Criminal Law

Dist. Ct. did not err in denying defendant-alien’s motion to dismiss his indictment on charge of illegal presence in U.S. after having been removed, even though defendant argued that Dist. Ct. erred in determining that his 2004 removal could form basis for instant charged offense because, according to defendant, IJ improperly found that he was subject to removal due to Idaho conviction on charge of “injury to child.” Record showed that defendant had waived any challenge to his 2004 removal order, where: (1) defendant had signed document withdrawing his right to appeal 2004 removal order; and (2) defendant’s failure to exhaust his administrative remedies with respect to said removal order precluded him from challenging 2004 removal order in instant proceeding.

Dist. Ct. did not err in sentencing defendant to 78-month term of incarceration on tax fraud charge and failure to appear charge under 18 USC section 3146(a)(1) (based on defendant’s absence on date of original sentencing hearing), even though Dist. Ct. based said sentence, in part, on 3-level enhancement under section 3C1.3 of USSG arising out of defendant‘s failure to appear at sentencing hearing. Ct. rejected defendant’s argument that said enhancement constituted improper double counting, even though Dist. Ct. included in instant sentence separate term under 28 USC section 3147 for failure to appear. Moreover, sentencing guidelines expressly allow cumulative enhancements for same misconduct, and Congress through section 3147 and section 3C1.3 of USSG permits cumulative punishment based on defendant’s failure to appear while released. (Re-issued opinion)

Dist. Ct. erred in sentencing defendant to 76-month term of incarceration on unlawful possession of firearm charge, where said sentence was based in part on 4-level enhancement under section 2K2.1(b)(6)(B) of USSG that required showing that defendant’s possession of firearm was in connection with another felony, which govt. argued was drug distribution offense that defendant had originally been charged with in addition to instant firearm charge. While record showed that police found instant firearm in defendant’s home, along with drugs, record did not support Dist. Ct. finding that said firearm facilitated defendant’s drug distribution activities, where: (1) record failed to show that defendant had purchased said firearm with drugs; and (2) Dist. Ct. failed to make any finding that firearm was in close proximity to area where drugs were found in defendant’s home or that significant amount of drugs were sold from defendant’s home so as to support finding that firearm facilitated defendant's drug distribution operations.

Dist. Ct. did not err in sentencing defendant to 30-month term of incarceration on Hobbs Act robbery charge, followed by statutory minimum consecutive seven-year term of incarceration under section 924(c)(1) on charge of brandishing firearm during crime of violence, even though defendant argued that his Hobbs Act sentence should be lower since Dist. Ct. should have been free to take into account fact that he was subject to instant mandatory consecutive minimum sentence. Under Roberson, 474 F.3d 432, Dist. Ct. must determine appropriate sentence for underlying crime independent of section 924(c)(1) consecutive sentence add-on, and defendant failed to present any compelling reason to overturn Roberson.

In prosecution on armed robbery charge, Dist. Ct. did not err in denying defendant’s motion to suppress confession to said charge, even though defendant argued that at time he made said confession, he was in custody of police officials, and that said officials had failed to give him any Miranda warnings. Dist. Ct. could properly find that defendant was not in custody at time of confession so as to require any Miranda warnings, where: (1) police officials encountered defendant, who was known suspect in said robbery, on street; (2) defendant agreed to voluntarily go with officials to FBI office to talk about said robbery; (3) interrogation of defendant took place in conference room under conditions in which defendant, who was not under any physical restraints, could leave at any time; (4) at end of two hour interrogation, defendant confessed to crime and inquired as to when arrest warrant would be issued; and (5) officials drove defendant back to location of his choice after interrogation.