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March 30 – April 3, 2009:
U.S. Supreme Court, March 31, 2009 Rivera v. Illinois, No. 07-9995 Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court’s good-faith error in denying the defendant’s peremptory challenge to a juror. Defendant’s murder conviction is therefore affirmed.
U.S. Supreme Court, April 01, 2009 Harbison v. Bell, No. 07-8521 In a capital habeas proceeding, the denial of federal appointed counsel’s motion to expand the scope of her representation to include state clemency proceedings is reversed, where: 1) a certificate of appealability is not required to appeal an order denying a request for federally appointed counsel, because 28 U.S.C. section 2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding’s merits; and 2) because state clemency proceedings are “available” to state petitioners who obtain representation under 28 U.S.C. section 3599(a)(2), the statute’s plain language indicates that appointed counsel’s authorized representation includes such proceedings.
U.S. 1st Circuit Court of Appeals, March 30, 2009 US v. Gonzalez-Ramirez , No. 07-1880 Conviction and sentence for drug crimes is affirmed where: 1) the district court did not abuse its discretion in denying defendant’s motion for a competency hearing and request for a continuance; 2) the court did abuse its discretion in admitting the cocaine and packaging as evidence, or the officer’s testimony related to the evidence; and 3) the evidence was sufficient to support his conviction.
U.S. 1st Circuit Court of Appeals, March 30, 2009 US v. Rivera , No. 07-2675
District court judgment is affirmed where the “did assault and beat” charging language in the criminal complaint sufficed to identify the offense as a violent felony under the Armed Career Criminal Act or a “crime of violence” under the career offender provision of the United States Sentencing Guidelines. Read more…
U.S. 1st Circuit Court of Appeals, April 01, 2009 US v. Marsh , No. 07-1698
Sentence for drug crimes is affirmed where the court was not unreasonable in applying a twelve-month upward departure from defendant’s mandatory minimum sentence, as the court made an informed decision and also stated it would have reached the same result under the U.S. Sentencing Guidelines as it would have in a non-Guideline setting.
U.S. 1st Circuit Court of Appeals, April 02, 2009 John v. Russo, No. 06-2594 Denial of petition for habeas relief is affirmed where: 1) evidence supports the finding that plaintiff’s statements and grand jury testimony were not protected by a grant of immunity; and 2) the court did not unreasonably apply or act contrary to Supreme Court law when it concluded that plaintiff’s confession was voluntary.
U.S. 1st Circuit Court of Appeals, April 02, 2009 US v. Poland , No. 08-1203 Sentence for making and detonating pipe bombs is affirmed where the district court was entitled to reduce defendant’s sentence to reflect his post-sentence cooperation, but could not under Fed. Rules of Crim. Pro. rule 35(b) provide a greater reduction below the mandatory minimum for any reason other than that cooperation.
U.S. 1st Circuit Court of Appeals, April 03, 2009 US v. Vidal-Reyes , No. 07-2767
Sentence for aggravated identity theft is vacated and remanded where district court erred in finding it could not take 18 U.S.C. sec. 1028A’s mandatory sentence for aggravated identity theft into account in sentencing a defendant on other counts of the conviction charged in the same indictment that are not predicate felonies underlying the 1028A conviction.
U.S. 3rd Circuit Court of Appeals, April 01, 2009 McMullen v.. Tennis , No. 06-5064 Denial of petition for habeas relief is affirmed where: 1) the Pennsylvania Superior Court did not contradict or apply in an unreasonable fashion to plaintiff’s case the U.S. Supreme Court’s double jeopardy principles; 2) the lower courts did not make an evidentiary insufficiency ruling in overturning the first conviction on corpus delicti grounds; and 3) the double jeopardy rulings did not infringe the deferential standards governing a habeas challenge to a state court conviction.
U.S. 3rd Circuit Court of Appeals, April 03, 2009 US v. Sanchez , No. 08-1847 Sentence for drug crimes is affirmed where defendant’s sentence was the result of a binding plea agreement and thus was not subject to reduction under the retroactive crack cocaine amendments to 18 U.S.C. sec. 3582(c)(2).
U.S. 4th Circuit Court of Appeals, March 30, 2009 US v. Basham, No. 05-5 Defendant’s capital murder conviction is affirmed, where: 1) a juror improperly contacted the media but the government rebutted the resulting presumption of prejudice; and 2) the District Court properly disqualified Defendant’s first appointed counsel because there was a potential conflict of interest.
