Posts Tagged ‘sentence enhancement’

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 »

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 »

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 »

Extraterritorial application of 18 USC Section 2251 warranted as part of a comprehensive scheme to eradicate sexual exploitation of children.

Wednesday, June 10th, 2009

United States v. Kapordelis, No. 07-14499 (11th Cir 2009)

Defendant was convicted for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §2251(a), 2252A(2)(A), and 2252A(a)(5)(B). Defendant appealed his 420 month sentence and argued that the district court erred by: (1) denying his motion to dismiss Counts 1 and 3 of the Fourth Superseding Indictment; (2) denying his request for a Franks hearing and his motion to suppress evidence obtained under certain search warrants; (3) admitting testimony concerning his solicitation of sex from boys, under the age of eighteen, while in the Czech Republic under Federal Rule of Evidence 404(b); (4) applying the 2003 US Sentencing Guidelines instead of the 2002 Guidelines in imposing a sentence; (5) finding that one of his victims was vulnerable, pursuant to U.S.S.G. Section 3A1.1; (6) double counting the number of images of child pornography and imposing a 2-level enhancement pursuant to U.S.S.G. Section 2G2.4(b)(2), and a 5-level enhancement under Section 2G2.4(b)(5)(D); (7) accepting a written victim impact statement during sentencing; and (8) imposing an unreasonable sentence.

Defendant was initially indicted on two counts of engaging in sex tourism. Then additional evidence was gathered and several superseding indictments were issued. The Fourth Superseding Indictment charged him with producing child pornography photographs and video on four separate occasions in violation of 18 U.S.C. Section 2251(a), receiving child pornography on a desktop computer and then a laptop computer, Section 2252A(2)(A), and possessing child pornography, Section 2252A(a)(5)(B). The PSR assigned an offense level of 41 and recommended a Guidlelines range of 324-405 months.

The court found that the extraterritorial application of 18 USC Section 2251 was warranted as the statute is a part of a comprehensive statutory scheme to eradicate sexual exploitation of children, and that “punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably expected to be transported in interstate or foreign commerce is an important enforcement tool.” (referencing United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). The court then considered the violation of Section 2251(a) alleged in Counts 1 and 3 to be a continuing offense, affirming the district court.

As to the Franks hearing, the court found that the magistrate judge undertook the evaluation prescribed by Franks and considered the affidavit in support of the search warrant with the omissions and additions proposed by Defendant and therefore did not err in declining to hold a hearing. Regarding the probable cause issue of the search warrant, the court found that the necessary nexus existed between the facts surrounding Defendant’s overseas travels and the facts that suggested he met and engaged in sexual activity with young boys, thus establishing the likelihood that evidence would be found in his home.

As to Defendant’s argument that evidence of trysts with young boys was precluded under FRE 404(b), the court ruled that “whether unlawful in the jurisdiction where they take place or not,” evidence “is admissible under Rule 404(b) if there is sufficient proof to support a jury’s finding that the defendant committed the similar act and the other act is probative of a material issue other that the defendant’s character.” The probative value of this evidence was found to outweigh its prejudicial nature.

The district court varied upward to the statutory maximum, giving the Defendant the longest sentence possible, based on his long history of abuse, parity, and the need for incapacitation. The Eleventh Circuit ruled that while the use of the 2002 Guidelines would have resulted in fewer enhancements, the overall record indicates that the district court would have imposed the same 420 month sentence had it applied the 2002 Guidelines.

Next, the court found the application of the vulnerable victim enhancement under U.S.S.G. Section 3A1.1 was not error as the boys qualified as “vulnerable victims” because they were asleep or otherwise nonresponsive and thus unable to object or respond in any way when Defendant took pornographic pictures of them.

Defendant’s arguments regarding double counting and the victim impact statement were rejected and the court then addressed the upward variance and reasonableness of the sentence by showing that the district court did not abuse its discretion and did take into consideration the Section 3553(a) factors, finding that “the 420 month sentence (1) promoted respect for the law, (2) illustrated the seriousness of the offense, and (3) will serve as a deterrent. Based on the totality of the circumstances, including the Defendant’s history of abuse, number of images in his possession, and the need to protect society, the Eleventh Circuit court found compelling justification to support the upward variance and reasonableness of the Defendant’s sentence.

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Posted in Computer Sex Crimes, Fourth Amendment, Internet Crime, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search Warrant, Search and Seizure, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | No Comments »

A two level increase for violating a position of public trust is not applicable to federally licensed firearms dealer who sells to a convicted felon.

Monday, April 27th, 2009

U.S. v. LOUIS, 2009 WL 485239 (11th Cir. February 27, 2009)

The main issue in this appeal is whether a federally licensed firearms dealer who sells firearms to a convicted felon is subject to a sentencing guidelines enhancement for abusing position of public trust. After an in depth review of public trust enhancement cases in the Eleventh Circuit, the Court concluded that a licensed firearms dealer is not a position of public trust and reversed the sentence enhancement.

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Posted in Sentencing Guidelines, sentence enhancement | No Comments »

Prior Florida conviction for fleeing found not a predicate violent felony for a sentencing enhancement under 924(e).

Monday, April 27th, 2009

U.S. v. HARRISON, 558 F.3d 1280 (11th Cir. 2009)

The issue was whether the district court erred in finding a conviction under Florida Statutes 316.1935(2), which is the willful fleeing statute, is a violent felony for the purposes of the Armed Career Criminal Act 18 U.S.C., § 924(e). In a lengthy analysis of recent Supreme Court opinions Begay v. U.S., 128 S. Ct 1581 (2008) and Chambers v. U.S., 129 S. Ct 687 (2009) as well as the Florida statute, the court concluded that the conviction cannot support the § 924(e) enhancement.

