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Criminal Law

Defense Newsletter Blog

Breaking news supplementing the Defense Newsletter covering 11th Circuit and Supreme Court Cases.
By Tim Cone

Post Frequency: 9.1/day

Last Entry: October 27, 2020 at 13:19:00

Davis: AEDPA bars "actual innocence" claim of death row inmate

Posted on April 17, 2009
In In Re Davis, No. 08-16009 (11th Cir. 2009) (2-1, Barkett, J. dissenting), the Court held that Davis failed to meet the statutory requirements of AEDPA for a second or successive habeas petition, and affirmed the district court?s dismissal of his petition that challenged his death sentence for a 1989 murder...

Webb: No 3582 crack reduction where no change in original sentencing range

Posted on April 14, 2009
In U.S. v. Webb, No. 08-13405 (April 13, 2009) (Birch, Marcus, Anderson), the Court held that a crack cocaine offender was not eligible for a 2-level sentence reduction pursuant to Guideline Amendment 706 and 18 U.S.C. § 3582(c)(2). The Court also held that defendants are entitled to representation by counsel in § 3582(c)(2) proceedings only at the court?s discretion, and not as a matter of right...

Kimbrough: Strategic decision not ineffective assistance

Posted on April 14, 2009
In Kimbrough v. Secretary, DOC, No. 08-11421 (April 13, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death in 1994.The Court rejected the argument that trial counsel was ineffective for failing to present mental health mitigating evidence at the sentencing phase...

Jimenez: No Confrontation Clause plain error in brother's statement

Posted on April 09, 2009
In U.S. v. Jimenez, No. 08-14192 (April 7, 2009), the Court affirmed marijuana trafficking convictions.The trial court admitted the testimony of a detective, that, before resuming the questioning of Jimenez inside the marijuana grow house where Jimenez was arrested, he went over to the defendant?s brother in the grow house, and the brother said that Jimenez was living with him and helping him with the marijuana plants...

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Irey: Sex Offender 100-month downward Variance Reasonable

Posted on April 09, 2009
In U.S. v. Irey, No. 08-10997 (March 30, 2009), the Court rejected a government appeal of a 240-month sentence imposed on a defendant convicted of using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting the images to the United States...

Seher: Money Laundering mens rea implicit in indictment

Posted on April 06, 2009
In U.S. v. Seher, No. 07-13935 (March 26, 2009), the Court affirmed money laundering convictions but vacated the forfeiture judgment, in a case arising out of the use of jewelry stores in Atlanta to launder cocaine trafficking cash proceeds.The Court rejected the argument that the indictment failed to charge the requisite mens rea for the money laundering offenses...

Williams: Life Sentence Affirmed

Posted on April 06, 2009
In U.S. v. Williams, No. 08-10185 (March 31, 2009), the Court affirmed the district court?s re-imposition of a life sentence.In a prior appeal, the Court had vacated the life sentence because the district court failed to give a reason for imposing a life sentence...

Bornscheuer: Extortion includes fear of economic loss

Posted on April 06, 2009
In U.S. v. Bornscheuer, No. 06-14607 (March 31, 2009), the Court affirmed Hobbs Act convictions arising out of extortion.The Court rejected the argument that the "fear" that underlies an extortion conviction must relate only to fear of physical violence, not, as the jury was instructed to fear "of economic loss as well as fear of physical violence...

McGahee: Batson violation warrants habeas relief

Posted on March 11, 2009
In McGahee v. Alabama Dep?t of Corrections, No. 07-15602 (March 4, 2009), the Court granted a writ of habeas corpus to an Alabama death row inmate, finding that Alabama violated Batson v. Kentucky by using its peremptory strikes in a discriminatory manner at his trial for 1986 murders...

Willis: FEMA fraud sentenced up to maximum disbursement

Posted on March 11, 2009
In U.S. v. Willis, No. 08-10305 (March 3, 2009), the Court affirmed the Guideline loss amount imputed to a defendant convicted of defrauding FEMA by seeking fraudulent post-Hurricane Katrina aid.Under the FEMA program, an applicant Hurricane victim was entitled to $4,358 automatically...

