Case Law Update: 2011-2014 Cumulative Edition

Holding: The DOC claims that Defendant was only serving the DWI sentence until it was vacated on October 20, 2008, the therefore, can’t get any credit for the unrelated consecutive sentence-offense. However, this position was rejected in Calvin v. Missouri Dept. of Corrections, 277 S.W.3d 282 (Mo. App. W.D. 2009). Calvin held that where one conviction and sentence in a consecutive sentence sequence is later vacated, the other sentences in the sequence should be recalculated as if the vacated sentence never existed. Thus, the consecutive sentence began running on the day Defendant completed his DWI sentence, which was May 7, 2007 (with jail time credit), not on October 20, 2008, when the DWI sentence was actually vacated in the postconviction case. Calvin agreed with the notion that the DOC’s position of saying that a person’s prison time counts toward nothing would deprive them of due process, the right to be free from cruel and unusual punishment and free from double jeopardy.
Pittman v. State, No. WD72020 (Mo. App. W.D. 2/22/11):

Sec. 195.291.2 increases the sentence for drug offense but not its felony classification; wrong classification can be corrected under Rule 84.14 allowing appellate court to give necessary relief.

Facts: Defendant was charged with delivery of drugs as a class B felony with sentence enhanced to a class A range of punishment because of persistent drug offender status. The sentence and judgment stated that Defendant was guilty of a class A felony.

Holding: Sec. 195.291.2 provides that any person convicted of violating Sec. 195.211 “when punishable as a class B felony, shall be sentenced to the authorized term of imprisonment for a class A felony….” However, an enhanced sentence does not reclassify the underlying conviction. It remains a B felony. Therefore, the sentence and judgment classifying this as an A felony is wrong. While Defendant raised this in a 24.035 motion, his counsel withdrew this claim, apparently believing it should be fixed in another way. It could be fixed by a nunc pro tunc motion. Here, however, appellate court corrects the sentence and judgment under Rule 84.14, which allows appellate court to give appropriate relief.
State ex rel. Scroggins v. Kellogg, No. WD73178 (Mo. App. W.D. 2/8/11):

Even though Sec. 559.100.2 allows a court to credit time on probation to a sentence, this can only be done at time sentence is executed when probation is revoked and not later.

Facts: Defendant pleaded guilty in 2002 to certain offenses and was placed on probation. In 2004, Defendant’s probation was revoked and his 14-year sentence executed. In 2010, Defendant filed a motion for credit for 852 days spent on probation, which the trial court granted. The State sought a writ prohibition.

Holding: Sec. 559.100.2 provides that a “circuit court may, in its discretion, credit any period of probation or parole as time served on a sentence.” It is an issue of first impression as to when a court may do this, however. Once judgment and sentence occurs, a trial court has exhausted its jurisdiction and cannot take further action regarding sentence unless a statute or rule authorizes it. Reading 559.100 as a whole, we are left with the firm impression that the section is intended to permit a circuit court to afford credit for time spent on probation only in the limited context of imposing or revoking probation. Thus, the trial court can only do this at the time of execution of sentence as a result of a probation violation. A court cannot do this later. Writ granted.
* Robers v. U.S., 95 Crim. L. Rep. 198, ___ U.S. ___, 134 S.Ct. 1854 (U.S. 5/3/14):

Holding: The restitution owed to loan fraud victims (lenders) under Mandatory Victims Restitution Act must be offset by the amount actually recouped from a sale of returned collateral following foreclosure, not by the property’s fair market value at time victim (lender) received it as collateral when the mortgage was made; thus, Defendant was responsible for restitution for the fall in value of the property between the time the property was originally mortgaged and the much lower price that was later brought at a foreclosure sale after the real estate market fell. The “property” lost by the victim was the money lent.
* Paroline v. U.S., 95 Crim. L. Rep. 129, ___ U.S. ___, 134 S.Ct. 1710 (U.S. 4/23/14):

