Georgia walkaway escape conviction is NOT a career offender predicate in light of Chambers v. United States, 129 S.Ct. 687 (2009).

Petitioner Dave Roberson III appealed his 300 month sentence for Hobbs Act robbery and an associated 924(c) out of the Southern District of Georgia on the ground that a Georgia conviction for walkaway escape had been erroneously used as a career offender predicate.  The Government conceded error citing Chambers v. United States, 129 S.Ct. 687 (2009).  The Eleventh Circuit agreed.

United States v. Dave Roberson, 09-10519 (per curiam)(December 30, 2009).

Congress Approved Over $222 Million for Prisoner Reentry Programs Earlier this Month

While perusing the Georgia Board of Pardons and Paroles for information about Second Chance Act programs in Georgia, I noticed this relatively recent posting relating to additional funding for the act earlier this month.

On Sunday, December 13, 2009, the Senate approved an appropriations bill for fiscal year 2010 that provides $114 million for prisoner reentry programs in the Department of Justice, including $100 million for Second Chance Act grant programs and $14 million for reentry initiatives in the Federal Bureau of Prisons. The House of Representatives passed the bill (H.R. 3288) on Thursday, December 10, 2009. The bill provides

• $37 million for reentry demonstration projects under Sec. 101 of the Second Chance Act
• $15 million for mentoring grants to nonprofit organizations under Sec. 211
• $10 million for reentry courts under Sec. 111
• $7.5 million for family-based, substance abuse treatment under Sec. 113
• $2.5 million for grants to evaluate and improve education in prisons, jails, and juvenile facilities under Sec. 114
• $5 million for technology careers training demonstration grants under Sec. 115
• $13 million for reentry substance abuse and criminal justice collaboration under Sec. 201
• $10 million for reentry research under Sec. 245

The appropriations bill also provides $108,493,000 for reentry programs in the Department of Labor, including $15 million for a transitional jobs grant program. For more information about the Second Chance Act, click here.

Unfortunately, I did not find any programs so far implemented in the State of Georgia.  If you know of some, please respond with a comment to this post.  Nevertheless, this enactment which was initiated during the Bush Administration is further evidence of policy support for programs which seek to find solutions to criminal behavior which involves less straight imprisonment and more targeted programs designed to help offenders find other more productive life solutions.  There are many helpful pronouncements in the legislative history.

For text of the Second Chance Act, click here.
Click here for a New York Times article about the act at the time of its passage.

Come On Up to the Podium! A Sentencing Tidbit on the Importance of Family Support to Determining a Reasonable Sentence

Next time you find yourself staring at a judicial look which seems to say, why do I need to hear from the defendant's family?  Consider quoting Attorney General Eric Holder's December 15 remarks during his visit to Morehouse College.

"Research reveals that incarcerated men who maintain strong family ties while behind bars are more successful when they are released. They have an easier time finding jobs and staying off drugs. In fact, a recent study done for the Department of Health and Human Services found that people who were married or in committed relationships were half as likely to use drugs or commit new crimes after they were released from incarceration."

Thus, a defendant's family ties and the family's resolve to remain supportive to the incarcerated person are relevant and important to the 3553 calculus under Booker.  While this is something we all knew already, it is nice to be able to quote the nation's chief law enforcement officer on this point.

For complete text of Holder's introductory remarks, click here.

It's official... Sally Yates nominated to serve as United States Attorney for the Northern District of Georgia on Christmas Eve.

President Obama today nominated Sally Yates to serve as the United States Attorney for the Northern District of Georgia.

For AJC article, click here.

Federal Stowaway Charge Does Not Require Intent to Enter the United States for Conviction

A Nigerian soccer player boarded a commercial vessel (the Ref Vega pictured at left) hoping to make his way to Chile. Instead he was apprehended and found himself in the United States charged under the federal stowaway statute, 18 USC 2199, in the Southern District of Alabama.

Section 2199 has only been a felony since 2006. It reads in pertinent part, "Whoever, with like intent, having boarded, entered or secreted himself aboard a vessel or aircraft at any place within or without the jurisdiction of the United States, remains aboard after the vessel or aircraft has left such place and is thereon at any place within the jurisdiction of the United States ... shall be fined under this title, or imprisoned not more than 5 years, or both." With like intent apparently refers to the earlier clause which states, "with intent to obtain transportation."

The defense sought to litigate the issue of intent to enter the United States at the trial. However, the district court ruled that intent to enter the United States is not required for conviction. Today the Eleventh Circuit affirmed.

United States v. Banjoko, ___ F.3d ___, 08-00364 (11th Circuit 2009) (Edmondson, Birch and Black)

A trial with proper venue is a Sixth Amendment right, but no new trial where defendant failed to object to transfer.

