Case Law Update: 2011-2014 Cumulative Edition

Holding: Trial court committed plain error in imposing the mandatory minimum fine for each count of conviction for possession with intent to sell where the court considered itself obligated to impose a fine for each count, despite the fact that defendant was unable to pay.
U.S. v. Lee, 2011 WL 4583784 (7^th Cir. 2011):

Holding: Periodic payments from a pension or retirement savings plan constituted earnings, thus prohibiting the United States from garnishing more than 25% pursuant to an order of restitution under the Mandatory Victims Restitution Act.
U.S. v. Robertson, 2011 WL 3559995 (7^th Cir. 2011):

Holding: Where judge gave no explanation for sentencing above Guidelines other than to say he was “baffled” why Defendant grew marijuana and he should try “growing gardenias or something legal,” case must be remanded for resentencing.
U.S. v. Burnett, 89 Crim. L. Rep. 475 (7^th Cir. 6/6/11):

Holding: 7^th Circuit adopts broad interpretation of rule that prior convictions for which defendants’ civil rights have been restored do not count as predicates for sentences under ACCA.
U.S. v. Lopez, 88 Crim. L. Rep. 748 (7^th Cir. 3/4/11):

Holding: District judge measuring the seriousness of an alien’s prior drug-trafficking conviction for purposes of USSG enhancement for illegal re-entry should look to sentence imposed before defendant’s removal and re-entry, and not to any later sentence increase based on a probation revocation.
U.S. v. Fuchs, 88 Crim. L. Rep. 813 (7^th Cir. 3/17/11):

Holding: Mortgage broker who submitted false loan applications to lenders was not subject to enhancement under USSG for abuse of trust.
U.S. v. Johnson, 88 Crim. L. Rep. 815 (7^th Cir. 3/24/11):

Holding: Even though district judge knew she could “disregard” the USSG range regarding the crack/cocaine disparity, where she said “the more prudent approach is to let Congress do whatever it chooses” rather than have judges “just winging it” and she imposed a life sentence, the sentence did not conform with the parsimony provision, 18 USC 3553(a), which requires a sentence be “sufficient, but not greater than necessary” to comply with sentencing purposes.
Narvaez v. U.S., 89 Crim. L. Rep. 421 (7^th Cir. 6/3/11):

Holding: Begay v. U.S., 553 U.S. 137 (2008) and Chambers v. U.S., 555 U.S. 122 (2009) are retroactive.
U.S. v. Sonnenberg, 2010 WL 4962821 (7^th Cir. 2010):

Holding: Prior conviction under Minnesota law for “intrafamilial sexual abuse” was not “crime of violence.
U.S. v. Boose, 2014 WL 148738 (8^th Cir. 2014):

Holding: Arkansas conviction was not “crime of violence” since could be violated with “reckless” mental state.
U.S. v. Sneed, 94 Crim. L. Rep. 558, 2014 WL 443973 (8^th Cir. 2/5/14):
Holding: USSG 2K2.1(b)(6)(B)’s enhancement for firearms possession in connection with another felony offense does not require a sentencing judge to make a specific finding as to how a firearm facilitated a possessory drug offense (disagreeing with other 8^th Circuit opinions).
10/9 U.S. v. Ashcraft, 2013 WL 5539599 (8^th Cir. 2013):

Holding: Defendant’s receipt of disability payments from her former employer due to work related injury were “earnings” and thus subject to the limitations in the Consumer Protection Act on garnishment, when the Gov’t tried to collect those payments to pay restitution for a criminal case.
U.S. v. Wroblewski, 2013 WL 2258432 (8^th Cir. 2013):

Holding: Condition of supervised release, which prohibited Defendant from contact with his girlfriend’s family, was not reasonably related to the sentencing factors and was more restrictive than necessary.
U.S. v. Higgins, 710 F.3d 839 (8^th Cir. 2013):

Holding: Court erred in sentencing Defendant as career offender since he did not have two prior controlled substance convictions as required under USSG; his prior Missouri conviction for “felony trafficking” did not meet definition of a “controlled substance offense.” Further, his non-predicate trafficking offense, rather than the delivery offense which occurred on the same day, received the criminal history points due to having a longer sentence, thereby making the delivery offense precluded from consideration as a prior felony conviction for sentencing purposes.
U.S. v. Logan, 710 F.3d 856 (8^th Cir. 2013):

