Eighth Circuit Blog

Case Summaries Discontinued

2006-09-27T10:50:00.001-05:00

As these summaries are distributed via email, it has been determined--due to workload and duplication of effort--that only cases deemed of exceptional importance will be posted here.

It has been suggested that instead of email, the summaries be posted here only, but there has been no push to implement that idea as of yet.

Comments regarding the specifics of this posting are welcome, as well as comments on the usefulness of the blog itself. Here is the big question:

Do you use the Eighth Circuit Blog regularly? Occasionally? Almost never?

I would venture a guess, but I don't want to skew the results of this informal poll.

Thanks for your comments.

Jack Schisler
Assistant Federal Defender
Eastern & Western Districts of Arkansas

Case Summaries

2006-07-21T16:13:00.000-05:00

July 19, 2006, Slip Opinions. One criminal case.

U.S. v. Darren Alan Maurstad, No. 05-3023. (D. South Dakota).
U.S. v. David George Foote, No. 05-3024. (D. South Dakota).
Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by Circuit Judge Smith.
PUBLISHED.

Maurstad and Foote (Appellants) pleaded guilty to conspiracy to possess methamphetamine with intent to distribute. Maurstad appeals his sentence as unreasonable and Foote appeals his sentence claiming it 1) exceeds the statutory maximum, 2) violates the Sixth Amendment to the U.S. Constitution, and 3) violates the Eighth Amendment to the U.S. Constitution..
As to Maurstad’s sentence, the District Court found that Maurstad had been committing crimes since "the age of 12 and basically never stopped committing crimes" and, as a result, has "spent the majority of his life in juvenile and adult correctional institutions" essentially "serving life imprisonment on the installment plan." The District Court concluded that Maurstad’s criminal history points did not accurately reflect his criminal lifestyle and did not include points for several of his prior offenses. The record reflects that the District Court "noted the need for Maurstad’s sentence to deter such criminal conduct, protect the public from him, and rehabilitate him." Considering the totality of the circumstances, the District Court decided that a 120-month sentence was reasonable.

The Eighth Circuit held that Marustad’s case is "analogous to" their holdings in Lyons, 2006 WL 1667635, at *2, and Shannon, 414 F.3d at 923-2, therefore his sentence is reasonable.
Appeal dismissed.

As to Foote’s 240 month prison sentence, the advisory Guidelines range was 210 to 262 months imprisonment, with a statutory cap of 240 months imprisonment. The District Court ordered that Foote’s federal sentence begin to run after Foote served 18 months of a 10 year state sentence on a burglary conviction.

The Eighth Circuit clarifies how this sentence "does not exceed the statutory maximum." See U.S. v. Schulte, 436 F.3d 849, 850 (8th Cir. 2006). According to 18 U.S.C. §3584(a), "if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively...". U.S.S.G. § 5G1.3(a) allows sentences to be imposed to run concurrently, partially concurrently, or consecutively with any undischarged term of imprisonment. On this issue, the Eighth Circuit held that the District Court’s order to run a portion of his prison term concurrent, does not affect the 240 months imprisonment for the instant offense.

The Eighth Circuit held that "Foote waived his right to appeal his sentence in his plea agreement with the U.S." "Because Foote’s sentence is with the statutory range, the appeal waiver contained in the plea agreement is enforceable."
Appeal dismissed.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

Case Summaries

2006-07-21T15:22:00.000-05:00

July 18, 2006, Slip Opinions. Five criminal cases.

U.S. v. Franklin Gordon Tucker, No. 06-1218. (W.D. Missouri). Before Circuit Judges Wollman, Bowman, and Riley. (Unpublished).
PER CURIAM.

After a bench trial, Tucker was convicted of being a felon in possession of three firearms. Tucker appeals the District Court’s denial of his motion to suppress evidence, citing error. Tucker moved to suppress all evidence gathered and statements obtained following the search of his residence, because the government affidavit lacked probable cause Franks. The magistrate judge denied the motion and despite Tucker’s objections the District Court adopted the magistrate judge’s report and recommendation in its entirety.
The Eighth Circuit reviewed 1) the denial of the motion to suppress de novo, and 2) the factual determinations for clear error.

The Eight Circuit held that the totality of the circumstances supports a finding of probable case. See U.S. v. Hunley, 567 F.2d 822, 827 (8th Cir. 1977). The record in the instant case does not reflect a Franks violation.
AFFIRMED.

U.S. v. E.J.R.E, No. 05-4291. (D. South Dakota)
U.S. v. T.R.E., No. 05-4293. (D. South Dakota)
U.S. v. C.R., No. 05-4294. (D. South Dakota)
Before Circuit Judges Bye, Lay, and Riley. Opinion by Circuit Judge Lay.
PUBLISHED

"E.J.R.E., C.R., and T.R.E. (collectively "Appellants"), were each adjudicated delinquent and subsequently sentenced to detention followed by a term of juvenile delinquent supervision for conduct that occurred before November 2, 2002."
The Eighth Circuit held on May 21, 2004, U.S. v. J.W.T., 368 F.3d 994, 996-97 (8th Cir. 2004), that the amendment to 18 U.S.C. §5037, enacted November 2, 2002, which expressly authorized juvenile delinquent supervision, could not be applied to acts of juvenile delinquency committed prior to November 2, 2002.

One year later, Appellants filed their §2255 motions in District Court to vacate, set aside, or correct their sentences. The District Court denied all three motions as untimely. Appellants appeal this decision claiming:

1) 28 U.S.C. §2255 para.6(4) renders their §2255 motions timely, and
2) that "the doctrine of equitable tolling should be applied to toll the one-year statute of limitations provided under §2255".

The Eighth Circuit reviewed de novo the District Court’s finding that the Appellant's §2255 motions were untimely. Snow v. Ault, 238 F.3d 1033, 1034 (8th Cir. 2001).

1) The Eighth Circuit held that after sentencing by the District Court, the Appellants failed to act with "the requisite diligence" established by Johnson, by failing to file direct appeals to their final judgments, and thus did not "preserve eligibility to invoke the statute of limitations under §2255 para. 6(4)." The Eighth Circuit found the District Court’s ruling to be proper.
2) The Eighth Circuit held that equitable tolling requires
a) that the petitioner act "with due diligence in pursuing his petition", and
b) that "extraordinary circumstances beyond a petitioner’s control prevent timely filing."

In the instant case, neither requirement was met to establish equitable tolling, and the District Court’s ruling was proper.
AFFIRMED.

U.S. v. Carlos Alberto Pool-Chan, No. 05-4015. (N.D. Iowa). Before Chief Judge Loken, Bowman, and Bye, Circuit Judges. Opinion by Chief Judge Loken.
PUBLISHED.

"After a bench trial, Pool-Chan was convicted of possessing a counterfeit social security card...", and received a sentence of 187 days in prison, equal to time already served and two years of supervised release. Pool-Chan appeals his conviction "arguing as he did to the District Court that possession of an unsigned counterfeit social security card does not violate (18 U.S.C.) 1546(a)."
As required by U.S. v. Kirchoff, the Eighth Circuit reviewed this issue of statutory construction de novo and held that the District Court correctly concluded that an unsigned social security card is a document which provides evidence of authorization to work in the United States. "Signing is irrelevant to a verifying employer and therefore irrelevant to whether an illegal alien subverts the employer verification system by tendering a counterfeit or otherwise fraudulent card.", but not signing may affect "its validity for other purposes."
AFFIRMED.

U.S. v. Zachary Hrasky, No. 05-2111. (D. Nebraska). Before Circuit Judges Riley, John R. Gibson, and Colloton. Opinion by Circuit Judge Colloton. Dissenting opinion by Circuit Judge John R. Gibson.
PUBLISHED.

A grand jury indicted Hrasky with unlawful possession of a firearm by a convicted felon. "Prior to trial, Hrasky filed a motion to suppress evidence, including two firearms, obtained during a search of his vehicle.", which the District Court granted. The government appeals the District Court’s granting of Hrasky’s motion to suppress, contending that the search was incidental to Hrasky’s arrest and "consistent with the Fourth Amendment".
The Eighth Circuit reviewed the instant case and applied the "bright-line rule of New York v. Belton" which the Eighth Circuit has used in the past to uphold searches of automobiles incident to arrest when the following circumstances exist:

1) the arrestee has exited the vehicle, and
2) has been handcuffed, and
3) placed in a police officer’s patrol car, U.S. v. Barnes, or,
4) removed from the scene entirely, U.S. v. Snook, U.S. v. McCrady.
The "bright-line rule" established by Belton, distinguishes between searches that are "roughly contemporaneous with the arrest" and searches that are "conducted within a reasonable time after obtaining control of the vehicle". U.S. v. Smith concludes that a search is contemporaneous with the arrest "so long as it occurs during a continuous sequence of events". See U.S. v. McLaughlin, 170 F.3d at 893.

In the instant case, prior to his arrest, Hrasky offered to provide drug information to government agents. In light of his offer, it was necessary to call in an agent to debrief Hrasky and then determine if he would be a good candidate to become a confidential informant, which placed his arrest status in limbo. After it was determined that Hrasky would not become a confidential informant, the office immediately placed Hrasky under arrest and then searched Hrasky’s vehicle.

The Eighth Circuit held that the search in the instant case was contemporaneous with the officer’s decision to place Hrasky under arrest, therefore the search was reasonable.

Dissenting opinion.
Circuit Judge Gibson dissents, arguing that the warrantless search of Hrasky’s truck does not fall on the "permissible side of the "bright-line" rule of New York v. Belton for the following reasons:
1) It does not meet the "specifically established and well-delineated exceptions" which allow a search to occur outside of the judicial process.
2) "Searches incident to arrest are not limitless" U.S. v. Pratt, and must be treated as "exceptions to the constitutional norms" to prevent a feeling that warrantless searches are a "police entitlement".
3) Coolidge v. New Hampshire requires the government to "establish its entitlement to the search incident to arrest exception", or the evidence gained from the warrantless search must be suppressed.
4) In U.S. v. Pratt the Eighth Circuit previously held that "a seizure of a person predicated upon probable cause" as in the instant case "is properly regarded as an arrest" because "at this point that a reasonable person would have believed he was not free to leave."
5) The U.S. "Supreme Court has refused to apply the search incident to arrest exception in the context of a similar delay, Chadwick, 433 U.S. at 15.
Circuit Judge Gibson would Affirm the order of the District Court.
REVERSED and REMANDED for "further proceedings not inconsistent with this opinion."

U.S. v. Juan Francisco Gonzalez, aka Michael Andrew Quinones, No. 03-2263. (E. D. Missouri). Before Circuit Judges Riley, Richard S. Arnold, and Melloy. Unpublished.
PER CURIAM.

In an earlier opinion, the Eighth Circuit affirmed the criminal conviction and life sentences imposed upon Gonzalez. See U.S. v. Gonzalez, 365 F.3d 656 (8th Cir. 2004). Gonzalez appealed this opinion and was granted certiorari based upon sentencing issues under Blakely. Once the Supreme Court issued its opinion in Booker, it vacated the Eighth Circuit judgment and remanded for consideration in light of Booker.

In the instant case, the Eighth Circuit reviewed for plain error under Booker and found that the District Court committed plain error when it applied the Guidelines as mandatory. "The District court expressly commented on the lack of discretion afforded by the Guidelines in this case." Later the District Court read letters of support on the record, and stated that it was doing so to "support" Gonzalez as he started to "proceed down a monstrously difficult road.", followed by comments regarding the appropriate nature of his sentence.
The Eighth Circuit held that the District Court’s comments establish ambiguity, but not a reasonable probability that it "would have imposed a term of years under an advisory regime", and therefore the sentence will be allowed to stand.
AFFIRMED.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

Case Summaries

2006-07-20T16:57:00.000-05:00

July 17, 2006, Slip Opinions. One criminal case.

U.S. v. Michael Siwek, No. 05-3545. ( D. Nebraska). Before Circuit Judges Colloton, John R. Gibson, and Gruender. Opinion by Circuit Judge Gruender. PUBLISHED.

"Siwek entered a conditional guilty plea to possession with intent to distribute marijuana and criminal forfeiture." He appeals a District Court decision to deny his motion to suppress evidence obtained during a search of his vehicle.

The Eighth Circuit reviewed the legal conclusions of the District Court de novo and reviewed for clear error the District Court’s; 1) factual findings under Stevens, and 2)determination of voluntariness of a consent to search under Mancias.

Siwek argues a violation of his Fourth Amendment rights occurred because:

1) He did not voluntarily consent to a search of his truck
2) Assuming consent, the search exceeded the scope of his consent.
3) He withdrew his consent.
4) Evidence in the truck bed would not have been reasonably discovered.
5) Government did not have reasonable suspicion to justify detaining Siwek, and
6) Government did not have probable cause to search the truck bed.

The Eight Circuit held that 1) Siwek consented to the search of his truck, White, 2) search was within the scope of consent, Florida v. Jimeno, 500 U.S. 248, 251 (1991), 3) consent was not withdrawn, U.S. v. Sanders, U.S. v. Gray, 4) it is unnecessary to address other exceptions to the Fourth Amendment’s warrant requirement, Wells. Additionally the Eighth Circuit held that the District Court’s decision to deny Siwek’s motion to suppress evidence was proper.
AFFIRMED.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

July 14, 2006, Slip Opinions. One criminal case.

U.S. v. Richard Ashton Oslund, No. 04-3956. (D. Minnesota). Before Circuit Judges Riley, Hansen, and Colloton. Opinion by Circuit Judge Hansen. PUBLISHED.

Following a two week jury trial, Oslund was convicted of robbery affecting interstate commerce, murder with a firearm during a robbery affecting interstate commerce, and felon in possession of a firearm. Oslund appeals his conviction and sentence of two consecutive life terms in prison, a concurrent twenty year term of imprisonment, and $278,745.00 restitution.

Oslund first argues improper admission of evidence because 1) the tape recordings did not meet all of the McMillan requirements, 2) third party government agent testified regarding the tape recording of an incriminating conversation between Oslund and cooperating witness and therefore, the government failed to lay proper foundation for introduction of incriminating tape recording, 3) cooperating witness needed to testify to explain "gaps" in the recordings, and 4) incriminating statements made during the tape recorded conversations were induced.

The Eighth Circuit held:

1) "The McMillan factors are a guide for the court to use, and if the totality of the circumstances surrounding the recordings satisfies the court as to their reliability, even if not every factor is explicitly and completely met, admission is proper."
2) The government agent "identified each speaker in the recordings and thus authenticated the identity of the participants." U.S. v. Cerone, 830 F.2d 938, 949 (8th Cir. 1987), "Any person may identify a speaker’s voice if he has heard the voice at any time."
3) According to Byrne, only the weight of tape recorded evidence is affected by gaps in the recording, not the admissibility.
4) There was not any evidence that Oslund’s participation in the tape recorded conversations was not voluntary as required by Brown. Additionally, assuming that the cooperating witness’s motives were entirely self-serving, the totality of the circumstances make it clear that the cooperating witness gave his consent.

Next, Oslund argues that the five year delay 1) was prejudicial to his case, and 2) caused a key piece of evidence to be destroyed.

The Eighth Circuit held that Oslund failed to raise this issue at the District Court level, prior to trial as required by U.S. v. Farmer, and Fed. R. Crim. P. 12(b)(3), and is not entitled to seek any type of relief on this issue.

Next, Oslund argued that the government committed improper vouching during it’s redirect of Oslund’s cellmate.

The Eighth Circuit held that vouching, statements regarding or implying the truthfulness of a witness, did not occur on the part of the government but rather by a "witness regarding his opinion of statements made by Oslund." The Eighth Circuit reviewed for plain error because Oslund failed to object to the redirect testimony at trial. During cross-examination of the witness, Oslund solicited the cellmate’s personal opinion based upon his participation in the conversation, opening the door for the government to seek the participant’s opinion.
Next, Oslund argues that the government made improper remarks during closing which 1) attacked the integrity of the defense counsel, and 2) were insulting.

The Eight Circuit held that in the instant case, Oslund failed to object to statements made during closing argument which waives such an objection. The Eighth Circuit reviews for plain error stating, "while we find the statements troubling, we conclude that the statements in question were not so "plainly unwarranted and clearly injurious" that reversal is required in order to avoid a "plain miscarriage of justice." Billingsly, 277 F.3d at 997 (internal marks omitted.)""
Oslund argues that the evidence is insufficient to support his convictions because the two identifying eyewitnesses who testified at trial, are unreliable.

The Eighth Circuit reviewed this matter de novo, concluding not to "second-guess the jury’s determination" for the following reasons; 1) only the jury can evaluate the eyewitness testimony, 2) the District Court properly instructed the jury on factors to consider when weighing eyewitness testimony, 3) the defense had ample opportunity to raise and argue the issue of eyewitness reliability to the jury, and 4) then it was up to the jury to determine the weight of eyewitness identification. The Eighth Circuit held that even without the eyewitness identification, the remaining evidence against Oslund would ensure that a "jury could reasonably find Oslund guilty." and this argument is without merit.

Additionally, Oslund argues that his sentence under the mandatory Guidelines is unconstitutional and he should have the opportunity to be resentenced by the District Court.
The Eight Circuit held that the District Court made a clear record at sentencing that it "would have imposed the same sentence in Counts 1 and 3 had the Guidelines been treated as advisory." The District Court stated in part, "[s]hould you ever be released, and it would be contrary to my recommendation that they do so, it is ordered by statute that you serve a term of supervised release." and "what you did ought not to be repeated, and I’m placing you in a position where you may not do so." The record is clear that had the Guidelines been advisory, the District Court would have imposed the same sentence on each count.

Finally, Oslund objects to the restitution ordered on two grounds: 1) it is a question for the jury under Blakely/Booker, and 2) the inclusion of future earnings is not allowed by statute.
The Eight Circuit held that argument one fails because "neither Blakely nor Booker affects the determination of restitution or the burden in establishing a proper amount. See U.S. v. May, 413 F.3d 841,849 (8th Cir.)" The Eighth Circuit held that under the MVRA, restitution is mandatory and that "the District Court has wide discretion in ordering restitution. U.S. v. Reichow, 415 F.3d 802, 804-02 (8th Cir.), cert. denied, 126 S. Ct. 784 (2005). Future income may be awarded under MVRA. In the instant case, Oslund does not challenge the amount of future earnings income awarded by the District Court, only its award in general. The employer had already paid almost half of this future earnings amount to the family and had committed to pay the remaining amount. It is unlikely that the employer would have agreed to pay an unjustified amount. It is not improper for lost income to be included in the restitution order.
AFFIRMED.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

July 13, 2006, Slip Opinions. Two criminal cases.

U.S. v. Jose Ortiz-Martinez, No. 05-3105/3107 (N.D. Iowa). Before Circuit Judges Colloton, Beam, and Hansen. Unpublished. PER CURIAM.

Ortiz pleaded guilty to conspiring to distribute 500 grams or more of methamphetamine mixture and possessing with intent to distribute 50 grams or more of methamphetamine mixture and appeals the District Court sentence of concurrent 168 months and 120 months prison terms and concurrent 10 year and 8 year terms of supervised release. The District Court also revoked a term of supervised release stemming from a prior federal conviction and sentenced Ortiz to 12 months in prison to run consecutive to the sentence for the new offenses.
Counsel filed an Anders brief and a motion to withdraw, arguing that it is unclear if the supervised release sentence is to run concurrent or consecutive to the sentence for the new charges. The Eighth Circuit held that the record is clear that the sentences are to run consecutive.

Ortiz argues 1) improper application of the remedial portion of Booker, 2) he was entitled to a preliminary hearing because he was being held on an indictment, and 3) guilty plea was invalid.
The Eighth Circuit rejected all of Ortiz’s arguments based upon, 1) U.S. v. Salter, 418 F.3d 860, 862 (8th Cir. 2005), cert. denied, 126 S. Ct. 1399 (2006)., 2) Fed. R. Crim. P. 5.1(a)(2); U.S. v. Rose, 541 F.2d 750, 753 n.2 (8th Cir. 1976), cert. denied, 430 U.S. 908 (1977)., and 3) U.S. v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990).
AFFIRMED.

U.S. v. Terron Brown, No. 05-3896 (D. Nebraska). Before Circuit Judges Arnold, Fagg, and Colloton. Opinion by Colloton. PUBLISHED.

Brown was convicted of conspiring to distribute crack cocaine. The GOVERNMENT appeals Brown’s 240 month prison sentence. In a previous appeal, the Eighth Circuit affirmed Brown’s convicted, but remanded the case for resentencing in light of U.S. v. Booker, 414 F.3d 976 (8th Cir. 2005).

"On remand, the District Court held a sentencing hearing, and renewed its findings from the first sentencing hearing that Brown’s total offense level was 40, derived from a base offense level of 38 for at least 1.5 kilograms of cocaine base", "and a two-level adjustment for possession of a firearm. At that hearing, the court also sustained Brown’s objection to an adjustment for role in the offense, saying it did so "in view of the Apprendi and Blakely decisions." At the second hearing, the government failed to renew "its contention that a role adjustment should be applied." The District Court reduced Brown’s criminal history category from IV to II, because the court decided that it was "overstated".

Considering all of these factors, Brown’s advisory guideline range was 360 months to life imprisonment. The District Court departed downward from the advisory range and sentenced Brown to 240 months imprisonment. The District Court reasoned that although the jury found a conspiracy to distribute 1.5 kilograms based upon the cooperating witnesses testimony of the quantity that each had trafficked, this finding assumes that the witnesses memories as to quantity were accurate and that they dealt this quantity of cocaine only with Brown. For this reason, the court isn’t required to be bound by the drug quantity found by the jury in determining a sentence.

In it’s appeal, the government argues that the District Court’s 10 years downward departure from the minimum "advisory Guidelines range is unreasonable in light of statutory factors in 18 U.S.C. §3553(a)."

The Eighth Circuit reviewed the reasonableness of the extent of a downward variance under the abuse of discretion standard. Claiborne requires that a District Court, when sentencing outside the Guidelines range, "must give an "appropriate justification" with respect to the factors set forth in §3553(a) to establish the reasonableness of the sentence." In the instant case, the District court cited witness credibility questions as justification to depart downward. Moore assures the District Court has the ability to consider the credibility of witness’s testimony, in its entirety or partially, when determining the advisory Guidelines and considering relevant factors.

