Criminal Law

Dist. Ct. ordered probation officer not to give defendant copy of presentence investigation report, and defendant otherwise was only allowed to review said report with his attorney. Moreover, Dist. Ct. denied defendant’s request at sentencing hearing for his own copy of said report and ultimately imposed 15-year sentence on drug distribution charge. While 18 USC section 3552(d) requires Dist. Ct. to assure that presentence report is “disclosed” to defendant, his counsel and govt., Dist. Ct.’s order did not violate said section because section 3552(d) does not require transfer of any document. However, Rule 32(e)(2) requires probation officer to “give” presentence report to defendant, and thus Dist. Ct. erred in barring probation officer from giving presentence report to defendant, rather than setting reasonable conditions on defendant’s possession of presentence report if said report contained confidential information that could be harmful to defendant and others. However, any error did not require new sentencing hearing, since defendant received statutory minimum sentence for charged offense.

Defendant was not entitled to withdraw his guilty plea to unlawful possession of firearm by felon charge, even though defendant was not informed that knowledge of his status as previously convicted felon was element of instant charged offense under 18 USC section 922(g) as required by Rehaif, 139 S. Ct. 2191. Defendant had burden of showing that misunderstanding of elements of his offense affected his substantial rights, and defendant failed to make said showing, where he neglected to assert that he would not have pleaded guilty if he had properly understood elements at time of guilty plea. Dist. Ct. also did not err in sentencing defendant to 186-month term of incarceration for said offense under Armed Career Criminal Act (ACCA), even though defendant argued that his prior Illinois conviction for attempted aggravated domestic battery did not qualify as “violent felony” under ACCA. Ct. found that attempted aggravated domestic battery conviction qualified as violent felony, where attempt to commit crime that would involve force such as aggravated domestic battery necessarily involved attempt to use force.

Dist. Ct. did not err in denying defendants’ motions to dismiss their indictments for illegal reentry into U.S. after having been removed in violation of 8 USC section 1326(a), even though both defendants had attacked their prior in absentia removals under 8 USC section 1326(d) based on defective notices to appear (NTA) for removal proceedings that had failed to set forth time for said removal proceedings. Defendants failed to exhaust their administrative remedies as required under section 1326(d), where defendants failed to move to reopen their removal proceedings as soon as they had become aware of their removal orders. Ct. rejected defendants’ claims that immigration judge had duty to inform them of motion to reopen remedy, or that their brief detentions in ICE prior to their removal made filing of motion to reopen not feasible. Ct. further noted that catching of errors in deficient NTAs would not have led to non-discretionary relief from removal, where officials could have issued new compliant NTA if either defendant had alerted them to deficient NTA.

In prosecution on drug-distribution conspiracy charges, Dist. Ct. did not deny Spanish-speaking defendant due process by recalling main govt. witness for second day of testimony due to allegation that Spanish interpreter provided inaccurate translations of said witness’s testimony during first day of witness’s testimony. Defendant could only point to three examples of inaccurate translations, witness generally repeated his answers to generally same questions on second day of testimony, and defendant did not claim that translations from second day of testimony were inaccurate. Moreover, alleged mistranslations were clarified by answers to similar questions during first day of testimony or by testimony elicited during second day of testimony. Fact that witness was recalled on second day did not improperly give govt. improper second chance to establish its case, and fact that first day’s interpreter was not federally certified did not require different result, where defendant had agreed to use of said interpreter. Dist. Ct. erred, though, in sentencing different defendant to enhanced sentence under 21 USC section 841(b)(1)(A)(viii) based on prior Indiana conviction for manufacture of certain drugs, since Indiana conviction did not qualify as “felony drug offense” required for said enhancement.

Record contained sufficient evidence to support jury’s guilty verdict on brandishing firearm in furtherance of crime of violence (i.e., Hobbs Act robbery), even though victim of robbery could only testify that she believed defendant had used gun during robbery, because it felt “really hard” and like “metal” when pressed against her back. Record showed that defendant had used gun in another Hobbs Act robbery that took place day after instant charged offense, and jury could reasonably infer that victim’s testimony in instant case pertained to gun used by defendant. Also, Ct. rejected defendant’s claim that offense of attempted Hobbs Act cannot serve as predicate offense for his conviction for brandishing of firearm in furtherance of crime of violence under 18 USC section 924(c), where Ct. found that Hobbs Act robbery is crime of violence, and where jury found that defendant had requisite intent to commit Hobbs Act robbery.

