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8th U.S. Circuit Court of Appeals Digest: May 17, 2023

Criminal Law

 

Abusive Sexual Contact of a Minor

Presentence Investigation Report; Uncharged Bad Acts

Defendant appealed the sentence imposed after he pled guilty to one count of abusive sexual contact with a minor and admitted to touching the victim’s genitals on one occasion. However, defendant’s PSR described four occasions on which defendant touched the victim’s genitals and recommended a five-level sentencing enhancement for repeated activity. The district court applied the sentencing enhancement over defendant’s objection that sexual conduct occurred more than once.

Where defendant specifically disputed touching the victim more than once, the district court erred in relying on the disputed allegations in the PSR to apply a sentencing enhancement.

Colloton, J., dissenting: “In applying a five-level increase under USSG § 4B1.5(b), the district court properly relied on unobjected-to facts in the final presentence report. Given the report of the victim that appellant Litson abused her on four separate occasions, the district court did not clearly err in finding that Litson “engaged in a pattern of activity involving prohibited sexual conduct.” USSG § 4B1.5(b). Although the district court did mistakenly determine the applicable criminal history category, Litson did not object to this error, and there is not a plain error warranting relief. I would therefore affirm the judgment.”

Judgment is vacated and remanded.

U.S. v. Litson (MLW No. 79894/Case No. 22-3013 – 15 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of North Dakota.

 

 

 

Anders Brief

Motion To Withdraw

Where appointed counsel attempted to file an Anders brief and asked to withdraw, the appeal cannot be decided until counsel files a brief that satisfies the Anders requirements, so the motion to withdraw is held in abeyance pending the filing of a compliant brief.

Motion to withdraw held in abeyance.

U.S. v. Collins (MLW No. 79900/Case No. 22-3120 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Moody, J.

 

 

Drug Offenses

Upward Variance; Substantive Reasonableness of Sentence

Defendant appealed the sentence imposed following his guilty plea to drug offenses, challenging the substantive reasonableness of the sentence, which included an upward variance.

Where the district court properly considered the relevant statutory sentencing factors, it did not abuse its discretion to impose an upward variance.

Judgment is affirmed.

U.S. v. Huntley (MLW No. 79895/Case No. 22-3673 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Missouri, Ross, J.

 

Indictment

Grand Jury Right

Where defendant sought a new trial, arguing that the district court constructively amended his indictment in violation of his right to a grand jury, the defendant was charged with touching the victim’s groin over his clothing, and the court did not constructively amend the indictment by providing the jury with an instruction giving them a dictionary definition of groin.

Judgment is affirmed.

U.S. v. Chopra (MLW No.79896/Case No. 22-1328 – 9 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, District of Minnesota, Brasel, J.

 

 

 

Obstructing Free Exercise of Religion by Force

Facial Invalidity; Crime of Violence

Defendant appealed her conviction for intentionally damaging religious property, obstructing by force the free exercise of religion, using a destructive device during a crime of violence, and conspiracy. Defendant’s conviction stemmed from her participation in a firebombing of a mosque. On appeal, defendant argued that the offenses of intentionally damaging religious property and obstructing free exercise of religion by force were facially invalid as exceeding Congress’s authority under the Commerce Clause. Defendant further argued that the predicate felonies could also involve use of force against one’s own religious property and therefore could not qualify as a crime of violence. Defendant also claimed that the prosecution received defense material protected by attorney-client privilege.

Where defendant used channels of commerce to facilitate her crime, defendant’s offenses of conviction were a valid exercise of Congress’s Commerce Clause powers, and the district court properly found a predicate crime of violence in forcefully obstructing the free exercise of religion since it necessarily involved obstructing someone else’s free exercise, the court affirmed defendant’s conviction.

Judgment is affirmed.

U.S. v. Hari (MLW No. 79889/Case Nos. 21-3661 & 22-1065 – 13 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, District of Minnesota, Frank, J.

 

 

 

Possession of a Firearm While Subject to Protection Order

Possession in Connection with Another Felony; Sufficiency of Evidence

Defendant appealed the sentence imposed following his guilty plea to possession of a firearm while subject to an order of protection. On appeal, defendant challenged the district court’s calculation of his base offense level, arguing there was insufficient evidence to find that he possessed the firearm in connection with another felony offense.

