Archive for November, 2009

Child pornography defendant diagnosed paraphiliac yet low risk re-offender and sentenced at statutory minimum.

Wednesday, November 25th, 2009

U.S. v. RILEY, —F.Supp. 2d—2009 WL 2899896 (S.D. Fla. September 4, 2009)


A twenty-four year old married man initiated an instant messaging conversation with an undercover FBI agent posing as single mother with a 10 year old daughter. He expressed an interest in engaging in sexual activity with the agent and daughter and sent four pornographic pictures, including 2 depicting children 5 years or younger engaged in sexual activity with adult males. After making contact with the defendant, FBI agents discovered an additional 900 images of child pornography on his computer as well as 10 videos. Consequently, the defendant lost his job as an inventory manager at Walmart.
The defendant had been attending psychiatric therapy sessions, where it was opined that defendant was an excellent candidate for a community based treatment program, did not pose a risk of acting out sexually with children, and that his risk of re-offending was low. Another professional, who conducted a Sex Offender Specific Psychological Evaluation, opined that although the defendant qualified for a diagnosis of a paraphilia, he represented a low risk of re-offending and could be safely maintained in the community with supervision and outpatient mental health treatment.
The PSI calculated the offense level to be 37, making Guidelines range 210-260 months, but the statutory maximum was 240 the range was 210-240 months. Quoting at length from United States v. Hanson, 562 F.Supp. 2d 1004 (E.D. Wis. 2008), the court agreed with recent judicial criticism of Section 2G2.2 “which weighs against imposing a sentence within the Guideline recommendation.” The court concluded that a sentence at the near maximum should be reserved for the worst offenders and not those that are typical in this type of case. After reviewing the factors under §3553(a)(2), the court found that a sentence at the statutory minimum was a serious punishment and that it would adequately deter the defendant and others from committing the crime.

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Posted in Computer Sex Crimes, Internet Crime, Pre-Sentence Investigation Report, Sentencing Guidelines, Supervised Release Conditions, kiddie porn | No Comments »

District court’s unique handling of bench and jury trial at same time deemed appropriate by Eleventh Circuit.

Wednesday, November 25th, 2009

U.S. v. CHAVEZ, —F.3d—2009 WL 3320314 (11th Cir. October 16, 2009)

Mr. Galvan Chavez, one of nine defendants charged in a nineteen count indictment, among other challenges, argued on appeal that the district court denied his right to a fair trial when it denied his motion for a severance from the four defendant’s who proceeded to trial alongside him. Mr. Chavez pled not guilty to all charges and was convicted of all charges. However, the four co-defendants plead guilty to all counts, reserving their right to a bench trial regarding the quantity of contraband alleged in the drug conspiracy, the central offense charged in Count one of the indictment.
Presented with a unique situation, the district court ordered that each defendant, with respective counsel, be present for all phases of the trial; it instructed the jury that all defendants were charged in Count 1 but did not tell the jury that the four co-defendant’s entered guilty pleas on Count 1; and it instructed the jury that they were to consider their verdict only as to Mr. Galvan Chavez.
The appellate court reviewed the district court’s denial of Mr. Chavez’ motion for severance and found that it was not supported by any theory of relief nor did it prove specific and compelling prejudice, but rather argued that Mr. Chavez might have had a better chance of acquittal if the cases were severed. The appellate court also affirmed the district court’s rulings on Mr. Chavez’ other contentions as well as upheld the sentences for the four co-defendants.

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Posted in Conspiracy, Drug Crimes, Jury Instructions, Right to fair trial | No Comments »

Neither 18 U.S.C. § 2250(a) nor SORNA exceed Congress’ Commerce Clause power.

Wednesday, November 25th, 2009

U.S. v. MYERS, —F.3d—2009 WL 3270005 (11th Cir. October 13, 2009)

The district court recently held that a defendant’s charge of §2250 (traveling in interstate commerce) and failure to adhere to SORNA’s sex offender registration requirements under 42 U.S.C. §16913 exceeded Congress’ authority and dismissed the government’s indictment. However, on appeal, the Eleventh Circuit held that the Ambert case, 561 F.3d 1202 (11th Cir. 2009) is still good law (upholding 18 U.S.C. § 2250(a) and 42 U.S.C. §16913 to a Commerce Clause challenge).

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Posted in Sex Offender Registration | No Comments »

Guidelines Section 3B1.1 role enhancement as an organizer or leader requires findings to be based on reliable and specific evidence.

