Criminal Law Library Blog

For week ending January 10, 2008:

U.S. Supreme Court, January 07, 2008
Arave v. Hoffman, No. 07-110
In habeas corpus proceedings brought by an individual convicted of first-degree murder and sentenced to death, a circuit court judgment granting habeas relief on a claim that he received ineffective assistance during plea negotiations is vacated as petitioner now abandoned the claim, and it was moot. .

U.S. Supreme Court, January 07, 2008
Wright v. Van Patten, No. 07-212
Grant of habeas relief from a conviction and sentence for first-degree reckless homicide is reversed where, contrary to the ruling below, no clearly established law contrary to the state court's conclusion justified collateral relief with regard to a claim that petitioner received ineffective assistance of counsel due to his participation in a plea hearing by speaker phone. .

U.S. 2nd Circuit Court of Appeals, January 07, 2008
Ogunwomoju v. US, No. 06-3734, 06-4424
Dismissal of habeas petition is affirmed as a petitioner in immigration custody or under an order of removal as a consequence of his criminal conviction is not "in custody" within the meaning of 28 U.S.C. section 2254. ..

U.S. 2nd Circuit Court of Appeals, January 09, 2008
US v. Dupes, No. 05-5522
Sentence based on guilty plea to securities fraud and conspiracy to commit securities fraud is affirmed over defendant's claims that: 1) the imposition of special conditions of supervised release relating to his prior sex offenses exceeded the district court's statutory authority and violated the Double Jeopardy Clause and the Tenth Amendment; and 2) order to make full restitution to his victims in an amount determined by the court under the Mandatory Victim Restitution Act violated the Sixth Amendment.

U.S. 2nd Circuit Court of Appeals, January 11, 2008
US v. Espinoza, No. 05-0711
Sentence based on conviction for cocaine-related crimes is affirmed as the district court's reliance on the record before it, including the Presentence Investigation Report, constitutes an adequate basis for the sentence imposed, and the court's failure to satisfy the "open court" requirement of 18 U.S.C. section 3553(c) was not plain error. Read more...

U.S. 3rd Circuit Court of Appeals, January 10, 2008
US v. Schwartz, No. 05-4978
In the context of plea agreements and criminal sentencing, the government may withdraw a downward departure motion when a defendant agrees not to violate the law and a written plea agreement reserves to the government the right to withdraw the motion upon that occurrence. A sentence for drug-related offenses is affirmed where, based on the terms of the plea agreement and the evidence establishing defendant's drug trafficking activity, the government neither breached the agreement nor acted in bad faith when it sought to withdraw a downward departure motion.

U.S. 4th Circuit Court of Appeals, January 08, 2008
US v. Reaves, No. 06-5073
Conviction for being a felon in possession of a firearm and ammunition is vacated where an anonymous 911 call from a woman who said she had seen the driver participate in a transaction involving a sandwich bag and a gun was not sufficiently corroborated in its assertion of illegal conduct and, thus, the traffic stop of defendant's car violated the Fourth Amendment.

U.S. 4th Circuit Court of Appeals, January 09, 2008
US v. Blackstock, No. 05-7709
Dismissal of motion under 28 U.S.C. section 2255 as successive is vacated where: 1) the district court recharacterized a previous motion filed by defendant as a section 2255 motion without giving him the notice required by US v. Castro, 540 U.S. 375 (2003); and 2) although no notice of the recharacterization would have been required under the rules set out in US v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), the portion of Emmanuel that sanctions the district court's action is inconsistent with the Supreme Court's approach to the issue in Castro.

U.S. 5th Circuit Court of Appeals, January 09, 2008
US v. Lopez-DeLeon, No. 06-41553
A sentence for illegal reentry is affirmed where defendant's prior California conviction for sexual intercourse with a minor qualified as a "crime of violence" within section 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines, as documents established that the victim in that matter was under the age of 14.

