Criminal Law

Dist. Ct. did not err in denying defendant’s request for compassionate release under 18 USC section 3582(c)(1), where: (1) defendant alleged that his 270-month sentence on drug distribution charge that was imposed in 2000 and was based, in part, on finding that he was career offender for purposes of section 4B1.1 of USSG, was improper under U.S. Supreme Court precedent that was decided in 2015 and 2016; and (2) Dist. Ct., in 2255 petition filed by defendant in 2017, denied defendant collateral relief with respect to his sentence, after finding that defendant's petition was untimely, and that defendant had failed to meet requirements for equitable tolling of time limit set forth in section 2255(f). Instant legal contest regarding defendant’s sentence must be resolved by either direct appeal or section 2255 petition, and not by seeking compassionate relief under section 3582(c). Moreover, while defendant argued that Sentencing Commission staff improperly failed to timely alert him to said Supreme Ct. precedent for use in any section 2255 petition, prisoners like defendant do not have any right to legal assistance in initiating request for collateral relief. Also, section 3582(c) is not means to obtain indirect review of Dist. Ct.’s prior ruling in section 2255 action that defendant was not entitled to equitable tolling of statutory time limit.

Dist. Ct. did not err in sentencing defendant to 188-month, within Guidelines sentence on child pornography charge, even though defendant argued on appeal that Dist. Ct. did not adequately consider his background and mitigating circumstances. Defendant waived said issue, where Dist. Ct. asked defendant’s counsel if she had adequately addressed his main arguments in mitigation, and counsel responded that she had. Moreover, defendant underdeveloped said issue on appeal by failing to identify what he thought Dist. Ct. overlooked or explain why any omission was consequential with respect to his sentence.

In prosecution on production of child pornography charge, Dist. Ct. did not commit plain error in explaining to jury that first government witness was “victim” of charged offense, who would be referred to only by her initials to protect her privacy. While defendant argued that reference to witness as victim demonstrated improper pro-government bias, said statement did not constitute error, where Dist. Ct. was merely explaining why victim would only be referred to by her initials, and where witness’s testimony would quickly establish her relationship to charged offense. Moreover, Dist. Ct. did not err in asking prosecutor whether he intended to seek admission into record 13 photographs that had been referred to in witness’s testimony, where prosecutor had sought admission to only one other photograph. Prosecutor responded that said photographs would be introduced into evidence via another witness, and Dist. Ct.’s question reflected reasonable effort to manage flow of trial evidence, rather than demonstrate pro-government signal to jury.

Dist. Ct. did not err in sentencing defendant to below-Guideline, 18-month term of incarceration on money laundering charges. While defendant argued that his sentence was unreasonable, because Dist. Ct. failed to consider certain mitigating factors and improperly relied on need for general deterrence and need to avoid sentence disparities, Dist. Ct. could properly support imposition of instant sentence based on finding that money laundering of $100,000 in drug proceeds is serious offense that warrants prison sentence, where instant sentence had effect of deterring others from committing similar offenses, sanctioning defendant for his conduct, and promoting respect for law. Fact that defendant paid restitution amount prior to sentence did not require t6hat Dist. Ct. impose non-custodial sentence as requested by defendant. Ct. also observed that there is nearly irrebutable presumption that below-Guidelines sentence is reasonable.

Dist. Ct. did not err in denying defendant’s habeas petition, alleging that his trial and post-conviction counsel were ineffective, and that he presented sufficient new evidence of his actual innocence of murder charge that concerned shooting of individuals in street. While defendant argued that his trial counsel was ineffective because he failed to properly investigate charged offense, raise key defense or sufficiently cross-examine state witness, said claim was procedurally defaulted, where state court had disposed of said claim on adequate and independent basis, i.e., that defendant had inadequately pleaded said claim. Defendant also procedurally defaulted his ineffective assistance of post-conviction claim, where, due to defendant’s voluntary dismissal of said claim while it was pending in Wisconsin Supreme Ct., defendant could not make required showing that said claim had been previously ruled on at each and every level of state-court system. Moreover, while defendant presented evidence from new witness, who stated that someone else was actual shooter, said evidence fell short of establishing defendant’s actual innocence, where new witness’s testimony did not technically rule defendant out as potential gunman.