Criminal Law

Dist. Ct. did not err in sentencing defendant to below-guidelines, 244-month term of incarceration on certain drug charges, even though govt. had refused to move for further sentence reduction based on defendant’s substantial assistance that resulted in seven convictions and removal of 60 guns from streets. Govt. acted within its discretion in failing to move for said reduction, where: (1) defendant had disappeared for over 6-month period at time govt. sought additional assistance; and (2) defendant only identified low-level targets and protected higher-level sources and families and friends when providing assistance to authorities. Also, defendant was not entitled to remand for purpose of allowing more discovery and hearing on issue regarding govt.’s actual motive in withholding motion for sentence reduction, where defendant did not make substantial threshold showing of any improper motive and merely argued that he deserved said reduction in sentence.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on ground that his appellate counsel was ineffective for failing to argue that his initial arrest was unlawful, and that his confession was therefore inadmissible. Record showed that, although police may have lacked probable cause at time of his initial arrest, his confession was nevertheless voluntary and admissible, where: (1) although defendant was incarcerated throughout 24-hour period prior to making his confession at police station, he was given Miranda warnings prior to giving confession; (2) at time of defendant’s confession, police had probable cause to arrest him since witness identified defendant as individual at scene dragging garbage can where victim’s body was located; (3) instant identification was wholly independent of defendant’s arrest; and (4) at time police went to defendant’s home they did not intend to arrest him, and defendant otherwise consented to search of his home and to accompanying police back to police station where he eventually made confession.

Ct. of Appeals denied defendant’s third application for permission to file successive motion under 28 USC section 2255 to vacate his 20-year sentence on RICO charge. While defendant argued that vacatur of sentence was warranted under Hurst, 136 S.Ct. 616, defendant was not entitled to file successive habeas petition, where: (1) holding in Hurst, which concerned appropriate procedure for sentencing in capital murder case, did not apply to instant case; and (2) decision in Hurst was published months before defendant had filed his prior applications to file successive habeas petition. Defendant also could not prevail under 28 USC section 2255(h)(1) by basing instant motion on newly discovered evidence, since defendant was not contesting validity of his conviction.

Dist. Ct. did not err in initially sentencing defendant on charge of exploitation of child and possession of child pornography in interstate commerce to 25-year term of incarceration and then deferring decision as to whether to impose instant sentence consecutively or concurrently with yet-to-be determined state sentence on child molestation charge involving same child victim. While defendant argued that he was entitled under section 5G1.3(c) of USSG to concurrent sentence with state sentence because his federal sentence had been enhanced by finding that he had engaged in pattern of activity involving prohibited sexual conduct, Dist. Ct. did not commit plain error in deferring decision regarding concurrent/consecutive treatment, where: (1) Dist. Ct. indicated that it still would have declined to impose concurrent sentence; (2) Dist. Ct. had reason to believe that state court judge had additional facts regarding defendant’s ultimate sentence; and (3) state court eventually sentenced defendant to 50-year term that was consecutive to his federal sentence.

In prosecution on charge of unlawful possession of firearm ammunition by felon, Dist. Ct. did not err in denying defendant’s motion to suppress his confession to said charge, even though defendant asserted that his confession was based on false promises of leniency. Probation officer denied having made any promise of leniency prior to defendant revealing to her that he had collection of ammunition in his home, and Dist. Ct. could properly find that probation officer was believable, where probation officer had warned defendant on several prior occasions about possessing ammunition, and where defendant had many opportunities to dispose of his ammunition without experiencing negative consequences prior to his confession to probation officer. Also, Dist. Ct. could properly impose two-level enhancement for obstruction of justice and deny defendant’s request for downward adjustment for acceptance of responsibility associated with his guilty plea, where defendant presented false testimony at suppression hearing.

In prosecution on drug distribution charge, Dist. Ct. did not err in denying defendant’s motion to suppress drugs seized from car being delivered to him from across country, where Dist. Ct. properly found that defendant lacked standing to contest admission of said drugs. Record showed that: (1) car hauler had authority to drive said car on and off trailer and to and from trailer to pickup or delivery site; and (2) car hauler had given police authority to search instant locked car. As such, defendant did not have legitimate expectation of privacy in said car, where: (1) defendant did not own car, had never been inside it, and had never controlled car’s contents; and (2) car’s hauler controlled and had access to car, which allowed car hauler to act in contravention to defendant’s privacy interests.