Criminal Law

Dist. Ct. erred in denying defendant’s Rule 60(b)(6) motion to reopen his habeas proceeding, where: (1) defendant alleged in his habeas petition that his trial counsel was ineffective for failing to object to defendant’s career-offender designation; (2) defendant’s post-conviction counsel failed to keep defendant apprised about status of post-conviction proceeding that in turn prevented defendant from filing timely appeal of denial of his habeas petition; and (3) Dist. Ct. wrongly believed in rigid rule that defendant had no right to counsel on collateral review. While there are not many circumstances that would allow defendant to bring Rule 60(b)(6) motion to reopen final decision in habeas proceeding, Dist. Ct.’s categorical denial of defendant’s Rule 60(b)(6) motion without discussing how post-conviction counsel’s performance affected integrity of proceedings was in error, and defendant’s allegations in his Rule 60(b)(6) motion warranted granting of said motion. Ct. also observed that Supreme Court’s recent decision in Johnson, 135 S.Ct. 2551 suggests that defendant’s counsel during sentencing hearing may have been ineffective in failing to object to defendant’s classification as career offender.

Dist. Ct. did not commit plain error in sentencing defendant to 41-month term of incarceration on charge of illegal reentry into U.S. after having been deported, even though defendant argued that Dist. Ct. improperly increased his offense level by 16 levels for having been previously convicted of “crime of violence” arising out of 1991 Illinois conviction for aggravated criminal sexual abuse of his 15-year-old girlfriend. Defendant’s argument was rejected in Martinez-Carrillo, 250 F.3d 1101, where Ct. indicated that conviction for sexual abuse of minor qualified for instant 16-level increase because victim of said crime was younger than 18, and where defendant's Illinois conviction defined age of consent more narrowly.

Dist. Ct. erred in sentencing defendant to 30-year term of incarceration on certain bank robbery charges that was to be served consecutively to 30-year state court sentence on other charges, where Dist. Ct. only discussed one sentencing factor under section 3553(a) and did not explain why he sentenced defendant to instant long-term sentence when it also observed that defendant would probably not pose danger to community by time he fully served said sentence. Ct. also noted that defendant had raised certain mitigation arguments that were not adequately explained in Dist. Ct.’s rationale for imposing instant sentence.

Dist. Ct. did not err in finding in revocation hearing that defendant violated terms of his supervised release (that had been imposed on his drug conviction) by committing battery, where three witnesses including alleged victim testified at hearing, and where alleged victim, who identified defendant as culprit from photo array, stated that defendant barged into his apartment and beat him. Defendant waived any argument that govt. improperly introduced into evidence police report containing statements made by third-party, where defense counsel expressly stated that he had no objection to introduction of police report into evidence, and where defense counsel used said statements in attempt to impeach alleged victim. Also, Dist. Ct. could properly impose 36-month prison sentence as result of said revocation where maximum sentence that Dist. Ct. could have imposed was five years, which equaled maximum term of supervised release that could have been imposed as part of defendant's original sentence on his drug conviction.

Dist. Ct. did not err in sentencing defendant to 15-year term of incarceration on unlawful possession of firearm charge, where Dist. Ct. found that all three of defendant’s prior convictions qualified as violent felonies under Armed Career Criminal Act. While defendant argued that Dist. Ct. erred by examining relevant sentencing and plea transcripts to determine that Minnesota conviction for felony domestic violence qualified as violent felony, Dist. Ct. could appropriately examine said documents where it was unclear from judgment of conviction which Minnesota criminal code section had been violated. Moreover, examination of relevant statute indicated existence of element that concerned use or threatened use of physical force that qualified said conviction for treatment under ACCA.

Dist. Ct. did not err in denying defendant-alien’s motion to dismiss his indictment charging him with crime under 18 USC section 922(g)(5), which prohibits foreigners who are not entitled to be in U.S. from possessing firearms, even though defendant argued that section 922(g)(5) violated his 2nd Amendment rights. While Ct. of Appeals disagreed with Dist. Ct.’s holding that 2nd Amendment did not protect unauthorized aliens, it further found that Second Amendment did not preclude certain restrictions on right to bear arms, including instant restriction under section 922(g)(5), where unauthorized aliens often live outside normal system of registration and identification and are more difficult to trace.

In prosecution on charge of assault with dangerous weapon with intent to do bodily harm arising out of incident in which defendant threw heavy chair at nearby police officer at conclusion of civil rights trial, Dist. Ct. did not err in giving instructions that essentially told jury that it could convict defendant upon finding that assault had been committed with dangerous weapon and with intent to do bodily harm. Moreover, defendant’s tossing of heavy chair at victim, who was less than three feet away from defendant, was sufficient to support instant conviction where jury could properly view heavy chair as dangerous weapon. Also, defendant was not entitled to have jury instructed on simple assault charge where basis for such instruction was defendant’s claim that he threw chair during impulsive moment.