Recent Circuit Cases

The Tenth Circuit vacated a defendant’s sentence and remanded for re-sentencing after the district court imposed a higher sentence based on the defendant’s decision to plead guilty without a plea agreement with the Government. The Court concluded that a defendant’s decision whether to enter an “open plea” does not fall under one of the factors listed in 18 USC 3553, and it was therefore procedurally unreasonable for the judge to consider that fact in imposing a higher sentence.

The Eleventh Circuit affirmed the defendant’s convictions for transmitting interstate threats under 18 USC 875(c) and cyberstalking under 18 USC 2261A(2)(B) after the defendant had created various social media accounts with aliases such as Ted Bundy and Nikolas Cruz (the school shooter from Parkland, Florida) and sent harassing and threatening messages to members of the victims’ families. The Court rejected the defendant’s First Amendment challenges, holding the cyberstalking statute was not overbroad since the elements were generally aimed at unprotected conduct with criminal intent and the statute was not unconstitutional as applied since the defendant’s speech included “true threats.”

The First Circuit reversed a district court’s order denying defendant’s motion to vacate sentence and conviction under 28 USC 2255. The defendant’s appellate attorney had been ineffective for failure to raise a Brady claim, raised by all of her co-defendants on appeal, based on the government’s failure to disclose material that would have undermined the government witnesses’ credibility. The First Circuit held that “any reasonable attorney would have known of the availability of the Brady claim since the co-defendants all raised it and since trial counsel had preserved the issue by raising it in his motion for new trial.”

The Fifth Circuit vacated a defendant’s sentence and remanded for resentencing based on the district court’s erroneous application of the firearm enhancement under USSG 2D1.1(b)(1). The PSR did not include sufficient facts to establish a temporal and spatial relationship between the defendant, the gun, and the drug trafficking activity. The defendant was not shown to have any connection to or knowledge of the gun, and the district court failed to make a record of what its rationale may have been supporting the enhancement.

The Seventh Circuit affirmed the district court’s order vacating the defendant’s conviction after the defendant argued that his due process rights were violated when he was visibly shackled and restrained in a wheelchair with a stun bracelet on his arm during his state trial. The Court held that, even if the restraints were necessary, there was no finding on the record that it was necessary for them to be visible, especially since the defendant’s alleged misconduct mostly took place outside the courtroom and involved “disrespectful” words and gestures outside the presence of the jury. The error was not harmless.

The Seventh Circuit reversed a trial court’s order under Rule 36 of the Federal Rules of Criminal Procedure, which had directed an inmate to return to prison after he had finished his sentence in a separate case. While the court had initially sentenced the defendant in two cases, and had ordered that he serve 18 months after finishing his first sentence, the court was inconsistent in its oral pronouncement and its written judgment. Errors by the court itself are not “clerical errors” under Rule 36, so Rule 36 was not applicable.

The Seventh Circuit reversed a trial court’s bond revocation. The Court held, for the first time, that the standard of review for a revocation decision is an independent review with due deference to a trial court’s findings of fact. The Court held that the trial court here failed to make explicit findings by clear and convincing evidence or sufficiently state why detention was necessary under the circumstances.

The Ninth Circuit affirmed a defendant’s conviction and sentence after he argued that they were illegal in light of US v. Davis, where SCOTUS held that conspiracy to commit Hobbs Act robbery is not a predicate crime of violence under 924(c). The Court held that the defendant’s challenge was foreclosed by his appeal waiver, and the exception to appellate waivers from US v. Torres only applies to illegal sentences, not convictions.

The Sixth Circuit affirmed the convictions of two defendants charged with operating a large cyber fraud scheme involving fake car auctions on ebay, stolen identities, and cryptocurrency. The Court vacated their sentences, however, after finding that they erroneously received an enhancement for receiving stolen property and being in the business of receiving and selling stolen property, since the enhancement does not apply to defendants who sell property they themselves stole. The Court held that the enhancement for production or trafficking of unauthorized access devices did apply, however, even though the defendants were already being sentenced for aggravated identity theft.

The Seventh Circuit reversed a defendant’s drug conspiracy conviction and substantive conviction for distributing drugs. The Court held that the evidence equally supported a finding that the defendant was in a buyer-seller relationship with a DTO rather than a co-conspirator. The Court also held that there was insufficient evidence that the defendant constructively possessed meth found at his acquaintance’s house.