCED AS A CARREER OFFENDER or did you receive an ACCA enhancement? Are you looking to hire counsel to help you get some relief? If so, my office is prepared to assist.

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 United States v. Strickland, No. 14-30168 the Ninth Circuit vacated a sentence because the term “physical force” under Oregon’s Third Degree Robbery statute doesn’t match the term’s use in the ACCA.

Strickland pled guilty to being a felon in possession of a firearm.  He was sentenced to 15 years under the ACCA for three prior violent felony convictions.  Strickland objected to the Oregon conviction for third degree robbery.  The District Court determined that the robbery satisfied the residual clause.  This was before Johnson v. US, now the residual clause can’t serve as the predicate for Strickland’s sentence.

The court noted that under the force clause the statute must have “as an element the use, attempted use, or threatened use of physical force against the person of another.”  and that when looking at a state statute the court looks at the text and the state court’s interpretations of the statue’s terms.

The Applicable state statute requires the use of threatened use of “physical force” upon another person.  The court indicated that the question presented is whether the term “physical force” means “violent force,” which is required for the ACCA.

The court noted that the state cases show that Oregon doesn’t require “physically violent force”  notating cases in Oregon where a thief tugged away a purse from a woman and the woman didn’t feel “much of anything.” This met the standard for that case because the thief used physical force to snatch the purse.  The court noted that “the statute does not focus on the extent to which the victim may or may not have felt the force, but rather on the perpetrator’s intent, while using force on the victim, that any resistance that the victim might offer be prevented or overcome.”  Other cases that met the statue included a case where a thief pulling away from a shopping guard was a robbery and that the statue was met when a victim and a thief had a tug of war over a purse.  Thus the statute is not a match to the force clause.  Therefore the robbery was not an appropriate predicate.  Since  the third degree was also not an enumerated offense it met no predicates for the ACCA and could not be used.

The ninth circuit vacated and remanded the sentence to the District Court, No. 14-30168

These ACCA cases where state priors are used to enhance a sentence must be given a critical eye.  each case and each statute must be evaluated in order to determine if the predicates can be challenged.  And just like in Strickland, cases saying what the law is may be vital.  If you have an ACCA enhancement please reach out to my office at [email protected] in order for us to look at your case.

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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. Concha, the Court reversed the sentence of a person who cooperated because his sentencing court abused their discretion by considering factors unrelated to his assistance.

Concha was arrested and agreed to cooperate by delivering both real and counterfeit cocaine.  After the delivery, two people were indicted for conspiracy to distribute.  A 5k1.1 motion was filed.

The court granted the government’s 5k1.1 motion but indicated that they were struggling with this because it showed his involvement in these drug crimes.  The court determined that his involvement was “huge” and that other people have been sent to jail for extended periods of time with less culpability.  The court went on to say things like “he’s dumping that crap [here].”

The court noted that his range was 168-210 months and that a 210-month sentence was appropriate.  When determining the factors, the court indicated that the crime was serious and there was damage to the community.  The court also noted that the description of the cooperation showed that he was involved in a much larger conspiracy and that his conduct was in greater magnitude.  The court sentenced him to 126 months, a 40% reduction from the 210 month sentence.  Concha appealed stating that the district court abused their discretion by considering factors unrelated to his cooperation when determining the extent of the departure.

The court noted that the for a 5k1.1 departure, the court can only consider assistance related factors only.  When a court is using 3553(e) to reduce a sentence below a statutory minimum they can only consider assistance-related factors when determining the extent of the departure.

The court noted that the district court considered factors unrelated to assistance when determining the extent of the departure.  The facts that they considered were relevant to the pre-departure sentencing determination and the court properly took those factors into account when selecting the 210-month sentence.  But the court also took them into account when determining the substantial-assistance departure.

The court determined that the district court abused its discretion when considering facts relating to his culpability for the charged conspiracy when determining ow much they would depart from the guidelines’s sentence.

The Fourth Circuit Vacated and Remanded the Sentence.