The Eighth Circuit held that the District Court’s departure from the advisory Guidelines range, based upon witness credibility, was unreasonable under the circumstances of this case, because it appears to be internally inconsistent.
1) The jury determination of drug quantity was used to determine Brown’s base offense level of 38. The jury determination was based upon witness testimony.
2) Varying from this range because the witness’s are not credible would contradict the court’s own credibility finding made in determining the advisory range.
VACATED and REMANDED for resentencing.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

July 12, 2006, Slip Opinions. Four criminal cases.

U.S. v. W.B., No. 06-1552. (D South Dakota). Before Circuit Judges Bye, Lay, and Riley. Opinion by Circuit Judge Bye. PUBLISHED.

"W.B. appeals his conviction by bench trial of being a juvenile delinquent as a result of his aggravated sexual abuse of a minor, arguing testimony by a forensic interviewer concerning the victim’s out-of-court statements should not have been admitted under Federal Rule of Evidence 807."

Victim was the government’s first witness and testified regarding the sexual abuse and that she had never before or since "been so touched." The government’s second witness was the forensic interviewer. After the government established a foundation for her testimony, the forensic interviewer testified as to the victim’s statements to her during a 2005 interview and provided the District Court with a videotape of the interview. After reviewing the videotaped interview, the District Court found that the videotape established a foundation for the expert witness testimony.

The Eighth Circuit held that the victim’s testimony alone was enough to convict W.B. and that the forensic interviewer’s testimony was proper, but unnecessary. Due to the victim’s fear and reluctance to testify more clearly, it was proper for the District Court to allow the forensic interviewer to testify.
AFFIRMED.

U.S. v. Michael Nelson, No. 05-3865. (D. South Dakota). Before Circuit Judges Smith, Heaney, and Gruender. Opinion by Circuit Judge Heaney. PUBLISHED.

"Nelson appeals the District Court’s imposition of a twenty-four month sentence of imprisonment following Nelson’s violation of terms of his supervised release.", stemming from a conviction for conspiracy to manufacture marijuana. At sentencing for the conspiracy offense, Nelson received a 36 month downward departure for "substantial assistance to the government, to be followed by four years of supervised release."

U.S. Probation Office filed a petition to revoke Nelson’s supervised release because he had tested positive for controlled substances on four separate occasions. Nelson was offered treatment, but declined. A search of Nelson’s home "uncovered approximately thirty urine test kits."

The Eighth Circuit held that the imposition of the sentence was within the District Court’s discretion. At sentencing, the District Court made it clear that this sentence was necessary to deter Nelson from further criminal activity. AFFIRMED.

U.S. v. Virgil Bryant, No. 05-1792. (D. Minnesota). Before Circuit Judges Colloton, Beam and Hansen. Per Curiam. UNPUBLISHED.

Bryant appeals "the District Court’s order committing him to the custody of the Attorney General under 18 U.S. C. §4245, which provides for the involuntary hospitalization of an imprisoned person suffering from a mental disease or defect, until treatment is no longer needed or the expiration of the inmate’s sentence, whichever comes first."

At the District Court hearing, the government submitted a report prepared by mental health professionals involved with Bryant’s care at FMC Rochester, MN. These mental health professionals diagnosed psychotic disorder, substance abuse (in remission), and antisocial personality traits which will likely intensify without treatment. These mental health professionals believe that Bryant’s symptoms will improve with treatment, unfortunately they do not believe that Bryant will accept said treatment.

The Eighth Circuit held that based upon the report of the mental health professionals, the District Court’s finding that Bryant be involuntarily committed for mental health treatment was not clearly erroneous. AFFIRMED.

U.S. v. Kevin Michael Dieatrick, No. 05-1279. (S.D. Iowa). Before Circuit Judges Riley, Magill, and Gruender. Per Curiam. UNPUBLISHED.

Dieatrick pleaded guilty in District Court to the use of a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, which, in the instant case, has a mandatory minimum sentence of 10 years in prison. "Before sentencing, however, the government filed a substantial-assistance downward-departure motion under 18 U.S. C. §3553(e) and U.S.S.G. §5K1.1 and recommended a sentence of 96 months in prison." Despite the government’s request for a 96 month prison sentence, Dieatrick was sentenced by the District Court to 72 months in prison and 3 years of supervised release.

Dieatrick’s counsel filed a motion to withdraw and an Anders brief arguing that the court "unreasonably denied a departure beyond 70 months because 1) the victim and her mother requested leniency, 2) Dieatrick’s cooperation with the government led to the prosecution of other involved in the offense, 3) Dieatrick served 26 months of "hard time" pending sentencing, and 4) Dieatrick was not a distributor of pornography."

Dieatrick filed a pro se brief arguing that 1) the District Court did not verify that he had read the presentence investigation report and should not have sentenced him without said verification. Fed. R. Crim. P. 32(i)(1)(A), and 2) during an in-chambers sentencing conference, the government engaged in prosecutorial misconduct by presenting an inflated view of Dieatrick’s codefendant's sentencing possibilities, upon which the court relied in determining a "fair and just" sentence for Dieatrick.

As to counsel’s argument, the Eighth Circuit reviewed Dieatrick’s sentence for reasonableness and found that the District Court considered all factors of Dieatrick’s offense, his extensive cooperation with the government and his criminal history. The Eighth Circuit held that there is no evidence that the District Court based Dieatrick’s sentence upon any improper or irrelevant factor.

As to Dieatrick’s pro se arguments, the Eighth Circuit held that 1) the record reflects that counsel verified reading the entire PSR to Dieatrick, who neither disputed that fact nor requested a continuance. This argument is without merit. 2) There is not indication of prosecutorial misconduct. 3) "Assuming arguendo the prosecutor’s statements in the judge’s chambers were improper, there is no indication the court considered these statements at sentencing so as to deprive Dieatrick of a fair proceeding."

The Eighth Circuit found no other non-frivolous issues. Counsel’s motion to withdraw granted.
AFFIRMED.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

July 11, 2006, Slip Opinions. Four criminal cases.

U.S. v. Mark T. Davis, No. 05-3738. (W. D. Missouri). Before Circuit Judges Arnold, Smith, and Magnuson. Opinion by Arnold. PUBLISHED.

Davis pleaded guilty to receiving child pornography, but at sentencing moved to withdraw his plea. The District Court held that Davis’s motion lacked a fair and just reason to withdraw the plea, and denied his motion.

Davis appeals 1) the District Court’s ruling on his Motion to Withdraw his plea., and 2) "a condition of supervised release forbidding him from having any unsupervised contact with minors", which, if affirmed, would prevent Davis from having any unsupervised contact with his own daughter.

Davis was represented by retained counsel at his plea hearing, during which Davis indicated on the record that he was satisfied with counsel’s services. Following the plea hearing Davis’s retained counsel disappeared. A hearing was scheduled to address the issue of Davis’s missing attorney, and retained counsel, surprisingly, failed to appear at the "Where’s Waldo?" hearing. The District Court appointed the Federal Public Defender’s office to represent Davis.

At sentencing, Davis moved to withdraw his guilty plea which would allow him to challenge
1) the admissibility of the prosecutions evidence, and
2) the admissibility of the witness statements to be used by the prosecution at trial.
The District Court denied Davis’s motion to withdraw.
On appeal, Davis argues "for the first time" that the District Court erred in denying his Motion to Withdraw Plea because 1) the disappearance of his retained counsel, and 2) retained counsel’s "failure to seek suppression of the statements and evidence" against Davis, "amounted to ineffective assistance of counsel".

The Eighth Circuit noted that ineffective assistance of counsel claims are "generally not a basis for direct appeal", and instead reviewed the denial of Davis’s motion for abuse of discretion, and held that abuse of discretion did not occur. Conviction Affirmed.

As to Davis’s untimely challenge to the condition of supervised release, the Eighth Circuit reviewed it for plain error, citing the lack of evidence that "Davis has ever sexually abused a child or that he would try to abuse his own daughter once released from prison."
The Eighth Circuit held that courts should not impose special conditions of supervised release as a matter of course, as occurred in Davis’s case, and therefore the District Court erred. Remanded to amend the special condition of supervised release to allow Davis to have unsupervised contact with his own children.

Circuit Judge Smith dissented on this point citing U.S. v. Crume, 422 F.3d 728, 734 (8th Cir. 2005), because 1) all children [including those of the defendant] "are members of the public that the terms of the supervised release seek to protect", 2) Davis is not barred from seeing his daughter, 3) the provision can be modified in the future, 4) According to Mickelson, it is not necessary to prove that Davis personally inflicted child sexual abuse to support restrictions on access to children, and 5) among other types of child pornography, Davis possessed short movies depicting a variety of sexual acts, including acts of sexual bondage with children and images depicting victims under the age of 12.
Affirmed in part, Remanded in Part.

U.S. v. Patricio Sandoval-Rodriguez, No. 05-3589. (S.D. Iowa). Before Circuit Judges Wollman, Hansen, and Benton. Opinion by Circuit Judge Hansen.
PUBLISHED.

Sandoval was found guilty by a jury of conspiring to distribute cocaine and marijuana and of being an illegal alien in possession of a firearm. Sandoval pleaded guilty to a third charge of illegal reentry into the U.S. Sandoval appeals the conviction and 200 months sentence, challenging
1) the District Court’s denial of "his motion to suppress evidence obtained pursuant to the search warrant because the warrant application contained material misstatements by the affiant" Franks
2) the District Court’s refusal to exclude the testimony of a government witness who was not disclosed until 1 business day before the start of the trial.
3) the District Court’s imposition of a two level enhancement for possessing a dangerous weapon in connection with the drug conspiracy conviction, arguing that it is a Sixth Amendment violation.
4) the 200 month sentence as unreasonable

The Eighth Circuit held;

1) that after removing the material misstatements from the warrant application, the remaining facts more than support a finding of probable cause as required by Franks. The District Court properly denied this motion.
2) that Brady only requires that government witnesses be disclosed prior to the end of a trial. In the instant case, the material was offered by the government, a full three days before trial, therefore there was not a Brady violation.
3) The Supreme Court remedied Sixth Amendment violations by making the Sentencing Guidelines advisory, therefore the District Court did not violate Sandoval’s Sixth Amendment rights.
4) that the sentence imposed by the District Court was within the advisory Guidelines range and is reasonable. FFIRMED.

U.S. v. Yureko Suntaun Johnson, No. 05-1353. (S.D. Iowa). Before Circuit Judges Arnold, Bye, and Smith. Unpublished. PER CURIAM.

Johnson pleaded guilty to conspiring to distribute and possess with intent to distribute a mixture containing cocaine base; distributing a detectable amount of crack; distribution 5 grams or more of crack; possessing a detectable amount of crack with intent to distribute it; and being a felon in possession of a firearm. The District Court held a bench trial to determine drug quantity and found "beyond a reasonable doubt that Johnson possessed with intent to distribute well in excess of 50 grams of crack". Johnson received the statutory minimum sentence of 240 months in prison with concurrent supervised release terms with the highest set at 10 years.
On appeal, Johnson’s counsel filed and Anders brief and Motion to Withdraw, arguing that the District Courts’s determination of drug quantity relied upon a government witness who lacks credibility. Johnson filed a motion to appoint new counsel.

The Eighth Circuit held that under U.S. v. Gary, 341 F.3d 829, 835 (8th Cir. 2003), "the District Court’s determination of witness credibility is virtually unreviewable on appeal". Johnson was sentenced to the mandatory minimum sentence according to the Guidelines range and according to Lincoln, "sentence within Guidelines range is presumptively reasonable and defendant must rebut that presumption". The were no non frivolous issues. Counsel’s motion to withdraw is granted.
AFFIRMED.

U.S. v. Matthew Meyer, aka Mathew Salem, No. 06-1283. (W.D. Arkansas). Before Circuit Judges Smith, Heaney, and Gruender. Opinion by Circuit Judge Heaney , with whom Circuit Judges Smith and Gruender, join, with the exception of footnote 3.

Meyer pleaded guilty to one count of using a minor to produce a sexually explicit videotape and appeals his 270 month prison sentence which is to be followed by a lifetime of supervised release.

Meyer makes the following arguments:

1) District Court committed error by failing to provide adequate notice that it would be imposing a sentence outside the Guidelines range. Federal Rules of Criminal Procedure 32(h).
2) District Court abused it discretion in its 50% upward departure when sentencing Meyer, by relying significantly on impermissible factors, failed to account for admissible factors, or otherwise committing a clear error of judgment. Haack.

The Eighth Circuit held:

1) Fed. R. Crim. P. 32(h) does not apply to sentences which are imposed outside of the Guidelines Range. U.S. v. Long Soldier, 431 F. 3d 1120, 1122 (8th Cir. 2005).
2) U.S. v. Enriquez, 205 F.3d 345, 348 (8th Cir. 2000) considers a fifty percent departure to be extraordinary and must be accompanied by extraordinary circumstances. Meyer’s offense occurred in 2003 and the District Court applied the 2003 Guidelines in calculating his offense level, which resulted in a Guidelines range of 121 to 151 months, modified by the statutory minimum of 180 months.

Had the 2004 version of the Guidelines applied, Meyer, with an offense level of 43, would have faced a mandatory 360 months sentence. While the 2004 Guidelines cannot be applied retroactively, the 2004 Guidelines help determine the reasonableness of an upward departure. Larrabee, 436 F.3d at 893-94.

The District Court was within its discretion to impose a sentence outside the Guidelines range.
Footnote 3 written by Circuit Judge Heaney addresses disparity in the Eighth Circuit’s disposition of cases appealing downward and upward departures from the Guidelines. 92>3% of upward departures are affirmed, while only 15.8 % of downward departures are affirmed. "It is difficult to accept that §3553(a)(6) is satisfied where a circuit treats sentencing appeals in a consistently disparate manner."
AFFIRMED.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

Case Summaries

2006-07-17T08:46:00.000-05:00

July 10, 2006, Slip Opinions. Three criminal cases.

U.S. v. Franklin Howard Rorebeck aka Frank White, No. 05-3407, (D. Nebraska). Before Circuit Judges Wollman, Beam, and Benton. Opinion by Judge Beam. Per Curiam. Unpublished.

Rorebeck pleaded guilty to conspiring to distribute methamphetamine and was received 210 months in prison and five years supervised release. Rorebeck appealed arguing that the District Court relied on "Rorebeck’s overstated criminal history" in denying a downward departure from the advisory Guidelines range. Counsel filed an Anders appeal brief.

The Eighth Circuit held that the record does not reflect an unconstitutional motive on the District Court’s part and is therefore generally unreviewable. U.S. v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005); U.S. v. Booker, 543 U.S. 220 (2005); and U.S. v. Dabney, 367 F.3d 1040, 1044 (8th Cir. 2004).

AFFIRMED.

U.S. v. Quentin C. Adams, No. 05-2760, (W.D. Missouri). Before Circuit Judges Riley, Magill, and Guender.

Per Curiam. Unpublished.

After a jury trial, Adams was found guilty of one count of conspiring to distribute more than 50 grams of cocain base, two counts of possession with intent to distribute more than 5 grams of cocaine base, and one count of aiding and abetting the distribution of cocaine base. Adams was sentenced to a total of life imprisonment and 8 years supervised release.
Counsel filed an Anders brief claiming abuse of discretion by the District Court because the court allowed evidence of Adams’ 2000 Missouri conviction for second-degree drug trafficking under Federal Rules of Evidence 404(B). Counsel argued that the 2000 conviction was "too remote in time from the instant offense. Counsel also moved to withdraw.
The Eighth Circuit held that abuse of discretion did not occur. U.S. v. Love, 419 F.3d 825,828 (8th Cir. 2005).

Adams filed a pro se supplemental brief arguing insufficient evidence to support any of his convictions.

The Eighth Circuit held that the evidence is sufficient. U.S. v. White, 241 F.3d 1015, 1021-22 (8th Cir. 2001); U.S. v. Rodgers, 18 f.3d 1425, 1429 (8th Cir. 1994); U.S. v. Ellefson, 419 F.3d 859, 863 (8th Cir. 2005).

AFFIRMED.

U.S. v. Sitha Savatdy, No. 05-3375, (D. S. Dakota). Before Circuit Judges Wollman, Beam, and Benton. Opinion by Judge Beam.

PUBLISHED.

After a lengthy investigation into methamphetamine distribution, Savatdy, and three co-conspirators, Valadez, Khaoone and Amphavannasouk were indicted for one count of conspiring to distribute 500 grams or more of methamphetamine. A fifth co-conspirator, Ed, who had already been convicted and sentenced (168 months) for conspiracy to possess with intent to distribute methamphetamine, testified against the other four members of the group.
Savatdy and three co-conspirators were convicted after a jury trial. Savatdy subsequently appeals this conviction, based upon these two issues:

1) whether there was sufficient evidence to support the conspiracy conviction
2) whether the district court erred in refusing to suppress post-Miranda statements made by Savatdy.

At the time of his arrest, Savatdy participated in a videotaped interrogation. It is unclear if Savatdy waived his Miranda rights. Savatdy did indicate his understanding of these rights, but neither signed nor initialed any document indicating that he understood his rights, or waived them. The evidence against Savatdy consisted mostly of "Ed’s testimony and Savatdy’s own statements. "Ed" was Savatdy’s connection to his co-conspirators.
The Eighth Circuit found that in order to prove that Savatdy conspired to distribute methamphetamine, the government must prove the following, U.S. v. Alexander:

1) that there was an agreement to distribute methamphetamine
2) that Savatdy knew of the conspiracy
3) that Savatdy intentionally joined the conspiracy

Following the verdict, the District Court concluded that the jury must have found "Ed’s testimony to be truthful", because the was limited evidence to otherwise support only a conspiracy among the three defendants on trial."

Conviction Affirmed.

The Eighth Circuit reviews for clear error and legal conclusions de novo the District Court’s denial of Savatdy’s motion to suppress evidence. Both the District Court and the Eighth Circuit reviewed the videotaped interrogation in light of Miranda and decided that Savatdy "knowingly, voluntarily and intelligently waived his Miranda rights, and his statements during the interview were voluntary."

AFFIRMED.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

July 7, 2006 Slip Opinions. Two criminal cases.

U.S. v. Robert McFarland, No. 05-4061 (D. Nebraska). Before Circuit Judges Smith, Heaney, and Gruender. Per Curiam. Unpublished.

Robert McFarland was involved in a scheme to defraud financial institutions by cashing checks drawn on fictitious accounts. To further the conspiracy, he obtained a driver’s license using the name of a co-conspirator’s minor son. Another co-conspirator then wrote a check from a fictitious account with McFarland’s alias as the payee. McFarland then cashed the check using his false identification.

He was indicted on one count of conspiracy to commit bank fraud (18 U.S.C. § 1344) and one count of aggravated identity theft (18 U.S.C. § 1028A). He agreed to plead guilty to the conspiracy offense and cooperate against his co-conspirators. The aggravated identity theft charge, which would have carried an additional 24-month mandatory consecutive prison term, was dismissed. McFarland was sentenced to 18 months in prison. He appeals his sentence, arguing that the district court erred by refusing to grant him a downward departure and that the sentence was unreasonable.

McFarland contends that the district court erred in not imposing a lesser sentence but the Eighth Circuit finds no error. He had a lengthy and consistent criminal history which stretched back to when he was only nine years old. While some of his convictions were for minor offenses, others included assault, theft, receiving stolen property, and forgery. Given his criminal history, his argument that he was entitled to a sentence below the guidelines range was without merit. The court noted that the district court clearly recognized its authority to depart but chose not to and its discretionary decision is unreviewable.

McFarland next asserts that his sentence is unreasonable in light of the § 3553(a) sentencing factors. However, a sentence is presumed reasonable when the district court properly considers the defendant’s circumstances, the § 3553(a) factors, and the advisory guidelines range when determining the sentence. U.S. v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006). A sentence within the correctly calculated guidelines range is presumptively reasonable. U.S. v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2006). McFarland's guideline range was 18-24 months and he was sentenced to 18 months in prison. Therefore, the court finds no error. Affirmed.

U.S. v. David S. Detweiler, No. 06-1475 (D. Nebraska). Before Circuit Judges Bye, Lay, and Riley. Opinion by Judge Riley.

Detweiler appeals his conviction for conspiracy to distribute and possess with intent to distribute 500 or more grams of meth. He claims that the evidence was insufficient to prove one large conspiracy, and that since there was no single conspiracy involving 500 grams or more of meth, the jury’s drug quantity finding was unsupported by the evidence.

The Eighth Circuit concludes that there was sufficient evidence to prove Detweiler knowingly participated in a conspiracy to distribute meth. He repeatedly purchased and sold meth to regular customers and made one-time sales to others. Some of those customers sold meth to others. He occasionally acquired drugs on credit and at times provided drugs to others on credit. The evidence showed an agreement to distribute meth involving the same individuals in the same locations throughout the time period, thus demonstrating a single, large conspiracy composed of several individuals in which Detweiler was a consistent member.

The court held that the jury properly determined the conspiracy involved 500 grams or more of meth. Detweiler purchased meth for resale on an average of once ounce, several times a week, for a period of about four months. The evidence demonstrated the conspiracy involved 500 grams or more of methamphetamine. Affirmed.

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

July 5, 2006 Slip Opinions. Two criminal cases.

U.S. v. Ronnie C. Gaines, No. 04-1103 (W.D. Missouri). Before Circuit Judges Melloy, Lay, and Colloton. Per Curiam. Unpublished.

Gaines was charged with two counts of possession of a controlled substance with intent to distribute and two counts of assaulting law enforcement officers. He challenges the district court’s denial of is motion to withdraw his guilty plea, arguing that he is entitled to a new sentencing hearing.

Prior to sentencing, defense counsel informed Gaines that the base offense level of 26 contemplated in his plea agreement did not take into account his prior convictions and several enhancements, and counsel moved to withdraw from representing Gaines. Gaines then sought to withdraw his guilty plea and proceed to trial, arguing that his counsel had not properly advised him of the agreement’s contents. He asserted that the allegations in the indictment were not true, and he was innocent. At a hearing, the district court found no fair and just reason to withdraw the guilty plea, denied the motion, and sentenced Gaines to 210 months in prison.
Gaines’s current counsel moved to withdraw and filed an Anders brief, arguing abuse of discretion in the denial of Gaines’s motion to withdraw his plea. Gaines filed a supplemental pro se brief arguing that all three of his attorneys had provided ineffective assistance of counsel, and that the government breached his plea agreement by failing to recommend a three-level reduction for acceptance of responsibility. The Eighth Circuit denied counsel’s motion to withdraw, and requested supplemental briefs from the parties addressing the claim that the government breached the plea agreement and the reasonableness of the sentence in light of Booker.

