Decisions in Criminal Matters, Plus Breach of Contract/Tort Claim - U.S. Fourth Circuit
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Decisions in Criminal Matters, Plus Breach of Contract/Tort Claim

In US v. Merced, No. 09-1844, the Third Circuit faced a government's challenge to district court's imposition of a five-year, well below the recommended guidelines, sentence for a drug possession conviction.  In vacating and remanding the case for resentencing, the court concluded that the district court may have sentenced the defendant based on personal policy disagreement with the scope of the career offender provision of the guideline.  If the variance was granted on such grounds, the court must clearly explain whether it is based on a policy disagreement with section 4B1.1 and the court must also justify that decision as required by precedents.  Furthermore, the district court failed to analyze highly relevant sentencing factors, section 3553(a)(6), as the court's choice of sentence may have created a risk of unwarranted disparities between defendant and similarly situated recidivist crack cocaine dealers. 

US v. Vosburgh, No. 08-4702, involved a conviction for possession of child pornography and attempted possession of child pornography.  In affirming the convictions, the court held that the district court did not err in denying defendant's motion to suppress as the search warrant was supported by probable cause as the IP address connected to a criminal attempt to access child pornography was fairly traceable to defendant's apartment and the information in the warrant application describing that attempt was not stale.  Defendant's variance claim and that it caused him prejudice is rejected as is defendant's challenge to sufficiency of evidence.  Lastly, district court did not abuse its discretion by permitting the government to introduce legal, child erotica pictures found on defendant's hard drive and the court did not err in allowing testimony concerning the age of a girl depicted in an exhibit. 

Lastly, Pediatrix Screening, Inc. v. Telechem Int'l, Inc. No. 08-1391, involved a business dispute, between two parties involved in genetic screening, alleging breach of contract and fraudulent misrepresentation claims, among others.  In vacating the district court's orders denying Pediatrix's Rule 59 motion and that it could not argue insufficient evidence because it failed to timely raise the issue, the court held that Pediatrix's gist of the action challenge was fully aired in the district court and preserved for appellate review.  On the merits, the district court erred in its disposition of the gist of the action question as there is too much uncertainty surrounding the "misrepresentation" on this record to determine whether the gist of the action was in tort or in contract.

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