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Peugh V. United States- United States Supreme Court denies retrospective application of more severe sentencing guidelines

Posted by admin on June 13th, 2013

Subject:	Supreme Court holds Ex Post Facto Clause prohibits
retrospective application of advisory guidelines

In an opinion by Justice Sotomayor, the Supreme Court held today in Peugh
v. United States, No. 12-62, that “[a] retrospective increase in the
Guidelines range applicable to a defendant creates a sufficient risk of a
higher sentence to constitute an ex post facto violation.” The Seventh
Circuit's precedent in United States v. Demaree, 459 F. 3d 791 (7th Cir.
2006), is reversed.

In holding that the Ex Post Facto Clause is violated when a defendant is
sentenced under a more severe version of the guidelines in effect at the
time of sentencing rather than the version in effect at the time of the
offense, the Court points to the continuing role of the guidelines as the
"initial benchmark" and "starting point" in the district court, the various
procedural hurdles to a non-guideline sentence in the district court, the
presumption of reasonableness of a within-guideline sentence in the court
of appeals, and appellate review of a district court’s procedure. All of
these “gent[le] checks” on the district court’s discretion, it says, make a
guideline sentence more likely, absent a reason for a non-guideline
sentence: “That a district court may ultimately sentence a given defendant
outside the Guidelines range does not deprive the Guidelines of force as
the framework for sentencing.”

As evidence that the "procedural measures" adopted by the federal
sentencing system have the effect of "influencing the sentences imposed by
judges," the Court points to empirical data showing that, since 2007, the
majority of sentences, in the aggregate, are within the guidelines or below
the guidelines based on a government motion.

Dissenting opinions by Justice Thomas, joined in part by Justices Alito,
C.J. Roberts, and Scalia, and by Justice Alito, joined by Justice Scalia.

Opinion is here: http://www.supremecourt.gov/opinions/12pdf/12-62_5g68.pdf
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New Orleans Criminal Attorney Blog: Ex-Cop Seeks Bond in Henry Glover Case

Posted by admin on February 15th, 2013

In a court filing Friday, David Warren’s attorneys asked a federal judge to free him on bond while he awaits a retrial on charges he shot and killed Henry Glover without justification in the aftermath of Hurricane Katrina.

District Judge Lance Africk didn’t immediately rule on Warren’s request.

Warren was convicted of manslaughter for fatally shooting 31-year-old Henry Glover in 2005.

The 5th U.S. Circuit Court of Appeals ordered a new trial for Warren in December, ruling Africk should have separated Warren’s trial from that of four other officers.

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New Orleans Criminal Attorney Blog: Three-year-old boy found dead in Marrero home.

Posted by admin on February 15th, 2013

The three-year-old boy was found dead  under a pile of clothes in a Marrero home on Wednesday morning.  When police arrived they noticed that the home smelled of gas.

The Jefferson Parish coroner Dr. Gerry Cvitanovich said the cause of death for was homicidal asphyxiation.

The boys mother,  Lakeshia Brown, called 911 and then crawled out of a window because the house appeared to be  locked from the outside.

The mother’s boyfriend has been arrested in connection with this crime.

Lakeshia Brown was taken to the Investigations Bureau for questioning.

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Christopher Dorner Manhunt Continues- Authorities Attempting to Identify Charred Human Remains

Posted by admin on February 13th, 2013

Dental Records are the number one way a burned body is identified.  If dental ex-rays cannot be found, the next step is DNA testing.  There are are several ways DNA can be detected.  The first is an extraction near a tooth or from bone marrow.  Skulls of burn victims are generally left in tact as well.  Thus, the brain is typically in fairly good shape.  Accordingly, blood can be extracted from the brain.  Once authorities get a sample, they must have a comparison sample.  This can be taken from a toothbrush, or a hairbrush.  A comparative analysis can also be conducted on relatives blood — this is not as simple and less efficient.
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Blogs raise interesting Legal Issues surrounding Hurricane Sandy

Posted by admin on February 13th, 2013

Hurricane Sandy has raised some novel legal issues:

Blog -Above the Law: Editor Elie Mystal suggests that firms distribute bonuses earlier this year.  She states that requiring to people to work in the aftermath of Sandy is unreasonable and that should share in the massive profits generated by the storm.  This commentary seems to be directed at the larger firms.  I’m not sure how Hurricane Sandy would increase profit. after said natural disaster.  What do you think?

