Criminal Law

Dist. Ct. erred in sentencing defendant to 61-month term of incarceration on aggravated identity theft and conspiracy to misuse Social Security number charges, where said sentence was based in part on two-level enhancement for fraudulent use of foreign passport. Under sentencing guidelines, Dist. Ct. could not impose said enhancement where, as here, defendant was convicted of aggravated identity theft, which had two-year mandatory consecutive sentence that already accounted for misuse of “means of identification” that in turn involved misuse of foreign passport at issue in enhancement.

Dist. Ct. lacked jurisdiction to consider defendant’s appeal of his 71-month sentence on firearm charge, where defendant filed his notice of appeal 8 days beyond applicable deadline for doing so. Moreover, while defendant filed motion to reconsider sentence within deadline for filing notice of appeal, said motion did not serve to toll said deadline since motion to reconsider sentence under Rule 35 does not suspend time for filing notice of appeal.

Dist. Ct. did not err in granting defendant’s habeas petition challenging his murder conviction on grounds that his trial counsel was ineffective for failing to call certain witness who was available at his trial and could have placed him in area away from fatal fire that killed victim. Failure of trial counsel to call said witness was not part of reasonable trial strategy, where trial counsel had not interviewed said witness prior to trial. Moreover, defendant successfully showed that there was reasonable probability that outcome of trial would have been different, since said witness would have bolstered other testimony (that trial court found to be weak) that placed defendant in different area. Moreover, trial counsel could not just rely on alleged incredible nature of state’s witness to form defense of defendant’s case, and record otherwise showed that defense counsel was unprepared to call any witnesses once his motion for judgment of acquittal had been denied.

Defendant could not properly proceed on section 2241 habeas petition that challenged his 180-month sentence that was based in part on finding that defendant qualified as armed career offender based in part on prior Illinois conviction for unlawful possession of weapon by felon that Dist. Ct. originally determined was “violent felony” for purposes of applying Armed Career Offender Act. Defendant’s argument was previously rejected by Ct. of Appeals on direct appeal, and Dist. Ct. denied similar argument in prior section 2255 petition. Section 2255(e) restricts prisoner from submitting instant habeas petition where prisoner’s prior habeas petition had been denied, and where prior habeas petition was not inadequate means to test legality of his detention.

Dist. Ct. did not err in denying defendant’s section 2241 petition challenging his 235-month sentence on unlawful possession of firearm charge, where said sentence was based in part on finding that defendant qualified as armed career criminal due to three of his prior convictions that included conviction for criminal vehicular operation that resulted in substantial bodily harm. While under Begay, said conviction no longer qualified as violent crime for purposes of Armed Career Criminal Act (ACCA), one of defendant’s additional convictions, i.e., fleeing police officer in vehicle, which had not been considered as violent crime at time of his sentencing, was now considered violent crime so as to establish defendant’s eligibility for treatment under ACCA. Ct. rejected defendant’s claim that case law that rendered fleeing officer in vehicle as qualifying offense under ACCA could not be retroactively applied to him.