Appellate Law & Practice

CA1: Apprendi pipeline case sees briefly sees light in IAAC context

Martinez-Medina v. US, No. 06-1594 (unpublished).  This affirms a denial of a motion to vacate a sentence under 28 U.S.C. § 2255.  The grounds asserted are whether, in an “Apprendi Pipeline” case, the defendant was given ineffective assistance of counsel when she “misconstrued” Apprendi and conceded (to the First Circuit) that he would be subject to a higher sentence.  But the First says that in the underlying case, the higher sentence would have been warranted because the indictment did state enough (i.e. that there were “multi-kilograms” of cocaine in drug conpsiracy.)  Likewise, the First says that it had found in appeals of his codefendant’s cases that a failure of the jury to find drug quantity was harmless error.  Therefore, the statutory maximum was life, and there were no real Apprendi claims.  Therefore, appellate counsel’s concession didn’t make a difference.

The First ends by saying that 28 U.S.C. § 2255 motions can’t be used to make Booker retroactive.

CA1: First remands for a real resentencing when mandate not followed

US v. Pena-Gonzalez, No. 05-1402.  This case was first before the court in United States v. Rodríguez-Marrero, 390 F.3d 1, 32 (1st Cir. 2004) when it remanded for re-sentencing.  The District Court didn’t hold a sentencing hearing, and instead it “trimmed the original judgment without sentencing him anew” as the government told it to.  (This matters because Booker might allow the defendant to escape a life sentence).

But, the First resolves the issue on the “law of the case” doctrine (the “mandate rule”) part of it, and holds that the District Court didn’t really take the letter and spirit of the mandate seriously, and the District Court should have read the mandate “like a statute.” 

The First then points out that the prosecution – as much as the District Court – is at fault, because it seems to have tricked the court into thinking that it had made a finding (that the crime was in furtherance of a drug conspiracy) that would subject him to life sentence. The First says that this trick deprived the defendant of his ability to allocute at sentencing which is “scared.”

CA1: transporting a minor is a crime of violence even post Begay

US v. Williams, No. 07-1354 holds that interstate transport of a minor for prostitution in violation of 18 U.S.C. § 2423(a) is a “crime of violence” within the purview of the career offender provision of the federal sentencing guidelines, i.e. USSG §4B1.2(a).  Why?  The guideline defines “crime of violence” as “otherwise involves conduct that presents a serious potential risk of physical injury to another.”  Sure, Selya says, there wasn’t any force, but this is a “residual provision.” But, the analysis is fairly straight-forward (even if it ignores the fact that there are several other actors besides the defendant involved in subjecting the “victim” to harm).

Read on...

CA1: what hath Gall wrought

US v. Tom, No. 07-1074 (unpublished).  What do you do when the government says that a sentence for insider trading is too lenient, but the Supremes GVR in light of Gall?  First you ask for briefing, and then:

remand the sentence for reconsideration in light of the concerns we expressed in our prior decision, the Supreme Court's elucidation of district court sentencing procedure in Gall, and the issues the parties have raised in their briefs to us.

CA1: reselling prescription drugs causes loss

US v. Marti-Lon, No. 07-1040.  This is an unlawful distribution of prescription drugs case.  Essentially this shows how screwed up our prescription drug market is.  “The drug wholesalers then sold the drugs to Martí-Lón at a lower cost because Martí-Lón [falsely] represented that the drugs were meant to be resold in Brazil.”  She resold them stateside, and that is a crime.  (She also falsely claimed to be licensed, but that is another issue.)

But, setting that aside, this comes down to a normal criminal trial, so we got allegations of prosecutorial misconduct, loss calculation, juror misconduct below the fold.

CA1: at sentencing, restitution amounts are different than intended loss amounts

US v. Innarelli, No. 06-2400. After pleading guilty to a “land-flipping” scheme (which seems to be more like a mortgage scheme) that was perpetrated by, amongst other people, a lawyer.  But, the First clarifies some areas of the guidelines that I thought were clear.

