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In Rodolfo Hernandez v. USA, This appeal required the court of appeals decide whether the district court abused its discretion when it refused to conduct an evidentiary hearing to determine whether Rodolfo Hernandez’s counsel provided effective assistance when she incorrectly advised him about the immigration consequences of his guilty plea. Hernandez pleaded guilty to one count of conspiring to possess with the intent to distribute at least 1,000 kilograms of substance containing marijuana, and three counts of possession with intent to distribute at least 100 kilograms of a substance containing marijuana. After defendant entered his plea but before his conviction became final, the Supreme Court decided Padilla v. Kentucky. Which held that “counsel must inform her client whether his plea carries a risk of deportation.” He later moved to vacate his sentence based on ineffective assistance of counsel. The district court denied his motion without an evidentiary hearing.

During Hernandez sentencing hearing, his counsel asked the district court to explain the possibility of an immigrant detainer. The district court refused to answer the question because the court had absolutely no control over what Immigration and Customs Enforcement does. The district court sentenced Defendant Hernandez to 120 months of incarceration and five years of supervised release. After the Department of Homeland and Security issued an immigration detainer during his incarceration, Hernandez filed a pro se motion to vacate his sentence were he alleges that his “defense counsel advised him that based on her past experiences, there is a substantial likelihood that he would not be deported from the United States to Cuba”. Also that his “defense counsel advised him that based on her experience, detainers generally not issued for Cuban defendants.” He alleged that, absent counsel’s grossly incorrect advice he would not have entered a plea of guilty but would have instead in proceeding to trial. He later alleged that he has “been in the United States with his family almost his entire life, and therefore, he would not have agreed to plead guilty which will automatically remove him from his family and from a Country he has called home all of his adult life.” The district court denied his motion without an evidentiary hearing because he entered his guilty plea, more than one year before the Supreme Court’s decision in Padilla, and counsel failure to anticipate a change in the law does not constitute ineffective assistance.
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In U.S. v. Bailey, defendant appealed his convictions for sexual exploitation of a child and possession of child pornography in violation of 18 U.S.C § 2251(a) and 18 U.S.C § 2252A(a)(5)(B) respectively. He argued that the indictment was insufficiently clear and that there was insufficient evidence to support his conviction on one of the counts.

After a bench trial, the district court made findings of fact that defendant video recorded the child victim after living her note instructing where and when to masturbate. He was seen in one recording giving the victim money in order to induce her to masturbate. He is also heard in the recording, telling her that she had better hurry up and masturbate.

First he challenges the sufficiency of the indictment. Bailey concedes that his challenge is made for the first time on appeal, and therefore the court of appeals review is limited. His challenge has two parts. First is count one through four. He argues that the language of each of said counts is identical with the exception of the time frame during which the alleged crime occurred. Because there was overlap in those time periods, he argues that he had insufficient factual information to tell which count charged the crime depicted in Government exhibits, he argues that he had insufficient notice to prepare his defense and also that he would be unable to invoke the protections of double jeopardy in the event of a future prosecution. The court of appeals rejected his arguments because it can prevail only if he could show he suffered actual prejudice as a result of the indictment and he cannot do this. He knew precisely which of the four video images were charged in each count. The images on each of the four Government exhibits were distinctive, and readily distinctive from the others and he will have no trouble obtaining double jeopardy protection in the event of any future prosecution.
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In U.S. v. Kopp, the defendant registered as a sex offender in the Northern District of Georgia, and then moved to Daytona Beach, Florida, where he failed to update his registration. A grand jury then indicted Kopp in the Northern District of Georgia for failure to register as sex offender. Kopp moved to dismiss the indictment for improper venue. The federal court denied his motion. Kopp then conditionally pleaded guilty. Later he violated his supervised release, and federal court sentenced him to 16 months of imprisonment.

Kopp was convicted in a court of Hungary for “Rape of an Individual Not Older than Twelve”. As an American citizen he requested a transfer under the Convention on the Transfer of Sentenced Persons, Council of Europe. United States Parole Commission required him to serve his prison sentence followed by a term of 36 months of supervised release. Kopp was certified as a sexually dangerous person required to register as a sex offender. Kopp begun his term of supervised release in the Northern District of Georgia. Kopp probation officer directed him to complete a sex offender registration, and he updated his registration in Georgia until December 2011. In 2012 Kopp removed the electronic monitoring device that he wore as a condition of his supervised release and left the halfway house in Georgia where he resided. A month later police officers encountered him in Daytona Beach, Florida. Kopp never registered as a sex offender in Florida, nor did he inform the authorities in Georgia that he was moving to Florida.

