Case held that drugs which a defendant bought and possessed for personal consumption rather than to sell could not be used as uncharged drug-related misconduct to enhance his sentence.

United States v. Perulena, 146 F.3d 1332 (11th Cir. 1998) (Judge Tjoflat)
United States v. Wyss, 147 F.3d 631 (7th Cir. ...

Judge Baer comments on the growing reversion of prison practices to the Puritanical punishment factors that governed prisons in the nation's early history.

QUOTE OF THE WEEK - The philosophy that directs the state of American prisons.

"For the time being we have settled for a correctional policy that focuses ...

Citing the legislative history of the SCAMS Act, which enhances penalties were the victims of telemarketing fraud are over 55, the Court held it was not improper to enhance a defendant's sentence under the Guidelines for the same reasons.

The district court provided five reasons for departing upward in this ...

Case held that a diagnosis of impulse control disorder was not sufficiently unusual to qualify defendant for a downward departure based on diminished capacity; evidence did not show that the disorder caused him to trade in child pornography.

In a prosecution for laundering the proceeds of mail fraud, the defendants argued that the Government had failed to show that any predicate mailing occurred before the date of the alleged money laundering; and relied on decisions suggesting that the criminal conduct giving rise to the funds must be "complete" ...

Here the Court determined that the Government had breached its plea agreement with the defendant by opposing a downward departure during sentencing; and it remanded to case to a different judge for resentencing.

Case held that even assuming permitting alternate juror to deliberate with regular jurors constituted plain error which affected the defendant's substantial rights, it did not warrant reversal since defendant failed to show prejudice from jury size.

Here the Court established three factors to be considered in determining whether a defendant has suffered sufficient prejudice to warrant a new trial, based on a misstatement of fact to the jury not supported by the evidence.

The Court held that the three factors that must be considered are: "the ...

Here, citing the language of Application Note 9(A) to USSG § 1B1.3, the Court approved the inclusion of addditional sales from previous companies where the defendant had worked as a telemarketer as relevant to his current charges.

The Court concluded that the evidence was clear that the defendant had worked ...

Following his appeal which led to the Supreme Court's decision in Hughey v. U.S., 495 U.S. 411 (1990), the same defendant again engaged in criminal activities which led to this appeal. This time the defendant was convicted of bank fraud, and his order of restitution included losses from offenses committed ...

Over the dissent of Judge Wallach, the Court held that the results of an uncompleted breathalyzer test was admissible.

Case is noted for its description of the sweeping nature of the Mandatory Victims Restitution Act; as well as for its rejection of numerous constitutional challenges to the validity of that statute.

This case contains one of the most detailed explanations of the sweeping scope of the Mandatory Victims Restitution ...

Court rejected the defendant's claim that probation officer's earlier permission to travel outside the judicial district constituted a modification of his conditions of supervised release, requiring a hearing before that condition could be reimposed.

In this case the Court also affirmed the "wide latitude [of the district courts] to determine ...

Here the Court affirmed an award of attorneys fees 42 USC § 1988, holding that the fee limitation provisions of § 1997e(d) did not apply since the work was performed before the effective date of those provisions.

Case is noted for its discussion of the purpose and scope of § 2C1.7 which deals with fraud by public officials which deprive a constituency of its intangible right to honest services and have financial consequences.

This is another case that deals with the authority of the district courts to resentence a defendant on counts that were never challenged, after a successful appeal on some of the original counts of conviction. In this case, the defendant was originally sentenced to 248 months in prison for a ...

Case held that where a prosecutor "deliberately attempts to make punitive use of information obtained in exchange for a grant of immunity" such conduct breached immunity agreement and violated the Fifth Amendment (id., at 962-63).

United States v. Perulena, 146 F.3d 1332 (11th Cir. 1998) (Judge Tjoflat)
United States v. Wyss, 147 F.3d 631 (7th Cir. 1998) (Judge Posner)

Both of these cases raise interesting (and winning) defenses to the common prosecutorial quest to maximize drug sentences by including, for sentencing purposes, large quantities of ...

Case held that importation of marijuana almost a year before defendant joined drug conspiracy was not conduct for which the defendant could be held "otherwise accountable" under the Sentencing Guidelines.

United States v. Perulena, 146 F.3d 1332 (11th Cir. 1998) (Judge Tjoflat)
United States v. Wyss, 147 F.3d 631 (7th ...

The defendants in this case were tried and acquited in a state court on a murder charge. Thereafter they were prosecuted on various Federal drug and firearms charges. They were convicted of a number of those charges, but the jury was unable to reach a verdict with respect to a ...

While court declined to reverse lower court's decision not to grant a downward departure based on a 3-year preindictment delay it did suggest that such a departure would be proper if the defendant could show that his sentence had been prejudiced.

Here the Court ruled that if the government has ...

As noted in our Quote of the Week below, "the degree of civilization in a society is revealed by entering its prisons". That message cannot leave one with a comfortable feeling after reading this revealing and shocking case about the conditions of prisons in the State of Alabama and the ...

Court joined 3rd, 4th, 5th & 7th Circuits, holding that Parole Commission had no statutory right to impose a second term of special parole; and rejected contrary positions taken by 8th and D.C. Circuits.

The Court stated: "Without alleging an effect on interstate commerce in the first count, then, the indictment in this case was jurisdictionally defective.

"When, as in this case, an indictment fails to allege all elements of an offense, the defect may be raised by the court sua sponte. We have ...

This is another case that deals with the authority of the district courts to resentence a defendant on counts that were never challenged, after a successful appeal on some of the original counts of conviction. In this case, the defendant was originally sentenced to 248 months in prison for a ...