Skip to main content


Showing posts from May, 2007

Change in Law Makes Defendant Innocent of Two Charges; Federal Courts Tell Pennsylvania to Devise a Solution Other Than Rescission of Plea Agreement

In McKeever v. Warden SCI-Graterford, No. 05-2492, (3d Cir. May 10, 2007), the Third Circuit (“3C”) held that the District Court did not err in granting defendant’s habeas writ, but staying that writ for 180 days and leaving the appropriate remedy to the discretion of the Commonwealth of Pennsylvania, where there was a mutual mistake of law by the parties during the plea agreement process.

McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act (“PACOA”). McKeever’s guilty plea was in exchange for the Commonwealth of Pennsylvania’s (“the Commonwealth”) promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two years of imprisonment.

In 1996, the Supreme Court o…

Third Circuit Unpersuaded That a Need to Pay Restitution to Microsoft Justifies a Variance From the Sentencing Guidelines

In United States v. Kononchuk, No. 06-2484, (3d Cir. May 8, 2007), the Third Circuit vacated the defendant’s sentence and remanded for resentencing, finding that the district court’s sentencing variance below the Guidelines was unsupported by a “meaningful consideration” of the §3553(a) factors and failed to address the government’s specific, meritorious concerns and objections raised during sentencing.

For three years Dmitri Kononchuk, a permanent resident alien living in the U.S., sold counterfeit versions of software for which Microsoft held the copyright. Kononchuk retained the services of Maxim Dolgosheev, a minor at the outset, to help him sell the software over the internet.

Dolgosheev pled guilty to four counts of conspiracy, trademark counterfeiting and copyright infringement. Because of Dolgosheev’s cooperation with the government, his agreement to testify against Kononchuk, his minority status when the criminal activity began, and his academic success, the government adv…

Sentence Reversed for Ex Post Facto Violation Citing Pre-Booker Precedent

In United States v. Shaheed Wood, No. 06-1372 (3d Cir. May 17, 2007), the Court of Appeals, using the plain error standard and citing only pre-Booker precedent, reversed a 6-level sentencing enhancement for assault on a police officer pursuant to U.S.S.G. § 3A1.2(c) on ex post fact grounds. The official victim enhancement was amended effective November 1, 2004. Wood engaged in the conduct charged in the indictment on January 10, 2004, approximately 10 months before the amendment became effective. Prior to the amendment Wood would have received a 3-level rather than a 6-level enhancement.

The Court also deemed improper that portion of the prosecutor’s closing argument where he argued that if the Government, police officers, citizens or judges make mistakes, the court of appeals will correct them. Such an argument may lead the jury to believe that if they made a mistake in wrongly convicting the Defendant, the court of appeals can correct that mistake, thereby minimizing the gravity of t…

Section 2254 - Constitutional Claims Not Exhausted by Direct Appeal in State Court

In Ellison v. Rogers, No. 04-2314, the Third Circuit held that a §2254 petitioner’s allegations of ineffective assistance should have been raised in state post-conviction proceedings rather than on direct appeal, where the trial record was not sufficient to establish petitioner’s allegations, and therefore his federal petition was properly dismissed for failure to exhaust state remedies. The petition was also properly dismissed, rather than stayed, by the district court.

Ellison, convicted of sexual assault and child endangerment in New Jersey state court, pursued a direct appeal with counsel but also alleged ineffective assistance in supplemental pro se briefs. The New Jersey appellate court denied the ineffective assistance and due process claims without prejudice to seek post-conviction relief. Ellison did not file for post-conviction relief in state court but filed a §2254 petition in federal district court. The district court denied relief and dismissed the petition for fa…