Carmichael: Jury Pool Ok in Middle District of Alabama

Posted on March 10, 2009
In U.S. v. Carmichael, No. 07-11400 (March 5, 2009), the Court rejected the defendant?s challenge to the validity of his Alabama jury venire.The Court recognized that as a result of errors and technical glitches, the Jury Administrator re-summoned more than 15% of previously deferred jurors, a court-imposed limit that was designed to prevent jury venires from being disproportionately white...

Ambert: SORNA is constitutional

Posted on March 10, 2009
In U.S. v. Ambert, No. 08-13139 (March 6, 2009), the Court rejected a defendant?s challenge to his conviction for failing to register under the Sex Offender Registration and Notification Act ("SORNA").The Court rejected Ambert?s argument that his travel in interstate commerce occurred before the Attorney General determined that SORNA?s registration requirements applied on February 28, 2007 to previously convicted sex offenders, and therefore did not subject him to criminal liability for failing to register...

Siegelman: Governor's Bribery Convictions Affirmed

Posted on March 09, 2009
In U.S. v. Siegelman, No. 07-13163 (March 6, 2009), in a lengthy opinion, the Court reversed two bribery-related convictions of the former Governor of Alabama, but otherwise affirmed other convictions.The Court rejected Siegelman?s argument that a jury instruction on bribery, in violation of 18 U...

Shaw: Variance to Statutory Maximum Not Unreasonable

Posted on March 06, 2009
In U.S. v. Shaw, No. 07-14693 (Mar. 3, 2009), the Court affirmed an upward variance from a guideline range of 30-37 months to the statutory maximum of 120 months, for an offender convicted of being a felon in possession of a firearm, in violation of 18 U...

Harrision: Fleeing Police Lights & Siren not "Violent Felony"

Posted on February 20, 2009
In U.S. v. Harrison, No. 08-12636 (Feb. 19, 2009), the Court (Hull, Wilson, Hill, JJ.) held that a violation of subsection 2 of Florida?s willful fleeing statute, Fla. Stat. § 316.1935(2) is not a "violent felony" for purposes of the 15-year mandatory minimum of 18 U...

Guzman: ok to require address in Mexico on supervised release

Posted on February 20, 2009
In U.S. v. Guzman, No. 08-14077 (Feb. 18, 2009), the Court held that the district court did not exceed its authority when it imposed a special condition of supervised release, requiring Guzman to inform the probation officer in writing of his address in Mexico within 72 hours of his deportation from the United States...

Vasquez: No Authority to Vary from Career Offender Guidelines

Posted on February 13, 2009
In U.S. v. Vasquez, No. 08-10671 (Feb. 12, 2009), the Court held that a sentencing court lacks the authority to vary from the Guidelines? career offender provision on the ground of a "disagreement" with this Guideline.The Court first held that the appeal waiver provision of Vasquez? plea agreement did not waive his appeal of his sentence...

Williams: Failure to file anything with Magistrate Judge can be fatal

Posted on February 13, 2009
In Williams v. McNeil, No. 08-11259 (Feb. 10, 2009), the Court affirmed the denial of habeas relief. After the issue of the timeliness of his habeas petition was assigned to a Magistrate Judge, Williams neglected to file any memorandum on this issue with the Magistrate Judge...

Williams: 3582(c)(2) judgment reversed for failure to consider 3553(a) factors

Posted on February 13, 2009
In U.S. v. Williams, No. 08-11361 (Feb. 9, 2009), the Court reversed the denial of an 18 U.S.C. § 3582(c)(2) sentence reduction to a Georgia crack cocaine offender, because the district court at resentencing, in reducing sentence by less than the two-level offense level reduction authorized by the crack cocaine sentence reduction Amendment, failed to address the 18 U...

Tompkins: No Certificate of Appealability for Death-Row Inmate

Posted on February 13, 2009
In Tompkins v. Sec., Dep?t of Corrections, No. 09-10022 (Feb. 9, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for a 25-year old murder.Tompkins argued that his latest § 2254 motion should not be considered "second or successive," and should therefore not require a certificate of appealability, because Panetti v...

