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March 16 – 20, 2009:
U.S. 1st Circuit Court of Appeals, March 17, 2009 US v. Vargas, No. 08-1377
Sentence for drug offenses is affirmed where: 1) the district court did not err in declining to apply a two-level decrease in offense level under the sentencing guidelines for being a minor participant in the criminal activity; and 2) the sentencing court did not err and sufficiently addressed the factors enumerated in 18 U.S.C. sec 3553(a) as it provided a sufficient explanation for refusing to deviate from the guidelines sentencing range.
U.S. 1st Circuit Court of Appeals, March 19, 2009 US v. Carron Santiago , No. 07-1575 Conviction and sentence for drug conspiracy is affirmed where: 1) there was sufficient evidence to support the jury’s finding on the amount of drugs and that the drugs were part of the conspiracy; 2) it was not an abuse of discretion to admit the testimony of an undercover agent; and 3) there was no indication that the district court might alter its sentence and thus no need for a sentencing remand in light of Kimbrough. .
U.S. 1st Circuit Court of Appeals, March 19, 2009 US v. Ahrendt, No. 06-1254
Conviction for drug crimes is affirmed where it was clear error for the district court to decline to order a reevaluation of defendant’s competency, as there was no reasonable cause to believe that he was mentally incompetent to stand trial. Sentence is remanded for resentencing in light of Amendment 709 to the United States Sentencing Guideline
U.S. 1st Circuit Court of Appeals, March 19, 2009 US v. Carron Santiago , No. 07-1718
Conviction and sentence for drug conspiracy is affirmed where: 1) there was sufficient evidence to support the jury’s finding on the amount of drugs and that the drugs were part of the conspiracy; 2) it was not an abuse of discretion to admit the testimony of an undercover agent; and 3) there was no indication that the district court might alter its sentence and thus no need for a sentencing remand in light of Kimbrough.
U.S. 2nd Circuit Court of Appeals, March 17, 2009 US v. Simmons, No. 07-5127 Conviction for firearms possession is affirmed where: 1) district court properly denied defendant’s motion to suppress the firearms as officers were responding to an anonymous 911 call reporting an ongoing emergency and had reasonable suspicion to stop and to search defendant; and 2) excusal of a juror pursuant to Rule 23(b)(3) was not an abuse of discretion. District court’s sentence was improperly in excess of the ten-year statutory maximum and is remanded for resentencing.
U.S. 2nd Circuit Court of Appeals, March 18, 2009 US v. Moralies , No. 07-4202 Sentence for drug crimes is remanded where the government potentially misled defendant as to the minimum penalty he would face after a jury’s conviction. The district court should determine whether the government caused misunderstanding of the minimum sentence adversely affected defendant’s decision to proceed to trial and resentence if it would have imposed a lower sentence absent the mandatory minimum.
U.S. 5th Circuit Court of Appeals, March 19, 2009 US v. Tirado-Tirado, No. 07-50670 Defendant’s conviction for inducing another to unlawfully enter the U.S. is vacated, where the government introduced a videotaped deposition of a witness at trial, and Defendant was deprived of his Sixth Amendment right to cross-examine the witness because there was an insufficient showing that the witness was unavailable.
U.S. 5th Circuit Court of Appeals, March 19, 2009 US v. Munoz-Ortenza, No. 07-51344 Defendant’s sentence for illegal reentry into the U.S. is vacated, where Cal. Pen. Code section 288a(b)(1), under which Defendant was previously convicted for oral copulation of a minor, prohibited conduct that would not be criminalized under the generic meaning of sexual abuse of a minor, and thus was not a “crime of violence.”
U.S. 6th Circuit Court of Appeals, March 16, 2009 Awkal v. Mitchell, No. 01-4278 Petitioner’s habeas petition in a capital matter is granted, where Petitioner’s counsel provided ineffective assistance at the guilt phase of Petitioner’s trial by calling an expert witness who testified that Petitioner was sane at the time of the murders, an opinion that contradicted Petitioner’s only defense.
U.S. 6th Circuit Court of Appeals, March 16, 2009 US v. Baker, No. 07-2220 Defendant’s drug conspiracy sentence is affirmed in part, where there was sufficient evidence to show that Defendant was an organizer or leader of the conspiracy, but reversed in part, where there was insufficient evidence to permit the District Court to define Defendant’s prior reckless endangerment conviction as a “crime of violence.”
U.S. 6th Circuit Court of Appeals, March 18, 2009 US v. Keith, No. 07-5202 The denial of Defendant’s motion to suppress evidence in his drug and firearm possession trial is reversed, where the manner in which Defendant moved from one side of a liquor store to the other and glanced at police cars did not give the arresting officers reasonable suspicion of criminal activity.
