Criminal Law

Dist. Ct. did not err in sentencing defendant to 262-month term of incarceration on drug conspiracy charge based in part on 2-level enhancement under section 2D1-1(b)(12) of USSG for maintaining premises for purposes of distributing controlled substance. Although said enhancement did not become effective until over one year after defendant committed said offense, Dist. Ct.’s use of said enhancement did not violate ex post facto clause since, under Demaree, 459 F3d 791, amendments to advisory sentencing guidelines do not implicate ex post facto clause. Moreover, record factually supported imposition of said enhancement where defendant had regular practice of receiving drugs at his home, and where defendant received massive amounts of cocaine in his home and garage that sometimes totaled 40 kilograms in one setting.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his solicitation of crime of violence conviction involving request to kill Dist. Ct. Judge, where defendant alleged that Dist. Ct. had failed to obtain defendant’s personal consent to question venire members outside of his presence (but not outside presence of his counsel). Defendant could not pursue instant claim where he did not object to procedure during trial and did not raise issue on direct appeal. Ct. also rejected defendant’s claim that his counsel was ineffective for failing to use his peremptory challenges to excuse as many African-American members of venire as possible, even though defendant argued that removal of African-American jurors would have assisted his defense in light of his racist views, where case law forbids use of race as permissible ground for removing potential jurors.

On remand from U.S. Supreme Court, Ct. of Appeals found that Dist. Ct. violated defendant’s rights under Confrontation Clause by admitting testimony from supervisor that subordinate had followed standard testing procedures in reaching conclusion that substance that defendant had distributed to police contained cocaine base since supervisor’s testimony concerned matters that were solely within subordinate’s knowledge. However, any error was harmless given other evidence such as cost and description of substance that indicated that substance was cocaine base. Moreover, supervisor could properly give expert opinion that said substance was cocaine base based upon data produced by subordinate’s testing of substance.