Archive for January, 2010

“Except” clause in 18 U.S.C. Section 924(c) does not limit consecutive sentences and does not violate the Double Jeopardy clause.

Friday, January 29th, 2010

U.S. v. Tate, 586 F.3d 936 (11th Cir. 2009)

Convicted of four counts of armed bank robbery, three counts of using a firearm during a crime of violence, and one count of bank robbery, the defendant was sentenced to a total of 946 months to be served consecutively. Among other issues on appeal, the defendant maintained that the district court erred when it sentenced him to consecutive terms of imprisonment because the “except”  clause in 18 U.S.C Section 924 (c) only requires a total sentence of 25 years on the multiple violations of the section. Moreover, he argued that it was unreasonable for the district court not to vary downward under 18 U.S.C. Section 3553(a).

The appellate court disagreed with all of the defendant’s arguments on appeal, and affirmed the conviction and sentence imposed. The Court held that, in accordance with every circuit other than the Second Circuit, the plain language of Section 924(c) does not limit consecutive sentences imposed for the section offenses and underlying drug crimes and does not violate the Double Jeopardy Clause. It also found that the defendant failed to meet his burden of showing that the district court imposed an unreasonable sentence. Considering the totality of the circumstances, including the fact that the defendant’s criminal career began when he was a teen, the court considered the sentence substantively reasonable.

Tags: , , , , ,
Posted in Resentencing, Sentencing Guidelines | No Comments »

Physical profiling of defendant permitted as long as not the sole reason for police encounter.

Friday, January 29th, 2010

U.S. v. Quintana, 585 F.3d 1407 (11th Cir. 2009)

This defendant entered a conditional guilty plea and was convicted of illegally entering the U.S. after being previously removed following illegal entry. On appeal, the defendant argued that his right to equal protection was violated because he was only approached by police because they believed him to be of Middle Eastern descent or Muslim. The district court denied defendant’s motion to dismiss the indictment finding that the defendant’s ethnicity or religion was not the only basis for initiating an encounter. The appellate court, reviewing a motion to dismiss an indictment for abuse of discretion, reviewed the finding of fact for clear error. They determined that the totality of the circumstances known to the arresting officers were sufficient to justify a consensual encounter to decide whether further investigation might reveal criminal activity and therefore affirmed the district court’s finding that the defendant’s race or ethnicity was not the sole reason for the police encounter.

Tags: , , , ,
Posted in Probable Cause, Search incident to arrest | No Comments »

Walkaway conviction not a crime of violence under ACCA.

Tuesday, January 12th, 2010

U.S. v. Lee, 586 F.3d 859 (11th Cir. 2009)

Defendant was convicted of being a felon in possession of a firearm and sentenced to 180 months in prison. On appeal, he argued that the district court erroneously denied his motion to suppress the gun found in his co-defendant’s vehicle and abused its discretion by allowing improper jury instructions. The defendant also challenged his sentence arguing that his prior NJ convictions did not meet the standard under the ACCA to enhance his sentence.

The appellate court held that because the defendant, a passenger, had no legitimate expectation of privacy in the interior of the vehicle, he neither had a privacy expectation of the glove box, and lacked standing to challenge the search.

The appellate court also found that the district court’s jury instructions constituted an accurate statement of the law and therefore did not warrant reversal.

Lastly, the appellate court examined the defendant’s NJ prior walkaway conviction to determine it if fit within the ACCA’s enumerated crimes. It found that “a non-violent walkaway escape from unsecured custody is not sufficiently similar in kind or degree of risk posed to the ACCA’s enumerated crimes to bring it within its residual provision.” Therefore, the appellate court vacated defendant’s sentence and remanded back to the district court for resentencing.

Tags: , , , , , ,
Posted in Fourth Amendment, Jury Instructions, Motion to Suppress Evidence, Probable Cause, Search and Seizure, Search incident to arrest, sentence enhancement | No Comments »

Sixth Amendment guarantee of representation allows defendant to pay legal fees with alleged illegal proceeds.

Monday, January 11th, 2010

U.S. v. Velez, 586 F.3d 875 (11th Cir. 2009)
On an issue of first impression for the Eleventh Circuit Court of Appeals, the Court held that the plain language of 18 U.S.C.A. § 1957(a) (f) (1) exempts monetary transactions derived from criminal proceeds and used to secure legal representation. In this case, the defendant, an accused Colombian drug leader, paid his legal defense fees with alleged laundered money. The government then indicted the defendant and his two attorneys on one count of money laundering charges. The District Court dismissed Count One, finding that 1957 (f)(1) clearly excludes from its scope, “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” The Government argued that the exemption was nullified by Caplin & Drysdale, Chartered v. United States,491 U.S. 617, 626 (1989). The Appellate Court disagreed finding that Caplin & Drysdale addressed criminal proceeds with respect to the civil forfeiture statute, 21 U.S.C. § 853 and therefore had no bearing on 18 U.S.C. §1957 and one’s representation guaranteed by the sixth amendment.

Tags: , , , , ,
Posted in Attorney's fees and sanctions, Drug Crimes, Right to counsel, Sixth Amendment | No Comments »