Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though Defendant was eligible for only a one-month reduction in sentence under the Fair Sentencing Act, the sentence should be reduced.
U.S. v. Preston, 2013 WL 431951 (9^th Cir. 2013):

Holding: Court did not follow necessary procedure in imposing release condition that Defendant could not be in company of any child, including his own children, even though he currently did not have any children.
U.S. v. Wolf Child, 2012 WL 5200347 (9^th Cir. 2012):

Holding: Supervised release condition that prohibited Defendant from having contact with his own children or from dating his fiancée was unreasonable.
U.S. v. Catalan, 2012 WL 5825058 (9^th Cir. 2012):

Holding: USSG guideline increasing base offense by 16 levels for unlawful reentry did not apply where Defendant was deported before being sentenced to a 360-day prison term upon revocation of his probation.
U.S. v. Nielsen, 2012 WL 3983770 (9^th Cir. 2012):

Holding: (1) Prior adjudication as juvenile for sexual assault did not qualify as prior conviction for enhancement of sentence for adult sex offense; and (2) court used incorrect legal standard in applying enhancement for vulnerable victim by comparing the victim to minors in the general population rather than to the typical victim of such offense.
U.S. v. Turner, 2012 WL 3185954 (9^th Cir. 2012):

Holding: Rule of lenity required a finding that supervised release was not tolled during the time between expiration of a sentence and a decision regarding civil commitment under the Adam Walsh Act.
U.S. v. Suarez, 2012 WL 2362526 (9^th Cir. 2012):

Holding: Prior guilty plea which resulted in a deferred judgment under Calif. deferred judgment scheme was not a “final” prior drug conviction which would trigger a mandatory minimum 20 year sentence.
U.S. v. Wing, 2012 WL 2354447 (9^th Cir. 2012):

Holding: Court could not revoke a second period of supervised release based on violations of a previously revoked term of supervised release.
U.S. v. Harris, 2012 WL 1889782 (9^th Cir. 2012):

Holding: Visiting Judge should not have sentenced Defendant where there was no showing that the original trial judge was unable to perform his sentencing duties, and the Visiting Judge was not familiar with the trial transcript.
U.S. v. Manzo, 91 Crim. L. Rep. 104 (9^th Cir. 4/5/12):

Holding: Gov’t breached plea agreement where it agreed to recommend a particular sentence under USSG, but then withdrew that after the court said the Gov’t mistakenly calculated the applicable ranges.
U.S. v. Onyesoh, 2012 WL 1109992 (9^th Cir. 2012):

Holding: Usability of expired credit card number had to be proved by preponderance of the evidence when the defendant did not concede that fact or when the defendant
U.S. v. Major, 2012 WL 1001188 (9^th Cir. 2012):

Holding: The rule of lenity required the court to deem one co-defendants’ brandishing firearm counts, rather than a discharging count, to be the first conviction when imposing mandatory minimum sentences for multiple crimes of violence.

U.S. v. Rodriguez-Ocampo, 2011 WL 6880654 (9^th Cir. 2011):

Holding: Sentencing increase based on defendant’s previous removal after a conviction for a violent felony required that the removal be pursuant to a constitutionally valid order of removal.
U.S. v. Munoz-Camarena, 2011 WL 257966 (9^th Cir. 2011):

Holding: Trial court erred in applying 8-level enhancement, rather than 4-level, after Defendant was convicted of attempted illegal re-entry after deportation due to three prior Calif. convictions and three for illegal re-entry, even if court would have applied the same sentence regardless of which enhancement applied; court was required to correctly calculate the USSG sentence and use that as a starting point for sentencing.
U.S. v. Tsosie, 2011 WL 1758785 (9^th Cir. 2011):

Holding: Where plea agreement to sex offense did not set forth any specific amount of restitution or an estimate as to amount, Defendant could challenge the restitution order on appeal even though he waived his appellate rights; he lacked sufficient notice of restitution to have a valid waiver.
1U.S. v. Grant, 2011 WL 6016182 (9^th Cir. 2011):