Kopp was taken to Northern District of Georgia where he was indicted for failure to register as a sex offender. He moved to dismiss the indictment for improper venue. He argued that venue did not lie in Georgia because he failed to register in Florida. The District court denied the motion. The district court sentenced him to 18 months of imprisonment followed by three years of supervised release.
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In U.S. v. Estrada, Defendant Rudy Estrada pled guilty to illegal re-entry after being deported subsequent to an aggravated felony conviction. He now appeals the 48-month sentence imposed by the district court, arguing that the district court erred in applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). This particular enhancement is triggered when, among other things, a defendant has been convicted of a crime of violence prior to his deportation. The district court found that Defendant’s prior conviction was for a crime of violence within the meaning of enhancement.

In August 2004, Defendant, a Mexican citizen, was convicted in a Florida state court of throwing a deadly missile, in violation of Florida statute § 790.19. Subsequently, Defendant was deported to Mexico, but he later illegally reentered the U.S. he later was arrested on state drug charges, and he thereafter pled guilty in the criminal case that is now before us. Prior to sentencing, the probation office prepares a presentence report that calculated a base offense level of 8, a 16-level enhancement for a previous crime of violence, and a 3-level reduction for acceptance of responsibility. Prior to and during his sentencing gearing, Defendant objected to the 16-level crime of violence enhancement. Defendant argued that this prior Florida statute, § 790.19 conviction did not qualify as a crime of violence under § 2L1.2(b)(1)(C). The commentary for this section of the Guidelines defines “crime of violence” as either being one of the enumerated offenses set out therein or any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another”. Defendant argued that it did not have an element that required the use, attempted use, or threatened use of physical force against another person. Defendant, however, conceded that an 8-level aggravated felony enhancement pursuant to § 2L1.2(b)(1)(C) was appropriate in lieu of the 16-level enhancement.

The court of appeals applies Estrella Case in this saying that Estrella held that a conviction under Florida Statute § 790.19 is not categorically a crime of violence for purposes of application of the 16-level crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii). Estrella also concluded that § 790.19 is a divisible statute and hence use of the modified categorical test is appropriate. To apply the test here, court of appeals examine any Shepard-approved documents to see whether those documents identify the particular mens rea element upon which the prior conviction of the Defendant in this case rested. Charging Defendant with § 790.19, which information charges that Defendant “wantonly or maliciously” threw a deadly missile at an occupied vehicle. As Defendant nolo contendere plea was to an information charging him in the disjunctive with wantonly or maliciously committing a particular act in violation of § 790.19, Court of appeals is likewise unable to determine on which mens rea element Defendant’s conviction was based. For that reason, the Court of Appeals concured with Defendant’s argument and acceptd the government’s concession that the district court erred in concluding that this prior conviction was for a crime-of-violence offense Court of appeals vacate and remand.

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In U.S. v Payne, Defendant Payne appealed his sentence for bank robbery and possession of a firearm, arguing that the district court violated his Sixth Amendment rights when it sentenced him to the mandatory minimum sentence on a firearm charge. Payne pleaded guilty to federal crime of bank robbery where he served as the getaway driver, in violation of 18 U.S.C. § 2113(a), (d), and one count of possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). He received a 30-month sentence on the bank robbery count and a mandatory minimum 84-month sentence on the firearm count. At his plea hearing where he pleaded guilty to both counts of the indictment, Payne admitted that he had knowingly participated in an armed robbery of a bank.

Based on the fact that one of Payne’s accomplices had pointed a pistol at a bank teller during the robbery, the Presentence Investigation Report (PSR) concluded that Payne was subject to an 84-month mandatory minimum sentence to be served consecutive to his sentence for the bank robbery charge. Because his indictment had not specifically mentioned the brandishing provision of §924(c)(1)(A) and he had never admitted at his plea hearing, he asserted that sentencing him to the mandatory minimum would violate his Fifth Amendment due process rights and his Sixth Amendment rights.

Payne’s primary contention on appeal was that the district court violated his Sixth Amendment rights, when it sentenced him to the mandatory minimum sentence alleging an error under Alleyne v. United States. If an Alleyne error occurred, the court of appeals would vacate Payne’s sentence unless the error was harmless. Under Alleyne, any fact that increases the mandatory minimum sentence for a crime must be admitted by a defendant or be submitted to a jury and found beyond a reasonable doubt evidence. In this case, he did not admit at his plea hearing that the firearm had been brandished during the bank robbery that he committed, because he was waiting in the car for the getaway. Nevertheless the district court sentenced him to a mandatory minimum sentence based on the evidence presented where a bank teller testified that one of the defendants had pointed a pistol in her face during the robbery and the defense didn’t rebut the teller’s testimony.

