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Showing posts from May, 2010

Child Pornography / Warrants / Sufficiency / Evidence of Age

U.S. v. Vosburgh, 2010 WL 1542340, April 20, 2010. Vosburgh appealed his conviction following a jury trial of possession and attempted possession of child pornography (18 U.S.C. § 2252). The investigation of Vosburgh began when an IP address linked to his account attempted to download child pornography on the internet. This, in addition to assertions that child pornography collectors maintain materials and rarely dispose of them, was the basis for issuance of a warrant to search Vosburgh’s apartment four months later. In his apartment agents seized an external hard drive which was later found to contain hundreds of images of "child erotica" (defined as sexually suggestive photos not sufficiently lascivious to meet the definition of sexually explicit conduct), and a thumbnail image file which contained two images of child pornography. The two images did not exist as independent picture files on the computer. The government asserted at trial that the existence of the thumbnail…

Defendant Liable for Co-conspirator’s Loss, Applying Victim Enhancement to One Conspirator Did Not Create Unwarranted Disparity

U.S. v. Robinson, 2010 WL 1610582, (April 22, 2010). Robinson pled guilty to conspiring to steal and convert United States Treasury checks in violation of 18 U.S.C. §§ 641 and 371, arising out of a scheme led by an individual named Jeffress, who provided "checkcashers"-Robinson and other individuals-with stolen Treasury checks and fake id, and drove them to checkcashing stores.

On appeal Robinson challenged the district court's calculation of his sentencing guideline range of 27 to 33 months, as it included the number and dollar amount of checks converted by another checkcasher, with whom Robinson contended he did not conspire. The Circuit affirmed the sentence, finding that the extra loss was properly attributable under § 1B1.3 given Robinson’s implicit agreement to cash stolen checks for Jeffress, the leader of the conspiracy, such that checks cashed by other checkcashers were reasonably foreseeable and within scope and in furtherance of their joint criminal activity. R…

Sentence Below Career Offender Guideline Found Procedurally Unreasonable

United States v. Merced, 2010 WL 1542263, April 20, 2010. Merced pleaded guilty to a drug possession charge, his career offender guideline range was 188 - 235 months. At sentencing, the district court pointed to several factors in support of a below-guideline range, including the "street level" nature of Merced's previous crimes, his own possible drug problem, his troubled childhood, his strong family relationships, and the fact that his longest prior prison term was, at most, four years. The court addressed most of the § 3553 factors, but did not mention unwarranted disparity. The court also noted at one point "I kind of reserve career offender status for violent, significant drug deals, that type of thing, even though the guidelines may advise that it's appropriate." The court ultimately sentenced Merced to 60 months.
The Third Circuit, in an opinion thoroughly recapping reasonableness review precedent, found the sentence procedurally unreasonable based on…