court impermissibly and prejudicially participated in plea negotiations with defendant

US v. Baker, No. 06-3115
Sentence based on guilty plea to fraud and related offenses is vacated where the court impermissibly and prejudicially participated in plea negotiations with defendant

the magnitude of the variance and method of calculation were unreasonable

US v. Allen, No. 06-6111
In a case involving a variance of more than 2.5 times the top end of the U.S.S.G. recommended range, whatever latitude a sentencing court may have to adjust a sentence in an exercise of Booker discretion, it may not discard the advisory Guideline range and impose sentence on the basis of evidence of a defendant's uncharged, unrelated misconduct, whether actually committed or contemplated for the future. A sentence for possession of methamphetamine with intent to distribute is vacated where, although the sentencing court may consider defendant's unrelated, non-charged conduct in fashioning a sentence, the magnitude of the variance and method of calculation were unreasonable.

district court erred in imposing an obstruction of justice enhancement

US v. Abdul-Aziz, No. 06-3032
A conviction and sentence for being a felon in possession of a firearm is vacated in part as to the sentence and remanded where the district court erred in imposing an obstruction of justice enhancement based on perjury as the record did not establish with the required clarity that the court exercised its independent judgment in reaching the decision to impose the enhancement

district court erred by conflating the two steps of the analysis for an abuse of trust enhancement laid down in US v. Reccko, 151 F.3d 29 (1st Cir. 19

US v. Parrilla, No. 05-1566
Sentences for conspiracy to transport cocaine are vacated where the district court erred by conflating the two steps of the analysis for an abuse of trust enhancement laid down in US v. Reccko, 151 F.3d 29 (1st Cir. 1998

Due Process Clause in notifying plaintiff of the administrative forfeiture of $13,000 seized from him upon his arrest for serious drug crimes is rever

Taylor v. US, No. 06-60275

A determination that the government satisfied the Due Process Clause in notifying plaintiff of the administrative forfeiture of $13,000 seized from him upon his arrest for serious drug crimes is reversed and remanded where, on the record, the government failed to meet its burden to show that its notice was "reasonably calculated, under all the circumstances, to apprise" him of the forfeiture.

unlawful possession of a firearm vacated

US v. Jones, No. 06-30535, 06-30563
A conviction for unlawful possession of a firearm by a convicted felon is vacated where the district court abused its discretion in allowing the government to introduce evidence of defendant's prior firearm offense. Although the revocation sentence was not plainly erroneous it is remanded for reconsideration in light of the vacatur of the conviction

prosecution's evidence was insufficient to establish the necessary mens era requirement.

US v. Nieves-Castano, No. 06-1517 (1st Cir. March 27, 2007)
Conviction for possession of a machine gun is reversed and a verdict for defendant ordered where the prosecution's evidence was insufficient to establish the necessary mens era requirement. Conviction for possession of a firearm within a school zone is affirmed over defendant's argument that the statute is unconstitutionally void for vagueness under the Fifth Amendment's Due Process Clause because it fails to specify how to measure the 1000 foot distance from a school that marks the boundary of a school zone. The sentence is remanded for reconsideration in light of the reversal of the first charge.
http://laws.lp.findlaw.com/1st/061517.html

confession to a crime that had been obtained illegally by police

The Justices rejected an appeal seeking to test an equally divided Mississipi Supreme Court ruling that involved the admission of a confession to a crime that had been obtained illegally by police in violation of the suspect's rights under Miranda v. Arizona. The state court found the admission was an error, but found that it was "harmless" because there was "overwhelming" evidence to support the conviction. The case was Haynes v. Mississippi (06-7827).

government's confession of error.

US v. Latu (03/19/07 - No. 05-10815)
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf

COPA Ruled Unconstitutional

COPA Ruled Unconstitutional
ACLU V. GONZALES
March 22, 2007

A federal judge rules that the Child Online Protection Act (COPA), a law intended to protect children from sexually explicit and pornographic online materials, is unconstitutional.

http://news.findlaw.com/hdocs/docs/cberlaw/aclugnzls32207copa.pdf

Jones v. Bock, 127 S. Ct. 910 (2007)

Freeman v. Watkins, No. 06-1394 (10th Cir. March 16, 2007)
In a prisoner's 42 U.S.C. section 1983 case asserting six violations of his constitutional rights, dismissal of his case for failure to exhaust his administrative remedies is reversed pursuant to the Supreme Court's recent decision in Jones v. Bock, 127 S. Ct. 910 (2007), which specifically abrogated the "total exhaustion" requirement and held that failure to exhaust is an affirmative defense under the PLRA, and inmates are not required to specially plead or demonstrate exhaustion in their complaints.
http://laws.lp.findlaw.com/10th/061394.html