Holding: Restitution for child pornography victims under 18 USC 2259 for counseling costs and other losses is limited to “an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” Statute does not authorize joint-causation and liability approach which imposed $3.4 million in restitution for all of victim’s losses on a single Defendant who possessed two images of victim from Internet. In the absence of any practical way for defendants to seek contribution, ordering each defendant to pay victim’s full costs would raise questions under Excessive Fines Clause of the 8^th Amendment. Restitution should reflect the consequences of Defendant’s own conduct, not the conduct of thousands of geographically and temporally distant other offenders acting independently and with whom Defendant had no contact.
* Burrage v. U.S., ___ U.S. ___, 94 Crim. L. Rep. 493, 134 S.Ct. 881 (U.S. 1/27/14):

Holding: Statute that imposes greater penalty on drug distribution that results in death, 21 USC 841(b)(1)(C), requires proof that the drug user would not have died but for the use of the distributed drug (reversing 8^th Circuit which had held that the drug need only be a “contributing factor” to the death); here, the decedent had taken multiple other drugs in addition to the drug at issue.
* Dorsey v. U.S., ___ U.S. ___, 2012 WL 234463 (U.S. 2012):

Holding: Fair Sentencing Act, which lowered mandatory minimums for certain crack offenses, applies to defendants whose offenses occurred before FSA’s effective date of August 3, 2010, but who were sentenced after that date.
* Miller v. Alabama, ___ U.S. ___, 2012 WL 236859 (U.S. 2012):

Holding: Mandatory life without parole for juveniles convicted of homicide offenses violates 8^th Amendment.
* Southern Union Co. v. U.S., ___ U.S. ___, 2012 WL 2344465 (U.S. 2012):
Holding: Apprendi, which holds that 6^th Amendment requires a jury to find any fact other than prior convictions which increase maximum punishment, applies to criminal fines.
U.S. v. Kebodeaux, 2013 WL 3155231, ___ U.S. ___ (U.S. 6/24/13):
Holding: (1) Application of SORNA’s registration requirements to Defendant who had been convicted of sex offense while in military was constitutional under the Military Regulation Clause and the Necessary and Proper Clause; and (2) Even though Defendant had completed his sex offense sentence before SORNA was enacted, he was still required to register where he had been required to register under a prior sex offender registration law.
Descamps v. U.S., 2013 WL 3064407, ___ U.S. ___ (U.S. 6/20/13):

Holding: (1) Courts may not apply the modified categorical approach to sentencing under ACCA when the crime of which the defendant was convicted has a single, indivisible set of elements, and (2) Defendant's prior burglary conviction under California law was not for a violent felony within the meaning of ACCA.
* Alleyne v. U.S., 93 Crim. L. Rep. 405, ___ U.S. ___ (U.S. 6/17/13):

Holding: 6^th Amendment right to jury trial requires that a jury, not a judge, find any fact that increases a statutory mandatory minimum sentence (overruling Harris v. U.S., 536 U.S. 545 (2002)); here, mandatory minimum increased from 5 to 7 years if a firearm was “brandished” and from 5 to 10 if “discharged”; the jury, not judge, was required to find these elements (facts).
* Peugh v. U.S., 93 Crim. L. Rep. 353, ___ U.S. ___ (U.S. 6/10/13):

Holding: Sentencing Defendant under new version of USSG that were promulgated after his crime was committed and which increased his punishment violated Ex Post Fatco Clause.
* Setser v. U.S., ___ U.S. ___, 91 Crim. L. Rep. 6 (U.S. 3/28/12):

Holding: District court imposing sentence for federal offense has discretion to make sentence consecutive to an anticipated state sentence that has not yet been imposed.

* Reynolds v. U.S., 132 S.Ct. 975 (2012):

Holding: Defendants convicted of sex crimes before SORNA took effect are not subject to registration unless and until the Attorney General exercises his authority to apply the law retroactively to them.
* Freeman v. U.S., ___ U.S. ___, 2011 WL 2472797 (U.S. 6/23/11):

Holding: Even though a defendant pleads guilty with a particular recommended sentence as a condition of the plea, defendant may still be eligible for a sentence reduction if the U.S. Sentencing Commission later lowers the sentencing range.
* Tapia v. U.S., ___ U.S. ___, 89 Crim. L. Rep. 465 (U.S. 6/16/11):