Holding: Even though Defendant was sentenced pursuant to a binding plea agreement, where the agreement was for a sentencing range rather than a specific sentence, Defendant was eligible for a sentence reduction under statute authorizing sentence reductions where the sentencing range was subsequently lowered by USSG.
U.S. v. Lunsford, 93 Crim. L. Rep. 639 (8^th Cir. 8/5/13):

Holding: SORNA did not require a sex offender-Defendant who moved from his home in Missouri to the Philippines to notify state authorities of his change of residence; nothing in SORNA requires a sex offender to notify authorities that he is moving out of U.S. to a foreign county, and no public policy reason requires this since there is no danger to U.S. children when Defendant leaves the country.
U.S. v. Lara-Ruiz, 93 Crim. L. Rep. 562 (8^th Cir. 7/22/13):

Holding: Error under the U.S. Supreme Court’s decision in Alleyne (U.S. 2013)(requiring a jury find facts that increase mandatory minimum sentences) can be raised as plain error; “the fairness and integrity of the judicial proceedings in this case were affected by the expansion of [Defendant’s] loss of liberty resulting from the erroneous increase in the mandatory minimum sentence, without the requisite jury finding.”
U.S. v. Johnson, 93 Crim. L. Rep. 16, 2013 WL 1188037 (8^th Cir. 3/25/13):

Holding: (1) Defendant’s due process right to confront witnesses at supervised-release revocation hearing was violated when judge allowed Gov’t to prove Defendant had committed a new crime by presenting the contents of an arrest report without testimony of arresting officer; (2) because Gov’t had a full opportunity to present its evidence, it is not entitled to a second bite at apple on remand; rather, Defendant is to be resentenced without consideration of the contents of the police report.
U.S. v. Fast, 92 Crim. L. Rep. 761 (8^th Cir. 3/11/13):

Holding: Joining the majority of other circuits that have ruled on this issue, 8^th Circuit holds that victims depicted in child pornography must demonstrate a proximate link between the harm for which they seek restitution and each particular defendant’s conduct (disagreeing with 5^th Circuit in In re Amy Unknown, 701 F.3d 749 (5^th Cir. 2013)).
U.S. v. Anderson, 2012 WL 3023497 (8^th Cir. 2012):

Holding: Sentencing Commission acted within its authority by issuing its policy statement governing motions for sentence reduction under the provision regarding modification of an imposed term of imprisonment based on a subsequently amended Sentencing Guideline range.
U.S. v. Lara, 2012 WL 3763617 (8^th Cir. 2012):

Holding: Sentencing court erred in allowing plea agreement to be breached where sentencing court allowed Gov’t to present evidence of drug quantity listed in the PSI after the Gov’t had stipulated to the quantity in the agreement.
U.S. v. Galaviz, 687 F.3d 1042 (8^th Cir. 2012):
Holding: Even though Defendant pleaded guilty to a drug offense and being a felon in possession, where he later conspired to murder an informant in retaliation for cooperation with the Gov’t, this was not a willful attempt to obstruct justice with respect to sentencing of the “instant offense of conviction;” the Defendant could not have intended to obstruct justice for an offense to which he had already pleaded guilty.
U.S. v. Gamble, 2012 WL 2742553 (8^th Cir. 2012):

Holding: Even though Defendant committed his crime before Fair Sentencing Act, Defendant was entitled to application of the Act where he was sentenced after FSA’s effective date.


