Archive for the ‘sentence enhancement’ Category

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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.

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Posted in Fourth Amendment, Jury Instructions, Motion to Suppress Evidence, Probable Cause, Search and Seizure, Search incident to arrest, sentence enhancement | 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 »

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 »

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 »

Reasonable suspicion of drug transaction led to probable cause to arrest defendant for possession of methamphetamine.

Monday, July 13th, 2009

United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. 2009)

The defendant was convicted of being unlawfully found in the United States after having been previously removed and deported.

The defendant was pulled over for violating a traffic law in an area well-known for narcotics activity, after an officer observed his car stopped in the roadway and someone leaning into the passenger window. When asked for his driver’s license, the defendant showed the officer a Mexican license and said he had resided in the U.S. for several years. The defendant consented to the search of his car and the officer found a bulb-shaped glass tube containing a white residue believed to be methamphetamine.

He was arrested for possession and booked, and an ICE agent assigned to the jail performed a preliminary computer search where he learned that the defendant was born outside of the U.S. The ICE agent told the defendant that his purpose was to determine his immigration status. After this meeting, the agent received the Immigration Action Query that was run as part of the jail’s ordinary booking procedure, which indicated that the defendant had been deported, removed, or excluded in 2003 and no record of a legal entry was found.

At the second meeting, the agent read the defendant his Miranda warnings in Spanish from a standardized form which the defendant signed. The agent questioned the defendant in Spanish for about ten minutes and gave the defendant a copy of all the questions and answers, which he again willingly signed.

The defendant was indicted on federal charges of having been unlawfully found in the U.S. after having been previously removed and deported. The defendant moved to suppress the statements made to the ICE agent regarding his immigration status and the documentary evidence obtained. A magistrate judge held an evidentiary hearing and issued and R&R concluding that the arresting officer violated the Fourth Amendment when he stopped the defendant’s vehicle because he did not have either probable cause or reasonable suspicion. The judge then recommended that the evidence obtained at the scene of the arrest be suppressed. However, the R&R concluded that the defendants subsequent statements and documentary evidence should not be suppressed.

The officer had reasonable suspicion that defendant was engaged in hand-to-hand drug transaction and had probable cause to arrest defendant for possession of methamphetamine.

The District court held that officer’s suspicion was supported by several articulable facts including the location of the vehicle, physically, and in a high-crime area, an unknown individual leaning into the window, and the defendant leaving the scene once he noticed the officer. Furthermore, based on the substance and paraphernalia recovered from the consensual search, the officer reasonable believed that the defendant was in possession of methamphetamine.

The District court correctly concluded that the statements made to ICE agent were too removed from arrest to have suffered any taint.

Since the defendant’s seizure and arrest were not found to be unconstitutional , the fruit of the poisonous tree argument fails. In the alternative, even if the statements were tainted, they were too attenuated from the arrest to be regarded as fruit of the poisonous tree: the statements were made the day after the arrest; the arrest and questioning were done by two different individuals with two different objectives-immigration status and suspected drug activity; and neither the stop of the vehicle nor the immigration inquiry were made with an ulterior motive to prosecute the defendant for being illegally in the U.S.

The District court did not err in imposing the Guideline’s sixteen offense-level enhancement.

The defendant, prior to his removal, had a conviction for a felony firearms offense in Georgia, which, he argues, does not fall within the Guidelines 2L1.2 definition. The Court of Appeals found that the prior conviction met the Guidelines definition; and based on the facts set forth in the PSI, the District court correctly concluded that the defendant’s conduct from the previous conviction would have constituted a violation of Section 924(c) and therefore, the court was correct to impose the sixteen offense-level enhancement.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search and Seizure, Search incident to arrest, Sentencing Guidelines, sentence enhancement, upward variance | No Comments »

District Court’s reliance on PSI’s characterization of firearm defendant convicted of possessing was correct for enhancing his sentence.

