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Showing posts from April, 2009

District Court Has Authority to Categorically Reject Sentencing Guidelines' Cocaine Powder-to-Crack Ratio; United States v. Ricks Overruled

In United States v. Russell, No. 07-4731 (3d Cir. April 23, 2009), the defendant challenged his sentence for possession with intent to distribute more than 5 grams of crack cocaine. The district court imposed a sentence of 87 months, the bottom of a guideline range of 87 to 108 months, which resulted from a total offense level of 27 and a criminal history category of III. The district court denied Russell's request for a variance, pursuant to 18 U.S.C. § 3553(a), from the 70-to-1 ratio recommended by the guidelines for his base offense level. As an alternative, Russell had suggested a 25-to-1 ratio, which would result in a sentence of 60 months, the statutory mandatory minimum sentence.

At sentencing, the district court had relied upon the Third Circuit's decision in United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), to conclude that it did not have the authority to reject the guidelines' crack-to-powder ratio, nor to fashion an alternative ratio of its own. Russell argue…

Supreme Court Limits Belton Searches

The Supreme Court issued an opinion today in Arizona v. Gant, 2009 WL 1045962 (April 21, 2009), holding that police may search a passenger compartment of a vehicle incident to a recent occupant's arrest only with reasonable belief that arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense of arrest. The Court's decision places a limit on the Belton rule, allowing search of passenger compartments, to situations where the interests of officer safety or preservation of evidence (Chimel v. California) are present. In other words, if the defendant is secured in a patrol car already - no warrantless search!

Cert granted in Third Circuit case striking down criminal prohibition on depictions of animal cruelty

The Supreme Court this morning agreed to decide whether 18 U.S.C. 48, which makes it a crime to create, sell, or possess depictions of animal cruelty, is invalid under the Free Speech Clause of the First Amendment. The en banc Third Circuit had struck down the statute last summer by a vote of 10-3, in U.S. v. Stevens, No. 05-2497 (3d Cir. July 18, 2008). The case will be heard in the October 2009 Term.

Substantive Reasonableness Review Survives: Panel Reverses Below-Guidelines 6-Year Sentence in Child Porn Case as Greater than Necessary

Congratulations to Andrea Bergman and others at the FPD for the District of New Jersey! In United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3d Cir. Apr. 16, 2009), a panel of the Third Circuit reversed a six-year sentence for a child porn offender as procedurally and substantively unreasonable, remanding for imposition of a LOWER sentence. The panel held that the district court erred in not granting a subpoena for Olhovsky’s treatment provider to testify, failed to consider mitigating evidence, and imposed a harsher than necessary sentence (even though the sentence was below-Guidelines).

Olhovsky was barely 18 at the time of his arrest, and had a very sad background, including severe birth defects, divorced parents, and a disabled mother. He was bullied and teased at school, and spent much of his time alone in his room with a computer. He was so depressed and suicidal that the was admitted to a psychiatric facility and had cut himself with a knife. He traded child pornography on…

Closely Divided En Banc Court Affirms “Gilded Cage” Sentence: Gall requires great deference to district court sentencing decisions

In United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc), the en banc Court (8-5) issued an important post-Gall opinion, reaffirming the principle that "[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall v. United States, __ U.S. __, 128 S. Ct. 586, 597 (2007). Judge Smith wrote the opinion affirming the district court’s sentence, and was joined in the majority by McKee, Barry, Ambro, Fuentes, Chagares, Hardiman, and Jordan.

The district court had sentenced Tomko, a first-time, white collar, tax fraud defendant to three years of probation (the first of which to be served in home detention), 250 hours of community service, and the statutory maximum fine of $250,000. The advisory Guidelines had called for a prison sentence of 12-18 months and a fine of $3000-30,000. When the case was first reviewed, the panel reversed the s…

Third Circuit precludes § 3582(c) sentence reduction where sentence is stipulated in Rule 11 binding plea agreement.

In United States v. Sanchez, No. 08-1847 (3d Cir. April 3, 2009), a panel majority affirmed the District Court’s denial of Sanchez’s motion to reduce his sentence under 18 U.S.C. § 3582(c). Although the District Court's denial was based on determining that the offense of conviction carried a mandatory minimum sentence, the Court of Appeals affirmed the denial on an alternative ground that the District Court did not address: that Sanchez's sentence was the result of a Rule 11 binding plea agreement. Circuit Judge Roth dissented, reasoning that a defendant who agrees to a stipulated sentence in a binding plea agreement should – like a defendant sentenced after a jury verdict – be eligible for a sentence reduction. Sanchez went to trial on a seven-count indictment alleging drug trafficking and firearm possession charges. During trial, Sanchez and the Government entered into an oral binding plea agreement in which Sanchez agreed to plead guilty to one count of criminal conspiracy …

SCOTUS reverses Third Circuit, reinstating mandatory McNabb-Mallory rule

In a 5-4 decision released today, the Supreme Court reaffirmed the McNabb-Mallory rule by holding that confessions taken more than six hours after a federal arrest, but before the defendant is presented to a magistrate judge, must generally be suppressed -- even if they are voluntarily given. The Third Circuit, somewhat reluctantly following its prior precedent on the issue, had held that McNabb-Mallory was abrogated by a federal statute (18 U.S.C. 3501) that makes voluntariness the sole criterion for the admissibility of a confession. Today's decision in Corley v. United States, No. 07-10441 (U.S. Apr. 6, 2009), reverses that judgment.

The Court ruled that Section 3501 merely modifies McNabb-Mallory by carving the first six hours after arrest from its ambit. Within six hours of arrest, voluntary confessions are admissible in federal court subject to the standard rules of evidence. Pre-presentment confessions taken more than six hours after arrest (or such reasonably longer tim…