Articles Posted in Criminal Law

by
Presiding over Wade’s 2008 sentencing for possessing child pornography, Judge Gilbert imposed a sentence of just 36 months, although the guidelines recommendation was 120 months’ imprisonment. Judge Gilbert also granted Wade an early termination of supervised release. FBI agents subsequently seized Wade’s computer when executing a search warrant and discovered over 2000 images of child pornography. Wade pled guilty under 18 U.S.C. 2252A(a)(5)(B). Under U.S.S.G. 2G2.2(b), his base offense was increased 13 levels due to the number and the especially odious content of the images. Wade’s total offense level of 28 and criminal history category of II would have prescribed a recommended sentence of 87-108 months’ imprisonment, but because Wade committed a repeat offense, his recommendation became the statutory minimum term: 120 months. Wade argued that the mandatory minimum term was appropriate because his addiction to pornography and his stress caused his recidivism, the guidelines accounted for the reasons the government gave for varying upwards, and he had support from family. Judge Gilbert imposed a sentence of 132 months’ imprisonment followed by 10 years’ supervised release, noting his previous leniency and expressing concern that Wade would offend again. The judge observed that “not a single 3553(a) factor” favored Wade. The Seventh Circuit affirmed. The judge responded to Wade’s mitigation arguments and adequately justified Wade’s sentence, View "United States v. Wade" on Justia Law

Posted in: Criminal Law

by
Laux broke into his ex‐wife’s home and murdered her with a crowbar. An Indiana jury decided that the aggravating circumstance that he committed murder during a burglary outweighed the primary mitigating circumstance that he had no criminal history and recommended a sentence of life without parole, which the court imposed. Indiana state courts affirmed Laux’s convictions and sentence. After a post‐conviction hearing, they also rejected the claim that his trial counsel provided ineffective assistance. Laux filed a federal habeas corpus petition. The Seventh Circuit affirmed the district court’s denial of relief, rejecting a claim that trial counsel was ineffective by not fully investigating and presenting all of the available mitigating evidence about Laux’s childhood that surfaced at his post‐conviction hearing. The state courts’ conclusion that Laux received effective assistance of counsel was not unreasonable. A defendant can often point to some additional subject and argue it should have been pursued further. The Sixth Amendment does not require counsel to investigate every conceivable line of mitigation evidence—it requires counsel to make reasonable decisions about which matters to pursue. The evidence of Laux’s childhood failed to show significant hardship; he was never a victim of abuse or neglect, was never in trouble, and excelled in high school and college. View "Laux v. Zatecky" on Justia Law

by
Van Cannon pleaded guilty to possessing a firearm as a felon, 18 U.S.C. 922(g)(1). He was sentenced under the Armed Career Criminal Act (ACCA), which imposes higher penalties on section 922(g) violators who have three prior convictions for a “violent felony” or “serious drug offense.” Van Cannon had five qualifying predicates, including Iowa convictions for burglary and attempted burglary and a Minnesota conviction for second-degree burglary. The judge imposed the mandatory minimum 15-year sentence. In 2015 the Supreme Court (Johnson) invalidated the "residual clause" in the “violent felony” definition. Van Cannon sought relief under 28 U.S.C. 2255, citing Johnson. Days later, the Supreme Court (Mathis) held that Iowa burglary does not qualify under the definition. The government conceded that Iowa attempted burglary and burglary no longer qualified under ACCA but argued harmless error because three predicates remained. The Seventh Circuit reversed the dismissal of Van Cannon's claims. He properly challenged his sentence within one year of Johnson. The Minnesota crime of second-degree burglary is not an ACCA predicate. A burglary counts for ACCA purposes only if its elements match the elements of “generic” burglary: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Minnesota statute covers a broader swath of conduct, permitting conviction without proof that the offender had the intent to commit a crime at the moment he unlawfully entered or unlawfully “remained in” the structure. View "Van Cannon v. United States" on Justia Law

