U.S. 2nd Circuit Court of Appeals, April 16,
2007
Elkimya
v. Dep't of Homeland Sec., No. 05-2984
Motion for
bail pending petition for review of BIA's decision affirming IJ's
order of removal is denied as petitioner has failed to demonstrate
the requisite "extraordinary circumstances" under Mapp v. Reno, 241
F.3d 221 (2d Cir. 2001). Read
more...
U.S. 3rd Circuit Court of Appeals, April 19,
2007
Albrecht
v. Horn, No. 04-9005, 04-9006
In a death penalty
case in which petitioner was found to have killed his wife, mother,
and daughter by setting the family home on fire, grant of habeas
relief and vacatur of his death sentence pursuant to Mills v.
Maryland, 486 U.S. 367 (1988), is vacated in part and remanded
where: 1) a nonretroactivity defense was properly raised by the
Commonwealth for the first time in a brief on appeal, and thus was
not waived; and 2) pursuant to intervening Supreme Court case law,
the ban on retroactive application of new rules of constitutional
law applies to Mills, and relief should be denied on the Mills
claim. Read
more...
U.S. 4th Circuit Court of Appeals, April 16,
2007
US
v. Hayes, No. 06-4087
Conviction based on
conditional guilty plea to one count of three-count indictment for
possessing firearms, after having been convicted of the predicate
offense of a "misdemeanor crime of domestic violence," is reversed
as the predicate offense was not an MCDV as defined in 18 U.S.C.
section 921(a)(33)(A), and thus the charges in the indictment fail
as a matter of law. Read
more...
U.S. 4th Circuit Court of Appeals, April 19,
2007
US
v. Wilson, No. 05-4435, 05-4503, 05-4837
Convictions
and sentences for conspiracy to distribute cocaine, as well as
unlawful possession of a firearm for one defendant, are affirmed
over claims that: 1) the district court erred in allowing certain
expert testimony; 2) the district court erred in giving misleading
jury instructions; 3) the district court erred in not suppressing
wiretaps; 4) there was insufficient evidence to support a conviction
for conspiracy; and 5) there was insufficient evidence to support
the firearms convictions. Read
more...
U.S. 4th Circuit Court of Appeals, April 19,
2007
US
v. Nelson, No. 06-4333
Conviction and sentence based
on guilty plea to possession with intent to distribute cocaine are
affirmed over claim that the district court erroneously applied the
ten-year mandatory minimum sentence as defendant's prior conviction
for carrying a firearm during and in relation to a drug trafficking
crime is not a "felony drug offense" within the meaning of 21 U.S.C.
section 841(b)(1)(B). Read
more...
U.S. 5th Circuit Court of Appeals, April 17,
2007
US
v. Sanchez, No. 06-20193
A sentence for conspiracy
to transport undocumented aliens within the U.S. is vacated pursuant
to the government's claim of error where the sentence unreasonably
failed to reflect the statutory sentencing factors set forth in 18
U.S.C. section 3553(a). Read
more...
U.S. 5th Circuit Court of Appeals, April 17,
2007
US
v. Mungia-Portillo, No. 06-40273
A sentence for
illegal reentry after deportation is affirmed where Tennessee's
aggravated assault statute falls within the ordinary, contemporary,
and common meaning of aggravated assault, and consequently
defendant's prior conviction qualified as a crime of violence for
sentence enhancement purposes. Read
more...
U.S. 5th Circuit Court of Appeals, April 18,
2007
US
v. Hernandez-Martinez, No. 06-40271
A revocation
sentence is affirmed over a claim that defendant was impermissibly
sentenced for an uncharged illegal reentry rather than for his
underlying drug offense. Under plain error review, defendant could
not establish that the district court used an improper sentencing
consideration. Read
more...
U.S. 5th Circuit Court of Appeals, April 19,
2007
US
v. Buchanan, No. 04-41364
A conviction and sentence
for receiving child pornography transported in interstate commerce
by computer and possession of child pornography is vacated in part
and remanded where four counts against defendant were multiplicitous
as the government did not offer any proof that he took more than one
action to receive the four images that were the basis of his
convictions under 18 U.S.C. section 2252(a)(2). Read
more...