U.S. 6th Circuit Court of Appeals, March 18, 2009 US v. Ford, No. 08-5091 Defendant’s bank robbery sentence is vacated, where the District Court improperly sentenced Defendant as a career offender under U.S.S.G. section 4B1.1(a) because his previous conviction for a “walkaway” escape was not a “crime of violence” under the Sentencing Guidelines.
U.S. 7th Circuit Court of Appeals, March 17, 2009 US v. Groves , No. 07-2227 Conviction and sentence for firearms possession is affirmed where: 1) officers had ample reasonable suspicion beyond the anonymous tip to justify the investigative stop; and 2) defendant’s above-guidelines sentence was not unreasonable based on the factors supporting the sentence and the absence of any in mitigation. .
U.S. 7th Circuit Court of Appeals, March 18, 2009 US v. Shah, No. 07-1306 Conviction for multiple counts of fraud is affirmed in part and reversed in part where the evidence does not support defendant’s conviction under 18 U.S.C. sec. 2314. Defendant must be resentenced because of the partial acquittal, under the advisory-guideline scheme created by the Booker decision subsequent to his original sentence.
U.S. 7th Circuit Court of Appeals, March 19, 2009 The Cancer Found. Inc. v. Cerberus Capital Management, LP, No. 08-1981 In an action brought under the Racketeer Influenced and Corrupt Organization Act, district court’s dismissal of the racketeering suit as untimely is affirmed where the four year statute of limitations for a civil RICO cause of action began to run when the plaintiffs discovered in 1997 that they had been injured by the defendants.
U.S. 7th Circuit Court of Appeals, March 19, 2009 US v. McMath, No. 08-2316 Conviction for firearms possession is remanded for further findings where: 1) the district court erred in denying defendant’s Batson challenge without making findings regarding the credibility of the proffered race-neutral justification for striking a juror; and 2) prosecutor’s statements did not constitute plan error requiring a reversal, as they did not affect the fairness of the trial. Sentence is reversed and remanded where the district court based the sentence on an erroneous factual finding.
U.S. 8th Circuit Court of Appeals, March 16, 2009 US v. Boaz, No. 07-3918 Conviction for firearms possession is affirmed where: 1) district court did not err in determining defendant’s prior Arkansas felony conviction qualified as a predicate offense under 18 U.S.C. sec. 922(g)(1); and 2) preponderance of the evidence was the correct standard for determining that defendant had three predicate violent felonies for purposes of 18 U.S.C. sec. 924(e). Sentence is vacated and remanded where: 1) defendant’s prior Arizona conviction for conspiring to commit auto theft does not constitute a predicate violent felony; and 2) further proceedings are necessary as to whether defendant’s prior Arizona conviction for exhibiting a deadly weapon qualified as a predicate violent felony.
U.S. 8th Circuit Court of Appeals, March 17, 2009 US v. Clinkscale, No. 08-1163 Sentence for firearms possession is remanded for resentencing where this court decided in U.S. v. Williams that a conviction for motor vehicle theft is not a violent felony, making defendant’s mandatory minimum sentence for three prior violent felony convictions in error. On remand, the district court may consider a prior conviction for making a terroristic threat under Minn. law, as it is a violent felony within the meaning of 18 U.S.C. Sec. 924(e).
U.S. 8th Circuit Court of Appeals, March 17, 2009 US v. King, No. 08-1968 Sentence for wire fraud and money laundering is affirmed where: 1) defendant did not have a Sixth Amendment right to counsel during a presentence report investigation as it was not a critical stage of the prosecution; and 2) district court did not err in imposing a sentencing enhancement for obstruction of justice or in denying defendant’s request for an acceptance of-responsibility reduction.
U.S. 8th Circuit Court of Appeals, March 20, 2009 US v. Brown , No. 08-1378 Conviction for drug crimes is affirmed where: 1) Batson challenge is rejected as there is no clear error in the finding that the prosecutor struck two jurors for race neutral reasons; 2) conviction for use and discharge of a firearm was not constructively amended by introduction of evidence concerning a shoot-out on another date; 3) there was no error in admitting certain out-of-court statements; and 4) the rest of defendant’s motions for properly denied. One count of the conviction is reversed where an error in jury instructions concerning possession of a firearm in furtherance of a drug trafficking crime seriously affected the fairness of defendant’s trial.
U.S. 8th Circuit Court of Appeals, March 20, 2009 US v. McDougal , No. 08-2524 In an action involving contempt proceedings related to the Whitewater investigation, district court’s order is affirmed where the court did not abuse its discretion in refusing to unseal documents related to defendant’s civil contempt hearings which might disclose matters that occurred before the grand jury, as defendant failed to meet the standards in Rule 6(e) for disclosure of the materials, and there is no common law right to unseal the materials.