Sentences for narcotics conspiracy are remanded

US v. Mansoori, No. 04-1950 (7th Cir. March 13, 2007)
Sentences for narcotics conspiracy are remanded so that the district court may consider whether it would have sentenced them differently knowing that the Sentencing Guidelines are advisory rather than binding, but one defendant's sentence is affirmed where the district court stated that it would not sentence him differently treating the Guidelines as advisory rather than binding.
http://caselaw.lp.findlaw.com/data2/circs/7th/041950p.pdf

guilty plea to conspiracy to distribute and possess with intent to distribute heroin, is vacated

US v. Kaba, No. 05-3813 (2d Cir. March 08, 2007)
Sentence, based on a guilty plea to conspiracy to distribute and possess with intent to distribute heroin, is vacated where the district court impermissibly based its sentence on defendant's West-African heritage and thereby rendered the sentence invalid.
http://caselaw.lp.findlaw.com/data2/circs/2nd/053813p.pdf

likely deportation

US v. Wills, No. 06-0115 (2d Cir. February 26, 2007)
Sentence imposed based on conviction of cocaine and crack-related crimes is vacated as the district court did not properly apply the statutory factors listed in 18 U.S.C. section 3553(a) when it considered defendant's likely future deportation under the need to protect the public, or the extent of the difference between defendant's sentence and his co-defendant's. http://caselaw.lp.findlaw.com/data2/circs/2nd/060115p.pdf

mid-Guideline range, was

USA v. RAJWANI No. 0510648cr1p - 02/23/2007

In sum, we conclude that the financial vulnerability of

victims and the related emotional hardship make this case somewhat
atypical and justify an upward departure. However, the Sentencing
Commission has substantially accounted for these aggravating
characteristics of the defendant’s conduct by providing for a
vulnerable victim enhancement and an enhancement based on the
amount of the fraud. While we recognize the deference due a
district court’s sentence, we find no circumstance in this case
that takes it so far beyond the heartland of fraud offenses as to
“eviscerate the Guidelines of all applicability.” The district
court’s sentence, which is 3 times the mid-Guideline range, was
therefore unreasonable. For the foregoing reasons, we AFFIRM Rajwani’s conviction.
However, we VACATE Rajwani’s sentence and REMAND the case to the
district court for resentencing consistent with this opinion.
AFFIRMED IN PART.
VACATED IN PART.
REMANDED.

CORP. GOVERNANCE, CORPORATION & ENTERPRISE LAW, CRIMINAL LAW & PROCEDURE, EVIDENCE, PUBLIC UTILITIES, SECURITIES LAW, WHITE COLLAR CRIME

US v. Lake, No. 06-3140 (10th Cir. January 05, 2007)Defendants' convictions, arising from an alleged "far-reaching scheme to milk Kansas' largest public utility for all they could through a pattern of fraud and deceit," are reversed where the government's attempt to prove defendants' concealment from the SEC of their personal use of corporate aircraft was flawed because the government produced no evidence that defendants failed to comply with SEC regulations governing the reporting of such personal use, and the jury was never instructed regarding the SEC's reporting requirements. [To view the full-text of cases you must sign in to FindLaw.com.] http://laws.lp.findlaw.com/10th/063140.html

nolo contendere convictions were legally insufficient

US v. Nguyen (10/18/06 - No. 06-30011)
A conviction under 8 U.S.C. section 1253(b) for willful failure to comply with a term of release under supervision -- which required that he not “commit any crimes” -- is reversed where defendant's misdemeanor nolo contendere convictions were legally insufficient to support his conviction under section 1253(b), and moreover, the convictions should not have been admitted under Rules 410, 803(22), or 803(8) for the purpose of proving that he actually committed the underlying crimes charged. http://caselaw.lp.findlaw.com/data2/circs/9th/0630011p.pdf

prior conviction for criminal confinement as a conviction for a crime of violence since the record did not disclose that defendant was convicted of a

U.S. v. Gilbert, No. 05-3111 (7th Cir. September 19, 2006).

Sentence as an armed career criminal for possession of a firearm by a felon is vacated and remanded where the district court erred in treating defendant's prior conviction for criminal confinement as a conviction for a crime of violence since the record did not disclose that defendant was convicted of a form of criminal confinement that required a finding of force or threat of force. http://caselaw.lp.findlaw.com/data2/circs/7th/053111p.pdf

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