Abel Mojica appeals from the judgment entered after a jury convicted him of felony income tax evasion. (Rev. & Tax. Code, § 19706.) Because the jury was not instructed that it had to find the existence of a tax deficiency as an element of the offense, we reverse.
May 26, 2006 in CALIFORNIA 2ND APPELLATE DISTRICT | Permalink
Appellant pled guilty to leading a criminal enterprise that distributed significant quantities of heroin. In return, the Government promised that in exchange for Appellant’s help, it would file a motion recommending that he be sentenced to a term below the life sentence called for by 21 U.S.C. § 848(b) and Section 5G1.1(b) of the United States Sentencing Guidelines. Appellant rendered the promised help and the Government filed the promised motion, but Appellant, dissatisfied with the Government’s recommended sentence, which the District Court accepted, challenges his conviction and sentence on appeal. We affirm his conviction because the Government met its obligations under the plea agreement. We also affirm the District Court’s sentence because it was not “imposed in violation of law.”
May 23, 2006 in U.S. Court of Appeals
District of Columbia Circuit | Permalink
The Government appeals the district court’s order granting defendant Ching Tang Lo’s motion for acquittals on a charge of possessing ephedrine, a listed chemical used to manufacture methamphetamine, and a related money laundering charge. Lo contends that this court does not have jurisdiction to consider this appeal and that there was insufficient evidence to support the verdicts. We hold that we do have jurisdiction to consider the Government’s appeal and that there was sufficient evidence to support the jury’s verdicts. We therefore reverse the district court’s order granting the acquittals.
Lo cross-appeals the district court’s denial of his motion for a judgment of acquittal on the charge of conspiracy. He contends that the district court erred by denying the motion because the jury acquitted Leslie Kuan, the only other charged co-conspirator, and because there was no evidence that he conspired with anyone besides government agents. We hold that there was sufficient evidence that Lo conspired with Kuan to achieve all four of the charged objects of the conspiracy and that Lo’s conviction may be based on this evidence even though the jury acquitted Kuan of conspiracy.
We also reject Lo’s claim that the district court committed plain error by giving incorrect jury instructions regarding the mens rea required for violation of 21 U.S.C. § 841(c)(2) and by failing to provide complete jury instructions for the aiding and abetting objects of the conspiracy charge.
Finally, Lo appeals his sentence. He argues that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005)overruled United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc), and that it was therefore error for him to be subject to the mandatory minimum sentences contained in 21 U.S.C.§ 841(b). We reject this argument and hold that Lo is subject to those mandatory minimum sentences. We conclude, however, that Lo is entitled to a limited remand for sentencing purposes pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
May 19, 2006 in U.S. 9TH CIRCUIT COURT OF APPEALS | Permalink
Defendant David Goldman, a former attorney, pled guilty to one count of impeding bankruptcy proceedings in violation of 18 U.S.C. § 1509. The district court sentenced him to ten months imprisonment and ordered him to pay $106,450 in restitution. On appeal Goldman argues that the court erred by enhancing his sentence under USSG § 3B1.3 for abuse of a position of public trust. Affirmed.
May 19, 2006 in U.S. 8TH CIRCUIT COURT OF APPEALS | Permalink
Defendant Daniel Morris pleaded guilty to one count of interstate travel in aid of racketeering (18 U.S.C. § 1952(a)(3)(A)), in exchange for the dismissal of the original charge of possession with intent to distribute five grams or more of cocaine base (21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii)). Defendant was sentenced post-Booker to a term of 57 months of imprisonment. United States v. Booker, 543 U.S. 220 (2005). The only issue on appeal is defendant’s challenge to the reasonableness of his sentence. After review of the record, we affirm.
May 19, 2006 in U.S. 6TH CIRCUIT COURT OF APPEALS | Permalink
Victor Rivera was sentenced to 188 months of imprisonment for distributing heroin and being a felon in possession of a firearm. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). His sentencing occurred between the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005) (declaring the federal sentencing guidelines advisory), and this court's en banc decision in United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006) (instructing district courts on the process for imposing sentence post-Booker). On appeal, Rivera claims that the district court erred by not following the correct sentencing process and that the sentence imposed was unreasonable. We affirm.
May 19, 2006 in U.S. 1ST CIRCUIT COURT OF APPEALS | Permalink
On August 12, 2003, Rafael Morales-Rodríguez ("Morales" or "defendant") was charged in the United States District Court for the District of Puerto Rico in a fourteen-count indictment. He was accused of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371 (Count One); mail fraud, in violation of 18 U.S.C. § 1341 (Counts Two through Ten); embezzlement of labor union funds, in violation of 29 U.S.C. § 501 (c) (Counts Eleven and Twelve); structuring money transactions, in violation of 31 U.S.C. §§ 5322(b) and 5324(3) and 18 U.S.C. § 2 (Count Thirteen); and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Fourteen).
