Criminal Law

Dist. Ct. did not err in denying defendant’s habeas petition challenging his residential burglary and 1^st degree murder convictions arising out of defendant’s entry into neighbor’s apartment and eventual stabbing of neighbor once neighbor encountered defendant. Record contained sufficient evidence to establish residential burglary conviction, even though defendant argued that he lacked requisite intent when he entered neighbor’s apartment because he was heavily intoxicated at said time and did not attempt to conceal his entry, since trial court could rely on defendant’s own statements that were translated from Spanish to English, indicating that defendant entered neighbor’s apartment looking for something to steal. Moreover, record contained sufficient evidence to support first degree murder given circumstances of defendant’s encounter and stabbing of victim during his residential burglary. Also, admission of defendant’s videotaped statement did not violate his due process rights, even though defendant argued that detective provided inaccurate translation of defendant’s responses to questions posed to him that, according to defendant, rendered his confession involuntary, since: (1) defendant failed to establish any inherent bias on part of detective, who acted as both investigator and translator; and (2) trial court could properly find that detective was accurate in his translation of defendant’s responses to questions posed to him in English.

Defendant was entitled to new sentencing hearing on charge of interfering with commerce by threat of violence, where Dist. Ct. based instant 188-month sentence on finding that defendant was career-offender under section 4B1.1(a) of USSG, after finding that defendant qualified for said treatment based, in part, on his prior fleeing police officer conviction that qualified as “crime of violence” under guidelines’ residual clause. Ct. agreed with defendant that he could not treated as career offender, where: (1) under Johnson, 135 S.Ct. 2551, instant residual clause was unconstitutionally vague; and (2) defendant was prejudiced, since he was sentenced under incorrect career-offender guideline range that was far above correct guideline range.

Record contained sufficient evidence to support defendant-prisoner’s conviction during bench trial on charge of forcible assault of correctional officer arising out of incident in which defendant head-butted officer during argument about pat-down search by said officer. While Dist. Ct. found that defendant, as prisoner, could not assert self-defense claim unless he established that he was under imminent threat of death or serious bodily harm, Ct. of Appeals concluded that, under 8^th Amendment principles, prisoner need not establish fear of serious bodily harm or death before being allowed to use force to protect himself, and that prisoner could assert self-defense claim if prisoner had reasonable belief that officer(s) intended to cause sadistic and malicious harm to prisoner. However, Dist. Ct. did not err in finding that instant defendant had reasonable legal alternative to use of force by merely submitting to officer’s search, and thus defendant could not rely on self-defense to excuse his conduct.

Dist. Ct. erred in sentencing defendant to below-guideline, 87-month sentence on drug distribution charges based in part on finding that defendant was career offender under section 4B1.1(a) of USSG, which, in turn, was based in part on defendant’s prior Wisconsin conviction on charge of possession of sawed-off shotgun that is listed as “crime of violence” in application note 1 to section 4B1.2. Wisconsin statute qualifies as crime of violence, if at all, under “residual clause” of section 4B1.2(a), and Ct. of Appeals found that residual clause in section 4B1.2(a)(2) is invalid based on recent holding in Johnson, 135 S.Ct. 2551, where similar residual clause of Armed Career Criminal Act was found to be unconstitutionally vague. Ct., in overruling Raupp, 677 F.3d 756, further concluded that application note’s list of qualifying crimes is inoperable and could not be used as basis for applying career-offender enhancement. Also, defendant established prejudice that required that he receive new sentencing hearing, even though his sentence was below correctly calculated range once career-offender error had been removed. (Dissent filed.)

