Criminal Law

Dist. Ct. committed procedural error when imposing 108-month term of incarceration on unlawful possession of firearm charge at second sentencing hearing, where applicable revised guideline range was 33 to 41 months, and where Dist. Ct. failed to adequately explain instant 160 percent increase from high end of guideline range. Dist. Ct. had imposed at first sentencing hearing sentence that was 22 months above high end of original guideline range, and Dist. Ct. failed to explain why 67-month upward departure from revised guideline range was proper in instant case. Moreover, instant sentence reflects offense level that was 10 levels higher that defendant’s assigned offense level. Fact that Dist. Ct. focused on defendant’s extensive criminal history to justify instant sentence did not require different result.

In prosecution on visa fraud, harboring and hiring unauthorized aliens charges, Dist. Ct. erred in failing to conduct Rule 44 inquiry on possible conflict of interest between defendant-entity and other individual defendant, who inaccurately represented to court that he was owner of said business, and where Dist. Ct. allowed single counsel to represent both defendants. Any error was harmless, though, since defendant-entity, which did not object to any conflict of interest at trial, failed to show any actual conflict between itself and individual defendant, where interests of both defendants were identical. Moreover, defendant failed to show that counsel’s actions served to prejudice itself in favor of individual defendant. Also Magistrate Judge did not commit reversible error by accepting defendant-entity’s guilty plea to certain charges through testimony of individual defendant, even though Magistrate Judge should have made greater inquiry into authority of individual defendant to plead guilty on behalf of defendant-entity, where: (1) evidence from subsequent trial indicated that individual defendant had unlimited authority as defendant’s de facto manager; and (2) defendant never objected at time of plea to individual defendant’s assertion that he had authority to enter into guilty plea on behalf of defendant. Also, record contained factual basis to support guilty plea, where record showed that defendant-entity hired three unauthorized aliens to assist it in its roofing business after visas to work had expired for two of said aliens, and where defendant was aware that third alien was otherwise in U.S. illegally. Also, record supported defendant’s convictions on harboring charges that went to trial, where defendant gave said aliens place to live, safeguarded said aliens by making it more difficult for authorities to locate said aliens and exploited said aliens by paying them less than prevailing wages and offering them housing.

Defendant was entitled to remand of appeal of Dist. Ct.'s dismissal of his section 2254 petition, where Dist. Ct. hd found that said petition was untimely because defendant had previously spent more than one year litigating two state-court petitions for collateral relief, where first petition had been dismissed to allow defendant, who suffers from aphasia that limits his ability to speak, write or understand words, could obtain new counsel, and where state court dismissed second petition upon finding that first petition had been dismissed with prejudice. While time spent on second state-court petition counted towards applicable one-year period for filing instant section 2254 petition, remand was required to explore defendant’s claim for application of equitable tolling based on his aphasia condition and his claim that his mental condition caused his delay in seeking review under section 2254.

Dist. Ct. did not err in sentencing defendant to 42-month term of incarceration on mail and wire fraud charges stemming from defendant’s theft of funds from Park District and Park Foundation. While defendant argued that Dist. Ct. had improperly calculated guideline range because it miscalculated actual loss to both entities, record supported Dist. Ct.’s 10-level increase in offense level pursuant to section 2B1.1(b)(1)(F) of USSG, where defendant failed to show that Dist. Ct.’s calculation of $42,604.30 in unreported credit-card charges, $54,899 in missing ticket sales, $25,590 in diverted funds belonging to musical groups and $25,115 in misappropriated bank loan proceeds were both inaccurate and outside realm of permissible computation. Also, defendant forfeited right to complain about restitution award because he had failed to file timely notice of appeal from Dist. Ct.’s amended judgment that had imposed said award.

Defendant was not entitled to new trial on robbery charges, even though defendant argued that certain ex parte communications by Dist. Ct. with personnel in U.S. Attorney’s Office for Central Dist. of Illinois in other criminal matters violated defendant’s due process rights in instant case. Defendant failed to produce any evidence of actual bias arising out of said ex parte communications, and Special Committee investigating said communications found no evidence that said communications had impacted any of Dist. Ct.’s rulings or advantaged either party. Moreover, while Dist. Ct. should have recused himself under federal recusal statute, since said statements could have given reasonable person appearance that Dist. Ct. was not impartial, any violation of said statute was harmless, where: (1) none of ex parte communications occurred in instant case; (2) jury was trier-of-fact in instant case; (3) defendant did not challenge Dist. Ct.’s pre-trial or trial rulings; and (4) none of factors set forth in Liljeberg, 486 U.S. 847, favored remand for new trial. Also, different Dist. Ct. judge did not commit reversible error in sentencing defendant to 180-month term of incarceration, even though Dist. Ct. erred in finding that defendant qualified for enhanced sentencing treatment as career offender, where Dist. Ct. observed that it would have imposed same sentence even if defendant had not qualified as career offender based upon well-articulated section 3553(a) factors.

Dist. Ct. did not err in imposing 72-month, below guidelines sentence on drug conspiracy charge, even though defendant argued that Dist. Ct. improperly failed to apply minor-role downward adjustment on his offense level under section 3B1.2(b) of USSG. Dist. Ct. could properly find that defendant was not substantially less culpable than two other “average participant” conspirators involved in same charged conspiracy, where conspiracy’s leaders placed substantial amount of trust in defendant due to his role as point of contact between other members of conspiracy, his agreement to store half of 50-kilogram load of cocaine at issue in conspiracy and his knowledge of amount of cocaine being sent to others. Fact that defendant deemed himself as mere drug courier did not require different result. Also, fact that defendant received longer sentence that co-conspirator, who was paid more for his services to conspiracy, did not require different result, since said individual, who was sentenced by different Dist. Ct. judge, had not been sentenced by time of defendant’s sentence.