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Showing posts from November, 2012

The First Paragraph of 18 U.S.C. § 1546(a) Prohibits the Possession or Use of Authentic Immigration Documents Obtained Fraudulently

In United States v. Kouevi, No. 10-3529 (October 24, 2012), the Third Circuit addressed the issue of whether the defendant’s conduct was criminalized by the first paragraph of the visa fraud statute, 18 U.S.C. § 1546(a). This appeal raises a question of statutory construction that is an issue of first impression in our Circuit.

Kouevi was born in Lome, Togo. The Government contends that he conspired with others to use fraudulent means to obtain authentic visas for at least 34 people through the American Embassy in Togo, and that those persons then used those visas to enter the United States.

The schedule involved “diversity visas”, which are made available to citizens of countries who send relatively low number of immigrants to the United States each year. The visas are a means of promoting diversity within the annual pool of immigrants entering the United States.

According to the evidence at trial, Kouevi and his co-conspirator worked with individuals in Togo who were actually eligib…

Government may object to timeliness of appeal at any point up to and including its merits brief

In United States v. Muhammud, 10-3138 (Decided: Sept. 28, 2012; Published Nov. 5, 2012), the Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief.

Appellant Muhammad's guilty plea contained an appellate waiver and a collateral attack waiver. He did not directly appeal his conviction, but did file a 28 U.S.C. § 2255 petition nearly one year after his conviction became final, arguing that his guilty plea had been entered under duress. The district court enforced the waiver, dismissed the petition and denied a Certificate of Appealability (COA). The Third Circuit also denied Mr. Muhammad's request for a COA.

One year after the denial of his request for a COA and two years after his conviction became final, Mr. Muhammad filed a notice of appeal from his judgment of conviction. The government, believing the notice of appeal was cha…

Successive § 3582 Motions Not Jurisdictionally Barred; Defendant Whose C Plea Not Explicitly Based on Guidelines Is Not Eligible for Relief

United States v. Weatherspoon, --- F.3d ----, 2012 WL 4800974 (3d Cir. Oct. 10, 2012). After the Sentencing Commission made retroactive the amended crack offense levels in 2008, Weatherspoon sought a sentence reduction, which was rejected because he was sentenced pursuant to a binding plea agreement. Following the Supreme Court's decision in Freeman v. United States, 131 S.Ct. 2685 (2011), holding that a defendant sentenced pursuant to a C plea agreement that recommends a sentence "based on" the Sentencing Guidelines is eligible for relief, Weatherspoon filed a second motion for sentence reduction.

The Circuit first addressed jurisdiction. The government argued for the first time on appeal first that § 3582(c)(2) only permits one motion for a sentence reduction and that the district court lacked jurisdiction to consider the second motion, and second, that the Law of the Case Doctrine precluded review. The Circuit found it had an independent duty to determine its o…

Sentence Procedurally Unreasonable Where Court Failed to Address Variance Argument

United States v. Begin, --- F.3d ---, 2012 WL 4784362 (3d Cir. Oct. 9, 2012).   Begin appealed from his 240-month sentence for using the internet and a cellular phone to "attempt to persuade a minor to engage in any sexual activity for which a person can be charged" - in this case statutory rape.

Begin argued that the sentence was unreasonable because the district court failed to consider his argument that a variance was warranted based on the disparity between a sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.   Although at sentencing the district court acknowledged and heard argument on Begin’s request, the court did not ask any questions and did not discuss or actually rule on the variance request.  In its final review of the sentencing factors the court simply stated:  "This sentence also takes into account the need to avoid unwarranted disparities in sentencing amo…

Maximum Term on Revocation of Supervised Release Is Based on Class of Underlying Felony at the Time of the Offense

United States v. Turlington, --- F.3d ----, 2012 WL 4237611 (3d Cir. Sept. 21, 2012) (published Oct. 16, 2012). In this case defendant’s conviction for conspiring to distribute more than 50 grams of cocaine base was a class A felony, permitting up to five years of imprisonment on revocation of supervised release pursuant to 18 U.S.C.A. § 3583(e)(3). The Fair Sentencing Act amendments reduced the maximum term of imprisonment for Turlington’s offense, such that it is now a class B felony, which would now permit only three years of imprisonment of revocation of supervised release.

The Circuit held that where an underlying offense was a class A felony at the time of conviction, but has since been reduced to a class B felony, the maximum term of imprisonment upon violation of supervised release, pursuant to 18 U.S.C.A. § 3583(e)(3), is still determined based on the classification of the offense at the time of conviction. The Court cited Johnson v. United States, 529 U.S. 694 (2000), …