Just Don't Ask
The 7th Circuit held that police officers did not neutralize a wife's consent to search the family home by failing to also ask the defendant/husband for his consent before they arrested him and moved him to the squad car. The wife had told officers that defendant had abused her two weeks earlier and that defendant, a felon, had guns and drugs in the home. Although the officers had probable cause to arrest the defendant for the domestic abuse, they decided to get cute and get into the house. At 11 p.m., in a blizzard, the officers went to the house and told the defendant his wife had been in a car accident. He invited them inside while he got dressed. Once inside, the officers arrested the defendant, put him in the patrol car, and proceeded to search. Naturally, guns were found and used to convict him of a firearms offense. The defendant objected to the search, saying he was present and would have objected had he known the officers would toss the house. The Seventh Circuit affirmed the conviction, finding that the Supreme Court's decision in Matlock, rather than Randolph, controlled. It "harmonized" the Georgia v. Randolph, 126 S.Ct. 1515 (2006), and US v. Matlock, 415 US 164 (1974), by emphasizing that there was no evidence that the officers removed the defendant from the scene just so as to avoid a possible objection. US v. DiModica, No. 05-4164 (7th Cir. 11/16/06)
On Booker Remand, No Revisiting The Guidelines in Defendant's Favor
The Fifth Circuit interpreted the Supreme Court's mandate to reconsider a case "in light of United States v. Booker" as in turn restricting its subsequent mandate to the district court for "resentencing in accordance with Booker" in such a way as to prohibit the district court from recalculating the guidelines range to the defendant's advantage on resentencing. The original trial had included a special verdict form in which the jury found a quantity of drugs attributable to the defendant. The district court, of course, calculated the applicable offense level based on relevant conduct, resulting in much greater drug quantities and a higher guideline range. The defendant received a 121 month sentence, which the Fifth affirmed. The Supreme Court then remanded, post-Booker. On remand, a new district court used a guideline range based on the jury's findings and imposed a new sentence of 63 months. If indeed this was the proper guideline range, the Fifth Circuit (with its presumption that guidelines sentences are reasonable) would have had a hard time reversing. Way out of the dilemma: Wrong guideline range! It concluded its mandate was only to resentence the defendant under an advisory guidelines range and not revisit the guidelines calculation, which had not been addressed or vacated on appeal. US v. Pineiro, No. 06-30242 (5th Cir. 11/9/06)
Street Dealer Gets Life
A street dealer convicted of conspiracy to distribute heroin can receive a life sentence based on the aggregate amount of the individual sales. US v. Pressley, No. 05-2487cr(L) (2d Cir. 11/14/06)
Crawford No Bar to Dying Declarations
Dying declarations are admissible despite Crawford, the Nevada Supreme Court held. Although testimonial, they fall into the sui generis exception because they were admissible at the time the Sixth Amendment was adopted, the court reasoned. Harkins v. State, No. 45024 (Nev. 10/12/06)
Batson Challenge Defeated by "I Didn't Know"
"I made a mistake about the juror's race" is a sufficiently race-neutral reason to defeat a Batson challenge, the Sixth Circuit held. The dissenting judge pointed out that the government did not give any reason for striking the jury and that the majority's decision allowed the government to defeat the first prong of a Batson challenge simply by denying that the strike of the juror was racially motivated. US v. Watford, No. 05-6184 (6th Cir. 11/14/06)
No 4th Amendment Violation where Cop Searched Dad's Home
A police officer who visited his parents' home with the intention of confirming or dispelling his suspicion that his father was a bank robber did not violate the father's Fourth Amendment rights because the son was acting as a private citizen who just wanted to keep his dad from getting into deeper trouble. Needless to say, evidence that dad had been making unauthorized bank withdrawals was found. What a great kid. US v. Ginglin, No. 06-1074 (7th Cir. 11/6/06)
Minor Injuries Don't Warrant Enhancement
A minor head injury and a small mouth cut suffered by the assault victim (a prison guard) were too minor to support an offense-level enhancement for serious bodily injury under USSG 1B1.1. The fact that the victim did go the infirmary was downplayed as just standard policy. The term bodily injury is limited to "significant" injuries that are "painful and obvious" or "for which medical attention ordinarily would be sought." US v. Mejia-Canales, No. 05-4218 (10th Cir. 11/8/06)
Mere Presence of Juvenile Not "Use of a Minor"
The fact that the defendant's 17-year-old girlfriend was present when he trafficked in drugs and rode in the car with him when drugs were present was insufficient to support the use of a minor sentencing enhancement under USSG 3B1.4. US v. Molina, No. 05-51470 (5th Cir. 11/6/06)
