During Sentencing, Judges Need Not Reply to Every Argument by Defendant

Not unreasonable in sentencing proceedings for a judge to not address every argument the defendant proffers as long as the judge follows the sentencing guidelines

United States v. Wireman, 2017 BL 60890, 10th Cir., No. 15-3291, 2/28/17.

The Tenth Circuit held that judges do not need to address every argument that a defendant proffers during the sentencing stages of the criminal proceedings as long as a judge follows the sentencing guidelines. In the case, the sentencing judge “alluded to the memorandum” offered by the defendant, but did not speak at length about it. While the defendant offered mitigating factors during the process, it was not procedurally unreasonable for the district court to ignore some of his arguments. After reviewing the district court’s reasoning for the defendant’s sentence, the Tenth Circuit found that the court acted reasonably and had no need to address the arguments of the defendant. The circuit court, however, did encourage judges to go beyond the bare minimum during sentencing and to address and refute any and all arguments a defendant might pose.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Wireman_No_153291_2017_BL_60890_10th_Cir_Feb_28_2?1489094717

Multiple Violations of the Same Protective Order Grounds for Imprisonment

After having a prison sentence twice suspended in favor of probation for violating a protective order, a third violation of the same order and its resulting prison sentence is not unfair

State v. Moosman, 2017 UT App 11.

The Utah Court of Appeals affirmed a trial court’s sentence of imprisonment for a defendant’s repeated violation of a protective order. The defendant has had a protective order issued against him from contacting the mother of his child, but after two violations of that order which limited contact with the mother, he was placed on probation when his initial prison sentences were suspended. After the third violation of that order, the court revoked his probation and sentenced him to prison for his violations and after a recommendation from Adult Probation and Parole that he serve time in prison for his repeated offenses. The Court of Appeals rejected the defendant’s appeal, finding that there was nothing inherently unfair in the prison sentence and that the trial court was well within its discretion in issuing the sentence. All things considered, including multiple violations of the order and the recommendation by Adult Probation and Parole, the term of imprisonment was fair and affirmed by the Court of Appeals.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Moosman20170112.pdf

Delaware’s Death Penalty is Unconstitutional Due to its Sentencing Procedures

After reviewing Delaware’s sentencing procedures, its supreme court ruled that the death penalty is unconstitutional because judges have too much power to make factual findings during sentencing

Rauf v. State, 2016 BL 249274, Del., No. 39, 8/2/16.

   The Delaware Supreme Court held that its state’s death penalty was unconstitutional because a sentencing judge had too much power in making factual findings, thereby violating the Sixth Amendment. The ruling follows the U.S. Supreme Court’s holding in Hurst v. Florida, which required juries, not judges, to decide the facts of the case necessary to justify the death penalty. The court stated that “the Sixth Amendment right to a jury includes a right not to be executed unless a jury concludes unanimously that it has no reasonable doubt that is the appropriate sentence.” While the court attempted to sever or cure the problematic portions of the sentencing statute, it was unable to do so, ultimately leading to their decision to invalidate the entire death penalty statute.

   After this decision, Delaware becomes the 20th state to have ended capital punishment. There are currently 18 inmates on death row in the state.

https://www.bloomberglaw.com/public/desktop/document/Rauf_v_State_No_39_2016_2016_BL_249274_Del_Aug_02_2016_Court_Opin?1470844238

Defendant Cannot Attack State Sentence in Appealing his Federal Sentence

A defendant cannot appeal his federal sentence by attacking the validity of his initial state sentence by arguing that the federal sentence is unconstitutional because it runs consecutively to his state sentence.

United States v. Napolitan, 2016 BL 230906, 3d Cir., No. 15-1602, 7/19/16.

   A Third Circuit court ruled that a defendant cannot challenge his federal sentence by attacking the state sentence he had already received. This decision continues and expands upon the line of cases stemming from Custis v. United States, which prevents federal defendants from mounting attacks against past convictions that were used as prior convictions for sentencing enhancement. In this case, the defendant argued that his federal sentence was unconstitutional because it ran consecutively to his state sentence, which he contended was invalid. The court ruled that “Drawing on both the logic and language of Custis, we see no reason why state sentences should not be accorded the same respect and be subject to the same forms of substantive review afforded to state convictions.” The court then joined the Ninth, Sixth, and Second circuits and extended Custis to prevent attacks on prior convictions.

http://www.bloomberglaw.com/public/document/United_States_v_Napolitan_No_151602_2016_BL_230906_3d_Cir_July_19.

