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U.S. v. Alborola-Rodriguez, No. 96-5533 (11th Cir.) (153 F.3d 1269) (September 4, 1998) (Judge Joel F. Dubina)

Article • October 1, 1998 • from P&J October, 1998

Filed under: Punch And Jurists, Guns - Type of

U.S. v. Alborola-Rodriguez, No. 96-5533 (11th Cir.) (153 F.3d 1269) (September 4, 1998) (Judge Joel F. Dubina) by This case is noted for two reasons. First, it emphasizes one of the great legal fictions that has developed in the field of criminal law since the advent of the Federal Sentencing …

U.S. v. Saavedra, No. 96-4808 (11th Cir.) (148 F.3d 1311) (August 6, 1998) (Judge Joel F. Dubina)

Article • September 1, 1998 • from P&J September, 1998

Filed under: Punch And Jurists, Schoolyard Statute/Drug Protected Locations

U.S. v. Saavedra, No. 96-4808 (11th Cir.) (148 F.3d 1311) (August 6, 1998) (Judge Joel F. Dubina) by This decision explores the interesting issue of whether a sentencing court may always use "relevant conduct", as defined in Sentencing Guidelines, to enhance a defendant's sentence regardless of the charges contained in …

U.S. v. Saavedra, No. 96-4808 (11th Cir.) (148 F.3d 1311) (August 6, 1998) (Judge Joel F. Dubina)

Article • September 1, 1998 • from P&J September, 1998

Filed under: Punch And Jurists, Schoolyard Statute/Drug Protected Locations

U.S. v. Saavedra, No. 96-4808 (11th Cir.) (148 F.3d 1311) (August 6, 1998) (Judge Joel F. Dubina) by This decision explores the interesting issue of whether a sentencing court may always use "relevant conduct", as defined in Sentencing Guidelines, to enhance a defendant's sentence regardless of the charges contained in …

U.S. v. Luna-Herrera, No. 97-50489 (9th Cir.) (149 F.3d 1054) (July 28, 1998) (Judge Betty Binns Fletcher)

Article • September 1, 1998 • from P&J September, 1998

Filed under: Punch And Jurists, Double Counting

U.S. v. Luna-Herrera, No. 97-50489 (9th Cir.) (149 F.3d 1054) (July 28, 1998) (Judge Betty Binns Fletcher) by Here the defendant contended at sentencing that the district court erred by impermissibly double counting a prior aggravated felony when, in addition to using the felony as the basis for a sixteen …

U.S. v. Schmalzreid, No. 96-41086 (5th Cir.) (152 F.3d 354) (August 20, 1998) (Per Curiam)

Article • September 1, 1998 • from P&J September, 1998

Filed under: Punch And Jurists, Possession or Use of Firearms

U.S. v. Schmalzreid, No. 96-41086 (5th Cir.) (152 F.3d 354) (August 20, 1998) (Per Curiam) by This is another appeal of a gun conviction based on the Supreme Court's decision in Bailey v. U.S., 516 U.S. 137 (1995), but it is noted because it contains an important clarification of the …

U.S. v. Flennory, No. 96-5468 (11th Cir.) (145 F.3d 1264) (July 8, 1998) (Judge Arthur L. Alarcon)

Article • August 1, 1998 • from P&J August, 1998

Filed under: Punch And Jurists, Double Counting

U.S. v. Flennory, No. 96-5468 (11th Cir.) (145 F.3d 1264) (July 8, 1998) (Judge Arthur L. Alarcon) by Here the Court essentially reasoned that the double counting was permissible because it was not expressly prohibited. Court held that a 12 point enhancement of sentence on a felon in possession charge …

U.S. v. Pearce, No. 97-2173 (10th Cir.) (146 F.3d 771) (May 18, 1998) (Judge James K. Logan)

Article • August 1, 1998 • from P&J August, 1998

Filed under: Punch And Jurists, Possession or Use of Firearms

U.S. v. Pearce, No. 97-2173 (10th Cir.) (146 F.3d 771) (May 18, 1998) (Judge James K. Logan) by Here the Court held that the "use" prong of § 924(c) was not satisfied when the evidence merely showed that bombs were stored near drugs in light of evidence that each bomb …