Where officers witnessed defendant remove his holster and firearm as they approached and the government presented evidence that defendant had recently engaged in drug dealing activity, there was sufficient evidence to establish that defendant possessed a weapon in connection with a felony drug offense.

Judgment is affirmed.

U.S. v. McDaniel (MLW No. 79891/Case No. 22-2059 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.

 

 

Revocation of Supervised Release

Application of Cross-Reference; Evidence of Intent to Kill

Defendant appealed the sentence imposed following the revocation of his supervised release for shooting a woman. Defendant did not contest the alleged supervised release violations and pled guilty to a new charge of possession of a firearm by a felon. On appeal, defendant argued that the district court erred in applying a cross-reference for attempted murder because there was insufficient evidence of his intent to kill the victim.

Where the evidence showed that defendant fired at the victim nine times, the district court had a sufficient basis to infer defendant’s intent to kill.

Judgment is affirmed.

U.S. v. Johnson (MLW No. 79892/Case Nos. 22-2673 & 22-2679 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Strand, J.

 

 

 

Revocation of Supervised Release

Revocation Sentence; Substantive Reasonableness of Sentence

Defendant appealed the sentence imposed following the revocation of his supervised release, challenging the substantive reasonableness of the sentence.

Where the district court properly considered the relevant sentencing factors, the court affirmed the judgment of sentence.

Judgment is affirmed.

U.S. v. Williams (MLW No. 79890/Case No. 23-1317 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Missouri, White, J.

 

 

 

Sentencing

Post-Arrest Conduct; Enhancement

Where a defendant challenged his sentence after pleading guilty to drug and firearm crimes, the defendant’s post-arrest conduct in attempting to bribe someone who was to testify against him supported an enhancement for obstruction of justice and when he later attempted to mislead the court about the relevant phone call, the denial of an acceptance-of-responsibility reduction was appropriate.

Judgment is affirmed.

U.S. v. Johnson (MLW No. 79892/Case No. 22-1671 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa.

 

 

 

Sentencing

Sophisticated Means

Where a defendant challenged his sentence in a mail fraud case, the district court did not err in finding that the multiple-step scheme was sophisticated enough to impose a sophisticated-means enhancement, so the judgment is affirmed.

Judgment is affirmed.

U.S. v. Abbott (MLW No. 79899/Case No. 22-2456 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa.

 

 

 

Sentencing

Special Assessment

Where a special assessment was remanded for clarification, the district court did not exceed the scope of the remand order, so the amended judgment is affirmed.

Judgment is affirmed.

U.S. v. Miller (MLW No. 79898/Case No. 22-1947 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of Nebraska.

 

 

 

Supervised Release

Revocation

Where a defendant challenged the revocation of supervised release, the district court did not abuse its discretion when it sent the defendant back to prison for marijuana use and violating drug test requirements.

Judgment is affirmed.

U.S. v. Funchess (MLW No. 79901/Case No. 22-3563 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa.

 

 

Environmental

 

Wetlands Regulation

Classification of Farmland Property; Agency Review Regulations

Plaintiff appealed the district court’s grant of summary judgment in favor of defendants in plaintiff’s lawsuit challenging the Department of Agriculture’s review regulation. Plaintiff filed suit to challenge the regulation after the department rejected his requests to reclassify his property after the agency previously determined that a portion of plaintiff’s farmland was protected wetland.

Where the review regulation did not impermissibly conflict with the Swampbuster Act, the district court correctly concluded that judicial review of the USDA’s decision was precluded by the Congressional Review Act, which prohibited judicial review of alleged agency omissions and plaintiff’s claims were based on the USDA’s alleged failure to submit the review regulation to Congress. Plaintiff’s claims also failed on the merits because the USDA’s refusal of plaintiff’s review requests was not arbitrary or capricious.

Judgment is affirmed.

Foster v. U.S. Department of Agriculture (MLW No. 79893/Case No. 22-2729 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Erickson, J.) Appealed from U.S. District Court, District of South Dakota, Lange, J.


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