For the week of June 26, 2015
Administrative Note: No roundup next week due to the holiday. See you July 10...
In this edition:
- Sentencing Issues in Reentry Cases (Resource Counsel)
- 2014 Drug Guidelines Amendment Retroactivity Data Report (U.S. Sentencing Commission)
- The Surprisingly Imperfect Science of DNA Testing (Marshall Project)
- Robina Institute now has great new "Sentencing Guidelines Resource Center" (SL&P)
- Beware of Winking and Nodding with Informants (Carl Gunn)
- Rosati v. Igbinoso (per curiam) (§1983) (plaintiff prisoner stated claim for deliberate indifference based on prison officials’ denial of sex reassignment surgery).
- Carlson v. Att’y Gen. of California (§2254) (no unreasonable determination that forfeiture by wrongdoing applied to defendant whose wife and son failed to show up to testify, where evidence was that wife was distraught, defendant was away from home when wife and son were, and defendant had told all of his other children not to call mother).
- U.S. v. Jefferson (to prove mandatory minimums that apply to “knowin[g] or intentiona[l]” importation of controlled substance under 21 U.S.C. §960, government need only prove defendant knew he was importing some controlled substance; circuit precedent on this point was not abrogated by Alleyne or Flores-Figueroa) (Fletcher in concurrence says government should have to prove knowledge of the specific drug for man-mins, McFadden notwithstanding). UPDATE (6.29.15): More at Ninth Circuit Blog.
- U.S. v. Rodriguez (defendant’s attempting to see how far laser would go at night by shining it on helicopter was insufficient to prove willful attempt to interfere with its operation under 18 U.S.C. §32(a)(5) and (8)) (remaining count for aiming laser at aircraft in violation of §39A was sent back down for resentencing in light of Gardenhire).
- U.S. v. Morales-Landa (unpub’d) (Utah sexual abuse of child, Code §76-5-404.1(2), criminalizes nonsexual conduct, is thus broader than generic sexual abuse of minor (an aggravated felony), and is indivisible).
- Johnson v. U.S. (ACCA residual clause is unconstitutionally vague, because it requires judges to assess risk of abstract “ordinary case” instead of specific elements or real-world facts).
- King v. Burwell (administrative law) (validity of tax credits in Affordable Healthcare Act is “question of deep ‘economic and political significance’” to which Chevron deference does not apply).
- Carlton v. U.S. (in statement respecting denial of cert., Sotomayor with Breyer explains why Fifth Circuit’s categorical-but-intermittently-used bar on plain error review of factual errors is wrong).
- U.S. v. Robertson (5th Cir.) (consent of motorist after the old “Before you go...” trick was involuntary). (H/T)
- U.S. v. Dixon (7th Cir.) (Easterbrook, J.) (government failed to prove butane lighter used in bank robbery was “dangerous weapon or device” within §2213(d)). (H/T)
- U.S. v. Hines-Flagg (7th Cir.) (defendant’s moving while continuing to commit scheme did not mean scheme had been relocated as would be required for application of §2B1.1(b)(1)(A) enhancement).
- U.S. v. Lockwood (7th Cir.) (district court did not adequately justify upward variance 120 months, nearly triple the high end; court failed to “explain with particularity the reasons why Lockwood is different from the vast majority of defendants,” and “the facts recounted by the court must address the disparity”).
- U.S. v. Pulgar (7th Cir.) (evidence of conspiracy here didn’t amount to anything more than repeat buyer-seller relationship).
- U.S. v. Williams (10th Cir.) (§2255) (defendant was entitled to file successive motion in light of “miscarriage of justice,” based on alleged recantation by informant who had provided false evidence of controlled buy). (H/T)
- U.S. v. Vanderwerff (10th Cir.) (district court abused its discretion in rejecting plea agreement based on appeal waiver; §3553(a) factors are irrelevant at entry of guilty plea). (H/T)
- People v. Elizalde (Cal.) (questions about defendant’s gang affiliation fell outside booking exception to Miranda). (H/T)
- Punishment in Popular Culture, Austin Sarat & Charles Ogletree Jr., NYU Press (Amazon). (H/T)
- “Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights,” Sarah French Russell, 56 B.C. L. Rev. 553 (2015) (SSRN). (H/T)
- “Prejudicial Character Evidence: How the Circuits Apply Old Chief to Federal Rule of Evidence 403” (Note), Hannah Goldman, ___ Fordham L. Rev. ___ (forthcoming) (SSRN). (H/T)
- “Every Consumer Knows How to Run a Business: The Dangerous Assumptions Made When a Prior Possession Conviction is Admitted as Evidence in a Case Involving Commercial Drug Activity,” Ashley Hinkle, 35 N. Ill. U. L. Rev. 401 (2015) (SSRN). (H/T)
- “As If All the World Were Watching: Why Today's Law Enforcement Needs to Be Wearing Body Cameras,” Rikkilee Moser, 7 N. Ill. L. Rev. Online J. ___ (2015) (SSRN). (H/T)