Criminal Law

In prosecution on drug and firearm charges, Dist. Ct. did not err in denying defendant’s motion to suppress location and traffic data that had been obtained pursuant to search warrant issued under 18 USC section 2703(d), which provides that judge may issue warrant to seize cell-phone information, as well as allows police to use pen register, trap-and-trace devices, historical cell-call records and cell-simulator to capture signals emitted by subject cell-phones. Dist. Ct. found that application for warrant was supported by probable cause, and record contained no evidence that agents monitored contents of cell-phone calls that would have required separate wiretap warrant. Ct. also rejected defendant’s contention that warrant improperly authorized general search for evidence of any crime, and that instant warrant failed to particularly describe place to be searched and person/things to be seized, where warrant merely allowed agents to follow particular cell-phone to see where it went and discover what calls it made.

Dist. Ct. did not err in sentencing defendant to 264-month term of incarceration on drug conspiracy charge, even though said sentence was above applicable 240-month guideline. While defendant argued that Dist. Ct. improperly failed to grant him two-level acceptance of responsibility reduction in offense level based on entry of his guilty plea, Dist. Ct. could properly deny said reduction based on fact that defendant had not voluntarily surrendered to authorities for nearly one year after his arrest warrant had been issued. Moreover, defendant is not entitled to acceptance of responsibility reduction simply because he had entered timely guilty plea and truthfully admitted to offense of conviction. Also, Dist. Ct. gave adequate reason, i.e, defendant’s criminal history, violence, gun possession, and recidivism, to support imposition of above-guideline sentence.

Dist. Ct. erred in denying defendant’s habeas petition that challenged defendant-Federal Bureau of Prison’s decision regarding effective start date of his federal sentence. Defendant’s petition was not moot even though defendant was released from prison at some point during the instant proceedings, since favorable finding on instant petition would carry great weight in any section 3583(e) motion to reduce his term of supervised release. Moreover, Bureau erred in finding that defendant’s federal sentence began on date state authorities transferred defendant to federal authorities upon completion of his state sentence that concerned same incident that formed basis of his federal conviction, since record showed that, after defendant had been sentenced on his federal charge, state authorities had relinquished “primary custody” of defendant by transferring him to federal facility for period of time during defendant’s service of his state sentence. As such, defendant should have been given credit on his federal sentence for time he had spent in federal facility prior to completion of his state sentence. Also, Bureau had misapplied 18 USC section 3584(a), where it denied defendant’s request for retroactive designation of state facility as his place of imprisonment for his federal sentence, since Bureau drew unwarranted inference through silence by Dist. Ct. on whether defendant’s federal sentence should run consecutively or concurrently with his state sentence.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant’s motion to suppress statement following his arrest, as well as evidence obtained from search of his cell phone. Dist. Ct. could properly find that defendant had voluntarily waived his 4^th and 5^th Amendment rights, even though defendant had failed to sign any waiver form, since Dist. Ct. could properly credit examining officers’ testimonies that defendant had given verbal consent to said questioning, as well as to search of cell phone, and defendant’s appeal would improperly require Ct. of Appeals to re-evaluate said credibility findings. Moreover, defendant’s refusal to sign consent forms is not enough to defeat evidence of implied waiver, and record otherwise showed that defendant had assisted officers in identifying particular names and numbers in his cell phone. Also, defendant had failed to show that any consent had been coerced. Too, Dist. Ct. did not err in sentencing defendant to 72-month term of incarceration that was based, in part, on finding that defendant was responsible for between 700 grams and 1 kilogram of heroin, even though jury convicted defendant of distributing only 100 grams of heroin, since record supported finding that defendant was responsible for larger amount of heroin based on preponderance of evidence standard.