Circuit Watcher

U.S. v. Politano, 1st Cir. Apr. 3, 2008

admin — Wed, 09 Apr 2008 03:17:28 +0000

06-2342 U.S. v. Politano
Before Torruella and Lynch, Circuit Judges, and Fusté¹ District Judge.
TORRUELLA, Circuit Judge. On May 3, 2006, Jermaine N. Politano pled guilty to engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A). At sentencing, Politano requested, and the Government recommended, a twelve-month term of incarceration. The district court calculated Politano’s Guidelines Sentencing Range (”GSR”) to be twelve to eighteen months, based on an offense level of 13, but proceeded to sentence Politano to twenty-four months’ incarceration. Politano now appeals his sentence. After careful consideration, we affirm the sentence. … U.S. v. Politano.

Of the District of Puerto Rico, sitting by designation. [↩]

U.S. v. Jaca Nazario, 1st Cir. Mar. 27, 2008

admin — Tue, 08 Apr 2008 19:19:05 +0000

05-2114, 06-2157 U.S. v. Jaca Nazario
Before Howard, Circuit Judge, Selya, Senior Circuit Judge, and Dyk,¹ Circuit Judge.
HOWARD, Circuit Judge. Carlos Jaca Nazario (”Jaca”) pled guilty to conspiring to transport cocaine in two separate criminal cases. He was sentenced by a different judge for each plea. He makes a variety of claims on appeal, some directed at one sentence, some at the other, and some at both. Because we find that the district court erred in its determination of whether the conduct underlying each case was, in the parlance of the federal sentencing guidelines, “relevant conduct” as to the sentencing of the other, we vacate both sentences and remand for resentencing. … U.S. v. Jaca Nazario.

Of the Federal Circuit, sitting by designation. [↩]

U.S. v. Rogers, 1st Cir. Mar. 25, 2008

admin — Tue, 08 Apr 2008 17:57:01 +0000

06-2532 U.S. v. Rogers
Before Lipez and Howard, Circuit Judges, and Oberdorfer,¹ Senior District Judge.
OBERDORFER, Senior District Judge. Roy Lewis Rogers appeals his conviction and sentence for one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He challenges the district court’s denial of his motion to suppress evidence, arguing that the police exceeded the scope of their search warrant authorizing them to search for “photos of [a minor child]” when they seized and later viewed a videotape. He also contends that pursuant to § 5G1.3(b) of the federal Sentencing Guidelines, the district court should have ordered his entire federal sentence of imprisonment to run concurrently to his undischarged state sentence. Finding no error in the denial of Rogers’ motion to suppress or at sentencing, we affirm. … U.S. v. Rogers.

Of the District of Columbia, sitting by designation. [↩]

U.S. v. Vaughn, 8th Cir. Mar. 25, 2008

admin — Tue, 25 Mar 2008 19:46:38 +0000

06-3626 U.S. v. Vaughn
U.S. District Court for the Eastern District of Missouri - Cape Girardeau
Girardeau [PUBLISHED] [Benton, Author, with Wollman, and John R. Gibson, Circuit Judges]
Criminal Case - sentencing. Applying plain error review, district court erred in applying a presumption of reasonableness, but error was harmless as there is no indication district court would have sentenced him more favorably absent presumption. Although district court stated it was to impose a “reasonable sentence,” it is clear that court followed proper procedures. District court did not abuse its discretion in sentencing defendant.

U.S. v. Quintana-Gomez, 5th Cir. Mar. 25, 2008

admin — Tue, 25 Mar 2008 19:28:04 +0000

07-10139 U.S. v. Quintana-Gomez
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge: The question presented is whether the district court plainly erred by ordering that its sentence run consecutively to a not-yet-imposed sentence pending in another federal court. We hold that the district court erred but that this error was not plain. AFFIRMED. … Because the Northern District Court was without authority to order that its sentence run consecutively, its order, in this limited respect, is without effect and may be disregarded by the Federal Bureau of Prisons in the light of this holding. U.S. v. Quintana-Gomez.

