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U.S. 1st Circuit Court of Appeals, October 27, 2008 US v. Arroyo, No. 072423 Sentence of nine months on each of the two counts for drug conspiracy is affirmed where: 1) the district judge’s two conspiracies determination is colorable; and 2) defendant’s summary argument against it is satisfied by a summary disposition, there being no conceivable threat of injustice.
U.S. 1st Circuit Court of Appeals, October 30, 2008 US v. Polk, No. 072425 Sentence of fifteen years and eight months incarceration for attempting to produce child pornography is affirmed where: 1) there was no gross disproportionality between the fifteen-year mandatory minimum term of imprisonment established by 18 U.S.C. section 2251(e) and the offense of which the defendant was convicted; and 2) the defendant’s Eighth Amendment challenge failed.
U.S. 1st Circuit Court of Appeals, October 30, 2008 US v. Levesque, No. 081344 A forfeiture order for $3,068,000 for conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, is vacated and remanded where: 1) 21 U.S.C. section 853 authorizes money judgments; 2) the case is remanded to give district court the opportunity to consider whether and to what extent the ruling in the recent Supreme Court case, US v. Santos, 128 S. Ct. 2020 (2008), affects the forfeiture determination in this case; and 3) the case is remanded for lower court to consider whether the imposition of the forfeiture violated the Excessive Fines Clause of the Eighth Amendment in light of recent pertinent case law.
U.S. 2nd Circuit Court of Appeals, October 28, 2008 US v. Zedner, No. 070149 Appeal from a conviction for attempted bank fraud is dismissed with prejudice over claims of error that: 1) in December 2006, jurisdiction of defendant’s case was in the present court rather than in the district court and therefore his 2006 conviction was a nullity; and 2) that if the district court had jurisdiction, it should have dismissed the original indictment with prejudice rather than without prejudice, pursuant to the Speedy Trial Act, 18 U.S.C. section 3161. .
U.S. 5th Circuit Court of Appeals, October 27, 2008 US v. Garcia-Ruiz, No. 07-51269 Conviction for reentry into the U.S. as a deported alien is affirmed over an objection that police lacked reasonable suspicion to stop and detain defendant, where defendant had mooted the issue by stipulating to facts establishing all the elements of the charged crime. ..
U.S. 5th Circuit Court of Appeals, October 6, 2008 US v. Constante, No. 07-41004 Sentence for possession of a firearm by a convicted felon is vacated and remanded where prior state convictions for burglary did not constitute violent felonies for sentence-enhancement purposes. (Revised opinion)
U.S. 5th Circuit Court of Appeals, October 28, 2008 US v. Woods, No. 07-51491 In an appeal of a sentence for distributing crack cocaine, imposition of a supervised-release condition forbidding defendant from residing with any person to whom she was not ceremonially married or related by blood is vacated where the condition was overbroad and involved a greater deprivation of liberty than was reasonably necessary to achieve sentencing purposes.
U.S. 5th Circuit Court of Appeals, October 08, 2008 US v. Hope, No. 07-60769 Conviction for one of two counts of being a felon in possession of a firearm is vacated and case remanded for resentencing where defendant’s possession of the same gun when arrested and on the previous day in a robbery, absent evidence that the possession was interrupted, did not constitute two separate violations of the felon-in-possession statute. (Revised opinion)
U.S. 6th Circuit Court of Appeals, October 28, 2008 US v. Kuehne, No. 06-3668 A conviction for drug- and firearm-related offenses is affirmed over claims of error regarding: 1) allegedly improper venue; 2) the definition of “use” under 18 U.S.C. section 924(c)(1); 3) jury instruction regarding proof necessary for conviction under section 924(c); 4) constructive amendment or variance of the indictment; 5) prosecutorial misconduct; 6) a motion for acquittal; 7) alleged inaccuracies in the transcript of proceedings; 8) propriety of police investigation tactics; 9) the propriety of findings regarding a motion to suppress evidence; 10) submission of sentencing facts to the jury; 11) the sufficiency of the indictment; 12) the sufficiency of the evidence; 13) Brady violation; and 14) jury instruction regarding “Conspiracy” and “Aiding and Abetting”.
U.S. 6th Circuit Court of Appeals, October 28, 2008 US v. Osborne, No. 07-5572 In a criminal case involving a modeling agent who defrauded Fruit of the Loom with the help of a Fruit of the Loom employee, his conviction and below-Guidelines sentence for conspiracy to commit mail fraud are affirmed over claims that: 1) there was a variance between the indictment, which charged one conspiracy, and the proof at trial, which defendant asserted proved two separate conspiracies, only one of which involved him; and 2) his sentence was imposed in violation of Apprendi and Booker.
