Case Law Update: 2011-2014 Cumulative Edition

Editors’ Note: The federal circuits are divided on this; the U.S. Supreme Court has granted cert. to decide the issue in Reynolds v. U.S. (cert. granted 1/24/11).
U.S. v. Ibarra-Luna, 88 Crim. L. Rep. 395 (5^th Cir. 12/22/10):

Holding: District court’s error in calculating sentence under USSG is harmless only if the proponent of the sentence shows that the court would have imposed the same sentence absent the error and it would have done so for the same reasons underlying the original sentence.
U.S. v. Covington, 738 F.3d 759 (6^th Cir. 2014):

Holding: Conviction for escape from prison was not “crime of violence.”
U.S. v. Manteen, 94 Crim. L. Rep. 434 (6^th Cir. 1/7/14):
Holding: The recidivism enhancement for child pornography defendants with prior state convictions relating to sex abuse applies only if the state conviction involved a minor or a ward (disagreeing with other circuits); 18 USC 2252 (b)(2) says enhancement applies to anyone with a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
2/8 U.S. v. Macia-Farias, 2013 WL 465842 (6^th Cir. 2013):

Holding: Court improperly imposed USSG enhancement for obstruction of justice based on Defendant’s perjury without identifying portions of his testimony that court deemed to be perjury.
U.S. v. Doyle, 2013 WL 1316125 (6^th Cir. 2013):

Holding: District court erred in imposing special conditions for supervised release for failure to register as sex offender where court failed to explain reasons in open court for imposing those conditions.
1/3 U.S. v. Mekediak, 2013 WL 49562 (6^th Cir. 2013):

Holding: Defendant’s Michigan juvenile offenses for possession of a short-barreled rifle and felonious assault could not be combined together under the modified categorical approach to make them a “violent felony” under ACCA.
3/28 Lovins v. Parker, 2013 WL 1235611 (6^th Cir. 2013):

Holding: State court unreasonably applied federal law in holding that Blakely, 542 U.S. 296 (2004)(regarding facts judges can or cannot find for sentencing purposes) did not apply to petitioner whose conviction and sentence were not yet final at time Blakely was decided.
U.S. v. LaDeau, 94 Crim. L. Rep. 198, 2013 WL 5878214 (6^th Cir. 11/4/13):
Holding: Where court had suppressed evidence that made prosecution for possession of child pornography impossible, and Gov’t then charged conspiracy to receive child pornography (which carried a greater sentence), a judge may presume prosecutorial vindictiveness violative of due process if Defendant establishes that the Gov’t has some “significant stake” in deterring Defendant’s exercise of his rights and the Gov’t’s conduct was “somehow unreasonable;” here, Defendant met that test, warranting dismissal of new charge, because while it would have been reasonable to charge conspiracy to possess child pornography (which would have been possible), it was unreasonable to charge conspiracy to receive, since “receipt” carries a higher mandatory minimum sentence than conspiracy to possess.
U.S. v. Shultz, 94 Crim. L. Rep. 155 (6^th Cir. 10/23/13):

Holding: Supervised release condition that forbids child pornography Defendant from possessing any material that he may use for the purpose of deviant sexual arousal was not sufficiently clear under 5^th Amendment and was overly broad under 1^st Amendment; term “deviant sexual arousal” should be replaced with something more definite pertaining to children, such as “arousal with sexual interest in children.”
U.S. v. Blewett, 93 Crim. L. Rep. 234 (6^th Cir. 5/17/13):

Holding: The Fair Sentencing Act applies to retroactively to all defendants who were sentenced to mandatory minimums before FSA’s enactment.
U.S. v. Washington, 93 Crim. L. Rep. 236 (6^th Cir. 5/10/13):

Holding: Defendant sentenced for multiple federal firearms violations is entitled to have the sentence enhancements in 18 USC 924(c) applied in the order that produces the lowest sentence, and applying them chronologically here would violate rule of lenity.
U.S. v. Williams, 92 Crim. L. Rep. 760 (6^th Cir. 3/14/13):