U.S. v. Dawn, 2012 WL 2428414 (8^th Cir. 2012):

Holding: Arkansas battery conviction was not categorically a “crime of violence” under career offender enhancement statute.
U.S. v. Olson, 2012 WL 97525 (8^th Cir. 2012):

Holding: Where sentencing court stated that defendant would benefit from treatment in a federal program and rejected the presentence investigative report’s recommendations, the resulting sentence may have been impermissibly lengthened to enable treatment and promote rehabilitation.
U.S. v. Jimenez-Perez, 2011 WL 4916585 (8^th Cir. 2011):

Holding: Sentencing court in nonfast track district may consider sentencing disparities created by fast track programs.
U.S. v. Willoughby, 90 Crim. L. Rep. 15 (8^th Cir. 9/6/11):

Holding: Drug sales Defendant made to informer and cop at same time were not separate events to qualify as multiple drug predicates under ACCA.
U.S. v. Frazier, 2011 WL 3715454 (8^th Cir. 2011):

Holding: “Replacement value” of house is not proper standard of restitution under MVRA; “market value” of destroyed property was proper standard.
U.S. v. Renner, 89 Crim. L. Rep. 749 (8^th Cir. 8/8/11):

Holding: Even though the jury rejected tax-evader Defendant’s defense that he relied on tax preparation experts to prepare his taxes, this did not preclude the judge at sentencing from relying on this to sentence him to a below-guideline sentence.
U.S. v. Perry, 2011 WL 1900388 (8^th Cir. 2011):

Holding: Where proffer agreement was ambiguous in that one provision stated that Defendant’s statements may not be used in the case-in-chief (suggesting they could be used elsewhere), but another provision stated the statements could not be used in any legal proceedings unless Defendant made an inconsistent statement, the agreement had to be construed against the Gov’t and the statements could not be used in determining the Sentencing Guidelines range.
U.S. v. Lewis, 2011 WL 2083330 (8^th Cir. 2011):

Holding: The denial of the defendant’s right to participate in a sentence reduction hearing violated due process and his plea agreement.
U.S. v. Behrens, 89 Crim. L. Rep. 640 (8^th Cir. 7/13/11):

Holding: Even though Defendant pleaded guilty to securities fraud under 15 USC 78j(b) and other regulations, this does not preclude him from taking advantage of a provision that exempts from imprisonment those whose violations of securities rules or regulations were committed in ignorance of the rules or regulations.

Sun Bear v. U.S., 89 Crim. L. Rep. 643 (8^th Cir. 7/12/11)(en banc):

Holding: Begay v. U.S., 553 U.S. 137 (2008), regarding the types of prior convictions that will trigger sentence enhancements for firearms offenses, is not retroactive to cases on collateral review under 28 USC 2255.
U.S. v. Resinos, 88 Crim. L. Rep. 575, 2011 WL 309620 (8^th Cir. 2/2/11)(en banc):

Holding: Judges cannot aggregate drug amounts derived from “relevant conduct” described in dismissed counts to determine whether a defendant is eligible for mandatory minimum sentence, overruling U.S. v. Jenkins, 537 F.3d 894 (8^th Cir. 2008); “the only drug quantities that may trigger a mandatory minimum sentence for a discrete violation of Sec. 841(a) are those involved in the counts of conviction.”
U.S. v. Montes-Ruiz, 95 Crim. L. Rep. 13 (9^th Cir. 3/21/14):

Holding: Federal judge cannot order Defendant’s sentence run consecutively to an anticipated, but not-yet-imposed, federal sentence in a different matter.
U.S. v. Wisecarver, 2011 WL 2569753 (8^th Cir. 2011):

Holding: Where Defendant was convicted of depredation of government property, special condition of supervised release prohibiting use of alcohol and requiring blood and breath tests was improper where court failed to provide any explanation for such conditions, and gov’t contention that alcohol use could exacerbate Defendant’s volatile temper was speculative.
U.S. v. Smith, 2011 WL 285056 (8^th Cir. 2011):

Holding: Fair Sentencing Act (FSA), which increased quantity of crack needed to trigger a mandatory life sentence from 50 to 280 grams, does not apply retroactively to cases pending on appeal at time FSA was enacted.
U.S. v. Pietrantonio, 2011 WL 869477 (8^th Cir. 2011):

Holding: Venue for violation of SORNA was not proper in Minnesota for a trip from Minnesota to Nevada, or for a second trip from Nevada to Massachusetts; although Minnesota had a connection to the first trip, it had no connection to the second trip, and the indictment was duplicitous, such that the appellate court could not vacate the conviction concerning the second trip without violating Defendant’s right to a unanimous jury verdict.
U.S. v. Lewis, 89 Crim. L. Rep. 381 (8^th Cir. 5/27/11):

