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Criminal Law

Third Circuit Blog

Commentary and summaries of cases before the Philadelphia-based 3rd U.S. Circuit Court of Appeals.
By Candace Hom, Melinda Ghilardi, Nancy Rimmer, Sarah Gannett, Renee Pietropaolo and Tieffa Harper

Post Frequency: 0.6/day

Last Entry: June 28, 2019 at 11:33:00

Plain error when district court, after granting downward departure, imposes sentence higher than bottom of pre-departure Guidelines range.

Posted on October 05, 2009
Representing criminal defendants in sentencing, "you can't always get what you want, but if you try sometimes [and sometimes even if you don?t try in the district court], you might find you get what you need". In United States v. Vazquez-Lebron, No. 08-3222 (filed October 2, 2009), the Third Circuit held that a defendant was entitled to re-sentencing when the District Court imposed a sentence that failed to provide defendant the benefit of a 5K1...

In an Clean Air Act Case, the Judgments of Conviction and Sentence Are Affirmed

Posted on September 29, 2009
In United States v. Starnes/United States v. George, Nos. 07-3341/08-1691, September 24, 2009, the Court of Appeals affirmed the conviction and sentences of two defendants whose appeals were not formally consolidated but arose from the same set of facts...

A Civil Contempt Order, Which Confined the Defendant for 5 Years, Was Not a De Facto Criminal Contempt Order

Posted on September 28, 2009
In United States v. Harris, No. 08-1553, September 23, 2009, the Court of Appeals affirmed the denial of Harris? motion to vacate an order of civil contempt.Harris and several co-conspirators were indicted on conspiracy and fraud counts arising from the production and distribution of fraudulent financial documents...

Rehearing Granted in Case Where Court Previously Held That Prior Conviction for Resisting Arrest Qualified as a Crime of Violence.

Posted on September 28, 2009
On September 25th, in United States v. Stinson, No. 08-1717, July 28, 2009, the Court of Appeals granted rehearing in a case where it previously held that a prior conviction for resisting arrest was a crime of violence under U.S.S.G. § 4B1.1(a). Argument is scheduled for October 8, 2009.

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Under A.E.D.P.A., No 6th Amendment Violation Where Neither Pro Se Defendant Nor Standby Counsel Were Present for Trial.

Posted on September 28, 2009
In Thomas v. Carroll, No. 06-2282, September 22, 2009, the Court of Appeals affirmed the District Court?s denial of Thomas? § 2254 petition.While already serving a lengthy prison sentence Thomas assaulted a corrections officer and was subsequently charged in state court...

Brady Violations Compel New Trial in Capital Murder Case

Posted on September 24, 2009
In Simmons v. Beard, No. 05-9001 (3rd Cir. Sept. 11, 2009), a habeas proceeding arising from a capital murder conviction, the Third Circuit affirmed the district court?s grant of a new trial on the ground that the state prosecutors withheld several pieces of material exculpatory evidence in violation of Brady where the cumulative effect of the multiple Brady violations was to undermine confidence in the verdict.

Writ of Audita Querela Under the All Writs Act Cannot Trump 28 U.S.C. 2255

Posted on September 23, 2009
The Third Circuit recently ruled that a federal prisoner may not seek relief via a petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651, as long as his claim is cognizable under 28 U.S.C. § 2255. United States v. Massey, No...

Sentencing courts have discretion to consider fast-track disparity as a basis for a downward variance

Posted on September 15, 2009
Joining the First Circuit and adding to the circuit split on this issue, the Third Circuit has held that, under the logic of Kimbrough v. United States, 552 U.S. 85 (2007), "it is within a sentencing judge's discretion to consider a variance from the Guidelines on the basis of a fast-track disparity...

Habeas Relief Granted in Decision Construing Pennsylvania Law of Conspiracy

Posted on August 31, 2009
In Robertson v. Klem, No. 07-2581 (Aug. 28, 2009), the Court considers a state prosecution resulting in consecutive sentences of five to ten years? imprisonment for each of two alleged conspiracies to commit murder. The Court grants habeas relief on the ground that the evidence was insufficient under Pennsylvania law to support conviction of more than one conspiracy...