Holding: The 1987 Sentencing Reform Act prohibits judge from considering the need for rehabilitation in deciding whether and for how long to incarcerate the defendant; here, the district judge had imposed a longer sentence on defendant to make him eligible for certain drug treatment programs run by the Bureau of Prisons; the Act prohibits promoting rehabilitation by prolonging a prison term.
* Sykes v. U.S., ___ U.S. ___, 89 Crim. L. Rep. 409 (U.S. 6/9/11):

Holding: Prior felony conviction for fleeing from police in a car presents such a risk of physical injury to others that it qualifies as a “violent felony” for enhanced sentencing under ACCA, 18 USC 924(e); inquiry into the “purposeful, violent, and aggressive” nature of the offense such as in Begay v. U.S., 553 U.S. 137 (2008) can also determine the nature of a prior conviction in rare cases where analysis into the level of risk is not dispositive.
* DePierre v. U.S., ___ U.S. ___, 89 Crim. L. Rep. 411 (U.S. 6/9/11):

Holding: The term “cocaine base” in federal mandatory-minimum statutes covers any base form of the drug, not just crack cocaine.
* Pepper v. U.S., ___ U.S. ___, 88 Crim. L. Rep. 681, 131 S.Ct. 1229 (U.S. 3/2/11):

Holding: (1) District court resentencing a defendant may rely on the defendant’s rehabilitation efforts after initial sentencing to deviate downward from the recommended USSG range (overruling U.S. v. Sims, 174 F.3d 911 (8^th Cir. 1999)) and finding Sec. 3742(g)(2)(A) inconsistent with Booker); and (2) law-of-the-case doctrine does not restrict extent to which judge at a de novo resentencing may deviate from USSG range.
* McNeill v. U.S., ___ U.S. ___, 89 Crim. L. Rep. 369 (U.S. 6/6/11):

Holding: Whether a prior state conviction qualifies as a “serious drug offense” for purposes of enhanced sentencing under ACCA is determined by the maximum prison term authorized for that offense at the time of conviction, even if the state later lowered the penalty.
* Swarthout v. Cooke, ___ U.S. ___, 88 Crim. L. Rep. 464, 2011 WL 197627 (U.S. 1/24/11):

Holding: Federal habeas relief is not available for an error of state law; thus, federal court cannot grant habeas relief on grounds that state court violated state law in denying parole.
U.S. v. Fish, 94 Crim. L. Rep. 708, 2014 WL 715785 (1^st Cir. 2/26/14):

Holding: State conviction for an offense that typically involves only intentional conduct but that has been applied to reckless conduct is not a “crime of violence.”
U.S. v. Pena, 94 Crim. L. Rep. 558, 2014 WL 448439 (1^st Cir. 2/5/14):

Holding: Where Defendant pleaded guilty but was unconstitutionally sentenced to a mandatory minimum sentenced based on a judge-found fact (Alleyne error), the Gov’t does not get to have a sentencing jury trial to correct the error; rather, the remedy is to re-sentence without consideration of the judge-found factor.
5/13 U.S. v. Zavala-Marti, 2013 WL 1943825 (1^st Cir. 2013):

Holding: Sentencing court committed plain error in imposing a general life sentence in prosecution for drug conspiracy, where Gov’t had not sought life sentence at outset of case even though it could have done so, and the grand jury chose the drug-quantity and, thus, the statutory sentencing limits.
5/13 U.S. v. Candelaria-Silva, 2013 WL 1943818 (1^st Cir. 2013):

Holding: Sentencing court clearly erred in attributing drug quantity found in ledgers of drug conspirators to Defendant, where the conspiracy was an immense operation, and there was no evidence linking Defendant to the location where the ledgers were seized.
U.S. v. Marquez, 2012 WL 5393494 (1^st Cir. 2012):

Holding: Even though Defendant claimed in a recording that he had sold 152 grams of crack on more than one occasion, where there was no corroboration of this and Defendant was inclined to exaggerate his exploits to customers, this could not be considered when sentencing Defendant.
U.S. Farrell, 2012 WL 516069 (1^st Cir. 2012):

Holding: Defendant’s breaking-and-entering conviction was not a violent felony within the meaning of the Armed Career Criminal Act (ACCA).
U.S. v. Molignaro, 2011 WL 2628330 (1^st Cir. 2011):