Holding: District court improperly considered rehabilitation in selecting prison term following revocation of supervised release, where the court concluded that prison would permit defendant to receive the substance abuse treatment he needed, but did not obtain outside prison.
U.S. v. Leal-Felix, 2011 WL 5966202 (9^th Cir. 2011):

Holding: Defendant’s citations for driving with a suspended license could not be considered “arrests” in calculating his criminal history.
U.S. v. Rudd, 2011 WL 5865897 (9^th Cir. 2011):

Holding: Court erred in not explaining the imposition of a residency restriction that was not in the plea agreement.
U.S. v. Tadio, 2011 WL 5839660 (9^th Cir. 2011):

Holding: District court may weigh statutory nonassistance factors against assistance factors in determining how much of a sentence reduction to give.
U.S. v. McEnry, 2011 WL 4840445 (9^th Cir. 2011):

Holding: Application of a catchall provision to select an appropriate sentencing guideline for offenses not listed in the Statutory Index is in the first instance a statutory question determined by the elements of the offense.
Reina-Rodriguez v. U.S., 2011 WL 2465462 (9^th Cir. 2011):

Holding: State burglary conviction was not a “crime of violence.”

Reina-Rodriguez v. U.S., 2011 WL 4031205 (9^th Cir. 2011):

Holding: New rule limiting definition of burglary for purposes of sentencing enhancement for crimes of violence is retroactive.
Estrella v. Ollison, 90 Crim. L. Rep. 511 (9^th Cir. 12/29/11):

Holding: A convicted defendant’s parole status is not a “prior conviction” under Apprendi v. New Jersey, 530 U.S. 466 (2000).
U.S. v. Grant, 90 Crim. L. Rep. 352 (9th Cir. 12/5/11):

Holding: District judge may not take into account Defendant's rehabilitation needs when imposing prison term following revocation of supervised release.
U.S. v. Hunt, 89 Crim. L. Rep. 830 (9^th Cir. 9/1/11):

Holding: Where the guilty plea did not admit what type of drug was involved, Defendant could only be sentenced to the maximum penalty for an unspecified drug.
U.S. v. Espinoza-Baza, 89 Crim. L. Rep. 750 (9^th Cir. 8/4/11):

Holding: Defendant’s two convictions of being an alien in U.S. after having been deported for committing an aggravated felony should not be grouped for sentencing purposes under the USSG.
U.S. v. Yepez, 89 Crim. L. Rep. 684, 2011 WL 2988774 (9^th Cir. 7/25/11):

Holding: Federal defendants can be eligible for “safety valve” sentence by persuading state courts to retroactively modify state sentences that would otherwise make them ineligible.
U.S. v. Henderson, 89 Crim. L. Rep. 215, 2011 WL 1613411 (9^th Cir. 4/29/11):

Holding: Judges may vary from the USSG on child pornography offenses on the basis of policy disagreement with those Guidelines and hence, may sentence below the Guidelines range.
Miller v. Oregon Bd. of Parole and Post-Prison Supervision, 89 Crim. L. Rep. 167 (9^th Cir. 4/25/11):

Holding: Statute that allows early parole hearing if certain conditions are met creates a presumption in favor of early hearing unless certain findings are made, and thus, creates a protected liberty interest.
U.S. v. Burgum, 88 Crim. L. Rep. 550, 2011 WL 208363 (9^th Cir. 1/25/11):

Holding: Inability to pay restitution cannot be considered an “aggravating factor.”
U.S. v. Valverde, 2010 WL 5263142 (9^th Cir. 2010):

Holding: Attorney General could not waive notice and comment under Administrative Procedure Act in making SORNA registration retroactive.
U.S. v. Rivera-Gomez, 88 Crim. L. Rep. 353 (9^th Cir. 12/6/10):
Holding: Under USSG, a prior state conviction for resisting arrest that led to the federal conviction should be included in the offense level, not the criminal history score.
U.S. v. Lightfoot, 88 Crim. L. Rep. 294 (9^th Cir. 11/30/10):

