U. S. Supreme Court Happenings and Favorable Federal Circuit Opinions for the Week of April 29-May 3, 2024 and Other News-- U.S. Sentencing Commission Voted to Ban the Use of Acquitted Conduct to Calculate a Guideline Sentence--
U. S. Supreme Court Happenings– Week ending May 3, 2024 –
The Justices will hold their next conference on May 9, 2024. We expect Orders on May 13, 2024.
Favorable Federal Circuit Opinions for the Week of April 29-May 3, 2024 –1st Circuit
United States v. Abbas, (No. 22-1864)(1st Cir. April 29, 2024)– Abbas was convicted on several wire- fraud and money-laundering-related charges. For six days, a jury heard evidence connecting Abbas to an email-based fraud scheme that targeted citizens of the Commonwealth of Massachusetts. As to his money-laundering/unlawful-transactions convictions in Counts Three, Four, and Five, the Court vacated those convictions, without prejudice because under the venue provisions of 18 U.S.C. § 1956 (i)(1)(B), the statute as to which the jury was instructed at the request of the government, venue did not lie in Massachusetts. Accordingly, the Court vacated and remanded for resentencing and recalculation of the restitution.
6th Circuit
United States v. Sanders, et. al.,(Nos. 23-3334/3347)(6th Cir. May 1, 2024)– After a state trooper pulled over Terrence Jordan and Damara Sanders, a jury convicted them of drug and firearm offenses. Toward the end of the trial, the parties proposed jury instructions to the court. In particular, the defendants proposed a lesser-included-offense instruction for simple possession of a controlled substance. See 21 U.S.C. § 844. The court determined such an instruction wasn’t warranted given the drug quantity and distribution paraphernalia introduced at trial. That evidence, according to the court, established the defendants’ intent to distribute beyond question. When it came to the possession-in-furtherance count, the parties overlooked a mistake in the proposed jury instructions. Although the indictment charged Jordan and Sanders for possessing a firearm in furtherance of drug trafficking, the instructions were for using or carrying a firearm during and in relation to drug trafficking—a related, but distinct crime. This error went unnoticed at trial. Sanders argued that the Court should vacate her possession-in-furtherance conviction because the district court gave the wrong jury instruction. The United States agreed and the Court vacated both defendants’ convictions on that count only.
United States v. Brown, (No. 22-3797)(6th Cir. April 30, 2024)– Like any other criminal defendant, Brown has a right to be brought to trial within seventy days of his arraignment—absent, of course, the Speedy Trial Act’s laundry list of exclusions. 18 U.S.C. § 3161 et seq. Yet Brown alleged that, in the 1,176 days between his arraignment and his guilty plea, his right to a speedy trial was twice violated. Either violation would warrant the dismissal of his indictment. The first violation involved a thirty-six-day delay in transporting Brown from Ohio to the Federal Medical Center (“FMC”), Lexington for his competency evaluation. This delay, according to the district court, was excludable. It denied Brown’s motion to dismiss. The second violation involved a twenty-one-day period after the denial of Brown’s first motion to dismiss. Again, the district court denied Brown’s motion to dismiss. It instead entered a twenty-one-day retroactive ends-of-justice continuance. The Court found that the district court erred in denyng both motions, and vacated his conviction, and remanded to the district court to determine whether his indictment should be dismissed with or without prejudice.
7th Circuit
United States v. Anderson, (No. 21-1325)(7th Cir. April 30, 2024)– This case concerns whether the district court improperly enhanced Anderson’s sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Anderson argued that one of the prior convictions the district court relied on—his Florida conviction in 2001 for aggravated assault—covers reckless conduct and is therefore no longer a “violent felony” after Borden v. United States, 141 S. Ct. 1817 (2021), held that predicate acts must be intentional crimes. The Court concluded that Anderson’s Florida conviction in 2001 is not a predicate violent felony and that the government may not substitute one of Anderson’s other prior convictions as an alternative predicate offense. Because Anderson does not have three predicate convictions, the ACCA enhancement was improper and therefore, the Court vacated and remanded for resentencing.