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My office handles matters involving cooperation including matters where people do not get time cuts at all or get less than what is appropriate for the cooperation that they have engaged in.  If you did not receive the amount of time off that you should have for your cooperation then please reach out to my office.  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. vs. Reyes-Ochoa, No. 15-41270,  the Fifth Circuit held that a sixteen-level “crime of violence” enhancement for a Virginia Statutory Burglary was plain error.

Reyes-Ochoa was a citizen of El Salvador.  He pled guilty to being an alien who knowingly and unlawfully entered the US following deportation.  The prior Virginia Statutory Burglary meant that Reyes-Ochoa’s base offense level had 16 points added to it.  That led to a guideline range of 41-51 months.  Reyes-Ochoa was sentenced to 41 months.

Reyes-Ochoa asserted that his burglary case, which was prosecuted under VA Code 18.2-90 is indivisible and doesn’t satisfy the categorical approach because the statute includes offenses broader than generic “burglary oaf a dwelling.”  Reyes-Ochoa didn’t object to the sentencing enhancement in the district court meaning that the appellate court used a plain error standard.

The Court explained Mathis, and then looked at the language of the statute of VA burglary, which is:

“If any person in the nighttime enters without breaking or in the daytime breaks and enters or enters and conceals himself in a dwelling house or an adjoining, occupied outhouse or in the nighttime enters without breaking or at any time breaks and enters or enters and conceals himself in any building permanently affixed to realty, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation, with intent to commit murder, rape, robbery or arson … he shall be deemed guilty of statutory burglary….”

The Fifth Circuit held that the Fourth Circuit (which is where Virginia is) made the right call in  Castendet-Lewis, 855 F.3d at 255–56 where they held that Virginia’s Burglary Statute was indivisible and provided four district factual means of describing how the statutory offense of burglary can be committed because the Virginia Courts analyze them interchangeably.  The Fourth Circuit noted that post Mathis, previous analysis of this failed because the statute has more than one way to satisfy a single element of a single crime.  Ultimately the Fourth Circuit indicated that the Burglary conviction could not be an aggravated felony because it criminalizes more conduct than the generic federal offense of burglary.

The Fifth Circuit agreed that the same result should happen here.  The court determined that it was obvious error to impose a Crime Of Violence Enhancement based on Reyes-Ochoa’s burglary conviction.

The court also determined that the enhancement affected Reyes-Ochoa’s substantial rights because without that enhancement he would be been subject to a guidelines range of 15-21 months which is lower than the 41 month sentence that was imposed.  The court also determined that “the fairness of the judicial proceedings and warrants the exercise of [the court’s] discretion to correct the error because his sentence was 20 months above the top of his correct guidelines range.

The Fifth Circuit Reversed, U.S. V. Reyes-Ochoa, 15-41270.

In a FAQ back when Johnson came out, my office noted that there were many different types of cases that could have been improperly enhanced due to the “crime of violence” language.  This is one of the instances that we found.  If you have “crime of violence” language in your PSI that leads to an enhancement then you may be able to fight it.  Please reach out to our office at [email protected]  to find out more.

In United States v. Ramos-Gonzales the Fifth Circuit vacated the Southern District of Texas’ “re-imposition” condition of Supervised Release.

Ramos-Gonzales was arrested and charged with attempt to transport undocumented individuals.  She pled guilty and the PSR suggested a guidelines range of 8-14 months with a 3 year term of supervised release.

The first time she was sentenced the “standard terms and conditions of supervision” were imposed.  that included a “nighttime restriction of 12 midnight to 6 AM and drug surveillance.”  There were no objections to that.

Ramos-Gonzales appealed claiming that the court committed plain error with the drug surveillance and night time restriction conditions of supervised release, stating that the district court failed to explain its reasons and the record didn’t furnish independent evidentiary support.  The government moved to remand for the same reasons stating that even though she had a 2012 conviction for possession of 44 pounds of marijuana and last smoked marijuana 25 years ago, there is nothing in the record that warrants drug  in the manner prescribed.  The Court granted plain error relief after doing its own analysis.

At resentencing the District Court Vacated the nighttime restriction because Ramos-Gonzales was living with her children and there was no evidence that the offense occurred at night time.  The court maintained the drug surveillance condition because of her prior drug conviction even though counsel maintained her objection because it was an invasion of privacy and a financial burden.

