Monday, July 03, 2006

Case Summaries

June 29, 2006 Slip Opinions. Six criminal cases.

U.S. v. Jedediah Conelly, No. 04-2427 (D. Nebraska). Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by Judge John R. Gibson

Conelly appeals his sentence after he pleaded guilty to drug and firearms offenses. The district court sentenced him to 150 months in prison, the figure to which he and the government had stipulated to in a plea agreement. Upon the government’s filing of a Rule 35(b) motion, the district court later reduced the sentence to 96 months. Conelly was also sentenced to five years of supervised release, including a special condition requiring him to attend, complete, and pay for mental health services as directed by the probation officer.

Conelly appeals on two grounds: 1) that the district court treated the Guidelines as mandatory, rather than as advisory; and 2) that the mental health services condition of his supervised release was not warranted and that the district court improperly delegated its authority to the probation officer by allowing the probation officer to determine what mental health services would be required.

The Eighth Circuit held: 1) A defendant’s explicit and voluntary stipulation to a particular sentence will ordinarily preclude him from challenging the sentence on appeal. U.S. v. Mickelson, 433 F.3d 1050, 1055-56 (8th Cir. 2006). Conelly received the exact prison term to which he stipulated in his plea agreement, and the sentence was subsequently reduced below the stipulated term. Therefore, his Booker argument fails. 2) The record contained evidence that Conelly was in need of mental health treatment: the PSR stated that Conelly said he had been sexually abused as a child and he had expressed an interest in getting counseling. A sentencing judge may delegate authority to non-judicial officials as long as the judge retains and exercises the ultimate responsibility. Mickelson at 1057. Here, the district court made no statements indicating it relinquished authority over the conditions of Conelly’s supervised release. Accordingly, there was no plain error in including mental health treatment as a condition of Conelly’s supervised release. Affirmed.

U.S. v. Marcus Deangelo Jones, No. 05-3435 (W.D. Missouri). Before Circuit Judges Wollman, Fagg, and Arnold. Per Curiam. Unpublished.

In an earlier appeal, the Eighth Circuit ordered the district court to vacate one of Jones’s convictions for being a felon in possession of a firearm. On remand, Jones asked the district court to conduct a new sentencing hearing, to appoint him counsel, and to let him appear before the court. The district court corrected the sentence but denied the motions.

Jones argues district court error in the denial of his motion for a sentencing hearing. Held: A district court does not always have to resentence a defendant when it vacates one of the convictions that contributed to an original judgment. That is necessary only when the sentence might have relied in some way on the invalid conviction. Cabbell v. U.S., 636 F.2d 246, 249 (8th Cir. 1980). However, this concern is not applicable here. The court concluded that there was no reason to believe the district court would have imposed a different sentence without the felon-in-possession conviction. The district court did not err in denying Jones’s request for resentencing, as the court merely corrected the sentence and there was no need for him to be present. Similarly, the court was not required to appoint counsel for what was merely a ministerial act.

The Eighth Circuit also found Jones’s claim that the district judge should have recused himself for bias to be untimely and therefore the issue was forfeited. Even if the court were to consider the matter, it is one without merit. Judicial remarks during the course of a trial that are critical or disapproving ordinarily do not support a bias or partiality challenge. Affirmed.

U.S. v. Santiago Valdivia-Perez, No. 05-3547 (N.D. Iowa). Before Circuit Judges Arnold and Beam, and District Judge Doty. Opinion by District Judge Doty.

Valdivia-Perez appeals the life sentence imposed following his conviction for drug conspiracy. He contends that the two-level enhancement for possession of a dangerous weapon violates his Fifth and Sixth Amendment rights because a jury acquitted him of knowingly using and carrying a firearm during and in relation to a drug trafficking crime. He also argues that the evidence does not support the district court’s finding that he possessed a gun in connection with the drug offense. Originally, Valdivia-Perez was sentenced to life in prison, but the Eighth Circuit remanded for resentencing in light of Booker. At resentencing, the district court imposed the same guidelines calculations, found no reason for a variance and again sentenced him to life imprisonment.

The Eighth Circuit held: 1) The court has already addressed and rejected the argument that a jury’s acquittal precludes the district court from considering whether the government proved the same or similar conduct by a preponderance of the evidence for sentencing purposes. U.S. v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006). So long as the district court treats the guidelines as advisory, there is no Sixth Amendment error in finding facts necessary to apply an enhancement. Booker at 246. Because the record shows that the district court applied the guidelines in an advisory manner, fact-finding by the court was permissible. 2) Valdivia-Perez’s argument that the evidence did not support the district court’s finding because his use or possession of a firearm during his arrest was not sufficiently connected to his drug-trafficking offense was rejected. The court did not consider such evidence for the purpose applying the enhancement. Rather, the court referred to the original sentencing hearing in which it found that trial testimony of Valdivia-Perez’s use of firearms during drug transactions supported the firearm enhancement. The record contained adequate evidence to support the finding, and the court found no error in the application of the two-level enhancement for possession of a firearm. Affirmed.

U.S. v. James Allen Gregg, No. 05-3782 (D. S.D.). Before Circuit Judges Bye, Riley, and Smith. Opinion by Judge Bye.

Gregg appeals his convictions of second degree murder and discharge of a firearm during and in relation to a crime of violence, as well as the sentences imposed.