U.S. 5th Circuit Court of Appeals, April 19,
2007
US
v. Arnold, No. 05-40877
Following a limited remand,
defendant's sentence on one count is vacated pursuant to the
district court's finding that he was prejudiced by the government's
statutory citation error in a pre-trial Sentencing Enhancement
Notice, which reflected its intention to seek a sentence of ten
years to life. Read
more...
U.S. 6th Circuit Court of Appeals, April 16,
2007
Bouggess
v. Mattingly, No. 06-5619
In the context of civil
rights actions, an officer who employs deadly force against a
fleeing suspect without reason to believe that the suspect is armed
or otherwise poses a serious risk of physical harm is not entitled
to either qualified immunity or immunity under the law of Kentucky.
Read
more...
U.S. 6th Circuit Court of Appeals, April 20,
2007
US
v. Graham, No. 05-2332, 05-2347
Convictions arising
from a kickback scheme for conspiracies to commit mail fraud, to
file false tax returns and to commit money laundering, money
laundering, and subscribing false tax returns are all affirmed over
a claim that the failure of the government's cooperating witness to
produce fifteen boxes of evidence until late in the trial
constituted a Brady violation. Also, the circuit court rejects
claims of ineffective assistance of counsel, improper failure to
sever two cases, and error in the giving of a supplemental jury
instruction after the jury had indicated that it had reached a
verdict. Read
more...
U.S. 6th Circuit Court of Appeals, April 20,
2007
US
v. Kakos, No. 06-1263
A conviction for the
interstate receipt of stolen property is affirmed over claims that
the indictment was duplicitous, thereby compromising defendant's
right to a unanimous jury verdict, and that the district court
committed plain error by failing to give the jury a special
unanimity instruction which would have eliminated any such
prejudice. Read
more...
U.S. 7th Circuit Court of Appeals, April 17,
2007
US
v. Singh, No. 05-4509
Convictions for kidnapping are
affirmed where a jury instruction correctly stated that
transportation of a kidnap victim begins when the victim is first
moved from the site of the abduction. Sentence for one of the
defendants is vacated and remanded where an obstruction enhancement
was improper since burying the victim's body was a part of the
conspiracy, rather than a separate attempt to obstruct justice. Read
more...
U.S. 7th Circuit Court of Appeals, April 17,
2007
US
v. Harvey, No. 05-2897
Conviction and sentence for
drug and weapons offenses are affirmed where a poorly worded
indictment was not so defective as to require reversal under plain
error review, and the district court's failure to determine the
number of required drug tests, while error, was not so serious that
it should be considered plain error. Read
more...
U.S. 7th Circuit Court of Appeals, April 20,
2007
US
v. Thompson, No. 06-3676
In a case against a section
chief in Wisconsin's Bureau of Procurement alleging improper
steering of a contract for political reasons, the conviction is
reversed where there was no indication that defendant's motives were
corrupt for purposes of 18 U.S.C. section 666, and neither an
increase in salary for doing what one's superiors deem a good job,
nor a feeling of increased job security, is a "private benefit" for
the purposes of 18 U.S.C. section 1341. Read
more...
U.S. 7th Circuit Court of Appeals, April 20,
2007
Coulter
v. McCann, No. 06-2457
District court order
directing release of a prisoner after a habeas corpus petition is
reversed where the state court's Batson hearing, while imperfect,
was neither contrary to nor an unreasonable application of Batson.
Read
more...
U.S. 7th Circuit Court of Appeals, April 20,
2007
US
v. Swanson, No. 05-4432
Sentence arising from a
fraudulent scheme to siphon funds from defendant's employer and
clients is affirmed over defendant's arguments that: 1) the district
court erred in calculating the fraud loss and the amount of
restitution; and 2) the court erroneously applied an upward
adjustment for defendant's role as an organizer or leader of
extensive criminal activity. Read
more...
U.S. 8th Circuit Court of Appeals, April 16,
2007
US
v. Moore, No. 06-2336
A conviction and sentence for
unlawfully possessing with the intent to distribute cocaine base is
affirmed where: 1) the district court did not abuse its discretion
in denying motion to withdraw guilty plea; 2) the sentence was not
unreasonable; and 3) the circuit court did not need to address
arguments concerning the crack/powder ratio because it did not
affect the sentence. Read
more...
