Justia Criminal Law Opinion Summaries

After defendant pled guilty to illegal reentry following deportation, he objected to the recommendation in the Presentence Investigation Report (PSR) that he be subject to an eight-level enhancement for having committed an "aggravated felony." The district court sustained the objection, but refused defendant's request that the court order the PSR substantively corrected to reflect the determination that he did not commit an aggravated felony. The court rejected the Government's argument that the appeal is moot because defendant has completed his sentence and has been deported. However, the court held that the district court was not required to order any substantive corrections to the PSR. Accordingly, the court affirmed the judgment. View "United States v. Ramirez-Gonzalez" on Justia Law

Defendant pled guilty to a multi-count indictment for crimes related to his involvement in a fraudulent Medicare scheme. On appeal, defendant challenges his 97 month sentence. The court concluded that defendant's principal argument that using the 2009 Guidelines definition of “victim” to enhance his sentence violates the Ex Post Facto Clause is foreclosed by precedent; defendant waived his argument that even if the 2009 Guidelines apply to his sentence, the Medicare beneficiaries were not “victims” within the meaning of the 2009 definition but were more like co-conspirators; and defendant's remaining claims are without merit. Accordingly, the court affirmed the sentence. View "United States v. Shakbazyan" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's decision affirming the IJ's determination that petitioner is removable under 8 U.S.C. 1227(a)(2)(B)(i) and 8 U.S.C. 1227(a)(2)(A)(iii). Petitioner had pleaded guilty to possession with the intent to deliver over ten pounds of marijuana in violation of Ark. Code Ann. 5-64-401(a). Section 5-64-401(a) renders it unlawful for any person to purposely, knowingly, or recklessly manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance. At issue is whether petitioner's conviction constitutes “illicit trafficking in a controlled substance,” a phrase that the INA has left undefined. The Supreme Court has instructed that in determining what constitutes a “small” amount of marijuana, courts are to utilize their common sense. In this case, the court explained that common sense dictates that ten pounds of marijuana is no “small amount,” particularly in light of the 1.3 grams of marijuana that the Supreme Court declared “small” in Moncrieffe v. Holder. Therefore, the court held that petitioner was convicted of a state felony that constitutes “illicit trafficking in a controlled substance” such that he is an aggravated felon and is ineligible for relief from removal. The court denied the petition. View "Flores-Larrazola v. Lynch" on Justia Law

After defendant physically assaulted his ex-girlfriend while serving a 60-month term of supervised release, an assistant public defender represented defendant in the resulting revocation proceeding. Defendant asked to continue the hearing so that he could obtain private counsel, but the district court denied the request. The district court believed that defendant's request was merely a delay tactic. The court concluded that, even if defendant has a right to counsel of choice at a revocation hearing, the district court did not clearly abuse its discretion by denying defendant's motion to continue. In this case, defendant moved to continue his revocation hearing on the morning of the proceeding, defendant had not yet retained new counsel, the Government was ready to proceed, and three witnesses were present to testify, including the victim, who had to be subpoenaed and can be seen in the video footage of the assault to be fearful of defendant. Accordingly, the court affirmed the judgment. View "United States v. Smith" on Justia Law

Defendant conditionally plead guilty to one count of transporting an illegal alien. On appeal, defendant challenged the denial of his motion to suppress evidence obtained during a traffic stop. The court concluded that the border patrol agent had reasonable suspicion to stop defendant's truck where the experienced agent spotted defendant's truck well south of the Sarita checkpoint, the agent observed defendant and his passengers behaving unusually, and the agent saw defendant driving a type of vehicle that is known to be popular among smugglers and on a highway and at a time that is similarly known to be popular among them. Accordingly, the court affirmed the judgment. View "United States v. Ramirez" on Justia Law

