In Gamble v. United States, No. 17-646, decided on June 17, 2019, the Supreme Court declined to overturn its “dual-sovereignty” doctrine — in the face of a Double Jeopardy challenge — in a 7-2 decision written by Justice Alito. Gamble v. United States, No. 17-646, 2019 WL 2493923 (June 17, 2019). Terance Gamble was convicted … Read more
In United States v. Havis, the en banc Sixth Circuit held, unanimously, that a Tennessee state offense criminalizing the attempted delivery of a controlled substance was not a “controlled substance offense,” for purposes of U.S.S.G. §§ 2K2.1 and 4B1.2. ___ F.3d ___, 2019 WL 2376070 (6th Cir. June 6, 2019) (en banc). Overruling prior Circuit … Read more
On June 13, 2019, the Second Circuit affirmed the gun possession conviction in US v. Balde. The story of this case began in 2006, when Mr. Balde’s temporary permission to be in the United States legally was revoked while he was visiting his mother in Guinea during her final illness. He returned by way of … Read more
In Quarles v. United States, decided on June 10, 2019, a unanimous Supreme Court held that “remaining-in” burglary qualifies as a crime of violence for ACCA purposes even if the defendant does not form the intent to commit a crime in the building or structure until sometime after the unlawful remaining commences. The petitioner contended … Read more
On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a). … Read more
The Circuit today affirmed the defendant’s conviction in United States v. Michael O’Brien, which principally rejects, on fact-specific credibility grounds, his 4th and 5th Amendment arguments concerning Miranda and an alleged consent to search. Judge Kearse’s typically thorough opinion lays out the details; no legal ground is broken. The only issue of note is the … Read more
Section 3624(e) of Title 18 of the U.S.C. provides that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” The question sometimes … Read more
Today the Supreme Court granted cert. in Holguin-Hernandez v. United States, S. Ct. No. 18-7739, to resolve the earth-shattering question of whether plain-error review applies to an appellate claim of substantive unreasonableness (i.e., “The sentence is too damn long!”) when defense counsel did not object to the sentence’s unreasonableness at sentencing. The case comes out … Read more
Oh, insufficient evidence– so hard to show in district court after a jury convicts, harder still on appeal with all the “deference” shown to the government. Yet both were done in United States v. Pauling, where the government sought an enhanced charge and punishment based on five words spoken by neither the defendant nor his co-conspirator. … Read more
The First Step Act of 2018, Pub. L. 115-391, allows judges to now “impose a reduced sentence” on people sentenced before August 3, 2010, for certain offenses involving 5 grams or more of crack cocaine. There’s been a lot of litigation on the Act — yielding over 200 written decisions nationally so far — … Read more