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The Fifth Circuit affirmed Defendant Hernandez and Mendoza's sentences after they pleaded guilty to wire and bank fraud charges arising out of their modified Ponzi scheme. Defendants, two former credit union employees, issued unrecorded share certificates and misappropriated the proceeds. The court held that the district court did not abuse its discretion by applying a two-level sentencing increase to Hernandez's sentence under USSG 2B1.1(b)(11) for possession or use of an authentication feature to further the crime; the district court did not err by holding Hernandez responsible for a loss of $18,376,542, which led to a 20-level increase in her base offense level under USSG 2B1.1(b)(1); and the district court carefully considered Mendoza's request for a downward departure, mitigating factors, the 18 U.S.C. 3553(a) factors, and reasonably concluded that her sentence was warranted. View "United States v. Hernandez" on Justia Law

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Defendant pleaded guilty to conspiracy to engage in sex trafficking of children by force, fraud, or coercion. As part of his plea agreement, he agreed to pay restitution to the victims. After defendant's trial counsel was dismissed, but before his appellate counsel was appointed, the probation officer submitted a Fourth Addendum to defendant's presentence report (PSR) recommending a more onerous restitution award based on a new method of calculation. The Fifth Circuit held that the acceptance of an addendum to a PSR recommending a more onerous restitution award constitutes a critical stage. In this case, defendant was unconstitutionally deprived of the effective assistance of counsel during a critical stage of trial proceedings. Accordingly, the court vacated and remanded for further proceedings. View "United States v. Guerra Pleitez" on Justia Law

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The Tenth Circuit expedited consideration of this bail appeal to consider Mario Ailon-Ailon’s argument that the government has misinterpreted the word “flee” as it appeared in 18 U.S.C. 3142(f)(2), resulting in his illegal pre-trial detention. He argued that involuntary removal by the Bureau of Immigration and Customs Enforcement (“ICE”) did not constitute flight of the sort that would justify detention. On initial consideration, a magistrate judge agreed and determined that Ailon-Ailon should not have been detained before trial. On review of the magistrate judge, the district court reversed, ordering that he be detained. The Tenth Circuit concluded that the plain meaning of “flee” refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supported this plain-text reading. View "United States v. Ailon-Ailon" on Justia Law

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A jury convicted Dufresne of three counts of first-degree criminal sexual conduct (CSC) and six counts of third-degree CSC, based upon sexual acts that Dufresne committed against his then-girlfriend, Wiertalla, with whom he shared a son. Wiertalla reported the acts after Dufresne left her and traveled to Florida with their son. Dufresne belonged to the “Creativity Movement,” which was considered by law enforcement to be a white-supremacist group. The trial court sentenced Dufresne to 50-75 years of imprisonment on the first-degree CSC counts and 25-50 years on the third-degree counts. Following a hearing on the effectiveness of trial counsel’s assistance, the Michigan Court of Appeals affirmed rejection of an ineffective assistance claim. After rejection of his state court motion for relief from judgment, Dufresne filed a federal habeas petition, alleging: trial counsel performed ineffectively; the trial court erred by granting a motion to exclude evidence and the prosecutor intimidated crucial witnesses; appellate counsel failed to raise meritorious issues; repeated references to his post-arrest, post-Miranda silence; and repeated references to his ties to the Creativity Movement. The district court denied habeas relief, concluding that Dufresne procedurally defaulted grounds one and two and was not entitled to habeas relief on the merits of grounds three through five. The Sixth Circuit denied a certificate of appealability, calling the evidence of guilt “overwhelming.” View "Dufresne v. Palmer" on Justia Law

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Frentz, a long-time alcoholic who was taking medication to deal with delirium tremens, was arrested for the murder of his housemate. He claimed to be suffering hallucinations and filed notice that he would pursue a defense of not guilty by reason of insanity. After consulting with an expert, his attorney did not pursue the defense. Frentz was convicted of the murder and associated drug charges. The Court of Appeals of Indiana affirmed. His state postconviction petition alleged ineffective assistance of counsel for not pursuing the insanity defense. The Court of Appeals affirmed the denial of his petition. Frentz sought habeas relief, 28 U.S.C. 2254. The Seventh Circuit affirmed the denial of relief. The Indiana court did not unreasonably apply federal law in denying Frentz’s postconviction petition. Counsel’s decisions were consistent with researching and deciding for strategic reasons not to pursue the insanity defense: Frentz changed his story several times, suggesting attempts to fabricate a cover story, rather than confusion or an inability to remember what had happened. The testimony of jailhouse informants, if credited, indicated a callous disregard for the victim's life and suggested that Frentz had attempted to conceal his crime, beginning almost immediately after the shooting when he reportedly drove his truck up and down the road (as corroborated by other witnesses). A jury could have relied on this evidence in disbelieving any claim of mental incapacity. View "Frentz v. Brown" on Justia Law

