Thursday, April 29, 2010

Summaries for Yesterday---Hot Sound of Good Crime-of-Violence and Gun-and-Drug News


Good news on the crime-of-violence front kicks off yesterday's summary. Then we get good news on foreseeability of a gun in a drug conspiracy. Thanks to our AFPDs for their time putting this summary together!

EDWARD EVANS

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0261n-06.pdf

The Circuit Court found that the District Court failed to follow the Shepard procedures in analyzing whether Tennessee’s Statutory Rape law constituted a crime of violence. Reversed and remanded.

The Court spends a great deal of time reviewing the pre-Begay/pre-Bartee case law and finds that the earlier cases are no longer binding. The upshot of that is that prior case law relying solely on a victim’s age no longer is controlling, or so it would appear.

Good case for reviewing exactly what the post-Begay/post-Bartee meaning of a crime of violence is.

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FRANKLIN WOODS

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0116p-06.pdf

Defendant appealed his sentence of 108 months for manufacturing methamphetamine. Court affirmed district court’s application of an enhancement under the sentencing guidelines for reckless endangerment during flight. But because the district court’s finding that the possession of a firearm by a co-conspirator was reasonably foreseeable was without evidentiary support and therefore was clearly erroneous, Court vacated and remanded for re-sentencing.

District court found that defendant was eligible for a two-point enhancement under USSG § 2D1.1(b)(1) because a dangerous firearm was possessed in connection with the conspiracy. While the district court found that there was no evidence that defendant had ever possessed a firearm, it concluded that it was "reasonably foreseeable" that a conspirator would possess a firearm given the "substantial" and "large quantity" of meth being made. District court noted that the conspirators had been producing meth over three days in the same residence where the firearms were located and that the defendant’s role in the conspiracy was substantial.

But nothing else in the record supported the enhancement. The fact that the manufacturing operation extended over three days was not relevant to the foreseeability of weapon possession. There was no evidence that three days of production implies that there was a larger quantity of drugs on the premises at any one time. To the contrary, the government only attributed a small amount of drugs to the conspiracy, and the fact that the conspirators toiled for days to produce it implies only inefficient production. There was no objective evidence that defendant otherwise expected a firearm to be present.

The deference extended to district courts to find sentencing facts is not boundless, the Court says. Here, the government did not introduce any objective evidence (e.g., evidence of the value of drugs recently manufactured), and the inference the Court has used to affirm previous enhancements could not be extended to salvage the defendant’s sentence.

The government is not relieved of its burden of proof under § 2D1.1(b) simply because a defendant is involved in the drug trade. The district court committed clear error by finding that the defendant should have reasonably foreseen that a co-conspirator would possess firearms, absent any evidence supporting such a finding.

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JOHN WESLEY MCKINNEY

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0251n-06.pdf

Not completely clear what this appeal was about. The Defendant got a below-guideline sentence of 24 months for being a felon in possession. No objections were filed as to the PSIR calculations. After sentencing, the defendant stopped communicating with his counsel, who withdrew from the appeal.

The defendant then filed a pro se brief of sorts. It was not clear what he was appealing. There appeared to be some version of the UCC I 207 argument that the Circuit Court attempted to divine, but rejected.

Sentence affirmed.

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TYRONE A. BRISSETT

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0252n-06.pdf

Defendant, a Jamaican citizen, was sentenced to 13 months for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. He challenged only the substantive reasonableness of his within-Guidelines sentence. Court affirmed.

The Circuit Court found the sentence (within the Guidelines) procedurally and substantively reasonable despite the sad life the defendant had had.

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LONNIE RAY KERESTES

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0256n-06.pdf

Defendant appealed his 87-month sentence as unconstitutional under Apprendi, asserting that the district court violated his Sixth Amendment right to a jury trial because it found, by a preponderance of the evidence, that he had engaged in a pattern of prohibited sexual conduct under § 4B1.5(b), which supported a five-level sentencing enhancement. Defendant argued that the district court’s factual finding increased his penalty under the Guidelines and therefore required a jury’s determination beyond a reasonable doubt. Court disagreed and affirmed.

The defendant’s sentence of 87 months was mid-guideline range. The sentence was not found to be unconstitutional under Booker.

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JAY WALLACE ROSS

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0257n-06.pdf

Defendant appealed his sentence for convictions of possession of more than 500 grams of cocaine, possession of a firearm by a previously convicted felon, possession of a firearm in furtherance of drug trafficking, and possession of a weapon by a fugitive. After pleading guilty to all four counts, defendant was sentenced by the district court to 262 months, to be served consecutive to an undischarged 168-month sentence for a prior federal conviction, resulting in a total of 35 years + ten months of incarceration. Court vacated the sentence and remanded for resentencing.

The district court abused its discretion in failing to consider the relevant 3553(a) factors or else by failing to disclose how they factored into the sentencing decision. In rejecting the defendant's request for a concurrent sentence, the court provided no explanation as to how any of the § 3553(a) factors applied to its decision to impose totally consecutive sentences. District court did not mention any of the factors with respect to its decision on the issue.

Instead, district court briefly recounted that the defendant had absconded instead of self-reporting and then partook in more criminal activity instead of caring for his children. The court then noted that this behavior totally disregarded the laws of society and that the court would not reward the defendant's bad behavior by giving him credit for time as he requested.

These conclusory statements did not provide the Court with a sufficiently reasoned rationale under which the district court imposed consecutive sentence. Court could only speculate as to how the district court’s explicit comments or implicit analysis was guided by the § 3553(a) factors. To the extent the statements reflected any actual analysis, they only showed the district court’s concern that concurrent sentences would not provide an incremental penalty, which on its own was insufficient to justify the district court’s ruling.

To satisfy its statutory obligation under section 3553(a), a district court needs to explain how the 3553(a) factors were specifically applied or rejected in its consideration of a request for a concurrent sentence. A sentencing court should perform the very same analysis when choosing a concurrent or consecutive sentence that it performs when it decides the appropriate length of a sentence. The district court here made no such attempt to do so. Accordingly, Court had to assume that the district court failed to consider the 3553(a) factors when it decided to make the instant sentence run consecutively to the undischarged sentence.

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1 comment:

Dinah Bee Menil said...

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