U.S. v. Maupin, 11th Cir. Mar. 24, 2008

admin — Tue, 25 Mar 2008 06:14:38 +0000

07-1334 U.S. v. Maupin
Before ANDERSON, BLACK and HULL, Circuit Judges.
PER CURIAM: Todd Maupin appeals his 240-month and 480-month sentences imposed following his guilty plea to two child pornography counts, both in violation of 18 U.S.C. § 2252A. Maupin asserts the district court erred in enhancing his sentences based on its determination that a 1991 nolo contendere plea with adjudication withheld to Florida child pornography charges was a prior conviction warranting a sentencing enhancement under 18 U.S.C. § 2252A(b)(1) and (b)(2). We conclude the district court did not err in enhancing Maupin’s sentences, and affirm. … U.S. v. Maupin.

U.S. v. Cervantes, 10th Cir. Mar. 24, 2008

admin — Tue, 25 Mar 2008 06:11:27 +0000

06-4172 U.S. v. Cervantes
Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRISCOE, Circuit Judge.
KELLY, Circuit Judge. Defendant-Appellant Marcos A. Cervantes pled guilty to one count of possession of methamphetamine with intent to distribute and was sentenced to the statutory minimum 120 months’ imprisonment followed by five years of supervised release. 21 U.S.C. § 841(a)(1), (b)(1)(A). On appeal, Mr. Cervantes challenges the district court’s refusal to grant him a “safety-valve” adjustment so that he might be sentenced within the advisory guideline range below the statutory minimum. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm. … U.S. v. Cervantes.

U.S. v. Carty, 9th Cir. Mar. 24, 2008

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05-10200, 05-30120 U.S. v. Carty
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder, Stephen Reinhardt, Pamela Ann Rymer, Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.
RYMER, Circuit Judge: We ordered rehearing en banc in these cases to clarify our sentencing law in the wake of United States v. Booker, 543 U.S. 220 (2005).¹. Carty and Zavala are consolidated for purposes of rehearing en banc.)) Events overtook us, however, when the United States Supreme Court granted certiorari in Claiborne v. United States and Rita v. United States. As the issues were similar to those in our appeals, we deferred submission pending the Court’s decisions.
.
The Court rendered its opinion in Rita on June 21, 2007, holding that a court of appeals may presume that the sentence is reasonable when a district judge’s discretionary decision accords with the sentence the United States Sentencing Commission deems appropriate in the mine-run of cases. 551 U.S. ___, 127 S. Ct. 2456, 2465 (2007). Mario Claiborne’s case was mooted by his death, Claiborne v. United States, 551 U.S. ___, 127 S. Ct. 2245 (2007) (per curiam), so the Court
granted certiorari in Gall v. United States to address the question whether a sentence that amounts to a substantial variance from the Guidelines needs to be justified by extraordinary circumstances. 127 S. Ct. 2933 (2007). It held on December 10, 2007 that appellate courts must review all sentences, within and without the Guidelines range, under a deferential abuse-of-discretion standard. Gall, ___ U.S. ___, 128 S. Ct. 586, 591 (2007). On the same day, the Court held that, under Booker, the cocaine Guidelines, like all others, are advisory only and that the Guidelines, formerly mandatory, serve as one factor among several that district courts must consider in determining an appropriate sentence. Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558, 564 (2007).
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Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate “presumption” of reasonableness for sentences imposed within the Guidelines range. We decline to do so, although we recognize that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal. Applying Rita, Gall and Kimbrough, we conclude that there was no significant procedural error in either Carty or Zavala, and that the sentences imposed were not unreasonable. Accordingly, we affirm in each case.²
… U.S. v. Carty.

United States v. Carty, 462 F.3d 1066 (9th Cir. 2006) (ordering rehearing en banc in United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006), and United States v. Carty, 453 F.3d 1214 (9th Cir. 2006 [↩]
Carty also challenges his conviction, which we affirm for reasons stated in Parts I and II of the panel opinion, and the wording of the verdict form, as to which we see no abuse of discretion and affirm for reasons stated in Part III. Carty, 453 F.3d at 1217-18, vacated, 462 F.3d 1066 (9th Cir. 2006). [↩]

U.S. v. Sanders, 7th Cir. Mar. 21, 2008

admin — Sat, 22 Mar 2008 05:36:58 +0000

07-1176 U.S. v. Sanders
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Defendant-Appellant DeAngelo Sanders was indicted on the charges of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5845, 5861(d) and 5871, and possession of a firearm as a felon in contravention of 18 U.S.C. §§ 922(g)(1) and 924(e)(2)(B)(i) and (ii). Following a trial, a jury found Sanders guilty on both counts. The district court sentenced Sanders to 295 months’ imprisonment on Count 1 and 120 months on Count 2, to be served concurrently. Sanders now appeals his conviction and sentence, and we affirm. … U.S. v. Sanders.