"Departure" or "Variance," that is the Question

Posted on August 28, 2009
District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown, No. 08-1221, vacating a child pornography sentence when the record left ambiguous whether the district court had "departed" upward pursuant to a Guidelines application note or "varied" upward on the basis of its own statutory sentencing discretion...

Felon?s Possession of Gun With Ammo Supports Conviction on One Count Only

Posted on August 28, 2009
Holding that possession of a firearm with ammunition is a "single unit of prosecution" under the felon-in-possession statute, 18 U.S.C. § 922(g), the Court in United States v. Tann, No. 08-2378, notices plain error in a judgment imposing a concurrent prison term and $100 special assessment on each of two counts charged against a Delaware man convicted of possessing (1) a handgun and (2) twenty-five rounds of ammunition...

Probation Sentence in Child Porn Case Falls as Procedurally and Substantively Unreasonable

Posted on August 28, 2009
Earlier this year, the en banc Circuit directed in United States v. Tomko (Blog post here) that "if the district court?s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided...

PA Escape (M2) is not a Crime of Violence

Posted on August 21, 2009
In US v. George Hopkins, No. 06-5091 (3d Cir. Aug. 21, 2009), the 3rd Circuit ruled that escape as a second degree misdemeanor in Pennsylvania does not count as a "crime of violence" for purposes of the Career Offender enhancement in the Guidelines, USSG 4B1...

Materiality and filing of false claims with IRS

Posted on August 19, 2009
In United States v. Saybolt, Nos. 07-4392 & 4429 (Aug.18, 2009), the 3rd Circuit held (1) that filing false claims with the IRS, in violation of 18 USC sect 287, does not require proof that the false claims or statements were "material." But the Court also held (2) that conspiracy to defraud the US by filing false claims with the IRS, in violation of 18 USC sect 286, does require proof of materiality in that the government must prove that the conspirators "agreed that those false statements or representations would have a material effect on the Government's decision to pay a false, fictitious, or fraudulent claim...

Post-Begay, Possession of a Weapon In Prison Is Not Considered a ?Crime of Violence? Under the Career Offender Guidelines

Posted on August 18, 2009
In United States v. Polk, No. 08-4399 (August 12, 2009), Terrell Polk appealed his sentence of 37 months? imprisonment for possession of a "shank" in prison. While an inmate at USP Lewisburg, a correctional officer performed a search of Polk's cell and discovered a "six-inch plastic homemade shank in an envelope containing his personal papers...

Child Porn: Circuit upholds use of relevant conduct and conditions of release

Posted on August 14, 2009
In United States v. Thielemann, No. 08-2335, the defendant was indicted and pleaded guilty to one count of receiving child pornography. He was sentenced to the statutory maximum of 240 months of imprisonment. He appealed the district court?s consideration of non-charged relevant conduct in calculating his offense level and two special conditions of supervised release restricting computer use and viewing of sexually explicit material...

Booker Does Not Apply to the Size of a Sentence Reduction that May be Granted Under 18 U.S.C. § 3582(c)(2)

Posted on July 28, 2009
In United States v. Dillon, No. 08-3397 (June 10, 2009), the defendant challenged the size of reduction available under a § 3582(c)(2) re-sentencing in light of Booker. The defendant was convicted in 1993 of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, using a firearm during a drug trafficking crime and possession with intent to distribute more than 500 grams of cocaine...

18 U.S.C. § 2242(b) May be Violated Without Direct Communication with Child or Individual Defendant Believes is a Child

Posted on July 28, 2009
In United States v. Nestor, No. 08-2535 (July 23, 2009), the defendant challenged his conviction for attempted enticement under 18 U.S.C. § 2242(b). The defendant communicated with undercover law enforcement officers via email and telephone to arrange a sexual encounter with whom he thought were a father and his minor stepson...

Mistrial Warranted Where Jury Receives Inculpatory Document Never Provided to Defense Counsel.

Posted on July 27, 2009
United States v. Jelani Lee, Nos. 07-0406, 07-4643 (July 17, 2009). Jelani Lee was charged with possession with intent to distribute crack cocaine. Police stopped the car he was driving and found cocaine in a passenger?s "undergarments." The passenger said that the drugs belonged to Lee...

