Bad Advice Amounts To Ineffective Assistance Of Counsel, High Court Rules
Ineffective assistance of counsel is the most common claim presented in a 28 U.S.C. § 2255 motion. A § 2255 motion is used by federal prisoners to seek relief from their conviction or sentence. Under section 2255, a federal prisoner may move to vacate, set aside, or correct their sentence if it was (1) imposed…
Witness Credibility Findings May Not Be Rejected Without New Hearing
Witness credibility is often key in resolving whether a federal prisoner is entitled to 28 U.S.C. 2255 relief. This is because 2255 claims typically pit the testimony of defendants against their former lawyers. However, since federal district judges are busy, magistrate judges are routinely tasked with making a report and recommendation about whether the defendant’s…
Posting Not Necessarily “Advertisement” Under 18 USC 2251
18 USC 2251 (d)(1) makes it federal crime for anyone to post a “notice or advertisement seeking or offering— (A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is…
Motion To Suppress Evidence – Illegal Search
The U.S. Court of Appeals for the Ninth Circuit has upheld a federal judge’s decision to grant a motion to suppress evidence obtained during an illegal search. Straughn Gorman was stopped by a Nevada state trooper for an alleged “left lane violation” while driving a motorhome. The trooper was suspicious that Gorman was carrying bulk…
Federal Forfeiture Misuse Curbed By New Supreme Court Decision
The U.S. Supreme Court handed down a very important decision today concerning federal forfeiture matters. Federal law allows the Government to obtain forfeiture of “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of certain drug crimes.” 21 U.S.C. 853(a)(1). Terry Honeycutt and his brother, Tony, were charged…
Dimaya, Oh Dimaya … Where Art Thou?
If you are a federal sentencing fan like me, then you are also likely waiting for the Supreme Court’s decision in Sessions v. Dimaya, No. 15-1498 (yes, it’s now Sessions since AG Lynch is no longer there). At issue in Dimaya is whether 18 U.S.C. 16(b) is unconstitutional in light of the Supreme Court’s 2015 Johnson…
New Report About Federal Youthful Offenders From U.S. Sentencing Commission
The U.S. Sentencing Commission, which is responsible for advisory federal sentencing guidelines, has issued a new report on federal youthful offenders.The report has some interesting factoids about federal youthful offenders, such as: There were 86,309 offenders (18.0% of the federal offender population) age 25 or younger sentenced in the federal system between 2010 and 2015.…
Federal Restitution Order Not Subject To Categorical Approach, Fourth Circuit Decides
The “categorical approach” does not apply to federal restitution orders under the Mandatory Victims Restitution Act (MVRA), the U.S. Court of Appeals for the Fourth Circuit recently decided. In addition, the court held that a successor lender is entitled to restitution in an amount equal to the original face value of the debt minus any…
Texas Injury To A Child Not A Crime Of Violence Under Mathis
A Texas injury to a child conviction under Texas Penal Code 22.04(a)(3) is not an aggravated felony under the sentencing guidelines any longer in light of Mathis v. United States. Raul Martinez-Rodriguez received an eight-level enhancement under § 2L1.2(b)(1)(C) based on a prior Texas injury to a child conviction. In determining whether Martinez-Rodriguez’ Texas injury…
Amendment 782 Relief Available For Money Laundering Charge
The U.S. Court of Appeals for the Fifth Circuit has reversed the denial of an Amendment 782 motion. The defendant was sentenced for federal drug and money laundering charges. The lower court found Amendment 782 inapplicable on the basis that it did not affect the defendant’s money laundering sentencing. Roberto Torres was sentenced to 262…