Miscellaneous from All Around the Circuits
It was A-OK for cops to search a house pursuant to the wife's consent, even though the husband had denied consent. You'd think that the Supreme Court's decision in Georgia v. Randolph, 547 US 103 (2006), would mean that the search was a definite no-no. But not in the eyes of the 7th Circuit. In this case, the police were called to a domestic violence disturbance. His wife said there were illegal items in the house. Defendant denied consent to search. The police then arrested him and took him away. They then got consent from the wife to search and found drugs, firearms and fireworks, which were the basis for federal charges. The 7th Circuit reasoned that the defendant's objection to the search "lost its force when he was validly arrested and taken to jail." At that point, his wife could consent despite her husband's earlier objection and the search of the home was therefore reasonable as to him. There was a dissenting opinion and this decision disagrees with an earlier 9th Cir. decision, creating a circuit split. US v. Henderson, No. 07-1014 (7th Cir. 8/6/08)
Waiver trumps plain error, the 3d Circuit held. Specifically, when a defendant who lost a suppression motion argues a new basis for suppression on appeal, the claim is waived and plain-error review is unavailable. US v. Rose, No. 05-5199 (3d Cir. 8/5/08)
Downside of Booker and Kimbrough: The 9th Circuit affirmed an upward enhancement for a defendant who was a member of a terrorist group where the 12-level increase was for the purpose of achieving parity with the codefendants' sentences, even though she was technically ineligible for a sentencing increase for acts against the government under USSG 3A1.4. (Unlike her codefendants, defendant's conduct did not involve any acts against the government but were solely on land owned by a private logging company.) "[A] sentence outside the applicable advisory guidelines range is not per se unreasonable when it is based on the district court's efforts to achieve sentencing parity between codefendants who engaged in similar conduct, where some defendants were properly subject to a sentencing enhancement, and others were not," the court said. US v. Tankersley, No. 07-30334 (9th Cir. 8/12/08)
A long delay between the time of the defendant's offense and his sentencing generally won't justify a variance from the advisory guidelines range, the 6th Cir. held. To the extent such a delay might be considered, it would have be both "unjustified" and prejudicial. In this case, the 14-year delay between the defendant's fraudulent conduct (lying to a bank about his debts and lying about his assets in a deposition) in 1991 and 1992 were caused by the defendant's bankruptcy, which ended in 1996; a 3-year delay in bringing the indictment (in 1999); a first sentencing in 2003, that was remanded pursuant to Booker in 2005; and now a second hearing. In the meantime, the defendant turned 70. Thus the district court, noting the 14 years of fraud-free conduct and the defendant's age, departed from the 30-37 month advisory range and imposed a sentence of one day with credit for time served. The 7th Cir. reversed again (sending it back for yet a 3d sentencing hearing), basically because the extent of the variance was just too much. US v. Davis, No. 05-3784 (6th Cir. 8/12/08)
Mere on-line chatting about having sex is insufficient to prove attempted enticement of a minor, the 7th Cir. held. In this case, the defendant was chatting with someone purporting to be a 14-year-old girl but (surprise!) was actually an undercover law enforcement agent. There was talk of sex and of the defendant traveling to meet her, but no specific arrangements were ever made. Thus, the 7th Cir. concluded, the defendant did not take any "substantial step" towards completing the offense and reversed his 18 USC 2422(b) convictions. US v. Gladish, No. 07-2718 (7th Cir. 7/31/08)
Cops who tailed a suspected drug trafficker to drug caches and the scene of an arranged buy had probable cause to believe that the driver was involved, the 2d Cir. held. It relied on Maryland v. Pringle, 540 US 74 (2003), and noted that in this case, the driver defendant drove the suspect to various locations and the suspect discussed the drug deal on the phone with the agents while the driver was likely in the car. US v. Rodriguez, No. 06-4813-cr (2d Cir. 7/25/08)
A conviction under the Texas statute prohibiting "offering to sell" drugs, Tex. Health and Safety Code Ann. 481.112, qualifies as an ACCA predicate, the 5th Cir. held. Distinguishing its decision holding that such a conviction did not qualify for the sentencing enhancement for "drug trafficking" under 2L1.2, it noted that the definition of "serious drug offense" under ACCA differs from the "drug trafficking" definition in the guideline. US v. Vickers, No. 07-10767 (5th Cir. 8/12/08)
Disregarding warning letters from an agency telling a defendant to stop what he was doing (in this case, selling veterinary-grade prescription drugs to horse owners) will not support a 2-level enhancement under USSG 2B1.1(b)(8) for violating a specific administrative order. The increase was unwarranted where the defendant was not given a specific order nor an opportunity to resolve the issue. US v. Goldberg, No. 07-1048 (3d Cir. 8/8/08)
Modifying its prior precedent in light of (yay!) Begay v. US, the 8th Cir. held that some forms of auto theft -- those that involve coercion -- may still satisfy the Sentencing Guidelines' definition of "crimes of violence" in 4B1.2(a) but others do not. At issue was whether defendant's Missouri conviction for auto theft, under a statute that included taking by coercion, deception, or simply taking without the owner's consent, supported an enhancement under USSG 2K2.1(a)(2). Only the first form satisfied the Begay test, the court held. Remand was necessary for the district court to determine exactly which form of theft applied to defendant's conviction. US v. Williams, No. 07-2679 (8th Cir. 8/11/08)
