Friday, October 21, 2005

Brief update by Julie Anderson, FDSET Paralegal

Sentencing and Booker
United States v. Settle, 414 F.3d 629 (6th Cir. 2005) -
Affirming the defendant’s conviction as a felon in possession of a firearm, the court of appeals remanded the case to the district court for resentencing in light of Booker. On remand, the district court was instructed to consider the applicability of the cross-reference under U.S.S.G. § 2K2.1(c)(1) (use or possession of a firearm or ammunition in connection with the commission or attempted commission of another felony offense), to the circumstances of this case. The Sixth Circuit held that the weapon involved in the other felony offense, in this case attempted murder, need not be the same weapon underlying the § 922(g) offense. The guideline requires only that there be a relationship between the firearms that form part of the relevant conduct and the firearms that are part of the offense of conviction.
United States v. Hargrove, 416 F.3d 486 (6th Cir. 2005) -
The district court did not err by refusing to give a jury instruction on necessity or justification as a defense to a felon possession charge where the defendant failed to present sufficient evidence to support the defense. The prosecutor’s remark in closing argument, even if misleading or prejudicial, was harmless in light of overwhelming evidence of the defendant’s guilt. The defendant’s prior Ohio convictions for sexual battery were not violent felonies for purposes of determining his status as an Armed Career Criminal. See United States v. Sawyers, 409 F.3d 732 (6th Cir. 2005), holding that not every crime involving sexual intercourse with a minor is a per se "violent felony" under the Armed Career Criminal Act.
United States v. Jones, 417 F.3d 547 (6th Cir. 2005) -
A sentencing court’s determination of the extent of the defendant’s downward departure for substantial assistance is discretionary and not subject to Sixth Amendment protections under Booker. The defendant’s 540-month sentence for carjacking was reasonable.
United States v. Cole, 418 F.3d 592 (6th Cir. 2005) -
The defendant’s prior convictions for being a minor in possession of alcohol are similar to juvenile statue offenses and should not have been used to increase his criminal history score. Remand for resentencing without the four additional points was necessary.
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. 2005) -
A state felony drug possession conviction which does not contain an element of trafficking does not constitute an "aggravated felony" under the Immigration and Nationality Act unless it is punishable as a felony under federal law, i.e., punishable by more than one year imprisonment under applicable state law. Defendant Palacios-Suarez appealed his sentence following his conviction for illegal reentry after deportation, contending that his two prior state convictions for possession of cocaine did not constitute "aggravated felonies" for purposes of enhancing his sentence under 18 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2(b)(1)(C). As neither the Kentucky nor the Ohio statute under which the defendant was convicted contained a trafficking component, they did not qualify as a "drug trafficking crime" and could not be considered aggravated felonies under the INA. The application of the recidivist provision of the federal statute, providing for an enhanced penalty for a second offense, was not appropriate in this case where records demonstrated that the defendant’s second drug offense occurred before his first conviction became final. Judge Nelson concurred with the holding of the panel relying upon the rule of lenity, rather than legislative history, to reach the same conclusion.
United States v. Christopher, 415 F.3d 590 (6th Cir. 2005) -
In a remand for resentencing for the district court to detail the calculation of loss resulting from the defendant’s mail fraud, the court imposed two alternative sentences - one under the mandatory sentencing scheme and a second, identical sentence in the event that the guidelines were found to be unconstitutional. "This court has concluded that when a district court imposes alternative, identical sentences, one under a regime in which Guidelines enhancements are not mandatory, the harmlessness of any Booker error is established." See United States v. Strbac, 129 Fed.Appx. 235, 237 (6th Cir. 2005)." The defendant’s sentence was "reasonable" under Booker, and the district court’s failure to explicitly consider the factors under § 3553(a) was "understandable" because this was a remand for resentencing.
United States v. Chandler, 419 F.3d 484 (6th Cir. 2005) -
The district court did not err by enhancing the defendant’s sentence for being a felon in possession with a guideline enhancement for a prior felony conviction for a crime of violence. The defendant’s prior conviction for facilitation of aggravated assault was a crime of violence for purposes of the sentencing enhancement under U.S.S.G. § 2K2.1(a)(4). Remand was not required as the district court imposed two sentences, one treating the guidelines as advisory and one as mandatory, and the sentences were identical. The court’s statement at sentencing that the sentence imposed would afford adequate deterrence and just punishment was sufficient to meet Booker’s standard of reasonableness in this case.
United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1692 (2005) -
The defendant’s admission during his plea that he had been convicted of three previous violent felonies was not an admission that the prior felonies had been "committed on occasions different from one another," pursuant to 18 U.S.C. § 924(e)(2)(B). The question of whether a defendant’s prior felony convictions were "committed on occasions different from one another" for purposes of determining his status as an Armed Career Criminal need not be submitted to the jury or determined beyond a reasonable doubt.
United States v. Puckett ___, F.3d ___, 2005 WL 2123790 (6th Cir. 2005) -
The district court properly denied the defendant’s motion to suppress evidence seized from his vehicle during a traffic stop for speeding. A pistol, ammunition and a quantity of marijuana were discovered during a search of the vehicle following the defendant’s arrest for driving without a valid license. The defendant did not expressly waive his right to appeal in the plea agreement. Although the sentence departed from may be reviewed under Booker, the district court’s denial of his motion for a downward departure was a discretionary decision and not subject to appellate review "unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure." United States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002). In a dissenting opinion, Circuit Judge Rogers opined that, after Booker, the sentence should be reviewed for reasonableness regardless of the court’s decision not to depart.

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