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Showing posts from November, 2011

Court Errs by Not Considering Postsentencing Rehabilitation on Remand after Pepper

In United States v. Salinas-Cortez, No. 11-1580 (3d Cir., November 8, 2011), the defendant challenged the sentencing court’s rejection of his request for a downward variance based upon postsentencing rehabilitation. In Salinas-Cortez, the defendant pled guilty to possession with intent to distribute more than five kilograms of cocaine, as well as conspiracy to do so. At his initial sentencing hearing, the defendant requested a downward adjustment based upon his minimal or minor role in the offense. The probation office claimed in the Presentence Report that the defendant had more than a minimal or minor role in the offense. The sentencing court, at this first proceeding, adopted the PSR without specifically addressing the defendant’s request. The Third Circuit vacated this initial decision, ruling that the sentencing court erred when it failed to address the defendant’s colorable argument for a minor role adjustment. On remand, the defendant also requested a reduction based upon his p…

Court finds PA Terroristic Threats Prior to be Crime of Violence

United States v. Mahone, 2011 WL 5153699 (Nov. 1, 2011).

Mahone pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mahone objected to the base offense level in the PSR, calculated under U.S.S.G. § 2K2.1(a)(2) at 24 because he had "at least two felony convictions of either a crime of violence [ (COV) ] or a controlled substance offense." Mahone asserted that one of his priors, a 1994 Pennsylvania conviction for making terroristic threats in violation of 18 Pa. Cons.Stat. § 2706, did not qualify as a COV.

At the time Mahone incurred the prior conviction, the statute made it unlawful for a person to:

"threaten[ ] to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience."

18 Pa. Cons.Stat. § 2706 (1…