If the district court explicitly grants time for preparing pretrial motions, that time may be excluded from the Speedy Trial calculations, the 8th Cir. said, joining the majority of circuits to address the issue. US v. Bloate, No. 07-2357 (8th Cir. 7/25/08)
Waiver trumps plain error, the 3d Circuit held. Specifically, when a defendant who lost a suppression motion argues a new basis for suppression on appeal, the claim is waived and plain-error review is unavailable. US v. Rose, No. 05-5199 (3d Cir. 8/5/08)
Downside of Booker and Kimbrough: The 9th Circuit affirmed an upward enhancement for a defendant who was a member of a terrorist group where the 12-level increase was for the purpose of achieving parity with the codefendants' sentences, even though she was technically ineligible for a sentencing increase for acts against the government under USSG 3A1.4. (Unlike her codefendants, defendant's conduct did not involve any acts against the government but were solely on land owned by a private logging company.) "[A] sentence outside the applicable advisory guidelines range is not per se unreasonable when it is based on the district court's efforts to achieve sentencing parity between codefendants who engaged in similar conduct, where some defendants were properly subject to a sentencing enhancement, and others were not," the court said. US v. Tankersley, No. 07-30334 (9th Cir. 8/12/08)
A long delay between the time of the defendant's offense and his sentencing generally won't justify a variance from the advisory guidelines range, the 6th Cir. held. To the extent such a delay might be considered, it would have be both "unjustified" and prejudicial. In this case, the 14-year delay between the defendant's fraudulent conduct (lying to a bank about his debts and lying about his assets in a deposition) in 1991 and 1992 were caused by the defendant's bankruptcy, which ended in 1996; a 3-year delay in bringing the indictment (in 1999); a first sentencing in 2003, that was remanded pursuant to Booker in 2005; and now a second hearing. In the meantime, the defendant turned 70. Thus the district court, noting the 14 years of fraud-free conduct and the defendant's age, departed from the 30-37 month advisory range and imposed a sentence of one day with credit for time served. The 7th Cir. reversed again (sending it back for yet a 3d sentencing hearing), basically because the extent of the variance was just too much. US v. Davis, No. 05-3784 (6th Cir. 8/12/08)
Mere on-line chatting about having sex is insufficient to prove attempted enticement of a minor, the 7th Cir. held. In this case, the defendant was chatting with someone purporting to be a 14-year-old girl but (surprise!) was actually an undercover law enforcement agent. There was talk of sex and of the defendant traveling to meet her, but no specific arrangements were ever made. Thus, the 7th Cir. concluded, the defendant did not take any "substantial step" towards completing the offense and reversed his 18 USC 2422(b) convictions. US v. Gladish, No. 07-2718 (7th Cir. 7/31/08)
Cops who tailed a suspected drug trafficker to drug caches and the scene of an arranged buy had probable cause to believe that the driver was involved, the 2d Cir. held. It relied on Maryland v. Pringle, 540 US 74 (2003), and noted that in this case, the driver defendant drove the suspect to various locations and the suspect discussed the drug deal on the phone with the agents while the driver was likely in the car. US v. Rodriguez, No. 06-4813-cr (2d Cir. 7/25/08)
A conviction under the Texas statute prohibiting "offering to sell" drugs, Tex. Health and Safety Code Ann. 481.112, qualifies as an ACCA predicate, the 5th Cir. held. Distinguishing its decision holding that such a conviction did not qualify for the sentencing enhancement for "drug trafficking" under 2L1.2, it noted that the definition of "serious drug offense" under ACCA differs from the "drug trafficking" definition in the guideline. US v. Vickers, No. 07-10767 (5th Cir. 8/12/08)
Disregarding warning letters from an agency telling a defendant to stop what he was doing (in this case, selling veterinary-grade prescription drugs to horse owners) will not support a 2-level enhancement under USSG 2B1.1(b)(8) for violating a specific administrative order. The increase was unwarranted where the defendant was not given a specific order nor an opportunity to resolve the issue. US v. Goldberg, No. 07-1048 (3d Cir. 8/8/08)
Modifying its prior precedent in light of (yay!) Begay v. US, the 8th Cir. held that some forms of auto theft -- those that involve coercion -- may still satisfy the Sentencing Guidelines' definition of "crimes of violence" in 4B1.2(a) but others do not. At issue was whether defendant's Missouri conviction for auto theft, under a statute that included taking by coercion, deception, or simply taking without the owner's consent, supported an enhancement under USSG 2K2.1(a)(2). Only the first form satisfied the Begay test, the court held. Remand was necessary for the district court to determine exactly which form of theft applied to defendant's conviction. US v. Williams, No. 07-2679 (8th Cir. 8/11/08)
If the district court explicitly grants time for preparing pretrial motions, that time may be excluded from the Speedy Trial calculations, the 8th Cir. said, joining the majority of circuits to address the issue. US v. Bloate, No. 07-2357 (8th Cir. 7/25/08)
posted by Anonymous at 10:32 AM
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