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Prisoner Education Guide

Articles by David Reutter

First Circuit Orders Resentencing Where Trial Counsel Failed to Secure Three-Level Reduction Under Sentencing Guidelines

by David Reutter

The U.S. Court of Appeals for the First Circuit ruled a defendant was entitled to be resentenced where trial counsel failed to secure a three-level reduction under the federal sentencing guidelines for acceptance of responsibility.

Following a December 17, 2015, search by federal agents of a home in Puerto Rico, Rodney Robles-Pabon (“Robles”) was found hiding in a closet. Agents also found drugs, currency, cellphones, AK-47 ammunition, high-capacity magazines, and a chip to modify a Glock firearm. A search of a car outside the house uncovered Robles’ passport and a Glock.

Robles entered into a plea agreement on charges of conspiracy to possess with intent to distribute cocaine and marijuana and possession of a firearm in furtherance of a drug trafficking crime. He was sentenced to a total of 93 months.

The July 22, 2006, plea agreement contained guideline calculations, one of which endorsed a decrease by two levels for acceptance of responsibility, ignoring the three-level reduction under the governing guideline. Relying on the 2015 version of the guidelines, the district court approved a two-level reduction for accepting responsibility. On appeal, Robles asserted that trial counsel was ineffective for failing to secure the three-level reduction, error ...

Snarky Facebook Post Not True Threat; Officers Denied Qualified Immunity

by David Reutter

The U.S. Court of Appeals for the Eighth Circuit reversed a grant of summary judgment to police officers who arrested a man for a snarky Facebook post without conducting even a minimal investigation.

James Ross, 20, is an active user of Facebook. One of Ross’ Facebook friends posted an image on January 25, 2015, that showed a number of different firearms below the title, “Why I Need a Gun.” Above each gun was an explanation for what it could be used – for example, above a shotgun: “This one is for burglars and home invasions;” above a rifle with a scope, “this one is for putting food on the table;” and above an assault rifle, “this one for self-defense against enemies foreign and domestic, for preservation of freedom and liberty, and to prevent government atrocities.”

Ross, an advocate of gun control measures, interpreted the post as advocating against such measures. In response, Ross commented on the post: “Which one do I need to shoot up a kindergarten?” He then logged off Facebook and went to bed.

The post was passed around and caught the attention city of Jackson, Missouri, police officers ...

Indiana Supreme Court Announces Single Act of Resisting Police Bars Multiple Counts, Regardless of Number of Officers Involved or People Killed

by David Reutter

The Supreme Court of Indiana held that Indiana Code § 35-44.1-3-1 authorizes only one conviction for felony resisting law enforcement where the defendant engages in a single act of resisting while operating a vehicle that causes multiple deaths.

After a motorist informed Indiana Police State Trooper James Manning that a blue Chevy Tahoe was driving northbound in the southbound lanes of I-69, Manning activated his patrol vehicle’s emergency signal and gave pursuit. He soon came up behind the Tahoe, driven by Brian Paquette.

Paquette initially slowed down, but he made a U-turn in the median and once again drove the wrong way—this time, traveling south in the northbound lanes. Manning continued pursuit. Two miles after making the U-turn, Paquette collided head-on with a vehicle carrying Stephanie Molinet and Autumn Kapperman. Both women died, as did Kapperman’s unborn child. The impact caused the Tahoe to flip, and it instantly killed Jason Lowe when it landed on the driver’s side of his car.

As officers waited for firefighters to extract the surviving Paquette from the Tahoe, he told them he believed he was being chased by farmers through a field. He also said he believed he was carrying ...

Texas Supreme Court Interprets State’s Expungement Statute

by David Reutter

The Supreme Court of Texas held that the state’s expungement statute is “neither entirely arrest-based nor offense-based.” Based upon the facts of this case, it held that the petitioner was entitled to expungement of records and files with respect to the charge for which she was acquitted.

