Criminal Defense & Sentencing
Second Circuit Vacates Conviction Based on Insufficient Guilty Plea
Second Circuit Vacates Conviction Based on Insufficient Guilty Plea United States v. Aybar-Peguero, Nos. 21-1711(L), 21-1847(Con), 2023 U.S. App. LEXIS 17015 (2d Cir. July 6, 2023) Francis Jose Aybar-Peguero pled guilty to drug trafficking in violation of 21 U.S.C. Sections 841 and 846 and concealment money laundering in violation of 18 U.S.C. Section 1956(a)(1)(B)(i). During…
SCOTUS Relists for Review 13 Cases About Courts Using Acquitted Conduct to Increase Sentences
The Supreme Court has relisted five cases a second time now. And they are joined by an additional eight cases raising the same (or closely analogous) issues. We’ll find out soon how lucky these 13 petitions are. Lots of you have asked me about what’s going on with judges using acquitted conduct to enhance federal…
Fifth Circuit Holds Warrant Required to Seize Jacket Containing Firearm Thrown Into Relative’s Yard
Fifth Circuit Holds that Throwing Jacket Containing Firearm Over a Fence Into Family Member’s Yard Was Not “Abandonment” of Jacket and Cops Needed a Search Warrant to Seize the Jacket United States v. Ramirez, No. 22-50042, 2023 U.S. App. LEXIS 11496 (5th Cir. May 10, 2023) A man suspected by police threw his jacket over…
Federal Drug Conspiracy No Good for Career Offender Enhancement, and Counsel was Ineffective for Not Raising the Challenge
United States v. Cannady, No. 20-6906, — F.4th — (4th Cir. Mar. 24, 2023) Hot off the press just minutes ago, the Fourth Circuit vacated the denial of a 28 U.S.C. § 2255 motion and held that a federal drug conspiracy, under 21 U.S.C. § 846, is broader than generic federal conspiracy and was therefore…
En Banc Eleventh Circuit Says Conspiracy to Commit Federal Drug Offense Didn’t Count for Career Offender Sentence
The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, joined three other circuits and held that a federal conviction for conspiracy to commit a federal drug offense did not qualify under the career offender guideline as a third strike to impose the harsh career offender penalty. See United States v. Dupree, 57…
Federal Court Tosses Drug and Gun Convictions Based on Defective Search Warrant
The U.S. Court of Appeals for the Sixth Circuit tossed a federal drug and gun case based on a defective search warrant. The Court held that the affidavit filed by law enforcement to show probable cause to obtain a search warrant was lacking in detail and therefore the warrant should not have been issued. Lexington,…
Fifth Circuit Tosses Child Porn Conviction, Holds Image Wasn’t ‘Patently Offensive’
Whether a nude image of a minor is considered illegal depends on whether it’s “obscene.” But what does that mean? For decades, what has amounted to obscenity has never been clearly established by the courts. The Supreme Court did set some guidelines for obscenity cases – 50 years ago – but it still left the…
SCOTUS Holds Attempted Hobbs Act Robbery Not a Categorical Match for 924(c)
The Supreme Court of the United States (SCOTUS) held on June 21, 2022, that an attempted Hobbs Act robbery was not categorically a crime of violence to support a separate conviction for use of a firearm under federal law, despite the fact that someone was shot and killed during the offense. It was yet another…
Supreme Court Unties Hands of Federal Sentencing Judges
The Supreme Court untied the hands of federal sentencing judges today by holding that, unless the statutory provision allowing for a sentence reduction expressly prevents the judge from considering certain facts in crafting the new sentence, the judge may use his broad discretion to impose whatever sentence he sees fit in that case. See Concepcion…