Dist. Ct. erred in sentencing defendants to term of incarceration on unlawful possession of firearm charges based, in part, on finding that defendants were career offenders that were based in part on their prior convictions (i.e., discharge of firearm into building or vehicle and fleeing officer) that Dist. Ct. deemed to be “crimes of violence” under residual clause of section 4B1.2(a)(2) of USSG. Ct. of Appeals found that holding in Johnson, 135 S.Ct. 2551, which found similar residual clause in Armed Career Criminal Act to be unconstitutionally vague, applied to invalidate residual clause in section 4B1.2(a)(2) of USSG. In doing so, Ct. of Appeals overruled Tichenor, 683 F.3d 358, that categorically foreclosed vagueness challenge to Sentencing Guidelines. Moreover, both defendants are entitled to new full sentencing hearing, where their sentences fell above correct guideline range without career offender treatment. (Dissent filed.)

In prosecution on drug and unlawful possession of firearm charges, Dist. Ct. did not err in denying defendant’s motion to suppress gun and heroin seized from defendant, even though defendant argued that govt. violated Brady by failing to turn over information about confidential informant, whose information formed basis of search warrant on which police relied to conduct search. No Brady violation occurred, since defendant failed to establish any prejudice arising out of govt. withholding of said information, where: (1) govt. may withhold identify of confidential informant unless identity is helpful to defense or essential to fair determination of cause; (2) defendant was aware that there was confidential informant and had failed to move for disclosure of same; and (3) detailed information provided by confidential informant, who testified before judge issuing warrant, as well as corroboration of said information by police, provided sufficient probable cause to issue warrant whether or not defendant was aware of informant’s identity.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his 40-year sentence on robbery charge, where said sentence was based in part on defendant’s qualification for career-offender treatment under Indiana statute requiring govt. to establish that defendant had been convicted of two prior unrelated felonies in specific sequence. While defendant argued that his appellate counsel was ineffective for failing to raise issue that govt. had failed to establish commission date for one prior conviction, which precluded finding that defendant was habitual offender, record contained strong inference that sequence of prior offenses met criteria for habitual statute, and thus it was unlikely that defendant would have been given new trial had appellate counsel raised issue of missing commission date. Moreover, Double Jeopardy would not have barred state court from remanding case to introduce evidence of commission date.

Defendants were entitled to third full sentencing hearing on charges of racketeering, drug distribution and extortion charges, after Dist. Ct. had imposed certain terms and conditions of supervised release. Dist. Ct. failed to give defendants advance notice that it was considering imposition of discretionary conditions of supervised release that were eventually imposed and had imposed certain conditions that were either vague or overbroad or were not announced during sentencing hearing but were included in written order. Dist. Ct. also erred by failing to calculate applicable guideline range of one defendant and in failing to make explicit finding as to whether said defendant had accepted responsibility for his charged offenses.

In prosecution on charge of felon in possession of body armor that arose out of officer’s pat down of defendant after traffic stop, Dist. Ct. did not err in denying defendant’s motion to suppress body armor, even though defendant argued that its discovery was product of unconstitutional search. Record showed that defendant was lawfully stopped by officer after officer noticed that defendant made improper right turn from center lane and drove through private property to avoid red light, and after officer discovered that car was registered to defendant whose license had been suspended. Moreover, defendant led officer on mile-long “slow speed” chase even though officer had activated his lights. As such, because officer had probable cause to stop defendant’s vehicle and to charge him for various traffic violations, as well as felony charge of resisting law enforcement officer while in vehicle, officer was allowed to pat down defendant and to discover body armor. Moreover, Dist. Ct. could sentence defendant to 24-month term of incarceration, based in part on defendant’s use of body armor in connection with another felony offense, where defendant was wearing body armor during his “slow-speed” chase that formed bass of felony charge of resisting law enforcement officer while in vehicle.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction/death penalty on grounds that his trial counsel was ineffective for portraying him as incurable psychopath during sentencing phase of his trial. Defendant failed to establish any prejudice arising out of his counsel’s actions, where record showed that jury would not have recommended any lighter sentence in view of fact that: (1) defendant raped, tortured and murdered adolescent girl in brutal fashion; and (2) defendant showed no remorse for his actions. Ct. further noted that defendant did not raise argument that he was mentally disabled at time of offense, or that death penalty was inappropriate sentence because of his insanity.