U.S. First Circuit: September 2010 Archives
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September 2010 Archives

US v. Gagnon, 09-1047

US v. Gagnon, 09-1047, concerned a challenge to a defendant's conviction under the Sex Offender Registration and Notification Act (SORNA).  In affirming the conviction, the court held that US v. DiTomasso is dispositive of the issue of the effective date of SORNA's registration requirements, and the Congress acted within the scope of its authority under the Commerce Clause.  Further, given the unambiguous meaning of section 16913(d), defendant's attempt to invoke the rule of lenity must fail.  Lastly, the court held that the requirements of Due Process Clause are satisfied in this case as notice of a defendant's obligation to register as a sex offender under state law provides him with effective notice of his corresponding obligation to register under SORNA.

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US v. DiTomasso, 08-2567, concerned a challenge to a conviction of defendant for failure to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA).  In affirming the conviction, the court held that, in framing subsection (d), Congress did not contemplate a statutory scheme in which the application of the general rules outlined in subsections (a), (b), and (c) to previously convicted sex offenders would hinge on action by the Attorney General.  The court also held that the statute has a sufficient nexus to interstate commerce to survive the defendant's Commerce Clause challenge.  Lastly, because Rhode Island did maintain a sex offender registry at the time of defendant's federal crime, and because defendant could and should have registered there as local police directed him to do, there was no due process violation.

 

Gautier v. Wall, 09-2411, concerned a denial of a defendant's application for a certificate of appealability an order vacating the judgment of the district court as the court lacked jurisdiction to consider defendant's second or successive petition without authorization, and not one of defendant's claims meets the gatekeeping requirements of section 2244(b).

 

Merlonghi v. US, 09-2387

Merlonghi v. US, 09-2387, concerned a challenge to the district court's grant of government's motion to dismiss for lack of subject matter jurisdiction, in plaintiff's suit against the United States under the Federal Tort Claims Act (FTCA), for the actions of a U.S. Special Agent, involving an automobile accident.

 

US v. Salas-Fernandez, 08-2015, concerned a challenge to the district court's judgment ordering defendant to pay $157,370.83 in restitution to Loomis-Fargo, in a conviction of the defendant for his participation in an armed robbery of a Loomis-Fargo bank truck, using a firearm and threats of violence.  In affirmin, the court held that there is no abuse of discretion, let alone any plain error, in the district court's order to pay restitution forthwith.

 

Vilela v. Holder, 10-1037, concerned a Brazilian citizen's petition for review of a BIA's final order of removal.  In denying the petition, the court held that substantial evidence supported the IJ's and BIA's conclusions that petitioner failed to establish a nexus between the harm he had suffered and any protected ground, and failed to establish that what he suffered rose to the level of persecution.

 

Vanchurina v. Holder, 10-1309, concerned a couple's petition for review of a final order of removal of the BIA.  In denying the petition, the court held that substantial evidence supports the BIA's finding that the nature and context of the petitioners' claim - one that entails criminal extortion and threats - did not establish grounds for asylum.  Also, substantial evidence supports the finding that the wife was not subjected to extortion on account of a protected ground.

 

Decisions In Criminal Law Matters

US v. Gentles, 09-1431, concerned a challenge to a conviction of defendant for distributing crack cocaine and a sentence of 64-months' imprisonment, followed by four years' supervised release, with a special condition of substance abuse treatment counseling.  In affirming, the court held that the district court did not abuse its discretion in denying defendant's motion for a mistrial as although prosecutorial misconduct occurred, there is no evidence that it prejudiced the outcome of defendant's trial.  The court rejected defendant's claim that the prosecutor improperly vouched for the government's witness is rejected. Also, the probative value of defendant's prior drug transactions with the government witnesses, which demonstrated their prior familiarity with defendant, was not substantially outweighed by the danger of unfair prejudice.  Lastly, defendant's sentence was not unreasonable as the district court was well within its discretion to sentence defendant to 64 months' imprisonment.

 

US v. Nguyen, 09-2410

US v. Nguyen, 09-2410, concerned an appeal of the district court's imposition of an 83-month sentence, followed by four years of supervised release, requiring defendant to submit to a drug test within fifteen days of her release from confinement and periodic drug tests thereafter during the supervised release term, following defendant's conviction for possession with intent to manufacture 1,000 or more marijuana plants.  In dismissing the appeal, the court held that defendant's claim that the district court violated Rule 32(i)(1)(A) is weak, and the claim that the court violated the Court Interpreters Act is simply wrong as, in light of defendant's representations, it appears that the absence of translation of the PSI report into Vietnamese had no effect on her substantial rights.  The court also held that the challenged condition fit the circumstances of the crime, and as such, there was no miscarriage of justice.

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