Archive for April, 2009

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Search that uncovered a gun between mattress and box spring upheld as reasonable because it was within the grab area of two individuals who were present in the apartment where the defendant was arrested pursuant to an arrest warrant.

Wednesday, April 29th, 2009

United States v. Bennett, 555 F.3d 962 (January 21, 2009)

The defendant was convicted of possession of a firearm by a convicted felon. During the course of executing an arrest warrant for Bennet at his apartment, the police conducted a protective sweep of one of the bedrooms in the apartment, occupied by Bennet’s brother and a friend, where they found a rifle between a mattress and box spring. The defendant moved to suppress arguing that the search “improperly expanded the scope of their protective sweep outside Bennett’s grab area.” The Eleventh Circuit upheld the search finding that the agent had a reasonable belief that the brother and friend could be dangerous and both had been moved to the bed by the agent. It was reasonable for the agent to lift the mattress as a safety precaution since the officer was not familiar with what objects may have been in the room, as the boys may have been, and the mattress was properly within the limited grab area of both young men.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Procedure, Search and Seizure, Search incident to arrest | No Comments »

Court finds U.S.S.G. Section 2246(D) clearly indicates that Congress used the phrase “any person” when it meant to include the offender himself, as well as another individual, and the phrase “another person” when it meant to exclude the offender.

Wednesday, April 29th, 2009

U.S. v. Aldrich, (11th Circuit Ct. Appeals, April 27, 2009)

This is an appeal from a 168- month sentence for violation of 18 U.S.C. 2422(b), using a computer to entice a minor to engage in sexual activity. The defendant argued that the district court erred in applying a two-level enhancement at sentencing under U.S.S.G. 2G2.1(b)(2)(A) because the statute language was ambiguous. He also raised a due process challenge based on an “inaccurate” statement in his PSI.

The defendant challenged that his behavior (masturbation) did not warrant the enhancement because his behavior did not fall within the guideline that states: “the commission of a sexual act or sexual contact,” where “sexual contact” is defined as “the intentional touching…of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” The defendant insisted that “any person” could not include oneself because it was not possible for the defendant to “harass” himself. He argued that all six prohibited acts must be performed in order to violate the statute.

The Eleventh Circuit affirmed the District Court, finding that the use of the phrase “any person” in the Section 2246(3) definition of “sexual contact” demonstrates Congress’ intent to include masturbation among the acts to which the definition and the Section 2G2.1(b)(2)(A) enhancement was to apply. Moreover, the Court ruled that Section 2246(3) uses the conjunction “or” instead of “and” in its list of potential motives; therefore a defendant need only intend to “abuse, humiliate, degrade, or arouse or gratify” in order to violate the statute.

Defendant’s second argument stated that the PSI contained invalid factual premises that infringed on his constitutional rights, i.e., reading that Aldrich was masturbating “in front of” a minor when in fact he was in front of his web camera. The Court held that there is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera.

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Posted in Computer Sex Crimes, Internet Crime, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | No Comments »

The defendant’s 16-level increase for illegal reentry stands even though the newly amended guidelines would allow for a departure.

Tuesday, April 28th, 2009

U.S. v. GONZALEZ, 550 F.3d 1319 (11th Cir. Dec. 12, 2008)

The Court rejected challenges to the defendant’s 50 month sentence following her guilty plea for illegally reentering the United States after having been deported. The sentencing court relied on the since-amended Guideline, § 2BI.2(b)(I)(A)(ii), and treated a prior bank robbery as a basis for a 16-level sentence enhancement. The amended guideline gave the sentencing court discretion to impose a 16-level enhancement based on this prior offense. Even though the enhancement was no longer mandatory, the error was not plain because nothing in the record suggested that the court would impose a lesser sentence on resentencing. The Court also rejected the argument that the sentence was unreasonable. In consideration of the § 3553(a) factors, the district court does not need to discuss or state each factor explicitly. An acknowledgment the district court has considered the defendant’s arguments and the § 3553(a) factors will suffice.” Here, the district court satisfied these requirements.

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Posted in Sentencing Guidelines, sentence enhancement, upward variance | No Comments »

A two level increase for violating a position of public trust is not applicable to federally licensed firearms dealer who sells to a convicted felon.

Monday, April 27th, 2009

U.S. v. LOUIS, 2009 WL 485239 (11th Cir. February 27, 2009)

The main issue in this appeal is whether a federally licensed firearms dealer who sells firearms to a convicted felon is subject to a sentencing guidelines enhancement for abusing position of public trust. After an in depth review of public trust enhancement cases in the Eleventh Circuit, the Court concluded that a licensed firearms dealer is not a position of public trust and reversed the sentence enhancement.

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Posted in Sentencing Guidelines, sentence enhancement | No Comments »

Special condition of supervised release that the defendant report after deportation was upheld.

Monday, April 27th, 2009

U.S. v. GUZMAN, 558 F.3d 1262 (11th Cir. 2009)

Guzman was sentenced with a special condition of supervised release that if he is deported he shall contact probation with in 72 hours of his arrival to provide his current address in Mexico. The court found this condition was reasonably related to the requirements of 18 U.S.C. §3583(d) and did not involve a deprivation of liberty.

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Posted in Uncategorized | No Comments »

Prior Florida conviction for fleeing found not a predicate violent felony for a sentencing enhancement under 924(e).

