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Showing posts from October, 2013

Real Estate Investment Fraud Case Results in UPward Variance for Non-Criminal Conduct!

In this case, the defendant pled guilty to wire fraud in connection with a real estate investment scheme. The parties reached an agreement on defendant's sentencing guidelines and the loss amount, taking into account that some of the losses were not due to defendant's conduct at all, but rather, due to the investments themselves. 

The district court did not accept the parties' loss conclusions and applied a much higher loss amount and varied upward nearly double from the joint guideline recommendation of sixty months in custody.  The court used the rational for the upward variance as the impact on the victims' lives (even though much of the losses were simply investments that didn't work out).  The issue for the Ninth Circuit was whether the "life-destroying" facts of the victims proper for the court to consider in varying upward.  The Ninth said yes - the Court could consider these other factors.

Judge Tashima wrote a very strong dissent on this issue, cit…

United States v. Underwood: deficient search warrant

United States appealed the granting of defendant’s motion to suppress which was granted due to bare bones, cut and paste facts in a search warrant affidavit. Underwood was charged with conspiracy to possess and distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. •The Ninth Circuit held that: –Conclusions of affiant unsupported by underlying facts can’t be used to establish probable cause –The affidavit contained only two facts, foundationless expert opinion, and conclusory allegations •Seen baggie of personal use marijuana lacked a nexus to ecstasy trafficking •Observation of Defendant delivering two wooden crates to suspected dealers three months before warrant wasn’t detailed enough; was a bare conclusion that it contained ecstasy •Affidavit failed to define “drug trafficker” and provided no facts to support conclusion that Underwood is in business of buying & selling ecstasy •LAPD Officer’s statement that a federal warrant had previously issued in the case for a…

United States v. Lira: Mandatory Minimum sentence enhancement requires proof beyond a reasonable doubt

Lira appealed his 120-month mandatory minimum sentence imposed following his jury trial conviction for use or carrying and possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He was convicted in Counts I-III of possession and distribution of meth, and the District Court found by a preponderance of the evidence in Count IV that Lira discharged a firearm “during and in relation to or in furtherance” of a drug trafficking offense, which triggered the 10 year mandatory minimum consecutive sentence. Lira appealed his 120-month mandatory minimum sentence imposed following his jury trial conviction for use or carrying and possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He was convicted in Counts I-III of possession and distribution of meth, and the District Court found by a preponderance of the evidence in Count IV that Lira discharged a firearm “during and in relation to or in furthe…

Did You Get the Memo? Eric Holder’s New Policies and Initiatives on Federal Drug Sentencing & Federal Charges

Federal drug sentencing has been given a long-awaited makeover by the issuance of Eric Holder’s Memorandum and Guidelines to Federal Prosecutors in August of this year.  The new policy should help certain drug offenders avoid mandatory minimum sentences in federal drug cases.  Attorney General Holder also set forth “Federal Prosecution Priorities” pertaining to the charging of certain offenses in federal, versus state, court.
Citing to Alleyne v. United States, 133 S.Ct. 2151 (2013), the Holder Memo on Charging Mandatory Minimum Sentences (Aug. 12, 2013), reminded United States Attorneys that “any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt.”  Mr. Holder noted that because of this standard, the prosecutor’s discretion in charging mandatory minimum cases must be used with particularity and discretion.  Specifically, Mr. Holder stated:
When making these individualized assessm…