Holding: Plea agreement which provided that Defendant, his attorney or the Gov’t can make whatever comment they deem appropriate at sentencing gave Defendant the right to be present when his sentence was reduced pursuant to Rule 35(b).
U.S. v. Perry, 89 Crim. L. Rep. 316 (8^th Cir. 5/20/11):

Holding: A proffer agreement that stated that Defendant understands that if he pleads guilty or goes to trial, the gov’t under 18 USC 3661 must provide to his sentencing judge the contents of the proffer, did not allow the district court to rely on the contents of the proffer to apply a sentence enhancement.
U.S. v. Ossana, 89 Crim. L. Rep. 215, 2011 WL 1517492 (8^th Cir. 4/22/11):

Holding: Prior crime with only recklessness as mens rea does not quality as a prior “crime of violence” under USSG.
U.S. v. Robinson, 89 Crim. L. Rep. 97 (8^th Cir. 4/12/11):

Holding: Conviction under Iowa’s drug-tax stamp law does not categorically qualify as a “controlled substance offense” for sentencing as a career offender under USSG, since law can apply to those who merely possess controlled substances.
U.S. v. Kelly, 2010 WL 4702445 (8^th Cir. 2010):

Holding: Supervised release condition for Defendant convicted of possession of firearm that prohibited him from having any material containing nudity or alluding to sexual activity was overbroad under 1^st Amendment.
U.S. v. Williams, 2010 WL 5071397 (8^th Cir. 2010):

Holding: District court cannot consider a police report in determining whether prior crime is “crime of violence” for purposes of career offender status; while the police report might be probative of the factual circumstances of the offense, such facts do not help in deciding if the statute under which Defendant was convicted was a “crime of violence.”
U.S. v. Popov, 94 Crim. L. Rep. 584 (9^th Cir. 2/11/14):

Holding: Amount fraudulently billed to insurers is prima facie evidence of Defendant’s intended loss under USSG, but parties may introduce additional evidence to demonstrate that the amount billed overstated or understates the Defendant’s intent.
U.S. v. Williams, 94 Crim. L. Rep. 556, 2014 WL 350078 (9^th Cir. 2/3/14):

Holding: Even though Defendant entered an Alford plea to a new state crime, this was not enough to revoke Defendant’s federal supervised release because it did not prove that he committed the new crime.
U.S. v. Caceres-Olla, 2013 WL 6847127 (9^th Cir. 2013):

Holding: Florida conviction for lewd or lascivious batter is not “crime of violence.”
U.S. v. Dejarnette, 2013 WL 6698063 (9^th Cir. 2013):

Holding: SORNA did not require sex offender who was convicted before SORNA’s enactment to register in the jurisdiction of his sex offense conviction when the offender resided in a different jurisdiction.
U.S. v. Cortes, 94 Crim. L. Rep. 85 (9^th Cir. 10/9/13):

Holding: Since the 6^th Amendment requires that juries, not judges, resolve questions of fact that increase a sentence, jury instructions must instruct on issue of “sentencing entrapment,” which occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped to commit a greater offense subject to greater punishment; here, Defendant was induced by a Gov’t agent to steal 100 kilograms of cocaine, which carried a harsher mandatory minimum than stealing of lesser amounts.
U.S. v. Flores-Cordero, 2013 WL 3821604 (9^th Cir. 2013):

Holding: Prior Arizona conviction for resting arrest was not categorically a “crime of violence.”
In re Stake Center Locating, Inc., 2013 WL 5356871 (9^th Cir. 2013):

Holding: Wire fraud victim had right to restitution for losses, but not a right to criminal forfeiture under Crime Victims’ Rights Act and Mandatory Victim Restitution Act.
U.S. v. Flores, 93 Crim. L. Rep. 726, 2013 WL 4614993 (9^th Cir. 8/30/13):