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In U.S. v Watkins, the defendant appealed the court’s denial of his motion to suppress evidence in violation of the Fourth Amendment obtained by the government as a result of a warrantless search of his computers and its denial of his motion for reconsideration and to reopen the evidentiary hearing. On October 24, 2009, three days after a girl body was found in a Georgia landfill, and detectives visited Watkins for permission to search his computer; he agreed. Later that day, Watkins agree to meet with a detective from the Clay County Sheriff’s office where Watkins expressed a willingness to help in any way he could about the disappearance of the girl. As the interview progressed, Watkins stated that he had used LimeWire to download and view child pornography approximately one hundred times. The detectives assured Watkins that he was not searching for his child pornography but only for clues to the girl’s murder and stated “I am not worried about your files and all that kind of stuff. I’ve got my own private stuff on my computer, you know what I am saying?” Watkins subsequently read and signed a voluntary consent form authorizing full search of his computers.

The Detective and an evidence technician went to Watkins home to meet Mrs. Watkins, explained that Watkins had signed a form consenting to a search of the computers in the home and asked for her consent to search the computers as well. She agreed, although she later claimed that she did so with the understanding that the search was limited to the murder investigation and the website the children had visited. The consent form signed by Mrs. Watkins was identical to the one Watkins had signed at the Sheriff’s office. Watkins who was present did not register any objection or reservation while officers sought and obtained Mrs. Watkins’s consent to an unlimited search of the computers. After the forensic analysis found evidence of child pornography, the evidence was used to charge Watkins with receipt of child pornography by computer over the internet. Watkins moved to suppress the evidence from the computers. A magistrate judge held a hearing and recommended denial of the motion. It reasoned that the detective’s assurances about the scope of the search had limited Watkins consent to evidence relevant to the murder investigation, but that Mrs. Watkins consent authorized a general search and therefore permitted discovery of the child pornography evidence. The search was valid because, Mrs. Watkins consented to a full search of the computers, and Watkins failed to show that the search violated his rights under Randolph. The district court upheld the magistrate’s recommendation concluding that Watkins had “not actually expressed a refusal to consent to an unlimited search of the computers” as Randolph required; instead, “he consented to the detective’s request for a search that was implicitly limited… to certain of the computers.” He was charged under 18 U.S.C. § 2252 for receipt of child pornography over the internet.

The district court and denied Watkin’s motion for reconsideration and for a new evidentiary hearing before the district court. The district court subsequently conducted a bench trial on stipulated facts and found him guilty of the charged offense.

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In U.S v. Serrapio, the defendant asked the court of appeals to hold that the district court’s modifications to his federal probation sentence violated his rights under the Double Jeopardy Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the First Amendment. After his federal conviction, Serrapio was sentenced to 3 years of probation (with a number of conditions, including four months of home confinement with electronic monitoring and 250 hours of community service) violating 18 U.S.C. § 871 for threatening to shoot the President Barack Obama during his 2012 visit to the University of Miami. Serrapio spoke to a reporter for his college newspaper. He told her that his ordeal had been “pretty funny”, that he could not be imprisoned in his “own house”, and that a lot of good had come out of his case, including for his rock band, as a “lot of people showed up to see the kid who threatened to kill the President.” After the district court learned of these comments, the district court issued a notice setting a hearing concerned a status conference relating to a modification of probation. When the parties appeared as schedules, the district court said that it had set the hearing because it was “certain” that Serrapio did not understand what probation meant. After stating that it had the authority to modify the conditions of probation pursuant to 18 U.S.C. § 3563(c), the district court modified the conditions to include 45 days in a halfway house and one year of home confinement with electronic monitoring. The district court did not increase the three-year term of probation that it had initially imposed. In this appeal,

The first issue addressed by the court of appeals was whether the appeal moot. The court concluded that it was as to the 45-day halfway house term which had been served. They reach a different result as to the one-year period of home confinement, for which he suffered collateral consequences as a result of that modification. The district court ordered Serrapio to pay the costs of electronic monitoring for the additional eight months of home confinement and because he incurred a financial expense due to the district court’s modification of the home confinement condition of probation, the appeal is not moot.

Serrapio contends that this modification violated the Double Jeopardy Clause of the Fifth Amendment, which that provide that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”. Significantly, the “Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment. The modification did not violate the Double Jeopardy Clause because it did not upset any legitimate expectations held by Mr. Serrapio as to the finality of the conditions of probation, as it was authorized by statute and was based on Mr. Serrapio’s post sentencing conduct.

