Case Law Update: 2011-2014 Cumulative Edition

Holding: Gov’t’s failure to provide notice of intent to seek enhanced penalty for drug distribution prejudiced Defendant because he made his decision to go to trial without being able to consider effect of enhancement; sentence vacated.
U.S. v. Dixon, 2011 WL 3449494 (3d Cir. 2011):

Holding: Fair Sentencing Act applies to defendants who are convicted of crack offenses before it was enacted, but sentenced afterwards.
U.S. v. Cespedes, 663 F.3d 685 (3d Cir. 2011):

Holding: Offense level increase for reckless endangerment while fleeing as a passenger in a getaway car was not warranted, where it was based on a co-conspirator’s recklessness in driving the car.
U.S. v. Salinas-Cortez, 2011 WL 5345907 (3d Cir. 2011):

Holding: The Court of Appeals opinion vacating some sentences and remanding for resentencing on the final one did not clearly preclude the District Court from considering defendant’s postsentencing rehabilitation.
U.S. v. West, 89 Crim. L. Rep. 254, 2011 WL 1602084 (3d Cir. 4/29/11):

Holding: USSG enhancement for possession of a gun “in connection with” another felony requires that in drug possession cases, mere proximity to a gun is not sufficient.
U.S. v. Kulick, 88 Crim. L. Rep. 437 (3d Cir. 12/29/10):

Holding: USSG authorizing a sentence-enhancing cross-reference to the guideline for an accompanying offense for a defendant who has been convicted of being felon in possession of firearm, 2K2.1(c)(1), requires the other offense be within the relevant conduct of the gun offense.
U.S. v. Freeman, 94 Crim. L. Rep. 501 (4^th Cir. 1/17/14):

Holding: Defendant-Minister who was convicted of obstructing a bankruptcy proceeding was not required to pay restitution to church members who took out loans to give money to the Defendant and church, because none of the church members’ losses resulted from conduct underlying the elements of obstruction.
U.S. v. Montes-Flores, 736 F.3d 357 (4^th Cir. 2013):

Holding: Defendant South Carolina conviction for assault and battery of high and aggravated nature was not “crime of violence.”
U.S. v. Hemingway, 94 Crim. L. Rep. 173, 2013 WL 5833282 (4^th Cir. 10/31/13):

Holding: Divisibility test for gauging whether an offense qualifies as a predicate violent felony for an enhanced sentence under “modified categorical approach” applies to common law crimes, as well as statutory offenses; common law offense of “assault and battery of a high and aggravated nature” was not “violent felony” under ACCA because the offense is not one of the enumerated offenses cited in Section 924 and does not otherwise involve conduct that presents a serious potential risk of physical injury to another.
U.S. v. McManus, 94 Crim. L. Rep. 207, 2013 WL 5814870 (4^th Cir. 10/30/13):

Holding: Even though “closed” file-sharing program required users to agree to allow sharing of files, this did not support USSG enhancement for child pornography that involves distribution in the expectation of receiving a “thing of value,” 2G2.2(b)(3)(B), because no user has any reason to assume that any other user possesses shared files which would be considered valuable because Gigatribe can host any type of music, picture or video file.
Miller v. U.S., 93 Crim. L. Rep. 694 (4^th Cir. 8/21/13):

Holding: The rule announced in U.S. v. Simmons, 649 F.3d 237 (4^th Cir. 2011), regarding how state convictions qualify as predicates for federal enhancement, applies retroactively on collateral review.
U.S. v. Carthorne, 2013 WL 4056052 (4^th Cir. 2013):

Holding: Virginia conviction for assault and battery of police officer is not categorically a “crime of violence” because it includes common law battery, which does not categorically require use of physical force.
Karimi v. Holder, 93 Crim. L. Rep. 244 (4^th Cir. 5/13/13):

Holding: Prior assault conviction for grabbing an officer’s hand was not a “crime of violence” under 18 USC 16.
U.S. v. Grant, 2013 WL 1926408 (4^th Cir. 2013):