Holding: USSG enhancement that applies to firearms crimes involving a “missile” means a self-propelled device designed to deliver an explosive; cartridges fired by a grenade launcher are not “missiles” because they lack self-propulsion and a guidance system.
U.S. v. Thompson, 93 Crim. L. Rep. 774 (9^th Cir. 8/29/13):

Holding: 18 USC 844(h)(1) enhancement for using “fire or an explosive to commit any felony” does not apply to Defendant who used a thermal lance to cut into a safe; even though the lance used extreme heat to cut through metal, there was no “fire” as the term is commonly understood.
U.S. v. Acosta-Chavez, 2013 WL 4082128 (9^th Cir. 2013):

Holding: Illinois conviction for aggravated criminal assault was not categorically a “forcible sex offense” under crime of violence enhancement for illegally reentry after deportation, because Illinois definition of “minor” was broader than federal definition in that it included 17 year-olds (which federal law did not), and only part of the statute corresponded to generic federal crime of forcible sex offense.
Moore v. Biter, 93 Crim. L. Rep. 642 (9th Cir. 8/7/13):

Holding: The Ninth Circuit ordered federal habeas relief based on Graham for Juvenile-Defendant who would not become eligible for parole until he was 144 years old, for non-homicide sentences totaling 254 years. Sentence of 254 years is materially indistinguishable from a life sentence without parole because Juvenile will not be eligible for parole within his lifetime, regardless of his remorse, reflection, or growth.
U.S. v. Aguilar-Reyes, 93 Crim. L. Rep. 561 (9^th Cir. 7/18/13):

Holding: Where alien-Defendant wins a new sentencing hearing on appeal but is unable to appear at sentencing because he has been deported, the proper remedy is to affirm the sentence without prejudice to a later resentencing request he may make if and when he should return to the U.S., or waive his right to be present at sentencing.
U.S. v. Huizar-Velazquez, 93 Crim. L. Rep. 540 (9^th Cir. 7/2/13):

Holding: Where Defendant was convicted under 18 USC 371 for stamping “made in Mexico” on Chinese products he smuggled into U.S., the applicable USSG was 2T3.1, “evading import duties or restrictions (smuggling),” not 2C1.1 “conspiracy to defraud [a] governmental function” because 2C1.1 requires improper use of government influence, such as a bribery offense.
U.S. v. Gonzalez-Vazquez, 93 Crim. L. Rep. 452 (9^th Cir. 6/18/13):

Holding: A term of unsupervised probation on a prior conviction will not count toward a criminal history score under USSG if the probation imposed no restraints beyond what the law imposes on everyone.
U.S. v. Joseph, 93 Crim. L. Rep. 364, 2013 WL 2321443 (9^th Cir. 5/29/13):

Holding: 18 USC 1791 that mandates consecutive sentences for possessing or transferring drugs in federal prison applies only when the same drugs are both possessed and distributed; thus, where Defendant was convicted of two counts of possessing and transferring drugs in 2010, and a third count based on possession in 2011, the first two counts must be consecutive, but not the third count.
In re Amy & Vicky, 2013 WL 1847557 (9^th Cir. 2013):

Holding: Sentencing court did not err in refusing to impose joint and several liability for child pornography restitution award.
U.S. v. Trujillo, 93 Crim. L. Rep. 186 (9^th Cir. 4/16/13):

Holding: District court has jurisdiction to hear a second motion for sentencing reduction under 18 USC 3582(c)(2).
U.S. v. Yuman-Hernandez, 93 Crim. L. Rep. 69 (9^th Cir. 4/8/13):

Holding: Defendants caught in stings involving robberies or thefts of fake drugs can show “sentencing entrapment” (a.k.a. “sentencing factor manipulation” or “sentencing manipulation”) by showing that they lacked the intent regarding the quantity of drugs that police said existed without proving that they lacked the capability to deal with that large a quantity, and Defendants need not show “outrageous government conduct” to claim “sentencing entrapment”; “sentencing entrapment” is a claim challenging conduct by police to expand the scope of a crime by entrapping a target who intends to commit one offense to commit a greater offense subject to greater punishment.
U.S. v. Augustine, 2013 WL 1317037 (9^th Cir. 2013):