U.S. v. Pitts, No. Crim. A. 97-44-3 (E.D.Pa.) (3 F.Supp.2d 637) (June 1, 1998) (Judge Anita B. Brody)

Article • August 1, 1998 • from P&J August, 1998

Filed under: Punch And Jurists, Possession or Use of Firearms

U.S. v. Pitts, No. Crim. A. 97-44-3 (E.D.Pa.) (3 F.Supp.2d 637) (June 1, 1998) (Judge Anita B. Brody) by In this case the defendant was convicted of possession of drugs with intent to distribute, but he was acquitted on a weapons charge. At sentencing, the Government moved for a sentence …

U.S. v. Ortiz, No. 97-1670 (1st Cir.) (146 F.3d 25) (June 12, 1998) (Judge Juan R. Torruella)

Article • August 1, 1998 • from P&J August, 1998

Filed under: Punch And Jurists, Schoolyard Statute/Drug Protected Locations

U.S. v. Ortiz, No. 97-1670 (1st Cir.) (146 F.3d 25) (June 12, 1998) (Judge Juan R. Torruella) by Joining decisions from the 3rd, 5th and D.C. Circuits, the Court held that the enhanced penalties of § 860(a) apply to a defendant who possessed drugs in a schoolyard zone, even if …

U.S. v. Lopez-Sandoval, No. 97-30167 (9th Cir.) (146 F.3d 712) (June 15, 1998) (Judge Harry Pregerson)

Article • August 1, 1998 • from P&J August, 1998

Filed under: Punch And Jurists, Possession or Use of Firearms

U.S. v. Lopez-Sandoval, No. 97-30167 (9th Cir.) (146 F.3d 712) (June 15, 1998) (Judge Harry Pregerson) by Case held that the § 2D1.1(b)(1) enhancement for possessing a firearm applies unless it is "clearly improbable" that the weapon was connected with the offense.

U.S. v. Terry, No. 96-4919 (4th Cir.) (142 F.3d 702) (April 22, 1998) (Judge Karen J. Williams)

Article • July 1, 1998 • from P&J July, 1998

Filed under: Punch And Jurists, Death/Bodily Injury

U.S. v. Terry, No. 96-4919 (4th Cir.) (142 F.3d 702) (April 22, 1998) (Judge Karen J. Williams) by Here the Court vacated an enhancement under USSG § 5K2.1 based upon a death that was never charged, noting among other things, that the departure exceeded that which could have been imposed …

U.S. v. Munoz, No. 96-2797 (2nd Cir.) (143 F.3d 632) (April 22, 1998) (Judge Donald P. Lay)

Article • July 1, 1998 • from P&J July, 1998

Filed under: Punch And Jurists, Possession or Use of Firearms

U.S. v. Munoz, No. 96-2797 (2nd Cir.) (143 F.3d 632) (April 22, 1998) (Judge Donald P. Lay) by In defining the charged crime to the jury, the district court stated: "Ignore the word 'carry'. I am simply going to instruct you about use." The majority concluded that "even though the …

U.S. v. Phath, No. 97-2213 (1st Cir.) (144 F.3d 146) (May 20, 1998) (Judge Norman H. Stahl)

Article • July 1, 1998 • from P&J July, 1998

Filed under: Punch And Jurists, More than Minimal Planning

U.S. v. Phath, No. 97-2213 (1st Cir.) (144 F.3d 146) (May 20, 1998) (Judge Norman H. Stahl) by This is one of those inscrutable decisions that's kind of hard to figure out. Here, the defendant was convicted of bank fraud after depositing two counterfeit checks in a savings bank and …

U.S. v. Munoz, No. 96-2797 (2nd Cir.) (143 F.3d 632) (April 22, 1998) (Judge Donald P. Lay)