Defendant conditionally plead guilty to aiding and abetting the possession of unauthorized access devices. On appeal, defendant challenged the district court's denial of his motion to suppress evidence of gift cards. The court agreed with the district court that defendant may challenge the seizure of the gift cards; the facts support probable cause to believe the gift cards were contraband or evidence of a crime; and the court joined its sister circuits in holding that a law enforcement officer’s scanning of the magnetic stripe on the back of a gift card is not a search within the meaning of the Fourth Amendment. The court concluded that society does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe. Accordingly, the court affirmed the judgment. View "United States v. Turner" on Justia Law

Defendant was convicted of mail fraud for his part in a scheme to procure life insurance policies by misrepresenting the applicants’ net worths and their intention to transfer the policies to a third party. On remand for resentencing, the district court applied an 18-level enhancement to defendant's base offense level due to the actual loss caused by defendant's scheme to insurers and a lender. With respect to the district court’s findings on the insurers’ actual loss, the court concluded that neither the law of the case doctrine nor the mandate rule required a finding of zero actual loss by the insurers at resentencing. The court also concluded that defendant did not waive his challenges to the actual loss suffered by the lender; the district court did not err when it declined to factor Portigon’s sale of its portfolio to EAA into its actual loss calculation and instead calculated the actual loss amount based on the time of the first sentencing; the district court’s decision to base its actual loss calculation solely on the inactive policy loans was a “reasonable estimate of the loss” based on the information available to the court; and the district court did not commit clear error in finding that the actual losses to the insurers and the lender were “reasonably foreseeable pecuniary harm that resulted from [Bazemore’s] offense.” Finally, the court concluded that defendant waived his arguments regarding the proffer agreement and waived his Apprendi challenge. Accordingly, the court affirmed the judgment. View "United States v. Bazemore" on Justia Law

Defendant was convicted of knowingly enticing and coercing an individual to engage in unlawful sexual activity. The district court applied an eight-level enhancement for an offense involving a minor under twelve years of age pursuant to USSG 2G1.3(b)(5), and sentenced defendant to 140 months in prison. Defendant attempted to entice a man named Keith, who lived in another state, to come visit her by suggesting that Keith could have sexual relations with defendant's twelve-year-old daughter and her cousin’s allegedly unborn infant after the infant’s birth. The court held that section 2G1.3(b)(5) does not apply when a defendant invents and offers a fictitious minor under twelve years of age to entice another person to engage in unlawful sexual activity. By failing to consider whether the alleged minor actually existed, the court concluded that the district court did not make the factual findings necessary to apply section 2G1.3(b)(5) in this case. Accordingly, the court vacated the sentence and remanded for resentencing. View "United States v. Vasquez" on Justia Law

Defendant was convicted of two counts of transporting aliens within the United States. Border Patrol agents found two aliens in a large tool box in the back of a pickup truck driven by defendant, but owned by defendant's cousin. Defendant claims that he was unaware of the aliens in the back of the truck. The court concluded that the district court’s jury charge was a correct statement of the law relating to the crime of transporting aliens, and the district court did not abuse its discretion in refusing to provide defendant's proposed supplemental instruction, borrowed from the court's constructive possession of narcotics caselaw. Accordingly, the court affirmed the judgment. View "United States v. Sheridan" on Justia Law

After a criminal investigation resulted in the Government seizing a 2005 Pilatus Aircraft, Bearing Tail No. N679PE, and instituting a civil forfeiture proceeding against the plane, Claimants claimed interest in the aircraft. Claimants are Pablo Zarate Juarez, who is a Mexican citizen, as well as Viza Construction and Premier International Holdings. The district court dismissed the claims under the Fugitive Disentitlement statute, 28 U.S.C. 2466, and denied Claimants' motion to stay the civil proceedings. The court concluded that the record supports a finding that Zarate remained outside the United States to intentionally avoid criminal prosecution. Therefore, the elements of section 2466 are met and the claims in opposition lack merit. Accordingly, the court affirmed the judgment. View "United States v. 2005 Pilatus Aircraft" on Justia Law