Dist. Ct. erred in imposing as term of supervised release restriction on consumption of alcohol that failed to define excessive use of alcohol at blood alcohol concentration of greater than .08 percent, where Dist. Ct. had included said definition at oral pronouncement of instant condition of supervised release. Accordingly, said definition will be included in written judgment. Also, Dist. Ct. could properly impose condition allowing probation officer to search defendant’s home, where officer has reasonable suspicion that defendant might have violated any condition of supervised release. However, defendant waived all other objections to terms of his supervised release, where defendant failed to include said objections in his sentencing memorandum and had failed to raise said objections at his sentencing hearing, although Dist. Ct. had invited him to do so. Ct. rejected defendant’s claim that record showed only “inaction” on his part with respect to raising objections to terms of his supervised release so as to allow him to raise said objections on appeal under plain error standard.

Defendant was not entitled under plain error standard to withdraw his guilty plea on charge of possession of firearm by felon under 18 USC section 922(g), even though: (1) Supreme Court in Rehaif, 139 U.S. 2191, required govt. to establish that defendant knew that he possessed firearm, and that he knew that was had relevant felon status when he possessed firearm; (2) prior to Ct.’s decision in Rehaif, defendant had entered guilty plea to instant firearm offense that did not include examination regarding defendant’s knowledge of his felon status at time of firearm possession; and (3) defendant sought for first time in instant direct appeal to withdraw his guilty plea based on lack of evidence regarding his knowledge of his felon status. Defendant was required to establish that: (1) his erroneous understanding of elements of section 922(g) affected his decision to plead guilty; and (2) there was reasonable probability that he would not have pleaded guilty if he had been aware of Rehaif decision prior to entry of said plea. However, defendant could not make said showing, where record indicated that during relevant time, defendant was clearly aware of his felon status, given that he had spent 12 years in prison on murder charge, and where defendant had referred to his felon status in his sentencing memorandum. As such, it was fairly unlikely that defendant would have gone to trial to litigate instant knowledge element and risk longer sentence, where nature of evidence establishing said knowledge was overwhelming.

Dist. Ct. did not err in imposing 72-month term of incarceration on charge of reentering U.S. illegally after prior deportation following felony conviction in violation of 8 USC section 1326(a), even though application guideline range was 30 to 37 months incarceration. Dist. Ct. adequately justified instant above-guidelines sentence, where: (1) Dist. Ct. noted that defendant had illegally reentered U.S. after each of his three deportations; (2) defendant had six prior felony convictions; and (3) defendant had prior 57-month term of incarceration for same offense, such that Dist. Ct. could properly conclude that longer sentence was required to deter defendant from future illegal reentries to U.S. Moreover, instant sentence was not unreasonable, and Dist. Ct. could otherwise view negatively defendant’s series of convictions for driving without valid license or insurance.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his reckless homicide conviction on ground that police violated his right to counsel by obtaining inculpatory statements after he had invoked his right to counsel during interrogation that occurred after his arrest in Arkansas. Record showed that police officials and defendant were discussing extradition process after his arrest in Arkansas, when defendant asked in Spanish: “How can I do to get an attorney here because I don’t have enough to afford one?”, and police officials continued questioning of defendant after defendant had asked instant question. Wisconsin Supreme Court, in upholding defendant’s conviction, found that defendant had not unequivocally invoked his 5^th Amendment right to counsel, and Dist. Ct. could properly have found that Wisconsin Supreme Court’s holding was not unreasonable application of U.S. Supreme precedent, since police officials could have understood defendant as asking about obtaining counsel for extradition proceeding as opposed to asking for counsel to be present in interrogation room. (Dissent filed.)

Dist. Ct. erred in dismissing as time-barred plaintiff’s section 1983 action, alleging that defendants-police officials and others violated his 5th and 14th Amendment rights by coercing false confession to murder charges and maliciously prosecuting him on said charges, which led to conviction on said murder charges, where Dist. Ct. found that instant claim should have been brought within two years from December of 2011, when plaintiff’s parole on said charges was terminated. Ct of Appeals found that under Heck, 512 US 477, plaintiff could not bring his section 1983 claims unless and until he obtained favorable termination of challenge to his murder convictions, and that instant section 1983 action was timely, since it was filed within two years of when defendant had received general pardon on his murder convictions in 2015. Ct. further acknowledged that certain prior cases suggested that release from custody and unavailability of habeas relief, which was situation facing plaintiff in 2011, meant that section 1983 relief was available to plaintiff at that time. However, Ct. disavowed such language in instant opinion. (Dissent filed.)