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Posted in Sentencing Guidelines, sentence enhancement | No Comments »

Downward variance upheld for a defendant convicted of making sexually explicit films with minors where the sentencing factors supported the sentence as reasonable.

Monday, April 27th, 2009

U.S. v. IREY, 2009 WL 806860 (11th Cir. March 31, 2008)

Mr. Irey was convicted of using minors outside the United States for the purpose of making child pornography. The defendant made repeated trips to Cambodia on sex tours and videotaped himself having sex with minors, some of which depicted graphic sex acts and torture. The appellate court described the crime as “horrific.” Nevertheless it pointed out that defendant presented evidence through a psychologist who submitted a psychosexual report, that the defendant was treatable, was a medium to medium low risk of recidivism, and could be successful in supervised release after treatment. The defendant’s family testified he was a wonderful husband father and person and that he embraced treatment, he had been acting as a peer mentor to others in narcotics and alcoholic anonymous, and that the family would remain supportive. The district court also noted his age of 50. His guideline range was the statutory maximum of 360 months with a minimum sentence of 180 months, the statutory minimum. Though he was sentenced to 210 months and given a lifetime of supervised release, the government appealed. The Court reaffirmed that a party challenging the sentence has the burden of establishing the sentence is unreasonable in light of both the record and the factors of § 3553(a) factors. It reviewed the procedure a sentencing court must follow: First, consult the sentencing guidelines and calculate the correct guidelines sentence; Second, consider the factors listed in 3553(a). The Court found no procedural error in determining the applicable guidelines sentence; it rejected the government’s argument that the sentence was too lenient. The Court said that even though it may disagree with a sentence, it would not second guess the district court decision where as here the sentencing judge took the sentence seriously, proceeded thoughtfully and the sentence was reasoned. The court did consider the factors of §3553(a). The Court of Appeals did not second guess the district court as it respects the district court as a sentencer and accepted the sentence as it “was within the outside borders for a reasonable sentence for this kind of case.”

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Posted in Sentencing Guidelines, downward variance, kiddie porn, sentence enhancement | No Comments »

In a limited remand for resentencing, the sentencing court is restricted to only those issues specifically that form the basis of the remand, with some limited exceptions.

Monday, April 27th, 2009

U.S. v WILLIAMS, 2009 W.L. 817498 (11th Cir. March 31, 2009)

The defendant appealed a life sentence for possession of crack cocaine, imposed at resentencing following a remand by the court of appeals. In Williams I, the court had remanded to the district court directing the court to give reasons why a life sentence on this 26 year old defendant was appropriate. In this appeal, the defendant argued that the district court interpreted the Court of Appeal’s mandate too narrowly and failed to consider 3553(a) factors in order to impose a lesser sentence. In other words the district court treated the guidelines as mandatory. The Court rejected the challenge finding that this was a limited remand restricting the district court from revisiting issues already affirmed. As the district court complied by giving reasons which included failure to take responsibility for his actions, his lengthy criminal history, the need to promote respect for the law, deterrence and the need to protect the public.

The exception to the restriction on a limited remand.

The only exception to a limited remand is for an intervening change in controlling law. The defendant argued that the Florida Supreme Court had held recently that BOLEO conviction is not a forcible felony for the purpose of sentencing enhancement under Florida’s violent career criminal statute and for that reason the district court erred in classifying him as a career offender. The court already rejected this argument in United States v. Johnson, 528 F.3d 1318 (11th Cir. 2008), cert. granted, __ S. Ct.___, 2009 WL 425080 (Feb. 23, 2009), and although it is pending review in the U.S. Supreme court it is still controlling law.

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Posted in Resentencing, Sentencing Guidelines, sentence enhancement | No Comments »

Speedy trial delay warranted a dismissal without prejudice and not with prejudice.

Friday, April 24th, 2009

U.S. v. KNIGHT, 562 F.3d 1314 (11th Cir. March 31, 2009)

After the car Mr. Knight was riding in as a passenger was pulled over, a police officer saw him place a gun on the floor boards. He was arrested on state charges. While still state custody he was indicted by a federal grand jury on September 29, 2005, for possession of the firearm by a convicted felon. A federal detainer was lodged against him to hold him in the event he made bond. He was visited by ATF officers in the county jail who advised him of the pending investigation. Knight made some incriminating statements and did not ask for an attorney. He was transferred to federal custody where he pled not guilty. The district court granted a speedy trial claim but dismissed without prejudice. As to the appeal from the district court’s order dismissing “without prejudice” the Court applied the factors and found the district court did not abuse its discretions.

The seizure of evidence was found reasonable based on initial stop of the driver which led to the resulting seizure from the defendant.

The Court upheld the denial of the motion to suppress evidence seized in the stop. It found the initial stop of the car was valid because the driver was seen without a seat belt on. The officer had probable cause to stop the car, and the officer was entitled to ask the driver to step out the car. He had reasonable suspicion to pat down the driver and the officer smelled marijuana and alcohol.

The denial of the motion to suppress statements.

The Court found that the prior invocation of rights in the state case did not apply to the federal case. Statements made to the ATF were admissible.
The district court committed clear error for failing to reduce Knight’s sentence for time spent in state custody for obstruction of justice.

Where a defendant has a prior offense that is relevant to the instant offense and resulted in an increase in the offense level of the instant offense, the sentencing guidelines provide that the sentence include a credit for a period served in state custody for the obstruction case. The government conceded the error because the conduct that was used to enhance his federal sentence was related to the state conviction and the BOP would not give credit for that time.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search Warrant, Search and Seizure, Search incident to arrest, Sentencing Guidelines, Uncategorized, sentence enhancement | No Comments »