Thursday, July 9th, 2009

United States v. Beckles, 565 F.3d 832 (11th Cir. 2009)

The defendant was convicted of being convicted felon in possession of firearm.  Even assuming that the district court, in treating defendant’s current offense as a “crime of violence,” committed error that was plain or obvious based on its reliance on the PSI’s characterization of the firearm that defendant was convicted of possessing as “sawed-off shotgun,” the error was not shown to have affected defendant’s substantial rights, and therefore could not be corrected on plain error review, given the complete lack of evidence that the firearm that defendant possessed was not a sawed-off shotgun.

A sentence of 360-months imprisonment imposed on armed career criminal convicted of unlawfully possessing sawed-off shotgun was not unreasonable.

Based on a total offense level of 37 and a criminal history category of VI, the guidelines range was 360 months’ to life imprisonment, including a mandatory minimum sentence of 15 years under the statute. The sentence was not unreasonable, though the district court allegedly failed to adequately consider the statutory sentencing and mitigating factors such as defendant’s troubled childhood and drug addiction, where the district court explicitly stated that it had given careful consideration to those statutory factors, and that the sentence imposed was needed to account for the serious nature of the offense and needed to provide deterrence in order to safeguard the community.

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

Sufficient evidence established that defendant’s pipe bombs were designed as weapons.

Tuesday, July 7th, 2009

United States v. Spoerke, 2009 WL 1424042 (C.A.11 (Fla.))

The defendant was convicted of conspiracy to unlawfully make destructive devices, unlawfully making one or more destructive devices, and possessing unregistered destructive devices at two different locations.  The defendant argued that the US failed to prove the devices were designed to be used as weapons. To be a destructive device under the National Firearms Act, the critical inquiry is whether the device, as designed, has any other value other than as a weapon. The defendant’s devices were destructive devices even if they contained no additional projectiles, because they have no social value.

The defendant was not entitled to a sentence reduction for acceptance of responsibility; and the imposition of a 44-month sentence did not amount to an unwarranted sentencing disparity.

The defendant challenged the calculation of his guidelines and the reasonableness of his sentence. Where a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse, he has not accepted responsibility and is not entitled to a reduction. Therefore, when the district court imposes a sentence within the advisory Guidelines range, it is ordinarily expected to be reasonable.

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Posted in Motion to Suppress Evidence, Sentencing Guidelines, Uncategorized, downward variance, sentence enhancement | No Comments »

A person who alters records that have been subpoenaed by a grand jury obstructs an investigation of Medicare fraud.

Friday, July 3rd, 2009

USA v. Hoffman-Vaile, No. 07-12629 (11th Circuit USCA)

The defendant, a dermatologist from Florida, appeals her convictions and sentences on charges of health care fraud, filing false claims, and obstruction of justice. The Defendant was billing Medicare at an aberrant rate under a billing code for an unusual and complicated procedure. It was determined that from 1993 through 1999, the defendant billed under this particular code more often and for greater amounts than under any other billing code. When contacted by the private contractor for Medicare, the defendant was asked to provide photographs that corresponded with the surgeries billed for. The defendant, after many chances, did not comply.
In 2002 the Department of Health and Human Services obtained a federal search warrant for patient files with the suspect billing code and seized over 3,000 files from the defendant’s office. However, the Department was unable to locate about 300 files.
In 2003, a federal grand jury issued a subpoena that directed the defendant to produce the missing files. The defendant produced 185 of the missing files but most of the records lacked the requisite photographs. The defendant’s attorneys later produced a box of loose photographs to the government.
The defendant was indicted in July 2005 on 44 counts of health care fraud, 44 counts of filing false claims, and one count of obstruction of justice-she instructed her employees to remove photographs from the subpoenaed files. The defendant was sentenced to 60 months of imprisonment for each fraud count and false claims count, to be served concurrently, and 18 months imprisonment for obstruction.
The 11th Circuit Court of Appeals affirmed the defendant’s convictions and sentences, but vacated and remanded the forfeiture money judgment for further proceedings.

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Posted in Search Warrant, Search and Seizure, Sentencing Guidelines, sentence enhancement | No Comments »

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