Criminal Law

Dist. Ct. erred in denying defendant's section 2241 petition that challenged his enhanced, 327-month term of incarceration on unlawful possession of firearm charge, where said sentence was based, in part, on finding that defendant was armed career criminal under Armed Career Criminal Act (ACCA) due, in part, to existence of two prior Minnesota burglary convictions. Defendant could properly invoke section 2241 habeas relief, where defendant relied on intervening statutory decision that announced new retroactive rule that could not have been invoked in his prior section 2255 petition, and where alleged error amounted to miscarriage of justice. Moreover, under Van Cannon, 890 F.3d 656, defendant's Minnesota burglary convictions are not violent felonies for purposes of ACCA, and thus, defendant's sentence, which normally would have had maximum of 120 months without any ACCA enhancement, amounted to miscarriage of justice that required remand for new sentencing hearing.

Dist. Ct. did not err in denying defendant's habeas petition, alleging that his trial counsel was ineffective for failing to advise him during guilty plea negotiations that sentencing judge could consider dismissed, "read-in" charges as result of plea agreement when considering defendant's sentence on charges of human trafficking, pimping and pandering, and that he would not have pleaded guilty to said charges had he known that said read-in charges could be considered by sentencing judge. Defendant was not entitled to evidentiary hearing on merits of his ineffective assistance of counsel claim, where defendant failed to support his claim of prejudice with anything more than conclusory allegation that he would have gone to trial had he realized that sentencing judge was free to consider read-in charges. Also, defendant failed to: (1) show that there was reasonable probability that outcome of guilty plea process would have been critical to his decision to plead guilty, but for counsel's ineffectiveness; and (2) explain why terms of plea questionnaire, waiver of rights, or discussion of plea agreement at sentencing hearing did not disabuse him of mistaken notion that sentencing judge could not consider read-in charges when imposing his sentence.

In prosecution on charge of sexual exploitation of minor in violation of 18 USC section 2251(a) arising out of sexually explicit images that minor sent to defendant on his cell phone, Dist. Ct. did not err in denying defendant's motion to dismiss instant indictment based on claim that said section violated First Amendment by criminalizing protected expressive speech. While defendant argued that instant section was unconstitutionally overbroad, because he could have lawfully watched instant minor at location where she had recorded instant videos and where he received them, Ct. of Appeals held that there is no First Amendment defense to instant prosecution, since child pornography is categorically unprotected under First Amendment as set forth in Ferber, 458 U.S. 747. Moreover, Ct. rejected defendant's claim that case law after Ferber conditioned lack of constitutional protection for child pornography on criminality of depicted substantive conduct.

Dist. Ct. did not err in imposing $3,000 restitution order under circumstances, where, at defendant's sentencing hearing, Dist. Ct. deferred its restitution decision and allowed parties to submit additional briefing on issue and then issued written decision at later time. While defendant argued that Dist. Ct. had violated Rule 43(a)(3) by ordering restitution in his absence, Rule 43 did not apply, where, as here, restitution was imposed under Mandatory Restitution for Sexual Exploitation of Children Act, and where section 3664(d)(5) of said Act allowed Dist. Ct. to delay final determination of restitution order up to 90 days after sentencing, if, as here, losses were not attainable within 10 days of sentencing. Ct. rejected defendant's contention that Dist. Ct. was required to hold second sentencing hearing to announce its restitution decision.

In prosecution on drug and firearm offenses, Dist. Ct. did not err in denying defendant's motion to suppress heroin, cash and firearms seized from defendant's home pursuant to search  warrant, even though defendant argued that said warrant lacked probable cause to search his home. Record showed that, prior to issuance of warrant, police conducted two trash pulls from defendant's garbage cans located outside his home, which revealed presence of drugs, drug residue, drug packaging materials and receipt for firearm and ammunition. Police also became aware of defendant's criminal history that included armed robbery conviction and nuisance conviction arising out of possession of distribution quantities of marijuana, as well as information from tipster, all of which, when considered as whole, was enough to support probable cause to search defendant's home. Ct. also rejected defendant's claim that prosecutor committed misconduct during closing arguments by: (1) commenting on defendant's right not to testify or present evidence at trial; (2) claiming that defendant was not "dope sick" without any basis in record; (3) arguing that defendant had operated "stash house" with his brother; or (4) exaggerating amount of heroin defendant possessed. Defendant failed to object to said statements at trial, and none of instant challenged remarks were improper, where prosecutor either pointed out weakness of defense evidence, tracked language in instructions that were given to jury, merely mentioned defendant's right not to testify, or made fair characterization of evidence.

Dist. Ct. committed plain error in sentencing defendant to 264-month term of incarceration on Hobbs Act robbery conviction, after finding that defendant qualified as "career offender" under sentencing guidelines that was based, in part, on finding that instant Hobbs Act conviction qualified as "crime of violence" as defined by sections 4B1.1 & 1.2 of USSG. While instant case was pending on appeal, court in Bridges, 991 F.3d 793, found that Hobbs Act robbery does not qualify as crime of violence under sentencing guidelines. As such, Dist. Ct.'s classification of instant Hobbs Act robbery as crime of violence constituted clear and obvious error that produced substantially higher guideline range than guideline range for non-career offender. Moreover, instant error affected defendant's substantial rights that required remand for purposes of conducting new sentencing hearing.