November 25th, 2009
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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.
November 25th, 2009
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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.
November 25th, 2009
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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.
November 25th, 2009
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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.
November 25th, 2009
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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.
October 21st, 2009
BY admin
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.
October 21st, 2009
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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.
October 21st, 2009
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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.
September 30th, 2009
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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.
September 8th, 2009
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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.
