Criminal Law

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on drug distribution charge, even though defendant had argued that Dist. Ct. did not adequately explain its reason for rejecting his contention that he should not be sentenced as career offender. Instant sentence was below applicable guideline for non-career offender, and Dist. Ct. responded to defendant’s counsel’s question as to why it applied career offender guideline by stating that defendant’s criminal conduct justified application of career offender guideline. Moreover, record showed that defendant had engaged over period of years in escalating pattern of drug dealing that warranted application of career offender guideline. Ct. further noted that defendant’s argument was essentially challenge on wisdom of career offender guideline that Dist. Ct. was not required to address.

Dist. Ct. did not err in sentencing defendant to 188-month term of incarceration on drug distribution charge, based in part on finding that defendant was career offender, even though defendant argued that he was entitled to downward departure because one prior conviction (i.e., residential burglary) used to establish his career offender status did not concern act of violence. Defendant’s residential burglary offense qualified as predicate felony for career offender status, and record showed that Dist. Ct. explicitly considered defendant’s downward departure argument, but found it to be without merit due to other factors favoring high-end guideline sentence. Moreover, defendant waived any argument that Dist. Ct.’s explanation for sentence was inadequate, where defendant’s counsel said “no” in response to Dist. Ct.’s inquiry as to whether any argument in mitigation had been overlooked.

Dist. Ct. did not err in sentencing defendant to 300-month term of incarceration on mail fraud charge, which was based on finding that defendant’s offense level was 40 due to fact that scheme produced net loss of $34 million, that said scheme concerned large number of victims, and that defendant used sophisticated means to operate scheme. While defendant argued that Dist. Ct. did not provide sufficient detail as to how it calculated offense level, no remand was required where: (1) Dist. Ct. indicated agreement with calculation of offense level as contained in pre-sentence report; and (2) defendant failed to assert that pre-sentence report was wrong in any steps it took to calculate his offense level.

Dist. Ct. did not err in sentencing defendant to 114-month term of incarceration on drug conspiracy charge, after finding that defendant qualified as career offender, even though Dist. Ct. had suggested during sentence hearing that defendant’s sentence would have been lower except for description in presentence report regarding two of defendant’s prior drug convictions. While defendant argued that Dist. Ct. should not have relied upon said descriptions, since they were nothing but hearsay statements contained in unreliable police reports that concerned drug quantities and cash recovered by police, Dist. Ct. could properly rely upon said reports, where: (1) rules of evidence do not apply to sentencing proceedings; and (2) defendant presented no evidence to show that information contained in police reports was inaccurate.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his Wisc. conviction on charge of use of computer to facilitate sex crime, even though defendant argued that his conviction violated his due process rights, where Wisc. appellate court rendered unforeseeable interpretation of statute’s belief and intent elements. Wisc. appellate court could properly find that: (1) plain language of Wisc. statute appropriately informed defendant that he could be found guilty on proof that he “had reason to believe” that victim was underage; and (2) record contained sufficient evidence to show that defendant had reason to believe that on-line victim was underage, where police officer posing as 14-year old victim made repeated on-line representations that he was 14 years old. Ct. rejected defendant’s argument that “reason to believe” element was constitutionally impermissible given specific intent element in instant offense and further found that jury could properly reject defendant’s claim that he actually believed that on-line victim was adult.

In prosecution on criminal contempt charge arising out of defendant’s misrepresentations on T.V. infomercials about his weight loss book that, according to govt., violated terms of prior Dist. Ct. order, Dist. Ct. did not err in denying defendant’s motion to dismiss his case under Speedy Trial Act (Act) under circumstances where: (1) 214 non-excluded days had elapsed from govt. agreement to prosecute first show cause order that contained penalty cap of no more than six months; and (2) Dist. Ct. then withdrew initial show cause order and issued second show cause order that contained no penalty limit, which ultimately resulted in guilty verdict and 10-year sentence. Act did not apply to first charge since maximum penalty of six months was akin to Class B misdemeanor that is not subject to Act. Moreover, while Act applied to second contempt charge, there was no violation, since trial occurred within 70 non-excludable days from govt.‘s agreement to prosecute second show cause order, and since applicable 70-day period never started on first show cause order.

Dist. Ct. did not err in dismissing defendant’s habeas petition seeking to vacate his 168-month sentence on drug conspiracy and drug distribution charges, following entry of defendant’s guilty plea to said charges, where defendant argued that his counsel was ineffective for, among other things, failing to file direct appeal. Instant plea agreement contained waiver of any right to appeal defendant’s conviction or sentence, and under Nunez, 546 F.3d 450, 6^th Amendment does not require attorney to disregard instant waiver by complying with defendant’s request to file appeal. Moreover, defendant failed to assert that his plea agreement or his appeal waiver was involuntary or unknowing.