T.S.N. was arrested on June 11, 2013, for a felony offense of aggravated assault with a deadly weapon. During the arrest process, the officer also executed a November 16, 2010, warrant for a misdemeanor offense of theft by check.

The assault charge was tried by a jury, resulting in an acquittal. T.S.N. pleaded guilty to the theft charge. After the acquittal, T.S.N. moved for expungement of the records and files relating to the assault charge under article 55.01 of the Texas Code of Criminal Procedure.

The State opposed the motion. It argued that the statute is “arrest-based,” requiring “expunction of arrest records only if the results of the prosecutions as to all of the charges underlying the arrest meet statutory requirements for expunction.” The trial court disagreed and granted T.S.N.’s petition, and the State appealed.

On appeal ...

Sixth Circuit Rules Relying on Search Warrant Based on ‘Bare Bones’ Affidavit Objectively Unreasonable, Grants Motion to Suppress

by David Reutter

The U.S. Court of Appeals for the Sixth Circuit held a search warrant failed to establish a fair probability that drugs would be found at the searched residence on the date of the search.

Before the Court was the appeal of Tyrone Christian, who was convicted by a federal jury of possessing a controlled substance with intent to distribute, being a felon in possession of a firearm, and possessing a firearm in furtherance of a drug-trafficking crime. Christian’s motion before trial to suppress evidence obtained by a search warrant was denied.

Christian pursued the claim on appeal. The search warrant was issued by a state magistrate on September 3, 2015. The four-page affidavit contained a page of facts that showed: (1) search warrants were executed at Christian’s residence in the past; (2) Christian has a history of years’ old drug convictions; (3) he engaged in one sale of drugs at the residence eight months prior to the application for a search warrant; (4) unidentified subjects of unknown reliability reported that Christian was selling drugs in the more recent past; and (5) a man with no connection to Christian was found to be in possession of drugs ...

Hawaii Supreme Court Vacates Conviction Because Defendant’s Waiver of Right to Testify Deficient Under State’s Tachibana Colloquy Requirement

by David Reutter

The Supreme Court of Hawaii reversed a DUI conviction because the trial court failed to determine whether the defendant’s “waiver of the right to testify, was voluntarily, intelligently, and knowingly made.”

Before the Supreme Court was the certiorari petition of Ritalynn Moss Celestine. She was arrested on February 24, 2013, after a breathalyzer test revealed a .098 blood-alcohol level. Celestine pleaded not guilty to a charge of operating a vehicle under the influence of an intoxicant. Her case proceeded to a bench trial at which she was found guilty.

On appeal, Celestine argued it was an error to deny her motion to dismiss the breathalyzer test, and the district court violated her constitutional right not to testify when it failed to conduct a proper Tachibana colloquy. The Intermediate Court of Appeals affirmed the conviction.

In the Supreme Court, only the right not to testify issue was at issue.

The Court explained that under Hawaii law the fundamental right to testify (and not testify) is protected by safeguards established by the Hawaii Supreme Court in Tachibana v. State, 900 P.2d 1293 (Haw. 1995). According to the Court, “the trial court must advise the defendant of the ...

1st Circuit: No Protective Sweep Where Identified Suspects Already in Custody at Time of Warrantless Search

by David Reutter

The United States Court of Appeals for the First Circuit reversed the armed bank-robbery conviction of Virgilio Diaz-Jimenez (“Diaz”), holding the warrantless search of Diaz’s home did not fit within the protective sweep or voluntary consent exceptions under the Fourth Amendment and was thus unconstitutional.

Diaz and his co-defendant, Hector Serrano-Acevedo (“Serrano”), were charged with the armed robbery of the Oriental Bank in San Lorenzo, Puerto Rico, on June 17, 2013. The robbers fled the bank in a white van, which was later found alongside a road.

The FBI and an ICE Task Force assisted in the search for the two robbers. A confidential informant advised an ICE agent that he had been in contact with the robbers, who expected him to pick them up after they emerged from their hiding place in a nearby mountainous terrain after the police helicopter left.