The court pointed out that that the special conditions must be reasonably related to one of four factors:

(1) “the nature and circumstances of the offense and the history and characteristics of the defendant”;

(2) “the need . . . to afford adequate deterrence to criminal conduct”;

(3) “the need . . . to protect the public from further crimes of the defendant”; and

(4) “the need . . . to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

The court went on to indicate that the standard of review is abuse of discretion.

The court indicated that the conviction for possession was from 2012, there was no evidence that she engaged in personal drug use and the court can’t speculate as to any criminal conduct that a surveillance-related special condition would detect or deter.  The court concluded that there was no relevant evidence of drug use and the district court abused their discretion in imposing that special condition on Ramos-Gonzales.  The court went on to indicate that since she will have to do mandatory drug testing anyway that remand would be unnecessary and just vacated the special condition of supervised release.

In a footnote, it was stated that the the sentencing hearing was handled over the phone without the defendant’s physical presence.  The court also advised against conducting sentencing hearings by telephone, advising that criminal proceedings are solemn.  Judge Jones concurred in the ruling indicating that there is no rule allowing a person to conduct a hearing by telephonic conferencing and that doing such is a “lack of dignity and detachment from the moral drama of the criminal justice system.”

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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 United States v. Zuniga the Fifth Circuit remanded the conviction based on improper convictions.

Zuniga was a passenger in his vehicle.  Zuniga and the driver were followed by the police.  The police witnessed the vehicle fail to signal 100 feet continuously before turning left and park in a “disabled only” parking space (these things are law violations in Texas).  The officer who witnessed these violations was undercover and asked another officer to stop the vehicle.  The other officer did not see the law violations but stopped the vehicle anyway.  The driver did not have a license.  Zuniga had city warrants.  Both were arrested.  Zuniga was searched and was found to be in possession of a plastic bag of meth.  His vehicle was searched and a backpack with more meth was found as well as a firearm and holster.

Zuniga moved to suppress the stop and was denied on the grounds of the “collective knowledge doctrine.”  He later pled guilty to one count of Possession with Intent to Distribute 500 grams or More of Meth and Aiding and Abetting while preserving his right to challenge the suppression ruling.

At sentencing the court found Zuniga to be a career offender for his two priors of evading arrest and delivery of a controlled substance.  He was sentenced to 327 months and five years of supervised release.

Zuniga argued that his career offender sentence must be remanded under Johnson v. United States.  Zuniga filed a second supplemental brief based on United States v. Hinkle challenging the Texas Delivery of a controlled substance.  He had also challenged the reasonable suspicion of the stop as well as the application of the collective knowledge doctrine.  His reasonable suspicion arguments and his collective knowledge doctrine arguments were denied and after Beckles v. United States was published, Zuniga conceded that his argument about Johnson v. United States was foreclosed.  However Hinkle explained that Mathis does not allow sentencing courts to look at the actual method of delivery on which a defendant’s conviction was based on for purposes of determining whether the conviction constituted a controlled substance offense under the guidelines.

The government indicated that Zuniga did not raise this argument in the district court and in the opening brief to this court and as such the court should hold that Zuniga forfeited his right to bring this argument citing that Mathis only “reaffirmed” the principle articulated in Descamps.  The Court rejected this argument indicating that Mathis clarified the law on divisibility.  While Descamps was about whether a sentencing court could consult additional documents when a defendant was convicted under an ‘indivisible’ statute, Mathis was concerning “a different kind of alternately phrased law” and held that alternative means do not make alternative elements.  Hinkle then applied Mathis to a Texas Statute.

With that, the forfeiture argument was laid waste to.  The government conceded that the error was plain in this case especially when considering the disparity between the imposed sentence and the applicable guideline range.

The Fifth Circuit Vacated and Remanded.  U.S. v. Zuniga.