U.S. 6th Circuit Court of Appeals, January 09, 2008
US v. Gonzales, No. 05-4230
A conviction and sentence for possessing with intent to distribute cocaine is affirmed over meritless claims that: 1) the government did not timely file notice of possible sentencing enhancement based on prior convictions; 2) the sentencing court improperly considered two prior drug felony convictions to be separate offenses even though they arose from a single criminal episode; 3) evidence seized in a consensual search which exceeded the scope of the consent should have been suppressed; 4) the government engaged in prosecutorial misconduct; and 5) the conviction was not supported by sufficient evidence that he knowingly possessed the cocaine.

U.S. 6th Circuit Court of Appeals, January 10, 2008
In re: McDonald, No. 06-4120
In a murder case in which a key witness in the matter later claimed that she provided perjured testimony against petitioner, that the trial prosecutor coerced her into a non-consensual sexual relationship and the perjured testimony, and the prosecutor's brother corroborated her claims, a motion for permission to file a second or successive habeas corpus petition is granted where: 1) it was not possible under the current record to determine whether the claim at issue was timely; and 2) petitioner made the requisite prima facie case necessary for permission to file a second habeas corpus petition. Read more...

U.S. 6th Circuit Court of Appeals, January 10, 2008
Pennington v. Metro. Gov't of Nashville & Davidson County, No. 07-5180
In a case brought by a police officer alleging that, after an altercation at a bar while he was off duty, he was unlawfully required to take the breathalyzer test in violation of his constitutional rights, summary judgment for defendants is affirmed where: 1) under a totality-of-the-circumstances analysis, plaintiff was not seized when he submitted to the breathalyzer test, but was only afraid he would be terminated or suspended if he didn't take it; and 2) thus, no constitutional violation occurred. Read more...

U.S. 6th Circuit Court of Appeals, January 11, 2008
US v. Bailey, No. 06-5576
Defendant's conviction and sentence for drug- and firearm-related offenses are affirmed over claims that: 1) a prior Kentucky state court conviction for second-degree escape did not qualify for a career offender enhancement; 2) there was insufficient evidence to support the convictions; and 3) the district court erred in enhancing his Guidelines offense level after finding that he had perjured himself at trial.

U.S. 6th Circuit Court of Appeals, January 11, 2008
US v. Sexton, No. 05-6412, 05-6415, 05-6416
Defendants' sentences for offenses stemming from the distribution of cocaine, imposed on a remand pursuant to Booker, are affirmed over meritless claims that: 1) the district court violated their Sixth Amendment and due process rights by using its own factual findings to calculate their sentencing ranges under the Guidelines; 2) the sentences exceeded the "maximum statutory sentence" allowable for their offenses; 3) imposition of their sentences in accordance with the remedial portion of Booker created an unconstitutional ex post facto effect; 4) one sentence was unreasonable; and 5) a refusal to order the preparation of new presentencing reports on remand was improper under Fed. R. Crim. P. 32.

U.S. 7th Circuit Court of Appeals, January 07, 2008
US v. Thomas, No. 07-1237
Denial of a motion to suppress evidence in a drug and weapons prosecution is affirmed where the defendant was searched pursuant to a lawful arrest for resisting arrest.

U.S. 7th Circuit Court of Appeals, January 07, 2008
Eke v. Mukasey, No. 06-3391
Petition for review of a denial of withholding of removal is denied over the petitioner's arguments that: 1) his convictions were not for crimes that fall within the definition of "aggravated felony"; 2) he should not have been required to provide corroborating evidence of his homosexuality; 3) the Board should have considered the pattern of persecution against homosexuals in Nigeria; and 4) his due process rights were violated when the IJ insisted on conducting the hearing on the merits by video conference.

U.S. 7th Circuit Court of Appeals, January 09, 2008
US v. Upton, No. 07-1456
Conviction and sentence on drug and weapons charges are affirmed over defendant's challenges to: 1) the voluntariness of his Miranda waiver; 2) the admission of a police officer's expert and lay testimony; 3) the district court's denial of certain jury instructions; and 4) his status as an Armed Career Criminal.

