Vacated sentence of 43 months for felon in possession of a firearm.

The district court erred in finding that defendant's prior felony conviction of attempted criminal sexual conduct in the second degree constituted a “crime of violence” that justified enhancing the sentence. The court erroneously applied the “categorical” approach to the prior conviction by looking beyond the statutory definition, relying on the amended information charging defendant with having sexual contact with a minor. The prior attempted CSC offense is not a violent felony as it is not similar in kind and degree of risk to the enumerated examples, including burglary, arson, extortion, or crimes involving the use of explosives.

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Affirmed judgment of district court granting petition for writ of habeas corpus.

The warden waived the exhaustion requirement with regard to petitioner's Brady claim. According to the Anti-terrorism and Effective Death Penalty Act (AEDPA), the state cannot be deemed to have waived the exhaustion requirement unless it “expressly waived the requirement.” “Express” is synonymous with “clear” or “unambiguous.” Here, the district court stated that it understood exhaustion to be a non-issue, and the warden failed to correct that assumption.

The district court correctly found that the prosecutor withheld evidence that would have both weakened the prosecution's case and strengthened the defense's position that someone else committed the murder, and that there was a reasonable probability that the outcome of petitioner's trial would have been different.

Judge Boggs, dissenting in part, would find that the state did not expressly waive the exhaustion requirement.

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Affirmed in part district court order granting motion to suppress.

The warrantless search that led to the seizure of a firearm in defendant's bag was not justified by exigent circumstances. Although methamphetamine labs are dangerous, the agents did not believe that methamphetamine was cooking in the hotel room at the time. The government's claims of exigency were merely a post hoc justification for the search as the agents did not seem concerned for their safety or that of other hotel guests.

Defendant's girlfriend's consent to search her bag did not justify the warrantless search of defendant's luggage where the officer's found only men's clothes in the second bag, creating ambiguity. The girlfriend's apparent authority dissipated upon the discovery of the men's clothing and was not reestablished by the officers, who could have asked the girlfriend for clarification.

Judge Sutton, concurring in part and dissenting in part, would find that the officers reasonably relied upon the girlfriend's consent.

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The state supreme court unreasonably applied federal law established in Batson v Kentucky, 476 US 79 (1986), when it denied relief to the petitioner without remanding the case to the trial court to consider a newly discovered videotape depicting prosecutors discussing their use of peremptory challenges, which constituted the best evidence bearing on the claim of discriminatory use of the strikes under Batson. The trial court, not an appellate court, should consider that evidence in the first instance as part of the Batson fact-finding process. The trial court is in the best position to make the necessary credibility determinations.

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Affirmed district court order denying summary judgment to defendant school officials.

Middle school students were denied their Fourth Amendment privacy rights by the school's practice of secretly videotaping them in locker rooms where they undressed. The videotaping was an “inherently intrusive” search that significantly invaded the students' reasonable expectation of privacy, and there was no demonstrated need for the practice. There was no evidence of any safety or security threats that would justify an intrusion of that scope. The principal and assistant principal were properly denied qualified immunity as the Fourth Amendment proscription of taping under these circumstances was clearly established.

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Vacated sentence of 14 months for bank fraud.

The trial court erred by applying the “abuse of position of trust” enhancement. Defendant did not occupy a position of trust. She functioned as a regular employee of the company, with no discretion to exercise her judgment or assert control over the finances of the company. Neither did she possess special skills not possessed by the general public.

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Vacated sentence of 42 months in prison for sexual abuse of a minor and remanded for resentencing.

The trial court failed to provide notice of its intent to depart above the guidelines. The error was plain because notice of intent to depart is clearly required by the statute, and nothing in the presentence report or in the parties' filings indicated any grounds for a departure. Also, the evidence supporting the upward departure was not overwhelming.

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Reversed convictions of conspiracy to distribute marijuana, heroin, and cocaine and possession of firearms in furtherance of drug trafficking crimes.

Defendant was denied his right to equal protection by the prosecutor's racially discriminatory use of peremptory challenges. Defendant sustained his burden to prove that the prosecutor's explanation for striking a black juror, the fact that he was on a jury in a different case that came back with a not guilty verdict, was pretextual. The prosecutor did not strike a white juror who was on the same jury that rendered the acquittal. There is no requirement that the jurors in the “comparative juror analysis” be similarly situated in all respects.

Defendant failed to prove that the defendants were denied their right to a jury selected from a fair cross-section of the community.

Defendant Andres' mandatory life sentence does not violate the Eighth Amendment prohibition against cruel and unusual punishment. Considering the amount of drugs involved and defendant's leadership role, the sentence was not grossly disproportionate to the crime. The sentence was not disproportionate to that of his codefendant. Moreover, the Constitution does not require proportionality between defendants.

Defendant Andres' sentence was properly enhanced using two prior convictions. Although they occurred during the drug conspiracy, the two offenses were committed well before the conclusion of the conspiracy, and defendant had the opportunity after each conviction to cease his criminal activity.

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Affirmed sentence of 117 months for distribution of cocaine. Case below: unpublished opinion (#03-00154; 02-11-05).

The district court did not violate the Sixth Amendment by finding sentencing facts in calculating defendant’s guidelines range because it treated the guidelines as advisory.

A party who is dissatisfied with the thoroughness of a sentencing judge's explanation of a sentence must object before the end of the sentencing hearing or plain-error review applies on appeal. Applying the plain-error rule to challenges to the “procedural unreasonableness” of a sentence does not conflict with United States Supreme Court cases regarding the review of sentences imposed under the advisory federal sentencing guidelines scheme. Nothing about United States v Booker, 543 US 220 (2005), suspends the obligation of counsel at a criminal proceeding to preserve a claim of error for appeal.

Defendant did not show that the trial court plainly violated its duty to “analyze[] the relevant sentencing factors” and his arguments for leniency. The judge mentioned the sentencing factors [18 U.S.C. §3553(c)] that were relevant to defendant’s pleas for leniency. The statute does not require sentencing courts to give reasons for rejecting any and all arguments by the parties for alternative sentences.

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Vacated sentence of 188 months in prison for kidnapping. Case below: unpublished opinion (WD Mich #1:03-cr-00202-RAE, 8/18/2005).

The district court abused its discretion by improperly calculating the guidelines sentence. The court mistakenly believed that an earlier version of the guidelines was in effect at the time of the crime. The miscalculation was not harmless error; the record revealed that the court was concerned with the violent nature of the offense as well as the defendant's criminal past, and when given the chance, it increased the sentence [that sentence had been vacated, the original sentence reinstated, and the government had appealed].

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Affirmed sentence of 66 months in prison with 10 years of supervised release for possessing images of minors engaged in sexual activity. Case below: unpublished opinion (WD Mich #1:06-CR-80, 6-27-2006).

The district court did not commit procedural error as it properly calculated the guidelines range, treated the guidelines as advisory, considered the sentencing factors, and adequately explained the variance from the guidelines range. The length of the sentence was not unreasonable. Although the court found the crime “thoroughly disgusting,” the court found that the defendant was a promising candidate for rehabilitation and adequately weighed the need for deterrence and protection of the public.

Judge Boggs dissented.

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Vacated sentence of 57 months for making false claims to the IRS; remanded for resentencing. Case below: unpublished opinion (#02-20027, 12-18-02).

The district court failed to address defendant's argument for a “time served” sentence and failed to consider the mitigating factors he presented. The “procedural reasonableness” requirement of Rita v United States, 127 SCt 2456 (2007), was not satisfied. The sentencing judge should address the parties' non-frivolous arguments for imposing a different sentence and explain why he has rejected those arguments.

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