Criminal Law

Dist. Ct. did not commit plain error in sentencing defendant to 87-month term of incarceration on unlawful possession of firearm by felon charge, even though Dist. Ct. failed to state whether said sentence should be served concurrently or consecutively to pending state court charges and deferred said decision to state court. Under Setzer, 566 U.S. 231, Dist. Ct. has discretion to defer concurrent/consecutive sentence decision to state court, and Setzer does not obligate sentencing courts to exercise said discretion. Ct. further noted that Dist. Ct. had acknowledged that it had discretion to impose either concurrent or consecutive sentence.

Record contained sufficient evidence to support defendant’s conviction on RICO charges, stemming from allegations that defendant used his leadership role in Latin Kings gang to murder two individuals while committing or attempting to commit gang activities. While defendant asserted that record failed to contain sufficient evidence to show that instant two murders were related to gang activity because he was not member of gang at time they were committed, Ct. of Appeals found existence of ample evidence of link of both murders to defendant’s gang, where defendant had bragged about his gang membership and had displayed gang tattoos two years prior to said murders, and where there was evidence that defendant believed that murder victims had “snitched” on gang activities to officials. Also, record supported defendant’s life sentence, where applicable guidelines call for life sentence based, in part, on defendant’s role in instant gang-related murders.

Defendant procedurally defaulted claim in his habeas petition that his post-conviction counsel was ineffective for failing to raise issue that his trial counsel was ineffective for failing to call impeachment witness in his trial on sexual assault charges. Record showed that: (1) after state court denied defendant’s pro se petition raising ineffective assistance of post-conviction counsel claim, state appellate court affirmed said denial on ground that defendant had failed to adequately plead his ineffective assistance of post-conviction counsel claim, by demonstrating that instant impeachment claim was stronger than claims raised by post-conviction counsel; and (2) state appellate court’s holding constituted adequate and independent state-law ground that formed basis of instant procedural default of said issue that, in turn, supported instant denial of defendant’s habeas petition. Moreover, defendant could not demonstrate cause for default and actual prejudice as result of violation of federal law to qualify as exception to procedural default rule, where defendant failed to comply with Wisconsin pleading rule. Ct. further noted that defendant’s ineffective assistance of counsel claim was, at best, only equal to and not stronger than other claims raised by post-conviction petition.

Dist. Ct. did not err in sentencing defendant to within-Guidelines, 210-month term of incarceration on series of charges relating to his attempt to travel over state line to engage in illicit sexual activity with individual whom defendant believed to be 15-year-old boy. While defendant argued that Dist. Ct. violated “parsimony principal” of sentencing by presuming that Guidelines-range sentence is reasonable, Ct. of Appeals held that Dist. Ct.’s comments, when viewed in their entirety, indicated that Dist. Ct. applied section 3553(a) factors appropriately when imposing instant sentence, including Dist. Ct.’s observation that defendant posed risk to recidivate and had extensive criminal history that exhibited pattern of similar conduct. As such, Dist. Ct.’s observations demonstrated appropriate belief that Guidelines sentence satisfied goals of section 3553(a).

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on drug distribution charges, even though said sentence was based in part on finding that defendant was career offender under section 4B1.1 of USSG based on existence of two prior controlled substance convictions. While defendant argued that his 1998 conviction in which he was released in 2001 did not qualify as predicate offense for purposes of obtaining career offender status because his release in 2001 for said offense was more than 15 years beyond commencement of instant 2017 offense, Dist. Ct. could properly find that commencement of instant occurred prior to November of 2016 due to certain uncharged drug sales that occurred prior to November of 2016 that constituted relevant conduct for purposes of instant offense. Moreover, instant below-Guidelines sentence was substantively reasonable where Dist. Court adequately considered relevant 3553(a) factors, as well as need for sentence to reflect seriousness of charged offense.