Criminal Law

Defendant waived his sole issue on appeal regarding Dist. Ct.’s denial of his habeas petition challenging his 60-year sentence on murder charge. Defendant failed to raise in his habeas petition instant issue regarding his trial counsel’s alleged failure to submit certain mitigation evidence and only raised said issue in his Rule 59(e) motion to alter Dist. Ct.’s judgment denying his habeas petition. As such, defendant’s claim was waived.

In prosecution on drug distribution charge arising out of seizure of drugs stemming from defendant’s encounter with police officer on train traveling to Ohio. Record showed that officer, who suspected that defendant might be carrying drugs based only on her last-minute purchase of one-way ticket, her travel itinerary to drug source location and prior arrest, initially asked defendant series of “security” questions while standing outside of defendant’s roomette on train and then asked defendant to search her bags to confirm her answers. Moreover, Dist. Ct. could properly find that defendant’s response of “I guess so. You’re just doing your job” constituted valid consent to search her bags that precluded any 4^th Amendment claim. Fact that officer did not inform defendant that she could deny his request to search her bags or fact that defendant was black and officer was white did not render said consent improperly coercive. Also, officer could pose instant questions without having any suspicion of wrongdoing, where defendant’s consent was not induced by coercive means.

Defendant waived his appeal that sought to set aside his guilty plea to charges of attempted robbery under Hobbs Act and use of firearm during commission of Hobbs Act offense, where terms of guilty plea did not reserve any issue for appeal. While defendant argued that he was not guilty of charged Hobbs Act offense because attempted robbery is not crime of violence under either residual or elements clause, Ct. instead found that waiver applied, since defendant’s argument that indictment did not charge section 924(c)(1) offense should have been raised in pretrial motion under Rule 12(b)(3)(B)(v). Moreover, defendant did not contend that he had any constitutional immunity from prosecution, and defendant’s issue as to whether attempted Hobb’s Act robbery satisfied elements clause in section in section 924(c) is statutory issue, which was subject to waiver in plea agreement.

Dist. Ct. did not err in re-sentencing defendant to 104-month term of incarceration on charge of distributing crack and powder cocaine. While defendant argued that Dist. Ct. erred in failing to re-calculate applicable guideline range at instant second sentencing hearing, Dist. Ct. was not required to recalculate sentencing range, where defendant on multiple occasions confirmed applicable sentencing range at first sentencing hearing, and defendant did not register any objection to said range at second sentencing hearing. Also, Dist. Ct. did not improperly treat Sentencing Guidelines as presumptively reasonable, where, when imposing instant sentence, Dist. Ct. discussed defendant’s criminal history and tailored his sentence to his specific circumstances that included consideration of section 3553(a) factors, as well as his age and intensive mental health treatment.