Holding: Even though Defendant gave a false name to a magistrate during his initial appearance, this did not warrant an enhancement for obstruction of justice under USSG since this did not have a material impact on any decision the magistrate had to make.
U.S. v. Deen, 92 Crim. L. Rep. 575 (6^th Cir. 2/7/13):

Holding: Defendant’s need for rehabilitation cannot be considered in deciding length of prison sentence after revoking supervised release.
U.S. v. Catchings, 92 Crim. L. Rep. 467, 2013 WL 149863 (6^th Cir. 1/15/13):

Holding: Court sentencing Defendant for misuse of clients’ credit cards should not have included Defendant’s misuse of a company credit card which he lawfully obtained in determining “relevant conduct.”

U.S. v. Stubblefield, 2012 WL 22990870 (6^th Cir. 2012):

Holding: Even though retail stores took a temporary loss in a check-cashing scheme, where the stores were reimbursed by the corporation which owned them, the stores were not “victims” under the USSG, although the corporation was.
U.S. v. Louchart, 2012 WL 1889314 (6^th Cir. 2012):

Holding: Even though 75 firearms were charged in an indictment, Defendant’s guilty plea was not an admission to controlling all of them and sentencing court needed to determine the number supported by a preponderance of evidence.
U.S. v. Corp., 2012 WL 399229 (6^th Cir. 2012):

Holding: In sentencing the defendant for sexual exploitation of a minor, an offense level enhancement for an offense portraying sadistic or masochistic conduct required that the conduct be depicted in the photographs that the defendant took of the victim.
U.S. v. Inman, 2012 WL 232964 (6^th Cir. 2012):

Holding: Trial court was required to consider statutory sentencing factors and explain its reasons for imposing lifetime term of supervised release.
U.S. v. Corp, 90 Crim. L. Rep. 669 (6^th Cir. 2/9/12):

Holding: The federal sentencing enhancement for child pornography that depicts sadistic or masochistic conduct must be based on an image that “portrays conduct that would cause an objective viewer to believe—without regard to the undepicted circumstances of the sexual encounter—that the pictured activity is inflicting physical pain, emotional suffering, or humiliation of that minor.”
U.S. v. Censke, 2011 WL 6005199 (6^th Cir. 2011):

Holding: A defendant’s sentence for mailing threatening communications was substantively unreasonable where court impermissibly imposed an above-guidelines sentence to enable defendant to complete a treatment program.
U.S. v. Walker, 2011 WL 3506103 (6^th Cir. 2011):

Holding: District court cannot base longer sentence on impermissible factor of promoting rehabilitation.
U.S. v. Priester, 2011 WL 2936008 (6^th Cir. 2011):

Holding: Where judge made comments suggesting he did not believe he had authority to reject 100:1 crack ratio at sentencing, remand was warranted.
U.S. v. Vanhook, 2011 WL 1458656 (6^th Cir. 2011):

Holding: Tenn. conviction for burglary of a building is not sufficiently purposeful or violent to constitute violent felony under “otherwise” clause of ACCA.
Evans v. Zych, 2011 WL 2685599 (6^th Cir. 2011):

Holding: Unlawful receipt and possession of firearm are not “crimes of violence.”
U.S. v. Oaks, 2011 WL 6224551 (6^th Cir. 2011):

Holding: Defendant’s escape from a courtroom was an escape from nonsecure custody, and not a violent felony, under the Armed Career Criminal Act.
U.S. v. Williams, 2011 WL 1774516 (6^th Cir. 2011):

Holding: Conducting sentencing hearing by videoconference violated Defendant’s right to be present at sentencing.
U.S. v. Brown, 2011 WL 1843377 (6^th Cir. 2011):

Holding: Term of imprisonment imposed upon revocation of supervised release must be deducted from any supervised release period to which Defendant would be sentenced.
U.S. v. Oaks, 90 Crim. L. Rep. 391 (6^th Cir. 12/15/11):

