Criminal Law

Dist. Ct. did not err in denying defendant’s section 2255 motion to reduce his 262-month term of incarceration, where said sentence was based, in part, on finding that his prior Kentucky residential burglary qualified as crime of violence for purposes of qualifying for enhanced sentence treatment as career offender. Instant motion was untimely in that it was filed more than one-year after defendant’s conviction became final in November of 2011. Ct. rejected defendant’s claim that Supreme Ct. decision in Mathis, 136 S.Ct. 2243, recognized new right that allowed him to file instant motion by June 23, 2017, and although govt. conceded that defendant’s Kentucky residential burglary conviction did not qualify as crime of violence, sentencing court relied on other factors to support instant sentence. As such, defendant did not suffer from any miscarriage of justice, where there was no reason to believe that sentencing judge would be inclined to revise sentence based solely on removal of defendant’s residential burglary offense as crime of violence, and where defendant had other drug convictions to support imposition of instant sentence.

In prosecution on charge of unlawful possession of firearm, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of his gun during on-street encounter with police, even though defendant argued that police officer violated his 4th Amendment rights, when: (1) officer rushed up to approach him on street and asked him if he had gun; and (2) he was arrested after he told officer that he had gun. While defendant argued his encounter with officer amounted to impermissible seizure, Dist. Ct. could properly believe officer’s testimony that encounter was voluntary, where officer spoke to defendant in public and never stopped him on street, obstructed him from walking on sidewalk, or make any show of force at time officer posed question to defendant. Moreover, police do not violate 4th Amendment by merely approaching person in public and asking him questions. Also, plaintiff failed to establish viable due process claim arising out of police failure to preserve video of instant encounter, where: (1) defendant’s claim was only that police failed to preserve potentially useful evidence, which required showing of bad faith; and (2) plaintiff failed to make such showing where police made unsuccessful attempt to preserve said video, and where testimony indicated that lost video did not depict defendant’s arrest.

Dist. Ct. did not err in imposing enhanced, 15-year sentence on sexual exploitation of minor charges, where said enhancement under 18 USC section 2252(b) was based on defendant’s prior Indiana possession of child pornography conviction, which “related to” federal version of possession of child pornography charge. While defendant argued that his Indiana conviction did not support instant section 2252(b) enhancement because it covered conduct that was broader than federal possession of child pornography charge, Ct. in Kraemer, 933 F.3d 675, found that state statute of conviction was not required to be same or narrower than analogous federal law. As such, defendant’s Indiana possession of child pornography conviction properly supported instant enhancement, because said conviction bore connection to topic enumerated in section 2252(b) and addressed same harm.

Dist. Ct. did not err in denying defendant’s section 2255 petition for post-conviction relief, alleging that his trial counsel was ineffective in failing to advise him of consequence of turning down govt. offer to plead guilty to possession of child pornography charge that had at most 10-year sentence, where defendant turned down said offer, took case to trial and was eventually found guilty of child production charge, to which defendant had received 18-year sentence. Dist. Ct. could properly find after hearing on matter that counsel adequately advised defendant of risks of rejecting govt.’s plea offer and proceeding to trial on child pornography production charge. Moreover, at time of plea offer, govt. had only four thumbnail images of nude children in his cell phone, and counsel could have reasonably advised defendant that said images were insufficient to establish conviction on child pornography production charge.

Dist. Ct. did not commit plain error in accepting defendant’s guilty plea to drug conspiracy charge, even though Dist. Ct. improperly failed to advise defendant of potential that he might be deported to Mexico as consequence of said plea. While Rule 11(b)(1)(O) required Dist. Ct. to issue said warning, defendant failed to establish reasonable probability that he would not have pleaded guilty had he received said warning, where record showed that: (1) prior to entering guilty plea, defendant was aware that he faced high likelihood of deportation to Mexico; and (2) contemporaneous evidence at time defendant entered guilty plea indicated that he had accepted fact that he would be returned to Mexico, and that he wished swift release from prison to take care of his mother in Mexico.

In prosecution on drug charges, Dist. Ct. did not err in admitting recordings showing confidential source purchasing drugs from defendant, even though confidential source did not testify at trial. Government laid out proper foundation for recordings via officers who participated in setting up said purchases and witnessing confidential source making said purchases. Officers also established chain of custody of physical evidence arising out of said sales, and Dist. Ct. gave appropriate limiting instruction that told jury to consider statements made by confidential source not for their truth, but rather for purposes of giving context to defendant’s statements in recordings. Ct. rejected defendant’s claim that said admission violated Confrontation Clause. Ct. also rejected defendant’s claim that his life sentence on drug distribution charge should have been reduced to 25 years under First Step Act, where said Act went into effect shortly after his sentencing hearing, since said Act was not retroactive.