United States v. Davis, 127 F.3d 68 (D.C. Cir. 1997) (Judge Garland)
United States v. Cropp, 127 F.3d 354 (4th Cir. 1997) (Judge Earvin)
Among the many cases this week that discussed claims that court-imposed limits on cross-examination violated the defendant's Sixth Amendment rights of confrontation, these three present a ...
Court rejected the use of any downward departure base on the crack-cocaine sentencing disparity.
In reversing an upward departure based upon a combination of "more than minimal planning" and "scheme to defraud more than one victim", the Court stated that "it is the rare case that the existence of both factors taken together will take the case outside the heartland of the Guidelines and ...
Case approved limits on cross examination of police officer on grounds that information sought was only marginally relevant.
Here the Court affirmed the district court's decision that, following Bailey v. U.S., a defendant cannot withdraw just a portion of his plea agreement; he must withdraw the entire agreement because the entire sentence was a "package".
In this case, the Ninth Circuit concluded that 28 U.S.C. § 2255 confers ...
QUOTE OF THE WEEK - Sentences that can't be explained, justified or defended!
"[T]he fundamental problem with the guidelines is not their attempt to guide judicial discretion or their severity, but their utopian premise that 'unwarranted disparity' can and should be eliminated by rigid, detailed, mandatory sentencing formulas. . . ...
In September, 1996, Judge Longstaff issued an important decision, in Lyon v. Vande Krol, 940 F.Supp. 1433 (S.D.Iowa 1996), in which he ruled that part of the in forma pauperis statute contained in the recently enacted Prison Litigation Reform Act (PLRA), namely 28 U.S.S. § 1915, was unconstitutional under the ...
Case is cited for strong dissent by Judge Jones calling for re-analysis of unfair and racially discriminatory crack/cocaine sentencing scheme.
Case reversed convictions of a defendant due to lower court's failure to instruct jury on defense of duress.
This is one of those huge money laundering cases involving the Cali cartel in which numerous defendants were convicted of the usual assortment of drug, gun and money laundering crimes. One issue ...
Case reversed lower court holding that three strikes provision of the Prison Litigation Reform Act unconstitutionally violated prisoners' equal protection rights.
Here the Court held that one of the key components of the Voluntary Disclosure Policy was the requirement that the taxpayer make bona fide arrangements to pay his tax liability - and that a Offer in Compromise was not such a good faith arrangement where the taxpayer offered to pay ...
QUOTE OF THE WEEK - Sentences that can't be explained, justified or defended!
"[T]he fundamental problem with the guidelines is not their attempt to guide judicial discretion or their severity, but their utopian premise that 'unwarranted disparity' can and should be eliminated by rigid, detailed, mandatory sentencing formulas. . . ...
In this case the Court held that the Government's refusal to make a § 5K1.1 motion is justified where the defendant has breached his cooperation agreement in a way that damaged the case in which he was cooperating.
United States v. Davis, 127 F.3d 68 (D.C. Cir. 1997) (Judge Garland)
United States v. Cruz, 127 F.3d 791 (9th Cir. 1997) (Judge Tashima)
Among the many cases this week that discussed claims that court-imposed limits on cross-examination violated the defendant's Sixth Amendment rights of confrontation, these three present a ...
Here the Court held that the Supreme Court's ruling in U.S. v. Gaudin, 515 U.S. 506 (1995) that materiality under 18 USC § 1001 is a question for the jury, is a "new rule" that does not apply retroactively on habeas petitions.
This case is noted for its explanation of ...
Here the Court affirmed the district court's decision that, following Bailey v. U.S., a defendant cannot withdraw just a portion of his plea agreement; he must withdraw the entire agreement because the entire sentence was a "package".
In this case, the Ninth Circuit concluded that 28 U.S.C. § 2255 confers ...
United States v. Berndt, 127 F.3d 251 (2nd Cir. 1997) (Judge Kearse)
United States v. Stein, 127 F.3d 777 (9th Cir. 1997) (Judge Goodwin)
Another increasingly slippery rule is U.S.S.G. § 6A1.3(a). That Rule states that "when any factor important to the sentencing hearing is reasonably in dispute, the parties ...
Limits on discussing sentencing ranges for cooperating witnesses during cross examination are permissible to prevent jury from considering jury nullification.
Relying on earlier precedent, the Court affirmed its unique rule that a conspiracy terminates "when there is affirmative evidence of abandonment, disavowal or defeat of the object of the conspiracy" - a rule subsequently rejected by the Supreme Court.
In this case, the Ninth Circuit, following the language of an ...
Case held that because family circumstances are a discouraged factor, when familiy circimstances are used as the sole basis for a downward departure, they must be "extraordinary." (id., at 968-69).