Monday, April 27th, 2009

U.S. v. HARRISON, 558 F.3d 1280 (11th Cir. 2009)

The issue was whether the district court erred in finding a conviction under Florida Statutes 316.1935(2), which is the willful fleeing statute, is a violent felony for the purposes of the Armed Career Criminal Act 18 U.S.C., § 924(e). In a lengthy analysis of recent Supreme Court opinions Begay v. U.S., 128 S. Ct 1581 (2008) and Chambers v. U.S., 129 S. Ct 687 (2009) as well as the Florida statute, the court concluded that the conviction cannot support the § 924(e) enhancement.

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Posted in Sentencing Guidelines, sentence enhancement | No Comments »

The En banc Court reversed the panel decision that overturned a fraud conviction for the failure to give the defense requested jury instruction.

Monday, April 27th, 2009

U.S. v. SVETE, 556 F.3d 1157 (11th Cir. 2009)

The panel reversed the conviction because the pattern jury instructions failed to instruct concerning whether it was reasonable for prudent investors to rely on defendants’ statements. The panel held that the inaccuracy in the jury instruction impaired the defendants’ ability to argue that, in light of the available documentation, it was unreasonable for any prudent investor to have relied on the defendants’ contrary statements, or not to seek independent advice. Svete, 521 F.3d 1302. The en banc Court reversed the panel, finding that the mail fraud statute does not require proof that a scheme to defraud would deceive persons of ordinary intelligence. A jury must only find that the scheme would have deceived a prudent and ordinary investor, and not simply one who may be gullible.

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Posted in Jury Instructions | No Comments »

Sentencing court’s disagreement with application of 4B1.1 career offender is not a factor the court may consider in determining a sentence.

Monday, April 27th, 2009

U.S. v. VAZQUEZ, 558 F.3d 1224 (11th Cir. 2009)

This was an appeal from a 180 month sentence following a remand. In Vazquez I the appellate court remanded because the 110 month was procedurally unreasonable as it was based on an impermissible factor, which is that the sentencing court disagreed with the application of the career offender provision 4B1.1. In this appeal the defendant argued that the sentencing court should have considered its disagreement with the career offender enhancement the second time. The defendant reasoned that U.S v. Kimbrough, which came out after Vazquez I, now made it permissible for the district court to consider its disagreement with career offender. The Court disagreed. Citing U.S. v. Williams which held the district court could not consider its views on §4B1.1 as a sentencing factor. It found that that Kimbrough was not inconsistent with Williams as §4B1.1 was a result of “direct Congressional expression.”

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Posted in Sentencing Guidelines, sentence enhancement | No Comments »

No clear error in the sentencing court’s calculation of intended loss in a FEMA fraud.

Monday, April 27th, 2009

U.S. v. WILLIS, 2009 WL 514313 (11th Cir. March 3, 2009)

Bernetta Willis was convicted of theft of government property and for submitting 17 fraudulent applications for FEMA aid following Hurricane Katrina. The defendant challenged the PSI’s calculation that the intended loss calculation was $471,600 based on the defendant’s 20 fraudulent claims and the maximum aid of $26,200 available for each claim. The defendant argued that the sentencing guidelines should be calculated based on the actual loss of $79,607.45. The Court affirmed the intended loss calculation finding that the district court was presented with sufficient circumstantial evidence of the defendant’s intent to obtain the maximum possible amount through the fraudulent claims. While the district court may not speculate concerning the existence of a fact that might lead to more severe sentence, the district court did not speculate here in arriving at its decision.

The sentence was reasonable and no basis found for downward variance.

The defendant also challenged her sentence on the grounds that the court should have given her a variance. Specifically the court should have considered her diminished capacity which prevented her from accepting guidance from her lawyers. The court rejected the challenge as the forensic evaluation showed defendant “was likely malingering and that she was possibly motivated by external incentives.”

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Posted in Pre-Sentence Investigation Report, Sentencing Guidelines, downward variance, sentence enhancement | No Comments »

Imposition of maximum sentence of 10 years was not an unreasonable upward variance from 30-37 months in order to protect the public from further criminal activity by the defendant.

Monday, April 27th, 2009

U.S. v. SHAW, 2009 WL 510323 (11th Cir. March 3, 2009)

The defendant appealed for his statutory maximum sentence of 120 months for possession of a firearm by a felon, claiming it was an unreasonable upward variance from the sentencing guidelines range of 30 to 37 months. Predictably, the outcome was not good for Mr. Shaw, as three sentences into the opinion Judge Carnes described his rap sheet as “long enough to require extra postage.” The Court applied a two-step process for reviewing this upward departure. First, determining whether the district court committed a significant procedural error (e.g. improperly calculating the guidelines range, treating the guidelines as mandatory, failing to consider § 3553(a) factors, selecting a sentence based on clearly erroneous facts or failing to adequately explain the chosen sentence, including any deviation from the guidelines.) If the first step is met, the second step is to review the sentence’s “substantive reasonableness under the totality of the circumstances” including “the extent of any variance from the Guidelines range.” Quoting from Gall v. United States 128 S. Cr 586, 597 (2007). After discussing Shaw’s lengthy prior criminal history and his continued recidivism, the appellate court upheld the sentence as reasonable given the district court’s wide latitude, reasoning that the defendant had many chances and the public needed to be protected from Shaw’s further crimes.

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Posted in Procedure, Sentencing Guidelines, upward variance | No Comments »

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