Held: The district court did not abuse its discretion in denying Gaines’s motion to withdraw his guilty plea as Gaines failed to show a fair and just reason for doing so. The court found that Gaines was fully apprised that he could not withdraw his plea if he disliked the sentence to be imposed, and the he was not prejudiced by any failure of his counsel at his plea hearing.
The court was not persuaded by Gaines’s argument that he is entitled to resentencing. The court found that Gaines waived this argument because he failed to object at the time the government recommended a two-level reduction for acceptance of responsibility rather than the three-level reduction set out in the plea agreement. The court stated that even if it reached the issue under a plain error analysis, Gaines would not be entitled to relief as he failed to show the government’s breach of the agreement affected his substantial rights. U.S. v. Jensen, 423 F.3d 851, 854 (8th Cir. 2005). Whether or not the government recommended a third-level reduction for acceptance, the district court was not bound by that recommendation under the plea agreement in light of the fact that Gaines had declared his innocence and attempted to withdraw his plea.

As for Gaines’s challenge based on Booker, the Eighth Circuit held that it is now clear that the district court erred by sentencing Gaines to a mandatory guidelines system, but because Gaines did not raise this objection in the district court, it can review his claim only for plain error. The record did not establish that Gaines would have received a more favorable sentence had the court considered the guidelines as advisory. Gaines received a sentence at the low end of the guideline range, and the court indicated that the 210-month sentence was appropriate. Applying Pirani’s plain error analysis, the court concluded that Gaines was not entitled to Booker relief.
The court stated that Gaines’s argument that his three attorneys were ineffective is properly addressed in a § 2255 proceeding rather than on direct appeal.

The judgment of the district court is affirmed.

U.S. v. Louis Pierre Village Center, No. 06-1549 (D. N.D.). Before Circuit Judges Smith, Heaney, and Gruender. Opinion by Judge Gruender.

Louis Pierre Village Center ("Village Center") pled guilty to being a felon in possession of a firearm and to possessing an illegal firearm and was sentenced to 84 months imprisonment, the bottom of the guidelines sentencing range. On appeal, he contends that 26 U.S.C. § 5861(c) is an unconstitutional exercise of Congress’s authority to regulate commerce or to tax, challenges the propriety of applying the statute, and the validity of his sentence.

Held: Regardless of whether § 5861(c) is a valid exercise of Congress’s commerce clause authority (an issue the court does not address here), it is a valid exercise of Congress’s taxing authority. The Eighth Circuit has previously upheld § 5861(d) on this basis because it was passed in "aid of a revenue purpose." U.S. v. Hall, 171 F.3d 1133, 1142 (8th Cir. 1999). In Hall the court reasoned that § 5861(d) aided the revenue purpose because criminalizing possession of an unregistered firearm would force manufacturers to register firearms and would help identify the firearm maker liable for the tax. Accordingly, the court rejects Village Center’s argument that Congress lacked the authority to pass § 5861(c).

The court was not persuaded by Village Center’s argument that even if § 5861 does not exceed Congress’s taxing power, it is invalid as applied to him because it was impossible for him to register the sawed-off shotgun that he possessed. The court held that felons can comply with statutes proscribing possession of a firearm and § 5861's registration and taxation requirements by simply not possessing the firearm. Even if a firearm cannot be registered, an individual could still comply with the law by not taking possession of it.

Lastly, Village Center argues that his sentence cannot be sustained for two reasons: 1) First, he argues that the district court was unaware of its authority to grant him a downward departure. Having carefully read the transcript, the court held that the district court was aware of its ability to grant a downward departure, and its refusal to do so is unreviewable. 2) Village Center next contends that the district court’s calculation of his sentence based on prior convictions that were not proven to a jury or admitted is unconstitutional and violates his Sixth Amendment rights. The court has previously considered and rejected this argument. The district court may make fact findings affecting sentence.

Village Center’s conviction and sentence is affirmed.

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

July 3, 2006 Slip Opinions. Three criminal cases.

U.S. v. Mike Chase, No. 05-2070 (D. S.D.). Before Chief Judge Loken, and Circuit Judges Wollman and Riley. Opinion by Judge Wollman

Mike Chase appeals from the judgment and sentence of the jury’s verdict of guilty for voluntary manslaughter, arguing the following issues:

1) District court error in denying his motion for acquittal. The government presented evidence that Chase approached the victim, who was unarmed, and stabbed him numerous times. It also offered testimony that the victim was not part of the rival group that Chase feared was going to attack him, but was instead a peacemaker, and that Chase had approached the rival group and could have avoided the encounter. The evidence was sufficient to support the conviction.

2) District court error in excluding exculpatory evidence probative of his claim of self defense.
Chased tried to introduce evidence of prior attacks on himself and a family member by members of the rival group. The district court excluded this evidence, pointing to the absence of any authority that would support admission of evidence of an assault against a defendant by a party who was not the victim. The district court also was concerned that the proffered evidence would be prejudicial, confusing, and misleading; therefore the evidence was excluded under Rule 403. Chase argues that the evidence would have assisted the jury in evaluating his state of mind at the time he was confronted by the rival group. Held: Whatever probative value the evidence may have had in bearing upon Chase’s state of mind, it was properly determined by the district court to be outweighed by its potential to confuse and distract the jury. At any rate, Chase was allowed to testify about his history of violence with the rival group and thus was able to develop his claim that he acted out of fear for his life in stabbing the victim.

3) District court error in excluding a witness’s statement, arguing the statement should have been admitted under Rule 804(b)(3) or 807. The district court determined that the only part of the witness’s statement that inculpated her was her admission that she was the driver of the vehicle that plowed into the crowd. The Eighth Circuit agrees with this assessment, and further agrees that this fact was irrelevant to any of the issues in Chase’s trial. The court also agrees with the district court that the witness’s statement lacked circumstantial guarantees of trustworthiness equivalent to the hearsay exceptions provided for in Rules 803 and 804. The witness was a suspect in an assault case as the result of her use of an automobile to run down an individual of the rival group, and thus she had motive to implicate others and downplay her role in the incident.

4) The prosecutor’s rebuttal closing argument improperly appealed to the emotions and prejudices of the jury and denied Chase his Fifth Amendment right to a fair trial. Held: Even if the prosecutor’s comments were improper, they did not prejudicially affect Chase’s substantial rights so as to deprive him of a fair trial. The district court immediately gave a curative instruction and Chase failed to demonstrate that the instruction was inadequate, and he did not request further instruction by the court. The comments constituted an isolated event during the course of the trial and were not so inflammatory or egregious as to warrant reversal.

5) District court error in departing upward pursuant to §§ 5K2.6 and 5K2.8. Chase concedes that he used a weapon to stab the victim, but argues that the guideline provision for voluntary manslaughter already takes into account the use of a weapon or dangerous instrumentality, rendering a § 5K2.6 departure inappropriate. Held: Eighth Circuit agrees with the Seventh and Ninth Circuits’ analysis and concludes that a § 5K2.6 departure may be appropriate when the underlying offense is voluntary manslaughter. The voluntary manslaughter guideline does not mention the use of weapons or dangerous instrumentalities, nor are weapons or dangerous instrumentalities inherent in the offense of voluntary manslaughter. In light of Chase’s use of a weapon in killing the victim, the court held that the district court did not err in granting the § 5K2.6 departure.

As to the § 5K2.8 departure, the court found Chase’s conduct to be relatively egregious. He stabbed the unarmed victim at least five times, puncturing his organs. He then proceeded to kick the immobilized victim’s prostate, a gratuitous infliction of injury. Chase then fled the scene, leaving the victim to bleed from the wounds that resulted in his death. Given these circumstances and the fact that Chase admitted he had a history of violence with the rival group, the court held the district court did not abuse its discretion in granting the upward departure.
6) Chase’s final argument is that the 96-month sentence imposed is unreasonable. Held: Chase’s sentence represents only an 18% variance from the guidelines range of 57-71 months. This departure is not extraordinary, and the court concludes the sentence is reasonable in light of the nature and circumstances of the offense and Chase’s history of violence.
The judgment of the district court is affirmed.

U.S. v. Leo Adams, No. 05-2712 (E.D. Missouri). Before Chief Judge Loken, and Circuit Judges Bowman and Bye. Opinion by Judge Bowman.

A jury found Leo Adams guilty of conspiracy to distribute drugs and sentenced him to 360 months in prison. On appeal, the Eighth Circuit affirmed the conviction but remanded for resentencing in accordance with Booker. On remand, the district court imposed the same sentence. Adams appeals, arguing that the district court erred in calculating the amount of drugs involved in the offense.

Held: The district court determined that the heroin that was shown to have been purchased for distribution during Adams’s participation in two conspiracies was relevant conduct that should be considered in calculating his base offense level. The evidence showed that Adams purchased heroin for distribution from the Serrano co-conspirators until he and the Serrano brothers had a falling out over money, at which time Adams joined the Rush-Bey conspiracy for a source of heroin. Considering the similarity, regularity and temporal proximity of the charged and uncharged conduct, the Eighth Circuit found no error in the district court’s finding that Adams’s dealings in at least 30 kilos of heroin constituted conduct relevant to his offense and therefore should be considered in establishing his base offense level.

Adams also argues that the district court committed a constitutional ex post facto violation by applying the Guidelines as advisory rather than mandatory. Held: Since the briefing in this case, the Eighth Circuit decided U.S. v. Wade, 435 F.3d 829 (8th Cir. 2006), which noted inter alia that the application of the remedial portion of Booker, even to pre-Booker conduct, was mandated by the Supreme Court and the Supreme Court would not direct the court to violate the Constitution. Accordingly, the Eighth Circuit rejects Adams’s ex post facto argument.
Post-Booker, the court reviews an advisory Guidelines sentence for reasonableness under § 3553(a). Adams’s sentence, being within the advisory Guidelines range, is presumptively reasonable, and Adams has not shown that the district court failed to consider a relevant factor, gave significant weight to an irrelevant factor, or committed a clear error in judgment. The sentence is affirmed.

U.S. v. Rigoberto Valle Cruz, No. 05-3258 (D. Nebraska). Before Chief Judge Loken, and Circuit Judges Bowman and Smith. Opinion by Judge Bowman.

The government appeals from the district court order granting suppression motions filed by Rigoberto Valle Cruz and Angelina Alford. The government challenges three of the district court’s factual findings: 1) that the highway patrol trooper who stopped the defendant Valle Cruz’s vehicle did not receive information about Alford’s criminal history until after her arrest; 2) that Alford "was almost immediately told by the officer to ‘stay here, don’t go anywhere;’" and 3) that the initial search of the vehicle followed the stop by two hours, instead of less than one. Alford concedes the errors, but she and Valle Cruz contend that the errors did not determine the issue of probable cause. After reviewing the videotape of the trooper who made the stop, the Eighth Circuit agrees that the district court’s findings were clearly erroneous.
Held: A probable-cause determination is made after looking at the totality of relevant circumstances and applying a "common sense approach." U.S. v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005). Ultimately, probable cause exists in a case such as this when a reasonably prudent person would look at the facts and circumstances and believe "that contraband or evidence of a crime will be found" if the vehicle were to be searched. Ornelas v. U .S., 517 U.S. 690, 693 (1996).

After a careful review, the Eighth Circuit concluded that the collective facts and circumstances in this case were such that the trooper had developed sufficient probable cause to search Alford’s vehicle: the trooper found Alford to be sleepy, and he suspected illegal drug use when he first made contact with her; Valle Cruz and Alford separately told inconsistent stories about their trip; and Valle Cruz wanted Alford to leave the scene before the drug-detection dog arrived. The evidence revealed that the trooper did not decide to check the license plate of Alford’s car until it was clear that Valle Cruz did not want the drug dog to sniff Alford’s car. At the time the trooper received the information about Alford’s criminal history, drugs had been found hidden in SUV Valle Cruz had been driving. The court stated that at that moment, the trooper’s knowledge of Alford’s previous criminal drug charges became all the more relevant to the question of probable cause. Moreover, Alford opposed the drug-detection dog’s sniff of her car and interfered to such an extent that the canine handler had to pull the dog away so he would not bite her. Additionally, Alford resisted for several minutes when asked to get out of the car, even locking herself in the car. The court stated by then the trooper’s determination that he had probable cause to search the car was objectively reasonable. The court held that the district court erred in holding otherwise.

Alford argues that she was seized when the trooper first spoke with her, that the seizure was without reasonable suspicion, and that the seizure was illegal. The Eighth Circuit disagrees. The facts demonstrate that Alford voluntarily pulled her vehicle over to the side of the road, presumably to wait for Valle Cruz, with full knowledge that he had been stopped by law enforcement. Eventually, some ten minutes into the stop, the trooper walked up to Alford’s car to ask questions but did not ask for her identification or any other documentation. But, Alford contends that the trooper’s comment to "sit tight" altered the consensual nature of the encounter. The Eighth Circuit does not agree. The court held that the trooper comment was not spoken as a command, but was to be understood by a reasonable person to mean "be patient while we finish up here," not "you are being detained." The court concluded that the comment, when taken in context, was not the sort of "physical force or show of authority" that would have converted the encounter into a seizure. By the later time when Alford was seized by the trooper, there had developed, at the very least, a reasonable suspicion of criminal activity.

Accordingly, the Eighth Circuit affirms the holding of the district court on the issue of Alford’s seizure, but reverses the order granting suppression and remands for further proceedings.

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

Case Summaries

2006-07-05T10:38:00.000-05:00

June 30, 2006 Slip Opinions. Three criminal cases.

U.S. v. Louis Black Lance, No. 05-3117 (D. S.D.). Before Chief Judge Loken, and Circuit Judges Lay and Smith. Opinion by Judge Loken.

Black Lance was indicted for assault with a dangerous weapon (shod feet) and for assault resulting in serious bodily injury to his girlfriend. At trial, Little Elk testified that Black Lance kicked her in the stomach causing her injuries. On cross examination, defense counsel brought out inconsistencies in Little Elk’s previous descriptions of the incident and the fact that she and Black Lance were fighting each other. In the midst of cross examination, Little Elk began crying and stated "I can’t do this anymore." Based on the victim’s testimony, the district court granted a motion for acquittal stating that "no reasonable jury would ever convict this defendant based on her testimony." The court terminated the trial. The court dismissed the government’s case with prejudice on the ground that the victim’s inability to continue her testimony infringed on the defendant’s Sixth Amendment right of confrontation, and retrial was not a satisfactory remedy because "the alleged victim’s testimony is totally lacking in consistency and reliability."
The government appeals, arguing that the mid-trial dismissal must be treated as a mistrial because Fed. R. Crim. P. Rule 29 authorizes an acquittal only after the close of the government’s case. The Eighth Circuit responds that the Supreme Court decision in Fong Foo v. U.S., 369 U.S. 141 (1962) is controlling. Fong Foo established that the protection of the Double Jeopardy Clause turns on whether the judge or jury has resolved one or more factual elements of the government’s case, not on when that resolution occurs. The Eighth Circuit held the district court’s mid-trial order dismissing the case with prejudice was in effect an acquittal and 18 U.S.C. § 3731 precludes an appeal by the government. Government's appeal is dismissed.

U.S. v. Manuel Villareal-Amarillas, Nos. 05-3312, 05-3536, 05-3539 (W.D. Missouri). Before Circuit Judges Wollman, Bowman, and Riley. Opinion by Judge Riley.

Villareal-Amarillas and Juan Gonzalez each pled guilty to conspiracy to distribute in excess of 500 grams of meth. Villareal-Amarillas was sentenced to 328 months; Gonzalez to 151 months. The government appeals the sentences, arguing the district court erred in its drug quantity findings and its failure to rule on the credibility of the government’s witnesses.

The government contends the district court erred in setting the base offense levels at 32 because the court did not make specific factual findings supporting its relevant drug quantity determination. The Eighth Circuit held that the relevant drug quantity was a disputed issue, and the district court had an obligation under Rule 32(i)(3)(B) to make specific factual findings supporting its ruling on the disputed matter, unless the matter would not affect sentencing or would not be considered in sentencing. The court held that the disputed matter absolutely would affect sentencing because the relevant drug quantity determines the Guidelines base offense level. The government’s four witnesses gave substantial testimony regarding drug quantities, but the district court neither indicated which portions of the testimonies it found credible, nor specified the basis for its drug quantity findings. The court held this omission was plain error, resulting in potentially unreasonable sentences which required reversal.

Villareal-Amarillas also cross-appeals his sentence enhancements for leadership role in the offense and for possession of a firearm in connection with the underlying drug offense. He argues the district court violated Booker by enhancing his sentence based on a preponderance of the evidence standard, rather than presenting the case to the jury for a determination based on a reasonable doubt. The Eighth Circuit finds this argument is unavailing. The court has consistently held that judicial factfinding using a preponderance standard does not violate Booker or the Fifth and Sixth Amendments. The court found that based on corroborated testimony, the district court correctly imposed the leadership enhancement. The court also found that testimony that Villareal-Amarillas possessed semiautomatic pistols and assault rifles supported the district court’s two-level enhancement for possession of a firearm.

The Eighth Circuit vacates Villareal-Amarillas’s and Gonzalez’s sentences, reverses the district court drug quantity findings and base level offense calculations, and remands for resentencing. The court affirms the district court’s imposition of the four-level enhancements for Villareal-Amarillas’s leadership role in the offense, and the two-level enhancement for Villareal-Amarillas’s possession of a firearm in connection with the offense. Because the court remands for resentencing, it did not address Villareal-Amarillas’s contentions the district court clearly erred in its factual findings and imposed an unreasonable sentence , and denies Villareal-Amarillas’s counsel’s motion to withdraw.

U.S. v. Brandon L. Walton, No. 05-4173 (W.D. Missouri). Before Circuit Judges Wollman, Bowman, and Riley. Per Curiam. Unpublished.

Walton appeals from his guilty plea to being a felon in possession of firearms, contending that the district court erred in denying his motion to suppress the firearms found in a motel room in which he was hiding. The Eighth Circuit held that Walton did not have a reasonable expectation of privacy in the motion room because the room was rented by another person. A mere visitor, a person who is not an overnight guest, usually lacks a rightful expectation of privacy when present in the motel room of another. U.S. v. Sturgis, 238 F.3d 956, 958 (8th Cir. 2001). The record showed that Walton was no more than a visitor to the room; he neither checked into nor paid for the room. Therefore, the warrantless search did not violate his Fourth Amendment rights. Affirmed

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

Case Summaries

2006-07-03T20:04:00.000-05:00

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

Case Summaries

2006-06-28T16:58:00.000-05:00

June 28, 2006 Slip Opinions. One criminal case.

U.S. v. Jeffrey Thomas, No. 05-3264 (E.D. Missouri). Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by Judge Arnold.

Thomas was indicted on several counts of mail fraud, wire fraud, money laundering, and bank fraud after several people complained to the authorities that he had taken their money but failed to use it as promised on the construction of their homes. A jury acquitted him on one of the mail fraud counts, but found him guilty on the other charges, and sentenced him to 172 months in prison.

Thomas appeals, arguing that a number of assigned errors require reversal. First, he argues that FBI agents violated his Fourth Amendment rights when they seized unopened mail from his rented mailbox. Held: Evidence showed that Thomas’s failure to make the required payments and to retrieve any of his mail for longer than a year is sufficient to establish abandonment. Abandoned property is outside the scope of fourth amendment protection because its owner has forfeited any expectation of privacy to it. U.S. v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997).

Thomas next argues the district court abused its discretion in adjourning his trial for several weeks in the middle of the government’s case when a juror was injured. Held: The precautions taken by the district court precludes the court from finding any abuse of discretion. When faced with several juror emergencies and conflicts, the court consulted with jurors and the parties to come up with a solution that would allow the trial to continue. Before adjournment, the court reminded the jurors that they were bound by the court’s original instructions, that they were not to discuss the case with anybody, and that they should keep an open mind until the case concluded. Additionally, the Fourth Circuit in a similar case decided that the district court acted within its discretion when it took a mid-trial recess of 32 days.

Thomas also argues error in the admission of business record detailing customer calls to a bank, contending that the conversation log was hearsay. Held: No error detected in the admission of the statements. Thomas did not make an objection to most of what was in the conversation log; he objected to the admission of only one portion of it. Even if the objection had been raised with respect to the entire log, it could not have been sustained. Questions and commands generally are not intended assertions, and therefore cannot constitute hearsay.

Lastly, Thomas challenges the sufficiency of the evidence for several of his convictions, all of which were found wanting. Held: Evidence presented at trial was sufficient for the jury to determine that Thomas’s transactions involved proceeds obtained from ongoing fraudulent activities; that he was in financial distress when he entered into a sales agreement with one of the victims for property he knew the victim could not afford, that the purchase price for the house was grossly inflated, and that he knew the victim’s loan application contained several false statements; and the victim’s loan application materials with the UPS envelopes found in Thomas’s car was sufficient evidence for the jury to find Thomas guilty, where it was foreseeable that UPS would be and was used in furtherance of the attempt to commit mail fraud. For the reasons stated, the Eighth Circuit affirms the judgment of the district court.

June 27, 2006 Slip Opinions. Nine criminal cases.

U.S. v. Nasir Jaleel Rahim, a.k.a. Junero Antonio Smith, No. 05-1573 (D. Minnesota). Before Circuit Judges Murphy, Beam, and Colloton. Per Curiam. Unpublished.

Rahim pled guilty to drug and firearm charges and was sentenced as a career offender under § 4B1.1(a) based in part on a prior state felony conviction for auto theft. He urges the court to revisit its holding that auto theft is a crime of violence. The court refuses to do so, stating that only the court sitting en banc may do so. Affirmed.

U.S. v. Rommel Smith, a.k.a. Ro Sleezy, Nos. 05-2124/2126 (D. Nebraska). Before Circuit Judges Bye, Heaney, and Colloton. Opinion by Judge Bye.

Smith appeals his drug conspiracy conviction, arguing 1) the district court erred by improperly instructing the jury; 2) there was insufficient evidence to support a conviction for conspiracy; and 3) his counsel was ineffective. The government appeals the 204-month sentence, arguing the district court erred by 1) not imposing an obstruction of justice enhancement; 2) improperly determining Smith’s criminal history category overstated his criminal history; and 3) conducting an improper § 3553(a) analysis. The Eighth Circuit affirms the conviction but remands for resentencing.