U.S. v. Martin, 1st Cir. Mar. 21, 2008

admin — Sat, 22 Mar 2008 04:24:26 +0000

06-1983 U.S. v. Martin
Before Boudin, Chief Judge, Selya, Senior Circuit Judge, and Schwarzer,¹ Senior District Judge.
SELYA, Senior Circuit Judge. In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court shed considerable light on the scope and extent of a district court’s discretion under the now-advisory federal sentencing guidelines. See id. at 598-602. This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda. … U.S. v. Martin.

Of the Northern District of California, sitting by designation. [↩]

U.S. v. Brewer, 4th Cir. Mar. 20, 2008

admin — Fri, 21 Mar 2008 01:54:21 +0000

06-4836 U.S. v. Brewer
Before NIEMEYER and KING, Circuit Judges, and James A. BEATY, Jr., Chief United States District Judge¹
KING, Circuit Judge: Arthur Leon Brewer appeals from his sentence of seventy months in prison, imposed in the Eastern District of Virginia on his 2006 conviction for distributing more than five grams of cocaine base (”crack”), in violation of 21 U.S.C. § 841(a)(1). On appeal, Brewer, who is mentally handicapped, contends that the district court erred by, inter alia, denying him a downward departure based on diminished capacity and imposing a sentence that is unreasonable.² As explained below, we reject each of these contentions and affirm. … U.S. v. Brewer.

for the Middle District of North Carolina, sitting by designation. [↩]
In connection with his unreasonableness contention, Brewer argues that Amendment 706, the Sentencing Commission’s recent revision to the Guidelines concerning crack offenses, applies to his sentence and mandates a remand for resentencing. As explained further in Part II.B.2, because the Sentencing Commission made Amendment 706 retroactive, the sentencing court possesses ample authority to consider this argument, and we neither resolve the issue nor remand. [↩]

U.S. v. Dominguez, 2d Cir. Mar. 20, 2008

admin — Thu, 20 Mar 2008 14:54:21 +0000

05-7005 U.S. v. Dominguez
Before: MINER, SACK, and HALL, Circuit Judges. Appeal by the Government from a judgment of conviction and sentence for conspiracy to distribute cocaine and cocaine base entered in the United States District Court for the Northern District of New York (Hurd, J.) insofar as the sentence reflects a departure of approximately 93% from the statutory minimum sentence, the District Court having determined that the Government’s motion for a downward departure based upon defendant’s cooperation enabled it to exercise discretion, apparently informed by a variety of specified and unspecified factors, to impose a sentence it deemed “fair and reasonable under the circumstances.” Vacated and remanded. … U.S. v. Dominguez

U.S. v. Davis, 9th Cir. Mar. 19, 2008

admin — Thu, 20 Mar 2008 06:16:54 +0000

06-10527 U.S. v. Davis
Before: Stephen Reinhardt, John T. Noonan, and Raymond C. Fisher, Circuit Judges.
PER CURIAM: We issued a limited remand in this case with instructions to the district court to take two specific actions: 1) strike the conviction and the sentence as to count four; and 2) determine, in accordance with United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), whether the district court would have imposed the same sentence had it been aware that the Sentencing Guidelines were advisory rather than mandatory. See United States v. Davis, 138 F. App’x. 914, 915 (9th Cir. 2005).
.
On remand, the district court struck the conviction and the sentence as to count four. The court also declared that it would not have imposed a different sentence on Davis had it known that the Sentencing Guidelines were advisory. The district court then went on, however, to reconsider Davis’s sentence as to count three, increasing it substantially.
.
Where this court expressly limits the scope of remand, the district court is without authority to reexamine other sentencing issues on remand. United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994). In this case, the district court exceeded its authority when it increased Davis’s sentence on count three. We therefore vacate Davis’s sentence and instruct the district court to reimpose his original sentence, except that no sentence shall be imposed on count four. No adjustment shall be made with respect to any other count.¹
.
VACATED AND REMANDED for the sole purpose of resentencing as provided in this opinion. U.S. v. Davis.