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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 United States v. Cummings, the Second Circuit reversed a conviction because of prejudicial double hearsay.  Cummings was charged with several offenses regarding drugs, firearms and two counts of killing a person during and relation to a conspiracy to distribute cocaine base.  During the trial the government sought to offer evidence that Cummings threatened a cooperating witness because of his cooperation by offering the testimony of that person.  That person was going to testify to the defendant saying that he was going to kill the witness because of the witnesses’ cooperation.  Cummings’ counsel opposed, arguing that the probative value of that evidence was substantially outweighed the prejudicial effect under rule 403 of the Federal Rules of Evidence.  The Trial Court allowed the evidence in subject to a limiting instruction.

During the trial it came out that the witness did NOT actually hear Cummings actually say that he was going to “shoot [the witness] in the face.”  The witness never alleged that Cummings that to him directly, rather he said that to people around the witness.  Defense counsel did not re-raise the request for the limiting instruction and the court did not grant it.  There was no 404(b) instruction either (a 404(b) instruction means in this case that the jury wouldn’t have been allowed to use this threat as evidence that he committed the crimes he was charged with).  The prosecutor said at final argument that Cummings made those threats because he knew the evidence would be damaging to him at trial and that testimony, “was in fact completely devastating proof of [Cummings’] crimes.”

The Jury found Cummings guilty of all counts.

With regard to the hearsay evidence, the court held that the statements of the witness that Cummings didn’t say anything to him directly meant that it was less likely that the witness heard Cummings make the death thread.  So that means that other people heard Cummings say what he said and then told it to the witness.  That created a potential “hearsay within hearsay” problem; the first hearsay issue is when Cummings allegedly told some unknown person that he was going to “shoot [the witness] in the face.”  Then the second statement is when the unknown person told the statement to the witness who testified.

(Remember, under Federal Rule of Evidence 801, Hearsay is an Out of Court Statement offered in court for the truth of the matter asserted).

(A note by Jeremy:  Okay, so when you’re dealing with two levels of hearsay then you have to have either an exception or that it’s not actually hearsay for each one.  You have to deal with each one on its own individually)

The court noted that although the first statement could be deemed “Not Hearsay,” because it is not offered for the truth of the matter asserted but rather for consciousness of guilt OR it could be deemed “Not Hearsay” because it is a statement by a party opponent (as in the case is U.S. v. Cummings and the U.S. is offering the statement).  But even if that clears Cummings stating it to the unknown person, it doesn’t clear the unknown person saying it to the witness.  The government didn’t call the unknown person and the court indicated that the only way that the statement gets in is if it was admitted for its truth.  If it wasn’t admitted for its truth then it wouldn’t be probative of his consciousness of guilt.  So since the second statement from the unknown person to the witness is hearsay without an exception, then it is inadmissible.

The court then weighed whether the admission was harmless error.  Although Cummings did not ask for a limiting instruction, the court determined that the death threat testimony created an undue risk that the jury construed the thread as evidence of Cummings’s murderous propensity.  Second the court did not provide a limiting instruction to the jury about the limited permissible purpose of the death threat testimony.  Third the government’s description of the death threat testimony went beyond the purpose of its admission because of the government’s final argument.  Finally, the hearsay nature of the death threat testimony unfairly prejudiced Cummings and may have affected the jury’s understanding of his testimony.

The second circuit reversed, 15-2035

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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 United States vs. Miller the Third Circuit reversed and remanded a case for re-sentencing for allocution error.

The defendant was convicted of money laundering and mail fraud as well as aiding and abetting, both offenses as a result of insurance claims that the defendant filed concerning damages to his theater business.

During sentencing, the defendant allocuted and the District Court Judge invited the prosecutor to cross examine him during his allocution.

He raised appellate grounds based on the sufficiency of the evidence and errors in allocution.

The Court found that there was sufficient evidence to find Miller guilty of that offenses committed.

With regard to sentencing, the court determined that the prosecution should not be allowed to cross-examine a defendant during allocution and that doing so violated a defendant’s allocution rights.  This met the court’s plain error standard for this case (the allocution error was not raised in the district court) as the court had previously ruled that they must vacate for re-sentencing if the trial court violates the defendant’s right of allocution.

The Third Circuit Reversed, U.S. v. Miller, no. 16-1145

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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 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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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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