Recent Circuit Cases

The Second Circuit vacated a defendant’s conviction for distributing fentanyl. The Court held that the defendant only has to present “some credible evidence” regarding government inducement in order to obtain an instruction on entrapment. The Government’s law enforcement witness also improperly testified that the defendant was an experienced drug dealer, which required specialized knowledge.

The Eleventh Circuit affirmed the district court’s denial of the defendant’s motion to suppress evidence from a traffic stop. The Court held that the officer’s mistaken interpretation of Alabama traffic law was reasonable, the officer did not unlawfully prolong the stop by asking the driver about his plans and itinerary or allowing his dog to sniff near the car, and there was probable cause to search the vehicle based on the dog’s change in behavior near the car, though the dog did not give a “final response” indicating the presence of drugs.

Limiting the discretion district courts have grant motions for compassionate release or sentence reductions, the Sixth Circuit held that a district court cannot base a finding of “extraordinary and compelling reasons” on non-retroactive changes in the law or facts that existed when the defendant was sentenced, even taken together.

The First Circuit vacated a defendant’s sentence for maintaining a drug involved premises. The Court held that the district court erred in applying the higher offense level under USSG 2D1.8(a) because there was insufficient evidence that the defendant had participated in the underlying drug offense beyond providing her apartment to her boyfriend as a place to sell and store drugs. The fact that she knew about his drug activities and accompanied him on some of his trips to resupply, standing alone, were not enough to show she participated.

The First Circuit vacated a defendant’s sentence for possession of a firearm by an unlawful drug user. The Court held that the district court committed plain error where it varied upwards from the defendant’s Guidelines range based on the fact that the defendant possessed a machine gun and its concerns with violent crimes in Puerto Rico. The Court held that the type of firearm possessed was already covered by the Guidelines, and thus could not be the basis for an upwards variance, and the district court failed to tie its concerns with crime in Puerto Rico to this specific defendant’s conduct.

The First Circuit vacated a defendant’s sentence for possession of a machine gun. Reviewing for procedural reasonableness, the Court held that the district court failed to adequately explain its basis for its 12-month upwards variance and that the only reason cited by the court, the fact that the machine gun was dangerous, was already covered by the Guidelines and thus an improper basis for the variance.

The Fourth Circuit reversed convictions for several defendants convicted of RICO, VICAR, and carrying a firearm during crimes of violence. In a complex opinion, the Court held that RICO conspiracy is a divisible offense requiring the modified categorical approach to determine if the offense is a crime of violence. The Court concluded that a RICO conspiracy, even an “aggravated” one, is not a crime of violence under 924(c). The Court also reversed the defendants’ VICAR convictions where the jury instructions referred to the wrong state law. Finally, the Court reversed one of the VICAR and 924(c) counts predicated on attempted murder where the defendants only took a preparatory act, not an overt act, in driving around looking for the victim.

The Ninth Circuit affirmed a defendant’s conviction for possession of a firearm by a nonimmigrant visa holder. The Court held that there was sufficient evidence that the defendant knew his visa possessed the characteristics of a non-immigrant visa where it explicitly authorized a temporary stay for work purposes.

The Sixth Circuit vacated a defendant’s sentence based on the sentencing court’s impermissible double counting when calculating the guidelines range. The defendant was subject to enhancements for causing injuries while fleeing a bank robbery, but the court erred in applying these enhancements to other, unrelated bank robberies.

The Ninth Circuit affirmed a defendant’s conviction under 18 USC 922(g)(4) for possession of a firearm by a person previously committed to a mental institution. The Court held that the defendant’s conviction did not require evidence that his prior commitment was based on a finding that he was dangerous, and the Court rejected his constitutional challenge to 922(g)(4) after applying intermediate scrutiny and holding that his Second Amendment rights were not impermissibly restricted.