Unpublished Decisions
U.S. v. Jacquez, 2008 WL 2694060 (7/9/08) (unpub'd) - The 10th finds the officer reasonably stopped the defendant because the license plate of the car he was driving was registered to a Tommy Largo and there was an outstanding arrest warrant for a "Tommy Largo." The Tommy Largo to whom the plate related was considerably older than the Tommy Largo who was wanted and the defendant. The officer made a reasonable mistake, the 10th holds. The 10th did not require the officer to first find out the physical characteristics of the plate owner or the wanted person, even though that would have been easy to do.
U.S. v. Fontenot, 2008 WL 2698646 (7/11/08) (unpub'd) - Under § 5K1.1, the d. ct. is supposed to give substantial weight to the government's sentence recommendation, even when the defendant helped a state prosecution concerning which the government had little knowledge. It was okay to consider the defendant's lack of rehabilitation as a factor in determining the degree of departure. While a court may reward a defendant only for substantial assistance, a court may refuse to depart, or depart less, based on other factors.
U.S. v. Marchand, 2008 WL 2699780 (7/11/08) (unpub'd) - Although Gall disapproved an appellate court requiring a d. ct. to give controlling weight to the benefits of a plea bargain, a d ct. may consider that factor under § 3553(a)(1).
U.S. v. Ohiri, 2008 WL 2698649 (7/11/08) (unpub'd) - The defendant could not show the government's suppression of a co-defendant's statement indicating he was innocent of one of the counts to which he pleaded guilty was material. He would not have elected to go to trial if he knew of that evidence, given the strong case the government had regarding many other counts dismissed as part of the plea. The defendant did not establish a conflict of interest because he did not show his debt of $35,000 to his attorney affected his attorney's performance. Experts were not retained because the defendant couldn't afford them and counsel was unprepared for trial because he was busy with another trial, not because the defendant owed so much money.
U.S. v. Fajri, 2008 WL 2699800 (7/11/08) (unpub'd) - The 10th indicates a defendant's sentence appeal will usually not be mooted if he has a supervised release term to complete, even if he has finished his prison term. The d. ct. erred when it applied the mandatory revocation provision of § 3583(g)(4) for failing more than 3 drug tests when the defendant only failed 3. But no plain error relief, since the court would have given the same sentence anyway.
U.S. v. Clark, 2008 WL 2698648 (7/11/08) (unpub'd) - Trial practice forewarning: the defendant could not prevail on his claim the government intimidated his witness into not testifying because the defendant had not proffered what the witness would have testified to. That the witness had been willing to testify for the defense is not enough.
U.S. v. Stroup, 2008 WL 2662494 (7/8/08) (unpub'd) - 10th affirmance of a d. ct. finding of a drug amount much higher than the parties had stipulated to.
In re Cline, 2008 WL 2673263 (7/9/08) (unpub'd) - Of interest to the many habeasphiles out there. The 10th makes clear that, while it's okay for a d. ct. to transfer to it a successive petition, rather than requiring the petitioner to re-file in the 10th, it's also okay not to transfer such a petition when there is no risk a meritorious claim will be lost absent a transfer, e.g. due to the statute of limitations.
U.S. Spencer, 2008 WL 2588647 (7/1/08) (unpub'd) - A rare example of a rehearing petition that paid off. Habeas petitioner pointed out his limitations period had been tolled longer than the 10th had initially thought because he had sought cert from the U.S. S.Ct. His petition was not time-barred.
U.S. v. Fontenot, 2008 WL 2698646 (7/11/08) (unpub'd) - Under § 5K1.1, the d. ct. is supposed to give substantial weight to the government's sentence recommendation, even when the defendant helped a state prosecution concerning which the government had little knowledge. It was okay to consider the defendant's lack of rehabilitation as a factor in determining the degree of departure. While a court may reward a defendant only for substantial assistance, a court may refuse to depart, or depart less, based on other factors.
U.S. v. Marchand, 2008 WL 2699780 (7/11/08) (unpub'd) - Although Gall disapproved an appellate court requiring a d. ct. to give controlling weight to the benefits of a plea bargain, a d ct. may consider that factor under § 3553(a)(1).
U.S. v. Ohiri, 2008 WL 2698649 (7/11/08) (unpub'd) - The defendant could not show the government's suppression of a co-defendant's statement indicating he was innocent of one of the counts to which he pleaded guilty was material. He would not have elected to go to trial if he knew of that evidence, given the strong case the government had regarding many other counts dismissed as part of the plea. The defendant did not establish a conflict of interest because he did not show his debt of $35,000 to his attorney affected his attorney's performance. Experts were not retained because the defendant couldn't afford them and counsel was unprepared for trial because he was busy with another trial, not because the defendant owed so much money.
U.S. v. Fajri, 2008 WL 2699800 (7/11/08) (unpub'd) - The 10th indicates a defendant's sentence appeal will usually not be mooted if he has a supervised release term to complete, even if he has finished his prison term. The d. ct. erred when it applied the mandatory revocation provision of § 3583(g)(4) for failing more than 3 drug tests when the defendant only failed 3. But no plain error relief, since the court would have given the same sentence anyway.
U.S. v. Clark, 2008 WL 2698648 (7/11/08) (unpub'd) - Trial practice forewarning: the defendant could not prevail on his claim the government intimidated his witness into not testifying because the defendant had not proffered what the witness would have testified to. That the witness had been willing to testify for the defense is not enough.
U.S. v. Stroup, 2008 WL 2662494 (7/8/08) (unpub'd) - 10th affirmance of a d. ct. finding of a drug amount much higher than the parties had stipulated to.
In re Cline, 2008 WL 2673263 (7/9/08) (unpub'd) - Of interest to the many habeasphiles out there. The 10th makes clear that, while it's okay for a d. ct. to transfer to it a successive petition, rather than requiring the petitioner to re-file in the 10th, it's also okay not to transfer such a petition when there is no risk a meritorious claim will be lost absent a transfer, e.g. due to the statute of limitations.
U.S. Spencer, 2008 WL 2588647 (7/1/08) (unpub'd) - A rare example of a rehearing petition that paid off. Habeas petitioner pointed out his limitations period had been tolled longer than the 10th had initially thought because he had sought cert from the U.S. S.Ct. His petition was not time-barred.
posted by Anonymous at 4:40 PM
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