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Showing posts from September, 2007

District Court's Failure to Provide Notice of Above Advisory Guideline Sentence Does Not Constitute Due Process Violation

In United States v. Ausburn, No. 06-2250 (3d Cir. September 10, 2007), the Third Circuit held that a district court’s failure to provide notice of its intention to impose a sentence above the advisory guideline range (in this case more than double the high end of the guideline range) does not violate due process. However, the Court also held that the district court’s failure to provide a sufficient statement of reasons explaining the significant upward variance rendered the sentence unreasonable. The sentence, therefore, was vacated and the matter remanded for re-sentencing.

Ausburn was a police detective who, in his capacity as such, came into contact with a fourteen year old girl whose family permitted a relationship between the two for Ausburn to act as a "role model" and "positive influence" in the girl’s life. The relationship soon turned sexual and lasted nearly two years. When Ausburn was promoted to chief of police, e-mails referring to the relationship were…

United States v. Kikumura is Overruled

In United States v. Fisher, No. 06-1795 (3d Cir. September 10, 2007), a split panel of the Court of Appeals reversed its prior decision in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which held that the facts supporting a massive upward departure must be demonstrated by clear and convincing evidence rather than the lesser preponderance of the evidence standard applicable to the majority of sentencing enhancements. The Court in Fisher held that application of the reasoning in Kikumura went hand-in-hand with the mandatary nature of the guidelines and that since the guidelines were rendered merely advisory by the Supreme Court in United States v. Booker, the concerns raised in Kikumura "were put to rest." Judge Rendell filed a concurring opinion wherein she indicated that while she agreed that Fisher’s sentence should be affirmed, she also believed that due process could, in certain circumstances, require a heightened standard of proof to support a significant sent…

Pennsylvania Conviction for Simple Assault Does Not Constitute a Crime of Violence

In United States v. Otero, No. 05-3739 (3d Cir. September 12, 2007), the Court of Appeals for the Third held that a Pennsylvania conviction for simple assault [18 Pa. Cons.Stat.Ann. § 2701(a)] does not constitute a crime of violence for purposes of the 16-level enhancement contained in U.S.S.G. § 2L1.2(b)(1)(A), applicable to a defendant who was "previously deported ... after a conviction for a felony that is a crime of violence." The issue came before the Court in the context of a 2255 petition filed by Otero alleging that his counsel was ineffective for failing to object to the enhancement.

Otero pled guilty to one count of illegal re-entry into the United States by an alien previously deported following a conviction for an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The Presentence Report recommended a 16-level increase to his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on a prior Pennsylvania conviction for simple assault. Counsel did n…

Application of Enhancement for "Pattern of Activity" Affirmed, Finding Prior Conduct Neither Too Remote in Time nor Too Different in Kind

In United States v. Olfano, No. 06-2988 (3d Cir. Sept. 20, 2007), the panel unanimously affirmed a 188-month sentence on a conviction for receipt of child pornography by computer, rejecting Olfano’s arguments that the sentence was unreasonable because the District Court improperly included in its sentencing guideline calculation a five-level enhancement for pattern-of-activity, under U.S.S.G. § 2G2.2(b)(4) [now designated as U.S.S.G. § 2G2.2(b)(5)].

Olfano had pleaded guilty to receipt of child pornography by computer, in violation of 18 U.S.C. § 2252(a)(2). In calculating the advisory sentencing guideline range, the District Court included the five-level enhancement in U.S.S.G. § 2G2.2(b)(4) [now U.S.S.G. § 2G2.2(b)(5)], for engaging "in a pattern of activity involving the sexual abuse or exploitation of a minor." The two incidents that supported the "pattern of activity" enhancement involved sexual touching of a minor; one incident occurred 15 years earlier, the o…

Confessions Obtained During Delay in Presentment Admissible if Voluntary under Section 3501(c) / Court May Not Delegate Restitution Payment

In U.S. v. Corley, (No. 04-4716) (Aug. 31, 2007), the Third Circuit held that under §3501(c), confessions taken outside of the six-hour “safe harbor” window may only be excluded if involuntary.

Corley was arrested at approximately 8:00 in the morning. Because the arrest involved an altercation, he was taken to a hospital at 11:45 a.m. By 3:30 p.m., he was taken to FBI offices for interrogation. At 5:07 p.m., he signed a waiver of rights form and confessed to a robbery. When asked to write his confession, Corley indicated that he was tired and asked if they could finish the next day. They resumed at 10:30 the next morning and Corley signed a written statement. At 1:30 p.m. on the second day, he was brought before a federal magistrate judge. Corley later filed a motion to suppress the statements pursuant to Federal Rule of Criminal Procedure 5(a) due to unnecessary delay in presentment. The motion was denied and Corley was convicted following a jury trial. At sentencing, the di…

Kemp Convictions for Honest Services Fraud Upheld - Court Did Not Abuse Discretion in Dismissing Juror

In US v. Kemp, (Nos. 05-3477/05-3561/05-4623/05-4717/05-4846) (August 27, 2007), the Third Circuit affirmed the convictions of all defendants, finding (1) sufficient evidence to support conviction for honest services fraud; (2) jury instructions on honest services fraud, bribery and aiding and abetting were proper; (3) a variance between conspiracy charge in the indictment and government’s case at trail did not substantially prejudice defendants; (4) other act evidence and co-conspirator statements were properly admitted; and (5) district court acted within its discretion in dismissing juror.

Kemp, (former Treasurer of Philadelphia) and others were charged in a 63 count indictment surrounding a charged conspiracy to commit honest services fraud in which payments and gifts were given to Kemp in exchange for preferential treatment in decision-making. In brief, the Third Circuit found as follows.

First, the Circuit found that Kemp’s use of his office to provide lists of bondholders and …

Downward Variance Reversed, Held Procedurally and Substantively Unreasonable

In United States v. Goff, No. 05-5524 (3d Cir. Aug. 30, 2007), the panel unanimously held both procedurally and substantively unreasonable a four-month below-guideline sentence in a possession of child pornography case.

As part of a wider investigation into an international child pornography enterprise, Goff’s home was searched and two computer hard drives were seized. A few images were found on one of the drives, but the other contained hundreds of images in the “deleted” file. Goff pleaded guilty to a single count information charging possession of at least 3 images of child pornography. Included in the PSR, and apparently adopted by the DCT at sentencing was a Guideline range of 37 to 40 months, which included 5-level increase in the offense level for possession of more than 600 images (§2G2.4(b)(5)(1)).

Defense counsel sought a variance from the guidelines arguing that they were substantially in excess of that warranted by the offense, given all but a few pictures had been delete…

“Downward Departure” from Guideline Sentence must fall Below Guideline Range

In United States v. Floyd, No. 06-1513, (3d Cir. Aug. 27, 2007), the Third Circuit held that a “departure” from a Guideline sentence means a sentence below the bottom of the Guideline range rather than below a predetermined sentence within that range.

In 2004, Floyd was indicted on various counts arising from a conspiracy to distribute at least 50 grams of crack cocaine and 5 kilograms of cocaine powder. Pursuant to a plea agreement, Floyd pleaded guilty to one count of traveling interstate or causing others to travel interstate to facilitate drug trafficking, which carried a maximum sentence of 60 months in prison. 18 U.S.C. § 1952(a)(3). In exchange for pleading guilty, the government agreed to dismiss the remaining charges and to request a downward departure based on Floyd's substantial assistance with the government's prosecution of her co-defendants. At the first sentencing, the government did not move for a downward departure because, in the government's view, dis…