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Articles by Michael Berk

Texas Court of Criminal Appeals Announces New Test in Comparing Out-of-State Priors for Sentence Enhancement for Repeat Sex Offenders

by Michael Berk

The Texas Court of Criminal Appeals announced a new test for determining whether a prior out-of-state conviction is “substantially similar” to enumerated Texas offenses for application of enhanced penalties for repeat sex offenses, explicitly overruling two precedential decisions.

The State sought to enhance Walter Fisk’s sentence under ...

Tenth Circuit: ‘Relevant Background Law’ Trumps Unclear Record in Granting § 2255 Relief From Johnson Error

by Michael Berk

The U.S. Court of Appeals for the Tenth Circuit reversed the denial of a successive motion under 28 U.S.C. § 2255, remanding the case for resentencing where the “relevant background legal environment” demonstrated that his sentence was based on the Armed Career Criminal Act’s (“ACCA”) unconstitutional residual clause.

On September 9, 2008, Aaron Eugene Copeland pleaded guilty to possession of a firearm as a felon. Although 18 U.S.C. § 922(g) carries a statutory maximum of 10 years, the sentencing court found that three prior convictions — two “serious drug offenses” and a 1981 second­degree burglary in California — qualified Copeland for the 15-year mandatory minimum sentence under the ACCA, 18 U.S.C. § 924(e). On December 5, 2008, Copeland was sentenced to 15 years’ imprisonment.

Originally, the ACCA sentence enhancement was triggered when sufficient prior convictions were classifiable as “serious drug offenses” or “violent felonies” under any of three provision, known as the elements clause, the enumerated offense clause, and a catch-all residual clause. The U.S. Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), struck down the residual clause as unconstitutionally vague.

As Copeland had filed several unsuccessful collateral attacks prior to the ...

Ninth Circuit: Drug Quantity in PSR Adopted by Sentencing Court not Binding in § 3582(c)(2) Sentence Reduction Proceedings

by Michael Berk

The U.S. Court of Appeals for the Ninth Circuit held that a court determining eligibility for a sentence reduction based on an amended Guidelines range is not bound by the conclusions of a pre-sentence report (PSR) “adopted” at sentencing in the absence of explicit quantity findings by ...

Arrest for Shouting ‘F—k You’ to Arkansas Trooper Violates First and Fourth Amendments Rights, Eighth Circuit Rules

by Michael Berk

An Arkansas state trooper violated a motorist’s First and Fourth Amendment rights when he arrested him for yelling “F--k you,” the U.S. Court of Appeals for the Eighth Circuit held in June 2019, affirming the district court’s denial of qualified immunity for the official.

In 2015, trooper Lagarian Cross was conducting a traffic stop on the side of a five-lane highway in Fort Smith, Arkansas. On the other side of the road, Eric Ross Thurairajah was driving past and yelled “F--k You” in the trooper’s direction. Cross abandoned his quarry – the proverbial “bird in the hand” – to chase Thurairajah and arrested him for disorderly conduct.

After several hours in jail, Thurairajah was released, and all charges were dropped.

Thurairajah sued Cross (and associated entities) for deprivation of civil rights under 42 U.S.C. § 1983, and Cross moved for summary judgment on the basis of qualified immunity. The district court, concluding Cross’ arrest of Thurairajah violated the latter’s First Amendment right to be free from retaliation for the exercise of his right to protected speech and his Fourth Amendment right to be free from unreasonable seizure [of his person] both of which were clearly established at ...

Change to New York Misdemeanor Definition May Benefit Non-Citizens

by Michael Berk

New York’s new amendment to its penal code reduces the maximum sentence for Class A misdemeanor offenses to 364 days. The previous maximum punishment was one year in jail.

The One Day to Protect New Yorkers Act, passed by the state legislature and signed by Governor Andrew ...