Holding: Under Mandatory Victims Restitution Act, before imposing a condition of probation that required all of Defendant’s tax refunds to go toward restitution, court had to consider whether Defendant could make such payments and still meet her family’s financial needs.
U.S. v. Davis, 2013 WL 1811888 (4^th Cir. 2013):

Holding: Even though Defendant was convicted of possession of a stolen firearm after stealing it from a home, the homeowner was not a “victim” under Victim and Witness Protection Act for purposes of restitution because although the burglary and theft were necessary steps to ultimately be in possession of the stolen firearm, the factual connection between the necessary steps and the offense of conviction was legally irrelevant for restitution purposes.
U.S. v. Rangel-Castaneda, 92 Crim. L. Rep. 731, 2013 WL 829149 (4^th Cir. 3/7/13):

Holding: Tennessee statutory rape conviction is not categorically a “crime of violence.”
U.S. v. Pileggi, 2013 WL 14305 (4^th Cir. 2013):

Holding: Even though appellate reversed and remanded case based on a sentencing issue, the “mandate rule” barred the trial court from reconsidering the amount of restitution owed since the Gov’t waived any challenge to this by not raising it on appeal.
U.S. v. Bennett, 92 Crim. L. Rep. 160 (4^th Cir. 10/25/12):

Holding: In revocation of supervised release proceeding, a judge cannot use rehabilitation to justify imposing imprisonment or length of imprisonment.
U.S. v. Gomez, 2012 WL 3243512 (4^th Cir. 2012):

Holding: Because there was no divisible use of force element under Maryland’s child abuse statute, the district court erred in using the modified categorical approach to determine if this was a crime of violence.
U.S. v. Slade, 2011 WL 242339 (4^th Cir. 2011):

Holding: Sentence enhancement for being a manager or supervisor of a drug conspiracy was not warranted where there was no showing that Defendant exercised any supervisory authority over those to whom he gave drugs, even though the drug quantities were large.
U.S. v. Trent, 2011 WL 3664300 (4^th Cir. 2011):

Holding: Prior convictions for speeding to elude arrest did not qualify as predicates permitting a sentencing enhancement under the Armed Career Criminal Act.
U.S. v. Perez, 2011 WL 5188080 (4^th Cir. 2011):

Holding: Because the court gave no indication that defendant’s false testimony concerned a material matter or that it was willfully given, it erred in imposing a two-level enhancement for obstruction of justice based on perjury.
U.S. v. Bell, 90 Crim. L. Rep. 418 (4^th Cir. 12/21/11):

Holding: USSG which call for including weight of controlled substances of co-conspirators do not apply to lawfully obtained prescription drugs.
U.S. v. Simmons, 89 Crim. L. Rep. 770, 2011 WL 3607266 (4^th Cir. 8/17/11):

Holding: Prior sate conviction did not qualify as a felony triggering federal recidivist enhancement under Controlled Substances Act even though the state scheme authorized felony punishment for the offense when the offender, unlike the defendant, had a prior conviction.
U.S. v. Peterson, 88 Crim. L. Rep. 519, 2011 WL 117574 (4^th Cir. 1/14/11):
Holding: “Manslaughter” in USSG 4B1.2(a) means the Model Penal Code definition of criminal homicide committed recklessly or intentionally if committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation; thus North Carolina’s “involuntary manslaughter” is not “generic manslaughter” as used in 4B1.2(a) because its mental state is less than reckless.
U.S. v. Leftwich, 88 Crim. L. Rep. 403 (4^th Cir. 12/20/10):

Holding: District court which orders restitution must specify on the record whether the restitution is awarded pursuant to the Victim and Witness Protection Act or the Mandatory Victims Restitution Act.
U.S. v. Divens, 2011 WL 2624434 (4^th Cir. 2011):

Holding: Gov’t cannot base its refusal to move for one-level sentence reduction for acceptance of responsibility on Defendant’s refusal to sign a plea agreement that includes an appellate waiver.
U.S. v. Aguilera-Aguila, 2011 WL 2420276 (4^th Cir. 2011):