On May 12, 2004, after a six-day jury trial, Morales was found guilty of all charges except for Count Two. On September 23, he filed a motion requesting a new trial, but this was denied. He was sentenced to imprisonment for a term of 121 months as to Counts Three through Ten, and Counts Thirteen and Fourteen. He was sentenced to a term of five years as to Counts One, Eleven, and Twelve. All sentences were to be served concurrently. Additionally, the district court imposed a supervised release condition requiring Morales to submit to a drug test within fifteen days of release and thereafter to random drug testing not to exceed 104 samples per year. On October 4, 2004, Morales filed this appeal, challenging both his convictions and his sentence. After careful consideration, we affirm.
May 19, 2006 in U.S. 1ST CIRCUIT COURT OF APPEALS | Permalink
Defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and upon the State's motion pursuant to the "Three Strikes" statute, N.J.S.A. 2C:43-7.1, at sentencing a life term without parole was imposed. The predicate three offenses consisted of the armed robbery conviction for which sentencing was pending; a conviction rendered on a plea in the United States District Court to bank robbery, 18 U.S.C.A. 2113(a) and (d), for which defendant was sentenced on December 1, 2000; and a conviction rendered in state court for first-degree kidnapping, N.J.S.A. 2C:13-1b(1), and first-degree robbery, N.J.S.A. 2C:15-1, for which defendant was sentenced on January 17, 2001. In an unreported opinion rendered on appeal of the present matter, we affirmed defendant's conviction and sustained the constitutionality of the Three Strikes statute, but we found for purposes of implementing the statute that the record was insufficient to determine whether defendant's conviction for robbery in federal court was substantially equivalent to a conviction in state court pursuant to N.J.S.A. 2C:15-1. We remanded the case to permit the issue to be addressed. State v. Parks, Docket No. A-3294-01T4 (App. Div. November 24, 2003). Defendant's petition for certification was denied. State v. Parks, 179 N.J. 311 (2004).
May 18, 2006 in SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION | Permalink
Brent James Bockes appeals the sentence pronounced by the district court after his guilty plea for bank robbery. Bockes contends that tampering with a motor vehicle is not a crime of violence as defined by U.S. Sentencing Guidelines Manual § 4B1.2 and that his sentence was unconstitutionally pronounced under mandatory sentencing guidelines. We affirm.
May 18, 2006 in U.S. 8TH CIRCUIT COURT OF APPEALS | Permalink
Jose Moreno was convicted of murder in Texas state court and sentenced to death. After his conviction was affirmed on appeal, he petitioned for state and federal habeas relief. The district court denied all of Moreno’s claims and declined to issue acertificate of appealability (“COA”). Moreno moves in this court for a COA.
May 18, 2006 in U.S. 5TH CIRCUIT COURT OF APPEALS | Permalink
Robert James Sanders appeals his sentence on a conviction for possession of a firearm by a convicted felon. He contends that the district court erred by not applying the sentencing guideline that reduces the offense level when the firearm is possessed solely for a "sporting" purpose. We hold that the district court could properly decline to apply the guideline on the ground that Mr. Sanders had threatened to shoot various persons with a firearm, even though he was not carrying a firearm when he made the threats.
May 17, 2006 in U.S. 10TH CIRCUIT COURT OF APPEALS | Permalink
Thomas Walker, an inmate at the United States Penitentiary in Terre Haute, Indiana, pleaded guilty to stabbing four correctional officers with sharpened metal rods. A few days later he had second thoughts and mailed a letter to the district court asking to withdraw one of his guilty pleas. On the day of sentencing, Walker’s attorney filed a motion to withdraw all four pleas, asserting that Walker “felt coerced” to plead guilty because the district court had denied his motion to transfer the case to Indianapolis and he did not think he could get a fair trial in Terre Haute. The district court denied Walker’s motion and sentenced him to 240 months’ imprisonment—30 months longer than the high end of the applicable advisory Sentencing Guidelines range. Walker argues on appeal that (1) the district court should have permitted him to withdraw his guilty pleas, (2) under Rule 32(h) of the FEDERAL RULES OF CRIMINAL PROCEDURE he was entitled to advance notice before the district court imposed a sentence that departed upward from the advisory Guidelines range, and (3) his sentence was unreasonable. We affirm. The district court held that Walker had not presented a fair and just reason to withdraw his guilty pleas but had merely changed his mind; this ruling was not an abuse of discretion. Rule 32(h)’s notice requirement—which applies to “departures” from the Guidelines, a concept that our post-Booker cases have called “obsolete”—does not apply here, where the district court selected a sentence at variance from the advisory Guidelines range based on the sentencing factors specified in
18 U.S.C. § 3553(a). Finally, Walker’s sentence of 240 months was reasonable and adequately explained by the district court.
