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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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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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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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“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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Miguel Bustamante-Conchas was not allowed a chance to allocute before being sentenced.  As you may know, Allocution is the right of a defendant in a criminal case to say anything to the Judge that they wish to say with the hopes that the Judge would impose a lesser sentence.

The right to allocute is in the Federal Rule of Criminal Procedure 32( i)(4)(A)(ii) which says that federal courts must  “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”

The U.S. Court of Appeals for the Tenth Circuit, sitting en banc (where all the judges hear the case and decide instead of a panel) held that Bustamante-Conchas had been denied the right to allocate. Since he did not object at sentencing, the Court had to decide whether this was “Plain Error.”  In this case the court wrote that Plain error is shown where there is an  “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings[.]”

The first two prongs of that test were easily satisfied.  The court said, “a complete denial of allocution thus satisfies the first and second prongs of plain-error review.”

On the third prong, Tenth Circuit held that defendants need only show that “there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” A reasonable probability, should not be confused with, “a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” Rather, the court said that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.”

On this, the court held that “without some exceptionally good reason to doubt that allocution would have mattered, the complete denial of a defendant’s right to allocute raises a reasonable probability of a lesser sentence,” adding “just as the Guidelines are ordinarily expected to have some impact on a sentence, there is at least a reasonable probability that allocution matters in the usual case.”  Even more importantly, the court held defendants “need not identify the particular statements they wished to make” to show prejudice.

There are some situations where a defendant will not be able to show prejiduce with the denial of an allocution such as a mandatory minimum or a sentence pursuant to Fedaral R. Crim P. 11 11(c)(1)(C), or certain types of violations of supervised release cases.

The court also overruled its prior cases which held that a “defendant must proffer an allocution statement to obtain relief.” The court did so because “accepting a proffered allocution statement would violate the fundamental tenet that appellate courts will not consider material outside the record before the district court.” Also, “appellate courts are in a poor position to assess an allocution statement.”

In refusing to require a proffer of what the defendant’s allocution would have been to demonstrate prejudice, the Tenth Circuit created a split with the Fifth Circuit which specifically requires such a statement as a precondition to being afforded relief. United States v. Palacios, 844 F.3d 527, 532-33 (5th Cir. 2016) (collecting cases).

Bustamate-Conchas’s sentence was accordingly reversed, and the case was remanded for resentencing. See: United States v. Bustamate-Conchas, No. 15-2025 (10th Cir. 2017).

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