Bill Brennan will testify today before the United States Sentencing Commission on behalf of the Practitioner's Advisory Group. The subject of Bill's testimony will be proposed amendments and draft language to certain sentencing guidelines related to arms trafficking (Sections 2K2.1 and 2M5.2).
The Commission's hearing agenda is here and Bill's proposed comments are here.
Posted by Brennan Sullivan and McKenna
Thursday, March 17, 2011
Saturday, March 5, 2011
Fourth Circuit Reverses Conviction Because of Illegal Seizure
United States of America v. David Foster, No. 09-5161 (4th Cir. March 2, 2011). Available here.
The U.S. Court of Appeals for the Fourth Circuit reversed and remanded a case involving the warrantless seizure and search of a man in North Carolina. The facts of the case are straight-forward, as is the court’s analysis: two young black men were sitting in a parked SUV outside of a local restaurant. A police officer walked by the men and noticed that one of them mouthed something to the other. The man in the passenger seat sat up straight, and then began moving his arms, as though he was doing something with his hands. The officer called his headquarters and was informed that one of the young men was “under investigation.” After a few minutes, the officer approached the men, seized them and searched their vehicle.
Of course, in order to stop or seize a person, police must have a “reasonable and articulable suspicion that the person seized is engaged in criminal activity.” The court of appeals any suspicion in this case to be more of a hunch (the officer himself told the young men prior to the search that he “knew they were up to something”) than an articulable suspicion.
The significance of this opinion, from a defense attorney’s perspective, is not in the underlying facts or the court’s analysis. Rather, it is the following passage:
“We also not our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. . . . we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous. . . . Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. . . . the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.”
Posted by Brennan Sullivan and McKenna
The U.S. Court of Appeals for the Fourth Circuit reversed and remanded a case involving the warrantless seizure and search of a man in North Carolina. The facts of the case are straight-forward, as is the court’s analysis: two young black men were sitting in a parked SUV outside of a local restaurant. A police officer walked by the men and noticed that one of them mouthed something to the other. The man in the passenger seat sat up straight, and then began moving his arms, as though he was doing something with his hands. The officer called his headquarters and was informed that one of the young men was “under investigation.” After a few minutes, the officer approached the men, seized them and searched their vehicle.
Of course, in order to stop or seize a person, police must have a “reasonable and articulable suspicion that the person seized is engaged in criminal activity.” The court of appeals any suspicion in this case to be more of a hunch (the officer himself told the young men prior to the search that he “knew they were up to something”) than an articulable suspicion.
The significance of this opinion, from a defense attorney’s perspective, is not in the underlying facts or the court’s analysis. Rather, it is the following passage:
“We also not our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. . . . we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous. . . . Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. . . . the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.”
Posted by Brennan Sullivan and McKenna
Thursday, March 3, 2011
Supreme Court Widens Sentencing Courts' Discretion on Remand
Pepper v. United States, No. 09-6822 (March 2, 2011)
In an opinion filed yesterday, the Supreme Court held that upon the resentencing of a defendant in federal court, the sentencing court may--and should--take into account the defendant's post-sentence rehabilitation. Prior to this ruling, there was confusion among federal courts as to the types of considerations that are relevant for a court to take into account on resentencing. This opinion will not impact many offenders, but will serve to assist those defendants fortunate enough to have their sentences vacated and remanded on appeal, and who have made strides at self-betterment since their original sentence. Of course, as is noted by the Court, a court on resentencing is not limited to only consider the positive post-sentencing conduct of the defendant, but also the negative. The opinon is available here.
Posted by Brennan Sullivan and McKenna
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