CrimLaw

Criminal Decisions of Note 4th Circuit (Last Month):

U.S. v. Kiulin: Concerns: Sentencing Guidelines / Determination of Drug Value -Previously commented on here.

U.S. v. Mayo: Concerns: Reasonable Articulable Suspicion of an Illegal Firearm - "[U.S. v.] Burton must be understood to authorize a protective frisk only when a Terry stop is authorized by a reasonable suspicion that criminal activity is afoot. To conduct the protective frisk there must also be reasonable grounds to believe that the suspect is armed and dangerous. Absent a reasonable suspicion of criminal activity, a police officer may not simply approach a citizen, as part of a police-citizen encounter, and frisk the citizen because the officer believes that his safety is at risk." In this case the officers suspect the Defendant has a firearm concealed in his pocket because he is in a bad neighborhood, he sticks his hand in the pocket and the pocket appears heavy, he walks away from the police twice as they chase him around the block, and he appears nervous when they confront him. Therefore, they are justified in doing a Terry stop and search. ed. note - This analysis would seem to fail because it is not per se illegal to have a concealed weapon in Virginia (it is allowed with a permit). Therefore, the articulated suspicion would seem to break down to (1) He's in a bad neighborhood & (2) he didn't react with pleasant nonchalance when the police chased him around the block and physically confronted him.

U.S. v. Rouse: Concerns: Sentencing Guidelines / State & Federal Sentences - "§ 5G1.3(b) prevents the "double counting" that occurs when "separate, non-offense conduct could, absent operation of this subsection, otherwise be the basis both (1) for sentencing defendant as if that conduct had been part of the offense(s) of conviction, and (2) for additional punishment of that same conduct in another, and separate, criminal proceeding." When a prior sentence has been set by a State court involving relevant conduct in the federal conviction the federal sentence should run concurrently with the State sentence. However, if you do not raise this issue at the sentencing hearing it is not plain error and a consecutive sentence will not be overturned.

U.S. v. Brandon: Concerns: Transcript Use at Trial & Sentencing Guidelines / Career Offender -

Transcript Use:

The court [] made [it] clear to the jurors that the tape recording was controlling, and that the transcript was intended only as an aid in listening to the recording. Moreover, the court repeated this warning during its instructions to the jury, and it did not allow the transcripts to be sent back into the jury room while the jury was deliberating.

Despite the district court's admirable caution, Brandon contends that the court erred in allowing use of the transcripts of the March 8 and March 19 tapes. Brandon does not actually claim that the transcripts were inaccurate in any respect. Rather, Brandon claims simply that the district court should have reviewed the transcripts and certified their accuracy--on the court's own initiative, no less, since Brandon never objected at trial to the transcripts nor asked the court to undertake any sort of review. Because Brandon never objected during his trial to the transcripts' use, we review his claim for plain error. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Higgs, 353 F.3d 281, 309 (4th Cir.2003).

No plain error.

Career Offender: In what can only be described as a very harsh but eminently defendable position the court rules that every single charge of which a Defendant has been convicted is a conviction for career offender status. ed. note: Apparently, prior to this number of convictions was determined by the sentencing event. One sentencing judgement equaled one conviction. The case seems to leave open the question as to whether a sentencing judgement for several charges arising from the same event is one conviction or several. For those of you who do not practice federal law "career offender" status causes a massive increase in the amount of time a client faces in the mandatory federal guidelines (my latest was a bump of 10 years).