Posted in: Criminal Law

by
Romeoville Police received a call from a Wisconsin mother who stated that her 15-year-old daughter (April) left Wisconsin with an unknown man and called her from a motel, wanting to come home. Officers went to the motel, which had a reputation for prostitution and drug problems. A clerk stated that there was one guest from Wisconsin and showed the officers a photocopy of that guest’s identification. The officers proceeded to the room, where the door was propped open. The officers knocked and Key—who matched the identification—answered. Key said April had gone to a restaurant. The officers asked if they could check the room for the girl; Key consented. Inside the room, the officers saw a tablet open to the website backpage.com, which was commonly used to post prostitution advertisements; a large number of prepaid credit cards; used and unused condoms, and multiple cellphones. Crayton, another young woman, was in the room. Crayton stated that she and April were prostituting and that Key was their pimp. They found April at the restaurant. Following Key's arrest, officers seized the tablet, credit cards, cellphones, and other evidence from the room and Key’s car. Key unsuccessfully moved to suppress the evidence. The court instructed the jury that voluntary participation by the victim was not a defense. The Seventh Circuit affirmed Key's conviction, upholding the denial of the motion and the jury instruction. View "United States v. Key" on Justia Law

by
Learn died after Perrone injected her with cocaine in 2008. Perrone pleaded guilty to unlawful drug distribution and stipulated that his distribution of the cocaine caused Learn’s death, claiming that they had made a “suicide pact.” The court applied a statutory enhancement that mandates a 20-year minimum prison term if unlawful drug distribution results in death. The Supreme Court later clarified that this provision requires a defendant’s drugs to be a but-for cause of the death, not merely a contributing cause. Perrone filed a petition under 28 U.S.C. 2255, arguing that the narrowed interpretation indicated that he is actually innocent of causing Learn’s death and that his counsel was ineffective for failing to advise him of a Seventh Circuit case decided one day before his sentencing that narrowly interpreted the enhancement. The Seventh Circuit affirmed the denial of relief. While the coroner’s report listed the cause of death as “[c]ombined toxicity with cocaine, ethanol and opiates,” Perrone stated he gave Learn additional cocaine because he concluded that she would not die without it. Perrone cannot establish that it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt. Even assuming that Perrone could show “deficient performance” by counsel, it is unlikely that he could satisfy the “prejudice” prong. The evidence of causation was strong and his plea agreement allowed him to obtain a sentence reduction for cooperating View "Perrone v. United States" on Justia Law

by
Tucker and co-defendants were charged with conspiracy to distribute heroin, with an allegation that a 2009 death resulted from the use of heroin distributed by the conspiracy. Tucker’s co-defendants pleaded guilty. Tucker and the government agreed to omit all evidence concerning the death and requested that the court not instruct the jury on that portion of the indictment. The prosecution stated that the death was "a sentencing factor and addresses the mandatory minimum sentence ... 20 years" and did not present evidence regarding a death. The jury convicted Tucker of conspiracy, 21 U.S.C. 841(a)(1), and found that the offense involved more than one kilogram of heroin. The PSR explained that Tucker’s base offense level was 32 but recommended that, under U.S.S.G. 2D1.1(a)(2), the level should increase to 38 because his offense involved more than one kilogram of cocaine and “the offense of conviction establishe[d] that death or serious bodily injury resulted.” Tucker was sentenced to 40 years’ imprisonment after the court found that his drug distribution resulted in a death. The Seventh Circuit affirmed the rejection of his habeas petition, in which he claimed ineffective assistance of counsel. Whether Tucker’s counsel should have known to challenge the 2D1.1(a)(2) enhancement, is not dispositive because he made a strategic decision not to do so, based on the reasonable calculation that his client would be better off if the jury did not hear evidence regarding the resulting death. View "Tucker v. United States" on Justia Law

