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Showing posts from February, 2007

Guidelines enhancement for bartering drugs for gun

In US v. Charles Navarro, No. 05-4102 (3d Cir. 2/14/06) (click to link) the 3rd Circuit upheld a 4-level enhancement under USSG section 2K2.1(b)(5) for possession of a gun "in connection with another felony offense."

Navarro, who was charged with being a felon in possession of a gun, had told police he had bartered three rocks of crack cocaine for the gun. At sentencing, the defense objected to a 4-level enhancement under USSG 2K2.1(b)(5) for possession of the gun in connection with a felony -- drug trafficking -- because in the context of the bartering arrangement here, the drug delivery was not sufficiently distinct from the offense of possession of the gun. The district court applied the enhancement.

On appeal, the Circuit interpreted two prior cases, Fenton, 309 F.3d 825 (3d Cir. 2002), and Lloyd, 361 F.3d 197 (3d Cir. 2004), in an effort to "distill" a rule applicable to a bartering situation such as this one. The Circuit concluded that these cases taken tog…

“Closely-regulated industry” exception to warrant requirement, as applied to PA Liquor Control Board, requires that Board officials conduct search

In a civil action under section 1983 alleging that a warrantless search of their tavern violated plaintiffs’ Fourth Amendment rights, defendants moved for summary judgment on the ground that the search had been conducted lawfully pursuant to the closely-regulated industry exception. That exception "requires that the search or seizure actually be carried out in accordance with a regulatory scheme that provides a constitutionally adequate substitute for a warrant." The defendants argued that the search was authorized under the Pa. Liquor Control Board’s regulations. Because the record showed that the search had been conducted by local police and not by any officials of the Board, the court examined Pa. law to determine whether the search met the requirements of the exception. Reviewing the state statutes and caselaw, the court determined that the regulatory scheme in Pa. only permits warrantless inspection by specified categories of individuals connected to the Board or workin…

“Fast-track” programs in other districts do not create “unwarranted” disparities with non-fast-track districts

In a decision that appears to create a conflict with the court’s decision in U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Third Circuit has rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. U.S. v. Vargas,, 2/16/07. At sentencing for illegal reentry by an alien, the defense requested that the court consider the disparity between his guideline range and the range he would fall in if he were being sentenced in one of the many districts that has a fast-track program. In those districts, where the Attorney General has granted the U.S. Attorney’s office authority to institute a fast-track program, defendants who plead guilty under the program receive a downward departure under U.S.S.G. § 5K3.1. The district court refused to consider the disparity argument and the Third Circuit affirmed. The court reasoned that the refusal to consider the disparity did not render the sentenc…

“Indecent assault” is a “crime of violence” under the guidelines, categorical approach does not apply and court can look to underlying facts

In U.S. v. Siegel,, (3d Cir. 2/16/07), the defendant had a prior Pa. conviction for "indecent assault." Under U.S.S.G. § 4A1.1(f), an extra criminal history point is awarded under certain circumstances for prior crimes of violence, as defined under section 4B1.2(a). The question on review was whether the indecent assault conviction qualified as a "forcible sexual offense," one of the enumerated crimes of violence under section 4B1.2(a). The Pa. statute has numerous subsections, some of which have an element of force and some of which do not. The charging information did not identify any particular subsection, but rather listed all of them. Also, the government did not introduce a plea agreement or colloquy from the prior case. Therefore, under a strict categorical approach, the conviction would not qualify. However, applying its 2004 decision in Singh v. Ashcroft, 383 F.3d 144, the court decided that it was not bound…

Proof Beyond Reasonable Doubt Not Necessary To Apply Sentencing Enhancements That Don't Increase Sentence Beyond Stat Max

[The Third Circuit’s decision in United States v. Grier includes the majority’s opinion, two concurrences and two dissents. The majority opinion, which is fairly straightforward, is summarized below. Summaries of Judge Ambro’s concurrence, Judge Sloviter’s dissent and Judge McKee’s dissent, will follow in a separate post.]

Brief Background: Defendant pled guilty to one count of 18 U.S.C. § 922(g)(1). District Court, employing preponderance standard, applied 4-point enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) (use of firearm in connection with another felony offense), based on finding that defendant committed aggravated assault. Enhancement raised range from 84 to 105 months to 120 to 150 months. Stat max was 10 years. District Court granted 2-level downward departure, lowering advisory range to 100 to 120 months, and imposed sentence of 100 months. Defendant appealed, and initial appellate decision was vacated for rehearing en banc.

The Third Circuit held today in United States v. Gr…

Large Upward Variance Rejected in First Substantive Sentencing Reversal, as Third Cir. Clarifies That Rehabilitation Is Not Grounds for Imprisonment

The Third Circuit broke new ground today by reversing, as unreasonably long, a 30-month sentence for counterfeiting checks when the Guidelines range was 2-8 months.

The bulk of the Court's opinion in United States v. Manzella deals with the threshold procedural issue of whether district courts may use imprisonment to promote rehabilitation, in this case drug treatment. The Court says "no," based on 18 U.S.C. 3582(a), which states that "imprisonment is not an appropriate means of promoting correction and rehabilitation." The Court explains that this is perfectly consistent with 18 U.S.C. 3553(a)(2)(D), which directs district courts to consider rehabilitation in determining sentence, because "imprisonment" and "sentence" do not mean the same thing. Thus, defendants "[can]not be sent to prison or held there for a specific length of time for the sole purpose of rehabilitation. Instead, that legitimate goal of sentencing is to be accomp…