Holding: Court cannot extend defendant’s sentence following revocation of supervised release to promote rehabilitation.
U.S. v. McGhee, 2011 WL 2465452 (1^st Cir. 2011):

Holding: Mass. youthful offender adjudication for armed robbery is not a predicate crime under USSG for career offenders.
U.S. v. Davila-Felix, 2011 WL 6155721 (1^st Cir. 2011):

Holding: Predicate conviction under the “three strikes” statute must occur before commission of the “third strike” offense.
U.S. v. Rodriguez, 88 Crim. L. Rep. 466 (1^st Cir. 12/28/11):
Holding: Judge’s use of post-offense USSG amendment that increased the recommended range was plain error.
U.S. v. Torres-Rosario, 90 Crim. L. Rep. 70 (1^st Cir. 9/23/11):

Holding: Interests of justice allow Defendant to appeal ACCA sentence, even though he expressly waived ACCA challenges at sentencing.
U.S. v. Douglas, 89 Crim. L. Rep. 370 (1^st Cir. 5/31/11):

Holding: Changes Congress made to sentences for crack apply to all defendants sentenced after November 1, 2010, even if their offenses were committed before then.
U.S. v. Anonymous Defendant, 88 Crim. L. Rep. 404 (1^st Cir. 12/22/10):

Holding: After U.S. v. Booker, 543 U.S. 220 (2005), appellate court must review sentences for “reasonableness.”
U.S. v. Baldwin, 94 Crim. L. Rep. 671 (2d Cir. 2/21/14):
Holding: Defendant who used file sharing program to view child pornography was not eligible for enhancement for those who distribute child pornography under USSG unless Gov’t proved he was aware the files were accessible to others.
U.S. v. Christie, 94 Crim. L. Rep. 281 (2d Cir. 11/15/13):

Holding: Defendant who was eligible for sentencing modification under USSG was entitled to fuller explanation of a denial than court merely checking a “denied” box on a form.
U.S. v. McLaurin, 94 Crim. L. Rep. 93 (2d Cir. 10/3/13):

Holding: Court abused its discretion by requiring Defendant convicted of failing to register as a sex offender to take penile plethysmography testing as a condition of supervised release; such testing bears insufficient relation to correctional or medical treatment, the protection of the public or deterrence of crime.



U.S. v. Lundquist, 93 Crim. L. Rep. 773, 2013 WL 4779644 (2d Cir. 9/9/13):

Holding: Court erred in child pornography case in deciding restitution in failing to apportion some of the victim’s losses to the relative who originally abused her and created the photos of abuse.
U.S. v. Wernick, 2012 WL 3194244 (2d Cir. 2012):
Holding: Sentencing court plainly erred in using Defendant’s acts against children proved only at sentencing, not trial, as “relevant conduct” in calculating offense level.

U.S. v. Lacey, 2012 WL 5416466 (2d Cir. 2012):

Holding: USSG enhancement for offense “committed through mass-marketing” only applies when the targets of the mass-marketing are also victims of the scheme.
U.S. v. Zangari, 2012 WL 1323189 (2d Cir. 2012):

Holding: In calculating restitution, the defendant’s actual gain from a kickback scheme could not be used a proxy for the victims’ actual losses.
U.S. v. Gilliard, 90 Crim. L. Rep. 669 (2d Cir. 2/17/12):

Holding: The U.S. Supreme Court’s decision in Tapia v. United States, 89 Crim. L. Rep. 465 (U.S. 2011), does not preclude a sentencing judge from considering a defendant’s need for rehabilitative treatment so long as that factor does not increase the length of the defendant’s sentence.
U.S. v. Rivera, 2011 WL 5022734 (2d Cir. 2011):

Holding: Defendant was eligible for a sentencing reduction pursuant to a retroactive amendment reducing the Sentencing Guidelines for his offense.
U.S. v. Archer, 2011 WL 4360013 (2d Cir. 2011):

Holding: Absent compelling extenuating circumstances, the government may not enter new evidence on remand where it knew of its obligation to present the evidence and did not do so.
U.S. v. Spencer, 2011 WL 1900930 (2d Cir. 2011):

Holding: Defendant did not violate probation condition that he notify probation office of a change in employment “10 days prior to” the change, where Defendant did not know 10 days in advance that he was to be terminated from his job.
U.S. v. Cossey, 2011 WL 257441 (2d Cir. 2011):

