Case Law Update: 2011-2014 Cumulative Edition

Holding: Amendment to USSG 2G1.3 that states that the enhancement for defendants who unduly influenced a minor to engage in sexual conduct does not apply if the “minor” is an undercover office applies retroactively on direct appeal to sentences imposed prior to its effective date.
U.S. v. Martinez-Cruz, 94 Crim. L. Rep. 332, 2013 WL 6231562 (D.C. Cir. 12/3/13):

Holding: When a Defendant presents objective evidence giving rise to a reasonable inference that a prior conviction being used to enhance punishment involved an invalid waiver of counsel, the burden shifts to the prosecution to prove the waiver was valid.
U.S. v. Malenya, 736 F.3d 554 (D.C. Cir. 2013):

Holding: In imposing special supervised release conditions on sex-Defendant, court failed to apply the correct statutory standard that the conditions had to be reasonably related to the statutory sentencing factors and involve no greater deprivation of liberty than necessary to carry out the statutory sentencing goals; court just said the conditions were “standard conditions imposed in these cases” and said the conditions were necessary to avoid re-offending.
In re Sealed Case, 93 Crim. L. Rep. 559, 2013 WL 3305706 (D.C. Cir. 7/2/13):

Holding: Defendant who received sentences below statutory mandatory minimum because of substantial assistance are eligible for sentence reductions under USSG.
U.S. v. Epps, 92 Crim. L. Rep. 569 (D.C. Cir. 2/12/13):
Holding: Even though crack defendants’ sentences were not specifically rooted in the USSG, they may still be eligible for sentence reductions under the retroactive amendments to crack guidelines.
U.S. v. Fair, 2012 WL 5457679 (D.C. Cir. 2012):

Holding: Even though Defendant had made money from copyright infringement, Defendant’s gain is not the same as victim’s loss, so court erred in making the gain be restitution under MVRA without proof of victim’s actual, provable loss.
U.S. v. Terrell, 92 Crim. L. Rep. 115 (D.C. Cir. 10/19/12):

Holding: Judge’s statement that he needed to have a “compelling reason” to deviate from USSG was tantamount to giving guideline sentence an impermissible presumption of reasonableness.
U.S. v. Rodriguez, 2012 WL 1193763 (D.C. Cir. 2012):

Holding: The defendant was not precluded from obtaining safety-valve relief by waiting “until the last minute” to provide information.
U.S. v. Emor, 2012 WL 983152 (D.D.C. 2012):

Holding: A nonprofit corporation was the defendant’s alter ego, and thus was not entitled to restitution from the defendant.

U.S. v. Cotton, 2011 WL 180196 (D.D.C. 2011):

Holding: Effective date for persons with pre-SORNA convictions was August 1, 2008, 30 days after SORNA’s final guidelines were published; the interim rule was invalid because the Attorney General did not have good cause to invoke the exception to 30 days’ notice.
U.S. v. Anderson, 2011 WL 281034 (D.C. Cir. 2011):

Holding: Defendant was prejudiced when court failed to consider his entire allocution at sentencing that was relevant to his background, character and offense.
U.S. v. Papagno, 89 Crim. L. Rep. 159 (D.C. Cir. 4/26/11):

Holding: MIRVA does not authorize as restitution reimbursement of costs of internal investigation to an institutional crime victim which undertook the internal investigation at its own initiative and not that of prosecutors.
U.S. v. Monzel, 89 Crim. L. Rep. 118 (D.C. Cir. 4/19/11):

Holding: Person depicted in child pornography image is not entitled to restitution unless the Gov’t can tie the particular defendant’s possession of the image to the harm for which the victim seeks restitution.
U.S. v. Flowers, 2013 WL 2250611 (M.D. Ala. 2013):

Holding: Sentence by downward variance to probation without monitored home confinement was appropriate for Defendant with mental illness who was convicted of passing a forged check.
Miranda v. Carey, 2010 WL 4010374 (E.D. Cal. 2010):

Holding: Denying parole based on gravity of offense alone violated state “some evidence standard.”
U.S. v. Reyes, 2012 WL 5389697 (N.D. Cal. 2012):