Because the district court lacked authority to resentence Davis except in accordance with the instructions contained in the limited mandate, we do not consider Davis’s other challenges to the sentence. [↩]

U.S. v. Sero, 2d Cir. Mar. 19, 2008

admin — Wed, 19 Mar 2008 14:36:05 +0000

05-6967 U.S. v. Sero
Before: WALKER, B.D. PARKER, Circuit Judges, and CASTEL, District Judge.¹
PER CURIAM: Fernando Sero appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Brient, J.). Sero was convicted of exporting weapons and other defense articles from the United States to the Philippines in violation of the Arms Export Control Act (“AECA”), 22 U.S.C. § 2778, and the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. Part 120, et seq. Sero pled guilty to one count of a four count indictment charging him with unlawfully shipping the following gun parts and amunition: three take-down pins, one trigger housing unit, one bolt group, one sighting group, one magazine release, three receivers, one stock, one buffer spring, ten 7.62 mm magazines, two boxes of .40 caliber Black Talon DP cartridges, and three boxes of weapons primers. He was sentenced principally to 40 months imprisonment – – six months below the bottom of the guideline range – – followed by a three-year term of supervised release. This appeal, which challenges the length of his sentence, followed. … we affirm. U.S. v. Sero.

The Honorable P. Kevin Castel, United States District Court for the Southern District of New York, sitting by designation. [↩]

U.S. v. LaFortune, 1st Cir. Mar. 18, 2008

admin — Wed, 19 Mar 2008 02:58:58 +0000

06-1699 U.S. v. LaFortune
Before Lipez, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
LIPEZ, Circuit Judge. Following convictions on four child pornography charges, Girard LaFortune appeals from the denial of a motion to suppress challenging the probable cause determination of a magistrate judge who issued a search warrant for LaFortune’s residence. In making that determination, the magistrate judge reviewed an application for a search warrant that included an affidavit from an investigating officer and copies of pornographic images. LaFortune claims that the affidavit and the accompanying images did not permit the magistrate judge to determine whether the images depicted real children rather than virtual children. Instead, LaFortune argues, the magistrate judge required the assistance of “informed lay opinion, evidencing some kind of basic technical familiarity with virtual imaging and giving specific reasons why the proffered depictions could readily be ruled out as artificial creations.” Without such assistance, LaFortune argues, the magistrate judge could not make the necessary probable cause determination. The district court rejected this argument.
.
LaFortune also appeals the enhancement of his sentence pursuant to 18 U.S.C. § 2251(e), arguing that the enhancement violates his Sixth Amendment rights because a jury did not determine the fact of his prior convictions. We affirm the convictions and the sentence. … U.S. v. LaFortune.

U.S. v. Goodman, 6th Cir. Mar. 17, 2008

admin — Mon, 17 Mar 2008 19:44:11 +0000

06-5513 U.S. v. Goodman
Before: MOORE, GILMAN, and SUTTON, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. In this case the defendant, Marvin Goodman (“Goodman”), challenges the district court’s use of a 1993 Tennessee escape conviction for an enhancement to his sentence under the Armed Career Criminal Act (“ACCA”). Although it is possible that a Tennessee court might no longer consider a violation of house arrest to qualify as an escape under Tennessee law, precedent binds us to consider that conviction a violent felony until such time that Goodman can overturn or expunge that conviction. Goodman also challenges the district court’s decision to give him a one-level enhancement for possessing a firearm in connection with a controlled-substance offense. The evidence before the district court did not establish that the firearm was possessed in connection with a controlled-substance offense. We therefore VACATE Goodman’s sentence and REMAND to the district court for resentencing consistent with this opinion. … U.S. v. Goodman.

