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Showing posts from August, 2014

WARNING: Cooperating defendant whose plea agreement includes appellate waiver and who files an appeal is in breach of plea agreement and subject to de novo resentencing where Government can withdraw U.S.S.G. §5K1.1 motion

United States v. Erwin, Appeal No. 13-3407 (3d Cir. Aug. 26, 2014)

Defendant Erwin plead guilty, pursuant to a cooperating plea agreement, to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. His plea agreement included a waiver of right to appeal his sentence if it was within or below the advisory Guidelines range resulting from a total offense level 39. In exchange for Erwin's plea, the government agreed not to bring further criminal charges against Erwin in connection with the criminal conspiracy, and it also agreed to seek a downward departure under U.S.S.G. §5K1.1.

At sentencing, the district court agreed with the parties and the PSR that Erwin's total offense level was 39. With an offense level 39 and Criminal History Category I, Erwin's initial Guidelines range was 262 to 327 months. This range was, however, capped at 240 months due to the statutory maximum for the offense of convict…

Circuit says that automobile exception is so expansive that it “essentially has obviated” the need for a search warrant as long as there is probable cause to believe that the car contains evidence of a crime.

United States v. Donahue, 13-4767, 2014 WL 4115949 (August 22, 2014)

After sentencing, defendant missed his turn in date in New Jersey.He was found in New Mexico in his son’s Ford Mustang.Over the course of five days, agents from two different agencies searched the car multiple times and eventually found a firearm magazine clip under the driver’s seat and a gun in a bag that was in the car – all without getting a warrant.District court suppressed the evidence saying that there was no probable cause to search the car.The Circuit reversed. Although there were numerous arguments the government could have raised, it only argued on appeal that probable cause existed and therefore no warrant was necessary.Circuit agreed, stating that a search is justified whenever there is PC that evidence of a crime, not just contraband, is in the car – even if that evidence may otherwise seem innocuous.Also, the continuing or completed nature of a crime is irrelevant to the PC analysis in this case.It didn…

Conspiracy to distribute cocaine is a lesser included offense of conspiracy to distribute 5 kilos or more of cocaine. Therefore, trial court did not err in refusing to submit the question of weight to the jury until after it had returned a guilty verdict on the conspiracy to distribute.

United States v. Freeman, 09-2166, 10-4224, 2014 WL 4056553 (August 18, 2014)

Defendants Freeman and Mark were charged with a count of conspiracy to distribute 5 kilos or more of cocaine.Conspiracy to distribute over 5 kilos of coke carries a higher statutory maximum sentence than conspiracy to distribute an unspecified amount of coke.Therefore, under Apprendi, it is clear that the drug quantity was an element of the conspiracy count that was charged in the indictment. However, the trial court refused a defense requested jury instruction that to convict on the conspiracy count, the govt had to prove over five kilos of cocaine were involved in the conspiracy.Instead, the trial court instructed that the government need only prove that a measurable amount of cocaine was involved in the conspiracy.After the jury returned a guilty verdict on the conspiracy count, the trial court gave them a post-verdict question on whether the conspiracy involved 5 kilos or more of cocaine.The jury was una…

Defendant who inherited over $400K did not violate his supervised release when he went on a spending spree instead of paying his restitution. Regardless of any bad faith on defendant’s part, district court failed to identify a specific condition that had been violated.

United States v. Bagdy, No. 13-2975, 2014 WL 4100586 (August 21, 2014) Bagdy was convicted of wire fraud (of course), sentenced to 36 months’ imprisonment plus three years’ supervised release, and ordered to pay over $500K in restitution.One condition of supervised release was that Bagdy pay at least 10% of his monthly income toward restitution.A wealthy aunt (don’t we wish we all had one) died and left him an inheritance of over $400K.Bagdy told his probation officer about the inheritance and paid 10% of the inheritance for purposes of restitution.The government filed a motion to modify the restitution order.A hearing on that motion was then continued several times while Bagdy and the government tried to negotiate an amount that he would pay towards restitution.Although Bagdy did pay an additional $60K towards restitution, he ultimately spent all but $52K of the inheritance (including $5,800 on flowers).
The government asked the district court to find Bagdy in violation of his superv…