U.S. 7th Circuit Court of Appeals, January 10, 2008
US v. Neal, No. 07-1638
Revocation of supervised release and imposition of an additional sentence for operating an illegal gambling business, money laundering and tax evasion are affirmed over defendant's arguments that: 1) his due process rights were violated when the district court failed to order the government to produce all exculpatory evidence; 2) the district court violated basic due process standards for revocation hearings when it refused to order the government to produce evidence that actually had been used against him; and 3) his sentence was too severe.

U.S. 7th Circuit Court of Appeals, January 10, 2008
US v. McIlrath, No. 07-1266
Sentence for traveling across state lines to have sex with a minor is affirmed where: 1) remarks of the judge at sentencing discharged his duty to consider not only the sentencing guidelines, but also the sentencing factors set forth in 18 U.S.C. section 3553(a); and 2) because the sentence was reasonable, there was no basis in the Supreme Court's recent decision in Gall v. US, 2007 WL 4292116 (U.S. Dec. 10, 2007) to invalidate the sentence. .

U.S. 7th Circuit Court of Appeals, January 10, 2008
US v. Ryals, No. 06-4373
Sentence for distributing cocaine base is vacated and remanded where the district court abused its discretion in denying the defense counsel's motion to withdraw before the sentencing hearing, resulting in prejudice to the defendant.

U.S. 7th Circuit Court of Appeals, January 10, 2008
US v. Tyler, No. 06-2904
Conviction for possessing crack with intent to distribute is vacated where the officers who detained defendant did so without reasonable suspicion of criminal activity since the officer were mistaken about the law they believed defendant to have violated. ...

U.S. 8th Circuit Court of Appeals, January 07, 2008
US v. Braggs, No. 07-1148
A 48-month, upward variance sentence for fraudulent use of an unauthorized access device is affirmed over a challenge to its reasonableness where the district court properly considered the applicable statutory factors in imposing the sentence, particularly the need to promote respect for the law, to provide just punishment, to afford adequate deterrence, and to protect the public from further crimes by the defendant.

U.S. 8th Circuit Court of Appeals, January 07, 2008
US v. Snyder, No. 07-1298
A conviction and sentence for manufacturing and attempting to manufacture methamphetamine is affirmed over claims that: 1) omissions and falsehoods in an affidavit rendered a search warrant invalid and triggered his right to a Franks hearing; and 2) the district court correctly applied the career offender provision at sentencing.

U.S. 8th Circuit Court of Appeals, January 07, 2008
US v. Wright, No. 07-1334
In a prosecution for drug-related offenses, denial of a motion to suppress drugs and incriminating statements defendant made in the course of a traffic stop is affirmed where: 1) under the circumstances, police's use of a checkpoint as a ruse designed to induce drug traffickers to avoid it by leaving the highway did not violate defendant's constitutional rights; and 2) sufficient evidence existed to support a finding that defendant did not come to a complete stop at a stop sign, and troopers therefore had probable cause for the traffic stop. .

U.S. 8th Circuit Court of Appeals, January 08, 2008
US v. Miller, No. 06-3174
A sentence for bank robbery is affirmed over a claim that the district court erred by treating two prior robbery convictions as qualifying felonies to make him a career offender, where the district court did not err in finding that defendant's two prior robberies were not related under the Sentencing Guidelines. ..

U.S. 8th Circuit Court of Appeals, January 08, 2008
Hartsfield v. Nichols, No. 06-3450
In a prisoner's action alleging that certain disciplinary actions constituted retaliation for his having successfully obtained a prior court order, and also claiming violations of his right to access the courts, dismissal of plaintiff's claims is affirmed where: 1) for purposes of the right to access claim, plaintiff failed to articulate how he suffered an actual injury; 2) on the retaliation claim, precedent establishes that a correction officer's report, even if standing alone and disputed, suffices as "some evidence" on a disputed fact when deemed credible in an impartial hearing; 3) consequently, the disciplinary violations were sufficiently supported by some evidence.

