Criminal Law

Dist. Ct. did not err in sentencing defendant to 160-month term of incarceration on wire fraud charge stemming from scheme in which defendant stole $700,000 from clients, who had set aside said funds for medical expenses. While defendant argued that said sentence was unreasonable in light of his mitigation and in light of fact that co-defendant, who appropriated $6 million in said funds, received 180-month term of incarceration, Dist. Ct. could properly impose instant below-guideline sentence given serious nature of underlying crime, and given defendant’s choice of victims. Moreover, Dist. Ct. adequately addressed defendant’s mitigation evidence.

Dist. Ct. denied defendant’s habeas petition and declined to issue certificate of appealability after certifying under 28 USC section 1915(a)(3) that defendant’s appeal had been taken in bad faith. Ct. of Appeals rejected defendant’s claims that prisoners need not ever pay filing or docketing fees in appeals from collateral proceedings, and that Dist. Ct.‘s certificate was irrelevant. It also directed defendant to file within 21 days any motion seeking leave to proceed in forma pauperis that demonstrated inability to pay applicable $455 appellate fees and contained substantial showing in underlying appeal that he was denied constitutional right.

Dist. Ct. did not err in sentencing defendant to 108-month term of incarceration on drug distribution charge, even though Dist. Ct. had imposed six-level enhancement under section 3A1.2(c)(1) of USSG for substantial risk of serious bodily injury arising out of defendant’s two punches to arresting officer’s head. While defendant argued that said punches did not constitute substantial risk of serious injury, Ct. of Appeals found that Dist. Ct. did not clearly err in imposing enhancement, which did not require finding that defendant actually inflicted serious injury, or that defendant used deadly weapon. Moreover, Dist. Ct. could look to risk of potential injury caused by blow to victim’s head, as well as other circumstances, which indicated that punches occurred during physical struggle between defendant and officer that resulted in defendant briefly escaping before being tracked down by police dog.