U.S. 7th Circuit Court of Appeals, October 27, 2008 US v. Whitaker, No. 08-1259 Conviction for being a felon in possession of a firearm is affirmed over objection that the gun should have been suppressed as the result of a vehicle search for which police lacked reasonable suspicion.
U.S. 7th Circuit Court of Appeals, October 27, 2008 US v. Brandt, No. 08-1215 In a prosecution for making false statements to federal agents in connection with the sale of an automatic rifle, denials of motion for acquittal and of a requested instruction based on the “exculpatory no” doctrine are affirmed where: 1) there was sufficient evidence to support the conviction; and 2) the “exculpatory no” doctrine was not a defense to criminal liability under 18 U.S.C. section 1001.
U.S. 7th Circuit Court of Appeals, October 27, 2008 US v. Miller, No. 08-1069, 08-1089 Conviction of one defendant for being a felon in possession of a firearm, and conviction and sentence of a second defendant for aiding and abetting that possession, are affirmed where: 1) there was sufficient evidence to support the convictions; and 2) the second defendant was not eligible for a sentence reduction as a mere collector of guns.
U.S. 7th Circuit Court of Appeals, October 27, 2008 US v. Castaldi, No. 07-3452 Conviction and sentence for mail fraud and embezzlement from an employee benefits plan are affirmed over objections regarding: 1) sufficiency of the indictment; 2) admissibility of a mug shot of defendant; 3) exclusion of certain testimony as hearsay; 4) sufficiency of the evidence; 5) consideration of the relevant sentencing factors; and 6) evidence of defendant’s intent to embezzle.
U.S. 7th Circuit Court of Appeals, October 27, 2008 US v. Franklin, No. 06-4109 Conviction and sentence for possession of cocaine with intent to distribute and carrying a firearm during a drug-trafficking crime are affirmed over objections regarding: 1) sufficiency of the indictment; 2) voluntariness of defendant’s guilty plea; 3) denial of a motion to suppress evidence discovered as the result of a traffic stop; 4) trial court’s failure to appoint separate counsel to represent defendant at two hearings in which his own counsel moved to withdraw; 5) whether the police search of defendant’s car exceeded the scope of probable cause; 6) constitutionality of mandatory-minimum sentences; and 7) whether prior convictions used in sentencing were required to be proven to a jury.
U.S. 7th Circuit Court of Appeals, October 29, 2008 US v. Jackson, No. 07-2421 Sentence for being a felon in possession of a firearm is affirmed over objections regarding: 1) failure to adhere to established policy in imposing an above-guidelines sentence; 2) the assessment of defendant’s criminal history; 3) the weight given to unpaid traffic fines; and 4) failure to fully consider defendant’s youth and borderline intellectual functioning.
U.S. 8th Circuit Court of Appeals, October 28, 2008 US v. Webb, No. 08-1331, 08-1332 Defendants’ sentences for conspiracy to distribute cocaine base are affirmed over their claim that the district court erred at sentencing by applying a preponderance of the evidence standard to determine drug quantity in excess of that found by the jury beyond a reasonable doubt. .
U.S. 8th Circuit Court of Appeals, October 29, 2008 US v. Lee, No. 06-3438 A sentence for various counts of bank fraud and aggravated identity theft is affirmed where: 1) the district court did not abuse its discretion in running several of the aggravated identity theft counts consecutively to each other; and 2) all of defendant’s other issues on appeal were barred by his plea agreement or outside the scope of a remand order, and thus were barred.
U.S. 8th Circuit Court of Appeals, October 30, 2008 US v. Pando, No. 08-1317
A sentence for a drug conspiracy offense is affirmed where, contrary to defendant’s claim, the district court did not err in assessing a criminal history point under U.S.S.G. section 4A1.2 for a prior Colorado conviction for driving while ability impaired (DWAI).
U.S. 8th Circuit Court of Appeals, October 31, 2008 Phelps-Roper v. Nixon, No. 07-1295 In an action challenging a Missouri statute which criminalizes picketing in front of a funeral location or procession, denial of a preliminary injunction while the statute’s constitutionality is reviewed is reversed where, incorporating the modified standard articulated in Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008): 1) plaintiff was likely to prove any interest the state has in protecting funeral mourners from unwanted speech was outweighed by the First Amendment right to free speech; 2) there was enough likelihood plaintiff will be able to prove the statute is not narrowly tailored or is facially overbroad; and 3) she was likely to prevail in proving the statute fails to afford open, ample and adequate alternative channels for the dissemination of her particular message that God is punishing America for the sin of homosexuality by killing Americans, including soldiers. (Opinion on rehearing)
U.S. 9th Circuit Court of Appeals, October 28, 2008 US v. Snellenberger, No. 06-50169 In a case interpreting the types of documents upon which a court can rely in determining sentencing enhancement under the modified categorical approach, an enhanced sentence is affirmed where: 1) to establish that defendant’s prior burglary conviction was for burgling a dwelling, and thus a crime of violence, the district court relied on the state court clerk’s minute order; and 2) the list of documents in Shepard v. US, 544 U.S. 13 (2005) simply illustrates the documents upon which a court can rely under the modified categorical approach, and does not exclude reliance on a court clerk’s minute order.
