Monday, May 17, 2010

More Catch Up: May 12

Here are our AFPDs' summaries from May 12. Sorry again for the lack of posting. You'll also be hearing from me soon on recent S Ct decisions. Things are moving. . . .
(This picture does not relate to these cases, but I thought it was cute!)


Direct appeal of partial denial of motion to return property


Pro se case regarding the return of property seized during a search but not used as evidence at the trial and not contraband.



Direct appeal of a supervised release violation


Circuit Court agreed with the factual findings, revocation of SR, and the sentence of ten months, finding the appeal "entirely without merit." Violation involved not completing treatment.



Direct appeal of sentence of mandatory minimum of 20 years.


Defendant had pleaded no contest to the charge of conspiring to possess and distribute 1,000 kilograms or more of marijuana. Before defendant entered his plea, government filed a notice pursuant to 21 U.S.C. § 851, seeking an enhanced sentence due to defendant’s prior conviction for a felony drug offense. Notice had the effect of increasing the mandatory minimum sentence that defendant faced (from 10 years of imprisonment to 20 years). Defendant still entered plea without a plea agreement. At the conclusion of sentencing hearing, district court imposed the 20-year mandatory minimum sentence.

Defendant then sought to invalidate his conviction and sentence, challenging the propriety of the § 851 notice, disputing the quantity of drugs attributed to him, and objecting to the finding that he had a supervisory role in the conspiracy. Appellate Court affirmed.

Defendant's arguments: whether the § 851 notice was defective for failing to refer specifically to the superseding indictment; whether the government was barred from filing a § 851 notice because defendant pleaded no contest; whether the notice was void because the trial court failed to ask defendant if he affirmed or denied his previous conviction; whether § 851 represents an unconstitutional delegation of power to the executive branch; whether § 851 interferes with the judiciary’s power to issue sentences; whether § 851 interferes with the grand jury’s power to indict; whether § 851 violates a criminal defendant’s right to a jury trial; and whether § 851 undermines the Sentencing Guidelines. Defendant also argued that the district court erred by enhancing his offense level by determining that he was responsible for conspiring to distribute more than 1,000 kilograms of marijuana and that he had a supervisory role in the conspiracy.

Circuit Court engaged in a full discussion of defendant’s 8 separate points contesting the 851 notice of enhancement under the drug law. Good review of the cases regarding the sufficiency of the notice and the specificity required or not required as the case may be.



Direct appeal of sentence


Defendant appealed the sentence imposed by the district court following jury verdict on the lesser offense of possession of cocaine base. Appellate Court affirmed.

Defendant challenged whether "crack" means "cocaine base" and lost.

There is a discussion of factual necessities for enhancement for gun possession in connection with offense under 2D1.1. (This case is a bit of a contrast to the case two weeks ago finding enhancement inapplicable. See Woods case under April 29.)

Client sought acceptance-of-responsibility reduction even though he had a trial. Appellate Court rejected argument.

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