Criminal Law

Dist. Ct. did not abuse its discretion in denying defendant’s motion to reduce his 15-year sentence on drug and firearm charges under First Step Act, even though said Act covered defendant’s drug conviction, which established higher threshold of drug possession to trigger defendant’s 10-year minimum sentence for his drug conviction. While First Step Act is appropriate vehicle for seeking reduction of sentence under this record, record also showed that defendant’s initial sentence was based on agreement between defendant and govt., as opposed to any imposition of statutory minimum that existed at time of sentencing. Ct. further noted that, at time of initial sentencing hearing, defendant had traded existing disputes regarding govt. claims for longer sentence for certainty of instant 15-year sentence, and thus Dist. Ct. did not abuse its discretion by leaving defendant with said choice.

Dist. Ct. did not err in granting defendant’s habeas petition, challenging his Wisconsin sexual assault conviction on ground that his appellate counsel was ineffective for failing to raise confrontation clause claim under Crawford, 541 U.S. 36, where trial court admitted under exceptions to hearsay rule certain out-of-court statements accusing defendant of sexually assaulting his step-daughter. While Crawford was decided during defendant’s direct appeal, defendant’s appellate counsel could have raised issue during his direct appeal, Moreover, govt. conceded that defendant’s confrontation clause claim was obvious, where defendant had no opportunity to contest out-of-court statements that were testimonial in nature, while claims raised by appellate counsel were weak. Also, there was reasonable chance that Wisc. courts would have concluded that at least some of instant probative statements were inadmissible, and that admission of said statements was not harmless error, where evidence against defendant was not overwhelming absent contested statements.

Dist. Ct. did not err in denying defendant’s motion for new sentence in his 2003 conviction on drug charge, where defendant contended that his sentence was improperly based, in part, on his Criminal History Category II calculation, resulting from his invalid 1992 Indiana conviction. Record showed that Dist. Ct. had previously rejected defendant’s collateral attack that alleged same issue, and that, subsequently, defendant had successfully vacated 1992 Indiana conviction in 2017. While Dist. Ct. improperly believed that defendant could not seek instant relief because it constituted unauthorized successive collateral attack, dismissal was still appropriate under Johnson, 544 U.S. 295, because instant petition was untimely, where defendant had waited four years to seek relief in state court and nearly 14 years after Dist. Ct. had imposed sentence at issue in his petition seeking new sentence.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of drugs, even though: (1) record contained only affidavit containing statements from informant that he had seen defendant remove retail quantity of drugs from his safe; and (2) affidavit failed to contain other facts that would establish reliability of informant. Record showed that state court took testimony from informant prior to issuing warrant, and although testimony of informant was not recorded, officer executing warrant could properly believe that state court judge had done everything required by law to find probable cause, so as to preclude imposition of exclusionary rule under Leon, 468 U.S. 897. Result is same, even if record was unclear as to whether there was probable cause to support issuance of warrant.

Defendant was entitled to new sentencing hearing on charges of carjacking, armed bank robbery and using firearms during said offenses, where: (1) Dist. Ct. sentenced defendant in 1998 to 840-month term of incarceration based, in part, on finding that defendant qualified as career offender; (2) in 2018, defendant successfully moved under 28 USC section 2241 for new sentence hearing because he no longer qualified as career offender; (3) at re-sentencing hearing, defendant’s new guideline range was 348-to-390-month term of incarceration; and (4) Dist. Ct. failed to adequately explain imposition of same 840-month term of incarceration or why it significantly deviated from guideline range. Moreover, defendant’s sentence was 165 and 112 months longer than sentences of his two co-defendants, who had similar criminal histories.

Record contained sufficient evidence to support defendant’s guilty plea on charge of health care fraud, even though defendant was informed erroneously of requisite men rea required by charged offense. Specifically, plea agreement erroneously stated that under 18 USC section 1347, govt. needed to prove beyond reasonable doubt that defendant knowingly or willfully executed or attempted to execute scheme to defraud. However, section 1347 required government to prove that defendant had acted knowingly and willfully. While defendant argued that his guilty plea was invalid because it was not knowingly or voluntarily made, instant indictment provided defendant with sufficient notice that he had violated both subsections of section 1347. Moreover, under applicable plain error standard, failure to properly state mens rea in indictment did not affect defendant’s substantial rights, since defendant stipulated to facts in plea agreement that established that his violation of instant health care fraud offense was both knowing and willful.