Criminal Law

Dist. Ct. did not err in denying defendant’s motion to suppress gun recovered from his car during encounter with police. While Dist. Ct. found that defendant was seized at time of encounter, where police positioned their car in such manner that defendant could not move car and reasonable person would not have felt free to leave, officers had reasonable suspicion for Terry stop to support instant seizure of gun, where: (1) car was located in high crime area, and defendant and other occupants were playing loud music in violation of local noise ordinance; (2) officers smelled marijuana near car; and (3) officers observed defendant make furtive movements near driver’s seat floorboard, and defendant otherwise failed to comply with officer’s directive to raise his hands. Also, Dist. Ct. did not violate Confrontation Clause by admitting grand jury testimony of one occupant of car, where: (1) occupant testified at trial that she had no memory of encounter with police; and (2) defendant’s counsel was able to cross-examine occupant about her alleged lack of memory and her lack of credibility, as well as benefits she received from government. Ct. emphasized that while attacks on witness’s memory may not always succeed, successful cross-examination is not constitutional guarantee. Ct. further rejected defendant’s claim that government failed to establish sufficient nexus linking him to gun found on driver’s side floorboard where defendant was seated, where Ct. found that evidence established defendant’s constructive possession of gun, since: (1) defendant was seen making furtive movements near location of gun such that jury could conclude that defendant was attempting to hide gun; (2) defendant fled scene from officers; and (3) defendant attempted to influence witnesses to say that he was elsewhere at time of police encounter.

Dist. Ct. erred in denying defendant’s motion to reduce his 420-month term of incarceration on conspiracy to distribute crack cocaine conviction, where defendant based said motion on section 404(b) of First Step Act of 2018. Dist. Ct. committed reversible procedural error by failing to resolve parties’ dispute about quantity of drugs attributable to defendant for sentencing purposes, such that Dist. Ct. never determined applicable Sentencing Guideline range for defendant prior to resolving instant sentence reduction request. Ct. rejected government’s argument that any error was harmless, even though there was some evidence that defendant was responsible for over 2.8 kilograms of crack, which would support existing Sentencing Guideline range, since: (1) Supreme Court in Peugh, 569 U.S. 530, emphasized that Dist. Ct. must first determine applicable Sentencing Guideline range; and (2) record contained possibility that Dist. Ct. must use lower drug quantity, i. e., 500 grams of crack cocaine, where government had stipulated to said amount in plea agreement with co-defendant.

Dist. Ct. erred in sentencing defendant to 71-month term of incarceration on drug charges, where Dist. Ct. failed to explain how it calculated total offense level, and where Dist. Ct.: (1) disregarded parties’ agreement for additional one-level reduction in offense level for timely acceptance of responsibility; and (2) misused departure provisions of Sentencing Guidelines to determine calculated range rather than as basis for upward departure or variance. Record showed that presentence report proposed setting of defendant’s offense level at 24 based on drug quantity, with two-level enhancement for reckless endangerment during flight that was offset by two-level reduction for acceptance of responsibility. Dist. Ct.’s failure to explain rationale for calculation of offense level precluded Ct. of Appeals from determining whether Dist. Ct. had rejected government’s motion for third level of acceptance of responsibility, or, if Dist. Ct. had granted government’s motion, it accepted government’s reliance on section 3C1.2, application note 6 of Sentencing Guidelines to add offense level to 24, rather than to use upward departure to explain offense level. Moreover, record failed to show whether Dist. Ct. believed that 71-month prison sentence would be appropriate regardless of correct guideline range. On remand, after considering government’s motion for third-level reduction for acceptance of responsibility and calculating correct guideline range, Dist. Ct. could impose same 71-month sentence based on possible upward departure or variance and on factors under section 3553(a).

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his murder conviction on ground that prosecutor’s cross-examination regarding legality of defendant’s gun possession violated his Second Amendment rights. State Appellate Court could properly find that admission of said cross-examination was not improper, where said evidence was relevant, since defendant had previously introduced evidence that he had carried loaded gun in his car, and same ruling would apply even if defendant’s firearm possession was constitutionally protected. Moreover, although fact that legality of defendant’s possession of firearm may not have been relevant, especially where prosecutor may have attempted to draw impermissible character-propensity link arising out of defendant’s possession of loaded firearm, any error of state law would not be enough to grant defendant’s habeas petition, where defendant needed to establish violation of clearly established federal law.