Holding: Defendant’s bargained-for waiver of appeal or postconviction rights does not preclude a motion to modify sentence under 18 USC 3582(c)(2) to reflect subsequent USSG revisions.
U.S. v. Johnson, 88 Crim. L. Rep. 295 (9^th Cir. 11/29/10):

Holding: Supervised release provision that prohibited Defendant from “associating with persons associated” with a gang was unconstitutionally vague; while court could prohibit association with gang members, prohibiting association with persons who associate with gang members was too vague.
U.S. v. Luna-Acosta, 2013 WL 1848761 (10^th Cir. 2013):

Holding: Even though judge orally announced sentence at a first sentencing hearing, this was not final for purposes of appeal where judge also scheduled a later second sentencing hearing to “finalize” issues regarding the sentence, including allocution and supervised release issues.
U.S. v. Battle, 2013 WL 500643 (10^th Cir. 2013):

Holding: Supplemental drug quantity calculations made by court at re-sentencing under retroactive USSG amendments were not supported by facts found at Defendant’s original sentencing.
U.S. v. Boyd, 2013 WL 3491638 (10^th Cir. 2013):

Holding: In resentencing Defendant based on retroactive application of crack USSG, court was required to use Defendant’s applicable offense level and criminal history category, as determined without a departure granted at the original sentencing based on inadequacy of the criminal history category.
Dodd v. Trammell, 93 Crim. L. Rep. 776, 2013 WL 5124331 (10^th Cir. 9/16/13):

Holding: Habeas relief granted where victim impact statement in death penalty case contained recommendation for death; prohibition on victim’s sentencing recommendation in death penalty case in Booth v. Maryland, 482 U.S. 496 (1987) remains good law despite Payne.
U.S. v. Duran, 2012 WL 4947031 (10^th Cir. 2012):

Holding: Texas conviction for aggravated assault was not a “crime of violence” because has mental state of only recklessness.
U.S. v. Mendiola, 2012 WL 4841278 (10^th Cir. 2012):

Holding: Sentencing court could not sentence Defendant to a prison sentence that included drug rehabilitation in excess of recommended USSG sentence because this violated Tapia.
U.S. v. Butler, 2012 WL 4017378 (10^th Cir. 2012):

Holding: For sentencing purposes, the market value of poached deer is the “fair market retail price” of the deer, and does not also include the costs of the expedition to hunt the deer.
U.S. v. Huizar, 2012 WL 3055930 (10^th Cir. 2012):

Holding: Defendant’s Calif. conviction for residential burglary was not a “crime of violence” because Calif. burglary statute allows for consensual entry in some circumstances.
U.S. v. Kieffer, 2012 WL 2087190 (10^th Cir. 2012):

Holding: Court’s error in calculating advisory guidelines sentencing range was not harmless where the range failed to account for concurrent sentencing provisions of USSG, and court did not indicate it would have given same sentence upon proper application of USSG.
U.S. v. Anderson, 2012 WL 1825183 (10^th Cir. 2012):

Holding: An unsubstantiated letter that Defendant received an overpayment of Social Security disability benefits was not sufficient to support restitution.
U.S. v. Mendoza-Lopez, 90 Crim. L. Rep. 815 (10^th Cir. 2/24/12):

Holding: A district court plainly erred when it told a defendant at sentencing that he could allocate only on a sentence within the presumptive range prescribed by the USSG.
U.S. v. Rosales-Garcia, 90 Crim. L. Rep. 641 (10^th Cir. 2/7/12):

Holding: Courts calculating the seriousness of an alien’s prior drug-trafficking offense for purposes of a stiff USSG enhancement for those convicted of re-entering the country illegally must look to the original sentence imposed before the defendant was deported and not to any sentence increases based on the defendant’s probation revocation following the re-entry.
Doe v. Albuquerque, 90 Crim. L. Rep. 550 (10^th Cir. 1/20/12):

Holding: Ban on sex offenders entering libraries violates First Amendment (but Court indicates statute could likely be rewritten to constitutionally create same result).
U.S. v. Mike, 2011 WL 538867 (10^th Cir. 2011):