In this case the Court reversed Judge Vazquez and held that the defendant's family ties and responsibilities as the widowded ...
United States v. Meza, 127 F.3d 545 (7th Cir. 1997)
United States v. Wong, 127 F.3d 725 (8th Cir. 1997)
United States v. Blackwell, 127 F.3d 947 (10th Cir. 1997)
One of the many false promises of the Guidelines was the much-heralded pledge that sentencing disparity would be eliminated. Even ...
The Court noted that "more than minimal planning 'is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune'." (Id., at 749).
Court reversed the district court's decision not to apply a more than minimal planning enhancement ...
In this case the Court affirmed the use of an obstruction of justice enhancement under USSG § 3C1.1for conduct in which the defendant attempted to obstruct justice on behalf of a co-conspirator, even if they were separately charged.
Citing its ruling in U.S. v. Perdomo, 927 F.2d 111, 118 (2nd ...
QUOTE OF THE WEEK - Blind eyes and deaf ears: the crack/cocaine controversy
"I recognize that this court has rejected a variety of constitutional challenges to the 100:1 [crack/cocaine] ratio, but I still believe that we as judges should ‘no longer remain wedded to that which experience shows is neither ...
Case held that a combination of "more than minimal planning" and "scheme to defraud more than one victim" did not warrant and upward departure.
United States v. Wells, 127 F.3d 739 (8th Cir. 1997)
United States v. Banta, 127 F.3d 982 (10th Cir. 1997)
Both of these cases deal with the calculation of "loss" under U.S.S.G. § 2F1.1; and they prove what any seasoned defense counsel has long known: the determination of "loss" is ...
Court held that defense of factual impossibility is not a defense to a sentence enhancement where defendant intends to obstruct justice.
QUOTE OF THE WEEK - Sentences that can't be explained, justified or defended!
"[T]he fundamental problem with the guidelines is not their attempt to guide judicial discretion or their severity, but their utopian premise that 'unwarranted disparity' can and should be eliminated by rigid, detailed, mandatory sentencing formulas. . . ...
United States v. Sobrilski, 127 F.3d 669 (8th Cir. 1997) (Judge Friedman)
United States v. Hankins, 127 F.3d 932 (10th Cir. 1997) (Judge Kelly)
These cases are noted because they explore the often difficult to fathom differences between the defenses of factual impossibility versus legal impossibility. The Court in Sobrilski ...
United States v. Wells, 127 F.3d 739 (8th Cir. 1997)
United States v. Banta, 127 F.3d 982 (10th Cir. 1997)
Both of these cases deal with the calculation of "loss" under U.S.S.G. § 2F1.1; and they prove what any seasoned defense counsel has long known: the determination of "loss" is ...
Departing from the norm, the Seventh Circuit ruled, in this case, that "unjustified" sentencing disparities between co-conspirators (i.e., disparities resulting from an an improper application of the guidelines) might warrant a downward departure.
United States v. Meza, 127 F.3d 545 (7th Cir. 1997) (Judge Kanne)
United States v. Wong, 127 ...
Case rejected need for an evidentiary hearing to resolve disputed factors at sentencing.
United States v. Berndt, 127 F.3d 251 (2nd Cir. 1997) (Judge Kearse)
United States v. Stein, 127 F.3d 777 (9th Cir. 1997) (Judge Goodwin)
Another increasingly slippery rule is U.S.S.G. § 6A1.3(a). That Rule states that "when ...
United States v. Meza, 127 F.3d 545 (7th Cir. 1997)
United States v. Wong, 127 F.3d 725 (8th Cir. 1997)
United States v. Blackwell, 127 F.3d 947 (10th Cir. 1997)
One of the many false promises of the Guidelines was the much-heralded pledge that sentencing disparity would be eliminated. Even ...
Court held that while legal impossibility is normally a valid defense to an attempt crime, factual impossibility is not.
This is one of those shameful decisions that shows how an intemperate Court can create bad law - here the birth of a new, subjective standard by which the availability of the sentencing adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 will be determined - at least in some ...
United States v. Cropp, 127 F.3d 354 (4th Cir. 1997) (Judge Earvin)
United States v. Cruz, 127 F.3d 791 (9th Cir. 1997) (Judge Tashima)
Among the many cases this week that discussed claims that court-imposed limits on cross-examination violated the defendant's Sixth Amendment rights of confrontation, these three present a ...
United States v. Sobrilski, 127 F.3d 669 (8th Cir. 1997) (Judge Friedman)
United States v. Hankins, 127 F.3d 932 (10th Cir. 1997) (Judge Kelly)
These cases are noted because they explore the often difficult to fathom differences between the defenses of factual impossibility versus legal impossibility. The Court in Sobrilski ...