Holding: Escape from a non-secure courtroom was not a violent felony under ACCA.
U.S. v. Trent, 89 Crim. L. Rep. 777 (6^th Cir. 8/5/11):

Holding: Sex offender who was convicted after enactment of SORNA on July 27, 2006, but before SORNA was implemented in that particular jurisdiction was not required to register under SORNA before 2008, when the DOJ promulgated valid rules specifying the application of SORNA to pre-implementation convictions.
U.S. v. Taylor, 89 Crim. L. Rep. 412 (6^th Cir. 6/7/11):

Holding: Under Pepper v. U.S. (U.S. 2011), re-sentencing judge should not have a policy of not considering guideline amendments promulgated since a defendant’s original sentencing.
U.S. v. Galaviz, 89 Crim. L. Rep. 214 (6^th Cir. 5/6/11):

Holding: USSG’s that set a 15-year age limit on counting priors are in conflict with each other, 4A1.2(e)(1) and 4A1.2(k)(2)(B); court resolves conflict by holding that parole must actually be revoked to bring the sentence within the 15-year period.
U.S. v. Phillips, 89 Crim. L. Rep. 127, 2011 WL 1304475 (6^th Cir. 4/7/11):

Holding: Where Defendant commits crime of failure to appear to serve a reinstated prison term following revocation of supervised release, the underlying offense that determines the sentence for the failure to appear is the original crime, not the supervised release violation.
U.S. v. Howard, 89 Crim. L. Rep. 420 (6^th Cir. 5/24/11):

Holding: Judge ruling on motion to reduce sentence under retroactive amendment to USSG must provide more than a check-the-box order to explain his decision.
U.S. v. Gibbs, 2010 WL 4781298 (6^th Cir. 2010):

Holding: Sentencing court committed plain error in holding that walkaway prison escape and failure to comply resisting arrest were crimes of violence.
1/28 U.S. v. Jordan, 2014 WL 292396 (7^th Cir. 2014):
Holding: Trial court erred in admitting Officer’s hearsay evidence during supervised release revocation hearing without balancing Defendant’s confrontation rights against Gov’t’s stated reasons for denying them.
1/10 U.S. v. Spencer, 2014 WL 97290 (7^th Cir. 2014):

Holding: Wisconsin meth statute did not carry a “maximum term of imprisonment of 10 years of more, and thus Defendant’s prior conviction under statute did not qualify as a predicate felony under ACCA.
U.S. v. Poulin, 94 Crim. L. Rep. 746 (7^th Cir. 3/6/14):

Holding: Even though district court imposed sentence below the Guideline range, the court erred in failing to address Defendant’s request for leniency based on a survey of federal judges indicating most believed the child pornography Guidelines are too harsh.
U.S. v. Adkins, 94 Crim. L. Rep. 535, 2014 WL 325254 (7^th Cir. 1/30/14):

Holding: Even though Defendant waived his right to appeal, this did not prohibit appealing a condition of supervised release prohibiting him from patronizing any place where pornography or sexually oriented material was available; the condition was so vague that no reasonable person would know what is prohibited, and Defendant should be allowed to obtain appellate review of it; the condition would arguably ban going to a grocery store or library.
12/20 U.S. v. Doss, 2014 WL 6698046 (7^th Cir. 2013):

Holding: Imposition of sentencing increase for various offenses of trafficking of unauthorized access devise was not authorized under USSG which prohibited simultaneous application of a sentencing increase for the transfer of a means of identification.
10/31 U.S. v. Johns, 2013 WL 5539608 (7^th Cir. 2013):

Holding: In sentencing Defendant for felon-in-possession of firearm, the application of both the trafficking enhancement and the other felony offense enhancement, based on the same conduct of transferring the gun to an informant, constituted impermissible double counting.
U.S. v. Miller, 2013 WL 3215670 (7^th Cir. 2013):

Holding: Mere possession of a short-barrel shot gun is not a “crime of violence.”
U.S. v. Gulley, 2013 WL 2991794 (7^th Cir. 2013):

Holding: Even though Defendant received a sentence within the range that would have been found under the Fair Sentencing Act, there was no showing that the court would have actually imposed the same sentence if FSA had actually applied at sentencing, so Defendant was entitled to resentencing.