Holding: Alien-Defendant’s prior conviction for possessing a short-barrel shotgun was not a crime of violence, and thus not an aggravated felony that would subject him to expedited removal from the U.S.
U.S. v. Executive Recycling Inc., 2013 WL 3010821 (D. Colo. 2013):

Holding: Even though Defendant used mass mailings and a website to attract customers to his fraudulent scheme, this did not trigger the “sophisticated means” enhancement under USSG.
Harris v. State, 2010 WL 5298902 (S.D. Fla. 2010):

Holding: Where Defendant claimed that one of his three prior convictions did not qualify as a “crime of violence” for sentencing enhancement purposes, Defendant could use “actual innocence” exception to procedural default to excuse failure to raise this earlier; Defendant could be “actually innocent” of having three prior qualifying convictions.
U.S. v. Holloman, 2011 WL 607121 (C.D. Ill. 2011) & U.S. v. Hodges, 2011 WL 611804 (M.D. Ga. 2011):

Holding: Fair Sentencing Act (which changed crack quantifies to trigger mandatory minimum sentences from 5 to 28 grams) applies to defendants sentenced on or after FSA’s effective date regardless of whether their crime occurred before the effective date.
U.S. v. Ortiz, 2011 WL 3836527 (N.D. Ill. 2011):

Holding: Even though Defendant lived at a house of a friend, an increase in offense level for maintaining premises for drug purposes was not warranted where Defendant did not own or rent the house and only used the house for drug purposes one time.
U.S. v. Amaya, 2013 WL 2548393 (N.D. Iowa 2013):

Holding: 180-month downward variance was warranted for drug and money laundering conviction where Defendant was 25 years old and his prior criminal record was nonviolent misdemeanors.
U.S. v. Hayes, 2013 WL 2468038 (N.D. Iowa 2013):

Holding: Downward variance was warranted due to district court’s policy disagreement with methamphetamine guidelines.
U.S. v. Newhouse, 2013 WL 346432 (N.D. Iowa 2013):

Holding: Downward departure from 262 months to statutory minimum of 120 months was warranted based on district court’s quasi-categorical policy disagreement with USSG career offender provision as applied to low level, non-violent drug addict, and based on individualized assessment of statutory sentencing factors; career offender guideline had potential to overstate seriousness of Defendant’s record and risk of re-offending.
U.S. v. Lander, 2012 WL 5237186 (N.D. Iowa 2012):

Holding: Sentence below statutory minimum based on “substantial assistance” could be based on third-party assistance provided by Defendant’s Wife, who acted on Defendant’s behalf.
Doe v. Jindal, 2012 WL 1068776 (E.D. La. 2012):

Holding: Equal Protection was violated when persons convicted of providing oral sex for money under the Louisiana Crime Against Nature by Solicitation Law (CANS) were required to register as sex offenders, but persons who engaged in same acts under the Louisiana prostitution statute were not required to register.
Doe v. Jindal, 90 Crim. L. Rep. 717 (M.D. La. 2/16/12):

Holding: A state law that bars certain unregistered sex offenders from accessing internet sites frequented by children, but that results in a “near total ban” on the offenders’ internet access is overbroad in violation of the First Amendment.
U.S. v. Douglas, 2010 WL 4260221 (D. Me. 2010):

Holding: Fair Sentencing Act, which lowered certain penalties, applies to Defendant who pleaded guilty prior to enactment of law but was sentenced after enactment.
U.S. v. Dayi, 2013 WL 5878922 (D. Md. 2013):

Holding: Two-level downward variance for conspiracy to distribute large amount of marijuana was justified in light of federal gov’t’s expanding policy of non-enforcement of marijuana laws, as well as States moving to legalize marijuana.
U.S. v. Duval, 2013 WL 3786370 (D. Mass. 2013):

Holding: Maine conviction for assault is not a “crime of violence” under modified categorical approach, since offense included “offensive physical contact” and Defendant’s PSI report did not describe the details of the offense, making it impossible to determine if the confrontation caused bodily injury.
U.S. v. Graham, 2012 WL 23667896 (D. Mass. 2012):
Holding: Defendant was eligible for sentence reduction for crack offense despite his binding plea agreement.
U.S. v. Whigham, 2010 WL 4959882 (D. Mass. 2010):

Holding: There was no justification to apply the USSG large disparity between crack and powder cocaine to Defendant who sold crack within 1000 feet of school.
U.S. v. Watts, 2011 WL 11282542 (D. Mass. 2011):

Holding: Fair Sentencing Act (FSA) applies to offense committed before enactment of FSA, even though a portion of FSA appears to conflict with General Saving Statute’s prohibition against retroactive application.