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Rodriguez entered the U.S. without inspection in 1999. In 2000, her boyfriend obtained a temporary restraining order against her, claiming that he feared for his safety after episodes of domestic violence. Rodriguez later testified that because she had nowhere else to go, and because she had small children and all her belongings in their shared apartment, she did not leave. Rodriguez pleaded no contest to knowingly violating a TRO and to misdemeanor bail jumping. Rodriguez sought cancellation of her removal as an alien continuously present in the U.S. for 10 years, 8 U.S.C. 1229b(b)(1)(A) and “a person of good moral character” during that time, indicating that removal would cause an “exceptional and extremely unusual hardship” to her five dependent children (including a cancer survivor) and that she had not been convicted of certain enumerated offenses, including violation of a protection order. The IJ decided that Rodriguez’s conviction was determinative, reasoning that Wisconsin law requires a judge to consider the danger posed to a victim and any pattern of abusive conduct by the perpetrator, so a misdemeanor conviction for violating a TRO is “categorically a removable offense.” The BIA and Seventh Circuit rejected her appeals. It does not matter that Rodriguez may not have acted violently by remaining on the premises; her violation of the avoidance-of-residence provision is enough. View "Rodriguez v. Sessions" on Justia Law

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Ley pleaded guilty as a convicted felon in possession of a firearm, 18 U.S.C. 922(g)(1). According to the presentence report (PSR), Ley sustained a 2006 conviction for felony aggravated assault in Pennsylvania, which it classified as a “crime of violence” under the career-offender Guideline, USSG 4B1.2(a)(1). The criminal history Guidelines require the cumulative counting of sentences for offenses that are separated by an intervening arrest. Without an intervening arrest, prior sentences are counted as a single sentence if imposed on the same day. Two of Ley’s criminal history points were based on prior convictions for possession of drug paraphernalia, stemming from traffic offenses. After each, the police released Ley and advised him that the case would proceed via summons. Ley pleaded guilty and was sentenced for both offenses on the same day. His total offense level and criminal history category produced a sentencing range of 46-57 months. Ley argued that the drug paraphernalia sentences should be treated as a single sentence because they were imposed on the same day and were separated not by an arrest, but by a traffic stop so that he should have had a range of 36-47 months. Ley was sentenced to 46 months’ imprisonment. The Third Circuit vacated, citing the “plain meaning” of the Guidelines. If the issuance of a summons should be treated as an arrest, "the Commission knows how to do so." View "United States v. Ley" on Justia Law

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The issue this case presented for the Washington Supreme Court’s review centered on application of RCW 9.73.030 of the Washington privacy act to an inadvertent recording on a cell phone voice mail of a domestic violence assault. The Court held that the recording in this case did not contain a "conversation" within the meaning of the privacy act. Further, even if the recorded verbal exchange here could be considered a private conversation within the privacy act, nevertheless an exception contained in the privacy act applies, rendering the recording admissible. The Supreme Court reversed the Court of Appeals to the extent it held otherwise. View "Washington v. Smith" on Justia Law

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Petitioner Anthony Joseph was convicted of second degree criminal trespass as a lesser included offense of second degree vehicle prowling. He challenged his conviction on the ground that unlawful entry into a vehicle is not a trespass "in or upon premises of another." This case presented a “challenging” question of statutory interpretation because of the overlapping and intersecting definitions of "building" and "premises" in Title 9A RCW. The Court of Appeals affirmed Joseph's conviction, concluding that a vehicle was a "premises" for the purpose of the second degree trespass statute because a vehicle is a type of "building" and "premises" includes "any building." The Washington Supreme Court concluded the legislature plainly intended second degree criminal trespass to encompass trespass into any "building" as defined in the criminal code, RCW 9A.04.110(5), save for trespass into a building in its ordinary sense. This interpretation properly restricts first degree trespass to unlawful entries into ordinary "buildings," a descriptor that needed no further definition. The more severe charge (a gross misdemeanor) was justified by the increased likelihood of trespass into a home or business. All other trespasses fall under the term "premises" and are treated as simple misdemeanors. RCW 9A.52.080. This includes trespasses into premises that are "buildings" broadly conceived, but are not ordinarily thought of as buildings—as relevant here, vehicles. View "Washington v. Joseph" on Justia Law

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Over a period of sixteen months during 2013 and 2014, Applicant Morris Johnson, II was convicted of forgery, then possession of a controlled substance, and then delivery of a controlled substance. He was sentenced to ten years on the forgery case, then ten years on the possession case, stacked on the forgery sentence, and finally forty years on the delivery case, to run concurrently with the other sentences. The concurrent sentence with the latest parole-eligibility date was Applicant’s forty-year sentence. He claimed on appeal that the Parole Board should conduct a parole review of each sentence as it becomes eligible, as if it were the only sentence, which would result in parole review when his ten year forgery sentence would, on its own, become parole-eligible. He argued that doing so would give him a chance to be paroled on the forgery sentence earlier, and so start the running of his possession sentence earlier, than if the first review is based on his eligibility on the forty-year sentence. According to Parole Board policy, when an inmate has concurrent sentences, the Board does not consider him for release to parole until he becomes eligible under the sentence with the latest parole-eligibility date. The Texas Court of Criminal Appeals concluded Applicant’s claim was not cognizable on habeas corpus and that he did not show the violation of a ministerial duty that would warrant relief on mandamus. View "Ex parte Morris Landon Johnson, II" on Justia Law