Wednesday, November 25th, 2009

U.S. v. MARTINEZ, 584 F.3d 1022 (11th Cir. October 5, 2009)

The Eleventh Circuit Court of Appeals vacated the sentence and remanded the defendant’s case back to the district court for clear error based on its determination that the defendant was subject to a Section 3B1.1 role enhancement as an organizer or leader with respect to his conviction for conspiring to distribute and to possess with intent to distribute 100 kilograms or more of marijuana. The defendant pleaded guilty to the one count indictment of the above mentioned offense and admitted to having “orchestrated” weekly mail shipments of marijuana from Texas to Central Florida. At sentencing, the government relied entirely on the PSI report, recommended the role enhancement and characterized the entire conspiracy as the defendants’. The defendant objected to each finding that argued for the four-level enhancement and renewed those objections at the sentencing. However, the district court rejected the defendant’s objections, adopted the PSI findings, and sentenced the defendant to 78 months imprisonment.
On appeal, the defendant argued that the government failed to meet its burden by preponderance of the evidence that the defendant exercised control, influence, or decision making over another participant in the conspiracy. The court found that the government failed to establish the disputed fact or any of the essential factual statements in the PSI, nor did it establish any of the seven factors identified in Comment Four of Section 3B1.1: 1)decision making authority, 2) nature of participation, 3) recruitment, 4) larger share in profits, 5) degree of participation in planning and organizing, 6) nature and scope of the offense, and 7) the degree of control and authority exercised. The court instructed the district court to base its findings on reliable and specific evidence rather than conclusory language in the PSI and sparse evidence.

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Posted in Conspiracy, Drug Crimes, Pre-Sentence Investigation Report | No Comments »

“Serious drug offense” under ACCA, 18 U.S.C. § 924(e), requires court’s examination of prior offense’s statutory definition and fact of conviction, not underlying actual facts, unless ambiguous.

Wednesday, November 25th, 2009

U.S. v. ROBINSON, 583 F.3d 1292 (11th Cir. September 30, 2009)

Sentenced to 210 months imprisonment for possession of a firearm by a convicted felon, the defendant appealed and challenged his sentence enhancement under ACCA, 18 U.S.C. § 924(e). Previously, the defendant had been convicted twice for burglary and once for possession of marijuana for other than personal use under Alabama state law. He argued that his prior drug conviction was not a “serious drug offense” so as to trigger the ACCA because the offense charged, by “other than personal use” did not specifically delineate “distribution”. The Eleventh Circuit stated that in determining whether a particular conviction qualifies as a serious drug offense, the court only looks to the statutory definition of the prior offense and the fact of conviction, not the underlying actual facts, unless the judgment of conviction and statute are ambiguous. The Court found the conviction and statute to be unambiguous. Moreover, since the Alabama legislature created separate statutes applicable to marijuana offenses, rather than applying the more general statutes for controlled substance offenses which list possession and distribution as distinct crimes, the court properly interpreted defendant’s prior conviction to include both possession and distribution of marijuana. Thus, the ACCA enhancement was proper.

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Posted in Drug Crimes, Sentencing Guidelines, sentence enhancement | No Comments »

The district court erred in failing to consider defendant’s claim for ineffective assistance of counsel.

Wednesday, November 25th, 2009

RHODE v. U.S., 583 F.3d 1289 (11th Cir. September 29, 2009)

The Eleventh Circuit Court of Appeals vacated and remanded the district court’s denial of defendant’s pro se 28 U.S.C. § 2255 Motion to Vacate. The Court granted a Certificate of Appealability (COA) to determine if the district court was required to address all of the claims raised in the Section 2255 motion in light of Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc). Construing the defendant’s claim liberally because it was a pro se pleading, the Court found that the defendant sufficiently raised an ineffective assistance of counsel claim on account of his attorney’s failure to file a motion to withdraw defendant’s guilty plea. The district court failed to address this claim and therefore the Eleventh Circuit court vacated the judgment and remanded it back to the district court for consideration of this claim.

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Posted in Ineffective assistance of counsel, Right to counsel | No Comments »

Congress has power to regulate internet and prohibit use for harmful or immoral purposes regardless of whether purpose has primarily intrastate impact.