U.S. 4th Circuit Court of Appeals, April 01, 2009 US v. Madrigal-Valdez, No. 07-4681 Defendant’s conviction for unlawful entry into a military base is reversed, where the evidence was insufficient to demonstrate that Defendant had notice of the requirements for entry before he drove onto the military base access road, or that the entry by an undocumented alien of a military installation is a crime prohibited by federal law.
U.S. 4th Circuit Court of Appeals, April 01, 2009 US v. Sosa-Carabantes, No. 08-4109 Defendant’s sentence for reentry into the U.S. following deportation is vacated, where Defendant was not subject to an enhancement under U.S.S.G. section 4A1.1(e) because his state assault conviction had not yet occurred at the time of his federal sentencing.
U.S. 5th Circuit Court of Appeals, April 01, 2009 Wilson v. Cain, No. 07-30728 The denial of Petitioner’s habeas petition as untimely is reversed, where Petitioner’s motion for rehearing was filed within the 14-day period permitted under Louisiana law, and thus his conviction became final on the date of the denial of his rehearing motion.
U.S. 5th Circuit Court of Appeals, April 03, 2009 Vasquez-Martinez v. Holder, No. 07-60900 Petitioner’s petition of review of the BIA’s decision not to cancel his removal is denied, where 1) the burden is on a removable alien to show his eligibility for cancellation; and 2) possession of cocaine with intent to deliver, of which Petitioner was convicted, is an “aggravated felony” under the Immigration and Nationality Act.
U.S. 6th Circuit Court of Appeals, March 30, 2009 US v. Carson, No. 05-1812 Defendant police officers’ convictions for assaulting a suspect are affirmed, where: 1) the prosecutor did not commit misconduct by referring to another officer’s related guilty plea, because the prosecutor did so to address the officer’s credibility; and 2) the District Court did not err in declining to adopt Defendants’ reasonable force instruction.
U.S. 6th Circuit Court of Appeals, April 02, 2009 Braxton v. Gansheimer, No. 07-3387 The grant of Petitioner’s habeas petition is reversed, where the trial court reasonably applied Batson v. Kentucky, 479 U.S. 79 (1986), in denying Petitioner’s mistrial motion because the prosecutor proffered a bona fide race-neutral reason for striking a proposed juror.
U.S. 6th Circuit Court of Appeals, April 02, 2009 US v. Gapinski, No. 08-1193 Defendant’s drug sentence is vacated, where the sentence was procedurally unreasonable because the District Court failed to consider and respond to Defendant’s nonfrivolous arguments for a lower sentence.
U.S. 6th Circuit Court of Appeals, April 03, 2009 US v. Abbey, No. 07-2278 Defendant’s bribery and extortion convictions are affirmed, where neither 18 U.S.C. section 666 nor the Hobbs Act requires a direct link between a specific gift to a public official and an explicit promise by that official to perform a specific, identifiable official act in return.
U.S. 7th Circuit Court of Appeals, March 30, 2009 Watson v .Anglin , No. 07-3602 Denial of petition for habeas relief in an attempted murder case is affirmed where: 1) plaintiff did not receive ineffective assistance of counsel in his attorney’s advice regarding the plea offer as counsel’s advice was not the cause of plaintiff’s decision to reject the offer; and 2) plaintiff’s counsel was not constitutionally ineffective for failing to challenge the jury instructions as there is no evidence that plaintiff was prejudiced by the minor discrepancies in the jury instructions.
U.S. 7th Circuit Court of Appeals, April 01, 2009 Ortiz v. Downey , No. 06-2453 In a prisoner civil rights action, district court’s dismissal of plaintiff’s complaint for failure to state a claim is reversed and remanded where plaintiff’s First Amendment free exercise claim should not have been dismissed as his claim that defendant denied him religious articles and the opportunity to attend Mass without adequate penological justification was plausible on its face. Dismissal of plaintiff’s access to courts claim is affirmed, and on remand the district court should also permit plaintiff to amend his complaint to add a specific claim under the Religious Land Use and Institutionalized Persons Act.
U.S. 7th Circuit Court of Appeals, April 02, 2009 US v. Brewer, No. 08-3257 Conviction for firearms possession is affirmed where officers had reasonable suspicion to stop defendant’s car based on the dangerousness of the crime defendant was stopped in suspicion of and unusual circumstances of the situation.
