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Showing posts from July, 2009

Booker Does Not Apply to the Size of a Sentence Reduction that May be Granted Under 18 U.S.C. § 3582(c)(2)

In United States v. Dillon, No. 08-3397 (June 10, 2009), the defendant challenged the size of reduction available under a § 3582(c)(2) re-sentencing in light of Booker. The defendant was convicted in 1993 of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, using a firearm during a drug trafficking crime and possession with intent to distribute more than 500 grams of cocaine. The district court sentenced him to 322 months, the bottom of a guideline range, based upon an offense level of 38 and a criminal history category of II. However, during the sentencing hearing, the court repeatedly stated its opinion that the sentence was too harsh and was in fact unreasonable. However, the court believed that it was bound by the guidelines. Following enactment of the crack cocaine amendment, the defendant filed a pro se motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The court partially granted his motion, reducing his offe…

18 U.S.C. § 2242(b) May be Violated Without Direct Communication with Child or Individual Defendant Believes is a Child

In United States v. Nestor, No. 08-2535 (July 23, 2009), the defendant challenged his conviction for attempted enticement under 18 U.S.C. § 2242(b). The defendant communicated with undercover law enforcement officers via email and telephone to arrange a sexual encounter with whom he thought were a father and his minor stepson. The defendant communicated only with adult males posing as the stepfather. The grand jury indicted the defendant on one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), as well as knowing possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The defendant pled guilty to the child pornography charge, but proceeded to trial on the attempted enticement charge. He argued that he could not violate § 2422(b) if he did not have direct contact with a minor or someone he believed was a minor. However, he was ultimately found guilty and sentenced to 120 months. On appeal, the defendant again argued that he could not viol…

Mistrial Warranted Where Jury Receives Inculpatory Document Never Provided to Defense Counsel.

United States v. Jelani Lee, Nos. 07-0406, 07-4643 (July 17, 2009). Jelani Lee was charged with possession with intent to distribute crack cocaine. Police stopped the car he was driving and found cocaine in a passenger’s "undergarments." The passenger said that the drugs belonged to Lee. The passenger also said – and her cell phone records established – that an associate of Lee had called her earlier in the day from a local motel. Lee had keys from that motel in his pocket. After officers interviewed hotel staff, the searched the room and found additional crack cocaine along with cash, a scale, and baggies. A registration card showed the room as registered to an "Omar Martin" at the same address in Lancaster that Lee had given to police as his own local address.

The front of the registration card – the only part provided in discovery – showed that "Martin" had rented the room for one night on January 3, 2005. The stop and subsequent search took place on J…

In Habeas Appeal, Third Circuit Addresses Standard of Review and Other Legal Issues

The Third Circuit addressed several legal issues in the context of a habeas appeal in Thomas v. Horn et al, Nos. 05-9006 & 9008 (3d Cir. July1, 2009).

The petitioner, Brian Thomas, was convicted in the Philadelphia Court of Common Pleas in 1986, of murder in the first degree, rape, and other crimes, and the jury sentenced him to death. Thomas was unsuccessful on state court direct appeal and in his state court petition for post-conviction relief. He then petitioned the District Court for habeas relief under 28 U.S.C. § 2254, raising a total of 23 issues, as to both the guilt-phase of his trial and his sentencing.

The District Court vacated Thomas’s sentence on the grounds that trial counsel was ineffective for failing to investigate and present mitigating evidence, and that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently. As to the guilt-phase claims, the District Court denied all, but did issue a certificate of appealab…