FMLA Insights: Jeff Nowak, a partner at Franczek Radelet in Chicago, notes that a worker who suffers an injury as a result of a natural disaster or has to care for a family member who was injured would qualify for FMLA leave time.

The BLT: The Blog of Legal Times mentioned that allowing federal employees to work from home proved advantageous during the storm.  the blog stated that Two-thirds of employees of the U.S. Patent and Trademark office telecommute at least one day per week.  However  the blog reports that the Justice Department had only 2 percent of its employees telecommuting as of September 2011.

Immigration: University of California, Davis, School of Law professor Kevin Dean blogged about  A Department of Homeland Security initiative dictating that “there will be no immigration enforcement initiatives associated with evacuations or sheltering related to Sandy, including the use of checkpoints for immigration purposes in impacted areas during an evacuation.”  This was certainly handled appropriately.

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St. Tammany Parish Arsonists Record Video Detailing Crime

Posted by admin on February 13th, 2013

St. Tammany Parish arsonists make a video on a cell phone detailing their crime. The fire injured one firefighter. 

 Michael Ellis Mathieu, 21, of Covington, and Corey Eshleman, 24, of Folsom, were arrested and charged with simple arson and injury by arson.

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Two juveniles charged in the rape of an uptown woman will be charged as adults.

Posted by admin on February 13th, 2013

Sheldon Jefferson, 15, and Joseph Davis, 16, two juveniles who were booked in connection with the kidnap, robbery and rape of a Garden District woman will be tried as adults. The two along with the third defendant, 18-year-old Christopher Davis, are accused of forcing a thirty -year-old uptown women into a car at gun point and sexually assaulting her.  The suspects drove off in the victim’s car.

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Fifth Circuit Case Law Updates

Posted by admin on February 6th, 2013

United States v. Snarr, No. 10-40525, 2013 WL 85975, at *25-28 (5th Cir. Jan. 8, 2013) – The Fifth Circuit held that it had jurisdiction-on appeal from the final judgment of conviction and sentence-to review the chief judge’s denial of a CJA budget request for additional experts. The court reviewed the chief judge’s budget ruling for abuse of discretion. The court affirmed because the defendants failed to show a reasonable probability that the requested experts would have been of assistance to the defense and that denial of such expert assistance resulted in a fundamentally unfair trial.
United States v. Harris, F.3d , 2012 WL 6097442 (5th Cir. Dec. 10, 2012) – A district court at sentencing
may not consider the mere fact of a prior arrest, but the court may consider factual recitations of a defendant’s conduct that underlie prior unadjudicated arrests provided the recitations have sufficient indicia of reliability. In footnote 3, the court stated: “While mere objections are generally insufficient, such objections may sufficiently alert the district court to questions regarding the reliability of the evidentiary basis for the facts contained in the PSR, particularly in circumstances where the facts are based solely upon an arresting officer’s uncorroborated description of the events justifying the defendant’s arrest.”
United States v. Sharma, F.3d , 2012 WL 6621766 (5th Cir. Dec. 20, 2012) – The district court erred in
adopting the loss amounts for purposes of restitution under 18 U.S.C. § 3663A from the Presentence Reports (PSRs) of the defendants because the PSRs did not have an adequate evidentiary basis. The PSRs took the loss amounts from victim impact statements, and there was “no independent basis in the record” for finding that these losses related to the offenses of conviction.
Smith v. United States, S. Ct. , 2013 WL 85299 (Jan. 9, 2013) – The defendant had the burden of proving
that he withdrew from a charged drug conspiracy. Placing the burden on the defendant did not violate the Due Process Clause.
United States v. Wampler, F.3d , 2013 WL 49484 (5th Cir. Jan. 3, 2013) – Defines the term “resides” for
purposes of the Sex Offender Registration and Notification Act, which requires registration “in each jurisdiction where the offender resides.” 42 U.S.C. § 16913(a).
United States v. McRae, F.3d , 2012 WL 6554691 (5th Cir. Dec. 17, 2012) – The district court erred in
denying a motion to sever. The evidence was insufficient to support a conviction for denying a victim’s descendants and successors access to courts.
United States v. Silva-De Hoyos, F.3d , 2012 WL 6554844 (5th Cir. Dec. 17, 2012) – Neither possession
with intent to distribute a controlled substance nor importation of cocaine is a drug-trafficking offense for purposes of 21 U.S.C. § 862, which provides for up to five years of ineligibility for federal benefits upon a first conviction for a drug-trafficking offense.

