Interesting Cases From Other Circuits

Relying on Gall and Kimbrough, the Fifth Circuit held that the district court could impose an above-guidelines sentence on a reentry defendant based on its conclusion that USSG 2L1.2 was under-inclusive in what it counted as prior drug trafficking offenses. Accordingly, the district court varied upward based on the defendant's prior drug conviction that did not qualify as a 12-level drug trafficking offense. US v. Herrera-Garduno, No. 07-40327 (5th Cir. 3/10/08)

The 11th Circuit rejected the petitioner's 2255 claim that his attorney was per se ineffective for failing to object to the district court's failure to address him personally about his right to allocute. Gordon v. US, No. 05-16703 (11th Cir. 3/7/08)

Officers were justified in entering the civil rights plaintiff's apartment without a warrant or probable cause where the plaintiff had called a hot line operator and made statements about shooting people at work and suicide. The plaintiff was distraught about breaking up with his girlfriend when he called the suicide hotline. He was arrested in the parking lot of his apartment within 15 minutes as he was putting luggage in his van. A bullet was found in the suitcases. The plaintiff was a licensed gun collector, so as one group of officers took plaintiff to the psychiatric hospital, another group entered his apartment and found lots of guns, ammo, and survivalist literature, all of which was seized and not returned. The court considered the following factors in determining the reasonableness of the officers' preventive actions: the likelihood the danger will come to pass; how quickly the harms sought to be prevented will occur; and the gravity of the danger. The actions were reasonable in this case to protect public safety. Mora v. City of Gaithersburg, Md., No. 06-2158 (4th Cir. 3/4/08)

A defendant who just randomly chose a name from the phone book and then used the name to generate false identification and attempt to defraud banks could not be convicted of aggravated identity theft unless he used sufficient specific information to identify a unique individual. US v. Mitchell, No. 06-5169 (4th Cir. 3/6/08)

Due process requires that authorities try to contact the owner of a vehicle parked in violation of state registration laws before towing and impounding it, the 9th Cir. held. The officer in this case should have tried minimal means of contacting the owner, such as placing a ticket on the windshield, before towing it. Clement v. Glendale, NO. 05-56692 (9th Cir. 3/11/08)

A conviction for unlawful possession of ammunition was reversed based on insufficiency of the evidence where the government presented evidence that the defendant did not possess a license to possess a firearm but did not prove that the defendant unlawfully possessed the ammunition under Virgin Islands law. US v. Daniel, No. 07-2413 (3d Cir. 3/6/08)