Recently in Criminal Law Category

District court's sentence of a 240 months imprisonment and a life term of supervised release of a defendant convicted of knowingly transporting a minor in interstate commerce with intent to engage in sexual activity and related offenses is affirmed where: 1) district court's use of uncharged conduct in determining defendant's sentence did not violate the Sixth Amendment; 2) district court did not err by relying on uncharged conduct that was proven by preponderance of the evidence standard; and 3) the district court did not commit reversible error in calculating defendant's Guidelines range and the sentence was therefore procedurally reasonable.   

Read US v. Grubbs, No. 07-5040

Appellate Information

Argued: September 24, 2009

Decided: November 6, 2009

Judges

Opinion by Judge Agee

Counsel

For Appellant: Matthew Segal, Federal Defenders of Western North Carolina, Inc.

For Appellee: Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina

District court's grant of government's motion for an order permitting it to involuntarily medicate defendant to render her competent to stand trial is vacated and remanded as the government had the burden of satisfying the Sell v. US, 539 U.S. 166 (2003), standard by clear and convincing evidence, and when the current state of the record is considered with this higher standard of proof, questions arise as to whether the government carried its burden under Sell.     

Read US v. Bush, No. 08-6725

Appellate Information

Argued: September 24, 2009

Decided: October 29, 2009

Judges

Opinion by Judge Niemeyer

Counsel

For Appellant:  Marta K. Kahn, Baltimore, Maryland

For Appellee:  Bonnie S. Greenberg, Baltimore, Maryland

Defendant's conviction and sentence to thirty months in prison and three-year term of supervised release for threatening federal officials is affirmed but special conditions in connection with supervised release ordering defendant to not possess pornography, not enter places where pornography could be obtained, not have contact with children, and submit to invasive sex offender tests are vacated and remanded as the district court offered scant explanation for any of the challenged special conditions and no explanations for the pornography conditions. 

Read US v. Armel, No. 08-4700

Appellate Information

Argued: September 24, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Motz

Counsel

For Appellant:  Mary Elizabeth Maguire, Office of the Federal Public Defender, Richmond, Virginia

For Appellees: Stephen David Schiller, Office of the United States Attorney, Richmond, Virginia

In a 42 U.S.C. section 1983 action claiming that defendant-city's police performed racially discriminatory searches, district court's denial of class certification is affirmed where plaintiff had little interest in or knowledge and understanding of the case, and appeared to be merely lending his name to the suit. Dismissal of plaintiff's Fourth Amendment and equal protection claims is affirmed where: 1) plaintiff's subjective beliefs were irrelevant in assessing whether a reasonable person would have felt free to terminate his encounter with the police; and 2) the city did not classify plaintiff on the basis of his race.

Read Monroe v. City of Charlottesville, No. 08-1334

Appellate Information

Argued: May 12, 2009

Decided: August 31, 2009

Judges

Opinion by Judge Beam

Counsel

For Appellant:

Neal Lawrence Walters, Scott Kroner, PLC,  Charlottesville, VA

For Appellees:

Alvaro A. Inigo, Zunka, Milnor, Carter & Ingo, Ltd., Charlottesville, VA

In a habeas petition claiming that a parole ineligibility determination violated petitioner's due process and equal protection rights, denial of the petition is affirmed where petitioner did not identify any clearly established federal law that prohibited the parole board from considering conduct unnecessary to a conviction as part of its three-strikes determination.

Read Townes v. Jarvis, No. 05-7382

Appellate Information

Argued: December 3, 2008

Decided: August 19, 2009

Judges

Opinion by Judge Motz

Dissent by Judge Shedd

Counsel

For Appellant:

Justin Sanjeeve Antonipillai, Arnold & Porter, L.L.P., Washington, DC

For Appellees:

Richard Carson Vorhis, Office of the Attorney General of Virginia, Richmond, VA

In a firearm possession prosecution, denial of defendant's motion to suppress the firearm seized from his house is affirmed where there was a sufficient basis for the magistrate who issued the warrant to conclude that there would be probable cause for the search.

Read US v. Andrews, No. 08-4721

Appellate Information

Argued: May 13, 2009

Decided: August 12, 2009

Judges

Opinion by Judge Traxler

Counsel

For Appellant:

Stephen Clayton Gordon, Office of the Federal Public Defender, Raleigh, NC

For Appellee:

Jennifer P. May-Parker, Office of the United States Attorney, Raleigh, NC

Defendant's assault conviction is affirmed, where the "premises" of Asadabad, Afghanistan, where the offense occurred, constituted a United States "military mission" under 18 U.S.C. section 7(9), so as to render it within the criminal jurisdiction of a district court. However, his sentence is vacated where the district court must explicitly find by a preponderance of the evidence what, if any, instrumentality constituted the basis for a dangerous weapon enhancement.

Read US v. Passaro, No. 07-4249

Appellate Information

Argued: March 27, 2009

Decided: August 10, 2009

Judges

Opinion by Judge Motz

Counsel

For Appellant:

Joseph Bart Gilbert, Office of the Federal Public Defender, Raleigh, NC

For Appellee:

Banumathi Rangarajan, Office of the United States Attorney, Raleigh, NC

Defendant's child pornography sentence is vacated where the district court improperly applied a presumption of reasonableness to defendant's Sentencing Guidelines sentencing range.

Read US v. Raby, No. 06-5066

Appellate Information

Argued: March 26, 2009

Decided: August 11, 2009

Judges

Opinion by Judge Niemeyer

Counsel

For Appellant:

Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, WV

For Appellee:

Louise Anna Forbes, Office of the United States Attorney, Charleston, WV

In a capital habeas matter, the denial of the habeas petition is affirmed where: 1) a previously undisclosed ballistics report did not exculpate petitioner, given its inconclusive language; 2) petitioner's counsel did not perform ineffectively by failing to prevent him from representing himself, as he represented himself for only two days during the government's presentation of its case, and his defense attorneys were heavily involved as standby counsel; and 3) petitioner waived his right to present expert mitigation evidence.

Read Muhammad v. Kelly, No. 08-13

Appellate Information

Argued: May 12, 2009

Decided: August 7, 2009

Judges

Opinion by Judge Gregory

Counsel

For Appellant:

Jonathan P. Sheldon, Devine, Connell & Sheldon, PLC, Fairfax, VA

For Appellee:

Katherine Baldwin Burnett, Office of the Attorney General of Virginia, Richmond, VA

In a petition for review of the BIA's denial of Iranian native's application for asylum and withholding of removal, the petition is granted in part where the Board failed to give reasoned consideration to petitioner's evidence of a well-founded fear of persecution based on petitioner's religion, or more specifically, his conversion from Islam to Christianity while in the United States. However, the petition is denied in part, where substantial evidence supported the BIA's determination that petitioner failed to prove a well-founded fear of persecution based on his political opinion.

Read US v. Cox, 08-12857

Appellate Information

Argued: May 13, 2009

Decided: August 5, 2009

Judges

Opinion by Judge Traxler

Counsel

For Appellant:

William A. Brafford, Office of the United States Attorney, Charlotte, NC

For Appellee:

Amy Elizabeth Simpson, James McElroy & Diehl, PA, Charlotte, NC