Archive for 2009

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

Wednesday, October 21st, 2009

U.S. v. JOHNSON, 2009 WL 2767048 (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.” 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 | No Comments »

Failure by the trial Court to include all statutory elements of aggravated identity theft in a jury instruction was not harmless error.

Wednesday, October 21st, 2009

U.S. v. GOMEZ, 2009 WL 2633039, (11th Cir. August 28, 2009)

The Eleventh Circuit vacated the defendant’s conviction for aggravated identity theft and remanded the case back to the district court because the district court erred when it found harmless the failure to include all statutory elements of the offense in the jury instruction. The defendant argued on appeal that the government failed to prove that he knew the identification he used belonged to another person. The defendant’s proposed jury charge read: “the term ‘knowingly’…means knowledge by the defendant that the identification belonged to a real person.” However, the district court refused to read the instruction because it stated that knowledge was not a requirement in the Eleventh Circuit. The appellate court held that the jury could have found that the government failed to prove that the defendant knew the identification documents he used belonged to another person because the defendant contested this issue.

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Posted in Jury Instructions | No Comments »

State’s regulation for safety inspections of commercial motor vehicles was adequate substitute for warrant under Fourth Amendment.

Wednesday, October 21st, 2009

U.S. v. PONCE-ALDONA, 2009 WL 2450282 (11th Cir. August 12, 2009)

The defendant conditionally pled guilty to drug charges but on appeal argued that the district court erred in denying his motion to suppress because the initial stop did not fall under the administrative search exception to the warrant requirement under the Fourth Amendment. The appellate court examined the district court’s denial of the motion to suppress and found that the Georgia statute’s regulatory scheme as a whole, including the incorporated federal regulations, satisfied the third prong of the Burger test) for compatibility with the Fourth Amendment (The defendant did not raise any challenges to the first or second prong). The Georgia statue provided notice to owners that their vehicles would be searched on a regular basis, and that the time, place, and scope of the inspections placed proper restraints upon the inspecting officer’s discretion.

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

District court erroneously dismissed first indictment containing error and sentenced defendant on plea to second indictment, violating the double jeopardy clause.

Wednesday, September 30th, 2009

US v. McIntosh, 2009 WL 2611294 (August 27, 2009)

The defendant pleaded guilty to an indictment alleging drug and firearm charges and the district court accepted the plea. However, before the defendant was sentenced, the government realized that the wrong date of offense was alleged in the indictment. It, therefore, secured a second indictment from the grand jury with the correct date. The defendant moved to dismiss this second indictment as barred by the Double Jeopardy clause, but the district court denied this motion. The defendant conditionally pleaded guilty to the second indictment. The district court then dismissed the first indictment, accepted the plea on the second, and sentenced the defendant to 120 months imprisonment. On appeal, the Eleventh Circuit determined that the defendant’s first plea, accepted unconditionally by the district court, was a conviction and jeopardy had attached therefore the second indictment for the same offense violated the Double Jeopardy clause. The appellate court found that the district court erred when it denied the defendant’s motion to dismiss the second indictment. Finding that the error in the original indictment was one of form, not substance, and thereby not fatally defective, the Court vacated the defendant’s judgment of conviction and remanded it back to the district court with instructions to dismiss the second indictment.

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Posted in Jurisdiction, Procedure, Resentencing, Uncategorized | No Comments »

Promotional money laundering and Concealment money laundering are two separate offenses that do not require a special verdict form or a specific unanimity instruction to the jury.

Tuesday, September 8th, 2009

U.S. v. Felts, 2009 WL 2568362 (August 21, 2009)

The defendant was convicted of conspiracy to commit money laundering, money laundering, and possession of a firearm by a convicted felon and was sentenced to 210 months imprisonment. Appealing his conviction and sentence, the defendant contended that the district court improperly instructed the jury on the money laundering offenses because promotional and concealment money laundering are two separate offenses and should not have been submitted to the jury as a single charge. The Eleventh Circuit Court of Appeals affirmed defendant’s conviction and sentence but specifically addressed the propriety of the jury instructions, reviewing for plain error. The Court found minimal distinction between using money to promote unlawful activity and using it to conceal or disguise unlawful activity, therefore it was unnecessary to instruct a jury to unanimously agree to which mental state the defendant possessed, i.e. there was no error, plain or otherwise.

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Posted in Conspiracy, Jury Instructions, Uncategorized | No Comments »

A two-level enhancement was not impermissible double-counting.

Tuesday, August 11th, 2009

U.S. v. Demarest, 570 F.3d 1232 (11th Cir. June 10, 2009)

The defendant appealed his conviction and sentence for three counts of money laundering. The court found that the defendant’s physical and mental efforts on the day in question demonstrated that he was not overly intoxicated. Secondly, the jury was entitled to believe that the defendant was predisposed to commit the crime and not entrapped. Lastly, the defendant’s reliance on case law was misplaced and the evidence established that laundered funds were proceeds of illegal drug trafficking.

