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Showing posts from February, 2008

Armed bank robbery sentence remanded for application of incorrect enhancement in original sentence and failure to justify alternative sentence.

United States v. Smalley, No. 06-4552 (3d Cir. Feb.29, 2008). At sentencing in this armed bank robbery case, the government and defense argued that the defendant should receive a three-level enhancement for "brandishing or possessing" a weapon under U.S.S.G. § 2B3.1(b)(2)(E). The judge, however, accepted the probation officer’s recommendation that he should receive a four-level enhancement for "otherwise using" a weapon under U.S.S.G. § 2B3.1(b)(2)(D). The judge imposed a 71-month sentence -- at the high end of the range.

After sentencing, the government wrote to the Court requesting that it issue an amended judgment explaining that it would have imposed the same sentence even if it had applied the three-level enhancement. The Court filed the amended judgment, but outside the time limit set under Federal Rule of Criminal Procedure 35(a).

On appeal, the Third Circuit agreed with the government and the defense that the lower enhancement should apply because although th…

District court is powerless to grant the third point absent a § 3E1.1(b) motion by the Government, even where bad faith alleged.

In United States v. Drennon, No. 06-3399 (3d Cir. February 20, 2008), Drennon was charged with bank robbery and, prior to trial, challenged the constitutionality of an identification made by one of the bank tellers. After the suppression hearing, the motion was denied. As a result, Drennon entered guilty plea without an agreement one month prior to trial. At sentencing, Drennon received a two point reduction for acceptance of responsibility under § 3E1.1(a). Drennon moved, however, for the additional third point but the Government refused to file a motion § 3E1.1(b). "The Government argued that the large amount of work to prepare for trial had been done in connection with the suppression hearing." The district court then determined it could not grant the third point without such a motion from the Government. Therefore Drennon’s motion for the third point was denied. Drennon appealed.

On appeal, Drennon did not dispute whether or not the district court had the discretion to gr…

Third Circuit addresses applicability of new crack guidelines to cases on direct appeal

In United States v. Wise, No. 06-4926, and United States v. Brown, No. 06-4928, (3d Cir. Feb. 12, 2008), a Third Circuit panel addressed for the first time the differential in the powder cocaine and crack cocaine Sentencing Guidelines since the Supreme Court’s decision in Kimbrough. Defendants Wise and Brown were convicted of possession with intent to distribute 50 grams or more of crack cocaine and possession of a firearm in furtherance of that offense. Defendant Brown was sentenced to a total of 324 months imprisonment (the middle of his advisory Guidelines range), and defendant Wise received a sentence of 319 months (the top of his advisory Guidelines range).

Both defendants challenged their sentences on procedural and substantive grounds. The Third Circuit reiterated the three step process to be applied by sentencing courts post-Booker, specifically: (1) properly calculating the Guidelines range; (2) formally ruling on the parties’ motions and if granting a departure stating how t…

Gov did not breach plea agreement by withdrawing 5K motion

In US v. Schwartz, No. 05-4978 (Jan 10, 1008), the 3rd Circuit rejected Schwartz's claim that the government breached its plea agreement and acted in bad faith when it withdrew its previously filed motion for downward departure under USSG 5K1.1.

Schwartz pleaded guilty to conspiracy to distribute drugs and agreed to cooperate with the government pursuant to a plea agreement in which the government agreed to file a downward departure motion under 5K1.1 in exchange for the cooperation. Schwartz cooperated, and the government filed a downward departure motion one week prior to sentencing. The next day, however, DEA agents arrested Schwartz for violating his bail conditions by using drugs, and found about $4,500 worth of meth, plus a triple beam scale, in his residence. At the sentencing hearing the government moved to withdraw its 5K motion, and the court granted the motion.

The 3rd Circuit upheld the district court on the ground that the plea agreement was predicated on Schwartz&#…

Government Did Not Breach Agreement to Make No Recommendation as to Sentence in "Package Deal" Plea Bargain

United States v. Neal Hall, No. 07-2373, (3d Cir. February 8, 2008), involves a "package deal plea bargain" in which the government accepted defendant husband’s guilty plea to willfully failing to file tax returns on the condition that co-defendant wife also plead guilty. Only Dr. Hall appealed.

Dr. Hall first argued that the District Court failed to exercise the "special care" required in determining whether a plea entered during a joint plea hearing as part of a tied plea agreement was voluntary.

The Court begins by observing that (1) "package deal" plea agreements must be disclosed to the court, and (2) colloquies must be conducted with special care to ensure the plea is voluntary. Here, although the district court did not follow a specific script, the Court found the plea was voluntary considering defendant’s education and intelligence and the fact that Dr. Hall had his own separate attorney, who he consulted during the colloquy. The Court rejected the …

Plea Agreement Waiver of Right to File “Any Appeal” Bars Appeal of Restitution Order

At issue in United States v. Perez, No. 06-2036, is whether an appeal of a restitution order is barred by an appellate waiver.

The plea agreement contained a broad waiver of the right "to file any appeal, any collateral attack, or any other writ or motion" as well as a stipulation that loss amount was between $70,000 and $120,000. During sentencing, the defendant further stipulated to the loss amount of $73,476.

On appeal, the defendant argued that restitution is not technically a component of his sentence such that an appeal of restitution is not barred by the waiver. The waiver, he continued, only applies to challenges to the conviction and duration of confinement.

The Court rejected this argument, relying on prior cases law that restitution, ordered as part of a criminal sentence, is a criminal penalty. See United States v. Leahy, 438 F.3d 238 (3d Cir. 2006).

The Court observes that the plea colloquy was thorough and that it included a "lengthy discussion specifically r…

Pennsylvania’s Sex Offender Notification Statute must apply equally to in-state and out-of-state sex offenders

In Doe v. Pennsylvania Bd. of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008), a Court of Appeals panel, affirming the decision of District Court Judge Louis Pollak, held in a 2-1 decision that a provision in Pennsylvania’s sex offender notification statute that treated out-of-state sex offenders differently from in-state sex offenders violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

The anonymous plaintiff, John Doe, brought an action under 42 USC § 1983, claiming that Pennsylvania’s Registration of Sexual Offender’s Act, 42 Pa. C.S. § 9791 et. seq. ("Megan’s Law"), violated the Equal Protection Clause. Doe is a Pennsylvania resident who was convicted of a sexual offense in New Jersey and sought to return to Pennsylvania to serve his parole. Pennsylvania’s Megan Law provides that an out-of-state offender seeking to transfer supervision to Pennsylvania must register with state and local police, and also be subject to community not…