Holding: Adding one point to criminal history score for offense of reentering U.S. was not harmless where Defendant’s sentence with the recency enhancement put him at top of Guideline range.
U.S. v. Hagman, 2014 WL 291597 (5^th Cir. 2014):

Holding: Even though certain firearms were missing, the Gov’t did not prove that Defendant possessed them so as to apply sentence enhancement where the guns weren’t found on Defendant, no witnesses saw Defendant with them, and no forensic evidence linked Defendant to the guns.
U.S. v. Salazar, 94 Crim. L. Rep. 709, 2014 WL 700077 (5^th Cir. 2/24/14):

Holding: Where Defendant was convicted of failure to register, sentencing court abused discretion in requiring as a condition of supervised release that he avoid any “sexually stimulating or sexually oriented materials” where court did not adequately link the restriction to the sentencing goals in 18 USC 3553(a)(1) – (2).



U.S. v. Fernandez, 94 Crim. L. Rep. 677 (5^th Cir. 2/24/14):

Holding: Where Defendant has a prior state conviction where the sentencing judge both awarded credit for time served and suspended the sentence, the period credited serves as the measure of assessing the criminal history points in accordance with 4A1.2(b)(2).
U.S. v. Robinson, 94 Crim. L. Rep. 538 (5^th Cir. 1/24/14):

Holding: Defendant was entitled to resentencing where original sentencing court did not know that it had sua sponte authority to taken into account Defendant’s cooperation, even though Gov’t was not seeking a downward departure under USSG 5K1.1.
U.S. v. Mason, 2013 WL 3329033 (5^th Cir. 2013):

Holding: Including losses from later transactions that were unrelated to the conviction in restitution was plain error.
U.S. v. Resendiz-Moreno, 2013 WL 173425 (5^th Cir. 2013):

Holding: Ga. conviction for cruelty to children was not “crime of violence” because the use of force was not necessary to commit the crime.
U.S. v. Fraga, 2013 WL 127840 (5^th Cir. 2013):

Holding: Where sentencing court stated that it usually required lifetime supervision in “these situations,” this was an improper automatic imposition of a lifetime sentence without engaging in analysis of the circumstances surrounding the crime, and was plain error.
U.S. v. Moore, 94 Crim. L. Rep. 156 (5^th Cir. 10/23/13):

Holding: The “50 victim presumption” of USSG 2B1.1 Application Note 4(C)(ii)(I) when a Defendant steals mail should not be multiplied by six when a defendant steals mail from six mailboxes, because this would lead to absurd result of a defendant who steals on entire truckload of mail would have 50 victims, but a defendant who steals a much smaller amount of mail from six boxes would have 300 hundred victims.
U.S. v. Chandler, 94 Crim. L. Rep. 120 (5^th Cir. 10/4/13):

Holding: Defendant-police officer should not have had his sentence increased upward under USSG merely because he was a police officer, since his conviction of child pornography was not related to his duties as a police officer; hence, the offense was not an abuse of position.
U.S. v. Stinson, 93 Crim. L. Rep. 693 (5^th Cir. 8/21/13):

Holding: In order for the enhancement in USSG 2B1.1(b)(15)(A) relating to bank fraud to apply, the financial institution must “own” the funds at issue; a financial institution is not the source of all funds that have passed through the institution as occurs in a wire transfer; thus, mere tangential effect on the institution does not support the enhancement.
U.S. v. Windless, 93 Crim. L. Rep. 402 (5^th Cir. 6/12/13):

Holding: The same due process considerations that prevent a court from sentencing a defendant on the basis of “bare arrest” records also bar courts from allowing such records to be used to craft conditions of supervised release.
U.S. v. Becerril-Pena, 93 Crim. L. Rep. 212 (5^th Cir. 5/2/13):

Holding: USSG 5D1.1 which states that a sentencing court should not ordinarily impose a term of supervised release on a Defendant-alien who is likely to be deported does not limit supervised release to “extraordinary” cases.
U.S. v. Culbertson, 93 Crim. L. Rep. 7, 2013 WL 1187986 (5^th Cir. 3/22/13):

