For the week of August 7, 2015
In this edition:
- Life Sentence for James Holmes, Aurora Theater Gunman (New York Times)
- Probation May Sound Light, but Punishments Can Land Hard (New York Times)
- Should I Use the Term “Illegal Immigrant”? (New Yorker)
- U.S. Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act (SL&P)
The U.S. Sentencing Commission invites comment on proposed changes to the guidelines that would eliminate the residual clause from the definition of “crime of violence,” bringing the definition in line with the Supreme Court’s recent decision in Johnson. The Commission also finalized its priorities for the new amendment cycle, which include efforts to work with Congress to address the severity and disparity problems associated with statutory minimum penalties.
- Shelton v. Marshall (§2254) (state’s failure to disclose secret deal it had struck with co-defendant to hold off on competency evaluation until after he testified against petitioner at trial was clear violation of Brady, and prejudicial on de novo review).
- U.S. v. Lapier (evidence was sufficient to show defendant entered into two separate drug conspiracies with two different suppliers, and more than mere buyer-seller relationship) (failure to supply specific unanimity instruction was plain error). UPDATE (8.10.15): More at Ninth Circuit Blog.
- U.S. v. Martin (evidence of defendant’s state tax audits was irrelevant and (even if relevant) unduly prejudicial to proving federal tax charges) (loss under §2B1.1 from government contracts meant to aid disadvantaged business should be calculated using procurement fraud rule in application note 3(A)(v)(II), not government benefits rule or regulatory approval rule, because government received some value from defendant’s performance).
- U.S. v. Davis (en banc order).
- U.S. v. Leung (Fed. R. Evid. 606(b) barred consideration of jury discussions that took place before deliberations commenced, despite juror’s affidavit alleging that other jurors violated court’s instructions).
- Andrews v. Davis (§2254) (state court did not violate CEFL in finding counsel’s deficient performance harmless) (lethal injection claim was unripe given that there’s no protocol in place) (COA denied on remaining claims, including claims under Lackey, Strickland, Brady/Napue, and Trombetta).
- Rogers v. Ferriter (habeas) (prisoner’s state application was “pending” within §2244(d)(2) during abeyance granted by state supreme court so that he could seek other state collateral review).
- U.S. v. Hernandez (child pornography distributor who anticipates “thing of value” in return for distribution is subject to §2G2.2(b)(3)(B) enhancement, even without an agreement for anticipated exchange) (district court didn’t rely on unproven allegations, though question was “somewhat close”) (panel gives nod to Second Circuit’s decision in Cossey (which reversed sentence that was based on district court’s un-supported belief that child pornography possession is genetically de-termined), but says it doesn’t apply here because district court didn’t claim defendant would be unable to control his behavior) (no inconsistency in district court’s imposition of §3553(a) sentence that was (it “just so happens”) within range that used 2-point computer enhancement court had said it rejected for policy reasons) (low end sentence wasn’t substantively unreasonable, even though it was above government’s recommendation) (discrepancies between oral pronouncement and written judgment required only ministerial changes on remand, so request for reassignment was moot).
- Chavez v. Lynch (unpub’d) (immigration) (California petty theft with priors, Penal Code §§484(a) & 666, is categorically not an aggravated felony theft offense). (H/T Jim Locklin)
- Govindarajan v. Lynch (unpub’d) (immigration) (assault under Arizona Rev. Stat. §13-1203(A)(3) is categorically not a CIMT). (H/T Jim Locklin)
- Sanchez-Nino v. Lynch (unpub’d) (immigration) (California Health & Safety Code §11378 is divisible, but government failed to show conviction here involved methamphetamine, where complaint alleged meth but notation on minute order stated “DA to file amended info”). (H/T Jim Locklin)
- Formal Op. (Cal. Bar. Comm’n on Prof’l Responsibility) (attorney’s ethical duty of competence may require higher level of technical knowledge or ability regarding e-discovery issues in particular cases, including duty to seek assistance in litigation matters involving ESI). (H/T)
Former Justice Department officials filed an amicus brief last week in support of cert. petitioner George Georgiou, opposing the position taken by the Justice Department, which seeks to impose an antecedent “due diligence” inquiry on defendants who bring challenges under Brady. More at the New York Times.