Holding: Condition of supervised release requiring sex offender to notify potential employers and schools of his criminal convictions required a finding that the occupational restriction was the minimum necessary.
U.S. v. West, 2011 WL 1844112 (10^th Cir. 2011):

Holding: Even though Defendant resisted arrest and damaged property as a result, the underlying offense of possession of a firearm was not the proximate cause of the damage so as to require restitution under MVRA.
U.S. v. Lopez-Macias, 90 Crim. L. Rep. 235 (10^th Cir. 11/7/11):

Holding: Federal judge without a “fast-track” program for immigration offenses can vary downward from USSG to address disparity from “fast track” jurisdictions.
U.S. v. Hoskins, 89 Crim. L. Rep. 742 (10^th Cir. 8/12/11):

Holding: USSG do not prohibit judge from giving tax-evader Defendant credit for unclaimed tax deductions against income they failed to report.
U.S. v. Manatau, 89 Crim. L. Rep. 718 (10^th Cir. 8/1/11):

Holding: “Intended loss” from economic crime means the loss Defendant purposely sought to inflict, not the loss Defendant merely knew would result or loss he might possibly have contemplated.
U.S. v. Vigil, 89 Crim. L. Rep. 254, 2011 WL 1798020 (10^th Cir. 5/12/11):

Holding: USSG allowing enhancement for being a professional fence requires proof that Defendant not only received but also sold stolen property.
U.S. v. Howard, 94 Crim. L. Rep. 672 (11^th Cir. 2/19/14):

Holding: Third-degree burglary under Alabama law is not a “violent felony” under ACCA.
U.S. v. Bane, 2013 WL 3242669 (11^th Cir. 2013):

Holding: Amounts that Medicare and others paid for medically necessary oxygen that the Defendant’s company actually provided could not be included in restitution amount for conspiracy to commit health care fraud.
State v. Whatley, 2013 WL 2382278 (11^th Cir. 2013):

Holding: Even though Defendant ordered bank employees to move around in the bank while he robbed it, the sentencing enhancement for abduction did not apply because Defendant never forced any employees to leave the bank.

U.S. v. Hinds, 2013 WL 1406005 (11^th Cir. 2013):

Holding: Where Defendant’s offense took place before Fair Sentencing Act took effect, but he was resentenced afterwards, the FSA applied to him.
Spencer v. U.S., 2013 WL 4106367 (11^th Cir. 2013):

Holding: Defendant, who unsuccessfully raised on direct appeal a claim that his prior Florida conviction for third-degree felony child abuse was not “crime of violence,” could raise this issue in motion to vacate sentence because the Begay decision, which validated his arguments, is retroactive.
U.S. v. Meister, 94 Crim. L. Rep. 391 (11^th Cir. 12/17/13):

Holding: (1) Even though the Mandatory Detention Act, 18 USC 3145(c), provides that certain defendants cannot be released pending sentencing if their crimes are violent, there is an exception where a “Judicial Officer” determines that the defendant is neither a seafety threat nor a flight risk and that detention is inappropriate; (2) a judge qualifies as a “Judicial Officer” under the statute; therefore, a judge can release Defendant under the statute for medical reasons pending his sentence appeal.
Spencer v. U.S., 93 Crim. L. Rep. 657 (11^th Cir. 8/15/13):

Holding: The Begay rule on the types of prior convictions that qualify as predicates for federal recidivist sentences may be applied retroactively on collateral review of sentences imposed under the career offender provisions of USSG (disagreeing with 8^th Circuit).
U.S. v. Carillo-Ayala, 93 Crim. L. Rep. 14, 2013 WL 1173959 (11^th Cir. 3/22/13):
Holding: Even though Defendant receives an enhances sentence for his drug offense due to possession of a firearm, this does not automatically preclude receiving “safety valve” relief from a mandatory minimum.
U.S. v. Hall, 92 Crim. L. Rep. 462, 2013 WL 160276 (11^th Cir. 1/16/13):

Holding: Even though Defendant may have wrongfully obtained or transferred identifying information of people in violation of 42 USC 1320(d)-6(a)(2), these people do not qualify as “victims” for sentence enhancement purposes unless there is some further showing such as someone perpetrated a fraud with the identifying information.
U.S. v. Johnson, 2012 WL 3890136 (11^th Cir. 2012):

