Criminal Law

Defendant was entitled to new sentencing hearing, where Dist. Ct. had imposed 97-month term of incarceration without providing adequate explanation for why it imposed instant within-guidelines sentence. Fact that Dist. Ct. stated that it had “considered all the factors of 18 USC section 3553(a),” that defendant’s crimes were “serious,” and that it hoped defendant would take advantage of rehabilitation services while incarcerated, did not require different result. Ct. also rejected govt. argument that instant explanation was adequate where defendant offered only stock arguments for lower sentence that did not require specific response by Dist. Ct.

Dist. Ct. did not err in denying defendant’s Rule 60(b)(6) motion to set aside Dist. Ct.’s prior denial of defendant’s habeas petition alleging that his trial counsel was ineffective for advising him to plead no contest to sexual assault charge and then failing to file notice of intent to seek post-conviction petition, where denial of habeas petition was based on finding that defendant had procedurally defaulted his ineffective assistance of counsel claim. Rule 60(b)(6) motion should only be granted on extraordinary circumstances, and although U.S Supreme Ct. subsequently found in Maples, 132 SCt 912 that ineffective assistance of counsel could excuse procedural default under certain circumstances, any change in law was insufficient to establish extraordinary circumstance. Moreover, decision in Maples did not apply, where defendant failed to take advantage of opportunity to cure trial counsel’s failure to pursue post-conviction relief by subsequently filing his own post-conviction petition, as advised by state court.

Dist. Ct. did not err in directing defendant to reimburse govt. $1,200 that govt. used as “buy money” in three controlled drug purchases to compensate defendant for drugs purchased by informant that formed basis of charged offense, where Dist. Ct. made such requirement as condition of defendant’s supervised release. Said directive was previously upheld in Daddato, 996 F.2d 903, as permissible condition of supervised release, and Ct. rejected defendant’s claim that imposition of instant directive to repay drug “buy money” did not further any legitimate penological goal.

Dist. Ct. did not err in sentencing defendant’s 140-month term of incarceration on drug distribution charge, where said sentence was based, in part, on Dist. Ct.’s finding defendant was accountable for more than 3 kilograms of heroin, and where defendant admitted responsibility for only 700 grams of heroin that had statutory minimum sentence of 5 years. No Alleyne violation occurred, even though 3 kilograms of heroin would support higher statutory minimum sentence of 10 years, where Dist. Ct. did not indicate that its sentencing discretion was cabined by 10-year statutory minimum sentence. Moreover, Ct. rejected defendant’s contention that under Alleyne, all drug quantity determinations under Sentencing Guidelines must be submitted to jury.

In prosecution on attempted extortion and interstate communication of ransom request, as well as three counts of unlawful drug distribution, Dist. Ct. arguably erred by admitting evidence that defendant stole $9,500 from others during drug sale in uncharged incident, since: (1) such evidence arguably established defendant's propensity to commit charged crimes; and (2) how defendant had acquired said money did not give him greater motivation to commit charged offenses. However, any error was harmless given the strength of other evidence in record. Also, one of two counts of unlawful use of firearms under 18 USC 924(c)(1)(A)(i) must be vacated, where offenses of communication of interstate ransom request and attempted extortion were premised on same, single use of firearm when defendant forced victim at gunpoint to make telephone calls demanding money for release.

Dist. Ct. erred in sentencing defendant to 15-year term of incarceration on unlawful possession of firearm charge that was based in part on finding that defendant was armed career criminal that, in turn, was based in part on Wisc. state conviction for manufacture/delivery of methamphetamine. Qualifying conviction for purposes of armed career criminal treatment requires that drug offense have maximum term of at least 10 years, and state court in instant Wisc. conviction could only have sentenced defendant to 7.5-year term. Fact that defendant’s actual incarceration for said conviction could extend beyond 10 years based on bad conduct in prison did not make said conviction eligible for armed career criminal treatment.

Dist. Ct. did not err in dismissing defendant’s habeas petition, alleging that his trial counsel was ineffective for failing to accurately inform him of deportation risk associated with defendant’s entry of guilty plea, where instant plea was entered one year prior to U.S. Supreme Ct. decision in Padilla, 559 US 356, where Ct. found that such failure could support ineffective assistance of counsel claim. Under Chaidez, 655 F.3d 694 Padilla was new rule that could not be applied retroactively to defendant’s guilty plea, and at time of instant guilty plea, lawyer’s advice about collateral matters such as deportation risks was irrelevant for claims alleging ineffective assistance of counsel under 6th Amendment.