U.S. v. Peguero-Martinez, 2010 WL 4955587 (D. Mass. 2010):

Holding: Defendant’s prior guilty plea in Mass. juvenile court did not warrant 16-level enhancement for illegal reentry to U.S.
U.S. v. Wilson, 2011 WL 3706651 (E.D. Mich. 2011):

Holding: Sentencing procedure where judge enters sentencing hearing without “pre-prepared” material and makes a relatively quick determination based mostly on arguments presented at the hearing is inadequate.
U.S. v. Mann, 2013 WL 6037681 (D.N.M. 2013):

Holding: Involuntary manslaughter conviction was not “crime of violence” since mental state was gross negligence, not intent to cause victim’s death.
U.S. v. C.R., 2011 WL 1901645 (E.D. N.Y. 2011):

Holding: Statutory minimum 5-year sentence for distribution of child pornography violated 8^th Amendment’s ban on cruel and unusual punishment as applied to developmentally immature young adult Defendant who downloaded pornography of children between 15 and 19 years old.


U.S. v. Taylor, 2011 Wl 1486621 (S.D. N.Y. 2011):

Holding: Impermissible double counting occurred when PSI recommended 360 months to life for Hobbs Act robbery plus a weapons offense and a consecutive statutory minimum sentence for the weapons offense.
U.S. v. Rodriguez-Cisneros, 2013 WL 120954 (D. Neb. 2013):

Holding: Use of social security number on a fake social security card did not, standing alone, qualify as an “authentication feature” requiring an enhanced sentence under USSG.



Doe v. Nebraska, 92 Crim. L. Rep. 113, 2012 WL 4923131 (D. Neb. 10/17/12):

Holding: Nebraska’s ban on social network internet use for sex offenders (as well as other internet conditions such as requiring installation of monitoring equipment on sex offenders’ computers) violates 1^st Amendment since not narrowly tailored and does not leave open ample alternative channels of communication; court also looks at legislative history of legislation and finds it was motivated by “rage” and “revulsion” against sex offenders.
U.S. v. Garcia, 2013 WL 1635514 (D.N.M. 2013):

Holding: Even though Defendant was eligible for safety-valve relief below statutory minimum, court was permitted to further vary downward.
U.S. v. Jim, 2012 WL 2574807 (D.N.M. 2012):

Holding: Even though sex abuse victim had lacerations to genital area as a result of sexual abuse, this did not qualify as serious bodily injury for purposes of a sentencing enhancement applicable when sex abuse victim sustains serious bodily injury, because the lacerations did not stem from conduct other than the sexual abuse.
U.S. v. Kelly, 2012 WL 2367084 (D.N.M. 2012):

Holding: USSG guideline range for receiving child pornography was greater than necessary where Defendant was not accused of creating child pornography or molesting children, and there was no evidence he would do so in the future.
Izaguirre v. Lee, 2012 WL 1415365 (E.D. N.Y. 2012):

Holding: Petitioner was entitled to habeas relief on claim that his sentence was unconstitutionally vindictive.
U.S. v. Mitchell, 2011 WL 6251754 (E.D. N.Y. 2011):

Holding: After sentencing ranges based on specific quantities of crack cocaine were lowered, a statute authorizing sentence reductions to previously-convicted defendants entitled the defendant to an evidentiary hearing because he had only stipulated to a quantity of at least 150 grams because, at that time, the offense level was the same for any amount from 150 to 500 grams.