In Habeas Appeal, Third Circuit Addresses Standard of Review and Other Legal Issues

Posted on July 09, 2009
The Third Circuit addressed several legal issues in the context of a habeas appeal in Thomas v. Horn et al, Nos. 05-9006 & 9008 (3d Cir. July1, 2009).The petitioner, Brian Thomas, was convicted in the Philadelphia Court of Common Pleas in 1986, of murder in the first degree, rape, and other crimes, and the jury sentenced him to death...

Citing Hodari D., the Third Circuit reverses District Court?s order suppressing evidence.

Posted on June 26, 2009
In United States v. Waterman, No. 08-2543, June 24, 2009, the Court of Appeals reversed the District Court?s suppression of evidence and remanded for further proceedings.The facts of the case are as follows: Police officers responded to a dispatcher?s report of an anonymous caller?s observation of a "subject" with a gun at a specific location...

Court affirms denial of sentence reduction for eligible crack defendant

Posted on June 22, 2009
Continuing its long string of affirmances in crack resentencing cases, the Third Circuit affirmed the denial of sentence reduction for an eligible defendant in United States v. Styer, 08-2951 (3d Cir. March 25, 2009) (published June 16, 2009). Although the defendant was eligible for a reduction under 18 U...

Supreme Court upholds Third Circuit's classification of mail fraud offense as an "aggravated felony"

Posted on June 16, 2009
Petitioner, an alien, was convicted of conspiracy to commit mail fraud, wire fraud, bank fraud and money laundering. No jury finding was made regarding the amount of loss for those offenses because the amount of loss was not an element of the offense for any count of conviction...

Court Finds Nothing to Fault in Gang Member's Conviction and Sentence

Posted on May 26, 2009
United States v. Jones, No. 07-2798 (May 20, 2009).The Third Circuit gives broad reign to a district court?s exercise of discretion across a range of jury selection, evidentiary, and sentencing issues in this appeal from a conviction under the Violent Crimes in Aid of Racketeering (?VICAR?) statute...

Reversing course, Third Circuit defers decision on whether Section 666 bribery requires proof of a quid-pro-quo

Posted on May 05, 2009
Prompted by a rehearing petition supported by amicus National Association of Criminal Defense Lawyers, the Third Circuit today amended its opinion in United States v. Bornman, No. 07-3447 (3d Cir. Mar. 6, 2009)--blogged here--to delete what had been a brief statement that the federal bribery statute (18 U...

Has the Third Circuit Ended Crack Litigation?

Posted on May 01, 2009
The decision in United States v. Doe, http://www.ca3.uscourts.gov/opinarch/083968p.pdf, holds that if the starting point for the sentence is not lowered by the retroactive crack amendment, a defendant is ineligible for relief under 18 U.S.C. section 3582(c)(2)...

District Court Has Authority to Categorically Reject Sentencing Guidelines' Cocaine Powder-to-Crack Ratio; United States v. Ricks Overruled

Posted on April 28, 2009
In United States v. Russell, No. 07-4731 (3d Cir. April 23, 2009), the defendant challenged his sentence for possession with intent to distribute more than 5 grams of crack cocaine. The district court imposed a sentence of 87 months, the bottom of a guideline range of 87 to 108 months, which resulted from a total offense level of 27 and a criminal history category of III...

Supreme Court Limits Belton Searches

Posted on April 21, 2009
The Supreme Court issued an opinion today in Arizona v. Gant, 2009 WL 1045962 (April 21, 2009), holding that police may search a passenger compartment of a vehicle incident to a recent occupant's arrest only with reasonable belief that arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense of arrest...

Substantive Reasonableness Review Survives: Panel Reverses Below-Guidelines 6-Year Sentence in Child Porn Case as Greater than Necessary

Posted on April 20, 2009
Congratulations to Andrea Bergman and others at the FPD for the District of New Jersey! In United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3d Cir. Apr. 16, 2009), a panel of the Third Circuit reversed a six-year sentence for a child porn offender as procedurally and substantively unreasonable, remanding for imposition of a LOWER sentence...

Closely Divided En Banc Court Affirms ?Gilded Cage? Sentence: Gall requires great deference to district court sentencing decisions

Posted on April 20, 2009
In United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc), the en banc Court (8-5) issued an important post-Gall opinion, reaffirming the principle that "[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court...

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