Monday, November 29, 2010

U.S. v. Johnson, No. 09-50292 (11-29-10) (Strom, Sr. D.J., D. Neb. with Fisher and Bybee). Defendant plead guilty to distributing crack cocaine. His guidelines were 57 to 71 months. His sentence, though, was for 120 months. Unfortunately, he waived his right of appeal. The 9th takes a look at the colloquy under Rule 11, and finds that the waiver was valid. The fact that the defendant asked questions did not make his understanding suspect when the court took pains to answer the queries. Moreover, the court confirmed that the defendant met with counsel and discussed the plea. The 9th also brushed aside the equal protection challenges to crack/cocaine sentencing. On the appeal as to the supervised release conditions, defendant had more success. The district court imposed conditions against gang association and wearing gang colors -- all permissible -- but crossed the line with the condition that he not associate with people who associate with gang members. Although the review was again plain error (objecting really helps with the standard of review), the 9th concluded this was far too overbroad, vague, and violative of due process and First Amendment. It swept in people who may have social contact only with gang members, family members of gang members, and even such a person as a probation officer. Other conditions can achieve the same end of restricting gang affiliation and involvement.


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