News

 

Julie C. Tizzard is committed to providing the most current criminal defense law updates,
personal injury attorney news, and Louisiana dui news.

 

For the latest news and current case updates please check our criminal defense law updates, personal injury attorney news, and Louisiana dui news, as they are updated monthly.

 

 

 

May 2009

SUPREME COURT:  Noteworthy Decisions and Cases Docketed for Oral Argument

 

Habeas Corpus

Jimenez v. Quarterman, No. 07-6984 (Jan. 13, 2009): A state prisoner has one year from the date his conviction becomes final to file a habeas corpus petition in federal court under 28 U.S.C.    2254.  Finality is defined as “the conclusion of direct review or the expiration of the time for seeking such review.” In this case, the state court allowed an out-of-time appeal.  The question presented was whether the one year started to run when the time for filing a direct appeal originally expired, or at the conclusion of the out-of-time appeal.  Answer: the latter.  The one-year prescriptive period began upon expiration of the time for seeking certiorari review in the U.S. Supreme Court of the denial of the out-of-time appeal.

 

Search and Seizure

Herring v. United States, No. 07-513 (Jan. 14, 2009): Search subsequent to illegal arrest based on defunct warrant does not justify application for the exclusionary rule of the Fourth Amendment.  Herring was arrested in one county based on an arrest warrant from another which a computer shoed as outstanding despite the fact it had been recalled five months prior.  Search incident to arrest revealed drugs and a gun.  In its 5-4 decision, the Court first recognized that suppression is not an automatic consequence of the Fourth Amendment violation.  It framed the inquiry around the “culpability of the police and the potential of exclusion to deter wrongful police conduct.”  The Court reasoned that the exclusionary rule was designed to target intentional police conduct that was nearly unconstitutional.  Here, the Court found the conduct to be an isolated incident of negligence rather then a systemic error or recklessness.  Thus, due to the rarity of this incident, exclusion would not result in the deterrence targeted by the rule.

 

Sentencing

Chambers v. United States, No. 06-11206 (Jan. 13, 2009): The Illinois crime of “failure to report” for confinement is not “violent felony” for purposes of the Armed Career Criminal Act (ACCA).  In yet a third ACCA        opinion in as many years, the Supreme Court addressed whether a crime fit within the definition of the residual or “Otherwise Clause” of the Armed Career Criminal Act and resolved a split among the circuits regarding this enhancement for a conviction of “failure to report.”  The unanimous Court held that under the relevant Illinois statute the crime for not reporting to jail was categorically separate from the potentially more aggressive behavior of escape.  Moreover, the Court found that this crime did not “involve conduct which presents a serious potential risk of physical injury to another.”

 

Oregon v. Ice, No. 07-901 (Jan. 14, 2009):  It was not a violation of the Sixth Amendment for a state court judge to impose consecutive rather than concurrent sentences.  In a 5-4 decision, the Court declined to extend the Apprendi  and Blakely decisions beyond factual, offense-specific conduct which the jury must decide.  The Court found that the states such as Oregon, which require a jurist to make factual findings before imposition of consecutive terms do not transgress the Sixth Amendment.  Specifically relying on historical practice and state sovereignty, the Court held that the determination of concurrent versus consecutive sentences lies within the purview of the legislature rather than the jury.

 

Evidence

Flores-Figueroa v. United States, Docket No. 08-108 (oral argument Feb. 25, 2009): Whether, to prove aggravated identity theft under 18 U.S.C.     1028A(a)(1), the Government must show that the defendant knew that the means of identification he used belonged to another person.

 

Right to Counsel

Montejo v. Louisiana, Docket No. 07-1529 (oral argument Jan. 13, 2009): Petitioner was arrested for first degree murder.  He appeared before the magistrate within the required 72 hours at which point a public defender was appointed.  Subsequently, officers conducted an unrepresented, custodial interrogation during which they elicited incriminating statements.  Petitioner was tried and sentenced to death.  On appeal, the Louisiana Supreme Court held that the Petitioner’s Sixth Amendment right to counsel was not perfected at the 72-hour hearing because “something more than mute acquiescence was needed” to trigger right to counsel.  The Supreme Court granted certiorari to answer whether an indigent defendant must take additional affirmative steps to “accept” the appointment in order to secure the protections of the Sixth Amendment and thus prevent custodial, police-initiated interrogations without counsel present?
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Standard of Review

Puckett v. United States, Docket No. 07-9712 (oral argument Jan. 14, 2009): Petitioner entered a plea agreement with the Government in which for waiving constitutional rights, the Government would recommend the three-point reduction for acceptance and responsibility.  Subsequently, the Government reneged.  Defense counsel failed to object.  The Fifth Circuit held that although the Government acknowledged the breach of the plea agreement, “plain error” review did not require reversal.  Petition was granted to answer the question of whether a forfeited claim that the Government breached a plea agreement is subject to Federal Rules of Criminal Procedure 52(b) plain error standard of view.

 

 

March 2009

 

Fifth Circuit Updates

Batson

 

Reed v. Quarterman, No.05-70046 (5th Cir. Jan. 12, 2009): In a rare case, the Fifth Circuit ordered habeas relief for a Batson violation.  The Court conducted a comparative analysis of the reasons given by the prosecutor for his strikes of two African American jurors with his treatment of similarly situated white jurors, found disparate treatment and concluded that the prosecutor’s reasons were a pretext for discrimination. The decision also is useful for procedural reasons: it finds the asserted state procedural bar was not firmly established and held that the failure to conduct comparative analysis at the Batson hearing did not bar such analysis on review.

