Criminal Law

Ct. of Appeals denied defendant's petition for rehearing of its order denying defendant's Rule 33 motion seeking new trial on drug charges, as well as his motion seeking leave to file successive habeas petition where: (1) defendant was originally sentenced under existing law as career offender based in part on finding that his prior conviction for walkaway escape was qualifying felony for career-offender adjustment; and (2) subsequent cases of Chambers and Begay, where U.S. Supreme Ct. held that passive offense of failing to report to penal facility did not constitute qualifying felony for purpose of sentencing under Armed Career Criminal Act (ACCA), constituted "new evidence" of defendant's innocence. Defendant is not entitled to any relief on collateral review where Chambers/Begue cases did not announce new constitutional rule but rather interpreted statutory terms, and where defendant was not sentenced under ACCA. Ct. further observed that defendant might have obtained relief via certiorari petition had he asserted Chambers/Begay issue in his direct appeal. Moreover, defendant's Rule 33 motion was not proper vehicle for seeking essentially collateral relief of his sentence.

Dist. Ct. did not err in sentencing defendant to 210-month term of incarceration on charge of brandishing firearm during course of violent crime that involved defendant's scheme to kidnap third-party. Ct. rejected defendant's claim that Dist. Ct. improperly calculated sentence as if defendant had pleaded guilty to dismissed charge of attempted kidnapping since Dist. Ct. could impose more severe sentence on basis of relevant conduct concerning commission of attempted kidnapping by preponderance of evidence. Moreover, Dist. Ct. could properly deny proposed three-level reduction under section 2X1.1 of USSG where defendant had committed all acts necessary to complete underlying offense of kidnapping and could properly look to fact that defendant was on conditional release at time of charged offense to apply sentence outside guideline range. Dist. Ct. also did not err in denying defendant's argument that reduced sentence was appropriate based on fact that defendant suffered from Asperger's Syndrome.