U.S. v. Cutler, 2d Cir. Mar. 17, 2008

admin — Mon, 17 Mar 2008 16:59:22 +0000

05-2516, 05-3303, 05-6178 U.S. v. Cutler
Before: JACOBS, Chief Judge, KEARSE and POOLER, Circuit Judges.
Appeals by the United States challenging the sentences imposed on the above defendants in the United States District Court for the Southern District of New York, Loretta A. Preska, Judge, following their convictions of, inter alia, bank fraud, tax evasion, and false statements, and conspiracy to commit those offenses and mail fraud, 18 U.S.C. §§ 371, 1014, 1341, 1344, and 1623, and 26 U.S.C. § 7201. Vacated and remanded for resentencing. Judge Pooler concurs in a separate opinion.
.
KEARSE, Circuit Judge: Defendants James Cutler and Sanford Freedman, following a jury trial in the United States District Court for the Southern District of New York, Loretta A. Preska, Judge, were convicted, along with others, on various charges relating to extensive bank frauds and tax frauds. Issues raised in an appeal by Freedman have been dealt with in a summary order filed today, see United States v. Freedman, Nos. 05-2516, -6068. This opinion deals with an appeal by the government, No. 05-3303, challenging the sentence imposed on Cutler, and a cross-appeal by the government, No. 05-6178, challenging the sentence imposed on Freedman. … U.S. v. Cutler.

U.S. v. Hayes, 8th Cir. Mar. 14, 2008

admin — Fri, 14 Mar 2008 17:39:14 +0000

07-1208 U.S. v. Hayes
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Shepherd, Author, with Beam and Melloy, Circuit Judges]
Criminal case - Criminal law and Sentencing. Evidence was sufficient
to show defendant concealed a wanted person after she learned of his
federal arrest warrant; instruction properly informed jury of the
elements of the offense; sentence was not unreasonable.

U.S. v. Pate, 8th Cir. Mar. 13, 2008

admin — Thu, 13 Mar 2008 22:57:07 +0000

07-2207 U.S. v. Pate
U.S. District Court for the Western District of Arkansas - Hot Springs
[PUBLISHED] [Gritzner, Author, with Wollman and Smith, Circuit Judges]
Criminal case - Sentencing. Defendant failed to raise the affirmative
defense that one of the firearms in the case was an antique, and the
burden did not shift to the government to disprove that fact; as a result,
the district court did not err in including the weapon in calculating the
total number of firearms defendant possessed for purposes of Guidelines
Sec. 2K2.1(b)(1); adequate evidence support the trial court’s conclusion
that all of the weapons were loaded and could have been used; no error in
imposing a four-level enhancement under Guidelines Sec. 2K2.1(b)(6)
for possession of the weapons in connection with another felony - the
manufacture of methamphetamine.

U.S. v. Refert, 8th Cir. Mar. 13, 2008

admin — Thu, 13 Mar 2008 22:45:24 +0000

07-1158 U.S. v. Refert
U.S. District Court for the District of South Dakota
[PUBLISHED] [Smith, Author, with Riley and Bowman, Circuit Judges]
Criminal case - Criminal law and sentencing. Instructions properly
advised the jury of the essential elements of the offenses of health care
fraud and making a false claim against the United States; evidence was
sufficient to support conviction for making false claims; district court did
not err in including emergency room costs in defendant’s restitution
order; district court plainly erred in sentencing defendant to consecutive
terms of supervised release, and that portion of the sentence is reversed
and remanded for resentencing.

U.S. v. Stratton, 11th Cir. Mar. 13, 2008

admin — Thu, 13 Mar 2008 15:52:15 +0000

06-10080 U.S. v. Stratton
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM: This case is before us on remand from the United States Supreme Court for consideration of Stratton’s sentence in light of Kimbrough v. United States, 552 U.S. ___, 128 S. Ct. 558 (2007). Stratton v. United States, 552 U.S. ___, 128 S. Ct. 859 (2008). This panel previously affirmed Stratton’s 235-month sentence for conspiracy to possess with intent to distribute crack and powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. See United States v. Stratton, 205 F. App’x 791 (11th Cir. 2006). After reconsideration, we reinstate our previous opinion to the extent it rejected Stratton’s claims that (1) United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), is unconstitutional, (2) Booker’s remedial holding implicates ex post facto and due process concerns, (3) the district court violated Booker by its extra-verdict fact-findings and enhancements, and (4) the district court judge sua sponte should have recused. We also reinstate our previous order to the extent it concluded that Stratton’s claim that 21 U.S.C. § 846 is unconstitutional was barred by the law-of-the-case doctrine because he did not raise it in his first appeal.
.
However, we reconsider our previous opinion to the extent it rejected Stratton’s claim that the crack/powder sentencing disparity may be a factor in determining a reasonable sentence. … U.S. v. Stratton.