Holding: Sentencing court violated rule that sentence cannot be lengthened to promote rehabilitation where it said it was giving sentence to allow Defendant to get “stabilized” and “clean and sober.”
U.S. v. Garza, 92 Crim. L. Rep. 546 (5^th Cir. 2/1/13):

Holding: Court imposing a prison term after revoking supervised release may not consider Defendant’s need for rehabilitation.
U.S. v. Stoker, 92 Crim. L. Rep. 519 (5^th Cir. 1/31/13):

Holding: A conviction for retaliation against a witness is not categorically a “crime of violence.”
U.S. v. Rodriguez-Escareno, 2012 WL 5359486 (5^th Cir. 2012):

Holding: Illegal re-entry Defendant’s prior conviction for conspiring to commit a drug offense so as to permit a 16-level base offense increase under USSG 2L1.2(b)(1)(A)(i) had to be under a criminal statute that had an over act requirement, unlike the conspiracy provision of the Controlled Substances Act.
U.S. v. Teuschler, 2012 WL 3011030 (5^th Cir. 2012):

Holding: Imposition of three-level enhancement was not warranted where Defendant pleaded guilty to distributing child pornography but there was no evidence that the 277 additional images on his computer occurred in preparation for or during that offense.
U.S. v. Hernandez, 2012 WL 3205573 (5^th Cir. 2012):
Holding: Erroneous imposition of multi-count sentencing increase was plain error.
U.S. v. Slovacek, 2012 WL 4801637 (5^th Cir. 2012):

Holding: A “nonparty victim” of a bribery scheme lacks any right to direct appeal from denial of his request for restitution for himself and his company under the Crime Victims’ Rights Act or Mandatory Victims Restitution Act.
12/21 U.S. v. Medina-Torres, 2012 WL 6634990 (5^th Cir. 2012):

Holding: Court erred in applying aggravating felony enhancement to a Defendant for being found in the U.S. after deportation.
U.S. v. Nevares-Bustamante, 2012 WL 205850 (5^th Cir. 2012):

Holding: Sentencing enhancement for unlawfully remaining in the U.S. after felony conviction for crime of violence was inapplicable, where no removal order was issued after the conviction.
U.S. v. Chemical & Metal Industries, Inc., 2012 WL 1301166 (5^th Cir. 2012):

Holding: A fine of $1,000,000, imposed on a corporation convicted of negligent endangerment that resulted in death, violated the statute governing the imposition of fines on organizations, given that the fine was more than $500,000 and no pecuniary gain or loss had been proven.
U.S. v. Espinoza, 2012 WL 1292513 (5^th Cir. 2012):

Holding: Restitution to the pawn shop to which the defendant sold stolen firearms was not allowed because the pawn shop was not a “victim” under the Victim and Witness Protection Act.
U.S. v. Solis, 2012 WL 935198 (5^th Cir. 2012):

Holding: In sentencing a defendant, a district court could not retroactively consider a provision of an amendment to the Sentencing Guidelines requiring that downward departures in criminal history were not to be considered when evaluating safety valve eligibility.
U.S. v. Miranda-Ortegon, 2012 WL 414604 (5^th Cir. 2012):

Holding: Conviction for domestic assault and battery was not a “crime of violence” within the meaning of sentencing guidelines because only the slightest amount of touching was necessary to constitute force or violence element under Oklahoma law.
U.S. v. Greenough, 2012 WL 310793 (5^th Cir. 2012):

Holding: The Sentencing Guideline providing a base offense level of 38 for a defendant’s possession of heroin with intent to distribute conviction when death or serious bodily injury resulted only applies when the death or serious bodily injury element was charged in the indictment.
U.S. v. Broussard, 2012 WL 309102 (5^th Cir. 2012):

Holding: Trial court’s finding that defendant was “sick in the head” was insufficient justification for imposing sentence four times the defendant’s recommended Guidelines sentence of ten years.
U.S. v. Murray, 92 Crim. L. Rep. 153 (5^th Cir. 10/30/12):

