Criminal Law

Dist. Ct. did not err in sentencing defendant to 196-month term of incarceration on armed robbery and brandishing firearm charges, even though parties had stipulated to lower sentencing range to account for failure of defendant’s federal defender to update either defendant or his state-court counsel in pending state-court armed robbery charge about status of instant federal court proceedings so as to allow defendant to delay pleading guilty to state charge in order to obtain lower sentencing range on instant federal offense. Dist. Ct. committed no error in failing to abide by recommended sentencing range, where record showed that Dist. Ct. had acknowledged recommended range and indicated that it was under no obligation to follow said range instead of range that applied to facts of case. Ct. further noted that Dist. Ct. had actually afforded defendant considerable leniency by subtracting 36 months from defendant’s “proper sentence” to account for three years that defendant had served on state-court sentence.

Dist. Ct. did not err in sentencing defendant to below-guidelines, 192-month term of incarceration on crack-cocaine distribution and firearm charges, even though defendant argued that Dist Ct.: (1) failed to address his request to reject 18 to 1 crack to powder cocaine ratio in sentencing guidelines favor of 1 to 1 crack to powder ratio; (2) improperly speculated regarding uncharged criminal conduct attributed to defendant when addressing defendant’s argument that his criminal history was overstated due to presence of several offenses relating to driving on suspended license; and (3) improperly allowed its frustration with defendant’s litigation tactics to affect instant sentence. Under Rosales, 813 F.3d 634, Dist. Ct. was not required to address defendant’s categorical challenge to crack to powder ratio. Moreover, Dist. Ct. could properly note that defendant was involved in other conduct that formed basis of his traffic stops, when discounting defendant’s claim that his criminal history was overstated, and it was not irrational for Dist. Ct. to find that defendant’s criminal history was not overstated given nature and extent of serious drug and firearm sales that formed basis of charged offenses. Also, Dist. Ct.'s comments about defendant’s intelligence and calculated conduct during course of instant prosecution when dealing with his multiple counsel did not reflect any frustration with defendant’s litigation strategy, but rather pertained to need to protect others from defendant.

Dist. Ct. did not err in sentencing defendant to 135-month term of incarceration, as well as imposing instant four terms of supervised release that required defendant to: (1) make himself available for home visits by probation officer at reasonable times; (2) report to probation officer any significant change in defendant’s economic circumstances; (3) report to probation officer in manner and frequency directed by probation officer; and (4) participate in substance abuse/mental health treatment programs. Defendant waived any objections to said conditions by failing to file written objections at time they were proposed. Moreover, Ct. rejected defendant’s contention that instant conditions were impermissibly vague, after Ct. noted that all of said conditions will not take place until years into future.

Dist. Ct. did not err in imposing three conditions of supervised release as part of defendant’s sentence on charges of transporting and possessing child pornography. Dist. Ct. could properly require that defendant obtain prior permission to travel outside specified judicial district, where Dist. Ct. found that such condition was required to track and control defendant, given defendant’s financial means to travel outside said district. Fact that defendant’s offenses did not include travel component was immaterial. Also, Dist. Ct. did not err in imposing no-contact with minor condition, even though defendant’s offenses concerned only possession of child pornography, since: (1) defendant’s criminal conduct evinced specific interest in children; and (2) defendant actively and specifically solicited new child pornography. Too, Dist. Ct. could properly impose requirement that defendant undergo psychosexual evaluation that involved use of polygraph examination at discretion of probation officer, where use of such examination was appropriate to obtain more complete sexual history of defendant and/or scope of defendant’s criminal conduct.

Dist. Ct. did not err in dismissing defendant’s habeas petition challenging his sentence as armed career criminal under 19 USC section 924(e), where at time of his original sentence, Dist. Ct. found that defendant had six qualifying “violent felonies.” While defendant argued that under Johnson, 135 S.Ct. 2551, four of his six prior convictions no longer qualified as violent felonies, since they were deemed so under unconstitutionally vague residual clause contained in section 924(e)(2)(B)(ii), Dist. Ct could properly have found that one of subject four prior convictions, i.e., Wisconsin battery by prisoner conviction, qualified as violent felony because said offense had as element use, attempted use or threatened use of physical force against another person. As such, defendant still had three qualifying prior violent felony convictions so as to support his designation as armed career criminal.

Dist. Ct. did not err in dismissing defendant’s complaint under Administrative Procedure Act (APA), 5 USC section 702) seeking to have Dist. Ct. set aside prosecutor’s decision not to file second motion under Rule 35(b) to reduce defendant’s 110-month sentence on mail and wire fraud convictions based on defendant’s substantial assistance to prosecution that was given subsequent to defendant receiving initial reduction in sentence for giving substantial assistance to prosecution. While Dist. Ct. improperly believed that prosecutor’s refusal to file Rule 35(b) motion was discretionary act that was not subject to appellate review, and that defendant’s proper remedy was filing section 2255 habeas petition, Ct. of Appeals found that filing complaint under APA was not proper way to seek order compelling prosecutor to file Rule 35(b) motion, and that defendant could raise issue by filing ordinary motion in original criminal case. Ct. further noted, though, that under Wade, 504 U.S. 181, permissible grounds for review of discretionary decision by prosecutor were limited to matters of race discrimination or other constitutional transgressions, and defendant’s argument that she was entitled to second reduction because of her substantial assistance to prosecution would be insufficient to prevail under Wade.