U.S. v. Malloy, 2012 WL 603725 (N.D. N.Y 2012):

Holding: The defendant was entitled to a sentencing credit for a state-law conviction on which a parole violation was pending because the conviction was incomplete.
U.S. v. Karper, 2011 WL 7451512 (N.D. N.Y. 2011):

Holding: The Adam Walsh Act, which mandated home detention and electronic monitoring as conditions of release on charges involving minor victims, facially violated defendants’ Due Process rights.
U.S. v. Gupta, 2012 WL 5246919 (S.D. N.Y. 2012):

Holding: Securities fraud Defendant who disclosed non-public information to an investor was allowed a below guidelines sentence where he had devoted substantial time to philanthropic causes and his offense conduct was atypical behavior for him.
U.S. v. Robles, 2011 WL 5928783 (S.D. N.Y. 2011):

Holding: Downward departure to the statutory minimum sentence was warranted in a sentencing for robbery and firearm offenses.
Castle v. U.S., 2014 WL 200366 (W.D. N.C. 2014):

Holding: Prior state drug conviction for distribution was not a predicate felony under Controlled Substances Act because Defendant could not have been sentenced to more than one year in prison on state conviction.
U.S. v. Kelly, 2013 WL 81370 (W.D. N.C. 2013):

Holding: North Carolina conviction for assault on female was not a crime of domestic violence because it did not have element of use or attempted use of physical force.
Bryant v. U.S., 2012 WL 119756 (E.D. N.C. 2012):

Holding: Breaking and entering conviction was not a “violent felony” under ACCA because did not carry imprisonment for more than 1 year.
U.S. v. Thompson, 2011 WL 4835704 (E.D. N.C. 2011):

Holding: Prior convictions for breaking and entering, for which defendant was sentenced to a suspended prison term of five years in custody and five years of probation with a special condition of serving six months in custody were not convictions for crimes “punishable by a term of imprisonment exceeding one year” within the definition of “violent felony” under the Armed Career Criminal Act.
U.S. v. Rojas, 2011 WL 2623579 (11^th Cir. 2011) & U.S. v. Shull, 2011 WL 2559426 (S.D. Ohio 2011):

Holding: Fair Sentencing Act applies to defendants who committed crack offenses before its enactment but who are sentenced thereafter.

U.S. v. Williams, 2012 WL 5462763 (M.D. Pa. 2012):

Holding: Bail Reform Act allowed district court to release Defendant pending sentencing after guilty plea to conspiracy to distribute 280 grams or more of cocaine upon a finding of exceptional reasons making detention inappropriate.
Barnes v. Wenerowicz, 2012 WL 917163 (E.D. Pa. 2012):

Holding: The denial of re-parole of a state prisoner, whose initial parole was revoked on the basis of technical parole violations and a murder charge for which he was acquitted, violated the prisoner’s substantive due process rights.
U.S. v. Ware, 2012 WL 38937 (E.D. Pa. 2012):

Holding: A statute authorizing sentence reductions to defendants who had been sentenced based on a subsequently-lowered sentencing range applied to defendant even though he originally received a nonguidelines sentence.
U.S. v. Southern Union Co., 2013 WL 1776028 (D.R.I. 2013):

Holding: Gov’t’s request for a second jury trial to have a jury determine the number of days Defendant-company stored hazardous waste for purposes of imposing a daily fine was waived because Gov’t failed to request this jury-finding at the original trial; Apprendi requires that a jury determine the number of days because Apprendi applies to fines; thus, the only fine that could be imposed was for a single day that the jury verdict supported.
U.S. v. Tallent, 2012 WL 2580275 (E.D. Tenn. 2012):

Holding: Restitution was not proper in child pornography case under mandatory restitution statute where Gov’t failed to show that the losses proximately caused by Defendant could be calculated with reasonable certainty, and court could not rely on speculation to determine amount.
U.S. v. Keese, 2013 WL 3292718 (M.D. Tenn. 2013):

Holding: Defendant was eligible for lower sentence under new crack guidelines even though he qualified as a career offender.
U.S. v. Lopez-Reyes, 2013 WL 1966883 (E.D. Va. 2013):

Holding: Virginia offense of unlawful bodily injury is not “crime of violence.”
U.S. v. Ponce-Rodriguez, 2012 WL 1869252 (E.D. Va. 2012):

Holding: North Carolina conviction for possession of 10 to 50 pounds of marijuana was not a drug trafficking conviction where the conviction did not require proof of intent to distribute and the record of conviction did not indicate that Defendant had any such intent.
U.S. v. Major, 2011 WL 3320800 (E.D. Va. 2011):