U.S. 8th Circuit Court of Appeals, March 20, 2009 US v. Jones, No. 08-2537 Conviction and sentence for drug crimes is affirmed where: 1) evidence was sufficient to support conviction for conspiracy to distribute 50 or more grams of crack; and 2) defendant’s prior drug conviction qualified as a felony drug conviction for sentencing purposes.
U.S. 9th Circuit Court of Appeals, March 18, 2009 US v. Driggers, No. 07-30190 Defendant’s conviction for using interstate commerce facilities to commit murder for hire is affirmed, where the District Court’s erroneous jury instruction did not prejudice Defendant, because the evidence at trial was overwhelming that Defendant solicited a third party to murder Defendant’s ex-wife.
U.S. 9th Circuit Court of Appeals, March 18, 2009 US v. Flores, No. 08-30076 Defendant’s drug conspiracy sentence is affirmed, where the government properly refused to seek a downward departure for substantial assistance because refusing to make the motion was within the government’s broad discretion under the plea agreement at issue.
U.S. 10th Circuit Court of Appeals, March 16, 2009 US v. Gonzalez, No. 06-8082 Defendant’s firearm possession sentence is affirmed, where Defendant’s prior state burglary conviction was a “burglary” for purposes of the Armed Career Criminal Act, because it did not involve the alleged burglary of a vehicle.
U.S. 10th Circuit Court of Appeals, March 18, 2009 US v. Baldridge, No. 07-5121 Defendant’s conviction for filing false claims for payment with a county is affirmed, where 1) Defendant failed to alert the District Court that he believed the prosecutor’s questioning constituted misconduct and 2) there was sufficient evidence to support the conspiracy charges. .
U.S. 10th Circuit Court of Appeals, March 18, 2009 US v. Williams, No. 08-3159 Defendant’s bank robbery sentence is affirmed, where the District Court properly found that Defendant’s prior state conviction for battery of a police officer was a “crime of violence” under U.S.S.G. section 4B1.2, because that offense involves purposeful, aggressive and violent conduct and creates a serious risk of physical injury.
U.S. 11th Circuit Court of Appeals, March 19, 2009 Hannon v. Sec’y., Dep’t. of Corrs., No. 07-15991 The denial of Petitioner’s habeas petition in a capital case is affirmed, where the state court did not unreasonably apply federal precedent in holding that Petitioner was not denied effective assistance of counsel during the penalty phase of his trial, as presenting mitigation evidence would have undermined Petitioner’s alibi.
U.S. 11th Circuit Court of Appeals, March 20, 2009 US v. Clarke, No. 08-10038 Defendant’s tax fraud conviction is affirmed, where: 1) there was no showing that African-Americans were excluded from the jury pool; 2) there was sufficient evidence that the underreporting was willful; and 3) the “tax loss” under U.S.S.G. section 2T1.1(c)(1) is the loss the defendant intends to create.
Supreme Court of California, March 16, 2009 People v. Villa , No. S151561 Court of Appeal’s denial of petition for habeus corpus is affirmed where defendant is ineligible for habeas corpus relief as he is no longer in actual or constructive California custody as a result of his 1989 conviction, but is instead in federal custody in another state.
California Appellate Districts, March 16, 2009 People v. Grimes , No. C058369 Sentence for assault and battery is affirmed where a clerical mistake resulting in a delayed appeal was promptly acknowledged and did not prejudice the defendant in any way. .
California Appellate Districts, March 16, 2009 In re Rozzo , No. D049704 Petition for writ of habeas corpus following Governor’s reversal of a grant of parole is denied where: 1) there was some evidence to support the Governor’s decision finding defendant unsuitable for parole; 2) defendant failed to establish that the Governor did not provide proper individualized consideration of his case, in violation of his right to due process; 3) defendant failed to demonstrate the Governor applies an anti-parole policy to persons convicted of murder that violates his constitutional right to due process; and 4) the composition of the Parole Board did not violate defendant’s right to due process. .
California Appellate Districts, March 16, 2009 People v. Maldonado , No. H031506 Conviction for drug crimes is affirmed where: 1) the trial court did not lose jurisdiction by deeming previously filed complaint an information; 2) no evidence of insufficient assistance of counsel has been shown; and 3) no prosecutorial misconduct occurred.
California Appellate Districts, March 19, 2009 People v. Earle , No. H031525 Conviction for assault is reversed where the trial court abused its discretion by denying the motion for separate trials and permitting the prosecution to place the strongly incriminating evidence of the misdemeanor charge of indecent exposure before the same jury deciding the much more difficult felony assault charge, which resulted in such gross unfairness as to deprive defendant of a fair trial and due process of law. .