Criminal Law

Dist. Ct. did not err in imposing below-guideline, 120-month term of incarceration on drug distribution charge, where said sentence was based, in part, on 6-level upward adjustment to defendant’s offense level under section 3A1.2(c)(1) of USSG based on finding that defendant had assaulted police officers while attempting to flee arrest. Record showed that defendant had engaged in physical altercation with police officers after said officers had engaged defendant in high-speed car chase through residential district, and that Dist. Ct. had adopted probation officer’s presentence report, which made finding that defendant had hit one officer on his head prior to being apprehended. While defendant denied striking either officer, Dist. Ct. was entitled to adopt probation officer’s findings in presentence report that indicated that blow to head created substantial risk of serious bodily injury.

Dist. Ct. did not err in denying defendant’s section 2241 habeas petition seeking to challenge his section 924(c) conviction on use of firearm in crime of violence, where relevant crime of violence was defendant’s aiding and abetting bank robbery conviction where accomplice had used firearm during robbery. Under Rosemond, 134 S.Ct. 1240 (2014), defendant could not be convicted on section 924(c) offense unless jury found that he had actual advance knowledge that accomplice would use gun during bank robbery. Moreover, although jury instructions at defendant’s trial, which predated Rosemond, did not conform with dictates set forth in Rosemond, defendant could not raise said issue in instant section 2241 petition, where: (1) defendant had filed prior section 2255 habeas petition that raised unrelated ineffective assistance of counsel issue; (2) defendant could seek relief under section 2241 only if he had no reasonable opportunity to raise said issue in his prior 2255 habeas petition; and (3) defendant could have raised instant challenge to his section 924(c) conviction in his prior section 2255 petition.

Ct. of Appeals denied defendant’s motion seeking order authorizing Dist. Ct. to entertain second motion to vacate his sentence under 28 USC section 2255, even though defendant alleged that his 262-month term of incarceration on bank robbery charge violated Johnson, 135 S.Ct. 2552, where his sentence was based on finding that he qualified for treatment as career offender, and where Johnson held that residual clause of Armed Career Criminal Act was unconstitutionally vague. Defendant was previously denied permission to file successive section 2255 motion based on Johnson, and thus instant request was barred under 28 USC section 2244(b)(1). Moreover, while defendant asserted that recent Supreme Ct. decision in Mathis, No. 15-6092 (6/23/16) supports his contention that his residential burglary conviction used to establish his career offender status was not crime of violence, defendant could only raise said issue, if at all, in section 2241 petition.

Record contained sufficient evidence to support guilty verdict on 22 counts of sexual exploitation of children arising out of defendant’s actions in filming through hole in basement bathroom wall of at least five minor girls dressing and undressing. While defendant argued that record did not establish that videos he created were “lascivious” because they merely depicted nudity and did not draw attention to girls’ genitalia, Dist. Ct. could properly find that said videos were lascivious where: (1) girls’ nude pubic areas were visible in each video; (2) defendant went to great efforts to create conditions that allowed him to film said girls; (3) subject matter of video that showed nude girls in shower/bathroom demonstrated defendant’s intent to arouse his sexual fantasy/desire; and (4) defendant’s lie to his son about said videos in effort to cover up his behavior supported reasonable inference that his videos were not for legitimate purpose. Fact that videos did not zoom in on girls’ genitalia did not require different result.

Dist. Ct. erred in dismissing without conducting evidentiary hearing defendant’s section 2255 motion to set aside his 240-month term of incarceration on conspiracy to distribute oxycodone charge, where said sentence had been enhanced upon finding that defendant’s distribution of said drug resulted in victim’s death, and where defendant alleged that his trial counsel was ineffective for failing to object to said sentencing enhancement contained in defendant’s guilty plea because oxycodone he distributed was not shown to be “but-for” cause of victim’s death. Relevant postmortem and forensic pathology reports presented potential that something other than oxycodone was cause of death when they stated that cause of death was oxycodone and cocaine intoxication, and record was unclear as to whether trial counsel either was aware of but-for standard or had examined said reports. Moreover, instant potential error was potentially prejudicial to defendant, where his sentencing range was between 210 and 262 months imprisonment without said enhancement.