Holding: Virginia statutory burglary convictions did not qualify as “generic” burglary convictions under ACCA because they were broader than generic burglary in that they allowed conviction for burglary of places other than buildings or structures.
U.S. v. Metz, 2011 WL 5027384 (N.D. W. Va. 2011):

Holding: District court lacked jurisdiction to determine validity of credit union members’ restitution claims against a credit union employee convicted of embezzlement where the members failed to exhaust their administrative remedies in that they failed to submit documentary support for their claims.
U.S. v. Thompson, 2011 WL 5022792 (S.D. W. Va. 2011):

Holding: Prior conviction for theft of firearms from business licensed to sell firearms was not a crime of violence.
U.S. v. Johnson, 2011 WL 1776015 (E.D. Wisc. 2011):

Holding: Where pirated CD’s were never actually put in stream of commerce, victim did not sustain actual losses and thus wasn’t entitled to restitution under Mandatory Victims Restitution Act.
U.S. v. Bradford, 2011 WL 710463 (E.D. Wis. 2011):

Holding: Conviction for possession of short-barreled shotgun was not “crime of violence” under ACCA.
Ex parte Lightfoot, 93 Crim. L. Rep. 535, 2013 WL 3481945 (Ala. 7/12/13):

Holding: When a judge has found by a preponderance of evidence a factor that triggers a mandatory sentence enhancement, the fact that the sentence imposed is below the statutory maximum does not render the 6^th Amendment right to have a jury determine the factor harmless.
Miller v. State, 2012 WL 129708 (Ark. 2012):

Holding: The trial court erred when it allowed witnesses, when giving victim impact statements, to tell the jury they wanted a death sentence.
Vankirk v. State, 90 Crim. L. Rep. 107 (Ark. 10/13/11):

Holding: 6^th Amendment right to confront witnesses applies to non-capital jury sentencing proceedings.
Montoya v. State, 2010 WL 4366905 (Ark. 2010):

Holding: Where Defendant’s prior felonies in another state had been expunged, they would not count under Arkansas’ prior offender statute.
People v. Park, 93 Crim. L. Rep. 245, 299 P.3d 1263 (Cal. 5/13/13):

Holding: Prior conviction that was reduced from a felony to a misdemeanor before the Defendant committed a subsequent offense did not qualify as a “prior serious felony” that can be used to enhance sentence for the subsequent offense.
People v. Leiva, 2013 WL 1395730 (Cal. 2013):

Holding: A summary revocation of probation preserves the trial court’s authority to adjudicate a claim that Defendant violated probation during the probationary period, but a court can find a violation of probation and then reinstate and extend probation only if probation is reinstated based upon a violation that occurred during the unextended period of probation.
People v. Caballero, 2012 WL 3516135 (Cal. 2012):

Holding: Juvenile’s sentence of 110 years for non-homicide offense of attempted murder violated 8^th Amendment because it did not provide a realistic opportunity to be released prior to end of term, since it exceeded a person’s natural life.
People v. Runyan, 2012 WL 2874238 (Cal. 2012):

Holding: Even though Victim died without family or heirs, Victim’s “estate” was not a “direct victim” of the crime which caused Victim’s death since the estate was not even in existence yet, and thus, estate was not entitled to restitution for Victim’s death.
People v. Mesa, 2012 WL 1970864 (Cal. 2012):

Holding: Defendant’s sentence for actively participating in a street gang violated prohibition against multiple punishments for indivisible course of conduct.
In re Shaputis, 90 Crim. L. Rep. 551 (Cal. 12/29/11):

Holding: Where Parole Board determined that inmate had gained sufficient insight into his criminal behavior, appellate court cannot reweigh that evidence to deny parole.
People v. Martin, 88 Crim. L. Rep. 428 (Cal. 12/30/10):

Holding: Trial judge cannot impose probation conditions based on a charge that was dropped pursuant to a plea bargain unless Defendant agrees there is a “transactional” connection between the dismissed charge and charge to which he pleaded guilty.
Nowak v. Suthers, 94 Crim. L. Rep. 678, 2014 WL 689349 (Colo. 2/24/14):