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Habitual felon sentence didn’t transform underlying crimes
A habitual felon sentencing enhancement doesn’t reclassify underlying felonies to higher-level felonies, the North Carolina Court of Appeals has unanimously ruled in a case of first impression, finding that a trial court erroneously applied a further sentencing enhancement for serious sexual offenders to a man whose sentence for a low-level felony was enhanced because he […]
Criminal Practice – Sentencing – Aggravating Factor – Position of Trust – Sex Offense with a Child
Even though the three-year-old victim only interacted with defendant in person on two occasions, the jury could find that he took advantage of a position of trust and confidence to commit a sex offense against her because the victim was very dependent on her mother, who was in a relationship with defendant. We find no […]
Criminal Practice – Sentencing – Juvenile Offender – Life without Parole – First Impression
Where the trial court found that “there is no certain prognosis” for defendant’s potential for rehabilitation, defendant – who was 17 when he committed the two murders at issue – does not fall within the class of juvenile offenders who are “irreparably corrupt” and “permanently incorrigible” and who may therefore be sentenced to life without […]
Criminal Practice – Sentencing – Marijuana Possession – Second Conviction – Habitual Felon
Where defendant had previously been convicted of a marijuana possession offense, and where he had attained the status of a habitual felon, his current marijuana possession conviction – normally punishable as a Class 1 misdemeanor – is punishable as a Class E felony. G.S. § 90-95 does not merely increase the punishment for a subsequent […]
Criminal Practice – New test established to invoke sentencing relief
An appellant seeking habeas relief under 28 U.S.C. § 2255 satisfied the requirements of the law’s savings clause because a retroactive change in 4th Circuit law – occurring after the time for direct appeal and the filing of his first § 2255 motion – rendered his applicable mandatory minimum unduly increased, resulting in a fundamental […]
Criminal Practice – Voluntary Manslaughter – Assisted Suicide – Sentencing – No Extraordinary Factors
Holding: A victim’s consent to the crime is listed as a mitigating factor in the sentencing statute, and defendant argues that the trial court believed that the victim’s consent to her own death, regardless of its significance, could never be considered an extraordinary mitigating factor. However, the record makes clear that the trial court understood […]
Criminal Practice – Sentencing – Procedurally Unreasonable – Downward Departure Arguments
United States v. Blue (Lawyers Weekly No. 001-216-17, 13 pp.) (Roger Gregory, C.J.) 16-4537; Dec. 12, 2017; USDC at Greensboro, N.C. Holding: In imposing a within-Guidelines sentence on defendant for armed robbery and brandishing a firearm during a crime of violence, the district court made cursory reference to two of defendant’s arguments for a downward […]
Criminal Practice – Sentencing – Prior Conviction – AISBI – Crime of Violence
United States v. Thompson (Lawyers Weekly No. 001-192-17, 10 pp.) (Diana Gribbon Motz, J.) 15-4685; Oct. 26, 2017; USDC at Raleigh, N.C. (W. Earl Britt, S.J.) 4th Cir. Holding: Under Johnson v. United States, 135 S. Ct. 2551 (2015), when considering whether a prior crime constitutes a crime of violence under the residual clause of […]
Criminal Practice – Sentencing – Child Pornography Possession – Downward Departure – Autism Diagnosis
United States v. Zuk (Lawyers Weekly No. 001-191-17, 26 pp.) (Paul Niemeyer, J.) 16-4727; Oct. 24, 2017; USDC at Statesville, N.C. (Richard Voorhees, J.) 4th Cir. Holding: The trial judge abused his discretion when, based almost entirely on consideration of defendant’s recent autism diagnosis, he dramatically departed from the USSG recommendation of 240 months and […]
Criminal Practice – Sentencing – Prior Conviction – Crime of Violence – W.Va. Aggravated Robbery
United States v. Salmons (Lawyers Weekly No. 001-184-17, 10 pp.) (J. Harvie Wilkinson III, J.) No. 16-4316; Oct. 12, 2017; USDC at Charleston, W.Va. (Thomas Johnston, C.J.) 4th Cir. Holding: At the time of defendant’s West Virginia conviction for aggravated robbery, that crime was defined as the successful or attempted commission of a “robbery by […]
Criminal Practice – Within-Policy-Statement-Range Sentence – Nonfrivolous Arguments – Court’s Failure to Explain Reasons
U.S. v. Slappy (Lawyers Weekly No. 001-181-17, 19 pp.) (Gregory, C.J.) (Shedd, J., dissenting) No. 16-4010, Sept. 22, 2017. Appeal from the U.S. District Court for the Eastern District of North Carolina, at Wilmington. (Fox, S.J.) 4th Cir. Holding: Where the defendant-offender presented arguments in favor of a within-policy-statement-range sentence and the district court […]
Criminal Practice – Jury Instructions – Alibi Defense – Ineffective Assistance Claim – No Prejudice – Sentencing – Attorney’s Fees
State v. Harris (Lawyers Weekly No. 011-296-17, 20 pp.) (Linda McGee, C.J.) Appealed from Carteret County Superior Court (Arnold Jones II, J.) N.C. App. Holding: Defendant argues that he received ineffective assistance of counsel because counsel neglected to inform the state that he would provide an alibi defense; however, the trial court never ordered defendant […]
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Commentary
- Amotion sees resurgence after almost a decade
- The flip side of generative AI in law and how to address it
- The fight for equal educational opportunity continues
- Court’s term was rough on big business
- Ex-president, bar association have made their choice
- Ruling sharpens boundaries in attorney-client privilege
- Lawyers Weekly debuts new and improved web experience
- US Supreme Court bites back at parody’s use of the First Amendment
- Supreme Court leaves key internet protection untouched
- Case study: North Carolina courts provide guidance on scope, limitations of attorney-client privilege
- A Different Ode to Pro Bono Work
- A roadmap to attracting, developing, retaining great associates