by
Jones took off running as officers in an unmarked police car approached. Officers Milone and Dillman gave chase, identifying themselves as police officer. At trial, Milone testified that, using a flashlight, he observed Jones holding his waistband while running, then observed Jones reach into his pocket, grab a firearm, and throw it over a fence. Dillman stated that he heard the gun hitting the ground. A gun was recovered behind the fence. Jones was charged with unlawful possession of a firearm as a felon, 18 U.S.C. 922(g)(1). The government successfully moved to preclude cross‐examination of Milone based on testimony he gave in another case (Brantley), pertaining to an armed robbery investigation, and his observations of the defendant from about 80 feet away. The Brantley judge concluded that he did not believe Milone was able to identify the subject from this distance, based on the squad video and photographs showing the amount of light, and an investigator’s testimony that she was unable to see anything from the same location. The judge emphasized that he was not suggesting that Milone testified untruthfully, but that his testimony reflected an inaccurate recollection. The Seventh Circuit affirmed his conviction. The probative values of allowing cross-examination of Milone based on Brantly would have been substantially outweighed by the danger of unfair prejudice and confusion of the issues. The court also rejected a claim of prosecutorial misconduct by “vouching” for Milone’s testimony. View "United States v. Jones" on Justia Law

Posted in: Criminal Law

by
Valenti is a convicted felon and registered sex offender, with a 1993 California conviction for a “Lewd or Lascivious Act with [a] Child Under 14 Years.” Valenti claimed that Indiana violated his right to vote by refusing to let him enter a polling site located at a school (Ind. Code 35-42-4-14(b)). His neighborhood polling place is a school gymnasium. The state allows serious sex offenders to vote by absentee ballot, Ind. Code 3‐11‐10‐24(a)(12), at a county courthouse, or at a civic center. The Seventh Circuit affirmed summary judgment in favor of the state defendants, noting that Valenti does not even have a constitutional right to vote: Section 2 of the Fourteenth Amendment gives states the “affirmative sanction” to exclude felons from the franchise. His right to vote is only statutory and the Indiana statute survives rational basis review. “Indiana’s position is an iron‐clad fortress in light of the rational basis test.” View "Valenti v. Lawson" on Justia Law

by
Illinois authorities arrested Pope for pandering. While the case was pending, Pope was charged with violating the federal pandering law, based on the same events. Pope bounced between state and federal facilities under a writ of habeas corpus ad prosequendum, without acquiring primary custody. A federal court sentenced Pope to 100 months’ imprisonment; months later, an Illinois court sentenced him to five years. Pope was later moved from an Illinois facility to a federal facility. Seven months later, Pope was returned to a state facility, without a writ of habeas corpus ad prosequendum, where he remained. In August 2010, Illinois paroled Pope and surrendered him to federal authorities. The Federal Bureau of Prisons (BOP) calculated the start date of his federal sentence as August 2010; refused to give Pope credit for time served on his state sentence; and denied Pope’s request to retroactively designate the Illinois prison as his federal place of imprisonment. Pope filed a habeas petition in September 2014. In April 2015, the government replied. In July 2016, the court ordered BOP to credit Pope 30 days. More than two years after Pope filed, the court denied the remainder of his petition. In November 2017, BOP released Pope to supervised release. The Seventh Circuit declined to dismiss the petition as moot because over-incarceration carries weight in a motion to modify supervised release, BOP miscalculated the date Pope’s sentence commenced and abused its discretion in denying retroactive designation. View "Pope v. Perdue" on Justia Law

Posted in: Criminal Law

by
A federal warrant, issued in July 2015, authorized federal agents to use pen registers, trap-and-trace devices, historical cell-call records, and “electronic investigative techniques” to capture and analyze signals emitted by the subject phones, including in response to signals sent by law enforcement officers to find two cell phones and understand the nature of their owners’ apparently criminal activity. The reference to electronic investigative techniques is a description of a cell-site simulator, a device that pretends to be a cell tower and harvests identifying information, including location data, about every phone that responds to its signals. The Justice Department claims that it discards information about phones other than it is programmed to look for and that it does not receive the contents of any call. To obtain the contents of a call or message, agents would need a warrant under the wiretap statutes, while the 2015 warrant was issued under 18 U.S.C. 2703(d). Defendant argued that 2703(d)’s “reasonable grounds” standard violated the Fourth Amendment’s probable cause standard. The Seventh Circuit declined to address that issue because the 2015 warrant also recited the existence of probable cause. A warrant that authorizes police to follow a particular cell phone adequately describes the evidence to be acquired and is not “open-ended.” View "United States v. Sanchez-Jara" on Justia Law