U.S. v. Cavillo-Arzate, 2013 WL 2350214 (5/30/13) (Kan.) (unpub'd) - In the course of rejecting a substantive-unreasonableness challenge to a reentry sentence, the 10th says a couple of problematic things: (1) the length of time between the defendant's prior conviction, which caused the 16-level enhancement, and the arrest for the instant offense (16 years) is irrelevant because the defendant reentered 13 years ago, just a few years after his offense and reentry is a continuing offense and so the number of years it took for the defendant to get caught [and the lack of any other offenses during that time] doesn't matter; (2) there's no unfair discrepancy between the six-level enhancement for a prior crime in the § 2K2.1 context and the 16-level enhancement for reentry offenses; other enhancements can be imposed for a firearm offense and "we're not going to second-guess the Sentencing Commission's decisions in this context regarding the comparative seriousness of different offenses."
U.S. v. Abbo, 2013 WL 2350268 (5/30/13) (Okl.) (unpub'd) - A couple of preservation lessons. (1) The defendant challenged the d. ct. allowing cross of the government's star witness on her drug use only to the extent it may have affected her ability to perceive underlying events and testify lucidly at trial. The defendant argued he was prevented from showing the jury she was untrustworthy because she had previously forged prescriptions. The 10th acknowledges a witness's drug use "is ripe for cross," but the defendant did not preserve any error because the defendant never tried to question the witness about her forged prescriptions or provide the d. ct. with an offer of proof. It was not clear the d. ct. would have prohibited that questioning. (2) The defendant's stipulation that an ATF agent would testify he found in the court files a record of the defendant's convictions waived any challenge to the evidence on foundational grounds, such as that the substantiating documents were not properly authenticated, although the stipulation did not necessarily waive the defendant's 404(b) challenge.
U.S. v. Bly, 2013 WL 2350327 (5/30/13) (Okl.) (unpub'd) - In a § 3582(c)(2) proceeding, the retroactive amendment precluding an enhancement for firearm possession for an underlying offense when § 2K2.4 is used did not apply to the defendant because he was convicted of violating § 922(g)(1) and § 2K2.4 only applies to violations of 18 U.S.C. §§ 844(h), 924(c) and 929(a).
U.S. v. Crosby, 2013 WL 2350321 (5/30/13) (Kan.) (unpub'd) - The 10th affirms denial of the bank robbery defendant's motion under 18 U.S.C. § 3600 for post-conviction DNA testing. The defendant did not raise a reasonable probability of innocence where the defendant offered no theory whose DNA would appear and there were 3 positive eyewitness IDs by bank employees.
U.S. v. Abbo, 2013 WL 2350268 (5/30/13) (Okl.) (unpub'd) - A couple of preservation lessons. (1) The defendant challenged the d. ct. allowing cross of the government's star witness on her drug use only to the extent it may have affected her ability to perceive underlying events and testify lucidly at trial. The defendant argued he was prevented from showing the jury she was untrustworthy because she had previously forged prescriptions. The 10th acknowledges a witness's drug use "is ripe for cross," but the defendant did not preserve any error because the defendant never tried to question the witness about her forged prescriptions or provide the d. ct. with an offer of proof. It was not clear the d. ct. would have prohibited that questioning. (2) The defendant's stipulation that an ATF agent would testify he found in the court files a record of the defendant's convictions waived any challenge to the evidence on foundational grounds, such as that the substantiating documents were not properly authenticated, although the stipulation did not necessarily waive the defendant's 404(b) challenge.
U.S. v. Bly, 2013 WL 2350327 (5/30/13) (Okl.) (unpub'd) - In a § 3582(c)(2) proceeding, the retroactive amendment precluding an enhancement for firearm possession for an underlying offense when § 2K2.4 is used did not apply to the defendant because he was convicted of violating § 922(g)(1) and § 2K2.4 only applies to violations of 18 U.S.C. §§ 844(h), 924(c) and 929(a).
U.S. v. Crosby, 2013 WL 2350321 (5/30/13) (Kan.) (unpub'd) - The 10th affirms denial of the bank robbery defendant's motion under 18 U.S.C. § 3600 for post-conviction DNA testing. The defendant did not raise a reasonable probability of innocence where the defendant offered no theory whose DNA would appear and there were 3 positive eyewitness IDs by bank employees.
posted by Anonymous at 3:37 PM
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