U.S. 10th Circuit Court of Appeals, October 31, 2008 US v. Harper, No. 08-3215 A district court’s dismissal of an unauthorized 28 U.S.C. section 2255 motion is a “final order in a proceeding under section 2255” such that section 2253 requires the petitioner to obtain a COA before he or she may appeal. Dismissal of defendant’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255 is affirmed where: 1) a certificate of appealability (COA) is a prerequisite to pursuing such an appeal; and 2) defendant failed to make the showing required for the issuance of a COA.
U.S. 11th Circuit Court of Appeals, October 27, 2008 Ford v. Hall, No. 0713675 Denial of habeas relief to death row inmate is affirmed over claims that: 1) the district court erred in finding the State did not violate criminal-petitioner’s constitutional rights by its failure to disclose an alleged deal with the State’s key witness; 2) the district court erred in determining that the state court’s resolution of criminal-petitioner’s claim of ineffective assistance was reasonable; and 3) the district court erred in determining that the state court’s resolution of criminal-petitioner’s Fifth Amendment claim was reasonable.
U.S. 11th Circuit Court of Appeals, October 30, 2008 US v. Anton, No. 0713124 Conviction and sentence for possession of a firearm by a convicted felon are affirmed in part and vacated in part where the district court: 1) correctly adjudicated defendant’s guilt in its 1989 order, defendant’s nolo contendre plea was a conviction under Florida law; 2) correctly concluded that defendant’s status as a convicted felon involved a question of law, rather than a question of fact for the jury; 3) did not engage in improper burden shifting because, had the case proceeded to trial, the government would still have been required to present evidence establishing defendant’s conviction; 4) reasonably determined that the judge issuing the warrant did not abandon his judicial role; 5) did not err in denying defendant’s motion to suppress; but 6) committed clear error by improperly calculating defendant’s sentencing range based upon unsupported conclusions.
U.S. 11th Circuit Court of Appeals, October 31, 2008 US v. Garey, No. 0514631 Sentence of 360-months for 27 felony counts arising from unsuccessful attempts to extort money by threatening to bomb various buildings is affirmed over claims of error that the sentence was unreasonable and that district court erred when it: 1) found defendant knowingly and voluntarily consented to represent himself at trial; 2) enhanced defendant’s sentence for terrorism, pursuant to U.S.S.G. section 3A1.4; and 3) based the enhancement on its own factual findings.
Supreme Court of California, October 27, 2008 People v. Concepcion, No. S146288 In the context of Penal Code section 1043(b)(2), which states that a noncapital felony trial may continue in a defendant’s absence, if the defendant was present when trial began, then later voluntarily absents himself, the California Supreme Court rules that an escapee’s voluntary absence includes the time reasonably required to return him to court after apprehension.
New York Court of Appeals, October 28, 2008 People v. Jones, No. 160 Denial of defendant’s Batson challenge is affirmed where defendant failed to establish a prima facie case of discrimination in the peremptory challenge of an African-American juror.
Supreme Court of Florida, October 30, 2008 In Re: Standard Jury Instructions in Criminal Cases – Report No. 2007-08, No. SC07-1841 Upon the recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court adopts amendments to existing criminal jury instructions and authorizes new instructions.
Supreme Court of Florida, October 30, 2008 In Re: Standard Jury Instructions in Criminal Cases – Report No. 2008-04 , No. SC08-699 Upon the recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court adopts amendments to existing criminal jury instructions and eliminates two current instructions.
California Appellate Districts, October 27, 2008 People v. Sweig, No. C057241 In a case in which police officers detained mentally-disabled defendant outside of his residence and then entered his residence to seize a rifle they observed in his possession prior to the detention, dismissal of case is affirmed where: 1) seizure of the weapon was a product of a warrantless entry of defendant’s residence in violation of the Fourth Amendment; and 2) the circumstances in this case did not give rise to an exception to the warrant requirement of the Fourth Amendment.
California Appellate Districts, October 27, 2008 People v. Bergin, No. B200999 In a challenge to an order of restitution imposed following defendant’s plea of nolo contendere to charge of driving with a blood alochol level of .08 percent or more and causing injury to another person, restitution order is affirmed over prosecution’s claim that the restitution amount should have been the amount billed by victim’s medical providers rather than the amount the medical providers accepted from victim’s insurer as full payment for their services, plus the deductible paid by victim.
