Criminal Law

Dist. Ct. erred in re-sentencing defendant to 84-month term of incarceration on unlawful possession of firearm charge, under circumstances where Dist. Ct. had: (1) decreased applicable advisory guideline range that had been set by original Dist. Ct., but had imposed same sentence as original Dist. Ct.; and (2) rejected defendant’s argument that he was entitled to below-guidelines sentence. Defendant was entitled to new sentencing hearing, where instant Dist. Ct. did not adequately explain how it assessed section 3553(a) factors used to impose instant sentence and had failed to elaborate on why it did not consider more favorably defendant’s extensive presentation of his efforts at self-rehabilitation under adverse circumstances.

Dist. Ct. erred in sentencing defendant to 188-month term of incarceration on unlawful possession of firearm charge, where said sentence was based, in part, on Dist. Ct. revoking defendant’s three-point reduction in offense level for acceptance of responsibility that it had earlier granted to defendant, after defendant had repeated his counsel’s unsuccessful argument that Sentencing Guidelines calculation had improperly double-counted his past convictions, and after defendant had attempted to mitigate his conduct by explaining circumstances surrounding his arrest. Ct. rejected Dist. Ct.’s belief that defendant had falsely denied or frivolously contested relevant conduct, since Dist. Ct. cited only to defendant’s legal arguments. Moreover, record otherwise did not support contention that defendant had disclaimed responsibly for his criminal conduct, where defendant’s explanation that he only attempted to keep firearm off street was only argument in mitigation of seriousness of offense. Result is same, even if defendant was legally wrong that Dist. Ct. had erroneously double-counted his past convictions when calculating his guidelines range.

Defendant was entitled to new sentencing hearing on his drug-related convictions, where at time defendant’s case was pending Dist. Ct. (Judge Bruce) was improperly communicating ex parte with prosecuting U.S. Attorney’s Office about other cases. Under 28 USC section 445(a), judge must recuse himself from any proceeding in which his impartiality might reasonably be questioned, and govt. conceded that Judge Bruce’s conduct gave appearance that he was biased in govt.’s favor. Moreover, error in failing to recuse himself was not harmless, where allowing defendant’s mid-range, 210-month sentence to stand would undermine public’s confidence in fairness of his sentence and in impartiality of judiciary, especially where Dist. Ct. has discretion in fashioning defendant’s sentence, and where said discretion invites risk that Dist. Ct.’s personal biases will influence or appear to influence sentence he imposes.

Dist. Ct. erred in granting defendant’s habeas petition that challenged his 80-year sentence on child molestation charges, even though defendant asserted that his appellate counsel was ineffective for failing to object to his sentence under Indiana Appellate Rule 7(B). Indiana Court of Appeals rejected defendant’s ineffective assistance of counsel claim, after finding that defendant had failed to show that his sentence was inappropriate under Rule 7(B), and Dist. Ct. was bound by Indiana Court of Appeals holding, which pertained to resolution of purely state law question. As such, defendant failed to show how Indiana Court of Appeals had unreasonably applied federal law so as to support his federal habeas petition.

In prosecution on drug and possession of explosive charges, Dist. Ct. did not err in denying defendant’s motion to suppress evidence seized from his car and from his apartment, even though defendant argued that police lacked probable cause to stop and arrest him, and that no exigent circumstances justified warrantless search of his locked apartment bedroom. Instant stop and arrest was motivated by defendant’s participation in controlled drug purchase that occurred 22 days prior to instant stop. Police had probable cause to arrest defendant following controlled purchase, and instant three-week delay in arresting defendant did not dissipate probable cause to arrest him based upon controlled purchase. Moreover, inevitable discovery rule applied to officer’s search of defendant’s car, where said car would have been towed to police station and searched following defendant’s arrest. Also, exigent circumstances supported police search of defendant’s locked bedroom, where: (1) search of defendant’s car revealed presence of pipe bombs containing explosives; (2) there was fear that defendant had other explosives in his bedroom; and (3) police acted on said fear by evacuating defendant’s girlfriend from defendant’s apartment after discovery of explosives in defendant’s bedroom.

Dist. Ct. did not err in sentencing defendant to 15-month term of incarceration for violating term of his supervised release, where violation concerned defendant’s use of methamphetamine. Moreover, Dist. Ct. could properly characterize said violation as Grade B violation involving defendant’s possession of methamphetamine, since Dist. Ct. could reasonably infer defendant’s possession of said drug through his use of said drug. Ct. rejected defendant’s contention that Dist. Ct. could not make finding of Grade B violation without specific finding that he violated any law prohibiting possession of controlled substance that was statutorily punishable by more than one year in prison and noted that defendant had received notice from probation officer that he was alleged to have violated Indiana statute prohibiting possession of methamphetamine that was punishable by more than one year in prison.