Criminal Law

Record contained sufficient evidence to support defendant’s bank fraud and mail fraud convictions, where said convictions arose out of defendant’s participation in scheme to inflate selling prices of homes in effort to induce banks to loan money at inflated value of homes so that defendant and others could pocket portion of loan proceeds. While defendant admitted to actions that served to advance scheme, he also claimed that he lacked requisite culpable state of mind to support jury’s guilty verdicts because others induced him into helping them without his knowledge that said individuals were committing fraud. However, Ct. rejected defendant’s claim, after noting that: (1) defendant received $80,000 for essentially laundering loan proceeds and distributing said process to others; and (2) jury could properly believe two co-defendants who testified that defendant was knowing participant in said scheme.

Ct. of Appeals denied defendant’s motion seeking leave to file second or successive petition for collateral review, where said petition essentially challenged his 226-month term of incarceration, where said sentence was based, in part, on finding that defendant qualified for adverse career offender status based on his prior attempted murder and aggravated discharge of firearm convictions. While defendant argued the he no longer qualified for career offender status treatment because his prior attempted murder conviction did not qualify as violent felony under recent decision in Johnson, 135 S.Ct. 2551, which found that residual clause of Armed Career Criminal Act was unconstitutional, Ct. of Appeals found that decision in Johnson did not apply, and that defendant’s prior attempted murder did qualify as violent felony under Application Note 1 to section 4B1.2(a)(1) of USSG.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his 200-month term of incarceration on crack distribution charge that was based, in part, on finding that defendant was career offender under section 4B1.1 of USSG, even though defendant argued that he did not qualify for such adverse treatment under recent decision in Johnson, 135 S.Ct. 2551 (which found that residual clause contained in Armed Career Criminal Act was unconstitutional), because he no longer had three prior violent felony convictions under Johnson to support his career offender status. Record showed that defendant’s prior drug conviction qualified as violent felony, and that although his prior unlawful possession of firearm conviction did not qualify as violent felony, he could not challenge prior finding that said conviction qualified as violent felony since: (1) defendant never filed direct appeal that challenged imposition of his sentence; (2) Johnson Ct. did not address issue regarding whether defendant’s unlawful possession of firearm qualified as violent felony; and (3) defendant could not use Ct.’s decision in Johnson to seek what would otherwise be untimely habeas relief to challenge finding that unlawful possession of firearm conviction qualified as violent felony. Ct. similarly noted that defendant could not use instant habeas petition to challenge finding that his prior conviction for aggravated battery of peace officer qualified as violent felony under elements clause of section 4B1.2(a)(1) since Johnson decision did not pertain to such finding.

Dist. Ct. did not err in ordering defendant to pay $8,387.43 in restitution to one victim at issue in his conviction on transporting and possessing child pornography charges, even though defendant asserted that Dist. Ct. used wrong formula to calculate said restitution order, based on contention that he was not personally responsible for producing said images. Dist. Ct. calculated restitution order by noting that defendant was 136^th offender who had been prosecuted and ordered to pay restitution to said victim, and Dist. Ct. could properly base restitution order by simply dividing victim’s total losses by 136. Ct. rejected defendant’s claim that treating him same as other 135 offenders violated Paroline, 134 S.Ct. 1710, and further found that restitution order was substantively reasonable for offender who possessed six images of victim. Ct., though, ordered limited remand for Dist. Ct. to reconsider/rewrite three conditions of supervised release that limited defendant’s access to sexually explicit images and to unsupervised contact with children, as well directed him to pay costs associated with computer monitoring, since said conditions were either too vague or were overbroad.

Dist. Ct. did not err in denying defendant’s motion to withdraw his guilty plea on bankruptcy fraud charge arising out of defendant’s failure to list in asset schedule fact that he controlled trust that owned property, even though defendant argued that his first appointed attorney coerced him into entering guilty plea based on promise that he would only receive sentence of probation. Defendant swore during plea colloquy that his plea was voluntary and raised only instant bare-bone coercion argument in Dist. Ct. during sentencing hearing. Ct. also rejected defendant’s claim that he was incompetent to enter into guilty plea due to his dementia, where both defendant’s first appointed counsel and prosecutor told Dist. Ct. that they had no reason to question his competency, and where second appointed counsel examined report of independent psychologist, who indicated that defendant was competent to plead guilty. Also, Dist. Ct.’s failure to strictly comply with Rule 11 during plea colloquy did not require reversal, where record otherwise indicated that defendant was fully apprised of his rights and consequences of his guilty plea.

Dist. Ct. did not err in denying defendant’s motion to withdraw his guilty plea to counterfeit charge, after Dist. Ct. found that defendant had failed to show “fair and just” reason for withdrawing his guilty plea, where basis for withdrawal motion was defendant’s desire to learn identity of confidential informant, who provided information to govt. to support instant counterfeit charge. Record showed that prior to filing withdrawal motion, defendant had failed to appear at original sentencing hearing, and defendant’s proposed reason for withdrawing plea did not pertain to claim of actual or legal innocence or that his plea was not knowing or voluntary. Moreover, defendant had failed to establish that his original counsel was ineffective for failing to advise him of right to seek identify of confidential informant. Fact that defendant discovered potential weakness in govt. case after entry of guilty plea did not undermine voluntary nature of guilty plea at time it was entered.