Appellate Law & Practice

CA1: 3-month medicare fraud sentence affirmed after Gall GVR

US v. Thurston, No. 05-2271.  This is a sentencing case that has been to the First Circuit two times before.  (our coverage here).  Skipping through the procedure, the government appeals a three month sentence for Medicare fraud.  After a GVR of a remand, the First Circuit applies United States v. Gall, 128 S. Ct. 586 (2007), and looking only at substantive reasonableness, the First affirms.

CA1: Fed. R. Crim. P. 16(a) cop "basis" issues

US v. Lipscomb, No. 07-1293 (8/21/08).  Some decided a guy looked like a drug dealer and approached him.  He threw a bag with some drugs and a gun and ran.  Then they tackled him.  Isn’t the war on drugs awesome?  He moved to suppress the drugs and gun, but he kept saying that neither was his (though if he did claim that they were his, it wouldn’t be usable at trial).  So, the District Court denies the motion and the First affirms.

There is a semi-interesting issue regarding whether a Fed. R. Crim. P. 16(a)(1)(G) requires disclosure of the “bases” for an expert’s opinion.  Although the District Court thought the notice was barely adequate, the First jumps in and says that saying that “training and experience” is a good enough basis for an opinion.  WTF.  But then the First tries to say that because this was a cop, it will pass, but if it were a real expert (not a “cop” expert) then it would require more detail.  This seems a tad unfair to defendants.  But wait – nobody cares.

A denial of a motion to disclose the name of a confidential informant by a magistrate that wasn’t appealed to the district court is deemed waived.    There are a few other issues that are waived or not supported by “Facts.”  So, they don’t really create new law.

After all this, however, he gets a Kimbrough remand, because it is a crack/powder case.

CA1: a further remand for time-served and parsimony issues

US v. Diaz-Fontanez, No. 06-2061 (8/8/08) (unpublished).  We gotta start calling these cases “Booker Boomerangs.”  Because, after being given a Booker remand, it is back.  And, it is going back again.  The fact that it is unpublished is somewhat disturbing.

For some reason, on the re-sentencing, the District Court “summarily” refused, under USSG § 5G1.3, to take into account time served on a related case in a state facility.  The government and the plaintiff only differ about why and how the case should be remanded.  The first rejects the need for a remand to determine whether his sentence was increase due to the state charge.  Instead, it says that a remand is necessary to determine what the Bureau of Prisons will do about the state time, and to redo the sentence.  If the BOP does nothing, then the sentence gets reduced.

A Booker-style crack/powder argum ent is rejected on plain error review.  But, I guess now, depending on the facts, he could move for an additional reduction.  However, this guy was sentenced in the middle, not the bottom of the guidelines.

Finally, the First notes that the District Court didn't conduct a parsimony analysis.  Maybe this is why the case is unpublished.  Courts of Appeal don't like doing much about parsimony issues.

CA1: First says that Pho withstands Kimbrough, regardless of text

US v. Russell, No. 07-1790 affirms a sentencing after multiple Booker remands.  This is a Cocaine base case.  Although this is a pre-guidelines-modification sentence, “The [District] court ... concluded that it could take into account the proposed crack cocaine guideline amendments in considering the overall reasonableness of Russell's sentence.”  This First holds that its decision in United States v. Pho, 433 F.3d 53 (2006) (our coverage here) remains vital after Kimbrough v. United States, 128 S. Ct. 558 (2007), even though the Supremes noted that Pho held that "sentencing court may not impose a sentence outside the Guidelines range based on its disagreement with the crack/powder disparity.”  The First says that the Supreme Court is wrong, and United States v. Pho, 433 F.3d 53 (2006) is really just misunderstood.  (My guess is they mean that this blog is written entirely by idiots.  I doubt they think that the government would misunderstand anything.)  Instead, the First says that:

We rejected in Pho the categorical substitution by the sentencing judge of a lower ratio – effectively, a constructive guideline sentencing range – for all crack cocaine offenders. However, we expressly preserved the discretion of the sentencing judge to consider the "nature of the contraband and/or the severity of a projected guideline sentence . . . on a case-by-case basis."

I put some more below the line.

CA1: individualized loss determinations, Booker, and ID theft

US v. Diaz-Correa, No. 06-2721 (unpublished).  Now why the heck is this unpublished?  This was a Booker remand in an ID theft case.  Now it is back.  However, it comes down to some very specific Guidelines issues.  Most of which are reviewed for plain error view, and result in another remand.

• Regarding a USSG § 2B1.1.(b)(3) enhancement for "theft from the person of another." where there is no physical taking of the property, no enchantment is possible under United States v. Pizarro-Berríos, 448 F.3d 1, 10-11 (1st Cir. 2006).  But, this wasn’t plain error, and there were some law-of-the-case issues.  However, he is out of prison, so the First says that on a remand they should be vacated even though they might not have any consequence by themselves.
• But, where a stipulation between the government and the defendant is based on an error of law, it isn’t as binding.  The first says that a loss amount stipulation might have mislead the District Court into thinking that it didn’t have to "make an individualized determination regarding the amount of loss [and number of victims] attributable to, or reasonably foreseeable by [Díaz].”  But, the law is that such determinations are required.      

CA1: strange case on double-counting of non-remorse

US v. Cruzado-Laureano, No. 06-1815.  This is the defendant’s third appeal.  The First two were successful.  See United States v. Cruzado-Laureano, 440 F.3d 44, 45 (1st Cir. 2006) (our coverage here); and United States v. Cruzado-Laureano, 404 F.3d 470, 473-79 (1st Cir. 2005)(our coverage here).

