Criminal Law

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on charge of possession of destructive device. While applicable guideline range was only 33-41 months, Dist. Ct. provided adequate explanation for imposition of instant statutory maximum sentence, which included need to protect public from defendant, who showed no remorse for placement pipe bomb in mailbox, and who made lifetime of excuses for his criminal behavior. Dist. Ct. also could credit testimonies of defendant’s former sister-in-law, who stated that defendant had threatened her with gun while on release in instant case and of ex-wife, who stated that defendant used fire as means of intimidation. Moreover, instant sentence was not substantively improper, even though defendant claimed that instant sentence created substantial risk of unwarranted sentencing disparities between himself and more culpable offenders.

Record contained sufficient evidence to support defendant’s conviction on charge of using/brandishing firearm during and relation to “crime of violence,” where relevant crime of violence was defendant’s conviction on attempted armed bank robbery charge under 18 USC section 2113(a), which had as element use/attempted use of physical force against person or property. Fact that person can commit robbery by intimidation under said statute was immaterial. However, Dist. Ct. erred in sentencing defendant to 7-year mandatory minimum sentence on charge of “brandishing” firearm during crime of violence, where jury’s verdict did not find that defendant was responsible for brandishing of firearm in instant robbery that took place inside bank while defendant was outside bank. On remand, Dist. Ct. could still impose 7-year sentence, since record supported conviction on charge of defendant’s aiding and abetting use or carrying of firearm during crime of violence, and since sentence for said crime allows Dist. Ct. to sentence defendant beyond 5-year mandatory minimum sentence.

Record contained sufficient evidence to support jury’s guilty verdict on charge that defendants conspired to obstruct and attempted to obstruct commerce by robbery in violation of Hobbs Act. Record showed that: (1) defendants planned instant robbery and took substantial steps to effectuate robbery by traveling to New Jersey to rob diamond merchant, who possessed diamonds that were mined outside United States; and (2) under “depletion of assets” theory, defendants planned and intended to rob diamond merchant, whom they believed was actively engaged in buying and selling diamonds, where said robbery would have effect of curtailing diamond merchant’s potential to purchase and sell assets that had moved through interstate commerce. Ct. rejected defendants’ argument that govt. failed to prove that individual whom they intended to rob was actually diamond merchant, since any alleged factual impossibility or mistake in fact is not defense to instant attempt crime. Also, Ct. did not err in admitting diamond expert for purposes of providing relevant testimony regarding why defendants could have believed that diamond merchant would have diamonds in his possession at time of planned robbery.

Dist. Ct. did not err in dismissing as untimely defendant’s habeas petition challenging his kidnapping and sexual assault convictions, where defendant filed said petition seven months after expiration of applicable one-year limitations period for filing habeas petitions. Also, doctrine of equitable tolling did not apply to excuse said delay, where: (1) defendant did not diligently pursue his rights by failing to comply with Dist. Ct.’s instruction to file timely habeas petition before seeking stay of proceedings and then waiting 21 months after said direction to file instant petition; and (2) defendant did not establish existence of extraordinary circumstances that prevented him from filing timely petition, where defendant cited to only “normal” problems that commonly occur in prison setting such as problems with his counsel and physical and mental health issues that resulted in his removal from prison for only few days.

Dist. Ct. did not err in sentencing defendant to 100-month term of incarceration on unlawful possession of firearm charge based, in part, on two-level upward enhancement under section 3C1.1 of USSG for obstruction of justice based on defendant’s false statement that he did not assist in purchase of gun. While defendant argued that enhancement was improper because any false statement was immaterial since he had admitted to possession of gun, defendant’s statement, which attempted to deflect his role in purchasing gun, was material because it enhanced risk of jury nullification, and thus supported imposition of instant enhancement .

Dist. Ct. erred in sentencing defendant to mandatory minimum sentence of 15 years under Armed Career Criminal Act (ACCA) on unlawful possession of firearm charge, where Dist. Ct. improperly found that defendant’s prior Illinois burglary conviction qualified as one of three convictions required for sentencing treatment under said Act. Burglary conviction qualifies for treatment under ACCA if it contains unlawful entry into building with intent to commit crime element, and defendant’s Illinois burglary conviction did not qualify for ACCA treatment because it was broader than generic burglary conviction, since it included unlawful entries into vehicles. Also, remand was required for determination as to whether defendant’s prior Pennsylvania aggravated assault convictions qualified as violent felonies under ACCA.