After Acquittal of Sexual Contact Crime, Court Cannot Require Sex Offender Therapy

A defendant acquitted of a sexual contact crime and convicted of a lesser battery charge cannot be required to participate in Sex Offender Therapy

Villanueva v. State, 2016 BL 217937, Fla., No. SC13-1828, 7/7/16.

   After having a sexual charge acquitted during trial, a defendant convicted on a lesser battery charge cannot be required to participate in sex offender therapy, says the Florida Supreme Court. Under Florida statute, therapy is allowed as a condition of probation only under a specific list of crimes. This list, however, did not include battery, which the court ruled prevented the trial court from imposing this condition during the defendant’s supervised release.

   The Florida Supreme Court did note that there is an exception that gives trial courts the discretion to impose sex offender therapy, even when there was no sexual crime, but only to prevent future criminal acts, which the court did not foresee as a possibility in this case. In justifying this decision, the court stated, “There is no record evidence that [the defendant] had any prior convictions. Thus, there is no indication that he has a propensity to commit any particular crime, including child molestation or sexual battery. As such, requiring [him] to attend [therapy] cannot reasonably be considered a major deterrent to any future criminality.”

http://www.bloomberglaw.com/public/document/Villanueva_v_State_No_SC131828_2016_BL_217937_Fla_July_07_2016_Co.

Credit Access Can be Restricted During Supervised Release

A court has the discretion and can require financial updates and impose restrictions to credit on defendants convicted of non-financial crimes during their supervised release periods

United States v. Hart, 2016 BL 224440, 8th Cir., No. 15-3788, 7/13/16.

    The Eight Circuit ruled that after committing two counts of assault with a dangerous weapon and one count of assault resulting in serious bodily injury, a convicted defendant can face financial restrictions and financial monitoring by the court during supervised the release. In making this decision, the court looked at 18 U.S.C. § 3583(d), which gives courts the discretion to impose conditions of supervised release related to the original offense as well as deter similar future offenses. With this discretion, the court took note that the crimes committed by the convicted defendant stemmed from issues involving finances. Each tie The trial court’s intent was to restrict debt, which was within its discretion under the statute, the opinion stated.

   Additionally, part of his sentencing required the defendant to pay restitution, a special assessment, and to partially cover costs of his drug treatment, all things that could be compromised if he incurred debt. With these conditions, the court reserved the ability to adjust the restriction during the period of supervised release, if necessary.


http://www.bloomberglaw.com/public/document/United_States_v_Hart_No_153788_2016_BL_224440_8th_Cir_July_13_201.

Wisconsin: Risk-Prediction Software (With Conditions) Does Not Violate Due Process in Sentencing

Risk-prediction programs that utilize an algorithm to assess the possibility of recidivism do not violate due process as long as they are used with other methods to determine sentencing 

State v. Loomis, 2016 BL 224113, Wis., No. 2015AP157-CR, 7/8/16.

   The Wisconsin Supreme Court held that risk-assessment software did not violate a defendant’s due process rights during sentencing. While the court recognized some of the defendant’s claims as being legitimate, such as the potential that these programs have for disproportionately classifying minorities as risky, the court still was unwilling to scrap the existing program entirely. Instead, the court approved the continued use of the software, but only as long as it was used in conjunction with other factors in determining sentencing. Additionally, the court ordered that an advisement listing the limitations of the software be circulated to judges performing sentencing hearings.

http://www.bloomberglaw.com/public/document/State_v_Loomis_No_2015AP157CR_2016_BL_224113_Wis_July_13_2016_Cou.

Lyrics Cannot be Used in Sentencing Hearing Without Having a Specific Tie to the Crime

After being convicted of federal gun crimes, a musician’s violent song lyrics could not be used against him because they were not sufficiently tied to his crime or other sentencing factors

United States v. Alvarez-Nunez, 2016 BL 219988, 1st Cir., No. 15-2127, 7/8/16.

   The First Circuit held that that the First Amendment prevented a court from using a musician’s lyrics during his sentencing hearing for gun crimes. While song lyrics can be contemplated during sentencing as extrinsic evidence, they must be directly tied to the motive or state of mind of the offender. The court elaborated, saying conduct that “has no bearing on either the crime committed or on any of the relevant sentencing factors, consideration of that conduct infringes a defendant’s First Amendment rights.” While examining the song lyrics in relation to the case, the court noted that there was little evidence that connected the song lyrics to the crime.

