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Tag Archives: sentencing

Criminal Practice – Sentencing – Child Pornography – Preferred Medication (access required)

U.S. v. Clawson A sentencing court erred in applying the Rule 35(b) “substantial assistance” ground to reduce a sentence for distribution of child pornography from 96 months to one day; the 4th Circuit vacates the sentence reduction because it was based not on the substantial assistance provided to the government by the defendant, but on the sentencing court’s concern that defendant would not receive his preferred medication for depression and attention deficit disorder while in prison.

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Criminal Practice – Sentencing – Aggravating Factor – Law Enforcement Victim – Defendant’s Knowledge – Second Degree Murder – Miranda – Batson (access required)

State v. Carter The aggravating factor set out in G.S. § 15A-1340.16(d)(6) applies when the offense is committed against a law enforcement officer “engaged in the performance of that person’s official duties or because of the exercise of that person’s official duties.” Since the state proved that the victim was engaged in the performance of his duties as a law enforcement officer, it did not need to show that defendant knew the victim was a law enforcement officer. We find no error in defendant’s conviction of second-degree murder.

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Criminal Practice – Incendiary Material – Judges – Laughter – No Prejudice – Sentencing (access required)

State v. Herrin Even though the trial judge laughed in open court upon hearing the victim’s testimony that defendant “ran like a bi—- all the way, way down past his house,” defendant failed to show any prejudice arising from the incident. We find no prejudicial error in defendant’s conviction of felonious malicious use of an explosive or incendiary device or material.

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Criminal Practice – Constitutional – Double Jeopardy – Drive-by Shooting – Right to Be Present – In-chambers Conference – Sentencing – Restitution – Crime Victims Compensation Fund (access required)

State v. Wright Where a drive-by shooting (of several bullets) was aimed at one victim but also injured another, defendant could be charged with and convicted of two separate and distinct offenses of attempted murder and assault as to each victim; defendant’s right against double jeopardy was not violated.

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Criminal Practice – Jurisdiction – Arrested Judgment – Sentencing – Superior Court – DWI (access required)

State v. Petty The district court arrested judgment on defendant's DWI conviction. Three weeks later, the state pointed out the impropriety of such a ruling, and the district court sentenced defendant. Contrary to the finding of the superior court, the district court did have authority to sentence defendant; rather than dismissing the charge against defendant, the superior court should have conducted a trial de novo.

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Criminal Practice – Obtaining Property by False Pretense – Evidence – Subsequent Bad Acts – Sentencing (access required)

State v. Twitty Where defendant told an Alamance County church congregation a sad, but false, story, asked church members for money, and received money and gas for his car, the trial court did not abuse its discretion when it admitted evidence that defendant had done the same thing in other churches after the Alamance County incident.

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Criminal Practice – Constitutional – Confrontation Clause – Sentencing – Mail Fraud (access required)

U.S. v. Powell A defendant convicted of mail fraud for his scheme of selling electronics over the Internet, who pocketed the money without shipping the products, is not entitled to resentencing because the district court used hearsay to conclude defendant had harmed more than 10 people and caused just under $200,000 in damages; the 4th Circuit joins its sister circuits to hold that the Confrontation Clause does not apply at sentencing proceedings.

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Criminal Practice – Search & Seizure – Unregistered Motel Guest -Sentencing – Crack Cocaine (access required)

U.S. v. Bullard Drug evidence found in a suitcase belonging to defendant, an unregistered motel guest, need not be suppressed, the 4th Circuit says, even if searching the suitcase went beyond a "protective sweep"; and the 4th Circuit joins its sister circuits and holds that the Fair Sentencing Act of 2010 does not apply retroactively to allow defendant to be resentenced on a crack cocaine offense.

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