May 17, 2006 in U.S. 7TH CIRCUIT COURT OF APPEALS | Permalink
Michael Harris was convicted of firearm possession and sentenced to the statutory minimum of fifteen years as a career criminal. On appeal, he asks us to consider the scope of the "prior conviction" exception to the rule established in Apprendi v. New Jersey, 530 U.S. 466 (2000), specifically, whether a jury, rather than a judge, must determine if prior crimes were committed on separate occasions under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). The district court concluded that this determination was included within the prior conviction exception and could be made by the court. We agree and, therefore, AFFIRM.
May 16, 2006 in U.S. 10TH CIRCUIT COURT OF APPEALS | Permalink
While serving time as a federal prisoner in Oklahoma, Donnie K. Alexander helped his friend, Lonnie Sawyer, assault a fellow inmate. Alexander invoked his Fifth Amendment right to remain silent when first questioned about his role in the fight. Prison officials ceased questioning. However, they later placed Alexander in a cell next to Sawyer, after Sawyer requested an opportunity to convince Alexander that he should discuss his participation in the attack with prison authorities. Following the friends' conversation, Alexander admitted to officials his role in planning and carrying out the assault.
A jury in the Western District of Oklahoma found Alexander guilty of assault resulting in serious bodily injury in violation of 18 U.S.C. 113(a)(6). Alexander asks us to reverse his conviction for three reasons: (1) the district court should have suppressed the statements he made to the FBI after Sawyer convinced him to confess his role in the assault; (2) the district court constructively amended the grand jury indictment by instructing the jury on aiding and abetting; and (3) the government did not present sufficient evidence for the jury to conclude that the victim suffered serious bodily injury. We have jurisdiction pursuant to 28 U.S.C. 1291. Finding no legal error, we AFFIRM.
May 16, 2006 in U.S. 10TH CIRCUIT COURT OF APPEALS | Permalink
Shatley contends that under United States v. Booker, 543 U.S. 220 (2005), "the maximum sentence permitted by the facts of his convic- tion" is 16 months’ imprisonment and that the alternative nonguide- line sentence cannot make his illegal sentence legal.
Even though we agree with Shatley that the district court commit- ted Booker error, we conclude that, in light of the district court’s announcement of an alternative sentence, the error was harmless. We therefore affirm.
May 16, 2006 in U.S. 4TH CIRCUIT COURT OF APPEALS | Permalink
Career offender sentence based on two prior felony convictions of either a crime of violence or a controlled substance offense within 15 years of the instant offense is affirmed even though defendant committed the prior offenses outside the 15-year window preceding the instant offense, as the sentences imposed for those convictions resulted in defendant being incarcerated during some part of the 15-year window.
May 16, 2006 in U.S. 11TH CIRCUIT COURT OF APPEALS | Permalink
After Micah Johnson pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the district court1 sentenced him to 30 months in prison and three years of supervised release. In determining Johnson’s Guidelines imprisonment range, the district court calculated a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A), which is applicable when a defendant commits the offense of conviction after sustaining a felony conviction for a “crime of violence,” as defined under U.S.S.G. § 4B1.2. See U.S.S.G. § 2K2.1, comment. (n.1). Over Johnson’s objection, the district court concluded that Johnson’s Florida grand theft auto conviction was for a crime of violence within the meaning of section 4B1.2. Johnson appeals, renewing his argument that his Florida conviction was not for a crime of violence, and we affirm.
May 15, 2006 in U.S. 8TH CIRCUIT COURT OF APPEALS | Permalink
Paul A. Childs is serving a lengthy prison term following his conviction on five counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C), of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and of possession of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c). He appeals the denial of his motion to suppress evidence and his motion for a new trial or dismissal of the indictment."
Conviction on drug and weapons charges is affirmed where: 1) government suppression of impeachment evidence did not prejudice the defendant; and 2) wiretap warrant was valid and the evidence obtained was properly admitted.
May 15, 2006 in U.S. 7TH CIRCUIT COURT OF APPEALS | Permalink