United States v. Feeney, (No. 22-2607)(7th Cir. April 30, 2024)– Feeney pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and carrying an explosive during that unlawful possession in violation of 18 U.S.C. § 844(h)(2). At sentencing, the parties disagreed on the applicable base offense level under the Sentencing Guidelines for Feeney’s § 922(g)(1) conviction. The government argued that Feeney’s possession of an explosive warranted an increased base offense level under U.S.S.G. § 2K2.1(a)(5). Meanwhile, Feeney argued that this outcome would punish him twice for the same conduct in violation of Application Note 4 to U.S.S.G. § 2K2.4. The court agreed with the government and applied the higher base offense level to Feeney’s sentence. Because Feeney has the better interpretation of the relevant guideline and application note, the Court vacated his sentence and remanded for resentencing.
9th Circuit
United States v. Charles, (No. 20-50345)(9th Cir. May 2, 2024)(en banc)– The en banc court reversed the district court’s denial of a motion to suppress a firearm found during a warrantless search of the defendant’s truck in a case that presented the question whether an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search. Based on the circumstances presented here, the en banc court concluded that the deputies who searched the defendant’s truck acted solely for investigatory reasons, and that the warrantless search therefore violated the Fourth Amendment.
United States v. Lucas, Jr., (No. 22-50064)(9th Cir. May 2, 2024)(en banc)– Vacating a sentence and remanding, the en banc court held that clear and convincing evidence is not required for factual findings under the advisory Sentencing Guidelines, even when potentially large enhancements are at stake; factfinding by a preponderance of the evidence is sufficient to satisfy due process at sentencing. The en banc court therefore overruled United States v. Staten, 466 F.3d 708 (9th Cir. 2006), and its progeny. The en banc court remanded for the district court to apply the proper standard in the first instance.
OTHER NEWSU.S. Sentencing Commission Voted to Ban the Use of Acquitted Conduct to Calculate a Guideline Sentence–
Judge Carlton Reeves, the Chair of the Commission, explained, “Not guilty means not guilty. By enshrining this basic fact within
the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and
criminal justice system.” Last year, several Supreme Court Justices urged the Commission to address the practice of using
acquitted conduct and a bipartisan group in Congress introduced a bill limiting its use. However, acquitted conduct is not gone
for good; it can still be used in two limited circumstances: (1) If the conduct underlying the charge for which the defendant
was found not guilty was also present and underlying the instant charge; and (2) If the judge exercises their discretion to do
so after calculating the guideline range.
Fair Sentencing/Retroactive Sentence Reductions 4,137 Orders Granted to date.
Elderly Offender Home Confinement 1,246. Approved to date.
First Step Act Releases 31,910 granted to date.
Compassionate Releases/Reduction in Sentences 4,704 granted to date.
Population in RRC’s 8,322.
Population in Home Confinement 4,993.
Please note below that Lily will be taking over Carina’s position for Spanish Speaking clients. A better week with regard to favorable circuit cases. We can help anyone interested in putting together a package to apply for clemency or pardons. The better the package, the better the chance. In the past, we have had many people get clemencies, computations of sentences and a few pardons.
We are still receiving a great amount of people wanting to find out if they qualify for any of the new USSG Amendments such 814 and 821. Our FREE LOOK program ended Monday, April 1, 2024. We had hundreds of inquiries, but not many people actually qualified. Instead, we suggest that you opt for a Written Case Evaluation (“WCE”) as soon as possible to determine all remedies available to you to gain relief including all of the recent Amendments.
For the last 30 years, we have been very successful. We can help on direct appeals, 2255 motions, 2241 Petitions, First Step Act and Compassionate
Release Motions, Earned Time Credits, DC Superior Court Petitions, State Post Conviction, Clemencies and Pardons and other specialized motions to mention a few avenues for relief we cover.
The WCE is an excellent low cost tool to see what can be done for you at any stage of the proceedings. It is thorough and detailed from day one of your case to present with our
recommendations of any remedies available to gain relief.
If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case
Evaluation.