U.S. v. Olsen, 10th Cir. Mar. 11, 2008

admin — Wed, 12 Mar 2008 04:34:24 +0000

06-4307 U.S. v. Olsen
Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.
LUCERO, Circuit Judge. Timmy Brent Olsen appeals his conviction and sentence on fifteen counts of perjury in violation of 18 U.S.C. § 1623(a). He contends that the district court abused its discretion by declining to sever three of the perjury counts, and that it violated his due process rights by finding a sentencing fact by only a preponderance of the evidence. We disagree. We do not discern an abuse of discretion in refusing to sever the counts, and any constitutional error is harmless beyond a reasonable doubt. We therefore AFFIRM Olsen’s conviction and sentence. … U.S. v. Olsen.

U.S. v. Rodriguez-Rivera, 10th Cir. Mar. 11, 2008

admin — Tue, 11 Mar 2008 19:13:03 +0000

06-3386 U.S. v. Rodriguez-Rivera
Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.
TACHA, Circuit Judge. Pursuant to a plea agreement, Defendant-Appellant Jose Luis Rodriguez-Rivera pleaded guilty to possession with intent to distribute five kilograms or more of a mixture containing cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). Mr. Rodriguez-Rivera appeals the 235-month sentence imposed by the District Court, and the Government has moved this Court to enforce a provision in the plea agreement waiving his right to appeal. We exercise jurisdiction under 28 U.S.C. § 1291, GRANT the motion to enforce, and DISMISS Mr. Rodriguez-Rivera’s appeal. … U.S. v. Rodriguez-Rivera.

Michel v. U.S., 11th Cir. Mar. 11, 2008

admin — Tue, 11 Mar 2008 16:18:18 +0000

06-13982 Michel v. U.S.
Before BIRCH, CARNES and COX, Circuit Judges.
COX, Circuit Judge: Georges Michel appeals the district court’s judgment dismissing as time-barred his 28 U.S.C. § 2255 motion to vacate his sentence. Michel’s original § 2255 motion was filed before the statute of limitations ran, but because it was unsigned, the district court clerk did not file and docket it until Michel provided a signed copy after the statutory deadline. Michel contends that amended Rule 3(b) Governing § 2255 Proceedings requires reversal. This amended rule requires the district court clerk to file and docket a § 2255 motion upon receipt, even if it does not meet certain technical requirements, such as a signature. Whether this amended rule applies in this case is at issue…. Michel v. U.S..

U.S. v. Burnette, 8th Cir. Mar. 11, 2008

admin — Tue, 11 Mar 2008 16:14:38 +0000

07-1476 U.S. v. Burnette
U.S. District Court for the District of South Dakota - Pierre
[PUBLISHED] [Benton, Author, with Colloton and Beam, Circuit Judges]
Criminal case - Criminal law and Sentencing. Applying the plain error
of standard of review, the district court did not err by not recusing sua
sponte; defendant waived any objections to the district court’s drug
quantity calculations; argument that the court erred in refusing to grant an
acceptance-of-responsibility reduction was waived; district court erred in
applying a presumption of reasonableness to the advisory guidelines
sentence, but the error was harmless because defendant failed to show
that, but for the error, the court would have imposed a lesser sentence;
sentence was reasonable.

U.S. v. Pepper, 8th Cir. Mar. 11, 2008

admin — Tue, 11 Mar 2008 16:13:50 +0000

06-2453 U.S. v. Pepper
U.S. District Court for the Northern District of Iowa - Sioux City
[PUBLISHED] [Riley, Author, with Bowman and Arnold, Circuit Judges]
Criminal case - Sentencing. The district court committed procedural
error in failing adequately to explain with sufficient justifications the
court’s conclusion that a 59% variance after the Section 5K1.1 downward
variance was warranted in this case; the court also erred in relying
predominantly on improper factors, such as post-sentencing
rehabilitation, in making its decision; as the district court has expressed
a reluctance to resentence defendant if the case is remanded, the case is
remanded with directions to assign it to a different district judge.

