Criminal Law

Defendant waived any appeal regarding his 272-month term of incarceration on Hobbs Act robbery and firearm charges, even though defendant argued that his sentence was improper because: (1) Dist. Ct. sentenced him as armed career criminal based in prior convictions for robbery and armed robbery; and (2) neither conviction qualified as “violent felony” for purposes of establishing his armed career criminal status. Record showed that defendant had pleaded guilty to said charges, and that plea agreement contained clause waiving defendant’s right to contest “any aspect of [his] conviction and sentence.” Moreover, although defendant contended that waiver should not be enforced because his sentence exceeded statutory maximum due to erroneous armed career criminal status finding, instant waiver clause applied, especially where, as here, Ct. would be required to determine defendant’s appeal on its merits to know whether sentence was unlawful.

Dist. Ct. did not err in sentencing defendant to 106-month term of incarceration, after defendant had pleaded guilty to four counts of drug and firearm offenses, where said sentence was based, in part, on enhancement under section 2K2.1(a)(3) of USSG arising out of defendant’s possession of Smith & Wesson pistol that had 16 rounds in magazine. Three grouped offenses that formed basis of sentence did not allege defendant’s possession of said pistol, and while defendant argued that instant enhancement should not apply because he only constructively possessed said pistol that was actually possessed by co-conspirator, record showed that defendant had pleaded guilty to knowing possession of said pistol in fourth charge in indictment, which made said possession relevant conduct for purposes of sentencing under section 1B1.3(a)(1)(A) of USSG. As such, Dist. Ct. could properly apply instant enhancement.

In prosecution on charge of making and subscribing false and fraudulent IRS forms under 26 USC section 7206(1) arising out of defendant’s issuance of 1099 forms to two individuals, where said forms falsely claimed that defendant’s S-Corporation had paid each individual $250,000, Dist. Ct. did not abuse its discretion in denying defendant’s request to introduce into evidence alleged business records of defendant’s S-Corporation consisting of corporate minutes that referred to defendant speaking with IRS agent, who alleged told defendant that issuance of instant 1099 forms was acceptable. Record showed that instant minutes were created by defendant, who was sole employee of S-Corporation, and that said minutes, which were only copies of destroyed original minutes, lacked indicia of reliability, since instant copies were prepared in 2010, when defendant was already under investigation by IRS. Also, there was no indication that S-Corporation's minutes were relied upon for operation of its affairs.

Ct. of Appeals lacked jurisdiction to consider juvenile’s appeal of Dist. Ct. order directing him to make himself available to govt. psychologist for purpose of gathering information for subsequent determination as to whether he could be transferred to adult court for prosecution on Hobbs Act robbery charge. While Ct. of Appeals would have jurisdiction to consider any appeal of Dist. Ct.’s transfer order, instant order was not final “collateral order,” where: (1) juvenile failed to show that he would incur irreparable harm if his claim is not reviewed at this juncture; and (2) defendant can raise same claim if Dist. Ct. grants govt. motion to transfer case to adult court. Moreover, Ct. noted that juvenile’s claim that psychological examination without presence of his counsel violated 5^th and 6^th Amendments has been rejected by three other Courts of Appeals.

Dist. Ct. did not err in dismissing defendant’s habeas petition that challenged his guilty pleas to drug and firearm charges, after alleging that his trial counsel was ineffective during plea-bargaining process. Under govt.’s proposed plea agreement, defendant was required to plead guilty to drug distribution charge, agree that conduct underlying other counts was relevant conduct for sentencing purposes, and stipulate to govt.’s sentencing guideline range calculation, and defendant ultimately entered blind guilty pleas to all counts that reserved right to contest govt.’s sentencing range calculation. Defendant’s trial counsel was not ineffective by counseling defendant to execute blind plea, even though Dist. Ct. eventually sentenced defendant to 240-month term of incarceration that was near govt.‘s 262 to 327-month sentencing range, where: (1) record showed that trial counsel’s blind plea advice was product of legitimate trial strategy, since blind plea allowed defendant to challenge govt.’s sentencing range calculation; and (2) trial counsel believed she could secure better sentence for defendant. Moreover, record showed that trial counsel discussed with defendant his plea options and advised him accordingly.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his attempted murder conviction on grounds that victim’s identification of defendant as culprit during lineup was unreliable, that govt. withheld favorable evidence establishing that said identification via lineup was unreliable, and that govt. destroyed notes of investigators that contained material exculpatory evidence about said identification process. Record contained insufficient evidence to show that police manufactured suggestive lineup, where wife of victim could only testify that: (1) she, as opposed to victim, saw defendant’s picture on stack of police files prior to victim’s lineup identification of defendant; and (2) police never told victim that he selected correct person in lineup. Also, defendant failed to show that govt. had destroyed investigators’ notes in bad faith, where record showed that destruction of notes was routine practice where, as here, substance of notes had been typed into summary reports at time of their destruction. Moreover, defendant had failed to establish that notes contained exculpatory evidence.