Gun Possession Defendant's Sentence Properly Enhanced
The offense level of a defendant who pled guilty to possessing a gun while subject to a restraining order was properly enhanced for possessing a firearm in connection with another felony offense (USSG 2K2.1(b)(5)) where he had accepted the gun as collateral for a monetary loan intended to be used to buy drugs to be resold. US v. Gregg, No. 06-1364 (8th Cir. 11/13/06)
Attempted Child Neglect Not a COV
The categorical approach used to determine whether a prior conviction qualifies as a predicate for a recidivist sentencing enhancement does not permit the district court to rely on all the facts alleged in the charging document of the prior conviction where the defendant in fact pled to a lesser charge. The defendant had a prior Tennessee conviction of attempted child neglect; the original charge had been aggravated child neglect and the indictment alleged that the defendant had seriously burned the victim. The district court concluded that this was a predicate felony for USSG 4B1.2 purposes. The problem with the district court's analysis was that allegation of injury to the victim was not necessary to establish the lesser included offense to which the defendant had pled. Since the acceptable records did not indicate that the defendant had admitted to those allegations, the prior conviction had not been proven to be a crime of violence. US v. Armstead, No. 05-6480 (6th Cir. 11/6/06)
Sentencing Manipulation Argument Nixed
The Seventh Circuit rejected a defendant's argument that he was a victim of sentencing manipulation, and made it clear that the defense does not apply in that Circuit. Defendant was a licensed firearms dealer who sold firearms to a felon who was a CI. During the course of the sale, the CI made statements that the guns would be given to drug dealers in exchange for drugs. As a result, the defendant's sentence was increased under USSG 2K2.1(b)(5). Defendant argued that his sentence should not be increased because it was manipulated by the officers. Some circuits have held that a judge may not increase a defendant's sentence based on evidence obtained through outragous government conduct solely for the purpose of increasing the potential sentence. In this case, not only did the 7th Circuit reject the applicability of the concept, it did not find the government's conduct to be outrageous. US v. Wagner, No. 06-1644 (7th Cir. 11/7/06)
The 7th Circuit held that police officers did not neutralize a wife's consent to search the family home by failing to also ask the defendant/husband for his consent before they arrested him and moved him to the squad car. The wife had told officers that defendant had abused her two weeks earlier and that defendant, a felon, had guns and drugs in the home. Although the officers had probable cause to arrest the defendant for the domestic abuse, they decided to get cute and get into the house. At 11 p.m., in a blizzard, the officers went to the house and told the defendant his wife had been in a car accident. He invited them inside while he got dressed. Once inside, the officers arrested the defendant, put him in the patrol car, and proceeded to search. Naturally, guns were found and used to convict him of a firearms offense. The defendant objected to the search, saying he was present and would have objected had he known the officers would toss the house. The Seventh Circuit affirmed the conviction, finding that the Supreme Court's decision in Matlock, rather than Randolph, controlled. It "harmonized" the Georgia v. Randolph, 126 S.Ct. 1515 (2006), and US v. Matlock, 415 US 164 (1974), by emphasizing that there was no evidence that the officers removed the defendant from the scene just so as to avoid a possible objection. US v. DiModica, No. 05-4164 (7th Cir. 11/16/06)
On Booker Remand, No Revisiting The Guidelines in Defendant's Favor
The Fifth Circuit interpreted the Supreme Court's mandate to reconsider a case "in light of United States v. Booker" as in turn restricting its subsequent mandate to the district court for "resentencing in accordance with Booker" in such a way as to prohibit the district court from recalculating the guidelines range to the defendant's advantage on resentencing. The original trial had included a special verdict form in which the jury found a quantity of drugs attributable to the defendant. The district court, of course, calculated the applicable offense level based on relevant conduct, resulting in much greater drug quantities and a higher guideline range. The defendant received a 121 month sentence, which the Fifth affirmed. The Supreme Court then remanded, post-Booker. On remand, a new district court used a guideline range based on the jury's findings and imposed a new sentence of 63 months. If indeed this was the proper guideline range, the Fifth Circuit (with its presumption that guidelines sentences are reasonable) would have had a hard time reversing. Way out of the dilemma: Wrong guideline range! It concluded its mandate was only to resentence the defendant under an advisory guidelines range and not revisit the guidelines calculation, which had not been addressed or vacated on appeal. US v. Pineiro, No. 06-30242 (5th Cir. 11/9/06)