- U.S. v. Cardoza (1st Cir.) (panel construed district court’s sua sponte order modifying sentence under §3582(c)(2) as indicative ruling under FRAP and remanded for appropriate order, where circuit authority barred §3582(c)(2) modifications while an appeal is pending).
- U.S. v. Graham (4th Cir.) (examination of cell phone user’s historical cell site location information requires probable cause warrant, though government here gets a good-faith pass this time). (H/T)
- U.S. v. Lowe (6th Cir.) (in child pornography case, evidence that defendant owned laptop computer wasn’t enough to show he’d knowingly downloaded etc. images found on it, where computer, program, and files weren’t password protected, and laptop was in area of home defendant shared with two others). (H/T)
- U.S. v. Soto (6th Cir.) (in light of clarifying amendments to Fed. R. Crim. P. 12, failure to raise Rule 12 issues before appeal does not waive claim). (H/T)
- Price v. U.S. (7th Cir.) (§2255) (Supreme Court announced new substantive rule in Johnson when it ruled that ACCA residual clause is unconstitutionally vague). (H/T)
- U.S. v. Fonseca (8th Cir.) (failure to reduce restitution by value of recovered guns was plain error) (on remand reduction must be based on guns’ value to victim rather than what victim paid insurer to get guns back, and government must give full accounting of recovered guns in official custody and their disposition).
- U.S. v. Durham (11th Cir.) (en banc) (supplemental briefing on an issue never raised in opening brief will be accepted in cases pending on direct review when intervening Supreme Court decision abrogates circuit authority).
- U.S. v. Willner (11th Cir.) (evidence was insufficient to support inference that defendant doctor was part of Medicare fraud conspiracy, where it showed (among other things) that defendant altered and completed patient files to make them compliant, that there’d been some deficiencies noted, and that another doctor had backdated charges based on his understanding of what defendant told him to do). (H/T)
- “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. United States,” Gabriel J. Chin & Charles J. Vernon, 83 Geo. Wash. L. Rev. 882 (2015) (pdf).
- “Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study,” Andrew Chongseh Kim, 84-5 Miss. L.J. ___ (2015) (SSRN). (H/T)
- “The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining,” Robert Schehr, working paper (SSRN). (H/T)
- “Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law,” Melissa Hamilton, 47 Ariz. St. L.J. 1 (2015) (pdf).
- “Introduction: Symposium 2014: Vulnerable Defendants and the Criminal Justice System,” Tamar R. Birckhead & Katie Rose Guest Pryal, 93 N.C. L. Rev. 1211 (2015) (SSRN). (H/T)
- “Drone Technology and the Fourth Amendment: Aerial Surveillance Precedent and Kyllo Do Not Account for Current Technology,” Veronica E. McKnight, 51-2 Cal. W. L. Rev. ___ (2015) (abstract). (H/T)
- “Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century,” Meg Beardsley et al., 92-4 Denver U. L. Rev. ___ (2015) (SSRN). (H/T)
- “Convicting the Innocent Redux,” Brandon L. Garrett, from Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent, D. Medwed, ed., Cambridge U. Press (forthcoming) (SSRN). (H/T)
- “The Wrongs of Unlawful Immigration,” Ana Aliverti, ___ Crim. L. & Phil. ___ (2015) (SSRN). (H/T)
- “From the Aztecs to the Kalahari Bushmen—Conservative Justices’ Citation of Foreign Sources: Consistency, Inconsistency, or Evolution?,” Zachary D. Kaufman, 41 Yale J. Int’l L. 1 (2015) (pdf). (H/T)
- “Introduction to Juries and Lay Participation: American Perspectives and Global Trends,” Nancy S. Marder & Valerie P. Hans, 90 Chi.-Kent L. Rev. 789 (2015) (SSRN). (H/T)
- “Surcharges and Penalties in Tax Law: United States,” Stephen W. Mazza et al., research paper (SSRN). (H/T)