Holding: (1) Even though Defendant waived his right to appeal, this did not apply to a later order on restitution because this wasn’t part of the original sentencing process; and (2) Even though restitution amounts in large or complex fraud cases may be difficult to calculate, a judge cannot later reopen sentencing to add restitution when the Gov’t comes up with more information.
U.S. v. Espinoza, 91 Crim. L. Rep. 135 (5^th Cir. 4/17/12):

Holding: Even though Defendant sold stolen guns to a pawn shop, where he was convicted only of illegal possession of guns, the pawn shop was not entitled to restitution under MVRA because there is nothing inherent in illegal possession of guns that causes financial harm to a transferee.
U.S. v. Greenough, 90 Crim. L. Rep. 649 (5^th Cir. 2/2/12):

Holding: The provision of the USSG that calls for a very stiff sentence for drug offenses that result in a death does not apply unless the indictment charged that death resulted from the crime.

U.S. v. Johnson, 2011 WL 3200287 (5^th Cir. 2011):

Holding: It violated due process for sentencing court to rely on arrest reports of prior incidents to sentence Defendant for different offense.



U.S. v. Bernegger, 2011 WL 4990719 (5^th Cir. 2011):

Holding: District court clearly erred in calculating total loss amount from defendant’s fraudulent scheme for sentencing purposes where no factual basis supported the conclusion that certain loans obtained by defendant were the result of said scheme.
U.S. v. Reyes-Mendoza, 90 Crim. L. Rep. 383 (5^th Cir. 12/15/11):
Holding: Prior conviction for manufacturing a chemical precursor used to produce a controlled substance is not a “drug trafficking offense” for purposes of USSG enhancement for immigration offenders.
In re Sparks, 90 Crim. L. Rep. 15 (5^th Cir. 9/16/11):

Holding: Graham v. Florida’s holding prohibiting life without parole for juveniles who commit non-homicide offenses is retroactive on federal habeas review.
U.S.v. Mudekunye, 89 Crim. L. Rep. 693 (5^th Cir. 7/11/11):

Holding: Even though judge made comments suggesting he would impose the same sentence regardless of the USSG recommended range, where the range was miscalculated, this was plain error.
U.S. v. Cardenas-Guillen (Hearst Newspapers LLC), 89 Crim. L. Rep. 252, 2011 WL 1844189 (5^th Cir. 5/17/11):

Holding: Press and public have 1^st Amendment right to access criminal sentencing hearing.
U.S. v. Williams, 89 Crim. L. Rep. 211 (5^th Cir. 5/11/11):

Holding: Defendant cannot be forced to appear at sentencing only via videoconferencing; this violates Rule 43(a), which requires actual presence.
U.S. v. Garcia-Rodriguez, 89 Crim. L. Rep. 213, 2011 WL 1631837 (5^th Cir. 5/2/11):
Holding: Federal prisoner is “released from imprisonment” for purposes of supervised-release statute, 18 USC 3583, on the date he is transferred from Bureau of Prisons to Immigration and Customs Enforcement, regardless of whether he leaves the confinement of the facility.
U.S. v. Isiwele, 88 Crim. L. Rep. 749 (5^th Cir. 3/7/11):

Holding: In Medicare fraud case, the total charges fraudulently billed are prima facie evidence of amount of loss for sentencing purposes, but parties can present additional evidence showing this over- or under-states loss.

U.S. v. Hoang, 88 Crim. L. Rep. 757 (5^th Cir. 2/23/11):

Holding: Defendant cannot be convicted for failing to register under SORNA on the basis of interstate travel that was completed after the enactment of the statute but before the Attorney General’s promulgation of an interim rule clarifying the statute’s reach.
U.S. v. Johnson, 88 Crim. L. Rep. 599 (5^th Cir. 2/4/11):

Holding: SORNA’s provision making it a crime to fail to register may not be applied retroactively to sex offenders convicted prior to the 2006 effective date of the statute.