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Nouvèl Jiridik ak Aktyalizasyon

United States v. King, No. 21-12963 (Jan. 23, 2023)

In United States v. King, No. 21-12963 (Jan. 23, 2023) (Rosenbaum, Grant, Tjoflat), the Court—without oral argument—affirmed the defendant’s 36-month sentence for violating his supervised release. The Court rejected the defendant’s arguments that his sentence was substantively unreasonable.  Although the defendant argued that the sentence was a major upward variance from the guideline range of 4-10 months, he repeatedly accepted responsibility, and he was less than a year away from completing his supervision, the district court acted within its discretion by weighing the 3553(a) factors. Responding to the dissent’s argument, the Court found that the district court did not commit plain error by sentencing the defendant based on his need for rehabilitation, in violation of the Supreme Court’s decision in Tapia.  The defendant forfeited that issue by failing to raise it on appeal, and his argument challenging the substantive reasonableness of his sentence did not cover this procedural error.  Even assuming that the district court committed an error, it did not plainly err or violate the defendant’s substantial rights.  The district court does not violate Tapia merely by discussing how defendants would benefit from a drug abuse program after it imposes sentence; it errs only when it imposes or extends [...]

January 23rd, 2023|

United States v. Scott, No. 21-11467 (Jan. 20, 2023)

In United States v. Scott, No. 21-11467 (Jan. 20, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s healthcare fraud convictions. First, and assuming that de novo review applied, the Court rejected the defendant’s belated challenge to the indictment on the ground that Medicare actually covered the testing he performed.  And even if it did, he would not have been entitled to dismissal of the indictment, as Medicare coverage for the particular tests would have been a factual issue to be resolved at trial, and the defendant failed to make that argument in the district court. Second, the Court concluded that the evidence was sufficient to support the convictions.  Specifically, the Court found sufficient evidence to support his willful intent to defraud Medicare based on circumstantial evidence. https://media.ca11.uscourts.gov/opinions/pub/files/202111467.pdf http://defensenewsletter.blogspot.com/

January 23rd, 2023|

United States v. Dupree, No. 19-13776 (Jan. 18, 2023)

In United States v. Dupree, No. 19-13776 (Jan. 18, 2023), the en banc Court held that the definition of “controlled substance offense” in U.S.S.G. 4B1.2(b) does not include inchoate offenses like conspiracy. In an opinion by Jill Pryor, and joined by Chief Judge Bill Pryor and Judges Wilson, Jordan, Rosenbaum, Newsom, Lagoa, and Brasher, the Court held that the definition in the text of 4B1.2(b) unambiguously excludes inchoate offenses.  Because there was no ambiguity, the Court was precluded from deferring to the commentary’s broader definition (expressly including inchoate offenses) under the Supreme Court’s recent decision in Kisor clarifying its earlier decision Stinson. Chief Judge Pryor concurred in order to correct the common misconception.  The Guidelines’ commentary typically goes through the same notice-and-comment and congressional review process as amendments to the text of the Guidelines themselves. He encouraged the Commission to move what normally goes in the commentary into the text of the Guidelines. Judge Grant concurred in the judgment, agreeing with the result but criticizing the majority for effectively overruling Stinson, which she viewed as distinct from the administration law cases upon which it relied.  She feared that the majority’s opinion may “unsettled much of our case law” because courts [...]

January 18th, 2023|

United States v. Oudomsine, No. 22-10924 (Jan. 18, 2023)

In United States v. Oudomsine, No. 22-10924 (Jan. 18, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s 36-month sentence for providing false information to obtain pandemic-related benefits. The district court varied upward to 36 months from a guideline range of 8-14 months.  The sentence was not procedurally unreasonable because the district court adequately explained the variance.  The district court emphasized that the fraud was atypical compared to other fraud cases, in that the defendant used his education to steal money from a federal relief program designed to save the country during the pandemic, and the district court did not rely on any clearly erroneous facts.  Nor was the sentence was substantively unreasonable.  The Court rejected the defendant’s argument that the district court gave too much weight to deterrence since the pandemic benefits program was now over, and that the court did not “like him” because he spent much of the money to buy a single Pokemon card. https://media.ca11.uscourts.gov/opinions/pub/files/202210924.pdf http://defensenewsletter.blogspot.com/

January 18th, 2023|

United States v. Moran, No. 21-12573 (Jan 13, 2013)

In United States v. Moran, No. 21-12573 (Jan 13, 2013) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for attempting to produce child pornography. The defendant commented on several “mom blog” posts asking mothers to display sexually explicit imagines of their young daughters.  First, the Court rejected the defendant’s sufficiency argument that he lacked the specific intent to have bloggers post child pornography because, even if that was unlikely to happen, he still could have desired that result. And that was true even if he also intended to troll people online. Second, the evidence was sufficient to allow a jury to conclude that the defendant knew that, if produced, the child pornography he sought would travel in interstate commerce.  The Court rejected the defendant’s argument that he first had to know that his attempt would succeed. Finally, and reviewing for plain error, the evidence was sufficient to show that the defendant took a “substantial step” toward committing the offense. https://media.ca11.uscourts.gov/opinions/pub/files/202112573.pdf http://defensenewsletter.blogspot.com/

January 16th, 2023|

United States v. Harrison, No. 21-14514 (Jan. 10, 2023)

In United States v. Harrison, No. 21-14514 (Jan. 10, 2023) (Wilson, Jill Pryor, Ruiz), the Court held, on a government appeal, that Georgia’s robbery statute is divisible, and that Georgia robbery by intimidation is a “crime of violence” under the Guidelines. First, the Court held that, under Mathis, Georgia’s robbery statute was divisible into three separate crimes: robbery by force, robbery by intimidation, and robbery by sudden snatching.  The Court reached that conclusion based on the text of the armed robbery statute, Georgia case law, and the Georgia jury instructions.  The Court rejected the Fourth Circuit’s contrary conclusion based on its reading of the jury instructions.  Having determined that the defendant was convicted of robbery by intimidation, the Court held that it was a “crime of violence” under the enumerated offense clause of the Guidelines because Georgia robbery by intimidation satisfied the “generic” definition of robbery. https://media.ca11.uscourts.gov/opinions/pub/files/202114514.pdf http://defensenewsletter.blogspot.com/

January 11th, 2023|
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