United States v. Snarr, No. 10-40525, 2013 WL 85975, at *25-28 (5th Cir. Jan. 8, 2013) – The Fifth Circuit held that it had jurisdiction-on appeal from the final judgment of conviction and sentence-to review the chief judge’s denial of a CJA budget request for additional experts. The court reviewed the chief judge’s budget ruling for abuse of discretion. The court affirmed because the defendants failed to show a reasonable probability that the requested experts would have been of assistance to the defense and that denial of such expert assistance resulted in a fundamentally unfair trial.

United States v. Harris, F.3d , 2012 WL 6097442 (5th Cir. Dec. 10, 2012) – A district court at sentencingmay not consider the mere fact of a prior arrest, but the court may consider factual recitations of a defendant’s conduct that underlie prior unadjudicated arrests provided the recitations have sufficient indicia of reliability. In footnote 3, the court stated: “While mere objections are generally insufficient, such objections may sufficiently alert the district court to questions regarding the reliability of the evidentiary basis for the facts contained in the PSR, particularly in circumstances where the facts are based solely upon an arresting officer’s uncorroborated description of the events justifying the defendant’s arrest.”

United States v. Sharma, F.3d , 2012 WL 6621766 (5th Cir. Dec. 20, 2012) – The district court erred inadopting the loss amounts for purposes of restitution under 18 U.S.C. § 3663A from the Presentence Reports (PSRs) of the defendants because the PSRs did not have an adequate evidentiary basis. The PSRs took the loss amounts from victim impact statements, and there was “no independent basis in the record” for finding that these losses related to the offenses of conviction.Smith v. United States, S. Ct. , 2013 WL 85299 (Jan. 9, 2013) – The defendant had the burden of provingthat he withdrew from a charged drug conspiracy. Placing the burden on the defendant did not violate the Due Process Clause.

United States v. Wampler, F.3d , 2013 WL 49484 (5th Cir. Jan. 3, 2013) – Defines the term “resides” forpurposes of the Sex Offender Registration and Notification Act, which requires registration “in each jurisdiction where the offender resides.” 42 U.S.C. § 16913(a).

United States v. McRae, F.3d , 2012 WL 6554691 (5th Cir. Dec. 17, 2012) – The district court erred indenying a motion to sever. The evidence was insufficient to support a conviction for denying a victim’s descendants and successors access to courts.

United States v. Silva-De Hoyos, F.3d , 2012 WL 6554844 (5th Cir. Dec. 17, 2012) – Neither possessionwith intent to distribute a controlled substance nor importation of cocaine is a drug-trafficking offense for purposes of 21 U.S.C. § 862, which provides for up to five years of ineligibility for federal benefits upon a first conviction for a drug-trafficking offense.

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Pointers on filing an Anders Brief

Posted by admin on February 6th, 2013

Practice Pointers: Changes to the Fifth Circuit’s Approach to Anders Cases

You may have noticed a change in the Fifth Circuit’s approach to handling motions to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). The following overview of the changes will hopefully help you navigate the new legal landscape,

A New Approach

Before 2011, an appointed attorney who, after a conscientious examination of the case, determined that it was “wholly frivolous,” was required to request permission to withdraw and submit a brief referring to anything in the record that might arguably support the appeal. That is still true today.

However, the court wrote in United States v. Flores, 632 F.3d 229, 231 (5th Cir. 2011), “to signal a change in [its] approach to Anders cases.” The Fifth Circuit embraced the view that “the appellate court reviewing a brief filed under Anders need not have its law clerk or staff attorney . . . scour the record for issues that the lawyer may have overlooked.” United States v. Flores, 632 F.3d 229, 233 (5th Cir. 2011) (internal quotation marks and citation omitted). In fact, the court stated that this “practice gives the indigent defendant more than he could expect had counsel (whether retained or appointed) decided to press the appeal, since counsel’s decision on which issues to raise on appeal would normally be conclusive.” Id. (internal quotation marks and citation omitted).

Accordingly, in Flores, and a companion case, United States v. Garland, 632 F.3d 877 (5th Cir. 2011), the court explained that it would begin demanding closer adherence to the Fifth Circuit’s and for Anders cases.1 By requiring appointed counsel to discuss in the first instance “the issues set forth in the checklist to the extent they apply to [the] case,” the court would be able to “confine [its] scrutiny of the record to the portions of it that relate to the issues discussed in the brief.” Flores, 632 F.3d at 233 (internal quotation marks and citation omitted).