Whisenant: No Actual Bias of Judge

Posted on February 10, 2009
In Whisenhant v. Allen, No. 04-15810 (Feb. 3, 2009), the Court affirmed the denial of habeas relief to an Alabama death row inmate convicted of a 1976 murder.The Court rejected the argument that counsel was ineffective for failing to present an insanity defense...

Farias-Gonzalez: Identity Not Suppressible

Posted on February 10, 2009
In U.S. v. Farias-Gonzalez, No. 08-10508 (Feb. 3, 2009), the Court held that "identity-related evidence," i.e., evidence of who the defendant is, obtained after an unconstitutional search and seizure, is not suppressible in a criminal prosecution.The Court assumed arguendo that a Fourth Amendment violation occurred when the defendant was told to lift his shirt, revealing identifying gang marks...

Pace: Failure to Investigate Crack Addiction Not Ineffective

Posted on February 10, 2009
In Pace v. McNeil, No. 07-15528 (Feb. 3, 2008), the Court affirmed the denial of habeas relief to a Florida death-row inmate convicted of a 1988 murder.The Court rejected Pace?s claim of ineffective assistance of counsel. Pace claimed that counsel failed to adequately investigate Pace?s addiction to crack cocaine...

Svete: Brown Overruled; Fraud Aimed at Gullible is Actionable

Posted on February 10, 2009
In U.S. v. Svete, No. 05-13809 (Feb. 2, 2009) (en banc), the Court, reversing U.S. v. Brown, 79 F.3d 1550 (11th Cir. 1996), held that proof of mail fraud does not require proof that a scheme is capable of deceiving a reasonably prudent person. Schemes aimed at the gullible or improvident are also prohibited...

Melvin: No discretion to reduce more than 2 levels for crack offenders

Posted on February 06, 2009
In U.S. v. Melvin, No. 08-13497 (Feb. 3, 2008) the Court held that sentencing courts are not authorized to grant a sentence reduction greater than the two-level reduction provided by the Sentencing Commission for crack cocaine offenders eligible under its Amendment 706...

Dumont: SORNA criminalizes failure to register, not interstate travel

Posted on January 27, 2009
In U.S. v. Dumont, No. 08-11187 (Jan 26, 2009), the Court upheld a conviction for failing to register as a sex offender, as required by 18 U.S.C. § 2250(a) of SORNA.On February 28, 2007, the Attorney General issued a rule stating that SORNA?s registration requirements applied retroactively...

Magwood: AEPDA Bars Claim In 2nd Petition That Could Have Been Raised In First

Posted on January 26, 2009
In Magwood v. Culliver, No. 07-12208 (Jan. 23, 2009), the Court denied habeas relief to an Alabama inmate sentenced to death for a 1979 murder of a Sheriff.Magwood claimed that at his Alabama resentencing, the retroactive application of an Alabama Supreme Court precedent interpreting its death penalty statute violated Due Process...

Bennett: Lifting Mattress Not Unreasonable Search

Posted on January 23, 2009
In U.S. v. Bennett, No. 08-12352 (Jan. 21, 2009), the Court held that no Fourth Amendment violation occurred when police searched under a mattress at a suspect?s mother apartment.The Court noted that, in the circumstances ? e.g., Bennett had delivered a rent check to the landlord ? the police reasonably believed that Bennett resided in his mother?s apartment...

Dodge: SORNA registration not required for emailing obscene materials

Posted on January 21, 2009
In U.S. v. Dodge, No. 08-10802 (Jan. 14, 2009) (2-1, Wilson, J., dissenting), the Court held that SORNA?s sex offender registration requirement did not apply to a defendant convicted of transferring obscene material to a minor, in violation of 18 U.S...

Betancourth: Subject Matter Jurisdiction Can't be Waived by Guilty Plea

Posted on January 14, 2009
In U.S. v. Betancourth, No. 07-14710 (Jan. 13, 2009), the Court held that a defendant cannot waive, by pleading guilty, an objection to the district court?s subject matter jurisdiction under the Maritime Drug Law Enforcement Law, 46 U.S.C. § 70501. However, the Court held that under the facts presented ? certifications from the United States Department of State stating that the government of Ecuador had waived objection to the enforcement of United States law against the apprehended vessels ? jurisdiction existed.

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