U.S. 8th Circuit Court of Appeals, January 09, 2008
US v. Banks, No. 06-3593
A conviction and sentence for being a felon in possession of a firearm is affirmed where: 1) police had probable cause to seize a gun container before they opened it and discovered a gun inside, and thus, there was no error in admitting the firearm; 2) there was no abuse of discretion in admitting pawn shop receipt and ATF form; 3) the evidence was sufficient to support the conviction; 4) prior felony convictions were crimes of violence, for sentencing purposes; 5) there no error in the calculation of his criminal history category; and 6) the sentence was reasonable. .

U.S. 8th Circuit Court of Appeals, January 09, 2008
Jones v. Minnesota Dep't of Corr., No. 06-3900
In a suit against the Minnesota Department of Corrections and individual prison officials for allegedly violating plaintiff's mother's Eighth Amendment rights, by deliberate indifference to her serious need of medical care, resulting in her death, summary judgment for defendants is affirmed where: 1) on the undisputed facts of the case, no reasonable jury could find that the decedent suffered from an objectively serious medical need; 2) on the record, no reasonable jury could find that defendants had actual knowledge of a serious medical need; and 3) defendant-nurse was entitled to qualified immunity.

U.S. 8th Circuit Court of Appeals, January 10, 2008
US v. Platter, No. 06-4139, 07-1134
Brothers' convictions and sentences on firearm-related offenses are affirmed where: 1) there was no error in denying a motion to dismiss alternate counts as the district court took corrective action to merge the two counts of being a felon in possession with and being a drug user in possession; 2) there was no abuse of discretion in denying a motion to compel the government to elect one theory of prosecution; 3) defendant was not prejudiced by evidence that he was both a felon and a drug user; and 4) a claim, that the district court erred by treating the advisory Guidelines as presumptively reasonable, was meritless.

U.S. 8th Circuit Court of Appeals, January 10, 2008
Popoalii v. Corr. Med. Servs., No. 07-1028
In a 42 U.S.C. section 1983 action claiming that defendants acted with deliberate indifference to plaintiff's serious medical needs while she was incarcerated at a correctional center, summary judgment for defendants and other rulings against plaintiff are affirmed over claims that the district court erred in: 1) denying her motion to amend the complaint; 2) granting defendants' motion to strike a doctor's expert affidavit; and 3) granting summary judgment on the Eighth Amendment claim..

U.S. 8th Circuit Court of Appeals, January 10, 2008
US v. Aguilar, No. 07-1520
Defendant's conviction and sentence for drug related offenses is affirmed over claims that the district court erred by: 1) admitting irrelevant and prejudicial evidence that he restrained, beat, and tattooed an individual in an effort to obtain payment for stolen drugs; 2) denying motions for judgment of acquittal and a new trial; and 3) applying certain sentencing enhancements.

U.S. 8th Circuit Court of Appeals, January 11, 2008
Snodgrass v. Robinson, No. 07-1463
In a prisoner's suit alleging that the Iowa Board of Parole, its members, and the governor of Iowa violated her constitutional rights by applying laws and regulations governing sentence commutation requests even though the laws were passed after her conviction, dismissal of the action for failure to state a claim is affirmed as any form of relief for plaintiff depends on a speculative, unpredictable, and wholly discretionary grant of clemency by the governor. .

U.S. 8th Circuit Court of Appeals, January 11, 2008
US v. Garcia, No. 07-1727
A sentence for conspiracy to possess with intent to distribute methamphetamine and cocaine is affirmed where: 1) the district court did not err in applying a four-level increase to defendant's offense level by finding that he was an organizer or leader of a criminal activity that involved five or more participants; and 2) it adequately considered the applicable statutory factors and the sentence was reasonable. .

U.S. 8th Circuit Court of Appeals, January 11, 2008
US v. Jones, No. 07-2002
Defendant's conviction for drug- and firearm-related offenses is affirmed over a claim that the district court violated his Sixth Amendment right to compel the testimony of witnesses when the district court failed to conduct a sufficient inquiry into a witness's invocation of the Fifth Amendment privilege against self-incrimination. .