Eighth Circuit Overlooks Procedural Default, Orders Immediate Release From Excessive ACCA Sentence Based on Prior Sex Offense

by Michael Berk

The U.S. Court of Appeals for the Eighth Circuit reversed the denial of William Anthony Lofton’s 28 U.S.C. § 2255 petition, remanding to the U.S. District Court for the Southern District of Iowa with instructions to vacate his ACCA sentence and immediately release him from custody.

Lofton was convicted in July of 2007 of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Although that charge carried a maximum sentence of 10 years’ imprisonment, at sentencing the district court handed down a 327-month sentence based on five qualifying priors under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which mandates at least 15 years’ imprisonment where the defendant has a criminal history involving three or more “violent felonies” or “serious drug crimes.”

After the invalidation of the ACCA’s “residual clause” in Johnson v. United States, 135 S. Ct. 2551 (2015), and made retroactive on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016), Lofton sought collateral review of his sentence, claiming that four of those prior convictions — one for theft, one for aggravated criminal sexual abuse, and two for aggravated battery — no ...

Fifth Circuit: Plain Error Requiring Resentencing Where Court Didn’t Give Defendant Chance to Speak at Sentencing Hearing and Prospective Allocution Provided Added Details to Lead Reasonable Judge to Reconsider Harsh Sentence

by Michael Berk

The U.S. Court of Appeals for the Fifth Circuit remanded Jose Santos Figueroa-Coello’s case for resentencing, holding that the district court’s violation of Rule 32 of the Federal Rules of Criminal Procedure amounted to reversible plain error. 

At this defendant’s sentencing hearing, counsel briefly mentioned several points in a bid for leniency, but the judge never asked Figueroa-Coello himself if he had anything to say before sentencing him to the top of his Guidelines range, violating the defendant’s right to “a specific and unequivocal opportunity to speak.” This right is not absolute, however. Since counsel did not object, Figueroa-Coello had to meet the demanding plain-error standard set forth in Puckett v. United States, 556 U.S. 129 (2009), on direct appeal.

The Court explained Puckett’s four-prong test as follows: “the appellant must show the lower court’s action (or lack thereof) (1) deviated from unwaived and established legal rules, (2) was ‘clear or obvious, rather than subject to reasonable dispute,’ and (3) affected his substantial rights. [Puckett] This court then has discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

The Government ...

‘DNA Mixtures,’ ‘Touch DNA,’ and Software-Enhanced Forensic DNA Analysis

by Michael Berk

The premise that a DNA “match” conclusively overrides nearly all other evidence in a criminal case has become a deep-seated one over the 35 years since the inception of DNA profiling. Often, though, such views are not founded upon even a basic understanding of how this powerful forensic tool is used to turn the most microscopic materials into some of the most reliable evidence.

Less DNA Can Mean More Evidence

In the early days of DNA profiling, only substantial quantities of blood, semen or hair could suffice to produce a useful evidentiary result. But just about every cell in (or, as will be noted, on) the human body contains DNA, and over time, the science has evolved to take advantage of this fact. Today, not only is it possible to run tests on very small samples, but the practice of using software to sift “irrelevant” information from the materials under analysis, while retaining enough fidelity to hold up in court, has expanded DNA profiling far beyond its early boundaries.

One of the most impactful advances in the field has been experts’ ability to work with “trace” amounts of genetic material. And because testing methods have grown so ...

Suspected Mishandling of DNA Tests Puts Cases on Hold in Fort Worth, Texas

by Michael Berk

The Tarrant County District Attorney’s Office has put 117 criminal cases on hold in response to suspected misconduct involving DNA testing by a Fort Worth forensic scientist.

On February 27, 2019, Amanda Schaffner’s supervisor at the crime lab noticed that there was no digital record of a ...

Creation of Prosecutorial Watchdog in New York Spotlights Distinction Between Misconduct and Unfair Conduct

by Michael Berk

Thanks in no small part to the dedicated lobbying of people such as Jeffrey Deskovic — who spent 16 years locked up for a rape and murder he did not commit — the New York State Legislature created the country’s first independent commission to oversee state prosecutors. ...


Federal Prison Handbook


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Federal Prison Handbook