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Showing posts from January, 2013

Intended Loss Not Necessarily Potential Loss in Credit Card Fraud

In United States v. Diallo, ___ F.3d ____, 2013 WL 150125 (3d Cir., Jan. 15, 2013), the defendant pled guilty to possessing over 15 counterfeit credit cards. The government calculated an actual loss amount of $160,000. However, at sentencing, the government argued that the defendant should receive a 16-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(1), based upon the intended loss. Specifically, the government asserted that the counterfeit credit cards provided the defendant with access to a combined credit limit of $1.6 million. However, there was no evidence presented that the defendant actually knew the credit limits of the counterfeit cards. Nonetheless, the district court accepted the government’s argument and sentenced the defendant to 70 months, at the bottom of the 70-87 month guideline range. However, the Third Circuit refused to endorse a blanket rule that the intended loss amount should be the cards’s credit limit in every credit card fraud case. Citing United States v.…

S.Ct.: Conspiracy SOL and Burden on Defense of Withdrawal

SUPREME COURT: Smith v. United States, --- S.Ct. ----, 2013 WL 85299 (U.S. Jan. 9, 2013). Held: A defendant bears the burden of proving a defense of withdrawal from a charged conspiracy. Allocating this burden to the defendant does not violate the Due Process Clause. Withdrawal does not negate an element of the conspiracy crimes charged here, but instead presupposes that the defendant committed the offense, thus the government has no constitutional duty to overcome the defense beyond a reasonable doubt.

Absence of Proof on Element of the Offense Overcomes Appellate Waiver

United States v. Castro, --- F.3d ----, 2013 WL 69214 (3d Cir. Jan. 08, 2013).  Former Philadelphia Police Department official Castro was indicted in connection with debt collection extortion schemes. Following a trial, a jury convicted Castro on one count of making a material false statement to federal agents (18 U.S.C. § 1001), acquitted him on one count of conspiracy to commit extortion (18 U.S.C. § 894) and hung on eight other counts. Castro then pled guilty to a single count of conspiracy to commit extortion (18 U.S.C. § 1951) and the government dismissed the remaining charges. The plea agreement contained an appellate waiver provision. At sentencing, the district court imposed 18 months imprisonment for the false statements count and 60 months concurrent for his plea for conspiracy to commit extortion.  Castro appealed, arguing that: (1) the false statement conviction should be vacated because when he lied to the FBI, denying he had received any money from the victim in rep…

Collateral Consequences Not Presumed on SR Revocation

United States v. Huff, --- F.3d ----, 2013 WL 93165 (3d Cir. Jan. 09, 2013). The district court revoked Huff's supervised release and sentenced her to ten months’ imprisonment with no supervised release to follow. Huff was released from custody while her appeal was pending. The Circuit held that the presumption of collateral consequences did not apply to a defendant's challenge to a revocation of supervised release. Because Huff's unconditional release from prison rendered the case moot, the appeal was dismissed for lack of jurisdiction.

Under the Modified Categorical Approach, Sentencing Courts May Only Consider the Charging Documents and the Jury Instructions When Determining if a State Offense is a Predicate Offense Under ACCA.

After pleading guilty to violating 18 U.S.C. § 922(g)(1), Dantey Tucker was sentenced to fifteen years imprisonment based on the sentencing enhancement set forth in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).  His classification as an armed career offender was based on one prior state conviction for a violent felony, a conviction for possession of a controlled substance with intent to deliver in violation of 35 PA. STAT. ANN. § 780-113(a)(30), and a conviction for conspiracy to sell drugs in violation of 18 PA. CONST. ANN. §903.  Only the district court’s classification of the prior drug offenses as serious drug offenses was in dispute at sentencing and on appeal.  Specifically, Tucker argued that the district court erred in finding that his two state drug convictions were serious drug offenses within the meaning of the ACCA.  Applying the  “modified categorical approach,” in United States v. Tucker, No 12-1482 (3d Cir., December 21, 2012), the Third Circuit held t…