In United States v. Boone, No. 22-11153 (Apr. 9, 2024) (Jordan, Lagoa, Hull), the Court affirmed Mr. Boone's 840-month sentence. Mr. Boone pleaded guilty to using a minor to produce child pornography, and distributing and possessing child pornography, in violation of 18 U.S.C. §§ 2251 and 2252A.  The PSR recommended applying a five-level increase pursuant to U.S.S.G. § 4B1.5(b) because (1) the offense was a covered sex crime and neither § 4B1.1 nor § 4B1.5(a) applied and (2) Mr. Boone “engaged in a pattern of activity involving prohibited sexual conduct.”  As explained in the PSR, the pattern-of-activity enhancement applied because Mr. Boone produced child sexual abuse material on at least two separate occasions.  With a criminal history category of I and a total offense level of 43, Mr. Boone’s advisory guidelines range was life imprisonment.  Because Mr. Boone's statutory maximum sentences were 30 years for the production offense and 20 years for each of the two distribution and possession offenses, and because the statutory maximums were less than the advisory guidelines sentence of life, U.S.S.G. § 5G1.2 provided that the sentences “shall run consecutively,” which in turn yielded a total advisory guidelines sentence of 840 months. On appeal, Mr. Boone argued that the district court [...]

In United States v. Handlon, No. 22-13699 (Apr. 3, 2024) (Rosenbaum, Grant, Ed Carnes) (per curiam), the Court affirmed the denial of a motion for compassionate release. Mr. Handlon moved for compassionate release, contending that his eighty-five-year-old father had severe medical issues and needed help.  He requested that he be released to spend what time he had left with his father.  The district court denied the motion because Mr. Handlon did not provide any supporting documentation regarding his father's condition or care, or whether he was the only available caretaker.  Mr. Handlon tried to provide the court with further information, which the court construed as a motion for reconsideration and denied. This Court noted that when Mr. Handlon filed his motion, the Sentencing Commission had not yet amended its policy statement, and the district court was bound by Bryant's holding regarding the old catchall category--"other reasons" as determined by the Director of the Bureau of Prisons--that Congress delegated the power to define what should be considered extraordinary and compelling reasons for a sentence reduction to the Sentencing Commission, not the courts.  As a result, the Court held that Mr. Handlon was ineligible for compassionate release because he failed to present an extraordinary and compelling [...]

In United States v. Al Jaberi, No. 22-12852 (Apr. 5, 2024) (Lagoa, Brasher, Tjoflat), the Court affirmed Mr. Al Jaberi's convictions and sentences. Mr. Al Jaberi was found guilty of smuggling in violation of 18 U.S.C. § 554(a) by willfully and knowingly attempting to export nine firearms from the United States, contrary to 18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1); knowingly delivering firearms to a common carrier without giving the carrier written notice that the firearms were being transported or shipped, in violation of 18 U.S.C. § 922(e); and knowingly causing a freight forwarder to submit false and misleading export information through a Shippers Export Declaration and an Automated Export System by falsely declaring the contents of a shipment to be only spare auto parts, in violation of 13 U.S.C. § 305(a)(1). On appeal, he first argued that there was insufficient evidence of guilt because law enforcement neither surveilled nor investigated the location where the shipping container was loaded; failed to offer evidence about any communications between him and anyone in Iraq about the firearms; and government witnesses offered inconsistent testimony about the location of the box containing the firearms.  The Court disagreed, reviewing his arguments for plain error because although he moved for a [...]

In United States v. Vargas, No. 22-10604 (Apr. 3, 2024) (Jordan, Lagoa, Marcus), the Court affirmed the district court's denial of Mr. Vargas's motion to dismiss his indictment as a result of a 35-month delay between indictment and arrest. Mr. Vargas was charged--in September 2018--with conspiracy to possess with intent to distribute one kilogram or more of heroin and possession with intent to distribute one kilogram or more of heroin.  He was indicted in Florida, but was living in New York at the time.  He was not arrested until nearly 3 years later.  The government made immediate attempts to arrest him--with South Florida DEA official reaching out to a number of groups with the New York Division of the DEA to assist--but its efforts stalled around September 2019.  Then, the global COVID-19 pandemic hit, and no activity in Mr. Vargas's case occurred during the first sixteen months of the pandemic.  Mr. Vargas was detained by immigration officials in New York in July 2021, released and re-arrested by the U.S. Marshals Service in August 2021, and finally arraigned in September 2021. Mr. Vargas moved to dismiss his indictment, claiming a violation of his right to a speedy trial on account of the delay [...]

In United States v. Alhindi, No. 23-11349 (Apr. 1, 2024) (Rosenbaum, Newsom, Luck) (per curiam), the Court affirmed the district court's rulings re: competency. This appeal raised two questions regarding how to apply 18 U.S.C. § 4241, which sets forth the procedures for determining a defendant's competency to stand trial and addressing any incompetency. First, the Court held that the statute permits a court to order more than one competency hearing and commitment order for the same defendant in a single case. Second, the Court held that the four-month period to which § 4241(d)(1) refers is the period during which the defendant receives treatment while he is hospitalized--meaning, it begins with the defendant's hospitalization.  The Court rejected Mr. Alhindi's argument that the period begins with the entry of the commitment order. The Court specifically reserved for another time (in footnote 4)--in a case where it is properly presented--the issue of whether the Due Process Clause limits the time the BOP has to hospitalize a defendant following a district court's order directing it to do so. Judge Rosenbaum concurred, writing separately to point out that the Court's holding that the four-month time limit in § 4241(d) applies to the hospitalization period does not mean [...]

In United States v. Gray, No. 22-13516 (Feb. 29, 2024) (Wilson, Grant, Lagoa), the Court affirmed Mr. Gray’s conviction for conspiracy to commit a controlled-substance offense. The Court rejected Mr. Gray’s chief contention: that his conviction could not stand because the government failed to prove that he knowingly possessed—as the indictment alleged—either “a Schedule II controlled substance” or, more specifically, “50 grams or more of methamphetamine.” This argument, the Court held, was foreclosed by prior-panel precedent requiring only that the government prove general knowledge to obtain a controlled-substance conviction. That the indictment listed a specific substance simply specified an element of an enhanced penalty under 21 U.S.C. § 841(b). The Court also rejected argument concerning the district court’s denial, as untimely, of Mr. Gray’s Rule 29 motion for judgment of acquittal. It held that the denial, although erroneous, was harmless because this issue depended entirely on Mr. Gray’s knowledge argument—which the Court had rejected. 202213516.pdf (uscourts.gov) https://defensenewsletter.blogspot.com/2024/04/gray-conviction-for-conspiracy-to.html