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Showing posts from April, 2013

Defendants Convicted of Crack Offenses Who Received Cooperation Departures Below the Mando are not Barred From Seeking a Sentence Reduction Under Section 3582(c)(2)

InUnited States v. Savani, Nos. 11-4359/11-4494/12-1034,the Third Circuit held that Amendment 750 to the Sentencing Guidelines superseded United States v. Doe, 564 F.3d 305 (3d Cir. 2009), and allows defendants who were sentenced below their mandatory minimum sentences for substantial assistance to move for a sentence reduction under 18 U.S.C. § 3582(c)(2). The three appellants in Savani were in similar positions. All three were facing mandatory minimum sentences for crack offenses - Savani and Herbert were facing 10 years, and Roe was facing twenty years, due to his prior conviction. All three defendants entered into cooperation plea agreements with the government, and they all received sentences below the mandatory minimums.

After the Fair Sentencing Act ("FSA") was passed in August 2010, the Sentencing Commission amended U.S.S.G. § 2D1.1 by reducing the guidelines to correspond to the18:1 ratio that now triggers mandatory minimum sentences under the FSA. All three def…

Erroneous application of sentencing enhancement is harmless when it had no effect on the sentence

Use of a drug-sniffing dog on a front porch is a Fourth Amendment intrusion

In Florida v. Jardines, 11-564 (March 26, 2013), in a 5-4 decision, the United States Supreme Court affirmed suppression of evidence of marijuana obtained in violation of the Fourth Amendment. After an unverified tip that Jardines was growing marijuana in his home, police observed the home for 15 minutes, saw no movement and could not see into the house through drawn blinds, and then brought a drug-sniffing dog onto the porch who ran around on a 6-foot leash and positively identified the odor of marijuana and the door to the home as the strongest point source of the odor. Based on those observations, officers obtained a search warrant. Justice Scalia, writing for the majority, found the case "straightforward." The porch is the curtilage of the home which enjoys protection as part of the home itself. Entry onto the porch with a trained drug-sniffing dog to find incriminating evidence was an unlicensed physical intrusion outside the scope of social custom. The officers’ …

922(g)(1) is a continuing offense so possession must be relinquished to support two convictions; constructive possession of gun and drugs; parole status was “helpful background” under 404(b)

In United States v. Benjamin, 11-2906 (3d Cir. March 26, 2013), Benjamin was convicted of possession with intent to distribute crack and marijuana and two counts of being a felon in possession. The same weapon supported the two felon-in-possession convictions: Benjamin used it at a gun range and it was also found in his house. On appeal, Benjamin did not challenge that he possessed the gun at a gun range. The Third Circuit affirmed that there was sufficient evidence for the drugs and gun possession under a theory of constructive possession. Constructive possession is established by dominion and control (“more” evidence), not mere proximity. The gun was found in the basement where Benjamin worked, a gun box was found under a shared bed, and ammunition was found in a shared closet. The government also argued evidence Benjamin was involved in the drug trade strengthened his connection to the gun. The drugs were found in a secreted location in the basement, an expert testified …

Reviewing for abuse of discretion, no attorney's fees under the Hyde Amendment for defendant after prosecution dismissed

In United States v. Manzo, 12-2294 (3d Cir. March 25, 2013), Manzo appealed the District Court’s denial of his request for attorney’s fees, which he had sought after a prosecution for violations of the Hobbs and Travel Acts was dismissed. Manzo had been a candidate for mayor of Jersey City and allegedly took campaign contributions with the promise he would help the contributor once elected. Under the “Hyde Amendment,” a statutory note to 18 U.S.C. § 3006A, a prevailing party may seek reasonable attorney’s fees if the position of the United States was “vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” Reviewing for abuse of discretion, the Third Circuit affirmed denial of attorney’s fees. The Third Circuit explained a petitioner shows a prosecution was: (1) vexatious if the criminal case was objectively deficient and the government’s conduct “when viewed objectively, manifests maliciousness or an intent to harass or…