Criminal Law

Defendant was entitled to new sentencing hearing on drug conspiracy charge, where Dist. Ct., in imposing 280-month term of incarceration, increased defendant’s criminal history score by five points (which, in turn, increased applicable sentencing guideline) based on defendant’s prior Illinois aggravated unlawful use of weapon (AUUW) conviction under circumstances where applicable portions of AUUW statute had been found to be unconstitutional by Seventh Circuit and Illinois Supreme Court. Ct. rejected govt.’s argument that defendant had waived said issue by failing to raise it during prior appeal, since: (1) defendant’s failure to raise issue constituted mere forfeiture of issue that was subject to plain-error analysis because there was no evidence that defendant’s failure to raise issue was deliberate; and (2) instant sentence was based on incorrect history score, which constituted plain error. Also, defendant was entitled to remand for re-determination of terms of supervised release, where Dist. Ct. had failed to make adequate findings to support said terms.

In prosecution on charge of possession of heroin while in federal prison, Dist. Ct. did not err in denying defendant’s motion to suppress heroin contained in his pocket, after prison authorities confronted defendant after having received anonymous tip via prison phone hotline. Under Hudson, 468 US 517, defendant’s claim to privacy rights generally cannot be reconciled with concept of incarceration and needs of penal institution, and defendant removed heroin from his pocket pursuant to prison personnel directive before any search had occurred. Moreover, defendant could claim 4^th Amendment violation only if he could show that prison authority’s search involved invasion of his body. Also, defendant was not entitled to learn identity of tipster, where: (1) govt. has limited privilege to shield identity of confidential informant from criminal defendant; (2) there was no indication that tipster had participated in underlying charged offense; and (3) inmate tipsters need anonymity to allay fears of reprisal. Additionally, Dist. Ct. did not hamper defendant’s pro se defense of instant charge by denying defendant’s request for hard copy of responses to his discover requests, even though defendant claimed that he had limited access to prison computer room to view electronic discovery responses, where record showed that defendant had sufficient opportunities to view electronic responses, and where defendant had opportunity to view hard copies of discovery requests at courthouse.

In prosecution on charge of unlawful sale of firearm to known felon and for filing false report that said firearm had been stolen, Dist. Ct. erred in granting defendant’s motion to preclude govt. from introducing evidence of phone number that now-deceased purchaser gave to his probation officer that govt. linked to defendant’s phone. While Dist. Ct. found that probation officer’s report containing phone number constituted inadmissible hearsay, Ct. of Appeals found that said report was admissible under “residual hearsay” exception under Rule 807, since, along with other requirements for admission under 807 that both parties agreed were met, instant report that was signed by purchaser was trustworthy in spite of purchaser’s criminal history, since purchaser: (1) had personal knowledge of his own cell phone number; (2) was unavailable to testify at defendant’s upcoming trial; and (3) lacked motivation to lie about his cell phone number where he knew probation officer and others would be contacting him on said number throughout his probation.

Defendant was entitled to new sentencing hearing on his conviction on several child pornography production counts, where: (1) Ct. of Appeals had previously remanded matter for full resentencing after having found errors in Dist. Ct.’s original imposition of certain terms and conditions of defendant’s supervised release; and (2) Dist. Ct. only addressed defendant’s terms and conditions of supervised release at first remand. As such, defendant’s original 40-year term of incarceration could be raised or lowered during new sentencing hearing after considering new terms/conditions of supervised release. Ct. further rejected defendant’s claim that govt. had breached plea agreement to recommend 35-year term of incarceration, where: (1) govt. had made such recommendation during original sentencing hearing; and (2) Dist. Ct. refused to consider change in defendant’s term of incarceration during first remand of matter. Dist. Ct. must also impose upon remand mandatory and discretionary terms of supervised release, rather than wait for said imposition until time closer to defendant’s release from prison.

Record contained sufficient evidence to support defendant’s conviction on charge of bank fraud, making false statements to bank, money laundering and pension theft, where: (1) with respect to $300,000 loan, jury could properly find that defendant lied to bank officials that he would not use said loan proceeds for personal expenses, even though defendant argued that said payment to him was business-related shareholder distribution; and (2) although defendant did not make any direct statements to bank officials with respect to use of proceeds for second loan, jury could properly find that defendant directed third-party to make false statements regarding use of proceeds so as to support his convictions on second loan. However, remand was required for new sentencing hearing, where Dist. Ct. improperly included $300,000 in over $1 million loss calculation under circumstances where defendant had repaid $300,000 prior to detection of any fraud.

Defendant waived claim on appeal that his life term of supervised release on certain child pornography-related charges was improper because Dist. Ct. had failed to give adequate explanations for length of his supervised release or for imposition of certain standard and special conditions of supervised release. Presentence report, which was provided to defendant weeks before sentencing hearing, included all proposed terms of supervised release that were actually imposed, and defendant’s counsel answered “no” to Dist. Ct. inquiry as to whether defendant had any legal objection to or need for future elaboration of its reasons for instant conditions of supervised release.

Dist. Ct. did not err in sentencing defendant to 188-month term of incarceration on drug conspiracy charge, where said sentence was based, in part, on finding that defendant was eligible for career offender treatment due to prior Illinois enhanced domestic battery conviction, which probation office had characterized as crime of violence. Ct. rejected defendant’s argument that said conviction was not crime of violence because, according to defendant, it did not include use of physical force as element of said offense, after noting that ct. in Holder, 652 F.3d 762, found that domestic battery under Illinois law requires proof of physical force.

Dist. Ct. erred in finding that defendant was not eligible for reduction of his 60-month, below guideline sentence on drug conspiracy charge under circumstances where: (1) defendant was originally sentenced to 120-month term of incarceration, which was below applicable guideline range of 188-235 months; (2) defendant’s sentence was subsequently reduced to 60 months pursuant to govt. motion alleging that defendant provided substantial assistance to govt.; and (3) sentencing guidelines retroactively reduced defendant’s original guideline range to 151-188 months. Policy statement contained in section 1B1.10(b)(2)(B) advised that reduction “comparatively less than amended guidelines range” is possible for defendants who originally received below-guidelines sentence, and defendant could potentially receive 48-month sentence, where Dist. Ct. should have calculated ratio of current 60-month sentence to his original guideline range of 188-235 months (which turns out to 31.9 % of 188 months), and then multiply said fraction by bottom of amended guideline range (151 months), which is approximately 48 months. Remand, though, was required for determination as to whether defendant deserved any reduction.

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on drug distribution charge, even though defendant argued that said sentence was inappropriate because Dist. Ct. applied career offender enhancement based, in part, on Minnesota robbery conviction, which, according to defendant, did not qualify as crime of violence under section 4B1.2(a)(1). Ct. found that said conviction qualified as crime of violence where Minnesota statute had element requiring proof that defendant conveyed force capable of causing pain or injury. Ct. further rejected defendant’s claim that Minnesota statute was broader than language contained in applicable sentencing guidelines because it punishes force applied against “any person” (including individual threatening to injure himself), while section 4B1.2(a)(1) only punishes force applied against “person of another.”