U.S. v. Zamudio, 2013 WL 2402861 (7^th Cir. 2013):

Holding: Without imposing any term of supervised release, sentencing court lacked authority to impose post-imprisonment requirement on Defendant to be turned over to immigration authorities for removal and to remain outside the U.S.
Brown v. Caraway, 2013 WL 1920931 (7^th Cir. 2013):

Holding: Delaware conviction for arson in third degree was not “crime of violence.”
U.S. v. Block, 2013 WL 376075 (7^th Cir. 2013):

Holding: A co-conspirator’s firearms possession was not reasonably foreseeable to Defendant to warrant sentence enhancement for possessing firearms by co-conspirator, where there was no evidence Defendant heard or knew about gun, and seeing a rifle at co-conspirator’s home was not sufficient since Defendant did not see drugs at that house and that house was not base of drug distribution.
U.S. v. Diaz- Rios, 2013 WL 332277 (7^th Cir. 2013):

Holding: Court did not adequately explain why it did not apply mitigating factors in sentencing Defendant, including his overall participation in the conspiracy.

U.S. v. Lyons, 94 Crim. L. Rep. 178, 2013 WL 5778958 (7^th Cir. 10/28/13):

Holding: Even though Defendant proposed a 210-month sentence as his “second fallback” position, the trial court was still required under 18 USC 3553(c) to explain why she was imposing that sentence.
U.S. v. Rabiu, 93 Crim. L. Rep. 610 (7^th Cir. 8/1/13):

Holding: Number-of-victims enhancement for identity theft in USSG 2B1.1(b)(2) does not apply unless the misappropriated information was actively used, and not merely possessed.
U.S. v. Walker, 93 Crim. L. Rep. 565, 2013 WL 3336720 (7^th Cir. 7/3/13):

Holding: Before applying mandatory minimum 20-year sentence under 21 USC 841(a)(1) for causing a death during a drug conspiracy, the court must make findings beyond mere participation in the conspiracy such as foreseeability principles that govern co-conspirator liability.
U.S. v. Weaver, 93 Crim. L. Rep. 364 (7^th Cir. 6/3/13):

Holding: Even though Defendant-drug dealer sold meth on credit to two buyers who paid off their debt by reselling it to their own customers, Defendant was not subject to USSG enhancement 3B1.1(b) for acting as a “manager or supervisor” of criminal activity.
U.S. v. Martin, 93 Crim. L. Rep. 319, 20123 WL 2302103 (7^th Cir. 5/28/13):

Holding: Sentencing court erred when it sentenced Defendant for possessing child pornography without addressing his arguments that applying child-pornography USSG to defendants who have no history of personally contacting minors would not meet to goals of sentencing.
U.S. v. Goodwin, 93 Crim. L. Rep. 206, 2013 WL 1891302 (7^th Cir. 5/18/13):

Holding: Crime of failing to register under SORNA does not qualify as a “sex offense” for purposes of USSG that calls for lifetime supervision of sex offenders.
U.S. v. Reynolds, 93 Crim. L. Rep. 212 (7^th Cir. 5/8/13):

Holding: USSG that enhances sentence for kidnapping if ransom was demanded requires that the ransom demand be made to a third party other than the kidnapped person.
U.S. v. Robinson, 93 Crim. L. Rep. 68, 2013 WL 1405534 (7^th Cir. 4/9/13):

Holding: Where Defendant used a file sharing program in his possession of child pornography case, the Gov’t had to prove that he knew or recklessly disregarded that the program also shared files with others in order for sentence to be enhanced for distribution of pornography.
U.S. v. Peterson, 93 Crim. L. Rep. 15 (7^th Cir. 3/28/13):