U.S. 8th Circuit Court of Appeals, April 16,
2007
Collier
v. Norris, No. 06-2519, 06-2630
In a first-degree
murder case, denial of habeas relief is affirmed over claims of
error regarding: 1) a Brady claim; and 2) a Rule 37 petition raising
the same Brady violation. Read
more...
U.S. 8th Circuit Court of Appeals, April 17,
2007
Alvarado
v. Gonzales, No. 06-1034
A petition for review of a
decision finding petitioner removable and statutorily ineligible for
cancellation of removal is denied as he was convicted of possession
of firearms and ammunition by an unlawful user of a controlled
substance under 18 U.S.C. Sec. 922(g)(3), and thus, he was an
aggravated felon for purposes of removal and cancellation of
removal, despite the alleged sporting purpose of the guns at issue.
Read
more...
U.S. 8th Circuit Court of Appeals, April 18,
2007
US
v. Suarez-Perez, No. 06-1749
In an appeal arising
from a conviction and sentence for drug-related offenses, an order
denying defendant's Speedy Trial Act motion to dismiss is reversed
and his sentence vacated where a nunc pro tunc order violated the
Speedy Trial Act. Read
more...
U.S. 8th Circuit Court of Appeals, April 19,
2007
US
v. Ferrer-Montoya, No. 06-3751
A conviction for
possession of methamphetamine with intent to deliver is affirmed
over a claim of erroneous denial of a suppression motion where: 1)
defendant placed no limitations on his consent to a search of his
vehicle, and officer did not exceed the scope of consent when he
removed certain scarred screws and opened a panel; and 2) there was
no clear error in a finding that defendant's post-Miranda statements
were admissible as he had not invoked his right to remain silent,
and officers did not need to re-read Miranda warnings to defendant
prior to interrogation. Read
more...
U.S. 8th Circuit Court of Appeals, April 20,
2007
US
v. Thomas, No. 06-3055
A conviction and sentence for
being a felon in possession of a firearm and possessing a firearm
with an obliterated serial number is affirmed where: 1) there was
sufficient evidence to support a conclusion that defendant possessed
a handgun and constructively possessed a shotgun; 2) the district
court properly found that a 1991 Missouri state conviction for
tampering in the first degree was a crime of violence under the
sentencing guidelines; 3) there was no error in a finding that he
possessed a firearm in connection with another felony offense; and
4) the sentence imposed was not unreasonable. Read
more...
U.S. 8th Circuit Court of Appeals, April 20,
2007
US
v. McCoy, No. 06-4197
Defendant's conviction for
possessing child pornography is affirmed over a claim of erroneous
denial of a suppression motion where: 1) the facts established
probable cause to search defendant's computer for child pornography;
and 2) although a warrant application did not establish probable
cause to search defendant's car, an officer acted in good faith in
executing the warrant based on a magistrate's approval. Read
more...
U.S. 9th Circuit Court of Appeals, April 18,
2007
US
v. King, No. 05-10629
A conviction for conspiracy
and bank fraud is affirmed where the district court did not err in
denying defendant's motion to dismiss the indictment on Speedy Trial
Act or Sixth Amendment grounds. Read
more...
U.S. 9th Circuit Court of Appeals, April 18,
2007
US
v. Thrasher, No. 05-35929
In the Ninth circuit, if a
district court errs by violating the rule of mandate, the error is a
jurisdictional one. Read
more...
U.S. 9th Circuit Court of Appeals, April 18,
2007
US
v. Leonard, No. 06-30127
Following violation by a
defendant of conditions of supervised release, a district court may
impose a sentence above the advisory range set forth in the
Sentencing Guidelines without giving advance notice of the
possibility of a sentence outside the Guidelines range. Read
more...
U.S. 9th Circuit Court of Appeals, April 18,
2007
US
v. Murphy, No. 05-50608
A conviction for making
false claims and statements in connection with a government contract
is affirmed as there was no error in the district court's denial of
a new trial where the parties stipulated to proceeding with a jury
of less than twelve and received a unanimous verdict, albeit from a
jury of only eleven members. The fact that it was subsequently
revealed that the juror was a holdout in favor of acquittal did not
change that result. Read
more...