U.S. 9th Circuit Court of Appeals, January 09, 2008
US v. Tulaner, No. 06-10304
Defendant's sentence, arising from a scheme to defraud certain companies by posing as an executive of one of the companies in order to obtain valuable discs used in the manufacture of semiconductor chips, is affirmed where the district court properly determined that the "intended loss" of the scheme was the value of the twelve discs defendant originally sought to obtain, rather than the value of the four discs he thought he was receiving the day he was arrested. The court also rejects a claim that the district court should have applied an offense level reduction for a partially completed offense. .

U.S. 9th Circuit Court of Appeals, January 09, 2008
US v. Calderon-Segura, No. 05-50820
A conviction and sentence for being a deported alien found in the U.S. is affirmed where: 1) a motion to dismiss the indictment was properly denied as defendant failed to show the requisite due process violation and prejudice to establish that his prior removal was "fundamentally unfair" under 8 U.S.C. section 1326(d)(3); 2) there was no error in the admission of expert testimony on fingerprint identification at trial; 3) there was no jury trial error as to a claim that an enhanced statutory maximum was erroneously applied; and 4) although there was indictment error in that regard, the error was harmless. .

U.S. 9th Circuit Court of Appeals, January 10, 2008
US v. Thornton, No. 06-50597
Where sentencing issues are raised but not decided in an appeal prior to an Ameline remand, those issues are properly before the circuit court on any subsequent appeal from the Ameline remand, along with any challenges to the results of the Ameline remand itself.

U.S. 10th Circuit Court of Appeals, January 10, 2008
US v. Gachot, No. 07-6061
Defendant's conviction for operating an illegal gambling business, stemming from his involvement in the operation of a cockfighting facility within Indian Country land, is affirmed where: 1) an issue of whether defendant could raise a jurisdictional challenge to a dismissed indictment was moot; and 2) a claim, that the district court lacked jurisdiction over the crime to which defendant pleaded guilty, was meritless. .

U.S. 11th Circuit Court of Appeals, January 07, 2008
Al-Amin v. Smith, No. 06-15248
In prisoner civil rights action alleging defendants repeatedly opened plaintiff's privileged attorney mail outside of his presence, denial of summary judgment to defendants is reversed as to plaintiff's access to the courts claim where plaintiff has not shown the requisite actual injury.

U.S. 11th Circuit Court of Appeals, January 11, 2008
Brown v. Barrow, No. 06-11004
Dismissal as untimely habeas petition challenging denial of parole to petitioner is affirmed over claims that: 1) his letters to the parole board subsequent to the denial somehow tolled the running of the statute of limitations; and 2) the Georgia procedures for challenging a parole decision were so unclear that the running of the statute of limitations should be equitably tolled.

U.S. D.C. Circuit Court of Appeals, January 08, 2008
US v. Lacey, No. 06-3051
Conviction for theft and distribution of cocaine base is reversed as to distribution of cocaine base where, during discussions on instructions to be submitted to the jury, the trial court determined that no testimony had been presented indicating that the cocaine base at issue was smokable or that it was crack.

U.S. D.C. Circuit Court of Appeals, January 11, 2008
Rasul v. Rumsfeld, No. 06-5209
In case brought by Guantanamo Bay detainees seeking damages for their alleged illegal detention and torture, dismissal of claims under the Constitution, the Alien Tort Statute, and the Geneva Conventions is affirmed. However, denial of motion to dismiss the Religious Freedom Restoration Act claim is reversed. Since the plaintiffs are aliens and were located outside sovereign U.S. territory at the time their alleged RFRA claim arose, they do not fall with the definition of "person" and, thus, are not protected by RFRA. ..

U.S. D.C. Circuit Court of Appeals, January 11, 2008
US v. Sheehan, No. 07-3002
Conviction of Iraq War protester Cindy Sheehan for demonstrating without a permit on the White House sidewalk is reversed as Sheehan was convicted of a crime that does not exist, strict liability under 36 C.F.R. section 7.96, and prevented from offering a viable defense.