Holding: Even though Federal Rules allow judges to receive confidential sentencing recommendations from probation department, the better practice in most cases is to share the recommendation with Defendant.
U.S. v. Patrick, 92 Crim. L. Rep. 623, 2013 WL 537137 (7^th Cir. 2/14/13):

Holding: Sentencing judge gave insufficient explanation for failing to follow Gov’t sentencing recommendation for cooperating witness.
U.S. v. Wren, 92 Crim. L. Rep. 570 (7^th Cir. 2/7/13):

Holding: Even though cocaine trafficking defendants originally received sentences below statutory minimums, they may still obtain lower sentences in under the USSG crack amendments.
Doe v. Prosecutor, Marion County, 92 Crim. L. Rep. 491 (7^th Cir. 1/23/13):

Holding: Indiana statute that prohibits sex offenders from accessing chatrooms and social media sites violates First Amendment because it was too broad a prohibition.
Brown v. Rios, 2012 WL 3554093 (7^th Cir. 2012):

Holding: Compelling a person to become a prostitute under Illinois pandering statute is not a “crime of violence.”
U.S. v. Trujillo-Castillon, 2012 WL 3290154 (7^th Cir. 2012):
Holding: Where sentencing court compared Defendant to Mariel Cuban boatlift people 30 years ago and contrasted the values of people from the U.S. with those “from Cuba,” this made Defendant’s national origin an impermissible factor in sentencing.
U.S. v. Dooley, 2012 WL 3056079 (7^th Cir. 2012):

Holding: Sentencing court committed plain error in failing to expressly consider applicable note on concurrent and consecutive sentences for aggravated identity theft.
Kirkland v. U.S., 2012 WL 3002606 (7^th Cir. 2012):

Holding: Proof of a “violent felony” conviction, plus an ambiguous record regarding the separate occasions inquire, was not sufficient for enhancement under ACCA.
U.S. v. Burge, 2012 WL 2401725 (7^th Cir. 2012):

Holding: Defendant’s state conviction for misdemeanor abandonment of an animal was similar to a fish and wildlife violation and should not count in criminal history points under the USSG.
U.S. v. Pennington, 2012 WL 310830 (7^th Cir. 2012):

Holding: In order for a sentence to be imposed in a procedurally reasonable manner, the judge must consider the defendant’s arguments based on a detailed analysis of the statutory sentencing factors rather than simply presuming that a sentence within the Guidelines range is reasonable.
U.S. v. Navarrete,2012 WL 147927 (7^th Cir. 2012):

Holding: Restitution could not be based upon the proposition that any payment obtained by fraud enriched the seller, as that amount does not necessarily represent the loss to the purchaser.
U.S. v. Laraneta, 92 Crim. L. Rep. 210 (7^th Cir. 11/14/12):

Holding: Victims in child pornography images are not entitled to restitution from a defendant unless the Gov’t can show that the defendant distributed the images and that the distribution proximately caused the victims’ harm (disagreeing with 5^th Circuit).
U.S. v. Mount, 91 Crim. L. Rep. 93 (7^th Cir. 4/12/12):

Holding: When a judge determines that a Defendant deserves a two-level adjustment under USSG 3E.1.1(a) for acceptance of responsibility, and prosecutors move for an extra third-level reduction, the judge lacks authority to deny the Gov’t’s motion.
U.S. v. Bradley, 91 Crim. L. Rep. 101 (7^th Cir. 4/5/12):

Holding: Federal judge failed to adequately explain a 20-year sentence given to a child sex defendant where the USSG recommended 6 years.

U.S. v. Halliday, 2012 WL 447450 (7^th Cir. 2012):

Holding: The sentencing court’s plain error in relying on speculation that the defendant considered his possession of child pornography a victimless crime affected the defendant’s substantial rights.
U.S. v. Robertson, 2011 WL 5555865 (7^th Cir. 2011):

Holding: District court failed to consider adequately defendants’ strong evidence of rehabilitation where such evidence directly related to statutory sentencing factors.
U.S. v. Brown, 2011 WL 4921715 (7^th Cir. 2011):