Street Dealer Gets Life
A street dealer convicted of conspiracy to distribute heroin can receive a life sentence based on the aggregate amount of the individual sales. US v. Pressley, No. 05-2487cr(L) (2d Cir. 11/14/06)
Crawford No Bar to Dying Declarations
Dying declarations are admissible despite Crawford, the Nevada Supreme Court held. Although testimonial, they fall into the sui generis exception because they were admissible at the time the Sixth Amendment was adopted, the court reasoned. Harkins v. State, No. 45024 (Nev. 10/12/06)
Batson Challenge Defeated by "I Didn't Know"
"I made a mistake about the juror's race" is a sufficiently race-neutral reason to defeat a Batson challenge, the Sixth Circuit held. The dissenting judge pointed out that the government did not give any reason for striking the jury and that the majority's decision allowed the government to defeat the first prong of a Batson challenge simply by denying that the strike of the juror was racially motivated. US v. Watford, No. 05-6184 (6th Cir. 11/14/06)
No 4th Amendment Violation where Cop Searched Dad's Home
A police officer who visited his parents' home with the intention of confirming or dispelling his suspicion that his father was a bank robber did not violate the father's Fourth Amendment rights because the son was acting as a private citizen who just wanted to keep his dad from getting into deeper trouble. Needless to say, evidence that dad had been making unauthorized bank withdrawals was found. What a great kid. US v. Ginglin, No. 06-1074 (7th Cir. 11/6/06)
Minor Injuries Don't Warrant Enhancement
A minor head injury and a small mouth cut suffered by the assault victim (a prison guard) were too minor to support an offense-level enhancement for serious bodily injury under USSG 1B1.1. The fact that the victim did go the infirmary was downplayed as just standard policy. The term bodily injury is limited to "significant" injuries that are "painful and obvious" or "for which medical attention ordinarily would be sought." US v. Mejia-Canales, No. 05-4218 (10th Cir. 11/8/06)
Mere Presence of Juvenile Not "Use of a Minor"
The fact that the defendant's 17-year-old girlfriend was present when he trafficked in drugs and rode in the car with him when drugs were present was insufficient to support the use of a minor sentencing enhancement under USSG 3B1.4. US v. Molina, No. 05-51470 (5th Cir. 11/6/06)
Gun Possession Defendant's Sentence Properly Enhanced
The offense level of a defendant who pled guilty to possessing a gun while subject to a restraining order was properly enhanced for possessing a firearm in connection with another felony offense (USSG 2K2.1(b)(5)) where he had accepted the gun as collateral for a monetary loan intended to be used to buy drugs to be resold. US v. Gregg, No. 06-1364 (8th Cir. 11/13/06)
Attempted Child Neglect Not a COV
The categorical approach used to determine whether a prior conviction qualifies as a predicate for a recidivist sentencing enhancement does not permit the district court to rely on all the facts alleged in the charging document of the prior conviction where the defendant in fact pled to a lesser charge. The defendant had a prior Tennessee conviction of attempted child neglect; the original charge had been aggravated child neglect and the indictment alleged that the defendant had seriously burned the victim. The district court concluded that this was a predicate felony for USSG 4B1.2 purposes. The problem with the district court's analysis was that allegation of injury to the victim was not necessary to establish the lesser included offense to which the defendant had pled. Since the acceptable records did not indicate that the defendant had admitted to those allegations, the prior conviction had not been proven to be a crime of violence. US v. Armstead, No. 05-6480 (6th Cir. 11/6/06)
Sentencing Manipulation Argument Nixed
The Seventh Circuit rejected a defendant's argument that he was a victim of sentencing manipulation, and made it clear that the defense does not apply in that Circuit. Defendant was a licensed firearms dealer who sold firearms to a felon who was a CI. During the course of the sale, the CI made statements that the guns would be given to drug dealers in exchange for drugs. As a result, the defendant's sentence was increased under USSG 2K2.1(b)(5). Defendant argued that his sentence should not be increased because it was manipulated by the officers. Some circuits have held that a judge may not increase a defendant's sentence based on evidence obtained through outragous government conduct solely for the purpose of increasing the potential sentence. In this case, not only did the 7th Circuit reject the applicability of the concept, it did not find the government's conduct to be outrageous. US v. Wagner, No. 06-1644 (7th Cir. 11/7/06)
posted by Anonymous at 11:23 AM
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