child pornography and sentencing

US v. Gunter (09/11/06 - No. 05-2952)District courts may consider the crack/powder cocaine differential in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process. A sentence for possession with intent to distribute crack cocaine is vacated where the district Court erred as a matter of law in believing it could not sentence below the applicable Guidelines range for offenses involving crack cocaine. http://caselaw.lp.findlaw.com/data2/circs/3rd/052952p.pdf

US v. Harris (09/15/06 - No. 05-3419). A conviction for conspiracy to make, utter and possess counterfeit payroll and business checks is vacated and remanded for further proceedings where the government breached its obligation under a plea agreement, but the record was insufficient to determine whether defendant breached as well. http://caselaw.lp.findlaw.com/data2/circs/6th/053419p.pdf

US v. Lakoskey (09/14/06 - No. 05-3389, 05-3390). One defendant's conviction for conspiracy to distribute methamphetamine is reversed where the district court erred in denying his motion to suppress evidence as: 1) warrantless entries into defendant's home without consent or the presence of exigent circumstances violated his Fourth Amendment rights; and 2) defendant's subsequent consent to search, even if voluntary, did not right officers' constitutionally illegal entry as the consent came immediately on the entry's heels. The admission of certain evidence and another defendant's conviction and sentence are affirmed. http://caselaw.lp.findlaw.com/data2/circs/8th/053389p.pdf

Kesser v. Cambra (09/11/06 - No. 02-15475). In a murder case, denial of a petition for a writ of habeas corpus making a Batson claim that the prosecutor struck potential jurors on the basis of their race is reversed where, in light of Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317 (2005), the California Court of Appeal’s findings were “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” http://caselaw.lp.findlaw.com/data2/circs/9th/0215475p.pdf

US v. Stevens (09/13/06 - No. 05-30597). In the context of child pornography and sentencing, a 2004 amendment to U.S.S.G. section 2G2.2(b)(2)(D) involving the definition of a "minor," was a substantive change rather than a clarification. Thus, a sentence for receipt of child pornography and possession of child pornography is vacated where the district court erred by retroactively applying the amended definition. http://caselaw.lp.findlaw.com/data2/circs/9th/0530597p.pdf

Frierson v. Woodford (09/14/06 - No. 04-99002). Denial of a habeas corpus petition in a death penalty case is reversed with respect to the penalty phase of trail where trial counsel provided ineffective assistance in failing to investigate and present important mitigation evidence at the penalty phase of a trial, and in failing to review juvenile court records and to challenge a key mitigation witness's assertion of his privilege against self-incrimination at the penalty trial, and the errors were prejudicial. http://caselaw.lp.findlaw.com/data2/circs/9th/0499002p.pdf

Torres v. Lytle (09/12/06 - No. 05-2103). Denial of a petition for a writ of habeas corpus from a conviction for retaliating against a witness is reversed and relief granted where the state failed to introduce at trial sufficient evidence to establish that defendant's threatening letter was retaliation for the witness's providing information relating to a felony, as opposed to a misdemeanor. http://laws.lp.findlaw.com/10th/052103.html

US v. Arevalo-Juarez (09/15/06 - No. 05-16313). 30-month sentence, imposed after guilty plea to unlawful reentry into the U.S. after removal following a felony conviction, is vacated where the district court erred in basing defendant's sentence on sentencing disparities associated with early disposition programs inapplicable in the Southern District of Georgia. http://caselaw.lp.findlaw.com/data2/circs/11th/0516313p.pdf