Posts Tagged ‘supervised release’

Even after third remand, district court refuses to sentence defendant to term of imprisonment and insists on probation.

Thursday, February 4th, 2010

U.S. v. Livesay, 587 F.3d 1274 (11th Cir. 2009)

Giving new meaning to the phrase “some guys have all the luck,” this case involves a defendant who, in 2004, pled guilty to conspiracy to commit wire fraud, securities fraud, and falsifying books and records; falsely certifying financial information filed with the SEC; and a forfeiture count. At sentencing, the district court considered the PSI, which recommended a sentence from 78 to 97 months, 2 to 3 years of supervised release and a fine range of $12,500 to $1million and then granted the government’s motion for a downward departure and imposition of 60 months imprisonment. However, after the recommendations, the judge sentenced the defendant to 60 months of probation.

The government appealed and the Eleventh Circuit Court reversed, holding the district court failed to state reasons for its extreme downward departure. At the resentencing, the same district court judge imposed the same sentence as before. Again, the government appealed and the appellate court reversed, finding both the district court’s departure and the sentence imposed unreasonable given the defendant’s role in a massive fraud scheme.

The defendant filed a writ of certiorari and the Supreme Court granted the petition, vacated the appellate decision and remanded for reconsideration with Gall v. United States, 552 U.S. 38 (2007). At the second resentencing, the original judge recused himself. The new assigned judge agreed with the sentencing range of 78 to 97 months and granted the government’s 5k1 motion, yet only imposed 5 years of probation.

The government appealed for the third time and the appellate court, considering Gall, and the §3553(a)(2) factors, reversed, stating “only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute”. To be continued.

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Posted in Conspiracy, Resentencing, downward variance | No Comments »

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

Wednesday, November 25th, 2009

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.

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Posted in Jurisdiction, Supervised Release Conditions | No Comments »

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 »

The defendant was not entitled to notice of District Court’s intention to impose special conditions of supervised release.

Tuesday, July 14th, 2009

United States v. Moran, 2009 WL 1874374 (C.A.11 (Fla.))

The defendant appeals his conviction of being a felon in possession of a firearm.  The court was not required to notify the defendant before it imposed special conditions to address his proclivity for sexual misconduct. Said conduct was detailed in the PSI and knew the court would likely consider his criminal history in determining his sentence.

The District court did not abuse its discretion by imposing special conditions of supervised release.

The defendant’s history and characteristics support the imposition of mental health treatment as treatment could deter future misconduct and protect the public. He was also required to register as a sex offender, limit contact with minors, restrict his access to certain media including the internet, and submit to reasonable searches. Based on defendant’s past violation of his terms of supervised release, the District court was not improper to impose special conditions

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Posted in Pre-Sentence Investigation Report, Sentencing Guidelines, Sex Offender Registration | No Comments »