As to Smith’s arguments, the court held: 1) his substantial rights were not affected by the jury instruction and there was no reversible error in the instructions provided. Even if the jury ignored all the evidence regarding powder cocaine, it still could have attributed over 4 kilos of cocaine base to Smith and convicted him on the offense charged. 2) There was ample evidence Smith pooled his resources with other dealers, cooked cocaine base with his co-conspirators, shared drug suppliers, acted as a go-between for a number of drug purchases, bought and sold cocaine base from shared contacts on a regular basis, and received compensation for allowing drug activities to occur at his home, all with a purpose of distributing powder cocaine and cocaine base. Under the totality of the circumstances, the evidence established a single conspiracy to sell cocaine base from a central location – Smith’s home – with changing parties; it did not establish multiple conspiracies. 3) No exceptional circumstances were found to justify consideration of Smith’s ineffective assistance claim on direct appeal.

Concerning the government’s arguments, the court held the district court erred in not considering whether to impose an obstruction of justice enhancement. The district court’s suggestion that Booker required the prosecution to bring a perjury charge against Smith because the enhancement increased Smith’s maximum sentence by a factor not found by the jury was erroneous. The Eighth Circuit held that Booker did not change how the Guidelines are calculated. In determining the advisory Guideline sentence, the district court must rule on all applicable Guidelines departures and adjustment. Application of an obstruction of justice enhancement is not discretionary if the requisite factual findings are made. Accordingly, the court remanded for resentencing without reaching the government’s challenge to the reasonableness of the sentence imposed.

U.S. v. Plancarte-Vazquez, Nos. 05-2286/2287 (N.D. Iowa). Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by Judge John R. Gibson.

Manuel Plancarte and his son, Isidro Plancarte-Vazquez, appeal their sentences after pleading guilty to conspiracy to distribute meth and possession with intent to distribute meth. The Eighth Circuit affirms Plancarte’s sentence, but vacates Plancarte-Vazquez’s sentence and remands for resentencing.

Plancarte argues that the quantity of drugs attributed to him was clearly erroneous because the government’s main witness, co-conspirator Lori Perez, provided uncertain and inconsistent estimates of the quantities of drugs involved in the conspiracy. The court held that the district court did not err in calculating the amount of drugs attributable to Plancarte. When calculating drug quantity in the context of a narcotics trafficking conspiracy, the sentencing court may consider all transactions known or reasonably foreseeable to the defendant that were made in furtherance of the conspiracy.

Plancarte next argues there was insufficient evidence to warrant the enhancement for being a supervisor or manager of the drug trafficking conspiracy. Lori Perez testified that Plancarte-Vazquez had to get permission from Plancarte to sell drugs to her, that Plancarte would tell her how to conduct her business, and that Plancarte would get upset with his son and cut him off from selling and send him back to Mexico. The court found no clear error with respect to the district court’s role determination and affirms Plancarte’s sentence.

Plancarte-Vazquez challenges the district court’s drug quantity calculation. The Eighth Circuit concluded that the district court committed plain error by reaching a base offense level that was not supported by its drug quantity findings. At sentencing, the district court found Plancarte-Vazquez responsible for at least 10,000 kilos of marijuana equivalent, but then concluded that this amount called for an offense level of 38. However, an offense level of 38 must be supported by a finding of at least 30,000 kilos of marijuana equivalent, while a finding of at least 10,000 kilos would only support a base offense level of 36. Because there is some uncertainty as to the sentence the district court would have imposed if it had applied the correct offense level, the court remanded the case rather than simply correcting the error.

U.S. v. Ty Albert Van Tran, No. 05-2680 (E.D. Arkansas). Before Circuit Judges Murphy, Beam, and Colloton. Per Curiam. Unpublished.

Ty Albert Van Tran pleaded guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of meth and was sentenced to 168 months in prison. Counsel moved to withdraw and filed an Anders brief. Court affirms conviction and sentence without comment.

U.S. v. Mark A. Medearis, No. 05-2991 (W.D. Missouri). Before Circuit Judges Arnold, Lay, and Colloton. Opinion by Judge Arnold.

The government appeals the district court’s sentence of Medearis to five years probation after he pleaded guilty to possession of a firearm by an unlawful user of a controlled substance, possession of an unregistered short-barreled shotgun, and possession of a firearm. The PRESENTENCE INVESTIGATION REPORT calculated the sentencing range as 46-57 months. The district court at sentencing noted the applicable range, but mentioned that many of Medearis’s friends and family members had written the court, contending that Medearis had turned his life around and asking for some form of community alternative to incarceration. The court stated it believed these letters and was convinced that Medearis had been reformed. The court acknowledged the seriousness of Medearis’s offenses, but concluded that incarceration was not necessary to keep Medearis from re-offending.

The government argues that the district court should have given the sentencing guidelines considerable weight when deciding the ultimate sentence that should be imposed. The Eighth Circuit agrees with this argument, since § 3553(a)(4) requires courts to consider the guidelines range when sentencing a defendant. After reviewing the facts of the case, the court concludes that the district court abused its discretion by failing to give the § 3553(a) factors the proper weight, and by not giving proper weight to the seriousness of Medearis’s offenses. The court stated that to impose a sentence of only probation indicates that the district court paid little attention to the seriousness of Medearis’s crimes and what a just punishment for those offenses should be. Finally, the court stated that a sentence of probation fails to meet the requirement that sentences be crafted so as to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." The court concluded that the district court imposed an unreasonable sentence, and vacated the judgment of the district court and remanded for resentencing.

U.S. v. Dale Gaver, No. 05-3725 (D. Nebraska). Before Circuit Judges Colloton, Heaney, and Gruender. Opinion by Judge Colloton.

Gaver appeals the denial of his motion to suppress evidence and his sentence after he conditionally pled guilty to unlawful possession of a firearm by a convicted felon. He claims that police officers violated the Fourth Amendment by failing to knock and announce their presence while serving a warrant to search his residence for controlled substances.

The Eighth Circuit affirms, stating that the recent Supreme Court ruling in Hudson v. Michigan, No. 04-1360, 2006 WL 1640577 (U.S. June 15, 2006), completely disposes of Gaver’s claim. Hudson held that the exclusionary rule does not apply to violations of the knock-and-announce requirement of the Fourth Amendment. Based on this ruling, the court states it need not consider whether the officers acted reasonably by entering without knocking and announcing, because even if there were a violation of the Fourth Amendment, the exclusionary rule would be inapplicable.

Gaver also argues that his sentence was unreasonable because the district court gave the sentencing guidelines controlling weight and did not consider the other factors identified in § 3553(a). The court held that it is evident that the court did consider Gaver’s request for a "downward departure or a deviation" based on his post-offense rehabilitation and other circumstances, and that the court understood its authority to vary from the advisory guidelines, but simply declined to do so. The court held that the sentence of 29 months’ imprisonment was not unreasonable. Affirmed.

U.S. v. Alfonzo Traymayne Lee, No. 05-4124 (D. Nebraska). Before Circuit Judges Arnold and Colloton, and District Judge Bogue. Opinion by Judge Bogue.

Lee was convicted of one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base and one count of using, carrying, or brandishing a firearm during a drug trafficking offense. He raises four arguments on appeal.

First, he argues the evidence was insufficient to support the jury’s conspiracy conviction. He contends that the government’s witnesses were almost all cooperating witnesses testifying about purchases or sales of crack with Lee. He further argues that the evidence against him was circumstantial, and the only physical evidence was a small amount of crack and marijuana recovered from him during his arrest. Held: Sufficient evidence was presented to sustain Lee’s conviction. The evidence revealed that Lee was involved in extensive drug dealing activity. Several of his co-conspirators testified at trial about Lee’s numerous sales and purchases of crack and about his possession of a handgun during the drug transactions.

Second, Lee argues that the district court should have instructed the jury with regard to the charge that he brandished, rather than merely possessed, the firearm. Held: The Supreme Court and the Eighth Circuit have rejected this argument. The question of whether Lee brandished a firearm does not have to be submitted to the jury nor proved beyond a reasonable doubt.

Third, Lee contends that the district court erred in calculating his sentencing range, was not permitted to increase his criminal history category without having his prior convictions submitted to the jury and found beyond a reasonable doubt, and erroneously treated the Guidelines as mandatory, rather than advisory. Held: Under the advisory Guidelines scheme, courts are required to find sentence-enhancing facts only by a preponderance of the evidence. Court found Lee brandished the firearm based on testimony that he struck another member of the conspiracy with a handgun during a drug transaction. Extensive evidence presented at trial about Lee’s drug transactions supported the district court’s drug quantity finding. Several witnesses testified about Lee’s leadership or supervision of at least one other person. Accordingly, there was no error in calculating the amount of drugs attributable to Lee, nor in enhancing his offense level for brandishing a firearm and his role in the offense.

As to Lee’s contention that the district court should have submitted the issue of his criminal history to the jury, the court has observed that the Supreme Court, in Almendarez-Torres, ruled that a prior felony conviction is a sentencing factor for the court, not a fact issue for the jury. The district court was correct in calculating Lee’s criminal history, and did not treat the Guidelines as mandatory.

Lastly, Lee argues the district court gave undue weight to the Guidelines by refusing to depart. Held: The discretionary decision not to grant a downward departure continues to be unreviewable on appeal, and a sentence based on the crack-powder cocaine disparity is not unreasonable. Affirmed in all respects.

U.S. v. Jesus Jimenez Valencia, No. 05-4458 (D. Missouri). Before Chief Judge Loken and Circuit Judges Beam and Arnold. Per Curiam. Unpublished.

Valencia pled guilty to conspiracy to distribute and to possess with intend to distribute in excess of 500 grams of meth mixture. On appeal, he challenges the admission of the DEA Agent’s testimony as inadmissible hearsay. Held: Hearsay evidence is admissible at sentencing, as long as it is comes from a reliable source. Court found the testimony was properly admitted.
Next, he appeals the application of an enhancement for aggravated role in the offense. Held: Valencia recruited a driver, determined the destination of the drugs, directed that he receive the payment, distanced himself from the drugs, and was able to extend credit for one-third of the transaction. No error in finding that Valencia played an organizational role in the conspiracy.
Valencia also appeals the denial of safety-valve relief. Held: Safety-valve relief requires that a defendant not be an organizer, leader, manager, or supervisor in a conspiracy. Valencia failed to satisfy this criterion and is therefore precluded from qualifying for safety-valve relief. Also, district court found that Valencia did not truthfully provide all information and evidence regarding the offense, another reason he did not qualify for safety-valve relief.

Finally, Valencia argues the district court should have sentenced him below the guidelines range. Held: A sentence within the guidelines range is presumed reasonable. Valencia’s sentence was within the guidelines range and was therefore reasonable. Affirmed.

U.S. v. Ray Johnny Kraklio, No. 06-1369 (S.D. Iowa). Before Circuit Judges Wollman, Bright, and Riley. Opinion by Judge Riley.

Kraklio, a federal probationer, appeals the district court’s order modifying his conditions of probation to require him to have his DNA collected as directed by his probation officer, pursuant to the DNA Analysis Backlog Elimination Act of 2000 (DNA Act).

Analysis: The government does not dispute the drawing of blood for purposes of DNA collection is a search subject to Fourth Amendment scrutiny. The question then, is whether the search is reasonable. U.S. v. Knights, 534 U.S. 112, 118 (2001). Every federal circuit considering DNA indexing statutes has upheld the statutes as constitutional under the Fourth Amendment. The only disagreement among the circuits is what analytical approach to use in upholding the statutes. The majority of circuits employ a reasonableness standard, determining whether the search and seizure is reasonable based on the totality of the circumstances surrounding the search and seizure and the nature of the search and seizure itself. The district court in this case upheld the constitutionality of the DNA Act using the reasonableness standard. The Eighth Circuit agrees with this reasoning and employs the Knights reasonableness standard to determine the constitutionality of the DNA Act.

Held: The Third Circuit has applied the Knights analysis and found the DNA Act constitutional. Given probationers’ diminished privacy rights, the minimal intrusion involved in obtaining DNA samples, and the legitimate governmental interest in using DNA as a crime investigating tool, the Eighth Circuit adopted the Third Circuit’s reasoning and held, based on the totality of the circumstances, the collection of DNA under the DNA Act for inclusion in the CODIS database does not constitute an unreasonable search and seizure in violation of the Fourth Amendment. Therefore, the district court’s order modifying Kraklio’s conditions of probation is Affirmed.

June 26, 2006 Slip Opinions. Three criminal cases.

U.S. v. Jan P. Helder, Jr., No. 05-3387 (W.D. Missouri). Before Circuit Judges Arnold and Smith, and District Judge Magnuson. Opinion by Judge Smith.

The government appeals the district court’s grant of judgment of acquittal, arguing that 18 U.S.C. § 2422(b) does not require the intended victim to be an actual minor. Helder was charged with using the Internet to attempt to entice a minor to engage in illegal sexual activity. He pleaded not guilty and the case went to trial. At the conclusion of the government’s evidence, Helder moved for judgment of acquittal. The district court denied the motion, but encouraged Helder to renew the motion at the close of the case. Helder did not put on any evidence and renewed his motion for judgment of acquittal. After taking the motion under advisement, the court submitted the case to the jury, which found Helder guilty. After discharging the jury, the court set aside the jury’s guilty verdict and granted Helder’s motion, holding that the plain reading § 2422(b) requires the government to prove that the individual involved in the communication was under the age of 18.

The Eighth Circuit has not previously decided whether an attempt to entice a minor to engage in illegal sexual activity requires that the intended victim be an actual minor. However, the court looked to prior similar cases for guidance. First, the court has upheld attempt convictions under 18 U.S.C. § 2422(b) where the enticed "minor" was actually an undercover police officer. U.S. v. Patten, 397 F.3d 1100, 1103-04 (8th Cir. 2005). Second, the court has rejected a defendant’s argument that the evidence was insufficient to convict him of attempting to entice a minor because an undercover officer actually posed as the minor. U.S. v. Blazek, 432 F.3d 1104, 1107 (8th Cir. 2005). Additionally, the court was persuaded by the reasoning of other circuits that have upheld convictions for attempted enticement under § 2422(b) even though the intended victim was an undercover police officer, because the defendant believed the victim to be a minor.

Based on the sister circuits’ thorough analysis of the plain meaning of the statute as well as its prior holdings, the Eighth Circuit held that an actual victim is not required for an attempt conviction under § 2422(b). Accordingly, the court reversed and remanded to the district court for sentencing.

U.S. v. Michael James Longoria., No. 05-3741 (E.D. Arkansas). Before Circuit Judges Murphy, Melloy, and Colloton. Per Curiam. Unpublished.

Longoria appeals his 48-month sentence after pleading guilty without a plea agreement to five counts of possession of counterfeit checks. He alleges the district court improperly departed upward and imposed an excessive and unreasonable sentence.

Under § 4A1.3(a) an upward departure may be warranted if "reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes." Section 4A1.3(a)(4)(B) provides that for defendants in criminal history category VI, the court "should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate for the case." Longoria had 41 more criminal history points than the 13 points which trigger category VI status. In departing the district court was guided by § 4A1.3(a)(4)(B) in increasing the offense level and chose to do so using a ratio of 3 points per level, which resulted in a potential advisory range of 70-87 months. It then imposed a sentence of 48-months which was significantly below that range.

The Eighth Circuit held that the district court did not abuse its discretion in departing upward. Courts may depart upward on the ground that even the highest category seriously under-represents the seriousness of the defendant’s criminal history. U.S. v. Shannon, 414 F.3d 921, 923 (8th Cir. 2005). The court held that the district court’s decision to depart based on under-representation of behavior or likelihood of future crime is supported by the § 3553(a) factors. Affirmed.

U.S. v. Wesley W. Pappas, aka Wesley Pantona, No. 05-4373 (D. Nebraska). Before Circuit Judges Murphy, Melloy, and Gruender. Opinion by Judge Melloy.

Pappas appeals the judgment and sentence of the district court following his conditional guilty plea to being a felon in possession of a firearm. He raises three arguments: 1) police lacked probable cause and reasonable suspicion for the traffic stop that led to his arrest; 2) search of his vehicle was improper, and all evidence seized because of the search should have been suppressed; and 3) his sentence was unreasonable based on the § 3553(a) factors.
The Eighth Circuit held that the district court did not clearly err in finding that the police had probable cause for the initial stop and search of Pappas’s person. The police officer had a reasonable belief that Pappas was driving with a suspended license and the search of his person was a lawful search incident to his arrest.

The Court found that the search of Pappas’s vehicle did not violate state law or proper police procedure. An inventory search in Nebraska is lawful if it is done pursuant to standardized criteria or established routine such as removal of a vehicle which is illegally parked, on a pubic roadway blocking traffic, or defective, or due to the unavailability of an eligible driver. The court stated that Pappas’s allegation of police misconduct was only speculation. The police officers stated they prepared the proper inventory form and conducted the inventory search according to proper procedure, but that the form was destroyed before the trial. Pappas’s claim that the search of his engine compartment was unreasonable has previously been rejected by the court.
U.S. v. Lewis, 3 F.3d 252, 254 (8th Cir. 1993).

Pappas’s final argument is that his sentence was unreasonable under the factors outlined in 18 U.S.C. § 3553(a). Pappas had a long criminal history; he had accumulated 17 criminal history points. However, he told the district court the had improved his life and had made real progress in stabilizing his situation. The district court acknowledged that Pappas was headed in a better direction and sentenced him at the low end of the guidelines range. Reviewing the sentence imposed by the district court, the Eighth Circuit finds nothing to indicate the sentence was unreasonable. The court found the district court properly applied the relevant § 3553(a) factors and properly computed the sentence. Affirmed.

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

Case Summaries

2006-06-23T15:35:00.000-05:00

June 23, 2006 Slip Opinions. One criminal case.

U.S. v. William E. Dunlap, No. 05-2996 (D. Nebraska). Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by Judge Arnold.

This is case a that was remanded for resentencing under Booker. Omaha police searched Dunlap’s car and found a large quantity of pseudoephedrine tablets. Dunlap pleaded guilty to possession of the pseudoephedrine tablets with knowledge that it would be used to manufacture meth. No quantity of pseudoephedrine was mentioned in the indictment. At his initial sentencing hearing, Dunlap objected to the PSR’s determination that he was responsible for 27.8 grams of pseudoephedrine. The district court adopted this amount and sentenced him to 70 months in prison. The Eighth Circuit reversed and remanded for resentencing. On remand, the district court allowed the government to introduce evidence establishing the quantity of pseudoephedrine. The court then adopted the government’s position on the quantity and imposed the same 70-month sentence it had previously imposed. This appeal follows, wherein Dunlap argues that the government should not have been allowed to introduce evidence regarding the quantity on remand and that his sentence is unreasonable.

Dunlap’s primary argument is that the government failed to introduce evidence of quantity at his sentencing hearing and should not have been given another bite of the apple on remand. The Eighth Circuit stated that on occasion the court has remanded with instructions to resentence a defendant on the existing record because the government, in its first sentencing proceeding, violated clearly settled legal principles by relying on allegations in the PSR to prove disputed facts. U.S. v. Poor Bear, 359 F.3d 1038, 1043-44 (8th Cir. 2004). However, where a court of appeals vacates a sentence or reverses a finding relating to sentencing and remands the case for resentencing without placing any limitations on the district court, the court "can hear any relevant evidence on that issue that it could have heard at the first hearing." U.S. v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992). Because nothing in the original remand order precluded the government from presenting its evidence at resentencing, the court found there was no error in allowing it to do so.

The Eighth Circuit also found that Dunlap’s 70-month sentence was not unreasonable. While Dunlap demonstrated significant progress in his rehabilitation, the record revealed that he failed to meet several conditions of his pretrial release. Given these facts, the court was unable to say that Dunlap had overcome the presumption that the sentence was reasonable. Affirmed.

June 22, 2006 Slip Opinions. Two criminal cases.

U.S. v. Darnell Michael Norton, aka Dino, No. 05-4143 (N.D. Iowa.). Before Circuit Judges Bye, Lay, and Riley. Per Curiam. Unpublished.

Norton was found guilty by a jury of numerous drug and firearms offenses. He appeals, claiming the district court clearly erred in relying on the jury’s determinations of drug quantity. This contention was held to be without merit because a district court cannot disprove a jury-found drug quantity determination by a preponderance of the evidence. U.S. v. Campos, 362 F.3d 1013, 1016 (8th Cir. 2006). Norton’s next argument is that the district court erred in denying his motion for acquittal based on the sufficiency of the evidence. The court held that even if some of the trial testimony was suspect, these credibility determinations are left for the jury. U.S. v. Sirbel, 427 F.3d 1155, 1159 (8th Cir. 2005). The court found that sufficient evidence existed supporting Norman's drug and firearms convictions. Finally, Norman claims abuse of discretion in denying his motion for a new trial. The court finds the district court did not abuse its discretion in denying the motion based on the jury’s hearing of improper testimony. The curative instruction given by the district court was sufficient, and Norman cannot demonstrate the testimony heard was prejudicial. Affirmed.

U.S. v. Archie Alexander Mack, No. 05-4354 (D. S.D.). Before Circuit Judges Bye, Lay, and Riley. Opinion by Judge Bye.

Archie Mack pleaded guilty to one count of sexual abuse of a minor (statutory rape). The district court departed upward from the guideline range of 30-37 months and sentenced Mack to 51 months based on the dismissed possession count. Mack’s conviction was based on an allegedly consensual relationship between himself, 20-years old at the time of sentencing, and the victim, who was 14. The relationship lasted for over a year, and Mack knew the victim’s true age. He videotaped them engaging in sexual acts on at least six different occasions and later showed the videotape to friends.

The court noted its reasons for departing upward: the possession of child pornography that was produced by Mack was not taken into consideration in his first guideline range; the videotape was disrespectful and degrading not only to the victim, but to everyone who would ever see the tape; and the fact that Mack engaged in sexual activity with a girl young enough to have Winnie-the-Pooh decor in her bedroom and who looked embarrassed and ashamed during parts of the video. The court held because the uncharged conduct is related to the underlying crime, the district court did not err in departing upwards. Additionally, a factual basis existed regarding Mack’s actual possession of the child pornography.

Mack also argues the district court "double counted" the fact that he and the victim engaged in sexual intercourse on multiple occasions. The court found this to be without merit because the district court relied on different conduct when determining Mack’s original sentence and hypothetical sentence for the possession count. The original sentence included an enhancement for engaging in sexual intercourse with the victim on multiple occasions. When the court calculated a hypothetical range for the possession count, this calculation included an enhancement for engaging in a pattern of exploitation. Although the district court relied on the content of the videotape as evidence Mack repeatedly violated the statutory rape law, the court did not err in also relying on the videotaping itself when considering the extent of the departure ultimately made pursuant to § 5K2.21.