What Is Required?

There is still flexibility in drafting Anders briefs:

Counsel obviously has broad discretion in the preparation of his brief. For example, he can cover the material set forth in the checklist in narrative form, or cut and paste the outline from the checklist and answer the questions called for in it. No particular form of brief is required. The point is that counsel should demonstrate that he has considered the issues set forth in the checklist to the extent they apply to [the] case. This will assist our review of the brief to determine whether it is adequate.

All counsel should utilize the checklist to ensure that criminal appeals are adequately defended, and to conserve the resources of counsel and the court by avoiding orders like the one we must issue in this case, requiring counsel to redo the appellate brief. In addition, to fully comply with Anders, counsel must provide a copy of his brief to the defendant and the brief should include in the Certificate of Service a statement that this requirement has been complied with. Anders, 386 U.S. at 744,87 S. Ct. 1396.

Garland, 632 F.3d at 879. I encourage you to read both Flores and Garland before you draft your next Anders brief. Also, I have attached a copy of the Anders brief in Flores, which the court found to be exemplary.

What Happens Next?

a. Grant, or Denial with an Order to File a Merits Brief

Of course, the court may simply grant your motion without requiring further briefing, or the court may identify an arguable issue and order you to file a merits brief. If the court orders you to file a merits brief, you should not renew your motion to withdraw. However, there are other possible outcomes.

b.  Denial of the Motion to Withdraw

If after you file your Anders brief, the court finds that it needs additional analysis, the court will refuse to allow you to

laThe Fifth Circuit’s website provides a detailed checklist and outline for Anders briefs for guilty pleas and for bench or jury trials. See http://www.ca5.uscourts.gov. The guidelines and checklist are under the “Attorney Information Section.” This checklist is designed to assist counsel in preparing a brief that will satisfy the standards of Anders in this circuit” Garland, 632 F.3d at 879.


withdraw. If the court denies your Anders motion and indicates that you may either re-file it or file a merits brief, then you are free to do either of those two things. If you renew your Anders motion, you will need to file a new Anders brief, with a blue cover.

c.  Carrying the Motion to Withdraw with the Case

Sometimes the court does not deny the motion. Particularly in cases where the court needs counsel to address only a particular aspect of the case, the court may “carry” the Anders motion with the case and order counsel to file a “supplemental brief.” See, e.g., Garland, 632 F.3d at 880 (carrying the Anders motion with the case). In this case, you do not need to renew your motion if you persist in it since it remains pending; you need only to file the supplemental brief.

If you are ordered to file a “supplemental brief,” you have three choices. First, if you find an issue of arguable merit, you can file a merits brief and, if the Anders motion is still pending, move to withdraw the Anders motion. Alternatively, if you continue to seek withdrawal pursuant to Anders, you can either add the additional information to a new version of your original brief and re-file it with a blue cover (along with the certificate of interested persons, the statement of facts, etc.), or you can submit the additional information alone in a supplemental brief with a tan cover. Fed. R. App. P. 32(a)(2). If you choose this last option (i.e., a supplemental brief with a tan cover), you should not need to include the certificate of interested persons or statement of facts – cf. Fed. R. App. P. 28(c) (listing requirements for a Reply Brief). An example is attached from United States v. Lopez-Allela, No. 12-30329. You should not file a “supplemental” brief unless specifically directed to do so by the court. See 5th Cir. R. 28.4.

In some cases, the court may direct counsel to file a “supplemental letter brief.” Attached is an example of such a letter brief from United States v. Tate, No. 10-40673. You should not file a supplemental letter brief unless specifically directed to do so by the court. See 5th Cir. R. 28.4.

d.  Service on the Client

Whenever you file an Anders brief, including a supplemental brief or supplemental letter brief, make sure that you provide a copy of the brief to your client and that the brief includes in the certificate of service a statement that this requirement has been satisfied. Garland, 632 F.3d at 879.

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Smith v. United States

Posted by admin on January 10th, 2013

The Supreme Court today issued a unanimous opinion in Smith v. United States, No. 11-8976.  Petitioner argued that “once he presented evidence that he ended his membership in the conspiracy prior to the statute-of-limitations period, it became the Government’s burden to prove that his individual participate in the conspiracy persisted within the applicable five-year window.”  The Court, however, concluded that neither the Constitution nor the conspiracy statute support this argument, and that “[e]stablishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place.”

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