The most interesting issue is whether a failure to express remorse can sort-of be double-counted as the guidelines function “to disqualify a defendant from receiving a reduction in offense level for acceptance of responsibility and as a factor in determining the defendant's particular sentence within the Guidelines range.”  He argues that he has a constitutional right to maintain his innocence.  The First cites a smattering of caselaw about this difficult issue but provides no real analysis.  Their own caselaw deals with the issue of “acceptance of responsibility” which I see as different.

The First says that the District Court judge wasn’t biased enough to warrant recusal because he denied him bail.

The First says that limiting the number of witnesses he could call wasn’t a problem, and was actually quite generous (and wasn’t an allocation problem). 

The First says that it isn’t the default rule that a remand for re-sentencing is “de novo.”  It acknowledges that in other circuits, this is the rule. 

The First says that a number of issues were waived because they were not developed at earlier hearings, and even though he prevailed in a later appeal that doesn’t give him another bite at the apple.

CA1: Selya surprises and says that fast-track progarms can be considered Post-Gall

US v. Rodriguez , No. 06-2656.  This case is by Selya.  The appeal involves whether post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) the First’s holding that sentencing disparities due to lack of “fast-track programs for the processing of immigration crimes” in some districts must be remedied by variances.  Without reading the case, I started writing snarky comments about Selya.  Then I read it, and he surprised me!  He actually holds that Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) matter. 

He writes:

In fidelity to the Supreme Court's new gloss, we abrogate Andújar-Arias [507 F.3d 734 (1st Cir. 2007) (our coverage here)] to the extent that it is inconsistent with this opinion, vacate the sentence appealed from, and remand for resentencing.

His analysis can be boiled down to this:

• Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission.
• ... Like the crack/powder ratio, the fast-track departure scheme does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role." ...
• the Commission has "not take[n] account of empirical data and national experience" in formulating them...
• Thus, guidelines and policy statements embodying these judgments deserve less deference than the sentencing guidelines normally attract.

...If raised, the sentencing court will have to answer this question in a particular case. And where that answer is favorable to the defendant, a variant sentence premised on perceived inequities attributable to the availability elsewhere of fast-track departures would, given the Supreme Court's new gloss, seem to be entitled to deference "even in a mine-run case." ...

I got some more... and even stuff for non-criminal law types.

CA1: First tees up retroactivity issue

US v. Joseph, No. 04-1477 (unpublished).  This is a fairly interesting “crack guidelines” issue.  The defendant was sentenced before Booker.  While the First rejects his Booker issue and affirms the sentence, the First remands so that he can move for a reduction under the new, retroactive crack guidelines, and argue that the:

Guideline which makes the amendment retroactive, section 1B1.10, is itself unconstitutional, because according to Joseph, the provision provides limitations on the court's discretion once the court calculates the amended Guidelines range.

CA1: Photographic exploitation of a minor with a twist: the federalization of sex.

US v. Ortiz-Graulau, No. 06-1768.  The First Affirms a conviction under 18 U.S.C. § 2251(a) (“exploiting a minor for the purpose of producing the photographs.”) There was a guilty plea to a 18 U.S.C. § 2252(a)(4)(B) (2000) (“exploiting a minor for the purpose of producing the photographs”) charge.  Here is the twist: the relationship between the “exploiter” and the “victim” was legal under local law (they were not married, and “permission” would have been required to have legally wed.  In fact, they lived together as a couple, and apparently took pictures of their activity as a couple.  She just happened to be quite young.  So, because this kind of relationship is completely alien to the judges and clerks of the First Circuit, it finds a away to affirm and send the guy to jail as a child exploiter for fifteen years.  (I put some important stuff about sentencing at the end.)

The defendant argues that the purpose of the photographs was not to “traffic in child pr0n” but rather to “memorialize their intimate relationship....” and it was unfair that he couldn’t tell the jury that his relationship was quite legal.  The First figures that because there was a big difference between the couple “38 versus 14... and the fact that Ortiz participated in some of the sexual contact and admitted to taking the photographs (or at least many of them), the jury could reasonably infer that it was Ortiz who instigated at least some of the conduct.”  Somehow I seriously doubt that the First would reach this issue if Ortiz was a “cougar” and the defendant was whatever you call a young man that chases older women.  Is that a "Cougee?"  (You know.. like "donor" and "donee"?)

The First then keeps saying that at least some of their conduct wasn’t really “intimate” (in the sense that people that like each other were “intimate”) but rather at least some of it was conducted in order to take pictures of it and a “a jury could infer that at least some of the sexual conduct occurred in order to make a depiction of it.”  Of course a jury could infer that: the jury wasn’t told that their relationship was legal under local law.

I'm just getting started.  Keep reading.

CA1: consecutive sentences, brandishing, and all that

US v. Feliciano-Rodriguez, No. 06-2719.  This is a drug conspiracy appeal.  Pretty exciting facts... including someone in the witness protection program. The government seems to concede a lot on appeal, essentially saying that the District Court judge went too far in trying to send someone to a tax-payer supported hole.

The biggest issue, I would say is that the First circuit says that Consecutive Sentences for the use of a firearm as part of a conspiracy violate double jeopardy.

The government concedes the life sentence imposed on See 18 U.S.C. § 924(c) and (o) violated the 20 year statutory maximum.  Likewise, the government also concedes that the defendant never “brandished” a firearm or made it known to people.  So, the conviction under 18 U.S.C. § 924(c)(1)(A)(ii) is vacated. 

The first says that the District Court committed “clear error” by finding that dealers worked “every day” when in fact they worked “Every other day” (based on the record).  However, the First concludes that this is harmless (yet clearly erroneous).