SUPREME COURT RULES PLAIN ERROR MAY OCCUR AT TIME OF APPEAL

The general rule is that an appellate court does not consider an issue unless an objection was made in the trial court. The one exception to the rule is where there is plain error. Plain error is defined as: (1) there is “an error,” (2) the error is “plain,” . . .(3) the error “affect[s] substantial rights.” . . . [and](4) . . . “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Last week the […] Read more »

CAREER OFFENDER DENIED RIGHT TO WITHDRAW PLEA

The Eighth Circuit Court of Appeals denied the appeal of Isaiah Earl Thomas, challenging the trial court’s denial of his motion to withdraw his guilty plea to distributing less than fifty kilograms of marijuana, possessing a firearm in furtherance of a drug trafficking offense, and possessing a firearm following a conviction for domestic violence. At the time of his plea the court told him that he faced a maximum sentence of life in prison. Both his attorney and the Assistant […] Read more »

FOURTH CIRCUIT UPHOLDS TERRORIST ALLEGATION AGAINST ALI ASAD CHANDIA

Ali Asad Chandia was convicted of conspiring to provide, material support to terrorists and a foreign terrorist organization. He was convicted for providing support to Lashkar-e-Taiba (“LET”). It was alleged that he attended a LET training camp in Pakistan and that he provided support for Mohammad Ajmal Khan a LET leading during Khan’s trip to the United States. LET is a fundamentalist Muslim organization headquartered in Pakistan which among other goals works for an independent fundamentalist nation in Kashmir. It […] Read more »

SCOTUS: NEED FOR REHABILITATION NOT A REASON TO LENGTHEN SENTENCE

Alejandra Tapia was convicted in Federal Court of smuggling unauthorized aliens into the United States. The sentencing guidelines indicated a sentence between 41 and 51 months. In sentencing Tapia to 51 months the court stated that it wanted her to serve a sentence long enough for her to be admitted into and to complete the Bureau of Prison’s (BOP) Residential Drug Abuse Program (known as RDAP or the 500 Hour Drug Program). On appeal the issue was whether the trial […] Read more »

FIFTH CIRCUIT ORDERS RESENTENCING IN CRACK CASES

Cedric Henderson, Jr., Donavan Barrington McClune, and Bobby Kirkendoll were convicted in separate matters of crimes involving crack cocaine. They applied to their respective courts pursuant to 18 U.S.C. § 3582(c)(2) for a sentence reduction. Under this section inmates may apply for a sentence reduction, if following their sentencing, the United States Sentencing Commission reduces the guidelines for the offense of conviction. In 2007 the Sentencing Commission reduced by two levels the guideline for most crack cocaine offenses, in order […] Read more »

RIGHT TO APPEAL A SENTENCING VARIANCE DENIED

Marcus Eugene Jacobs plead guilty to possessing stolen mail. As part of the plea agreement he agreed to waive his right to appeal. However an exception was allowed if the court upwardly departed from the guidelines, not requested by the government. Jacobs’ guidelines were four to ten months. The government recommended seven months. In taking the plea the judge was very careful to make sure that Jacobs understood that he was waiving the right to appeal unless the judge granted […] Read more »

SCOTUS: EVIDENCE OF REHABILITATION CAN BE USED ON RESENTENCING

The Supreme Court ruled, yesterday, in Pepper v. United States that following an appeal that requires a resentencing the trial court can consider the defendant’s post trial rehabilitation. Jason Pepper plead guilty to participating in a methamphetamine conspiracy. Although the guidelines were 97 to 121 months the court sentenced him to 24 months based upon his giving substantial assistance to the government. The prosecution only recommended a 15 per cent reduction and it appealed to the Eighth Circuit Court of […] Read more »

76 MONTHS FOR FAILURE TO REGISTER AS A SEX OFFENDER

Federal sentencing is a complicated area of law. The Guidelines which are voluntary but must be considered consist of a numerical evaluation of the person’s criminal history and of the crime. In United States v. Conca the Second Circuit Court of Appeals faced a few of the problems found in determining criminal history. Marc Conca plead guilty to failure to register as a sex offender when traveling from one state to another state. He traveled from Texas to Oklahoma to […] Read more »

OGLALA SIOUX DRUG CONVICTIONS UPHELD

Colin Spotted Elk and Flint Thomas Red Feather, along with fourteen others,were convicted of participating in a conspiracy to sell drugs on the Pine Ridge Oglala Sioux reservation in South Dakota. Spotted Elk was originally convicted on a number of charges including using a firearm in a drug trafficking crime. While his appeal was pending the Supreme Court held that the statute did not apply to people such as Spotted Elk who traded drugs for guns. The case was remanded […] Read more »

FEDERAL COURT DENIES CONCURRENT TIME WITH STATE SENTENCE

Otis Jones plead guilty to various drug offenses and he was sentenced to 151 months in prison. He appealed the sentence to the Eighth Circuit Court of Appeals. First, he argued that the District Court improperly aggravated his sentencing guidelines by adding two levels to his Guidelines for having a gun in connection with a drug offense. Two people testified at his sentencing hearing regarding his use of a gun in connection with his drug deals. While one of the […] Read more »