No Penalty Conviction Still Triggers Deportation Proceedings

A drug conspiracy conviction that includes a sentence without jail time, probation, or any other penalty, can still trigger deportation proceedings under the Immigration and Nationality Act

Frias-Camilo v. Att'y Gen., 2016 BL 201232, 3d Cir., No. 15-3733, 6/23/16.

   AThird Circuit court found that a guilty conviction, even those without an actual sentence or restraint on personal liberty, still can trigger deportation proceedings. The defendant pled guilty in his criminal trial, was convicted, and then was given a “guilty without further penalty” sentence. He argued that without an actual sentence, his conviction did not fit into the federal sentencing statutes that would establish any guilt allowing for deportation.

   The court rejected the defendant’s arguments, noting that the Immigration and Nationality Act does not place a punishment or sentencing component in the act’s definition of “conviction.” The court further argued that although there is no sentencing option for a “guilty without further penalty” in federal statute, the state statute clearly provides for this type of sentencing, which would trigger deportation. “We do not hesitate to conclude that a sentence of ‘guilty without further penalty’ is a ‘sentence’ for purposes of the INA.”

http://www.bloomberglaw.com/public/document/FriasCamilo_v_Atty_Gen_No_153733_2016_BL_201232_3d_Cir_June_23_20.

Pleas Not Subject To Unilateral Changes By Judge

When a trial judge wants to change a recommended sentence in a plea bargain, the state must be allowed to withdraw consent to that plea bargain.

 

State v. Kelly, 2016 BL 49123, Ga., No. S15G1197, 2/22/16

     The Georgia Supreme Court ruled that a judge cannot unilaterally change a portion of a negotiated plea and then force the state to accept the change. The court stated that "the trial court's authority to accept a plea agreement to a lesser charge flows from the State's consent to that agreement."

     The court indicated that if this were allowed, a court's ability to change plea deals would "not only weaken the inherent authority of the executive branch to control how individuals should be charged, but it would also chill the State's willingness to enter into such pleas."

     If courts want to reject sentence recommendations as part of a plea agreement to a lesser charge, they must give the state an opportunity to withdraw its consent to the plea and demand a trial.

http://www.bloomberglaw.com/public/desktop/document/THE_STATE_v_KELLEY_No_S15G1197_2016_BL_49123_Ga_Feb_22_2016_Court?1457453963

Sentence Enhanced Even With Unclaimed Gun

Even though there was no evidence directly tying the defendant to the weapon found in the same house as he, he was eligible for a two-level sentencing enhancement for possession of a shotgun.

 

United States v. Rodriguez-Guerrero, 2015 BL 357884, 5th Cir., No. 14-41289, 10/10/15

    The U.S. Court of Appeals for the 5th Circuit affirmed the trial judge's determination that there was enough of a "temporal and special relationship" between the weapon, the drug trafficking, and the defendant. The court said that, because the weapon was found along with bundles of marijuana, it was more likely that the weapon would be used by the defendant.

    The house where the arrest was made was a "stash house" and the only purpose for the defendant to be there was to protect the drug stash. The court ruled that "[b]ecause the only purpose of the house was for drugs, it was plausible to find that the only purpose of the weapon was to support the drug business."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_RodriguezGuerrero_No_1441289_2015_BL_357884_5th_C?1450714340

Atkins Claim Not Precluded By Previous Non-Atkins Claim

Capital prisoners may file an additional habeas corpus petitions to assert an Atkins argument of intellectual disability, even if the previous non-Atkins claim relied on the petitioner's disability.

 

In re Chase, 2015 BL 351660, 5th Cir., 15-60452, 10/26/15

   The U.S. Court of Appeals for the Fifth Circuit held that a capital prisoner may file a successive habeas corpus petition to assert a claim that he is intellectually disabled and ineligible for execution under Atkins v. Virginia. The court indicated that, even though his first petition claimed counsel was ineffective for failing to assert his intellectual disability to cast doubt on his confession and as mitigating evidence at sentencing, the previous claim was not an Atkins claim.
 
    The court indicated that this case was within the Atkins requirements that the claim not be presented in an prior application. The court ruled that a claim under Atkins is not the same as a pre-Atkins claim, even if that claim also relied on the petitioner's intellectual disability.

http://www.bloomberglaw.com/public/desktop/document/In_re_RICKY_R_CHASE_Movant_No_1560452_2015_BL_351660_5th_Cir_Oct_?1449508854