The District Court did not err in enhancing defendant’s sentence.

The two-level enhancement was not impermissible double-counting as defendant’s violation under Section 1956 was not factored into his base level since the money laundering statutes are not distinguishable with regard to the defendant’s base level. Moreover, defendant’s statements and behavior prove he believed the laundered funds were or were intended to be proceeds of illegal drugs.

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

Carrying a concealed firearm and escape are not properly considered violent felonies so as to trigger a sentence enhancement under ACCA.

Tuesday, August 11th, 2009

U.S. v. Canty, 570 F.3d 1251 (11th Cir. June 11, 2009)

The defendant was convicted of possessing counterfeit federal reserve notes and being a felon in possession of a firearm. The government argued to enhance his sentence under the ACCA (Armed Career Criminal Act). The defendant was sentenced, pursuant to ACCA, to 186 months in prison on each count, to be served concurrently. Case law dictated that carrying a concealed weapon could not be a crime of violence under the Guidelines and the court read the definition of violent felony under ACCA Section 924 to be virtually identical to the definition of crime of violence. Therefore, the defendant’s crimes were considered violent felonies or serious drug offenses to apply under the statute.

The government had the opportunity to offer evidence and seek rulings from the sentencing court, but failed to do so.

The government did not voice any objection to predicate the ACCA enhancements or offer whether the crimes were committed on occasions different from one another. Rather, the government adopted the PSR. Therefore, it was not entitled to a remand to present additional evidence and seek additional findings to support an enhancement when it failed to do so when the initial sentence was imposed.

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Posted in Drug Crimes, Pre-Sentence Investigation Report, Sentencing Guidelines, Uncategorized, sentence enhancement, upward variance | No Comments »

Court finds convictions for both “receiving” and “possessing” child pornography do not violate the Double Jeopardy Clause of the Fifth Amendment.

Monday, August 10th, 2009

U.S. v. Bobb, 2009 WL 2391918 (August 6, 2009)

The defendant was convicted on both charges and sentenced to 96 months imprisonment and five years’ supervised release. Defendant appealed and argued that he received multiple punishments for the same offense. The defendant argued that it is impossible to receive a thing, without, at least the very instant of receipt, also possessing it and thus possession is a lesser included offense of receipt. Considering defendant’s argument, the Court looked to the statutory construction of each provision and then to legislative intent and found that, in concurrence with the Third and Ninth Circuits, Congress did not intend to punish a defendant twice for the same criminal act. However, in the instant case, the defendant was charged with two separate offenses on two separate dates, therefore the Eleventh Circuit affirmed the convictions and sentences.

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

District court must consider Section 3553(a) factors in deciding to reduce a sentence under Amendment 706.

Friday, August 7th, 2009

U.S. v. Douglas, 2009 WL 2244519 (July 29, 2009)

The defendant was sentenced to 188 months for crack-cocaine conviction and filed a motion to reduce his sentence under Amendment 709 to the Sentencing Guidelines. The District Court summarily granted the motion without a hearing or a response from the government. The court used a standard form order but did not mention 18 U.S.C. Section 3553(a) or the factors, nor did it explain its decision to sentence the defendant to 162 months-the high end of the recalculated guidelines. The Eleventh Circuit affirmed the District Court’s refusal to grant defendant’s request for a sentence below the amended guidelines range, but vacated the newly imposed sentence and remanded back to the district court for further consideration of the Section 3553(a) factors and explanation.

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Posted in Booker, Resentencing, Sentencing Guidelines, downward variance | No Comments »

The District Court made procedural errors in applying the Guidelines.

Tuesday, July 28th, 2009

U.S. v. Gupta, 2009 WL 1749046 (11th Cir. June 23, 2009)

The defendants were convicted of conspiracy to submit false Medicare claims. This third appeal involves fundamental errors about the sentencing of the Defendant, Gupta, and whether to reassign the case to a Fourth District Judge for sentencing.  The court not only failed to calculate loss, but also, erroneously, it reduced the defendant’s offense level by two points for acceptance of responsibility. Because it employed an arbitrary approach, the District Court did not identify a basis for the loss found. Moreover, the court credited the defendant with two points for accepting responsibility but the defendant continuously challenged and contested the government and made clear that he thought he was innocent.

The District Court imposed an unreasonable sentence.

The court believed that the District Court’s refusal to set aside its feelings is more pronounced after a third appeal and second reassignment request, therefore, to preserve in the public mind the image of absolute impartiality and fairness of the judiciary, the case had to be reassigned.

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Posted in Resentencing, Sentencing Guidelines | No Comments »

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