U.S. 8th Circuit Court of Appeals, March 31, 2009 US v. Al-Esawi, No. 08-1600 Conviction for making a materially false statement to federal agents is affirmed where: 1) there is sufficient evidence to support defendant’s conviction; and 2) the district court did not abuse its discretion in denying defendant’s motion to sever the counts against him prior to trial.
U.S. 8th Circuit Court of Appeals, March 31, 2009 US v. Mansfiedl, No. 08-1731 Sentence for firearms possession is reversed and remanded where the district court erred in imposing a four-level sentencing enhancement for being a felon in possession of a firearm in connection with another felony as it failed to make the required specific finding of whether the firearm facilitated, or had the potential to facilitate, defendant’s drug possession. .
U.S. 8th Circuit Court of Appeals, April 02, 2009 US v. Lazarski , No. 08-1926 Sentence for firearms possession is affirmed where: 1) district court did not err in placing defendant in criminal history category V under the U.S.S.G. as six points were properly assessed under Guidelines sec. 4A1.1(a) for offenses committed before his eighteenth birthday that he was convicted as an adult for; and 2) sentence was not unreasonable as it was below the statutory maximum and the court properly considered Guidelines sec. 3553(a) factors.
U.S. 8th Circuit Court of Appeals, April 03, 2009 US v. Luken , No. 08-1088 Conviction and sentence for possession of child pornography is affirmed where: 1) district court did not err in finding that defendant’s Fourth Amendment rights were not violated as he consented to the search of his computer; and 2) district court did not plainly err in imposing five years of supervised release despite erroneously stating at sentence that the maximum term was three years, as the error was harmless.
U.S. 8th Circuit Court of Appeals, April 03, 2009 US v. Aldridge , No. 08-1150 Conviction and sentence for filing false tax returns is affirmed where: 1) the prosecutor and IRS special agent’s actions in misleading the grand jury was harmless error; 2) the district court did not err in its instructions to the jury, in denying defendant’s motion for acquittal, denying defendant’s motion for mistrial, denying defendant’s motion for judge’s recusal, or in admitting evidence; 3) the district court did not commit plain error by including third-party tax losses in calculating defendant’s base offense level under the sentencing guidelines; and 4) the hearsay testimony met the required indicia of reliability.
U.S. 8th Circuit Court of Appeals, April 03, 2009 US v. Bates, No. 08-1589 Conviction for firearms possession is affirmed in part and reversed in part where: 1) district court did not err in applying U.S. Sentencing Guidelines sec. 2C1.2 enhancement based on defendant’s struggle with officers while armed with a loaded weapon; and 2) court erred in applying four-point enhancement under U.S.S.G. sec. 2K2.1(b)(6) for possession of a firearm in connection with another felony as the court did not find affirmatively that the firearm and drug felonies were adequately connected.
U.S. 9th Circuit Court of Appeals, March 30, 2009 US v. Carter, No. 05-50303 Defendant’s bank robbery conviction is affirmed, where Defendant could reasonably foresee that his co-conspirator would use a firearm in committing the robbery, but his sentence is reversed, where the District Court failed to make the requisite finding that Defendant brandished a firearm..
U.S. 9th Circuit Court of Appeals, March 30, 2009 McSherry v. Long Beach, No. 06-55837 In a 42 U.S.C. section 1983 action based on a false arrest, summary judgment for Defendants is affirmed in part, where there was no evidence that Defendants ignored exculpatory evidence, but reversed in part, where genuine issues of material fact existed as to whether Defendant-Officer fabricated evidence.
U.S. 9th Circuit Court of Appeals, April 02, 2009 US v. Rollness, No. 07-30411 Defendant’s murder sentence under the Violent Crime in Aid of Racketeering Act (VICAR) is affirmed, where a life sentence is the statutory minimum penalty for murder under VICAR.
U.S. 9th Circuit Court of Appeals, April 02, 2009 US v. Paul, No. 08-30125 Defendant’s sentence for theft from a local government receiving federal funding is vacated, where the District Court, upon a previous remand, failed to consider the potential mitigating factors identified by the Court of Appeals.