[Following is a capsule summary only.  More details are found in our Blues Newsletter.]  Jefferson County Commissioner Gary White was charged with accepting bribes from sewer companies which had contracts with Jefferson County, Alabama in the Northern District of Alabama.  Prior to the trial, the defense requested that the case be transferred within the Northern District of Alabama from Birmingham to Tuscaloosa, because of prejudicial pretrial publicity.  The district court felt Tuscaloosa was still too close, so the court transferred the case out of the district to Montgomery, in the Middle District of Alabama.  Neither side objected.

After the Montgomery jury returned with a conviction, the defendant asked for a new trial arguing that it was error to transfer the case out of the district sua sponte and that it was a violation of the Sixth Amendment.  The district court reluctantly granted a new trial.  On the Government's interlocutory appeal, the Eleventh Circuit reversed finding that although trial in the district with proper venue is a Sixth Amendment right, the defendant waived his right to trial in the Northern District of Alabama by failing to object.  The Supreme Court established that the Sixth Amendment guarantees defendants a right to be tried in the district with proper venue and also guarantees defendants the right to have their jury selected from that district as well in Johnson v. United States, 351 U.S. 215 (1956).

News article about the decision.
Text of the Eleventh Circuit's opinion in United States v. Gary White.

Let's Start Blogging!

As promised, the new Federal Defender interactive blog is here (ahead of schedule)!  Please join us in keeping each other up to date and armed with the most current developments in federal criminal law.  We also hope to inspire each other to continually raise the level of practice in our district for the benefit of our clients.  We welcome your comments and questions on our postings.  If you submit questions, or have ideas for new posts, we will moderate the comments and setup new post topics where appropriate.  We encourage you to subscribe to this blogspot so that you will receive the most up to date announcements  from our postings.  Special thanks to our own Rhonda Turner, FDP CSA, for pointing us in the right direction.  We look forward to blogging with you!

Sentencing Commission Issues Report on History of the Child Pornography Guidelines

Back in October 2009, responding to growing concerns about the long lengths of child pornography sentences, the United States Sentencing Commission issued a report entitled History of the Child Pornography Guidelines.  This report details how sentencing for child pornography defendants has tripled over the last several years.  This report provides an interesting perspective and is a spring board to ideas for advocacy.

A Great Resource for Defenders from Don Samuel!

Don Samuel, of Garland, Samuel & Loeb, author of the Eleventh Circuit Criminal Handbook, has completed a thorough review of helpful caselaw from the Supreme Court and federal appellate courts.  With over a thousand pages of winning citations, the new book is a must have for all federal criminal defense practitioners.  Don has generously made this book available for free in electronic format.  Click here for the link.  Thanks Don!
Favorable and Noteworthy Decisions in the Supreme Court and the Federal Appellate Courts.

Child Pornography Restitution Claims Must Be Supported by Proof of Proximate Cause in N.D.Ga.

The Government has started seeking restitution against defendants convicted of child pornography possession and distribution offenses on behalf of several known child victims who have filed restitution claims  around the country.  The first case to reach this issue in our district, United States v. Vanbrackle, 2:08-CR-042-WCO-SSC, is a defense victory.  Judge O'Kelley ruled (over the Government's objection) that proof of proximate cause must be made out before the court is authorized to award restitution in a child pornography case (just like in every other type of case).  Kudos to Rick Holcomb for submitting an excellent brief, assisted by Jeff Ertel and Nicole Kaplan.  The briefs and order in Vanbrackle may be found on Pacer. 

PLEASE CONTACT OUR OFFICE 404-688-7530 IF YOU HAVE A CASE IN WHICH THERE IS A CHILD PORNOGRAPHY RESTITUTION CLAIM.  JEFF ERTEL AND NICOLE KAPLAN ARE SPEARHEADING THIS ISSUE.

Following are a collection of several significant cases from other districts ruling on this issue:

United States v. Berk, D.Maine, 08-CR-212-P-S (denying restitution).

United States v. Cook, D. Alaska, 4:08-CR-0024 (denying restitution).

United States v. Zane, E.D.Ca, 1:08-CR-0369 (granting restitution).

United States v. Paroline, E.D.Tx, 6:08-CR-61 (denying restitution).


Update:  The New York Times did an article on "Amy," the alleged victim in many of the child pornography restitution cases.  There are significant inaccuracies in the article.  With that caveat, click here for a link to that article.

Northern District of Georgia Local Rules Change

The Local Criminal Rules for the Northern District of Georgia have changed.  Before the local rules changed, pretrial motions were due in 10 days, excluding weekends and holidays.  Under the new rules, pretrial motions are due in 14 days straight, including weekends and holidays.  Most of the time this change makes no difference to the time period, but there are times when the new method of calculating the deadline does make a difference.  Be aware of the change.