Finally, Mack claims his sentence is unreasonable. The district court adequately considered and discussed the § 3553(a) factors, and after reviewing the record as a whole, the Eighth Circuit finds the sentence reasonable. Affirmed.

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

Case Summaries

2006-06-21T13:18:00.000-05:00

June 20, 2006 Slip Opinions. Four criminal cases.

U.S. v. William Paul See Walker, No. 05-3064 (D. N.D.). Before Circuit Judges Wollman, Arnold, and Gruender. Opinion by Judge Arnold.

See Walker contends that he was unfairly prejudiced by the district court’s refusal to allow a defense expert to examine the child whom he was accused of sexually assaulting. He also argues that the district court erred in determining that he was convicted of a crime of violence for purposes of the career-offender guideline.

The Eighth Circuit has previously held that adversarial examination of this kind should be ordered if the "denial of access would likely result in an absence of fundamental fairness essential to the very concept of justice." U.S. v. Rouse, 111 F.3d 561, 568 (8th Cir. 1997). Here, the court held that See Walker had access to the videotaped statement of the victim, had the chance to cross-examine both the victim and the forensic interviewer, and could have presented expert testimony addressing what he saw as the weaknesses of the interviewer’s techniques. Based on these numerous channels for criticism and the fact that the victim testified at trial, the court held that there was no abuse of discretion in the district court’s refusal to permit See Walker’s psychologist to interview the victim. See Walker’s argument that the characterization of the interview as a "forensic investigation" by a trained employee gave an impression of credibility on the contents of the interview was found to be without merit. The Court held that people calling themselves forensic interviewers are commonly employed in these kinds of cases and the interviewer expressed no opinion as to whether sexual abuse had occurred or whether the victim was truthful.

Finally, the court found no error in See Walker’s status as a career offender. U.S.S.G. § 4B1.2 defines a crime of violence as one that "involves conduct that presents a serious potential risk of physical injury to another." The identical language also appears in the definition of "violent felony" in the ACCA. See Walker was charged and convicted of engaging and attempting to engage knowingly in a sexual act with a person under the age of twelve years and the indictment alleged that he committed the act by intentionally touching the child’s genitalia and penetrating her genital opening with his hand and finger. The Eighth Circuit believes this offense innately poses "a serious potential risk of physical injury" because of the age of the child. Past precedents have held that offenses involving the fondling or touching of a child’s genitals were crimes of violence under 18 U.S.C. § 16(b) because by their nature they involved a substantial risk that physical force may be used in the course of committing them. Since a sexual crime against a young child involves a substantial risk that physical force may be used in its commission, t he offense necessarily poses "a serious potential risk of physical harm" to the child who is the victim of the crime. Affirmed.

U.S. v. Mark Walker, No. 05-3371 (W.D. Missouri). Before Circuit Judges Wollman, Bowman, and Riley. Per Curiam. Unpublished.

Walker pled guilty to conspiring to distribute more than 500 grams of meth mixture. He initially filed a written objection to the PSR recommendation that he be held responsible for 15 kilos or more of meth mixture. He then withdrew his objection in open court at the sentencing hearing and was sentenced to 235 months in prison. On appeal, Walker argues that his sentence is unreasonable under Booker because the district court later held two of his co-conspirators, who contested their drug quantities at sentencing, responsible for more than 500 grams but less than 1.5 kilos of meth mixture. Eighth Circuit concludes that by withdrawing his drug-quantity objection at the district court level, he waived this argument, precluding appellate review. Affirmed.

U.S. v. Jose Urbina-Mejia, No. 05-4125 (D. S.D.). Before Circuit Judges Murphy, John R. Gibson, and Benton. Opinion by Judge Benton.

Urbina-Mejia pled guilty to illegal reentry after deportation. District court applied a 16-level enhancement for an earlier conviction of a crime of violence and sentenced him to 57 months. At sentencing, Urbina-Mejia contested the enhancement based on a state convict ion for aggravated battery. He argued that the government had the burden to prove he was the same Jose Urbina-Mejia who committed that crime. In response, the government submitted the Illinois criminal sentence forms of "Jose R. Urbina-Mejia" and the PSR writer testified that he used the NCIC database and the criminal sentence forms to verify the state conviction.
On appeal, Urbina-Mejia argues the Illinois documents cannot be used to prove a prior conviction because they only contained a name with no additional information to identify him as the same person, but the cases he cites do not support his position. He also claims that the PSR writer did not testify directly about identity; that he never actually inspected the fingerprints used in the NCIC analysis. Court held that "[a] court may consider any evidence in its sentencing determination that has sufficient indicia of reliability to support its probable accuracy." The Eighth Circuit held that although Urbina-Mejia is entitled to put the government to its burden, he provided no evidence that the NCIC report was unreliable. Given the testimony and evidence, the district court did not clearly err in finding by a preponderance of the evidence that Urbina-Mejia had a prior Illinois conviction for aggravated battery. Affirmed.

U.S. v. Clyde Scott Thompson, No. 05-4157 (D. Minnesota). Before Circuit Judges Murphy, John R. Gibson, and Benton. Opinion by Judge Murphy.

A jury convicted Thompson of bank robbery, use of a firearm during a crime of violence, and unlawful possession of a firearm. He was sentenced to 444 months. Thompson appeals, based on the district court’s failure to strike a bank teller from the jury panel and its failure to protect his rights under the Sixth Amendment and Batson by permitting the government to strike the only minority juror.

Thompson argues that the district court denied his rights to an impartial jury by denying his request to strike juror Smith for cause. His sole argument for excluding Smith was the fact that she was a teller at a different bank located in a different part of the state. He asserts that the court should have found implied bias because Smith’s employment "created too great an emotional involvement with the facts of this case to allow her to be impartial." Court held that the doctrine of implied bias is reserved for extreme and exceptional circumstances, and the fact that someone holds a position similar to that of a key witness is not a basis for excluding her where there is no indication of bias.

Thompson also claims that his ability to obtain an impartial jury was limited because he was forced to use one of his challenges to remove Smith. This claims fails because a defendant’s "exercise of peremptory challenges pursuant to Rule 24(b) is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excluded for cause.

Finally, Thompson’s Batson challenge to the government’s strike of a minority failed because the government provided a race neutral explanation for its peremptory challenge. The government’s explanation that Paufue Thao, a 21-year-old Hmong immigrant, was young, lacked life experience, did not have children, and was not married or employed was facially valid and was sufficient to meet its burden. Affirmed.

June 21, 2006 Slip Opinions. Four criminal cases.

U.S. v. Gustavo Gomez-Perez, No. 05-4168 (N.D. Iowa.). Before Circuit Judges Bye, Lay, and Riley. Opinion by Judge Bye.

Gomez-Perez claims district court error by not providing him with safety valve relief pursuant to § 5C1.2(a)(5). The district court held that he did not meet the fifth requirement of the safety valve because he failed to provide complete and truthful information to the government regarding his involvement in the offense to which he pled guilty. Gomez-Perez argues the district court deferred to the government regarding the truthfulness of his information. Eighth Circuit states that reading the entire court’s statement demonstrates the court did not merely defer to the government. Court stated that Gomez-Perez’s assertion that "he wasn’t always telling he same thing" was a sufficient basis for denying safety valve relief. A district court finding a defendant told several different versions of a story is a sufficient basis to find the defendant failed to truthfully and completely disclose. However, relief can be granted if the sentencing court is persuaded that the last story is complete and truthful. But in this case the district court failed to credit the final version of Gomez-Perez's story.

Gomez-Perez next asserts that his case should be remanded because the district court established the drug quantity through witness testimony without discussing whether the challenged evidence lacks indicia of reliability. Although the district court acknowledged some level of uncertainty, it chose to credit and accept the testimony. A district court can determine drug quantity using "imprecise evidence, so long as the record reflects a basis for the court’s decision." U.S. v. Roach, 164 F.3d 403, 413-14 (8th Cir. 1998). Since the district court chose to credit the witness testimony, that credibility determination is "virtually unreviewable on appeal." Affirmed.

U.S. v. Jozabet Castro-Garzon, No. 05-4445 (D. Nebraska.). Before Circuit Judges Bye, Lay, and Riley. Per Curiam. Unpublished.

The Eighth Circuit found that Castro-Gazon’s claim that the district court violated his Sixth Amendment right to jury trial by refusing to have the jury determine the quantity of meth involved in the conspiracy is without merit. Under the advisory guidelines system, the court’s determination of drug quantity for sentencing purposes by a preponderance of the evidence does not violate the Sixth Amendment. Affirmed.

U.S. v. Lonnie Youngbear, aka Alex Little Bear, No. 06-1257 (D. S.D.). Before Circuit Judges Bye, Lay, and Riley. Per Curiam. Unpublished.

Youngbear argues that his 220-month sentence after pleading guilty to sexual abuse of a minor is unreasonable. Eighth Circuit held the district court did not err in concluding that Youngbear’s criminal history score did not accurately reflect the likelihood that he would commit other offenses. He had been convicted of a broad range of offenses during his adult life, including two separate offenses of third degree theft, two separate offenses of second degree theft, assault causing injury, three counts of burglary, felony escape, driving while intoxicated, simple assault and felony failure to appear. None of these offenses were included in the calculation of his criminal history category. He had also had his probation or parole revoked on numerous occasions and committed offenses while on probation or parole. Additionally, the district court looked at dismissed charges alleging sexual abuse of other children and was disturbed about whether or not Youngbear is a chronic pedophile.

The Court also found no error in imposing an upward departure in light of the aggravating circumstances present in this case. The district court determined the applicable guideline range and considered several § 3553(a) factors in arriving at its conclusion that an upward departure was warranted under § 4A1.3. In light of Youngbear’s extensive criminal history and the dismissed child sexual abuse charges against him, the Eighth Circuit concluded that the ultimate sentence of 220 months’ imprisonment imposed by the district court was reasonable. Affirmed.

U.S. v. Lorenzo Robledo, Jr., No. 06-1439 (D. Nebraska). Before Circuit Judges Bye, Lay, and Riley. Per Curiam. Unpublished.

This case involves the seizure of methamphetamine found during the search of Robledo’s vehicle following a traffic stop by Nebraska State Patrol Trooper Jeff Roby. After he was charged with possession with intent to distribute, Robledo filed a motion to suppress, arguing the trooper lacked probable cause to stop his vehicle. The district court denied the motion and Robledo entered a conditional guilty plea.

On appeal, Robledo asserts that the failure to signal a change to the right lane after effecting a pass is not a violation of Nebraska law. He argues that state statute Neb. Rev. Stat. Ann. § 60-6,133 does not require a signal when returning to the right lane after passing another vehicle, and therefore he did not violate Nebraska law. The Eighth Circuit agrees with the district court that Robledo’s argument ignores other pertinent Nebraska law governing signaling, i.e., Neb. Rev. Stat. Ann. § 60-6,161.

The Eighth Circuit stated that the proper question before the court is merely whether Trooper Roby had an objectively reasonable basis for believing Robledo breached a traffic law. Regardless of whether Robledo actually violated the Nebraska statutes, in light of § 60-6,161, the court cannot conclude that Trooper Roby’s belief was unreasonable. Affirmed.

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

Case Summaries

2006-06-19T14:54:00.000-05:00

June 16, 2006 Slip Opinions. Eight criminal cases.

U.S. v. Hector Salmeron, No. 05-3003 (W.D. Arkansas). Before Circuit Judges Riley, Magill, and Gruender. Per Curiam. Unpublished.

Salmeron pleaded guilty to illegal reentry into the U.S. after deportation for an aggravated felony, and appeals his 30-month prison sentence. In his Anders brief, Salmeron argues that the district court engaged in double counting when it used his prior offense to increase both his offense level and criminal history category, in effect violating the Double Jeopardy Clause. Additionally, Salmeron claims that he didn’t understand the charge against him at the time he entered his guilty plea.

The Eighth Circuit held that although Salmeron was hesitant to plead guilty, the record reflects that the hesitancy was caused by Salmeron’s "opposition to the increased penalties triggered by his past aggravated felony conviction." The record clearly reflects Salmeron’s plea to the charge in the instant case, furthermore Salmeron "did not deny the prior conviction." Perez states that a plea is constitutionally valid if (1) it is made voluntarily, and (2) intelligently, additionally the district court must be certain that the defendant understand the nature of the charge.
AFFIRMED.

U.S. v. Carl O. Thornburgh, No. 05-3292 (W. Missouri). Before Circuit Judges Melloy, Fagg, and Benton. Per Curiam. Unpublished.

Thornburgh pleaded guilty to (1) being a felon in possession of a firearm, and (2) possessing marijuana. At sentencing, the district court "concluded he was an armed career criminal" and imposed the statutory minimum sentence of 180 months in prison", which Thornburgh appeals.
The Eighth Circuit held that Thornburgh failed to object to the facts contained in the PSR, which support the district court’s sentencing decision.

Thornburgh contends that two of the prior convictions should not be classified as violent felonies because they were burglaries of commercial building involving no actual or potential violence. This issue has previously been decided and denied in U.S. v. Nolan and U.S. v. Hascall.
Thornburgh cited decisions of other circuits and asked the Eighth Circuit to reconsider "decisions holding burglary of a commercial building is categorically a violent felony or crime of violence." This issue has also previously been decided and reaffirmed in Bell. Additionally, the Eighth Circuit is "not at liberty to revisit earlier panel decisions." Taylor v. Dickel, 293 F.3 427, 431 (8th Cir. 2002). AFFIRMED.

U.S. v. Marlin Lynn Brown, No. 05-3654 (E.D. Arkansas). Before Circuit Judges Riley, Magill, and Gruender. Per Curiam. Unpublished.

After a jury trial, Brown was found guilty of (1) armed bank robbery, (2) brandishing a firearm, and (3) being a felon in possession of a firearm. Brown was sentenced to 346 months in prison, which was the low end of the Guideline range, and filed a motion for re-sentencing based upon judicial error, which the district court denied. Brown appeals the district court’s decision to deny his motion for re-sentencing, arguing that during the sentencing hearing, the district court did not ask if Brown wanted to speak on his own behalf, which was confirmed by the record.
The Eighth Circuit held that the district court’s failure to "allow allocution, was not a constitutional error that could be raised by collateral attack." Hill v. U.S. AFFIRMED.

U.S. v. Shawn Lee Drinnon, No. 05-3840 (N.D. Iowa). Before circuit judges Murphy, Melloy, and Colloton. Per Curiam. Unpublished.

Drinnon was convicted of conspiracy to distribute less than 50 grams of methamphetamine mixture and appeals his 109 month prison sentence as required by the mandatory guidelines.
The Eight Circuit held that Drinnon’s Sixth Amendment right was violated at sentencing. The cases is remanded and is to be re-sentenced in accordance with Booker. "On remand the district court re-sentenced Drinnon to 109 months, and he appeals" challenging:

(1) the drug quantity determination by the district court
(2) the retroactive application of Booker to his case, is an Ex Post Facto Clause violation.
(3) advisory Guidelines sentencing violates the Ex Post Facto Clause

On re-appeal, the Eight Circuit;

(1) reaffirmed the drug quantity as law in this case, because it need not be determined by a jury. Haack.
(2) held that the sentence is within the Guidelines range and is therefore presumptively reasonable.
(3) held that neither the Ex Post Facto nor the Due Process principles are implicated when a defendant is sentenced under the advisory Guidelines. U.S. v. Jones
AFFIRMED.

U.S. v. Steven Gerard Willard, No. 05-3706 (W.D. Arkansas). Before Circuit Judges Smith, Heaney, and Gruender. Per Curiam. Unpublished.

Willard pleaded guilty to (1) one count of traveling in interstate commerce for the purpose of sexual conduct with a person under eighteen, and (2) one count of transporting child pornography via the internet, and was sentenced to 168-months in prison, followed by supervised release for life. Willard appeals this sentence arguing;

(1) enhancement must be "pled and proven to a jury beyond a reasonable doubt or admitted by him."
(2) based upon post-Booker sentencing, the sentence in the instant case is unreasonable.

The Eighth Circuit held;

(1) Willard’s argument, that judge-found facts which enhance his sentence create an unreasonable sentence, fails. Lincoln states that sentences within the recommended Guidelines range are presumed to be reasonable.
(2) the district court made clear on the record that it understood Booker’s impact. Furthermore, the Eighth Circuit has previously struck down this issue in Pirani. AFFIRMED.

U.S. v. Tylan Lucas, No. 05-2165 (D. Nebraska). Before circuit judges Arnold, Beam, and Riley. Published.

BEAM, Circuit Judge.
After a jury trial, Lucas was found not guilty on two counts and convicted on five counts:

(1) possession with intent to distribute give grams or more of a mixture or substance containing cocaine base, and
(2) possession of a firearm in furtherance of a drug trafficking crime, and
(3) possession of a firearm after a felony conviction, and
(4) conspiracy to distribute or possess with intent to distribute fifty to one-hundred-fifty grams of a mixture or substance containing cocaine base, and
(5) obstructing, influencing, or impeding or attempting to obstruct, influence, or impede an official proceedings

Lucas appeals, arguing eight separate grounds including the following;

(1) the search was an invalid, non-consensual search of a residence,
(2) the warrant was invalid because its issuer was a member of the executive branch, the Corrections Director, rather than a detached and neutral magistrate,
(3) the arrest was invalid
(4) the evidence found during the arrest was not admissible

The Eighth Circuit held that although the Corrections Director is authorized by statute to "issue or authorize issuance of a warrant for the arrest of any person committed to the department who has escaped from the custody of the department", the issuing official must be a "neutral and detached magistrate". The Eighth Circuit examined and followed U.S. v. Parker, 373 F.3d 770, 771-72, 774 (6th Cir. 2004) and held that because the Corrections Director (1) was hired by the governor, (2) was accountable to the Governor, and (3) is an executive branch employee, he is neither a neutral nor detached magistrate "for the purposes of issuing arrest warrants". The arrest warrant is invalid. Furthermore, the "good-faith exception" does not apply to magistrates and judges and therefore does not apply in the instant case.
REVERSED and REMANDED to the district court for proceedings consistent with this opinion.

U.S. v. Kenneth Hacker, No. 05-2709/3450 (D. South Dakota). Before circuit judges Wollman, Fagg, and Riley. Published.

RILEY, Circuit Judge.
Hacker pleaded guilty to bank fraud while on supervised release for several Massachusetts federal convictions and appeals arguing the district court:

(1) "erred by departing upward under the Guidelines"
(2) "imposed and unreasonable sentence on Hacker’s bank fraud conviction"
(3) "lacked jurisdiction to revoke Hacker’s supervised release"
(4) "imposed the revocation sentence for an improper purpose"

The Eighth Circuit reviewed (1) de novo "whether the district court imposed Hacker’s sentence in violation of law or as the result of an incorrect application of the Guidelines", (2) the upward departure for abuse of discretion, (3) the extent of the upward departure for abuse of discretion, and (4) the reasonableness of the final sentence for abuse of discretion.

The record reflects that at sentencing "the district court discussed its reasoning;

(1) "behind the upward departure and sentence",
(2) "in its statement of reasons",
(3) "in its order", and
(4) "in its opinion filed after the sentencing hearing"

(A) Hacker’s "behavior suggests an addiction to deceiving people"
(1) "one man crime wave"
(2) "heinous conduct"
(3) the court "had not seen a more dedicated history of criminal activity"

(B) Hacker’s inability to learn from past crimes and punishment
The Eighth Circuit cited U.S. v. Flores, stating that by considering Hacker’s criminal history and recidivism rate, "the district court advanced the statutory sentencing objective of affording adequate deterrence to criminal conduct, and protecting the public from further crimes of the defendant." The Eighth Circuit affirmed the sentence as reasonable.
The Eighth Circuit held that the record clearly reflects the reasons for the upward departure;

(1) career criminal
(2) entire adult occupation has been "stealing money"
(3) criminal history category (VI) was not adequate
(A) It does not "adequately represent the likelihood that he will commit future crimes
(B) It fails to "encompass adequately his past criminal conduct"
and abuse of discretion in departing upwardly.

In making its decision to depart upwardly due to the inadequacy of criminal history, the district court relied upon the PSR which did not assign criminal history points to several past convictions and "twelve arrest warrants under Hacker’s name". The PSR provided sufficient underlying details about six of those warrants, which allows the district court to consider them without relying solely on the information contained in the warrants to "justify the upward departure".

The Eighth Circuit held that "the district court had sufficient evidence and did not abuse its discretion in departing upwardly."

The Eighth Circuit reviewed de novo whether "the district court had authority to revoke Hacker’s supervised release." Hacker argues (1) Massachusetts term of supervised release expired before it was transferred to South Dakota, and (2) South Dakota issued the warrant for violation of supervised release prior to having jurisdiction over Hacker. The record reflects the following:

(1) transfer order filed electronically and electronically stamped on September 23, 2004
(2) transfer order manually date stamped on September 23, 2004.
The Eight Circuit found that the manual date stamp (possibly reflecting the date the clerk docketed the transfer order) is SECONDARY to the electronic date stamp and held that "South Dakota timely assumed jurisdiction over Hacker on September 23, 2004. Therefore the warrant, issued on September 23, 2004, for violation of supervised release was proper.
Hacker also alleges that the warrant was not valid under the Fourth Amendment because it is not "supported by an oath or affirmation." The Eighth Circuit held that the bank fraud indictment formed the basis for revoking Hacker’s supervised release. See U.S. v. Hondras.
Hacker cites U.S. v. Vargas-Amaya, 389 F.3d 901, 906-07 (9th Cir. 2004), arguing that the warrant to revoke supervised release must have sworn violation allegations. The instant case has an indictment based on "factual allegations similarly referenced in the revocation petition.", Vargas-Amaya does not have an indictment. The Eighth Circuit held that the district court warrant fully satisfies Fourth Amendment requirements.

As to Hacker’s argument that the revocation sentence was imposed to protect the length of the bank fraud sentence, the Eighth Circuit, by upholding the 180 month prison sentence, ensured that the revocation sentence would run concurrently, as Hacker requested.
AFFIRMED.

U.S. v. Russell D. Kirkland, No. 06-1256 (W.D. Missouri). Before circuit judges Wollman, Bright, and Riley. Published.

RILEY, Circuit Judge.

