Criminal Law

Dist. Ct. abused its discretion in denying defendant’s motion under 18 USC section 3664(k) to modify terms of his $20,038.52 restitution obligation due to change in his financial circumstances while in prison. Record showed that prior to defendant filing instant motion, government successfully moved to have Bureau of Prisons to turn over $600 from defendant’s $1,100 prison account to partially satisfy restitution order, and that defendant became unable to earn money while in prison due to recent hip replacement surgery. While Dist. Ct. based denial on defendant’s failure to identify source of authority to modify restitution order, Ct. of Appeals found that section 3664(k) allowed Dist. Ct. to modify restitution order, and that remand was required to allow Dist. Ct. to address defendant’s motion, where, as here, defendant did not seek to alter fact or amount of restitution order or to usurp Bureau’s exclusive authority to impose pre-release payment plan.

Dist. Ct. did not commit plain error in sentencing defendant to 15-year term of incarceration on drug distribution charge, where Dist. Ct. found that defendant’s 2003 Indiana conviction on charge of conspiracy to commit armed robbery qualified as “serious violent felony” under 18 USC sectio3559(c)(2)(f), which subjected defendant to 15-year mandatory minimum sentence. While defendant argued on appeal that Indiana’s crime of conspiracy was not categorical match to federal conspiracy counterpart, defendant forfeited said argument because he failed to raise it in Dist. Ct. Moreover, Dist. Ct. did not plainly err in finding that Indiana conspiracy to commit armed robbery statute was violent felony, where it was not obvious that federal generic definition of conspiracy included or excluded unilateral theory of conspiracy that was included in Indiana statute.

In prosecution on drug conspiracy and drug distribution charges, defendant was not entitled to new trial, even though defendant argued that she labored under conflict of interest with her trial attorney. While defendant’s counsel stated during opening statement that third-party would testify that he never saw defendant in possession of large quantity of drugs, government alerted Dist. Ct. on second day of trial that it would not call third-party as witness because third-party had recently claimed that defendant’s counsel had a discussion with third-party months earlier and accused third-party of lying to grand jury and encouraging third-party to change his testimony. During discussion with defendant’s counsel and Dist. Ct., defendant’s counsel denied third-party’s claim and stated that he would not call third-party as witness because he had no idea what third-party would say. Ct. of Appeals found that no actual conflict of interest existed, where it was in the interest of both defendant and defendant’s counsel to not have third-party testify, since third party posed as risky witness given his recent claim that defense counsel had urged him to change his testimony.

Dist. Ct. did not abuse its discretion in sentencing defendant to within Guideline, 360-month term of incarceration on drug charges concerning defendant’s role in large-scale methamphetamine trafficking conspiracy. While defendant argued that said sentence was unreasonable, government presented evidence to show that defendant was responsible for more than 105 pounds of methamphetamine during course of conspiracy, and that certain batches of said drug had caused death of three purchasers. Moreover, Dist. Ct. is entitled to deference assessing demeanor and credibility of witnesses, especially where instant sentence was within guidelines for defendant’s charged offenses. Also, Dist. Ct. gave adequate explanation, when imposing defendant’s harsher sentence than what it gave to other members of instant conspiracy. Fact that only three out of ten witnesses testified that defendant had threatened them with violence did not preclude Dist. Ct. from imposing enhancement under section 2D1.1(b)(2) of USSG.

Dist. Ct. did not err in sentencing defendant to 120-month term of incarceration on unlawful possession of firearm by felon charge, even though said sentence was based, in part, on imposition of two enhancements for trafficking firearms to individual whose possession of firearms defendant knew or had reason to know would be unlawful, and where defendant’s offense involved at least eight firearms. Both enhancements were supported by record, where record showed that: (1) defendant was transferring firearms to person whom defendant initially knew was on parole, and (2) defendant offered to sell five firearms that he had in his possession and sought to obtain three additional firearms for future sale. Fact that 13 months had elapsed between first and second firearms sales to individual on parole did not preclude Dist. Ct. from finding that instant trafficking enhancement applied to defendant with respect to both sales.

Dist. Ct. did not err in sentencing defendant-transgender woman to 18-month term of incarceration plus 18 months of additional supervised release, after Dist. Ct. revoked defendant’s term of supervised release. While defendant argued that Dist. Ct. committed procedural error by failing to adequately consider her argument that continued incarceration was inappropriate, where 40 percent of transgender women experience sexual assault while incarcerated, record showed that Dist. Ct. actually considered defendant’s argument, but rejected it in its discretion in light of defendant’s violations of her prior term of supervised release, which included loss of placement at half-way house due to use of drugs, missed drug tests and flight from Wisconsin after incident in which defendant stabbed man in what defendant claimed was self-defense.