U.S. 10th Circuit Court of Appeals, March 30, 2009 US v. Caldwell, No. 07-6251 Defendant’s mortgage fraud conviction is affirmed, where: 1) a reasonable jury could have concluded that Defendant knew of the fraud at issue; 2) the District Court properly admitted evidence of two uncharged transactions solely to prove Defendant’s fraudulent intent.
U.S. 10th Circuit Court of Appeals, March 30, 2009 US v. Caldwell, No. 07-6254 Defendant’s wire fraud conviction in connection with a mortgage fraud conspiracy is affirmed, where a reasonable jury could infer that Defendant knew of the conspiracy. Money laundering conviction is reversed, where the charged transaction did not help to conceal the conspiracy.
U.S. 10th Circuit Court of Appeals, April 02, 2009 US v. Vidal, No. 07-2026 Defendant’s drug conviction is affirmed, where the District Court properly held that Defendant’s guilty plea was knowing and intelligent, because the evidence of Defendant’s guilt was compelling and there was no cause to hold a competency hearing. .
U.S. 10th Circuit Court of Appeals, April 03, 2009 US v. Orduna-Martinez, No. 07-3298 Defendant’s drug conviction is affirmed, where the officer who stopped Defendant’s vehicle had reasonable suspicion to do so, because Kansas law prohibited the obstruction of license plate decals, and the decal on Defendant’s car was obscured.
U.S. 11th Circuit Court of Appeals, March 31, 2009 US v. Williams, No. 08-10185 Defendant’s drug distribution sentence is affirmed, where: 1) Defendant’s sentence was not procedurally unreasonable because the District Court articulated the reasons for the sentence; and 2) there was no intervening change in controlling law that the District Court was required to consider.
U.S. 11th Circuit Court of Appeals, March 31, 2009 Ferguson v. USAG, No. 08-10806 Petitioner’s petition for review of the BIA’s order of removal is denied, where the Illegal Immigration Reform and Immigrant Responsibility Act’s (IIRIRA) repeal of the Immigration and Nationality Act section 212(c) waiver provision does not have an impermissible retroactive effect on aliens convicted of deportable offenses before IIRIRA’s effective date. .
Supreme Court of California, March 30, 2009 People v. Chun , No. S157601 In an appeal of a felony murder conviction, judgment of lower court is reversed and remanded where: 1) the second degree felony-murder rule is not unconstitutional as it is based on statute; 2) when the underlying felony in a felon-murder case is assaultive in nature, the felony merges with the homicide and cannot be the basis of a felony-murder instruction, and thus the trial court erred in instructing the jury on the second degree felony-murder rule; and 3) the error in instructing the jury on felony murder was harmless beyond a reasonable doubt, but another evidentiary error occurred. Further proceedings are necessary to determine whether the two errors in combination were prejudicial.
New York Court of Appeals, March 31, 2009 People v. Kalin, No. 34 Defendant’s drug possession conviction is affirmed, where: 1) Defendant’s entry of a guilty plea forfeited his claim that the misdemeanor information was deficient; and 2) the information, in any event, adequately described the controlled substances at issue.
California Appellate Districts, March 30, 2009 People v. Bermudez, No. A119028 Denial of petition for a determination of factual innocence is affirmed where the two-year statutory limitations period imposed by Penal Code section 851.8 for the filing of the petition also applies to petitioners who had charges lodged against them but were not convicted. ..
California Appellate Districts, March 30, 2009 People v. Ramirez, No. G038125 Conviction for drug crimes and gang participation is affirmed where: 1) trial court properly denied pretrial motion to sever the gang participation count from the drug counts and to bifurcate gang enhancements for a separate trial as there was a causal connection between the counts; and 2) there is substantial evidence to support the jury’s conclusion that the drug offenses were sufficiently gang-related to support defendant’s conviction for active gang participation, as well as the sentencing enhancements. ..
California Appellate Districts, April 02, 2009 In re Masoner, No. B205410 Superior Court remedial order directing plaintiff’s release is reversed and remanded where the court’s order materially impairs the inherent discretion of the Board to make parole decisions on the basis of all relevant information and usurps the Governor’s constitutional authority to conduct final review of parole matters.
California Appellate Districts, April 02, 2009 People v. Dawson , No. A120628 Superior Court decision declining to reinstate charges against defendant is reversed where the magistrate judge did not apply the proper law of causation as it was foreseeable that the deceased would end up in the water and was subject to the risk of harm from a moving propeller, and the defendant had the concomitant responsibility to those on board.