Kirkland pleaded guilty to felon in possession of a firearm and appeals statutory minimum 180 months prison sentence, following the application of an enhancement for conviction of a violent felony under ACCA. Kirkland argues his juvenile adjudication does not qualify as a prior conviction for ACCA purposes, because at the time of offense, Missouri had inadequate "due process safeguards" in the juvenile justice system. The Eighth Circuit previously decided this argument in U.S. v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002), wherein they held "the Missouri juvenile justice system contains reliable due process safeguards, thus juvenile adjudications can rightly be characterized as ‘prior convictions’ for Apprendi purposes." Kirkland failed to offer evidence supporting his "due process violation" claim and also failed to show that "his conviction was constitutionally infirm". U.S. v. Levering, 431 F.3d 289,294 (8th Cir. 2005).

Kirkland argued that his juvenile adjudication can not be considered as a violent felony under ACCA because his Missouri court documents neither listed the statute violated, nor the elements of the offense. Kirkland further asserts that Shepherd and Taylor require this determination to begin with the elements of the offense. The Eighth Circuit held that the district court correctly inferred from the Missouri criminal code, at the time of the offense, constitutes a "violent felony" under the ACCA and for sentencing enhancement purposes. AFFIRMED.

Melissa Tessaro
Legal Secretary
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

June 19, 2006 Slip Opinions. Four criminal cases.

U.S. v. Aaron Lynn Selby, No. 05-1718 (S.D. Iowa). Before Circuit Judges Riley, Magill, and Gruender. Per Curiam. Unpublished.

Selby was subject to a mandatory minimum life sentence after he pled guilty to conspiring to distribute meth and marijuana. Government filed a 5K1.1 motion and recommended a 20% sentence reduction of 405 months. Selby wanted the court to consider 360 months as the starting point for his substantial-assistance reduction. Court sentenced him to 263 months, which represented a 35% reduction from 405 months.

On appeal, Selby argues the district court erred in using 405 months as the starting point for applying the departure. Eight Circuit disagrees. The sentencing guidelines does not specifically set a fixed equivalent in terms of months for a life sentence. The intent of the Sentencing Commission was not to define a life sentence as 360 months because the Sentencing Table sets two separate sentencing levels where the range goes up to 405 months before reaching life. Additionally, court states that it appeared Selby actually received a favorable starting point of 405 months because life sentences are now defined as 470 months. See U.S. v. Keller, 413 F.3d 706, 711 (8th Cir. 2005). Affirmed.

U.S. v. Corey D. Lyons, No. 05-2416 (E.D. Missouri). Before Circuit Judges Bye and Colloton and District Judge Bogue. Opinion by Judge Colloton.

Lyons challenges the reasonableness of the sentence imposed after he pled guilty to committing bank robbery while jeopardizing the lives of those in the bank by use of a dangerous weapon and possession of a firearm during a crime of violence. Eighth Circuit held that although the 180-month sentence imposed was substantially greater than the advisory guideline range, it did not think it was unreasonable under the circumstances. There was no procedural error as the district court considered the relevant § 3553(a) factors: the bank robbery was an especially violent crime; and Lyons had an extensive criminal history as he had been convicted of 19 separate offenses in 15 years. The court ruled that although Lyons was not a career offender under the guidelines, his criminal history and the violent nature of the offense warranted the upward departure. Affirmed.

U.S. v. Gilbert M. Gibreal, Jr., No. 05-3382 (District of Nebraska). Before Circuit Judges Murphy, Melloy, and Colloton. Per Curiam. Unpublished.

Gibreal pled guilty to conspiracy to commit bank fraud and was sentenced to 10 months in prison. He admitted in his plea agreement his participation with his co-conspirator in cashing the forged checks. However, he objected to the PSR, challenging the amount of loss attributed to him. The district court overruled his objections, finding that the government had met its burden of showing that the loss was reasonably foreseeable and was a result of transactions that were jointly undertaken and in furtherance of the conspiracy.

On appeal, Gibreal argues that there was insufficient evidence that some of the losses of the victims were attributable to him. He contends that the district court erred by finding that the government had satisfied its burden and that the court incorrectly interpreted and applied the sentencing guidelines. The Eighth Circuit found that under § 1B1.3(a)(1)(B), Gibreal benefitted from the co-conspirator’s procurement of the stolen checks since he assisted her in cashing the checks in exchange for meth and at times received part of the check proceeds. The court found the losses were foreseeable to Gibreal since he accompanied the co-conspirator during several of her actions, and he demonstrated his commitment to the conspiracy by providing transportation on several occasions. Affirmed.

U.S. v. Jason George Johnson, No. 06-1056 (District of Minnesota). Before Circuit Judges Murphy, Melloy, and Colloton. Opinion by Judge Murphy.

Johnson pled guilty without a plea agreement to two counts of distribution and one count of possession of child pornography. The district court applied five sentencing enhancements and sentenced him to 121 months. He argues on appeal that the proper standard of proof should be beyond a reasonable doubt, that there was insufficient evidence for the enhancements, and that the 121-month sentence imposed was unreasonable. Eighth Circuit held that it is clearly established in this circuit that sentencing enhancements must be proven by a preponderance of the evidence. As to the sufficiency of the evidence for applying three of the enhancements, the court found that: 1) prepubescent minors were clearly involved since the child in one of the videos Johnson sent had been identified and was known to be under 12 when the images were created; 2) Johnson distributed images to receive something of value when he traded his videos with an undercover agent; and 3) images portraying sadistic conduct were also involved (sexual penetration of a minor female by an adult male is per se sadistic). As for Johnson’s final argument, the Court held that since the district court imposed a sentence at the low end of the guideline range, the sentence was not unreasonable. Affirmed.

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

Case Summaries

2006-06-16T13:39:00.000-05:00

June 15, 2006 Slip Opinions. Four criminal cases.

U.S. v. Kevin D. Gladney, No. 05-3063 (W.D. Arkansas). Before Circuit Judges Colloton, Heaney, and Gruender. Per Curiam. Unpublished.

Gladney pleaded guilty to distributing five grams or more of cocaine base and appeals his 188-month sentence. Gladney argues that

(1) this sentence is unreasonable under Booker because the district court
(A) "gave undue weight to the Guidelines and
(B) failed to consider mitigating circumstances when calculating Gladney’s prison sentence
(2) "the court erred by describing the career offender status as something that it" was required to consider.
(3) a Guidelines sentence was "unreasonable" because of his borderline status as a career offender.
(4) By engaging in "judicial fact-finding" to form it’s basis for an enhancement, the district court violated Gladney’s Sixth Amendment rights.

The Eighth Circuit held:

(1) the district court record clearly reflects its understanding of the "advisory nature of the Guidelines and factors it should consider when imposing a sentence".
(2) the district court’s comment accurately reflects its post-Booker responsibility to calculate the applicable Guidelines range.
(3) U.S. v. Tobacco states that an advisory guidelines sentence is presumptively reasonable and "there is nothing about Gladney’s offense or history that compels a lesser sentence."
(4) In U.S. v. Patterson, this Sixth Amendment argument was rejected. AFFIRMED.

U.S. v. Timothy S. DeGarmo, No. 05-3268 (D. Nebraska). Before Circuit Judges Colloton, Heaney, and Gruender. Published.

GRUENDER, Circuit Judge.
After a jury trial, DeGarmo was found guilty of conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine. DeGarmo appeals arguing that:
(1) his rights were violated under the Speedy Trial Act, which requires "a reversal of his conviction and remand instructions to dismiss with prejudice." because;
(A) a court ordered competency evaluation took 26 days more than the standard 30 allowed, without reasonable cause
(B) those 26 additional days must be included in the SPEEDY TRIAL ACT, 18 U.S.C. § 3161(H)(8)(A), (B)(IV) calculation
(2) "the prosecutor’s closing arguments were improper and prejudicial, requiring a new trial", and
(3) by erroneously applying "the remedial portions of Booker to DeGarmo’s pre-Booker criminal conduct", the district court committed an "Ex Post Facto-like Due Process violation."

The Eight Circuit held;

(1) DeGarmo repeatedly miscalculated the number of SPEEDY TRIAL ACT, 18 U.S.C. § 3161(H)(8)(A), (B)(IV) excludable days . The actual number of non-excludable days is 57, which falls within the 70 days SPEEDY TRIAL ACT, 18 U.S.C. § 3161(H)(8)(A), (B)(IV) requirement.
(A) The 73 day delay attributed to the competency examination is not presumptively prejudicial, Titlbach.
(B) Congress did not include the word "reasonable" in SPEEDY TRIAL ACT, 18 U.S.C. § 3161(H)(8)(A), (B)(IV), therefore the Eighth Circuit refuses to read "reasonable" into the SPEEDY TRIAL ACT, 18 U.S.C. § 3161(H)(8)(A), (B)(IV).
(2) While the prosecutor’s closing argument did contain an isolated number of improper remarks, the effect was minor.
(A) DeGarmo objected near the END of the prosecutor’s closing argument.
(B) The district court gave all the curative instructions requested by Defense and more.
(C) Evidence against DeGarmo was substantial with numerous eyewitnesses, the few improper prosecutorial comments, did not add strength to the government’s case against DeGarmo.
(D) This argument has been previously considered and rejected in U.S. v. Wade, 435 F. 3d 829, 832 (8th Cir. 2006)(per curiam). AFFIRMED.

U.S. v. Ursula Red Bird, No. 05-2319 (D. South Dakota). Before Circuit Judges Melloy, Colloton, and Benton. Published.

COLLOTON, Circuit Judge.
After a jury trial, Red Bird was convicted of assault resulting in serious bodily injury, following the death of her infant son. Red Bird was received a 67-month prison sentence, she appeals (1) challenging the sufficiency of the evidence, (2) "the court’s decision to admit evidence of her violation of conditions of pre-trial release, as evidence of flight," and (3) the two-level obstruction of justice adjustment.

Both sides called experts to testify as to the exact cause of death of Red Bird’s infant son, in addition to the governments evidence and Red Bird’s own statements following the death. U.S. v. Blazek, 431 F.3d 1104, 1107 (8th Cir. 2005), requires the court to accept "all reasonable inferences drawn from the evidence that support the jury’s verdict."

Red Bird failed to contact her Probation and PTS officer for approximately 3 months, resulting in the issuance of an arrest warrant for Apparent Bond Violation. The district court allowed the government to enter evidence of the Bond Violation and to "argue that the jury could infer guilt from the bond violation". The district court "declined to give a jury instruction on that inference."

Red Bird argues the district court erred in allow the admission of evidence of her pre-trial release violations. The Eighth Circuit held that the relevance of this evidence is questionable, but any error in admitting this evidence is harmless, because it isn’t likely to have had a substantial influence on the trial outcome. see Kotteakos, 328 U.S. at 765.

After conviction, the district court applied a two level adjustment under the advisory sentencing guidelines, based upon the bond violation. The Eighth Circuit reviewed de novo whether §3C1.1 applies to the Red Bird’s conduct. While the Eighth Circuit "doubts" the government’s position that the bond violation was comparable to "escape" from custody, the district made clear that it would impose the same sentence with or without the two level adjustment, based upon 18 U.S.C. § 3553(a), thus the Eighth Circuit held that any error was harmless. After review for Booker error, the Eight Circuit held that the consideration of Red Bird’s pre-trial conduct is appropriate. The ten month variance from the sentencing guidelines in the instant case, is reasonable.
AFFIRMED.

U.S. v. Reginald Dinez Johnson aka Cedric Miller, No. 05-1745 (E.D. Missouri).
U.S. v. Patricia Alexander-Butler, aka Patricia Washington, No. 05-2056 (E.D. Missouri)
U.S. v. Carl Alexander, No. 05-2092 (E.D. Missouri)
U.S. v. Terry Brown, No. 05-2975 (E.D. Missouri)
Before Circuit Judges Wollman, Fagg, and Arnold. Published.

WOLLMAN, Circuit Judge.
Johnson, Alexander-Butler, Alexander and Brown appeal following their convictions for conspiracy to possess with intent to distribute Cocaine and phencyclidine (PCP). Alexander and Alexander-Butler were also convicted to conspiracy to commit wire fraud. Additionally, Alexander was convicted of engaging in monetary transactions in property derived from unlawful activity. These appeals have been combined because they raise overlapping issues.
Johnson, argues that
(1) the district court erred in admitting certain physical evidence, and
(2) the warrantless search of his personal property is a Fourth Amendment violation
Alexander and Brown argue that
(1) "The evidence is insufficient to support their drug conspiracy convictions"
(2) They should be granted a new trial, based on newly discovered evidence
(3) Their sentences violate their Sixth and Eighth Amendment rights.
Alexander-Butler and Alexander argue that the evidence is insufficient to support their convictions. Alexander argues that a statute of limitations violation occurred.
In the Johnson appeal, the Eighth Circuit reviewed the denial of a motion to suppress de novo and concluded that although a period of time elapsed between the arrest and the subsequent search of Johnson’s property, the search was reasonable under the Fourth Amendment.
Johnson next argued that testimony regarding the information reflected in the Illinois Secretary of State’s records should be declared impermissible hearsay and as such, violates his Sixth Amendment right of confrontation. Defense counsel did not object to this testimony at trial, so the Eighth Circuit reviewed this testimony for plain error. The Eighth Circuit held that the questionable testimony was later supported by the testimony of Johnson’s codefendants and is thus merely cumulative and did not affect Johnson’s right. Plain error relief is not warranted in the instant case

In the Alexander and Brown appeals;
(1) their codefendants testified that Brown often drove or rode with his codefendants in the chase vehicle, and Alexander accompanied his codefendants to California and Texas to purchase drugs, therefore the Eighth Circuit held that "a jury could reasonably find that Brown knowingly and intentionally joined the conspiracy.
(2) the Eighth Circuit held that testimony of one of the witnesses’ cell-mates would only serve to impeach that particular witness. The court did not abuse its discretion is denying the Alexander and Brown’s motions for a new trial.
(3) E.g. U.S. v. Gamboa, 439 F.3d 796,814-15 (8th Cir. 2006) which held that Almendarez-Torres is still good law, states that "the fact of a prior conviction is for the court to decide, not a fact issue for the jury." Subsequently, the Eighth Circuit held that "the district court did not err in finding that the prior convictions triggered the statutory mandatory minimum sentence."
(4) As to the issue of their sentences being disproportionate to the offense of conviction, thus creating sentences which are cruel and unusual punishment, the Eight Circuit has previously held that "mandatory minimum sentences for drug offenses do not violate the Eighth Amendment’s prohibition of cruel and unusual sentences, U.S. v. Baker.

In the Alexander and Alexander-Butler appeals challenging the sufficiency of the evidence to convict them of conspiracy to commit wire fraud, the Eight Circuit reviewed de novo the sufficiency of the evidence.
(1) U.S. v. Gomez, which requires all evidentiary matters be resolved in favor of the government, the Eighth Circuit held that sufficient evidence existed to convict both defendants of conspiracy to commit wire fraud.
Alexander argues in his pro se supplemental brief that "the evidence was insufficient to convict him of engaging in monetary transactions derived from specified unlawful activity." The Eighth Circuit held that "the same evidence that supports his conspiracy to commit wire fraud conviction supports this conviction." The Eighth Circuit found that the statute of limitations argument from this pro se brief is without merit and warrants no further discussion.
AFFIRMED. (all four defendants)

Melissa Tessaro
Legal Secretary
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

Ruling in James v. U.S. may invigorate challenges to career offender enhancements based on car theft, escape, etc.

2006-06-16T11:58:00.000-05:00

The Supreme Court’s grant of certiorari this week to decide whether attempted burglary qualifies as a "violent felony" pursuant to the Armed Career Criminal Act merits close attention by Eighth Circuit practitioners. Alphonso James v. United States, No. 05-9264 (certiorari granted to Issue II on June 12, 2006). Resolution of the case may turn on an interpretation of the "catch-all" phrase in the violent felony definition, which encompasses any unenumerated crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. 924(e)(2)(B)(ii). Any guidance from the Court about this language may bear on the Eighth Circuit’s tendency to apply it to crimes requiring no violence in their commission, depending on the appellate court’s estimation of a perpetrator’s likely resistance to arrest. See United States v. Sun Bear, 307 F.3d 747, 755 (8th Cir. 2002) (Melloy, J., dissenting).

James came from the Eleventh Circuit, which declared a Florida conviction for attempted burglary a violent felony. James argued that an attempted burglary presented only "a risk of a risk of violence," citing United States v. Weekley, 24 F.3d 1125 (9th Cir. 1994). The Eleventh Circuit relied on its own precedents holding that attempts and conspiracies to commit an enumerated violent felony (burglary, arson, extortion, and crimes involving explosives) presented the same risk of physical injury to others inherent to the completed crime. United States v. James, 430 F.3d 1150, 1156 (11th Cir. 2005). James’ petition for certiorari (submitted by Florida’s Federal Defender R. Fletcher Peacock and Assistant Defender Craig L. Crawford) cited a split among the circuits specifically as to attempted burglary, the Eighth Circuit sharing the same column with the Eleventh Circuit in light of its ruling that attempted burglary in Florida was a violent felony in United States v. Demint, 74 F.3d 876 (8th Cir. 1996). The Demint opinion relied on Florida state cases declaring that the attempted required proof of more than mere preparation, which the court of appeals likened to Minnesota cases stating that attempted burglary applied to persons who would have completed the burglary but-for intervening circumstances. These interpretations, the Eighth Circuit concluded, ensured that attempted burglary involved "conduct that presents a serious potential risk of physical injury to another" within the meaning of Section 924(e)(2)(B)(ii).

The Court’s decision in James may illuminate the scope of the catch-all definition. The Court’s resolution could vindicate – or require modification of – our ongoing objections to the Eighth Circuit’s application of that language to crimes that do not require any resort to violence. E.g., United States v. Sun Bear, 307 F.3d 747 (car theft); United States. v. Johnson, 417 F.3d 990, 997-98 (8th Cir. 2005) (tampering by unauthorized operation of a vehicle); United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001) (escape from confinement); United States v. Adams, 442 F.3d 645 (8th Cir. 2006)(failure to return to confinement); United States v. McCall, 439 F.3d 967 (8th Cir. 2006)(en banc) (driving while intoxicated). Remember, the Sun Bear opinion created a circuit split concerning the inclusion of car theft within the catch-all definition, see United States v. Charles, 301 F.3d 309, 312-14 (5th Cir. 2002) (en banc), and five members of the court wanted to rehear Sun Bear en banc. United States v. Sprouse, 394 F.3d 578, 581 (8th Cir. 2005) (Lay, J., concurring) . In April of this year, a circuit split emerged as to whether "walkaway" escapes fit the identical catch-all definition used in the career offender sentencing guidelines thanks to the Ninth Circuit’s decision in United States v. Piccolo, 441 F.3d 1084 (9th Cir. 2006). The Ninth Circuit rejected the approach of the Eighth Circuit (and others) likening all escapes – including ‘walkaways’ – to a "powder keg, which may or may not explode into violence and result in physical injury to someone at any given time." Id. at 1029. In fact, three members of the Eighth Circuit dissented from the denial of rehearing en banc in Adams, which declared the discrete Missouri crime of failure to return to confinement a violent felony even though the legislature defined the offense to require proof of an offender’s lawful release to go at large "without guard".

In short, this is not the time to abandon objections to career offender enhancements based on these or similar offenses pursuant to Section 924(e)(2)(B)(ii), or U.S.S.G., Section 4B1.2(a)(2).

Case Summaries

2006-06-15T13:54:00.000-05:00

June 13, 2006 Slip Opinions. Four criminal cases.

U.S. v. Kevin Thomas Kirsch, No. 03-3696 ( D. Minnesota). Before Circuit Judges Arnold, Bye, and Smith. Per Curiam. Unpublished.

Kirsch pleaded guilty to (1) conspiring to defraud the government and (2) making false statements to a federal agency and appeals his 47-month sentence, arguing (1) plain error under Pirani, and (2) error under Booker because the district court sentenced him under mandatory Guidelines.

Additionally Kirsch appeals his $751,759.59 restitution order, "portions of which are owed jointly and severally with other co-defendants", arguing "that the restitution amount should be offset by the amount farmers paid in insurance premiums to acquire crop insurance" based upon U.S. v. Huber, 404 F.3d 1047, 1059-62 (8th Cir. 2005).

Kirsch, a grain elevator employee, participated in a scheme to provide false documentation to farmers, which stated greater damage percentages to durum wheat, in exchange for a decrease in the elevator’s purchase price. Kirsch then sold the wheat at non-discounted prices. The farmers then used the false documents "to obtain larger crop-insurance indemnity payments and disaster payments."

As to counsel’s arguments regarding the prison sentence, the Eighth Circuit held that in the instant case Pirani which deals only with plain error when a defendant is sentenced under a mandatory scheme, does not apply because the district court stated on the record that what Kirsch did, in abusing a position of trust, "was just wrong". The Eighth Circuit also held that Kirsch failed to show a "reasonable probability, based on the record as a whole, that he would have received a more favorable sentence" had the district court treated the Guidelines as advisory.

As to counsel’s arguments regarding the restitution order, the Eighth Circuit held that the restitution amount was clearly not erroneous because it is based upon uncontested "factual allegations contained in the PSR".

AFFIRMED.

U.S. v. Sharon Lee Walker, No. 05-2766 (N.D. Iowa). Before Circuit Judges Arnold, Bye, and Smith. Per Curiam. Unpublished.

Walker pleaded guilty to conspiring with others to (1) commit financial-aid fraud and (2) committing financial-aid fraud. In an Anders brief, Walker appeals the 87-month prison sentence, arguing that the sentence is unreasonable.

The Eighth Circuit held that because Walker failed to rebut the presumption that the Guideline range is reasonable as required by U.S. v. Lincoln, 413 F. 3d 716, 717-18 (8th Cir.). Additionally, The Eight Circuit held that there are no non-frivolous issues for appeal. Counsel’s motion to withdraw is granted.

AFFIRMED.

U.S. v. Gerald Ture, No. 05-3142 (D. Minnesota). Before Circuit Judges Murphy, Bowman, and Benton. Published.

Ture pleaded to one count of willfully attempting to evade federal income tax for the tax year 1999. The government appeals the sentence imposed by the district court on Gerald Ture, because it did not contain a term of imprisonment.