Supreme Court of Florida, January 10, 2008
Williams v. State of Florida, No. SC05-226, SC05-1579
Denial of defendant's motion to vacate his conviction of first-degree murder and sentence of death and a petition for habeas relief is affirmed in part as to the denial of relief as it pertains to the guilt-phase portion of appellant's trial. However, denial of relief on a claim of ineffective assistance of counsel based on a failure to present certain mitigating evidence at the penalty phase is reversed, and the matter remanded with directions that the sentences be reduced to life.

Supreme Court of Florida, January 10, 2008
State of Florida v. Lopez, No. SC05-88
A court of appeals decision reversing a conviction for possession of a firearm by a convicted felon is affirmed where a prior discovery deposition of a declarant by defendant's counsel did not qualify as a "prior opportunity for cross-examination" under Crawford, and the admission of the testimonial statement at trial violated defendant's confrontation rights. A decision of the Fifth District Court of Appeal on the same issue is disapproved to the extent it is inconsistent with this opinion.

California Appellate Districts, January 07, 2008
People v. Curry, No. C052801
Convictions and sentences arising from the beating, robbing, and kidnapping of a pregnant woman, resulting in the death of her seven-month-old fetus, are affirmed over claims challenging: 1) the sufficiency of the evidence; 2) the jury instructions; and 3) the upper term sentences.

California Appellate Districts, January 07, 2008
People v. Jefferson, No. B192952
In case involving a retaliatory drive-by shooting, convictions for first degree murder of one person and of the attempted murder of another are affirmed over defendants' claims that: 1) it was constitutional error to admit a secret recording of their jail-cell conversation; 2) the trial court's murder instructions violated due process and rendered their trial fundamentally unfair; 3) the court was required to strike, rather than stay execution of, certain sentence enhancements; and 4) the consecutive terms of 25 years-to-life imposed for the vicarious use of a firearm violated equal protection and due process. .

California Appellate Districts, January 07, 2008
People v. Oglesby, No. G037796
Conviction and sentence based on guilty plea to domestic violence, aggravated assault, and animal cruelty by killing a kitten, are affirmed over a challenge to the validity of the sentencing procedure. .

California Appellate Districts, January 07, 2008
People v. McFearson, No. F051882
Convictions and sentences for various crimes arising from two shootings are vacated as to two counts where they were lesser included offenses to other crimes of which defendant was convicted.

California Appellate Districts, January 08, 2008
City of Los Angeles v. 2000 Jeep Cherokee, No. B185673
In case where defendant's jeep was seized when he was arrested for soliciting prostitution, judgment for defendant and award of attorney's fees is affirmed where plaintiff-city's ordinance is preempted by state law. (Opinion on remand from Supreme Court).

California Appellate Districts, January 08, 2008
In re Pope, No. C051564
Grant of habeas petition is reversed where the trial court erred in directing the Department of Corrections and Rehabilitation to recalculate defendant's Penal Code section 2933 worktime credit without regard to the 15% limitation on such credit provided by section 2933.1(a) for persons convicted of a violent felony. Section 2933.1(a) is applicable to defendant. .

California Appellate Districts, January 10, 2008
Levin v. United Airlines, No. B160939
In case arising from plaintiff's arrest, and later release, for making a false bomb report at LAX, appeal from verdict for defendants is affirmed as a false statement to airport personnel or peace officers about a bomb in luggage, even if not seriously made or understood, can be the basis for a violation of Penal Code section 148.1(a) and, thus the trial court's modified probable cause to arrest instruction accurately stated the applicable law. .

California Appellate Districts, January 10, 2008
In re Kenneth J., No. A116504
Order of juvenile court declaring defendant a ward and placing him on probation is affirmed over claims that: 1) the juvenile court erred in failing to hold a hearing to determine if he qualified for the deferred entry of judgment procedure; and 2) the dispositional order should be modified to reduce the restitution fine and administrative fees by $10.

California Appellate Districts, January 10, 2008
People v. Matye, No. C050332B
Conviction and sentence for the abuse and false imprisonment of a dependent adult and related crimes are affirmed over a claim that the evidence was insufficient to establish the victim was a dependent adult.