Holding: Sentence enhancement for reckless endangerment by flight for Defendant-passenger in car required a finding that passenger aided or encouraged driver to flee from police.
U.S. v. Rosales-Bruno, 2012 WL 1138648 (11^th Cir. 2012):

Holding: A defendant’s conviction for false imprisonment, in violation of Florida law, did not qualify as a “crime of violence” under sentencing guidelines because it did not necessarily involve the threat or use of physical force.
U.S. v. Owens, 2012 WL 603233 (11^th Cir. 2012):

Holding: Offenses of second degree rape and second degree sodomy were not “violent felonies” under the Armed Career Criminal Act (ACCA) because neither offense had an element of violent physical force against the victim.
U.S. v. Vadnais, 2012 WL 104661 (11^th Cir. 2012):

Holding: Five-level enhancement for distribution of child pornography for expectation of receipt of thing of value did not apply to defendant, where defendant used peer-to-peer file-sharing to obtain child pornography from other users in a manner which permitted other users to obtain the files and the enhancement required that the distribution occur for a specified purpose and there was no showing that defendant expected to receive any other “thing of value.”
U.S. v. McGarity, 90 Crim. L. Rep. 648 (11^th Cir. 2/6/12):

Holding: Restitution in child pornography cases requires causation where the defendant possessed pornography but had no actual contact with the victim.
U.S. v. Spriggs, 90 Crim. L. Rep. 625 (11^th Cir. 1/10/12):

Holding: The government did not meet its burden of proving a defendant qualified for a five-level enhancement for those who barter and trade child pornography simply by showing that the defendant had installed a file-sharing program on his computer that gave others access to pornographic images.
U.S. v. McDaniel, 2011 WL 255151 (11^th Cir. 2011):

Holding: The Mandatory Restitution for Sexual Exploitation of Children Act, 18 USC 2259, limits recoverable losses to those proximately caused by the defendant’s conduct, rejecting the gov’t’s argument that a generalized showing of “harm” is sufficient.
Bowers v. Kelly, 2011 WL 3760891 (11^th Cir. 2011):

Holding: Where Parole Board member prepared a memo for attorney general that portrayed Defendant in negative way so that attorney general could oppose parole, this violated Parole Board member’s duty to act impartially and required Parole Board’s decision to be vacated.
U.S. v. Fulford, 90 Crim. L. Rep. 262 (11^th Cir. 11/14/11):

Holding: In order to enhance sentence for sending child pornography to a minor, the Gov’t must prove the person to whom pornography was sent was an actual minor if the person was not a law enforcement officer; here, the person was an adult male posing as a minor, but was not a law enforcement officer, so the enhancement did not apply.
U.S. v. Martikainen, 89 Crim. L. Rep. 255 (11^th Cir. 5/10/11):

Holding: USSG enhancement that applies to a defendant who creates a substantial risk of death or injury to another while fleeing from law enforcement requires that Defendant knew he was being pursued.
U.S. v. Wetherald, 89 Crim. L. Rep. 11 (11^th Cir. 3/28/11):
Holding: Even though USSG are only advisory, ex post facto clause still precludes court from applying a USSG that is more severe than the version in effect at the time of the offense.
U.S. v. Julian, 88 Crim. L. Rep. 633 (11^th Cir. 2/22/11):
Holding: The statute that requires consecutive sentences for gun offenses, 18 USC 924(c)(1)(A), is not applicable when a gun crime causes a death because the subsection that makes the death penalty on option if death results creates a separate crime, rather than a sentencing factor.
US. v. Shannon, 88 Crim. L. Rep. 639 (11^th Cir. 1/26/11):
Holding: Prior conviction under Florida law that outlaws selling or purchasing drugs is not a “controlled substance offense” under USSG 4B1.2(b) because the guideline requires possession with intent to distribute, not purchase with intent to distribute.
U.S. v. Jerchower, 88 Crim. L. Rep. 551, 2011 WL 204751 (11^th Cir. 1/25/11):