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Showing posts from October, 2016

Pennsylvania Drug Priors Not Necessarily Qualifying Predicates for Recidivist Enhancements

In Singh v. Attorney General, No. 15-2274, the Court reverses the Board of Immigration Appeals’ determination that an alien's prior Pennsylvania drug offense was an “aggravated felony” making him subject to removal and ineligible for discretionary relief.  In both this immigration context and those presented by recidivist enhancements such as the Sentencing Guidelines’ career offender provision, the court must determine whether the prior conviction was for an offense matching the “generic” federal definition of the pertinent crime.  If the state offense sweeps more broadly, it is not a predicate.
With regard to Pennsylvania's principal controlled substance law at 35 Pa. C. S. § 780-113(a)(30), that requirement can present an issue inasmuch as the state’s controlled substance schedules at § 780-104 include drugs not embodied in the federal schedule at 21 U.S.C. § 802.  A prior conviction therefore cannot be deemed a predicate unless the sentencing court (or immigration judge) …

Unusual Bankruptcy Fraud Case Yields Guidance on Sentencing and Proof Issues

In the rare bankruptcy fraud case to reach it, United Statesv. Free, No. 15-2939, the Court confronts an instance of a defendant who filed for voluntary reorganization under Chapter 13 despite having adequate assets to repay his creditors in full.  The proceeding was later converted into a Chapter 7 action and the creditors made whole.  Defendant Michael Free was meanwhile found guilty by a jury of making false statements in filings and testimony in the bankruptcy proceedings.  At sentencing, the government sought a 16-level enhancement under the 2014 Sentencing Guidelines for a loss amount of between $1 and $2.5 million.  The sum represented an accounting of the value of certain assets concealed by Free from the bankruptcy court.  (Note that by amendment effective November 1, 2015, Section 2B1.1 now requires a loss $1.5 to $3.5 million to trigger a 16-level bump.)
Section 2B1.1 of the Guidelines, pertaining to fraud and other economic crimes, defines “loss” as the greater of the “re…