Thursday, September 30, 2010

U.S. v. Webster, No. 09-30173 (9-30-10) (Thompson with Hall and McKeown). The 9th affirms convictions on drug, conspiracy, money laundering, and fraud counts. Numerous grounds were raised, the two most interesting dealing with money laundering instructions regarding profits and business record hearsay. The money laundering instruction failed to define "proceeds" as "profits" as arguably required under the Court's decision in Santos. However, since this offense was not a commercial undertaking, but a drug conspiracy, and where a money laundering count is based on transfers among co-conspirators of money from drug sales, "proceeds" includes all receipts, and not the narrower definition of profits. Turning to evidence, a Western Union check transfer was admitted into evidence under the business record rule. The defendant objected to the name on the transfer. It was to a co-conspirator. Because it was a co-conspirator, it can still come in as an admission of a party opponent.

U.S. v. Sipal, No. 08-10300 (9-30-10) (Hug with Bea and Edmunds, D.J.). In 2005, the defendant was sentenced for possession of crack and being a felon in possession. With 23 criminal history points, he was facing a range of 210 to 262 months. However, the sentencing was under Booker. As such, the court took into account the defendant's low IQ and small amount of crack (18 grams) and imposed a sentence of 144 months (concurrent with a 120-month sentence for the felon-in-possession charge). Subsequently, the Sentencing Commission retroactively amended the crack cocaine guidelines. The defendant then sought further reduction of his sentence under 18 U.S.C. § 3582(c)(2). The district court concluded that it did not have jurisdiction to reduce the sentence under § 3582(c)(2) because the sentence resulted from a discretionary application of the § 3553(a) factors and not a departure from the Guidelines range. The 9th remanded for further proceedings because the district court did not determine whether reducing the sentence would be consistent with the policy statements issued by the Commission -- particularly U.S.S.G. § 1B1.10(b)(2)(B), which says that for sentences imposed after applying the statutory sentencing factors, a "further reduction generally would not be appropriate." However, because "[b]y stating that the policy statement is 'generally' not applicable this leaves discretion with the district judge to determine its applicability." It left open the question whether the defendant's sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." See United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009). The district court has to determine on remand whether it now has discretion and then proceed to whether it wishes to exercise it.


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