Article • July 1, 1998 • from P&J July, 1998

Filed under: Punch And Jurists, Possession or Use of Firearms

U.S. v. Munoz, No. 96-2797 (2nd Cir.) (143 F.3d 632) (April 22, 1998) (Judge Donald P. Lay) by Court affirmed a § 924(c) conviction for "carrying" a firearm even though the jury was instructed only to consider whether the defendant had "used" the weapon, and that instruction was erroneous under …

U.S. v. Iloani, No. 97-20330 (5th Cir.) (143 F.3d 921) (June 11, 1998) (Judge W. Eugene Davis)

Article • July 1, 1998 • from P&J July, 1998

Filed under: Punch And Jurists, Abuse of Position of Trust

U.S. v. Iloani, No. 97-20330 (5th Cir.) (143 F.3d 921) (June 11, 1998) (Judge W. Eugene Davis) by Here the defendant argued that there was no trust relationship between a chiropractor and an insurance company, whereas the Government argued there was a position of trust because insurance companies extend privileges, …

U.S. v. Cottman, No. 96-5492 (3rd Cir.) (142 F.3d 160) (April 21, 1998) (Judge Jane R. Roth)

Article • June 1, 1998 • from P&J June, 1998

Filed under: Punch And Jurists, Fencing Enhancement

U.S. v. Cottman, No. 96-5492 (3rd Cir.) (142 F.3d 160) (April 21, 1998) (Judge Jane R. Roth) by This decision explores at length the sentencing enhancement contained in U.S.S.G. § 2B1.1(b)(4)(B) for being "in the business of receiving and selling stolen property" (known as the "fencing enhancement" or the "ITB …

U.S. v. Snoddy, No. 97-3366 (8th Cir.) (139 F.3d 1224) (April 6, 1998) (Judge Mark W. Bennett)

Article • June 1, 1998 • from P&J June, 1998

Filed under: Punch And Jurists, Minimal/Minor Participation

U.S. v. Snoddy, No. 97-3366 (8th Cir.) (139 F.3d 1224) (April 6, 1998) (Judge Mark W. Bennett) by Can a "sole participant" in a drug crime receive a sentence adjustment under U.S.S.G. § 3B1.2(b) for being a minor participant? Here, the Eighth Circuit says "Yes - sometimes." The defendant was …

U.S. v. Urban, No. 97-7107 (3rd Cir.) (140 F.3d 229) (March 20, 1998) (Judge Arthur L. Alarcon)

Article • June 1, 1998 • from P&J June, 1998

Filed under: Punch And Jurists, Special Skills

U.S. v. Urban, No. 97-7107 (3rd Cir.) (140 F.3d 229) (March 20, 1998) (Judge Arthur L. Alarcon) by The fact that this case involved bombs and destructive devices made it virtually certain that the defendant would not win, as evidenced by the Court's treatmnet of a number of cases cited …

U.S. v. Mills, No. 96-8594 (11th Cir.) (138 F.3d 928) (April 10, 1998) (Judge Emmett Ripley Cox)

Article • May 1, 1998 • from P&J May, 1998

Filed under: Punch And Jurists, Abuse of Position of Trust

U.S. v. Mills, No. 96-8594 (11th Cir.) (138 F.3d 928) (April 10, 1998) (Judge Emmett Ripley Cox) by Court agreed that the United States was not a proper victim in a Medicare fraud case to support an abuse of trust enhancement, since the defendants owed only a contractual - not …

U.S. v. Paredes, No. 96-4525 (11th Cir.) (139 F.3d 840) (April 22, 1998) (Judge Harry W. Wellford)

Article • May 1, 1998 • from P&J May, 1998

Filed under: Punch And Jurists, Double Counting

U.S. v. Paredes, No. 96-4525 (11th Cir.) (139 F.3d 840) (April 22, 1998) (Judge Harry W. Wellford) by "Arias argues that enhancing his sentence four levels under U.S.S.G. § 2K2.1(b)(5) is expressly barred by the Sentencing Guidelines. Specifically, Arias cites U.S.S.G. § 2K2.4, which provides that the term of imprisonment …