Our AFPDs once again offer the following fare!
February 16, 17, 18 at the Circuit. Lots to cover, so only quick summaries.
Almost two dozen criminal (or criminally related) cases decided.
Sixteen direct appeals, four habeas, one forfeiture, and one civil v. the Michigan Parole Board.
Late filing of contest by respondent excused.
RICKY H. KRANTZ
Habeas case. Felony murder.
Writ properly denied.
Bizarre facts involving the Super Bowl, arm wrestling, and a shotgun.
The rest of this section are unpublished cases unless noted.
LAWRENCE TENNILLE II
Affirmed denial of modification under crack amendment.
Defendant wanted to re-litigate his original sentence.
JOHNNIE BENJIMAN DAVIS II
Reversed sentence of 35 years where the mandatory minimum of 32 years seemed reasonable to the Court. Defendant recanted testimony regarding another person’s involvement. Not deemed to be sufficient by itself under 3553(a).
Sentence of 30 months affirmed for fraud convictions. Sad, odd facts.
Lower end of guidelines for ‘naive yet sophisticated’ scheme reasonable.
In the ‘so you thought you won’ category. Affirmed consecutive sentences of 12 months each for jury-tried convictions of misdemeanor tax evasion. (Defendant not guilty of the felony counts.) Also $25,000 fine.
DAVID TICE, Jr.
Sentence of 300 months for meth conspiracy affirmed.
Issues: cross reference to murder guideline struck, but not references to the defendant’s involvement per informant. Also appellate waiver enforced in part.
JAMIE T. JOHNSON
Denial of Habeas for ineffective assistance of counsel for failure to file appeal.
MORAL: Get it in writing.
Affirmed 200 month sentence as procedurally and substantively reasonable.
Issue was calculation of base offense level (drug quantity).
ARDELL D. NOBLE
Interesting case. Issue: Suppression of Stop and Frisk search.
Affirmed denial of motion over strong dissent by Judge Moore.
Case seems to say stopping in a no-stop zone and smell of marijuana means defendant may be armed and dangerous, justifying pat down that produced gun and drugs.
Also since the original state court charges were dismissed before agents spoke to defendant (he confessed), no 6th amendment right attached.
Dissent relies on Arizona v. Johnson, 129 S. Ct. 781 (2009).
MICHAEL BRYAN POWERS
Affirmed judgment and conviction of two k-porn counts.
Issues defendant raised: lack of jurisdiction on Count 2, limit on cross-examination, jury instruction on venue.
Affirmed denial of writ as to various sufficiency-of-the-evidence issues.
Affirmed sentence of 188 months on career-offender enhancement. It was a reasonable exercise of discretion. Defendant did raise a policy-based objection to CO guideline.
CORNELIUS AHMAD WARREN
Affirmed denial of motion to suppress in warrant case on good-faith exception despite the issues with the warrant. It was a close question. ‘The good-faith exception applies where 'some modicum of evidence, however slight, . . . connect[s] the criminal activity described in the affidavit to the place to be searched.'' United States v. Laughton, 409 F.3d 744, 749 (6th Cir. 2005)
Very short opinion adopts district court’s decision.
Affirmed 60-month sentence on a guideline range of 87 to 108 months.
Issue was dangerous weapon enhancement.
KENNETH FOSTER v. MI Parole Bd.
Court reversed district court’s grant of SJ to plaintiffs regarding parole board's alleged ex post facto treatment of amendments to parole statute. Relates to Michigan’s parolable lifer law.
Career offender denied crack reduction. Looks to Perdue. And looked to United States v. Ra, No. 08-4527 (6th Cir. Dec. 17, 2009), which determined that the offense-level reductions in a case do not render a defendant’s career-offender designation inapplicable.
Another unpublished cases affirming denial of crack-amendment modifications where defendant was classified as career offender.
EUGENE PHILLIP LeCLEAR
Affirmed 180-month sentence.
Issue: No right to appeal government’s failure to move for dnwd departure for substantial assistance absent improper constitutional factors.
Also ACCA not cruel and unusual.
No basis to appeal where defendant has been paroled. No injury to address.
Issue also related to the earlier mentioned civil case v. the Michigan parole board.