First, he argues the district court erred by preventing testimony from himself and other witnesses regarding specific instances of the victim’s prior violent conduct to prove the victim was the aggressor. Held: A defendant can introduce evidence of a victim’s violent character to establish conformity therewith in homicide cases where self-defense is raised. Fed. R. Evid.404(a)(2). However, a victim’s violent character is not an essential element of the charge of murder or the defense of self-defense, therefore the district court properly excluded evidence of the victim’s violent conduct to prove the victim was the aggressor in the altercation.

Gregg also argues district court error by not permitting him to elicit testimony regarding specific acts of the victim’s violent conduct to establish Gregg’ state of mind at the time of the shooting. Held: Such evidence may be admissible under Rule 404(b) to prove a defendant’s mind, however, Gregg identified no specific instances of the victim’s prior conduct, let alone any such instances known by Gregg at the time of the shooting. Accordingly, the district court did not abuse its discretion in denying the offer of proof.

Gregg next challenges the sentences imposed upon him by the district court as unreasonable because the court did not grant his motions for downward departure. Held: A denial of a motion for downward departure is not reviewable unless the district court believes it was without authority to depart. Here, the district court recognized it had the authority to depart, but declined to do so; therefore the court correctly determined the applicable advisory guidelines range.

Finally, Gregg argues his sentence was unreasonable because the district court did not adequately consider the § 3553(a) factors. He argues error by the district court for not considering the contributing conduct of the victim to the confrontation and the ultimate shooting. Held: The district court conducted a thorough review to the § 3553(a) factors and determined the low end of the advisory guidelines range was an appropriate sentence under the circumstances. The Eighth Circuit agreed that the district court’s sentence of 135 months is reasonable for Gregg’s second degree murder conviction. Affirmed.

U.S. v. Charles Edward Shurn, No. 05-3876 (E.D. Missouri). Before Circuit Judges Arnold and Smith, and District Judge Magnuson. Opinion by Judge Arnold. Unpublished.

The Eighth Circuit affirms on both grounds Shurn’s appeal of the denial of his motion to dismiss the indictment and the admission of his prior conviction for possession of heroin.
Shurn argues that ex parte communications between his probation officer and the police created a partial tribunal, thereby violating his right to be tried in an impartial tribunal. Held: Parole officers and police can work together as long as the parole officer "is pursuing parole-related objectives and is not merely a ‘stalking horse’ for the police." U.S. v. McFarland, 16 F.3d 316, 318 (8th Cir. 1997). Although the probation officer and police detective exchanged some information, they did not breach any constitutional boundaries. The contacts between the two did not dominate the police investigation. Neither the probation officer nor the police detective relied exclusively on information from each other; each independently investigated Shurn. Therefore, there was no violation of due process or other unconstitutional commingling of government powers. The district court’s denial of the motion to dismiss the indictment is affirmed.

Shurn also challenges the admission of his 2000 conviction for possession of heroin under Rule 404(b). Held: When a defendant in a drug prosecution denies the charged wrongdoing, evidence of past drug convictions is admissible to prove both knowledge and intent. U.S. v. Love, 419 F.3d 825, 828 (8th Cir. 2005). Shurn was charged with possession with intent to distribute heroin. At trial, he denied possessing heroin. The prior conviction was relevant and material to show Shurn’s knowledge of drugs and their illegal means of distribution, as well as his intent to control the heroin and distribute it. Accordingly, the judgment of the district court is affirmed.

U.S. v. Richard Mathis, No. 05-4364 (N.D. Iowa). Before Circuit Judges Bye, Lay, and Riley. Opinion by Judge Bye.

Mathis pleaded guilty to sexual exploitation of a child and was sentenced to 214 months in prison. He appeals, asserting that the district court imposed an unreasonable sentence and by imposing the sentence consecutive to an undischarged state sentence.

Held: Under § 5G1.3(b), a sentence shall run concurrently to an undischarged term of imprisonment if the offense giving rise to the state conviction was relevant conduct and the basis for an increase in the offense level for the charged offense. Mathis was sentenced to two state offenses, but only the conduct underlying his state court conviction for sexually exploiting T.A. is the subject of the federal charges. Thus, the district court correctly applied § 5G1.3(b) with regard to the state court conviction for exploiting T.A., ordering the two sentences to run concurrently.

The district court did not consider Mathis’s state court conviction for exploiting B.B. nor the underlying conduct in computing his total offense level. The district court applied § 5G1.3(c) to make the federal sentence consecutive with his undischarged state court sentence for exploiting B.B. Section 5G1.3(c) provides the court wide discretion to order a federal sentence to run consecutively to an undischarged state offense.

Mathis contends imposition of a consecutive sentence is unreasonable because it was greater than necessary to satisfy § 3553(a). Held: A district court is not required to recite categorically each statutory factor as long as it is clear the factors were considered. Here, the district court acknowledged it was required to consider the § 3553(a) factors and confirmed it did consider them. The Eighth Circuit concludes the district court did not act unreasonably by imposing a consecutive federal sentence to an undischarged state sentence. The district court correctly applied the § 3553(a) factors and U.S.S.G. § 5G1.3. Affirmed.

Betty J. Farr, Paralegal
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

1 Comments:

Blogger Ravi Yugal said...

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