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).
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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.
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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.
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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.
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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).
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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).
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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...
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