Wednesday, November 25th, 2009

U.S. v. Faris, 583 F.3d 756 (11th Cir. September 23, 2009)

The defendant appealed his conviction for using a facility of interstate commerce to entice a minor to engage in sexual activity and his 292-month sentence, arguing that 18 U.S.C. Section 2242(b), which prohibits using any means of interstate commerce to entice, or coerce a minor to engage in “any sexual activity for which any person can be charged with a criminal offense,” violates both the Commerce Clause and the Necessary and Proper Clause of the Constitution. The defendant contended that his internet connections, telephone calls, emails, and travel routes were confined within Florida state lines and did not affect interstate commerce.
The Eleventh Circuit dismissed this argument as “meritless” stating that “Congress has the power to regulate the internet” which is “an instrumentality of interstate commerce.” Further, the defendant argued that since the Tenth Amendment delegates to the states responsibility to regulate wholly intrastate activity, it is not necessary and proper for Congress to do so. The district court also applied a two-level enhancement for “undue influence,” which the defendant challenged, but the appellate court affirmed, because the defendant utilized his knowledge of the internet and computers to make contact with another whom he believed would supply minors for sex.

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Posted in Computer Sex Crimes, Sentencing Guidelines, Sex Offender Registration, kiddie porn, sentence enhancement | No Comments »

“Except” clause in firearm statute to prevent consecutive mandatory minimum sentences for multiple firearm offenses, not firearm offense and underlying drug crimes.

Wednesday, November 25th, 2009

U.S. v. SEGARRA, 582 F.3d 1269 (11th Cir. September 15, 2009)

The Eleventh Circuit court of Appeals dismissed the defendant’s appeal as barred by the appeal waiver in his plea agreement. Defendant pled guilty to possession with intent to distribute 50 grams or more of crack cocaine, and possession of firearm in furtherance of a drug trafficking offense. The plea barred direct or collateral appeal unless the sentence imposed exceeded the guidelines range determined by the court or exceeded the statutory maximum. The district court sentenced the defendant to 120 months for crack offense and a mandatory 60 month term for a firearm offense, to be served consecutively. The defendant argued on appeal that the imposition of consecutive sentences therefore exceeded the statutory maximum sentence and the applicable guidelines range. However, the Eleventh Circuit held that because the consecutive sentences were mandatory and the term of imprisonment for the firearm offense was set by statute, the sentence imposed did not exceed the statutory maximum permitted or the applicable guidelines range; defendant’s argument on appeal does not fit within any of the appeal waiver exceptions.

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Posted in Drug Crimes, Sentencing Guidelines | No Comments »

Unsolicited private search does not constitute “search” under Fourth Amendment as long as search is confined to same scope as initial private search.

Wednesday, November 25th, 2009

U.S. v. GARCIA-BERCOVICH, 582 F.3d 1234 (11th Cir. September 10, 2009)

Appealing his convictions for both conspiracy to distribute and possession with the intent to distribute at least 100 kilograms, but less than 1000 kilograms of marijuana, the defendant argued that there was insufficient evidence to establish his knowledge or awareness that there was marijuana contained in the package seized and that the district court erred when it denied his motion to suppress because the government improperly expanded the search. However, the appellate court found that sufficient evidence did exist to support the defendant’s knowledge or awareness because the defendant made multiple trips to pick up packages from an unknown source, he had prior convictions for marijuana importation, he acted with “deliberate ignorance” regarding the existence of contraband, and he attempted to evade the police when caught. The court then examined the legality of the motion to suppress and found no error because as long as the search was confined to the same scope as the initial search, once one box was opened permissibly, the others could also be searched as part of same package.

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Posted in Conspiracy, Drug Crimes, Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure, due process | No Comments »

Supervised release does not run during period of imprisonment unless period is less than 30 consecutive days.

Wednesday, November 25th, 2009

U.S. v. JOHNSON, 581 F.3d 1310 (11th Cir. September 2, 2009)

The defendant challenged his supervised release sentence revocation on the ground that he had completed his three years of supervised release prior to the date of the supervised release revocation petition. Defendant had transferred to a Virginia state facility, on detainer, to answer pending criminal charges, after release from serving his federal sentence. The defendant remained in state custody until he plead guilty in Virginia, was sentenced, released, and credited for time served under the detainer.
Subsequently, the defendant was arrested for fraud and forgery charges and Probation filed a petition to revoke his supervised release. At the revocation hearing, the defendant argued that the district court lacked jurisdiction because his three year supervised release term had already expired and the time in custody in Virginia did not toll that term. The district court disagreed and revoked his supervised release.
On appeal, the defendant argued that his three year supervised release term began running when he was released from federal prison. In its decision, the Eleventh Circuit relied on a Supreme Court decision in 2000 which held that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” United States v. Johnson, 529 U.S. 53, 57 (2000). The Court found the defendant’s Virginia sentencing order mandated two years imprisonment, which was more than 30 days. As such, the term of supervised release did not run during the time he was in state custody.

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Posted in Jurisdiction, Supervised Release Conditions | No Comments »