Case Summaries Discontinued

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

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

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

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

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

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

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

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