 

Sentencing

 

United States v. Ollison, No. 07-11029 (Jan. 6, 2009): Defendant’s sentence vacated and case remanded for resentencing because U.S.S.G.   3B1.3 enhancement, abuse of position of trust to facilitate commission or concealment of the offense, did not apply.  Defendant, secretary to a school district superintendent, was fond guilty of theft from an organization which received federal funds by using a school district-issued credit card for personal purchases.  The Fifth Circuit held that a sentencing court must conduct a two-party inquiry, that the person occupied a position of trust and used it to aid the crime’s commission or concealment. In holding the enhancement did not apply to Ollison, the Fifth Circuit held that she lacked the requisite managerial discretion and minimum supervision of a position of trust.  Simple “opportunity and access” do not give rise to application of the enhancement, thus the district court clearly erred.

 

United States v. Mohr, No. 08-60075 (Jan. 6, 2009): State court conviction for “stalking” was properly used as a “crime of violence” (COV) for purposes of U.S.S.G.    2K2.1(a)(4)(A).  In its decision, the Fifth Circuit looked to definition of COV in U.S.S.G.    4B1.2.  It focused attention on the residual clause and accompanying commentary, which include a crime which “by its nature presented a serious potential risk of physical injury to another.”  Using the categorical approach established by Untied States v. Taylor, 495 U.S. 575 (1990), the Fifth Circuit recognized that the state statute had a number of subsections, but that the subsection under which Mohr was convicted had the requisite element of “purposeful, aggressive and violent” conducted targeted by the COV language.  The fact that the state statute included a provision which arguably fell outside the targeted “purposeful” conduct did not alter the Fifth Circuit’s analysis.  The state conviction bore out that Mohr’s conviction was under the “aggressive” provisions of the state statute, not the non-violent portion. 

 

United States v. Ekanment, No. 06-11407 (Jan. 7, 2009): District Court erred in enhancing defendant’s guidelines based for “relevant conduct of others” pursuant to U.S.S.G.     1B1.3. Defendant was tried and convicted of fraudulently billing Medicare for medical equipment.  At sentencing, the district court elevated his guideline range based on U.S.S.G     1B1.3.  Generally, a court may hold a defendant, in jointly undertaken enterprise, responsible for all reasonably foreseeable acts or missions of others in furtherance of the enterprise. Here, Fifth Circuit found that the evidence merely showed defendant was aware that the “other” was operating a similar fraudulent scheme.  However, because there was not indication that defendant participated, supported or had a stake in “other’s” activities, it was clearly erroneous to increase the guidelines by two levels.

 

Sufficient Evidence

 

United States v. Armstrong, et.al., No. 07-30286 (Nov. 21, 2008): Convictions for aiding and abetting reserved where principal was acquitted for the underlying actions.  Due to the fact that the same jury found, at a minimum, reasonable doubt that the  actions committed were in fact criminal, the Fifth Circuit held that there was insufficient evidence for the jury to conclude that the abettor could be liable for and convicted of the same acts.

 

United States v. McCall, No. 07-51456 (Dec. 19, 2008): Convictions for 21 U.S.C.   860, distribution within 1000 feet of a school, reversed where government failed to introduce sufficient evidence of the actual distance.  During the course of the two-day trial, the government presented two pieces of evidence purporting to demonstrate the requisite 1000 feet: an unscaled, aerial photograph and the testimony of a police detective.  The Fifth Circuit stated that the photograph, was useless without some indication of distance, and the detective’s testimony based on the “casual experience of driving around the neighborhood” was essentially unsubstantiated lay opinion.  The Court held that a reasonable person would require more that a “casual or unelaborated guess” to decided a fact beyond a reasonable doubt. 

 

 

January 2009

 

NEWS UPDATE*- FEDERAL CRIMINAL DEFENSE

THE SENTENCING GUIDELINES AFTER IRIZARRY.

Departure v. Variance

“Departure,” The Supreme Court explained, is a term of art that refers to “non-Guidelines sentences imposed under the [Guidelines] framework.”  Irizzary, 128 S. Ct. At 2202.  Departure implies that the district court followed the Guidelines framework and nevertheless imposed a sentence outside of the application Guidelines range.  See U.S.S.G. § 1B1.1, comment., n. 1(E) (defining “departure”); see also Irizarry, 128 S. Ct. at 2002.  A Court must notify parties in advance of its intent to issue a sentence which constitutes a “departure” from the Guidelines.

“Variance,” describes the district court’s ability to impose a non-Guidelines sentence based upon its independent application of the sentencing factors set forth in 18 U.S.C. 3553(a).  See Irizarry, 128 S.Ct. At 2202-03.  A variance implies that the district court did not follow the Guidelines framework in reaching its sentencing decision; instead, the court abandoned the Guidelines framework and applied the 3553(a) sentencing factors at its own discretion.  The court is not required to give the parties advanced notice of its intent to issue a sentence which constitutes a “variance” from the Guidelines.

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*News Update is a public service announcement by Julie C. Tizzard, a Louisiana criminal defense attorney.