Where one starts with a base level of six under  U.S.S.G. § 2B1.1 (a)(2), one goes to the table in that guideline.  2B1.1 cmt. n.3(A) says that for purposes of the guidelines, this should be the greater of “intended loss” (or “the objectively reasonable expectation of a person in his position at the time he perpetrated the fraud, not on his subjective intentions or hopes”) and “actual loss.”  But this is not how to calculate restitution amounts under the Mandatory Victims Restitution Act ("MVRA") 18 U.S.C. § 3663A(a), (c).  The purpose of restitution, the First notes, is not to punish, but to make victims whole.  Their emotional hurt and stuff like that doesn’t factor into it.  So, it gets remanded for that recalculation. 

On top of that, the sentence was reasonable.

CA1: FRCrimP 35 is jurisdictional, and tax cheat issues

US v. Griffin, Nos. 07-1475, 07-1477. This is cross-appeal of a tax case under 26 U.S.C. § 7206(1) (false income tax return) by someone that made lots of money in multi-level marketing, but said she didn’t make that much.  The defendant initially got 27 months, then was resentenced to 21 months after Cunningham v. California, 127 S. Ct. 856 (2007).  The government wins, and the older sentence is ordered to be reinstated, because the District Court didn’t have jurisdiction under Federal Rule of Criminal Procedure 35(a) (seven day limit on sentence corrections) and rejects the idea that Eberhart v. United States, 546 U.S. 12 (2005) makes this rule non-jurisdictional.  As I have said many times before, I have little tolerance for tax cheats. I think they are worse than sex offenders.  Therefore, my sympathies will generally be with the government in these cases.

Keep reading if you care about “willfulness” and all that stuff that comes up in tax fraud cases.

CA9: Ninth fixes its jurisdictional faux pas on waivers in pleas

A little while ago, the Ninth, for some strange reason held that it lacked jurisdiction “to even hear an appeal because of the 11(c)(1)(C) plea.”  Some law clerk screwed that up.  Today, the Ninth Amends its opinion and undoes the damage done.  The case was U.S. v. Garcia, No. 05-30356 (4-17-08) (amended).  Tnx Ninth Circuit blog. 

CA1: District Court misunderstanding plea agreement wasn’t that bad

US v. Cardona-Diaz, No. 06-2315.  A guy was arrested.  He plead guilty and executed an appeal waiver.  The government agreed to recommend a sentence of 87 months.  The District Court said that the parties “agreed” on such a sentence.  Nobody objected to this characterization.  The First says that this is “troubling” but it isn’t a “miscarriage of justice” under United States v. Teeter, 257 F.3d 14, 23 (1st Cir. 2001).

CA1: another “in furtherance” affirmance ending with an opaque sentencing discussion

US v. Rosado, No. 07-1465 (unpublished) affirms a conviction for distributing “cocaine base.”  The First turns back a sufficiency challenge saying that of course a jury could infer that someone knew how much drugs were in a car.  It also concludes that of course a jury could conclude that someone that resists arrest is as knowledge of guilt (as opposed to a legitimate fear of being framed). And, of course, the jury could infer that “Eight Balls” indicated distributive intent.

But then it strays into bending territory.  The First says that because“the evidence showed that both guns were loaded and located in close proximity to the defendant and to the drugs and therefore could easily have been used to resist any effort, by the police or others” that a jury could conclude that the guns were possessed “in furtherance” of his drug activities.  I mean, what gives, why does the First even bother saying that “mere presence” of a gun isn’t “in furtherance” of a crime, but then it always concludes that all guns are “in furtherance” of drug business.

Likewise, objections to sentencing (based on what seems to be judicial notice of what crack looks like) are turned away.  A reasonableness challenge fails, as his long sentence was still below the guidelines.  It concludes by saying “To the extent that defendant quibbles with the weight afforded to the guidelines as opposed to other factors, such balancing, absent abuse of its discretion, is for the district court.”  So does that mean that weight afforded the guidelines is now a matter of “discretion” as opposed to “reasonableness.”?