Holding: Trial court plainly erred in increasing sentence for child pornography possession based on unsupported belief that an undiscovered “gene” made Defendant incapable of controlling his behavior.
U.S. v. Espinal, 2011 WL 768021 (2d Cir. 2011):

Holding: Failure to follow specific procedure to be followed before an enhanced sentence is imposed based on prior felony was error.
U.S. v. Potes-Castillo, 2011 WL 855794 (2d Cir. 2011):

Holding: Prior DWI conviction is not categorically included in criminal history score.
U.S. v. Gonzalez, 2011 WL 2937901 (2d Cir. 2011):

Holding: Using donor lists from sham non-profit organization to calculate restitution was improper where court failed to determine if donors received anything of value form the organization in exchange for the donations.
U.S. v. Aumais, 89 Crim. L. Rep. 855 (2d Cir. 9/8/11):

Holding: Restitution statute for child pornography, 18 USC 2259, requires the Gov’t prove that Defendant proximately caused the harm suffered by the child in the illegal image.
U.S. v. Lee, 89 Crim. L. Rep. 749 (2d Cir. 7/26/11):

Holding: Prosecutor cannot refuse to move for acceptance-of-responsibility reduction just because defense counsel objected to the presentence investigation report, which required the prosecutor to prepare for the sentencing hearing.
U.S. v. Spencer, 89 Crim. L. Rep. 314 (2d Cir. 5/20/11):

Holding: Defendant on supervised release who was unexpectedly fired from his job did not violate condition of release requiring him to provide notice “at least 10 days prior” to change in employment.
U.S. v. Turk, 2010 WL 4840135 (2d Cir. 2010):

Holding: Amount of loss caused by mortgage fraud is the unpaid principal of loans made by victims after they were misled.



U.S. v. Jones, 94 Crim. L. Rep. 473 (3d Cir. 1/10/14):
Holding: Enhancement for assaulting law enforcement officer during flight, USSG 3A1.2(c)(1), does not apply where Officer did not see that Defendant had a gun until after Defendant was apprehended.
In re Pendleton, 2013 WL 5486170 (3d Cir. 2013):

Holding: Juvenile Petitioners made a prima facie showing that new constitutional rule banning juvenile LWOP was retroactive, so as to permit filing of second habeas petition.
U.S. v. Savani, 93 Crim. L. Rep. 146, 2013 WL 1876752 (3d Cir. 4/24/13):

Holding: Defendants who originally received downward departures from mandatory minimum sentences are eligible for further reductions under retroactive amendments to USSG.
U.S. v. Reynolds, 92 Crim. L. Rep. 758, 2013 WL 979058 (3d Cir. 3/14/13):

Holding: The Attorney General’s interim rule specifying that the requirements of SORNA apply to all pre-Act offenders is invalid because the rule did not comply with the notice and comment period of the Administrative Procedure Act; this case was the remand from Reynolds v. U.S., 123 Sup. Ct. 975 (2012), which held that for people convicted of sex crimes before SORNA’s effective date, the Acts’ registration requirements are inapplicable until the Attorney General validly specifies that they apply to such offenders; the circuits are split on whether the Attorney General’s interim rule is valid.
U.S. v. Begin, 92 Crim. L. Rep. 87 (3d Cir. 10/9/12):

Holding: District court was required to address Defendant’s disparity argument for a downward departure based on disparity between a federal sentence for using the internet to attempt to persuade a minor to have sex versus having actually committed statutory rape within the borders of a federal enclave.
Garrus v. Secretary of Penn. Dept. of Corrections, 2012 WL 4215922 (3d Cir. 2012):

Holding: State court unreasonably applied Apprendi where it allowed Defendant’s sentence to be enhanced based upon a judicial finding that he previously burglarized an occupied building but he had actually been convicted of burglarizing an unoccupied building.
U.S. v. Diallo, 92 Crim. L. Rep. 467 (3d Cir. 1/15/13):

Holding: In applying USSG “intended loss” in credit card scam, court should not assume that Defendant intended to max out each stolen credit card.
U.S. v. Isaac, 2011 WL 3672479 (3d Cir. 2011):