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US v. Miguel Delacruz, 2nd Cir., 7/5/17: Another Important Sentencing Opinion out of the 2nd Circuit; Reversal of Denial of Credit for Acceptance of Responsibility

July 6th, 2017
Elizabeth Franklin-Best

The Second Circuit just released its second very important federal sentencing opinion in the past week.  See US v. Scarpa, Jr. (2nd Cir, 6/22/17) (reversal of substantial assistance reduction granted by sentencing judge). Because I'm about to go on vacation and am feeling a bit lazy, I'll cut to the chase-- Delacruz was involved in a planned robbery of who he thought were drug dealers (but were actually government snitches).  He had a

US v. Mondragon (4th Cir., 6/21/17) Second Federal Gun Enhancement Case this Month; 4th Circuit Clarifying Law Surrounding Gun Enhancements.

July 5th, 2017
Elizabeth Franklin-Best

The Fourth Circuit appears interested these days in clarifying the rules surrounding gun enhancements in the context of federal drug trafficking conspiracies.  See US v. Bolton, ___ F.3d__, No. 16-4077, 2017 WL 2468720, (4th Cir. June 7, 2017).   Here, Mondragon was convicted of conspiracy to distribute methamphetamine, and he received a 2 level enhancement provided for by USSG §2D1.1(b)(1).  The court relied on statements by two co

US v. Francisco Colorado Cessa (5th Cir., 6/9/17): Excellent Brady Decision re: Gov’t’s Failure to Disclose 302’s.

July 3rd, 2017
Elizabeth Franklin-Best

A very nice and important 5th Circuit opinion by the panel of Judges Higginson (author), Prado, and Costa. This defendant had the misfortune of getting connected with Los Zetas, a Mexican drug cartel. The government alleged that Colorado was involved in money-laundering the cartel's money through purchases of quarter houses (a type of racehorse).  Colorado was a businessman from Mexico who happened to have a relationship with a Zeta member who w

US v. Gregory Scarpa, Jr., (2nd Cir, 6/22/17), Federal Sentencing Issue, REVERSAL on Substantial Assistance Granted by Sentencing Judge

June 30th, 2017
Elizabeth Franklin-Best

I'm highlighting this case because it's unusual, and also involves the high profile case of the Timothy McVeigh terrorist attack in Oklahoma City. Also, Scarpa is a "made member" of the Colombo crime family. Here, the government appealed the judgment of District Court Judge Edward R. Koman after he reduced Scarpa's sentence by 10 years based on a pro se 35(b) motion that claimed Scarpa provided substantial assistance to the government leading to

US v. Chikvashvili (4th Cir., 6/9/17) Healthcare Fraud and “But For” Causation

June 28th, 2017
Elizabeth Franklin-Best

On June 9, 2017, a full panel joined to deny relief to this appellant. Chikvashvili was convicted of two counts of healthcare fraud resulting in death under 18 U.S.C. §1347. Chikvashvili was found guilty of directing unqualified radiologic technicians to interpret x-rays, and billing Medicare as though licensed professionals had performed the work. Two patients died when their x-rays were misread by technicians employed by Chikvashvili. Chi

US v. Mark Concha (4th Cir. 6/16/17): Factors the Sentencing Judge May NOT Consider under USSG §5K1.1 and 18 U.S.C. §3553(e).

June 27th, 2017
Elizabeth Franklin-Best

This is an important case for lawyers representing clients on federal drug charges and whose clients have cooperated with the government (so, just about all of us). Concha was a big dawg drug dealer, and when he was busted he cooperated completely and with abandon. He offered very, very substantial assistance, so much so that the Government recommend the judge sentence him at the low end of the Guidelines, and then with an additional 50% off that

When to Retain an Appellate Lawyer?

June 26th, 2017
Elizabeth Franklin-Best

Many clients, I find, have really no idea what an appellate lawyer does when they first find out they may need one. After all, everyone knows what trial lawyers do-- Law & Order was probably the most popular show in the 1990’s, and there have been literally hundreds of television shows that follow the sexy and entertaining challenges of the criminal defense trial lawyer. The question of what an appellate lawyer does, and when you need one a

Raising Winning Issues on Appeal

June 23rd, 2017
Elizabeth Franklin-Best

When I meet with clients for the first time, often I’m asked what kinds of issues can be raised in the appeal. This is an incredibly important issue so I thought I would take some time to explain, generally, what issues can be raised in direct criminal appeals in South Carolina. In South Carolina, our appellate courts strictly adhere to the contemporaneous objection rule. What this means is that our appellate courts will not address issues t

US v. Lashaun Bolton (4th Cir, 6/7/17): Important federal sentencing case re: Firearm Enhancement and Acceptance of Responsibility

June 9th, 2017
Elizabeth Franklin-Best

Not good news for criminal defendants, but an important case to be aware of if you're representing defendants ensnared in a "guns and drugs" conspiracy indictment. The details are not really important, but two facts are: (1) the firearm used to enhance Bolton's sentence was discovered outside the timeframe of illegal activity alleged in Bolton's first indictment, and (2) while Bolton was awaiting sentencing on his first indictment (the marijuana

United States v. Master Giddins (4th Cir., 6/6/17) Reversal on Miranda violation issue; Economic Coercion. Robust dissent by Judge Agee.

June 7th, 2017
Elizabeth Franklin-Best

An incredible win on an interesting issue, the Fourth Circuit Court of Appeals reversed Giddins's convictions based on a Miranda violation (when was the last time you saw that?!?).  Just a brief chronology of the encounter (which was recorded on video).

  • 10:17am:      Giddins entered the interrogation room and an officer audibly locked the door.
  • 10:21am:      An officer got up, informing Giddins that h




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