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NOVEMBER 2009
November 18:
U.S. v. Varela , 2009 WL 3838275 (11/18/09) (Published) - The 10th Circuit Court of Appeals held that the District Court properly used the cross-reference in § 2K2.1(c)(1)(A) to apply the meth guidelines. The defendant argued the (b)(5) 4-level enhancement should apply when the firearm was merely present and not used during the meth crime. But the 10th held that (b)(5) only applies if applying the cross-reference does not lead to a greater offense level. The cross-reference applies even if the firearm was merely present.
November 16:
09-0294-cr The Second Circuit today issued a summary order in United States v. Rivera - an appeal taken from the District of Connecticut's denial of his motion to suppress. The result is not helpful but the opinion does contain a useful summary of 2d circuit case law on the issue of suppress.
November 10:
08-4921-cr USA v. Hasan - Before: CABRANES and SACK, Circuit Judges, and RAKOFF, District Judge. Defendant Syed Hasan appealed from an October 3, 2008 judgment of the United States District Court for the Eastern District of New York (Sandra L. Townes, Judge) convicting him, after a jury trial, of various crimes, including making a false statement on a passport application in violation of 18 U.S.C. § 1542. On appeal, Hasan argues, inter alia, that the evidence was insufficient to convict him because the evidence failed to establish that he made a material misstatement on the passport application. The question of whether § 1542 has a materiality requirement is a matter of first impression in this Circuit. After reviewing the plain language of the statute, the Second Circuit concludes that § 1542 does not require that the false statement on a passport application be "material." The Court also concludes that the evidence was sufficient to support defendant’s various convictions and that the District Court did not err in sentencing defendant. The Court also dismisses several of defendant’s claims of ineffective assistance of counsel, and declines to consider defendant’s remaining claims of ineffective assistance of counsel on direct appeal. Affirmed.
November 9:
US v. Caldwell -- F.3d --, 2009 WL 3720029 (10th Cir. 11/9/09) - reversal of sentence based on district court's erroneous calculation of Mr. Caldwell's criminal history category re: cocaine and cocaine base offenses. The district court should not have added two points based on Kansas driving while a habitual offender offense, for which Mr. Caldwell initially got a sentence of 30 days plus 12 months probation. He opted to pay a $1500 fine in lieu of the 30 day jail sentence. He was serving the probationary term when he committed the offense of conviction. Subsequent to the offense at issue, it was determined that he had failed to pay the fine in full and he was required to serve five days of the thirty day sentence. Only when he was required to serve those five days did the conviction become countable under § 4A1.2. The Court of Appeals held that given the timing of the facts relevant to criminal history it was appropriate to assess one criminal history point for the habitual driving offense but it was not appropriate to add two points because he was not under a sentence at the time the offense was committed.
November 5:
08-4640-cr United States v. Caraballo - Before: LEVAL, RAGGI, and LIVINGSTON. Appeal from a judgment of conviction entered after a jury trial in the United States District Court for the Eastern District of New York (Raymond J. Dearie, Chief Judge). Defendant challenges the sufficiency of the evidence supporting his conviction under 21 U.S.C. § 848(e)(1)(A) for killing Jose Fernandez while engaging in a narcotics offense punishable under 21 U.S.C. § 841(b)(1)(A). The Second Circuit concludes that evidence demonstrating that Caraballo induced his drug associates to participate in Fernandez’s murder through promises to forgive drug-related debts and to engage in future drug transactions was sufficient to sustain his § 848(e)(1)(A) conviction. Should you ever have an 848 charge, this case contains a lengthy discussion regarding its interpretation. Conviction is AFFIRMED.
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