Criminal Law

Dist. Ct. did not err in re-sentencing defendants to 360-month and 240-month terms of incarceration after both defendants had received remands for reconsideration of sentences under Kimbrough. While one defendant argued that Dist. Ct. erred in attributing to defendant drug sales that averaged 1.5 ounces of crack over 10-month period of time, Dist. Ct. could rely on testimony of seller to support instant calculation even though seller was unsure of year in which he began said sales. Moreover, Dist. Ct. could extrapolate average per-day amount to larger period of time.

In Rule 35(b) motion to reduce defendant's sentence due to substantial assistance to law enforcement, Dist. Ct. did not err in only reducing defendant's sentence from 216 to 168-months incarceration instead of 120-month sentence that defendant had sought. While defendant argued that Dist. Ct. failed to consider section 3553(a) factors when making only partial reduction, Rule 35(b) hearing does not provide opportunity for full re-sentencing, and thus Dist. Ct. was not required to consider section 3553(a) factors in instant proceeding. Moreover, record showed that defendant's counsel failed to make any specific request in Dist. Ct. for 120-month sentence so as to trigger any claim that instant 168-month sentence was erroneous.

In prosecution on bank fraud charges stemming from scheme in which defendant overcharged bank for installing and maintaining security devices, remand was required for reconsideration of Dist. Ct.'s imposition of $16,241,202 restitution order, where Dist. Ct. based said order on defendant's gain from scheme rather than loss attributed to victim. On remand, Dist. Ct. may consider price of replacement contract and compare said price to what victim paid to defendant for comparable services. Defendant, though, may rebut said loss through evidence indicating that quality or quantity of services rendered by defendant were superior to services rendered under replacement contract.

Dist. Ct. did not err in denying defendant's request to withdraw his guilty plea to drug charge, even though defendant claimed that withdrawal was appropriate where: (1) Dist. Ct. attributed amount of drugs that was more than amount involved in charged offense; and (2) Dist. Ct. had found defendant to be career offender without proper notice being given to defendant. Record showed that defendant entered plea without having secured any plea agreement, and thus had no guarantee as to amount of relevant conduct that could be attributed to defendant. Also, defendant's status as career offender made instant relevant conduct determination by Dist. Ct. irrelevant. Moreover, defendant could not base plea withdrawal on claim that he was under belief that career offender status would not be imposed due to fact that section 851 notice given by govt. contained only one prior conviction where: (1) notice requirements under section 851 do not apply when govt. seeks career status, and thus govt. was not required to give defendant notice of additional convictions that might trigger career offender status; and (2) defendant had other qualifying convictions to support career offender status finding and had discussed with his counsel possibility of being sentenced as career offender.

In prosecution on conspiracy to commit bribery charge arising out of scheme in which defendant, as supervisory building inspector, conspired with others to accept bribes in exchange for providing approvals on various construction projects, Dist. Ct. erred in admitting gift list that identified defendant and others as recipients of improper payments, where witness attempting to authenticate said list did not know how list was generated or who authored list. However, error was harmless where Dist. Ct. properly admitted other evidence pertaining to gifts on said list where said testimony established defendant's intent in charged offense, as well as his relationship with gift-giver. Dist. Ct. also did not abuse its discretion in excluding other recorded conversations between defendant and gift-giver, which showed that defendant had told gift-giver to go through appropriate channels to obtain relief on construction projects, since evidence that defendant had acted lawfully on other occasions is inadmissible to prove that defendant had acted lawfully with respect to incidents at issue in charged offense.