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In U.S. v. Vandergrift, the defendant was placed on three years of supervised release after serving a 97-month sentence for the federal crime of possession and distribution of child pornography. Before the expiration of a three year supervised release, Vandergrift’s probation officer filed a petition seeking revocation of his supervised release charging that he violated the following conditions of his supervised release: (1) failing to obtain lawful employment; (2) failing to obey instructions to search for and obtain employment; (3) knowingly giving false information to a probation officer when questioned about the whereabouts of another federal supervisee; (4) possessing or having access to a pornographic DVD and a Maxim magazine, both of which contained sexually stimulating material; and (5) violating 18 U.S.C.§ 1001, when he knowingly lied to a probation officer about his roommate’s absence. The district court revoked Vandergrift’s release and imposed an above-guidelines sentence of 24 month imprisonment to be followed by one year of supervised release.

In revoking supervised release, the court considered the safety of the public, the example set to others in deterring similar conduct, punishment for the crime that was committed, and the court also considered what was best for Vandergrift as a factor.

Having considered all of these, the sentence imposed was 24 months in prison, the maximum under statute hoping that during the period of imprisonment “something can be found to put him on a better course.”

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In U.S. v. Charles the defendant was found in possession of prepaid debit cards that were loaded with tax-refund monies sent by the I.R.S. in response to fraudulent tax returns. Charles pleaded guilty to the federal crimes of trafficking in access devices and aggravated identity theft. The identity theft count carries an additional two-year sentence that runs consecutively to another other predicate crime involving the unauthorized transfer, possession, or use of the identity of another. The applicable sentencing guidelines provision for the access device count, section 2B1(b)(11)(B), has a two-level increase for the production or trafficking of unauthorized devices The district court found that the enhancement was warranted because the Charles transferred one of the prepaid debit cards to his codefendant and thereby “trafficked” an unauthorized access device.

On appeal, Charles challenged the two point enhancement arguing the district court erred in refusing to submit the applicability of the enhancement to a jury pursuant to Alleyne v. U. S. The court rejected his Alleyne argument because the two level increase only affected Charles’ guidelines calculation and not his statutory mandatory minimum or maximum sentence. Alleyne holds that a court cannot make a judicial finding of a fact at sentencing where the fact is an element of a crime that increases the maximum sentence. Alleyne preserved a sentencing court’s fact finding authority concerning facts that impact the statutory punishment.

However, the court of appeals did find that the two level increase for trafficking was error. U.S.C. § 1028A(a)(1). The guidelines applicable to U.S.C. § 1028A is USSG 2B1.6 which specifically provides that the sentencing guideline for the identity theft offense is the two year consecutive sentence mandated by statute. The Application Notes of the guidelines explain that if a sentence under section 2B1.6 is imposed in conjunction with a sentence for an underlying offense, the court should not apply any specific offense characteristic for the “transfer, possession, or use of a means of identification when determining the sentence for the underlying offense.” Because Charles already received the mandated two-year consecutive for aggravated identity theft, the Application Note to section 2B1.6 precluded the two level increase for transferring the debit card to the codefendant.

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In U. S. v Fowler the defendant was convicted of under the federal witness tampering statute for murdering a police officer with the intent of preventing him from communicating information about a federal criminal offense to a federal law enforcement officer. He was also charged in count two with using a firearm during a federal crime of violence, specifically a conspiracy to commit a robbery in the conspiracy to commit bank robbery and in doing so by murdering officer police officer following. Following a trial Fowler was found guilty on both counts is presentence investigation report calculated is offense level for count one the witness tampering at 46 and with his criminal history category of six he faced a recommended sentencing guideline of life in prison. For the gun possession the presentence investigation report recommended the 10 year mandatory minimum sentence. He was sentenced to life imprisonment for count one in eight consecutive term of 10 years for count two.

Fowler appealed his conviction for witness tampering arguing that the evidence was insufficient to show the officer would likely have communicated with a federal official. The conviction was affirmed by the 11th circuit, but the U.S. Supreme Court reversed, holding that the evidence was insufficient for the conviction under the witness tampering statute. On remand, the district court vacated the sentence and decided it would re-sentence the defendant and count two. The district would announced that it would not have given someone 810 year sentence on a murder with a firearm charge standing alone. After the presentence report calculated the defendant’s guideline range it found the guideline range to be life imprisonment. The court imposed a life sentence.

On appeal, the defendant Fowler argued the district court had no authority to re-sentence him on the remaining count of possession of a firearm during the commission of a federal crime, but instead was required to let the 10 year sentence stand. And he argued that the original sentence was not a “sentencing package” and the firearm count was not interdependent with the witness tampering count. He argued that the two counts were not put together under the sentencing guidelines and that the sentencing court should not impose any sentence greater than the ten-year term originally imposed.

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