U.S. 10th Circuit Court of Appeals, April 16,
2007
Mink v. Suthers,
No. 04-1496
A suit was brought for prospective
relief and damages under 42 U.S.C. section 1983, and for violations
of the Privacy Protection Act, arising from an investigation of
plaintiff for potential violations of Colorado's criminal libel
statute via an internet-based journal parodying a professor's views.
Dismissal of plaintiff's claims is affirmed in part but reversed in
part where: 1) as defendant-DA's office disavowed an intent to
prosecute plaintiff, he lacked standing for his facial challenge to
the state's criminal libel statute and his claim was moot; 2)
dismissal of his statutory claim was proper for failure to state a
claim; but 3) dismissal of a damages claim arising from a police
search was error as it was not barred by absolute immunity. Read
more...
U.S. 10th Circuit Court of Appeals, April 16,
2007
Meyer v. Bd. of
County Comm'rs of Harper County, Oklahoma, No.
04-6106
In an action brought under 42 U.S.C. section
1983 and state law arising from the involuntary commitment of
plaintiff over a weekend to a state in-patient facility for treating
the mentally ill, summary judgment for defendants is reversed in
part where: 1) the district court erred in granting defendants'
motion for summary judgment on plaintiff's Fourth Amendment claim
based on qualified immunity; 2) it also erred in granting summary
judgment on a First Amendment claim; and 3) consequently, dismissal
of state law claims was error. Read
more...
U.S. 10th Circuit Court of Appeals, April 16,
2007
Roberts v.
Barreras, No. 05-2373
The burden of proof for the
exhaustion of administrative remedies in a suit governed by the
Prison Litigation Reform Act (PLRA) lies with the defendant. In a
Bivens action brought by a federal corrections inmate alleging that
he was exposed to harmful secondhand smoke and denied access to
legal materials in violation of his constitutional rights while he
was under defendants' care, summary judgment against plaintiff is
reversed and remanded where: 1) a remand was necessary for
addressing a statutory tolling issue; and 2) the district court
erred in ruling that plaintiff had not exhausted his administrative
remedies. Read
more...
U.S. 10th Circuit Court of Appeals, April 16,
2007
US v. Goode, No.
06-2093
A conviction for being a convicted felon in
possession of a firearm is affirmed where: 1) under plain error
review, defendant's alleged error challenging the sufficiency of the
evidence did not "seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings"; and 2) there is no
requirement that a defendant personally acknowledge having read a
presentence report (PSR), for purposes of Fed. R. Crim. P.
32(i)(1)(A). Read
more...
U.S. 10th Circuit Court of Appeals, April 17,
2007
US v. Trotter,
No. 05-3487 & 05-3488
Defendants' convictions
and sentences on drug- and firearm-related charges are affirmed over
claims of error regarding: 1) denial of a motion to suppress
evidence obtained from warrantless searches of a storage unit as
well as evidence obtained pursuant to search warrants; 2) the
sufficiency of the evidence; and 3) defendants' sentences. Read
more...
U.S. 10th Circuit Court of Appeals, April 17,
2007
Butler v.
Compton, No. 06-1274
In a 42 U.S.C. section 1983
action alleging that defendant-officer violated plaintiff's Fourth
Amendment rights by using deception to gain entry into his motel
room and arresting him without a warrant, summary judgment for
defendant is reversed where the district court erred in applying
Heck to bar the action. A conviction on unrelated charges cannot
form the basis for the application of Heck where there is no
challenge to such conviction in the section 1983 action. Read
more...
U.S. 10th Circuit Court of Appeals, April 17,
2007
US v.
Luke-Sanchez, No. 06-4141
A conviction for
possession of a firearm in furtherance of a drug trafficking crime
is affirmed over claims that: 1) defendant's underlying conduct,
trading drugs for guns, does not satisfy the "in furtherance" prong
of 18 U.S.C. section 924(c); and 2) jury instructions improperly
precluded a factual finding by the jury on an essential element of
section 924(c). Read
more...
U.S. 10th Circuit Court of Appeals, April 17,
2007
US v. Hudson, No.