The Eight Circuit held that the sentence is unreasonable because:

(1) the district court failed to accord significant weight to
(a) the Guidelines range
(b) the seriousness of Ture’s offense
(c) the need to avoid unwarranted sentencing disparities
(2) the sentence does not
(a) promote respect for federal tax laws
(b) provide just punishment
(c) ensure adequate deterrence to willful tax cheats.

The Eighth Circuit concluded that in the instant case, the district court failed to adequately consider the seriousness of Ture’s offense and the goals of the Guideline range, therefore "any sentence without a term of imprisonment is wholly unreasonable".
VACATED and REMANDED for resentencing.

U.S. v. Ronald Donelson, aka Essie Donelson, No. 05-4330 (N.D. Iowa). Before Circuit Judges Murphy, Beam, and Benton. Published.

After a jury trial, Donelson was found guilty of being a felon in possession of a firearm. In the instant case Donelson fired ten rounds from a stolen semiautomatic firearm at a group of four individuals. Donelson appeals (1) his conviction and (2) his sentence of 120 months in prison (the statutory maximum).

On appeal, counsel argues that; (1) the district court should have suppressed the pretrial identification of him as the shooter, by one of the shooting victims, (2) there was not sufficient evidence to support his conviction , and (3) "the district court erred in departing upward when calculating his advisory guideline sentence" because it double counted by increasing the punishment "on account of a kind of harm that has already been fully accounted for by application of another part"of the Guidelines.

On counsel’s argument #1, the Eighth Circuit held that (1) the suspect lineup was appropriate because it contained six photos of individuals with similar physical characteristics and did not contain other identifying information, (2) prior to the lineup, the witness accurately described Donelson’s appearance and given street name, (3) witness was coherent and alert at the hospital when she initially identified Donelson, and (4) 3 days later, witness reinforced her identification of Donelson as the shooter.

On counsel’s argument #2, the Eighth Circuit held that they would not second guess the jury’s verdict because it is supported by a reasonable interpretation of the record, U.S. v. Cunningham, 83 F. 3d 218, 222 (8th Cir. 1996).

On counsel’s argument #3, the Eighth Circuit held that (1) the level four enhancement was directed at the harm caused by the use of a firearm in connection with another felony, and (2) the upward departure was based upon the "substantial risk to multiple victims of death or bodily injury", two types of harm which are not identical, and thus double counting did not occur. Additionally, the district court declared that "Donelson’s criminal history score did not adequately account for the seriousness of the his offense or the likelihood of recidivism".

The Eight Circuit held that because Donelson has severe offenses on his juvenile record and recidivism, the district court’s basis for departure was reasonable, U.S. v. Underwood, 364 F. 3d 956, 969 (8th Cir. 2004).
AFFIRMED

June 14, 2006 Slip Opinions.

No opinions today.

Melissa Tessaro
Legal Secretary
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

Case Summaries

2006-06-13T11:06:00.000-05:00

June 12, 2006 Slip Opinions. Two criminal cases.

U.S. v. Noriel K. Snider, No. 05-2701 (E.D. Missouri). Before Circuit Judges Murphy, Beam, and Colloton. Per Curiam. Unpublished.

Snider pleaded guilty to possession with intent to distribute cocaine base and appeals his 196-month sentence, arguing (1) plain error under Pirani, and (2) that "the sentence amounted to cruel and unusual punishment under the Eighth Amendment".

Counsel moved to withdraw and filed an Anders brief. Snider filed (1) a motion for appointment of new counsel, and (2) a supplemental brief claiming ineffective assistance of counsel. As to counsel’s arguments, the Eighth Circuit held that in the instant case Pirani which deals only with plain error "when a defendant is sentenced under a mandatory scheme", does not apply because the district court noted on the record that the Guidelines are advisory. The Eighth Circuit held that no violation of the Eight Amendment occurred because in an earlier ruling Eighth Circuit held that a sentence is presumed to be reasonable if it falls within the applicable Guideline range and nothing in the record rebuts that presumption, U.S. v. Tobacco.

Counsel’s motion to withdraw is granted. Snider’s motion for new appointed counsel is denied. Additionally, the Eighth Circuit found that Snider’s claims of ineffective assistance are more appropriate for post-conviction proceedings. AFFIRMED.

U.S. v. Ernest M. Hanan, No. 04-3372 (D. Nebraska). Before Murphy, Colloton, and Benton. Per Curiam. Unpublished.

Due to a circuit posting error, this slip opinion will be re-posted at a later date.
____________________
Melissa Tessaro
Legal Secretary
Office of the Federal Public Defender
Eastern and Western Districts of Arkansas

June 9, 2006 Slip Opinions. Three criminal cases.

U.S. v. Michael Kuntz, No. 05-2547 (E.D. Arkansas). Before Circuit Judges Melloy, Fagg and Benton. Per Curiam. Unpublished.

Kuntz pleaded guilty to felon in possession of a firearm and appeals his 180-month sentence, arguing (1) error in sentencing him as an armed career criminal; (2) his sentence, based on prior convictions, violates the Sixth Amendment; and (3) due process and ex post facto violations. The Eighth Circuit held no error in sentencing Kuntz as an armed career criminal because his four prior burglaries, committed over a period of five days, were separate criminal offenses under the ACCA. Kuntz’s argument under Shepard -- that his sentence should not have been increased based on prior convictions -- has already been rejected by the Eighth Circuit. Shepard did not alter the rule that a court may consider prior criminal history as a sentencing factor. Additionally, because Kuntz was sentenced to the statutory minimum, there is no merit to his argument that application of Booker’s remedy of advisory guidelines to his pre-Booker criminal conduct was an ex post facto or due process violation. Booker was not implicated by Kuntz’s sentence because the sentence was based on the statutory mandatory minimum. AFFIRMED.

U.S. v. Alexander Vasquez-Garcia, No. 05-2735 (D. S.D.). Before Circuit Judges Bye, Heaney and Colloton. Opinion by Judge Colloton.

Vasquez-Garcia appeals his sentence after pleading guilty to illegal reentry after deportation. Specifically, he objects to the 16-level enhancement under § 2L1.2(b)(1)(A)(iii) based on his prior conviction in California state court for possession of a short barrel rifle. The Guidelines call for the enhancement where a defendant is deported after a conviction for a felony that is a "firearms offense." Vasquez-Garcia claims that although the charging document alleged that he possessed a short barrel rifle, he actually had possessed a .380 automatic pistol, and that a conviction for possession of a pistol is not a "firearms offense" within the meaning of § 2L1.2. In support of his factual assertion about the prior conviction, he offered police reports from the incident resulting in the conviction.

Court found that Count II of the charging document specifically alleged that Vasquez-Garcia possessed a short barrel rifle. For purposes of § 2L1.2, possession of a short barrel rifle is a "firearms offense." The official record of the guilty plea shows that he pleaded guilty to this count of the information, and the government’s production of the charging document is sufficient to show that the conviction rested on the fact that he possessed a short barrel rifle. Court found that district court did not err in looking at the charging documents, as opposed to the police reports to determine whether the state court conviction qualified for the enhancement. AFFIRMED.

U.S. v. Bobby Jack Stanley, No. 05-3543 (W.D. Arkansas). Before Circuit Judges Melloy, Fagg and Benton. Per Curiam. Unpublished.

Stanley pleaded guilty to distribution of meth and was sentenced to 12 months and a day in prison and three years of supervised release. After he began serving his supervised release, the probation officer petitioned to revoke, alleging that Stanley had violated his release conditions. Stanley admitted violating the conditions of his supervised release and the district court imposed a new sentence of nine months in prison. Eighth Circuit held that the revocation sentence was within the authorized limits, and the district court considered appropriate factors in imposing it. Court concludes the sentence was not unreasonable. AFFIRMED.
_______________________
Betty J. Farr, Paralegal
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas

Case Summaries

2006-06-09T08:53:00.000-05:00

June 7, 2006 Slip Opinions. Four criminal cases.

U.S. v. Diallo Davidson, No. 05-1224 (E.D. Missouri). Before Circuit Judges Bye, Heaney and Colloton. Opinion by Judge Colloton.

Davidson argues error in the district court’s denial of his Batson challenge to the government’s peremptory strikes of two African-American jurors, asserting that the jurors were eliminated for racially discriminatory reasons. Government responds with a race-neutral explanation for its strikes, explaining that it was concerned about Juror 5’s demeanor -- that she "seemed very, very uncomfortable and physically not attentive and somewhat ‘off’" and the fact that she was a renter. The government similarly explained that Juror 25 was single, not a homeowner, and employed by a counseling center, which it believed suggested she would be sympathetic toward criminal defendants. To support his claim that these reasons were pretextual, Davidson points to two non-minority jurors whom he believes were similarly situated but were not stricken. Juror 12 was a renter with a high school education and a shorter employment history than Juror 5. Juror 1 was another person who lived with a homeowner, like Juror 25, but was not stricken.

Eighth Circuit finds no error. The jurors Davidson offered were similarly situated in only one respect: home ownership. They did not share the other qualities identified by the government. The reasons the government identified were race-neutral and appropriate. Body language and demeanor can be appropriate reasons to strike jurors, and the inference that Juror 25's employment might make her more sympathetic to criminal defendants is similarly valid. Moreover, the government did not exercise its strikes to eliminate the greatest possible number of minority jurors, a factor the Eighth Circuit has said "negates an allegation of purposeful discrimination."

Davidson also argues abuse of discretion in admitting evidence that the officers were pursuing him on a warrant for murder and assault. The jury was given a cautionary instruction that this evidence was not to be considered in determining whether Davidson had committed the crime of unlawful possession of a firearm. Government argues this was "background" information to explain why Davidson was being pursued. Davidson counters that the information had little to no probative value, and that the specific details were unfairly prejudicial and improperly suggested to the jury that he had a criminal propensity. Eighth Circuit finds merit in Davidson’s argument that the detail about the charges for which he was wanted had limited probative value, and the reasons why the detectives were pursuing him could have been satisfied with a less specific explanation that he was wanted on unrelated charges. But, the Court stated that the evidence was not wholly irrelevant. It came down to a matter of credibility. Davidson stated that he was not carrying a firearm and the detective claimed that he saw Davidson drop a weapon and the full description of why the detectives were there was relevant to explain the police conduct and to bolster the officers’ credibility. The court concluded that the danger of unfair prejudice did not substantially outweigh the probative value so as to conclude the district court abused its discretion in permitting the testimony. The jury already knew Davidson was wanted for some crime serious enough to trigger a lengthy high-speed chase, and the cautionary instruction issued to the jury diminished the risk that the evidence unfairly prejudiced Davidson.

Finally, Davidson argues that he is entitled to resentencing in light of Booker because the district court applied the guidelines as mandatory. Eighth Circuit agrees and affirms the conviction, but vacates the sentence and remands for resentencing.

U.S. v. Kenneth Archambeau, No. 05-2371 (D. S.D.). Before Circuit Judges Colloton, Heaney and Gruender. Per Curiam. Unpublished.

A jury found Archambeau guilty of felon in possession but acquitted him of knowing possessing a stolen firearm. District court applied two-level enhancement for possessing stolen firearms and calculated a guideline range of 84-105 months. Based on the atypical nature of the case, the court applied a "Booker variance" to arrive at a sentence of 66 months. Court found that given the fact of how drunk Archambeau was, he would have pawned anything in order to get more booze.

Archambeau argues the evidence was insufficient to prove that he possessed the guns. He contends that Darrel Gregor, the man to whom he pawned the guns, was not credible because he was blind, and that Sherry Zephier, who lives with Gregor, was not credible because she was intoxicated and had given contradictory accounts of the events. Evidence supported finding that Archambeau possessed the guns -- after the guns were stolen, he was seen carrying something wrapped in a blanket. When he arrived at Gregor’s house, Zephier saw the blanket covered two guns. Even though Gregor was blind, he recognized Archambeau’s voice, Gregor paid Archambeau $35 for the guns and Archambeau write down the serial numbers of the guns and signed his name.

Archambeau next argues the district court improperly gave an instruction that focused on his intoxication, rather than on the evidence, and improperly played into the "drunken Indian" stereotype. Court found the jury instruction was a correct statement of the law. Archambeau requested an instruction on intoxication as a defense to possessing a stolen firearm and presented evidence in support of this defense. It was proper for the court to clarify that intoxication was a defense to possessing stolen guns and not to unlawful possession of a firearm by a convicted felon, and the instructions given fairly and adequately submitted Archambeau’s theory of defense to the jury.

Lastly, Archambeau challenges the two-level enhancement under § 2K2.1(b)(4) for possessing a stolen firearm. The enhancement applies whether or not defendant knew or had reason to believe that the firearm was stolen and the Eighth Circuit has repeatedly held that the enhancement does not require that the defendant knew the firearm was stolen. Court held that the jury’s failure to find that Archambeau knowingly possessed a stolen firearm did not preclude the sentencing judge from finding that he possessed a stolen gun, without or without knowing the firearm was stolen. AFFIRMED.

U.S. v. Jesse Lee Crawford, No. 05-2989 (S.D Iowa). Before Circuit Judges Loken, Chief Judge Bowman, and Smith. Opinion by Chief Judge Loken.

Crawford appeals his guilty verdict for conspiracy to distribute MDMA, the controlled substance commonly known as ecstasy, arguing that he is entitled to a new trial because the district court refused to give jury instructions on multiple conspiracies. The Eighth Circuit held that although the indictment alleged distribution of MDMA, cocaine and marijuana, a conspiracy to distribute more than one controlled substance may be charged in the conjunctive -- the MDMA, cocaine and marijuana -- but submitted to the jury in the disjunctive -- MDMA, cocaine or marijuana. Crawford’s proposed multiple conspiracies instruction would have improperly instructed the jury to acquit, given the absence of evidence linking him to marijuana distribution. The government objected to Crawford’s proposed instruction and urged the court to give the multiple conspiracies instruction found in Eighth Circuit Model Instruction 5.06G. The court did so, and there was no abuse of discretion. The instructions as a whole properly conveyed the law to be applied.

Crawford next argues abuse of discretion by the district court’s refusal to give a purported theory-of-defense instruction that instructed the jury to determine whether he was an "independent contractor" as opposed to a "conspirator," and incorporated a multi-factor test that the IRS has adopted to distinguish between independent contractors and employees. The Eighth Circuit finds that this contention is absurd on its face. The evidence was more than sufficient to prove Crawford knowingly joined a conspiracy to distribute MDMA and there was no abuse of discretion in sustaining the government’s objection to his proposed instruction. A defendant is only entitled to a theory of defense instruction if the evidence supports the proffered instruction, and the instruction correctly states the law. AFFIRMED.

U.S. v. Ricky Davis, No. 05-3809 (D. Nebraska). Before Circuit Judges Murphy, Melloy and Gruender. Opinion by Judge Murphy.

Davis appeals his conviction for felon in possession, arguing insufficiency of the evidence and objecting to the admission of evidence related to a traffic stop and search warrant. Since Davis stipulated to the first and third elements of § 922(g)(1), the only issue is whether there was sufficient evidence upon which the jury could have found that he knowingly possessed the firearm. The jury heard credible testimony allowing it to find that Davis resided at the residence where the gun was found and exercised constructive possession of the firearm.

Davis also asserts that the district court abused its discretion by permitting the jury to hear evidence of the traffic stop of Burnell McCowin. He argues that evidence of the marijuana found on McCowin shortly after stopping by Davis’ residence should have been excluded because he was stopped several blocks away from where the gun was found. There was testimony that McCowin had gone to the residence, stayed for less than ten minutes, and was then found with marijuana packaged in bags similar to those found in the residence. District court did not abuse its discretion by concluding that the evidence was relevant to the jury issue of whether Davis knowingly possessed the firearm.

Finally, Davis argues error in permitting the government to introduce the first page of the warrant because it contained hearsay, it violated his Sixth Amendment confrontation right, and its probative value was substantially outweighed by its prejudicial impact. Eighth Circuit stated that under Rule 801(c), a statement is not hearsay "if it is offered for the limited purpose of explaining why a police investigation is undertaken". The district court admitted the face sheet for the limited purpose of establishing why the police officers were present at the residence and instructed the jury that the warrant was received for no other reason. Given the record, the Court finds no abuse of discretion.

Davis also argues that the first page of the warrant should have been excluded under Rule 403, which requires not only a comparison of the probative value and prejudicial effect of the disputed evidence, but of the relative probative value and prejudicial effect of any evidentiary alternatives. Since a key issue in the case was whether the house was Davis’ residence, there was a danger that the face sheet could unduly influence the jury in its factfinding. Given that the prejudicial effect of the exhibit could outweigh its probative value, the Eighth Circuit concluded that it was an abuse of discretion to admit the face sheet of the warrant, particularly since Davis was willing to admit that the officers had a legal basis for the search. However, Davis was not entitled to any relief since the error in admitting the warrant was harmless. The government presented overwhelming evidence of Davis’ guilt, and the district court’s instruction limited the jury’s use of the evidence to the proper purpose. AFFIRMED.

June 8, 2006 Slip Opinions. Three criminal cases.

U.S. v. Kenneth Dale Woods, Jr., No. 05-3339 (W.D. Missouri). Before Circuit Judges Colloton, John R. Gibson and Gruender. Per Curiam. Unpublished.

Woods appeals his sentence after a finding that he knowingly possessed a sawed off shotgun. He admitted to possessing a firearm when he pled guilty, but objected to the PSR finding that he knowingly possessed a sawed-off shotgun. The district court denied Woods’ objection and found that he knew that the shotgun was in his house and he knowingly possessed the shotgun.
Woods argues that hearsay testimony from deputy sheriff Brad Daniels was not sufficiently reliable to support a finding that he knowingly possessed the shotgun. Daniels testified that he interviewed Joshua Cummings, who admitted taking a go-cart from his aunt’s house and stealing the shotgun from his mother’s gun safe which he gave to Woods. Although Woods objected to the factual allegations in the PSR, he did not object to the testimony during the sentencing hearing. Eighth Circuit concludes there was not error because the district court did not abuse its discretion in relying on the testimony. Even without the hearsay testimony, a reasonable factfinder could conclude that Woods knew the shotgun was in the house, went into the house to retrieve it after the deputy sheriff asked about the gun, and then tried to provide an innocent explanation for its presence in his house. This conduct, along with the fact that Woods initially denied knowledge of a stolen go-cart provides circumstantial evidence that corroborates Cummings’s statement that he gave the gun directly to Woods. Even uncorroborated hearsay may be admitted at sentencing if it bears sufficient indicia of reliability. AFFIRMED.

U.S. v. Arthur Dale Senty-Haugen, No. 05-3419 (D. Minnesota). Before Chief Judge Loken, Circuit Judges Bowman and Smith. Opinion by Chief Judge Loken.

Senty-Haugen pleaded guilty to filing false tax claims and conspiracy to defraud the government. He was sentenced to 57 months in prison and ordered to pay the IRS over $71K in restitution. He appeals, arguing against a four-level enhancement for his role as an organizer or leader of the offenses and the order of mandatory restitution.

The organizer/leader enhancement is assessed if the criminal activity involved five or more participants or was otherwise extensive. Senty-Haugen argues that there was no evidence he exercised the requisite control or decision making authority over other participants, or that he received any profits from their activities. But, the evidence showed he conceived and initiated an extensive tax fraud scheme and then involved other people in the scheme. In applying the five-or-more participants requirement, a "participant" must be criminally responsible for the commission of the offense, but the defendant need organize or lead only one other participant. The plea agreement conclusively established that Senty-Haugen organized others in the scheme by instructing them how to file false tax returns to profit from the scam. Even if the other persons were not "participants" because they were not "criminally responsible" as claimed by Senty-Haugen, the entire scheme was without question "otherwise extensive" and he was clearly its organizer and leader.

On the issue of restitution, the court found that the IRS is an eligible victim under the Mandatory Victims Restitution Act of 1996 (MVRA). Although the court had never addressed this issue, it has repeatedly affirmed restitution orders payable to various government agencies under the MVRA. The Eighth Circuit followed the analysis of the Second Circuit that (1) the MVRA expressly identifies the government as an eligible victim by providing: "[i]n any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution." 18 U.S.C. § 3664(i); (2) the court noted the many cases construing the identically worded VWPA definition to include the government as a victim eligible to receive restitution; and (3) the court explained that construing the word "victim" to include the government is consistent with the MVRA’s purpose "to expand rather than limit, the restitution remedy."

Senty-Haugen further argues error in imposing restitution in the full amount the IRS paid in fraudulent claims because that amount includes monies he did not receive. The Eighth Circuit disagrees. The MVRA requires restitution "in the full amount of each victim’s losses ... without consideration of the economic circumstances of the defendant." § 3664(f)(1)(A). In conspiracy cases, the restitution amount includes all harm caused "by the defendant’s criminal conduct in the course of the scheme." § 3664A(a)(2). Awarding the full amount as restitution was not clear error.

Finally, Eighth Circuit squarely rejects Senty-Haugen’s argument that the determination of the amount of restitution without an admission or jury trial violated his Sixth Amendment rights under Blakely. See U.S. v. Carruth, 418 F.3d 900, 902-04 (8th Cir. 2005). AFFIRMED.

U.S. v. Darryl Joe Blakey, aka "Big Daddy," No. 05-3856 (D. S.D.). Before Circuit Judges Colloton, John R. Gibson, and Gruender. Opinion by Judge John R. Gibson.

Eighth Circuit affirms Blakey’s conviction after jury trial for conspiracy to possess 50 grams or more of cocaine base with intent to distribute and possession with intent to distribute the same amount of cocaine base. On appeal, he argues the district court should have granted his motion to acquit based on insufficient evidence to prove he knew of or controlled crack cocaine found hidden in the motel room. However, there was substantial evidence that he knew of the crack and that he exercised dominion over the motel room. Witnesses described an ongoing and very busy drug enterprise in which Alexander Rhea received calls and held the bulk of the inventory while Blakey made the deliveries. Police saw Blakey leave the motel, stop by an apartment, and leave immediately. When the police stopped him, he had crack in small paper packages; $40 in cash, which was the going price for one to two rocks of crack; and the cell phone which Rhea used for drug contacts. Witnesses had also seen Rhea in Blakey’s presence using a tic tac box equipped with a magnet to store crack and storing crack in his sock. Blakey had crack in his socks when he was arrested.

The jury could also find that Blakey exercised dominion over both the crack and the motel room where it was found. He rented the room himself, was in the room until he left to run an errand, and his personal effects were found in the room. When he was searched, he had keys to the room. Although Blakey’s dominion was not exclusive because Rhea was in the room as well, there was evidence that the two cooperated in using the room as an operations base for the drug business. As for the crack itself, a person can be said to exercise dominion over drugs in another’s possession if the relationship between the defendant and holder is such that the defendant can produce the drugs for a customer at will. The court held there was sufficient evidence to support a finding of constructive possession.

