Thursday, February 11, 2010

Quick Summary of Day

AFPDs in our office are going to try to offer regular summaries of a day's opinions. We encourage everyone to check the opinions out---these summaries are really short and limited and do not cover all of the key points. They are offered only as a quick overview of recent decisions. We encourage you to post comments regarding these summaries, your review of the cases, opinion content, etc.

Here is yesterday's summary:



Defendant in a fraud case struck a plea agreement to pay $1 million restitution by a date certain.

Defendant failed to pay anything. Government moved to re-sentence the defendant, who had originally received a 25-month sentence and no joint and several liability for millions more, for wilful failure to pay.

Following an evidentiary hearing, the court sentenced the defendant to 51 months in prison and joint and several liability for $6.6 Million. This was all pursuant to 18 U.S.C. § 3614 (allows resentencing upon failure to pay restitution and/or a fine).

The Circuit Court affirmed, finding the evidence supported the ‘wilfulness’ determination.




Crack re-sentencing.

District court declined to reduce the defendant’s sentence below the 75 months the defendant received at a post-Booker re-sentence (from another court).

The Circuit Court affirmed, saying that the district court recognized its discretion to lower the sentence, but was not required to do so, and although the opinion declining to exercise the discretion was curt, it was enough.

It should be noted that the SMR by probation recommended against a further reduction.




The Court affirmed a denial of a motion to suppress even though the affidavit contained erroneous information because a de novo review of what was left after redaction was sufficient.

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