California Appellate Districts, October 27, 2008 People v. G.V., No. E044318 Probation order requiring both payment of restitution and community service hours following admission of one count of vandalism is affirmed over claim of error that the juvenile court could impose either restitution or community service hours, but not both.
California Appellate Districts, October 29, 2008 People v. Newby, No. C057444 Conviction and sentence for aggravated mayhem, infliction of corporal injury on a cohabitant, battery, criminal threats, and grand theft are affirmed over claims that: 1) the trial court prejudicially erred in instructing the jury, pursuant to CALCRIM No. 800, that a “disfiguring injury may be permanent even if it can be repaired by medical procedures”; and 2) consecutive sentencing on a grand theft count contravened defendant’s Sixth Amendment rights under Apprendi and its progeny.
Texas Court of Criminal Appeals, October 29, 2008 Taylor v. Texas, No. PD-1370-07 In a prosecution for aggravated sexual assault of a child, conviction is affirmed where: 1) a child-victim’s statement identifying her assailant to a mental-health therapist may be admissible under an exception to the hearsay rule; 2) in this case, the prosecution did not carry its burden to demonstrate that the statement in question should be excepted from the rule; but 3) the error in admitting the testimony was harmless.
Texas Court of Criminal Appeals, October 29, 2008 Fischer v. Texas, No. PD-1613-07 Reversal of a conviction for murder is reversed where evidence was properly admitted that defendant was one of several people who could have stolen the murder weapon from the store where he worked just before the crime was, committed, and the state proved beyond a reasonable doubt that defendant did steal the weapon.
Texas Court of Criminal Appeals, October 29, 2008 Pecina v. Texas, No. PD–1159–07 In a murder case, denial of a motion to suppress statements made to police by defendant is reversed where defendant invoked his Sixth Amendment right to counsel when asked if he wanted a court-appointed attorney, and his subsequent agreement to speak with police, did not indicate that he had initiated the contact.
Texas Court of Criminal Appeals, October 29, 2008 Texas v. Iduarte, No. PD-1341-07 Reversal of suppression of evidence of an alleged aggravated assault on a peace officer is affirmed where, whether or not police had probable cause to enter defendant’s apartment in the first place, evidence of the subsequent assault was admissible.
Texas Court of Criminal Appeals, October 29, 2008 In Re Johnson v. Tenth Judicial Dist. Court of Appeals at Waco, No. AP-75,898 In a mandamus proceeding challenging an appeals court order requiring a judge to vacate his order mandating withdrawal of funds from an inmate’s account to pay court costs, petition for relief is dismissed where the proceeding did not involve a “criminal law matter” and the court therefore lacked mandamus jurisdiction.
Texas Court of Criminal Appeals, October 29, 2008 Segundo v. Texas, No. AP-75,604 In a capital murder case, conviction and death sentence are affirmed on automatic appeal over claims of error regarding: 1) admission of evidence of another rape-murder committed by defendant; 2) denial of a request to instruct the jury on lesser-included offenses; 3) jury selection issues; 4) admission of parole revocation documents; 5) instructions on extraneous acts of misconduct during the penalty phase; 6) the warrantless seizure of defendant’s blood sample; 7) the retention of defendant’s DNA in a databank even after the expiration of his parole; 8) the exclusion of “alternative perpetrator” evidence; 9) the constitutionality of the death-penalty statute; 10) the charge to the jury in the punishment phase; and 11) the constitutionality of the lethal-injection protocol..
Texas Court of Criminal Appeals, October 29, 2008 Luna v. Texas, No. AP-75.358 In a capital murder case, conviction and death sentence are affirmed on automatic appeal over claims of error regarding: 1) the lack of a bifurcated proceeding for guilt and sentencing; 2) defendant’s competency and the validity of his guilty plea; 3) the unanimity of the jury verdict; 4) the validity of a warrantless search of an apartment where defendant had been staying; 5) the admission of certain victim-impact testimony; 6) the validity of an in-court witness identification; 7) the court’s refusal to allow defense counsel to “close the arguments on mitigation”; 8) denial of defendant’s motion to preclude the death penalty as a sentencing option; 9) the constitutionality of the sentencing procedure; and 10) the constitutionality of the court’s charge to the jury on punishment.
Texas Court of Criminal Appeals, October 29, 2008 Reed v. Texas, No. PD-366-07 Reversal of a conviction for deadly conduct is affirmed where defendant, being inside a habitation, could not have discharged a weapon “at or in the direction of” that habitation. .