Blakey also challenges the sufficiency of the evidence to support the element of intent to distribute the crack found on his person. This argument does not affect the outcome of his case, since the Eighth Circuit has already decided he could be found accountable for the larger amount of crack in the motel room. Additionally, he told a police officer that he had been "running" crack for "quite a while." The evidence of intent to distribute is plainly sufficient. AFFIRMED.

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

Case Summaries

2006-06-07T09:31:00.000-05:00

June 6, 2006 Slip Opinions. Five criminal cases.

U.S. v. Dean Little Hawk, No. 04-3666 (D. S.D.). Before Circuit Judges Murphy, Melloy and Gruender. Opinion by Judge Gruender.

Little Hawk pled guilty to assault resulting in serious bodily harm to his two-year-old daughter. He forcibly held the naked child on her back in a bathtub of steaming hot water after becoming upset that she had soiled herself. He left the child unattended, trapped in the steaming water for several minutes. The girl suffered severe first and second degree burns, had to be hospitalized for three weeks, and underwent multiple painful medical procedures, including blood transfusions, wound debridement and skin grafting, resulting in permanent scarring.

Little Hawk raises several arguments on appeal, all of which are rejected by the Eighth Circuit. First, he was not entitled to acceptance of responsibility because he did not accept full responsibility for all of his conduct. He minimized the crime and made excuses for his behavior by claiming he did not mean to hurt the child even though he admitted he knew the water was hot. He asserted that his daughter did not cry during the scalding or during the transport to the hospital. He attributed the assault to the fact that he "jumped into fatherhood too soon." Second, Little Hawk’s sentence was not unreasonable nor was it a product of the district court’s emotion. The court was not improperly influenced by emotion by its characterization of the crime as a heinous act constituting torture. Torture is a ground for upward departure under § 5K2.8, and the court’s use of the word was a deliberate finding of fact in support of the sentence. Third, the district court’s decision to sentence Little Hawk to 60 months in prison was a reasonable application of the § 3553(a) factors, given the brutality of the crime, the defenselessness and prolonged suffering of the victim, the severity of the injuries, the resulting permanent disfigurement, and the complete abdication by Little Hawk during the attack of his most basic responsibilities as a parent. Finally, the district court’s failure to comply with § 3553(c)(2) by not including the statement of reasons as part of the judgment and commitment order did not require reversal as Little Hawk’s sentence was reasonable. AFFIRMED.

U.S. v. Gregory Alan Krutsinger, No. 05-2713 (D. N.D.). Before Circuit Judges Riley, Heaney and Melloy. Opinion by Judge Melloy.

Krutsinger and Katherine O’Meara were low-level participants in a large conspiracy to distribute meth. Both testified before a grand jury pursuant to a grant of informal immunity. Both later pled guilty for having committed perjury. District court found the underlying conspiracy involved more than 15 kilos of meth and correctly calculated the offense level as 38 pursuant to §§ 2J1.2 and 2J1.3. Court then correctly applied the cross referencing formula of § 2X3.1(a)(3)(A), which limits to 30 the maximum base offense level for an accessory after the fact. Court then applied a three-level reduction to Krutsinger and O’Meara for their acceptance of responsibility.

Krutsinger’s offense level of 27 and criminal history category of IV resulted in a guidelines range of 100-125 months. Government made a 5K1.1 motion and recommended 60 months, a 40% reduction from the low end of the advisory guidelines range. District court imposed a 21-month sentence because it felt the government’s recommendation did not fully recognize the extraordinary nature of the assistance Krutsinger provided. Also, court noted that while on presentence release, Krutsinger did not cause any problems but maintained sobriety and lived a stable life, and spoke to the public about the dangers of drug addiction.

O’Meara’s offense level of 27 with a criminal history category of I resulted in a range of 70-87 months. Government recommended a 70-month sentence; district court sentenced her to 24 months. Court referred to O’Meara’s "extraordinary rehabilitative efforts" including voluntary completion of a drug treatment program prior to be indicted and continued attendance at AA and NA meetings. Additionally, O’Meara had difficulties with an obsessive compulsive disorder, was employed at the time of sentencing, and had re-established a relationship with her family.

The sentencing memorandum for both defendants expressed the district court’s desire not to impose disparate sentences. The court explained that another co-conspirator who was similarly situated was also convicted of lying to the grand jury but had been sentenced to only 15 months in prison. Another co-conspirator had cooperated and received a 5K1.1 departure and the government recommended a 20-month sentence, which amounted to a 71% departure from the bottom of his guidelines range.

The Eighth Circuit notes that this case presents an unusual scenario. The court stated that if it were only considering the characteristics of each defendant and the extent of his or her cooperation, it would likely reverse. However, Booker made clear that the § 3553(a) factors must be considered in fashioning a reasonable sentence. Although the guidelines remain an important factor in determining a sentence, this is a case where another § 3553(a) factor predominates -- the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. Each co-conspirator in this case committed identical crimes within a four-month period and they each lied to the grand jury. The only distinction the government points to is the timing of the indictments and convictions. Based on the facts of this case, the Court cannot say the district court improperly applied § 3553(a)(6) or abused its discretion in granting a 5K1.1 departure to achieve sentencing uniformity. AFFIRMED.

U.S. v. Rex Layne Bassinger, No. 05-3248 (S.D Iowa). Before Circuit Judges Bye, Hansen and Smith. Per Curiam. Unpublished.

Bassinger previously appealed his 240-month sentence for drug possession which was remanded for resentencing under Booker. On remand, district court sentenced him below the guideline range to 216 months. He now appeals, arguing the district court erred by applying enhancements based on facts neither admitted nor found by a jury and by imposing an unreasonable sentence. Eighth Circuit finds Bassinger’s claim is without merit. When a district court treats the guidelines as advisory, no Sixth Amendment error is committed by finding facts necessary to apply an enhancement. Also, Bassinger’s sentence was 24-months below the statutory maximum and the effective advisory guideline range. Therefore, his sentence is reasonable. AFFIRMED.

U.S. v. Tracy Eugene Russell, No. 05-3361 (W.D Missouri). Before Circuit Judges Melloy, Fagg and Benton. Per Curiam. Unpublished.

Russell pleaded guilty to being a felon in possession of a firearm. District court rejects his contention that he possessed a firearm solely for sporting purposes and was entitled to a base offense level of 6 under § 2K1.1(b)(2). Undisputed testimony at sentencing showed the firearm was found next to Russell inside an automobile at 3:00 in the morning, with a loaded clip nearby and 380 grams of marijuana in the back seat. Based on this testimony, the Eighth Circuit agrees with the district court ruling. AFFIRMED.

U.S. v. Timothy Lawan Postley, No. 05-3402 (N.D Iowa). Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by John R. Gibson.

Postley appeals his sentence following conviction on a conditional guilty plea to drug offenses. He contends he should not have been assessed a criminal history point under § 4A1.2(c)(1) for an earlier Iowa conviction for interference with official acts with injury, and that the imposition of the term of supervised release violates 18 U.S.C. § 3559.

The first sentence of § 4A1.2(c) states that sentences for all felony offenses are counted. The section also discusses which misdemeanor sentences are counted. Postley argues his conviction for interference with official acts with injury is similar to the misdemeanor of resisting arrest which the section says should not always be counted. Eighth Circuit need not decide whether the conviction is similar to or distinguishable from resisting arrest because in either case, it is a felony under the guidelines. Although the crime is called an aggravated misdemeanor under Iowa law, it falls within the definition of a felony under the Guidelines.

Postley was convicted under 21 U.S.C. § 841, which carries a penalty of 10 years to life, plus a fine, plus a term of supervised release of at least five years. He argues that § 841 violates 18 U.S.C. § 3559. However, § 3559 addresses only the maximum term of imprisonment; it does not address supervised release and so cannot be violated by 841(b)’s authorization of a term of supervised release. Thus, Postley’s constitutional challenge to 21 U.S.C. § 841(b)’s authorization of supervised release is rejected. AFFIRMED.

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

Downward variance for substantial assistance without a 5K1.1 motion

2006-06-06T16:42:00.000-05:00

Defender Nick Drees from the District of Iowa submitted the following:

Yesterday's unpublished opinion in US v Nuno-Alvarez,2006 WL 1519639 (8th Cir, 6/5/6), at least implicitly approves downward variances for cooperation when the government does not file a 5K1.1 motion. The court of appeals affirmed Judge Bennett's decision to deny a downward variance on the basis of, among other things, non-5K cooperation. The court said, "[N]othing in the record indicates the district court failed to consider a relevant factor, considered an improper or irrelevant factor, or made a clear error of judgment in weighing the 18 USC section 3553(a) factors." The court followed this statement with a string cite that included US v Fernandez,443 F3d 19, 34 (2nd Cir 2006), in which the Second Circuit, while also affirming the denial in that case, said the judge "had the power, as long as the sentence imposed was reasonable, to reduce Fernandez's sentence in light of 'non-5K cooperation' under 18 USC section 3553(a), [though] she was under no obligation to provide any such benefit."
At least two Iowa judges, Judge Bennett and Judge Pratt, have granted downward variances for cooperation when the government has failed to file the 5K1.1 motion.

Case Summaries

2006-06-06T14:31:00.000-05:00

June 1, 2006 Slip Opinions. One criminal case -- Sentencing.

U.S. v. Jose Soto, No. 05-2430 (D. Neb). Before Circuit Judges Riley, Melloy, & Benton. Opinion by Melloy.

Soto appeals his 120-month drug sentence, arguing that he is entitled to a safety-valve reduction due to his two proffer interviews. District court denied the reduction, finding that Soto did not meet the statutory requirements to prove his eligibility. Specifically, the court found that Soto failed to satisfy the fifth prong of the safety-valve requirements. He neither gave truthful and complete information regarding the offense for which he pled nor about his relevant conduct.

There were several reasons why Soto’s proffers did not meet the requirements to qualify for safety-valve relief. Soto claimed to have had a minimal role in the drug conspiracy, but his story contradicted the interviews of the other co-defendants. The proffers of all the other co-defendants show a larger role for Soto than he attributed to himself. There were statements made by one co-defendant which connected Soto to the firearm in the case. Also, Soto’s account was less detailed that those of his co-defendants, and there were numerous discrepancies between the interviews of the co-defendant and Soto about specific factual events.
Because of these discrepancies, the district court found that Soto’s proffered testimony was not sufficiently credible to establish that he was entitled to safety-valve relief. The Eighth Circuit affirmed, holding that district court did not err in finding that Soto had failed to meet his burden.

June 2, 2006 Slip Opinions. One criminal case -- Sentencing.

U.S. v. Donald Lee Bowers, No. 05-2252 (D. Neb). Before Circuit Judges Melloy, Fagg and Benton. Per Curiam.

Bowers pleaded guilty to drug and firearms offenses. Having determined that the advisory Guidelines prison range was 135-168 months for the drug offense and the statutory maximum of 120 months for the firearm offense, the district court imposed concurrent prison terms of 135 months and 120 months. Bowers appeals, arguing in his Anders brief that the court abused its discretion in denying his motion for downward departure or deviation from the Guidelines range. Eighth Circuit held that a sentence within the applicable Guidelines range is presumptively reasonable and Bowers failed to satisfy his burden to rebut the presumption that his sentences are reasonable. District court’s decision not to exercise its authority to depart downward is unreviewable. Affirmed.

June 5, 2006 Slip Opinions. Five criminal cases.

U.S. v. Sonny Ray Escarsega, aka Sonny Ray Ruiz, No. 03-2963 (D. S.D.). Before Circuit Judges Melloy, Hansen and Colloton. Per Curiam. Unpublished.

Escarsega argues several issues on appeal for his conviction for kidnapping, sexual assault, and assault with a dangerous weapon. 1) sufficiency of the evidence as to assault with dangerous weapon: evidence was clearly sufficient to support conviction. Escarsega stabbed victim with knife, hit her in head with a telephone receiver, kicked her with shod feet, and cut her back with a razor blade. 2) sexual assault convictions: although victim testified at trial that she had consensual sex with Escarsega, she admitted at trial that she told FBI and testified before grand jury that he forced her to have sex, and that she was afraid to refuse him. Additionally, evidence established Escarsega assaulted victim numerous times, including once when she refused to have sex with him. Jury was free to credit her prior statements. 3) kidnapping conviction: although victim testified at trial she chose to stay with Escarsega, she also admitted at trial she had told the FBI and testified before grand jury that he would not let her leave and threatened to kill her if she left. Again, the jury could discredit her trial testimony, but credit her prior statements. 4) motion to suppress evidence obtained by search warrant: even though Edward Charging Elk did not lease the apartment where victim was held, he had lived there for five months prior to search and thus had common authority over the apartment. Even if Charging Elk did not have actual authority to consent to search, officers reasonably believed he had such authority, given their belief that he lived at the apartment, and his previous display of authority over the apartment by initially refusing to consent to the search. 5) motion to sever counts of the indictment: counts were properly joined and Escarsega was not severely prejudiced by joinder. The sexual assault and assault counts he sought to sever involved similar conduct as the counts that would remain, all the conduct was alleged to have occurred within a 10-month period, and evidence on each count would have been admissible at trial on the other counts. 6) admission of evidence of assault on two prior occasions: evidence of other assaults was relevant to show that Escarsega intended to cause bodily harm during the charged offense, and the victim feared bodily harm if she refused sexual intercourse; the other assaults were similar and occurred a year later; victim’s testimony clearly established other assaults occurred; and the evidence was more probative than prejudicial -- district court twice instructed jury that evidence was admitted only for proving intent. 7) mistrial: even if government’s question (whether FBI agent requested Escarsega to provide written or tape-recorded statement) impinged on Escarsega’s right to remain silent, the question did not deprive him of a fair trial. FBI agent had already testified that Escarsega agreed to be interviewed and talked about the charges, and the court instructed jury to disregard the question. 8) expert testimony should have been excluded: Escarsega did not request disclosure of written summaries of testimony from Battered Woman Syndrome, and government learned of need for expert testimony shortly before trial when victim indicated she would recant her previous statements. 9) denial of Batson challenge based on government’s strike of only remaining Native American on jury panel: government offered race-neutral reasons for the strike, including concern that the person’s body language was "very closed" during government questioning. AFFIRMED.

U.S. v. Gary W. Farris, No. 04-3971 (W.D Missouri). Before Circuit Judges Loken, Chief Judge Gruender and Benton. Per Curiam.

Farris pled guilty to felon in possession and possessing a firearm with an obliterated serial number. Because he was sentenced in the period between Blakely and Booker, the district court based his guidelines sentencing range solely on facts admitted by Farris and applied the guidelines as mandatory. District court found Farris’s 2001 Missouri conviction for unlawful use of a weapon and his 2001 conviction for tampering with a motor vehicle in the first degree were both crimes of violence as defined by § 4B1.2. His base offense level was increased from 14 to 24 and he was sentenced at the high end of the guidelines range to 115 months in prison. Farris appeals, arguing that tampering with motor vehicle is not a crime of violence, and his mandatory sentence violated Booker. The charging document showed that tampering with a vehicle in the first degree is a crime of violence. Because district court determined Farris’s guidelines range with no enhancement based on judge-found facts, the error in using the mandatory guidelines is harmless. The government met its burden of demonstrating that no grave doubt existed as to whether Farris would have received a more favorable sentence under an advisory guidelines system. The district court considered Farris’s argument for a sentence at the low end of the guidelines range and exercised its discretion and sentenced him in the middle of the guidelines range. Sentence imposed by district court is AFFIRMED.

U.S. v. Gabino Nuno-Alvarez, aka Gavino Nuno-Alvarez, No. 05-2040 (N.D Iowa). Before Circuit Judges Riley, Magill and Gruender. Per Curiam. Unpublished.

Nuno-Alvarez pled guilty to drug charges and was sentenced to concurrent sentences of 87 months in prison. Counsel moved to withdraw and filed Anders brief. District court correctly calculated the sentence at the bottom of the guidelines range and nothing in the record indicated the district court failed to consider any relevant § 3553(a) factors. The court determined that Nuno-Alvarez’s status as a deportable alien, his cooperation with authorities, and his familial obligations did not warrant a downward departure from the guidelines range. Therefore, the sentence was reasonable. Counsel’s motion to withdraw granted. AFFIRMED.

U.S. v. Ronnie Lorenzo Workman, No. 05-2302 (S.D Iowa). Before Circuit Judges Melloy, Fagg and Benton. Per Curiam. Unpublished.

Workman pled guilty to being a felon in possession of firearm. Counsel moved to withdraw and filed Anders brief, arguing error in enhancing Workman’s sentence under § 2K2.1(b)(5) for using or possessing a firearm in connection with another felony offense. Eighth Circuit concludes the enhancement was properly assessed. District court did not err in finding Workman possessed meth with intent to distribute it, his conduct constituted a felony offense within the meaning of § 2K2.1(b)(5), and in determining that it was not clearly improbable the firearm was used in connection with the distribution felony. Counsel motion to withdraw granted. AFFIRMED.

U.S. v. Rene Ramirez-Hernandez, No. 05-3386 (W.D Arkansas). Before Circuit Judges Arnold, John R. Gibson, and Smith. Opinion by Arnold.

Ramirez-Hernandez pleaded guilty to possession of meth with intent to distribute, then moved to withdraw his plea on the ground that his attorney coerced him into making it. District court denied motion, concluding that there was no fair and just reason to permit a withdrawal. Both in the plea agreement and in his plea colloquy, Ramirez-Hernandez stated that his plea was not the product of coercion. After he received the PSR and realized his guidelines range was 121-151 months in prison, he filed a pro se motion asserting that his attorney made him believe that if he pleaded guilty he would receive a lower sentence than he would if he proceeded to trial. Eighth Circuit states that a defendant may not withdraw a plea merely because he misunderstands how the sentencing guidelines will apply to his case. So long as the district court tells defendant the statutory range of punishment he faces and informs him that the guidelines will be used in determining the ultimate sentence, the plea is binding, even if the misunderstanding is caused by defense counsel’s erroneous estimation of the ultimate sentence.
Judgment of district court is affirmed. Ramirez-Hernandez’s claim of ineffective assistance of counsel that his attorneys’ supposed misstatements amounted to a fair and just reason to allow him to withdraw his guilty plea is denied with prejudice. Court concluded this claim is more properly raised in a separate motion under § 2255.

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

Important Supreme Court and 8th Circuit Developments, May 1, 2006

2006-05-02T09:43:00.000-05:00

Mark Falk of the South Dakota Defender's Office prepared the following summary of two May 1 decisions, one from the Supreme Court and one from the Eighth Circuit:

The S.Ct. issued a unanimous habeas decision yesterday setting aside a murder conviction because the State Court prevented the accused from introducing third party perpetrator evidence. Justice Alito wrote the opinion. A short summary is set out below.

Holmes v. South Carolina, ___ U.S. ___, 04–1327 (May 1, 2006) habeas - Murder conviction is vacated because the trial court refused defendant’s evidence of a possible third party perpetrator. Justice Alito writes for a unanimous court.

Facts: Holmes was convicted of raping, robbing and murdering an 86 year woman. He was sentenced to death. A State court granted habeas relief and ordered a new trial. At the second trial the State relied upon forensic evidence, including: a palm print; matching cloth fibers; DNA evidence; and matching blood evidence. Homes was also placed near the scene an hour before the murder.
Holmes called experts to testify the State’s forensic evidence had been contaminated and by argued the police were trying to frame him (the OJ defense). Holmes proffered evidence of a third party perpetrator, including placing the third party at the scene, and evidence of his admissions and inculpatory statements. The trial court excluded this evidence because "it merely casts a bare suspicion upon another or raises a conjectural inference as to the commission of the crime by another." The State Supreme Court affirmed, holding that "where there is strong evidence of an appellant’s guilt, especially where there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence."
Held: Conviction reversed. ""Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’" Crane v. Kentucky, 476 U. S. 683, 690 (1986). "This right is abridged by evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve." The Court gives several examples, but then points out that "well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury."

The State improperly extended these limitations by making the strength of the prosecution’s case the critical inquiry: "If the prosecution’s case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues." The State Supreme Court’s limitation "violates a criminal defendant’s right to have "‘a meaningful opportunity to present a complete defense.’" Crane, 476 U. S., at 690 (quoting Trombetta, 467 U. S., at 485).
http://www.supremecourtus.gov/opinions/05pdf/04-1327.pdf

Also, yesterday the 8th Circuit gave the defense bar another important practice tip - During the prosecution's closing argument, defense counsel must constantly interrupt and object, object, & object again to any and all comments that might arguably be improper. When in doubt, interrupt & object. Otherwise, Judge Colloton, writing for the panel said, "[i]f an arguably improper statement made during closing argument is not objected to by defense counsel, we will only reverse under exceptional circumstances." The Court left the reader with the impression they would have reversed in this case if defense counsel had objected.

Three of the improper but unobjected to comments consisted of: (1) The prosecutor used the phrase "I submit to you;" (2) the prosecutor essentially testified as a witness by telling the jury during closing about how he and the expert fired the starter pistol gun and about how easily the prosecutor dismantled it; and (3) even though there had been no testimony or evidence about how the govt gun expert was to be compensated, the prosecutor told the jury that the govt expert was going to be paid the same no matter what he said at trial, in contrast to the defense gun expert who wouldn't be there if he had an opinion the accused didn't like.

The case is: USA v. Ben Mullins, No: 05-2420.

Atlanta Sentencing Seminar a Peach of an Event

2006-04-03T18:15:00.000-05:00

Defenders from around the country converged on Atlanta to discuss various sentencing and appeal issues this past week.

The seminar was a prelude to the national defender conference to be held in San Francisco in late May, 2006. At that meeting, with attendance expected to top 500, sentencing and appeal strategies will be refined and presented to the group in a series of plenary and small-group sessions.

It is expected that information from the San Francisco conference will be made available to both CJA panel attorneys, as well as federal defenders who were unable to attend.

Sentencing Commission Enhancement OK'd

2004-12-05T20:48:00.000-06:00

US v. Harris, Case No. 04-1593 (12/03/04). Defendant's sentence for a drug conviction is affirmed where the Sentencing Commission did not exceed its authority when it extended the enhancement for use of a minor to commit a crime to defendants under the age of 21.