06-6199
Regardless of whether a defendant's waiver
of appellate rights via a plea agreement would otherwise be
enforceable, he cannot be deemed to have waived his right to appeal
the legality of a court's restitution order. A restitution order
imposed following defendant's plea to conspiracy to infringe a
copyright is reversed where the government failed to prove that the
copyright holder, Microsoft, suffered any actual loss and,
consequently, no restitution should have been ordered. Read
more...
U.S. 11th Circuit Court of Appeals, April 19,
2007
US
v. Garcia-Jaimes, No. 05-14475
In a multi-defendant
criminal drug case involving three separate trials, with 20 of 30
defendants pleading guilty, convictions and sentences are reversed
as to one defendant's gun conviction and sentence, but are otherwise
affirmed over claims of error related to evidence, severance, jury
instructions, drug quantity, sentencing, and ineffective assistance
of counsel. Read
more...
U.S. 11th Circuit Court of Appeals, April 19,
2007
US
v. Livesay, No. 06-11303
In case involving former
Assistant Controller and Chief Information Officer of HealthSouth
Corporation, conviction and sentence based on guilty plea to
conspiracy to commit wire and securities fraud and falsification of
financial information, is vacated as to sentence as the sentence is
unreasonable. Read
more...
U.S. 11th Circuit Court of Appeals, April 20,
2007
Velazquez
v. City of Hialeah, No. 05-13157
On petitions for
rehearing seeking clarification of reversal of summary judgment as
to two of the defendants, district court's holding, that plaintiff
could not prove a critical element of his case in terms of which
officer actually inflicted excessive force upon him, is based upon
an erroneous view of the law and is reversed. An officer who is
present at a beating inflicted by another officer and fails to
intervene may be held liable though he administered no blow. Read
more...
U.S. D.C. Circuit Court of Appeals, April 17,
2007
US
v. Powell, No. 05-3047
Denial of motion to suppress
evidence of gun and ammunition found in the back seat of defendant's
car, leading to conviction for being a felon in possession of a gun
and ammunition, is affirmed as the search of the car was conducted
incident to defendant's arrest. Read
more...
U.S. D.C. Circuit Court of Appeals, April 20,
2007
US
v. Bras, No. 05-3190
Conviction and sentence based
on guilty plea to conspiracy to commit bribery and highway project
fraud are affirmed over defendant's claims of: 1) Booker violations;
2) Sixth Amendment violations due to increase of sentence based upon
testimonial evidence not subject to cross-examination; 3) use of
unreliable evidence to calculate loss that his crime caused the
government, which led to erroneous calculation of his advisory
Sentencing Guidelines range; and 4) unreasonable sentence. Read
more...
California Appellate Districts, April 17,
2007
People
v. Towers, No. B188368
Conviction of first degree
burglary, with finding of prior serious or violent felony
convictions, is reversed as to Three Strikes finding for one prior
conviction under Penal Code section 288a as the conviction was for a
threat of retaliation, not duress, which at the time of present
conviction was not a serious felony. Read
more...
California Appellate Districts, April 19,
2007
People
v. Chavez, No. B190270
Conviction and sentence for
cocaine possession is affirmed, except as to modification of fines
imposed, over a claim that the trial court should have dismissed
defendant's prior conviction finding. Read
more...
Texas Criminal Court of Appeals, April 18,
2007
Flowers
v. State of Texas, No. 1081-06
A sentence for
driving while intoxicated (DWI) is affirmed where, regardless of
whether a computer printout is the functional equivalent of a
judgment for all purposes, the evidence was sufficient to prove
beyond a reasonable doubt that defendant had a prior DWI conviction
as alleged in an enhancement paragraph. Read
more...
Texas Criminal Court of Appeals, April 18,
2007
Roberts
v. State of Texas, No. 75,051
A conviction and death
sentence for capital murder is affirmed over claims of error
regarding: 1) the factual sufficiency of the evidence; 2)
evidentiary issues; 3) ineffective assistance of counsel; 4)
prosecutorial misconduct; 5) jury instructions; 6) closing argument;
and 7) challenges to the death penalty. Read
more...
Texas Criminal Court of Appeals, April 18,
2007
Ex
parte Cruzata, No. 75,513
An application for habeas
relief challenging a sentence for indecency with a child is
dismissed as a claim of error regarding the sentence could not be
heard via habeas corpus because defendant had failed to raise it on
direct appeal. Read
more...
