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Sentences Upheld in Criminal Matters, Plus an Immigration Case

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By FindLaw Staff on May 04, 2010 4:06 PM

In US v. DeLeon, No. 07-3941, the Seventh Circuit faced a challenge to the district court's imposition of a within-Guidelines sentence of 104 months upon a defendant, convicted of counterfeiting pursuant to a blind plea.  The district court's application of the obstruction of justice enhancement in concluding that defendant willfully lied in his motion to withdraw his guilty plea was affirmed as, well as its denial of defendant's acceptance of responsibility reduction.

Welch v. US, No. 08-3108, concerned the district court's denial of defendant's motion under 28 U.S.C. section 2255 to vacate his sentence of 180-months for a conviction of being a felon in possession of a firearm, arguing that his prior Illinois conviction was not a violent felony and that his prior juvenile adjudication cannot be used to enhance his sentence.  However, the sentence is affirmed because his prior conviction for the Illinois offense of aggravated fleeing or attempting to elude a police officer was properly treated as a "violent felony" under the ACCA, as was his prior juvenile adjudication. 

Lastly, in Kucana v. Holder, No.07-1002, on remand from the Supreme Court to determine on the merits, the court dealt with an Albanian citizen's petition for review BIA's refusal to reopen removal proceedings. The Seventh Circuit originally held that a decision by the BIA declining to reopen a removal proceeding may be reviewed only to determine whether the BIA misunderstood a regulation, a statute, or the Constitution.  The Court held that 8 U.S.C. section 1252(a)(2)(B) does not affect judicial review of situations in which immigration officials' discretion is specified by regulation rather than statute, and that a court of appeals also may set aside a decision in which the Board has abused its discretion in applying the law to the facts. 

Thus, in denying the petition for review, the court held that the Board's conclusion that the evidence did not show a material adverse change in country conditions between 2002 and 2006 did not constitute an abuse of discretion.    

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