U.S. v. Herrera-Garduno, 5th Cir. Mar. 10, 2008

admin — Tue, 11 Mar 2008 04:47:22 +0000

07-40327 U.S. v. Herrera-Garduno
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge: Rene Herrera-Garduno (Herrera) argues his non-Guidelines sentence is an unreasonable upward departure from the advisory Guidelines range. We conclude that the sentence is not unreasonable and AFFIRM. … U.S. v. Herrera-Garduno.

Cain v. Menifee, 5th Cir. Mar. 10, 2008

admin — Tue, 11 Mar 2008 04:45:11 +0000

07-30067 Cain v. Menifee
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge: Hansel E. Cain, federal prisoner #11654-045, is currently serving a 120-month sentence for unlawful receipt of an unregistered firearm at the United States Penitentiary, Pollock. On September 22, 2006, Cain filed a 28 U.S.C. § 2241 petition, asserting that the Bureau of Prisons (“BOP”) miscalculated the commencement date of his sentence and failed to give him proper credit for time served. Cain now appeals the district court’s denial and dismissal with prejudice of his petition. For the following reasons, we AFFIRM in part and REVERSE in part. … Cain v. Menifee.

U.S. v. Rodriguez-Enriquez, 10th Cir. Mar. 10, 2008

admin — Mon, 10 Mar 2008 20:11:56 +0000

07-2033 U.S. v. Rodriguez-Enriquez
Before HARTZ, McWILLIAMS, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge. This appeal concerns whether a conviction for assault two (drugging a victim) under Colorado law is a crime of violence under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). We hold that it is not. As we understand the meaning of physical force, the elements of the offense do not require the use, attempted use, or threatened use of physical force. We therefore reverse the district court’s sentence and remand for resentencing. … U.S. v. Rodriguez-Enriquez.

U.S. v. Cano, 5th Cir. Mar. 10, 2008

admin — Mon, 10 Mar 2008 19:28:28 +0000

06-10940 U.S. v. Cano
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge: A jury convicted Benjamin Cano of conspiracy to possess with intent to distribute and possession with intent to distribute five kilograms or more of cocaine. Cano appeals the denial of his pre-trial motion to suppress evidence and his post-trial motion to proceed pro se at sentencing. We affirm the conviction, vacate the sentence, and remand for re-sentencing. … U.S. v. Cano.

U.S. v. Hernandez, 8th Cir. Mar. 10, 2008

admin — Mon, 10 Mar 2008 16:35:32 +0000

07-2107 United States v. Carlos Hernandez
U.S. District Court for the District of Minnesota - St. Paul
[PUBLISHED] [Smith, Author, with Wollman, Circuit Judge, and
Gritzner, District Judge]
Criminal case - Sentencing. Sentence was not unreasonable; court
properly calculated defendant’s Guidelines range, acknowledged the
range was advisory and considered the Guidelines and factors set out in
18 U.S.C. Sec. 3553(a); court did not apply an impermissible
presumption of reasonableness to the Guidelines range.

U.S. v. Marston, 8th Cir. Mar. 10, 2008

admin — Mon, 10 Mar 2008 16:30:43 +0000

06-4191 United States of America v. Clifford Marston
U.S. District Court for the Western District of Arkansas - Harrison
[PUBLISHED] [John R. Gibson, Author, with Wollman and Benton,
Circuit Judges]
Criminal case - criminal law and sentencing. . Language of the
indictment did not require the government to prove the documents in
question were tax returns; any error in referring to the documents as tax
returns was harmless; no error in allowing the government to introduce
evidence showing defendant knew the persons who espoused the defense
he relied upon had been convicted of tax evasion; no error in giving a
willful blindness/deliberate ignorance instruction; district court erred in
presuming the advisory guidelines were presumptively reasonable;
however, there was no evidence to suggest that the district court would
have exercised greater discretion and imposed a lesser sentence, and the
error did not require reversal and resentencing; Apprendi argument
rejected.