That afternoon, the informant was notified by the robbers that they had left their hideout and did not need to be picked up. The informant supplied the robbers’ nicknames and cellphone numbers. With the cellphone information, law enforcement tracked the phones and located Diaz at his home.

A SWAT team was called, and Serrano pulled ...

11th Circuit Rules Immigration Judges are United States Judges for Purposes of 18 U.S.C. § 115(a)(1)(B)

by David Reutter

In an issue of first impression nationally, the U.S. Court of Appeals for the Eleventh Circuit held that an immigration judge is a “United States judge” within the meaning of 18 U.S.C. § 115 (a)(1)(B), which makes it a crime to, among other things, assault, kidnap, or murder or attempt or threaten to do so with respect to certain federal officials, including United States judges.

That conclusion came in an appeal brought by Delroy McLean, who was sentenced to 41 months in prison after a jury found him guilty of “threatening to assault” an immigration judge “with the intent to impede, intimidate, or interfere” with that judge “while engaged in the performance of official duties” during a bond hearing in violation of § 115 (a)(1)(B).

At trial and on appeal, McLean argued immigration judges are not “United States judges” for purposes of the statute because they are employees of the Department of Justice who are appointed by and subject to the supervision of the Attorney General.

The Eleventh Circuit rejected McLean’s argument. It started with the definition in § 115 (C)(3), which provides that “‘United States judge’ means any ...

Archaic Disciplinary System Allows Chicago Police to Delay Punishment

by David Reutter

The Chicago Police Department (“CPD”) has endured criticism for officer misconduct. An investigation by ProPublica Illinois and the Chicago Tribune found that the city’s archaic system for disciplining officers allows it to avoid or long delay discipline, allowing officers who should be off the streets to be on patrol.

In one case, it took 11 years for an officer to be disciplined. That case involved CPD officer William Levigne. He told investigators that on an October 2006 evening, as he was driving home, that Walter Whitehead, who was driving his 16-year-old son Brandon home from work, cut him off.

The Whiteheads said Levigne overtook them in his Monte Carlo as he pointed his gun at them, then ordered them out of their car at a stop light, forced them out of the car, and handcuffed Walter.

Levigne called 911, asking for help from “a brother in blue,” as he blocked traffic. “I’ve get two offenders in custody—tried to kill me here!”

As Levigne was not in uniform, Brandon was terrified and called 911, too. “Can you hear him?” Brandon asked the operator. She could. “Off the (expletive) phone!” Levigne yelled.

The Whiteheads filed ...

10th Circuit: Oklahoma’s Second-Degree Burglary Not an ACCA Qualifying Offense

by David Reutter

The Tenth Circuit Court of Appeals held convictions for burglary under Oklahoma law do not qualify as violent felonies for sentence enhancement under the federal Armed Career Criminal Act (“ACCA”).

Raymond Hamilton was convicted of possession of a firearm after a felony conviction. He was sentenced to 190 months’ imprisonment under ACCA, based in part on three second-degree burglary convictions from Oklahoma.

Hamilton moved to vacate his sentence under 28 U.S.C. § 2255, arguing the district court applied the mandatory minimum based on the ACCA’s unconstitutional residual clause. The United States appealed after the district court granted the petition.

There was no dispute that Hamilton has a 1978 Oklahoma conviction for robbery with a firearm and a 1991 conviction for assault with deadly weapon that qualify as violent felonies under ACCA. The United States needed to identify one more violent felony conviction to trigger ACCA’s mandatory minimum, so it pointed to Hamilton’s second-degree burglary convictions in Oklahoma.

To qualify as a violent felony under ACCA, a violent felony must involve a violent felony under ACCA’s Elements Clause, the Enumerated Offense Clause, or the Residual Clause. The U.S. Supreme Court in Johnson v. United States ...


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