July, 2018

7th Circuit: Federal Prisoners Sentenced
Under the Mandatory Residual Clause of
the U.S. Sentencing Guidelines Are
Entitled to Resentencing

Two federal prisoners sentenced under the mandatory residual clause of the U.S. Sentencing Guidelines moved for resentencing asserting their right to be resentenced claiming that the career offender sentencing guideline’s vague, yet mandatory residual clause unconstitutionally fixed their terms of imprisonment. The 7th Circuit joined the 1st Circuit and held that the residual clause shares the same weakness as the Armed Career Criminal Act as held in Johnson v United States, 576 U.S. ___ (2015), and granted resentencing. The 4th and 6th Circuits are split on this issue and have held that until the Supreme Court explicitly extends the logic of Johnson to the guidelines, resentencing under this circumstance will be denied. Cross v. United States, 2018 BL 201713, 7th Cir., 17-2282, 06-07-18.

1st Circuit: Defendant’s Sixth Amendment
Speedy Trial Right Violated by
Superseding Indictment

Defendant, a jewelry store owner, was accused of participating in a scheme to defraud the company’s former lenders. Over six years after the original indictment, defendant was charged with bank fraud in a superseding indictment. The 1st Circuit held that defendant was deprived of his Sixth Amendment right to speedy trial where fraudulent inflation of inventory to secure financing from banks undergirded both the bank-fraud charge in the superseding indictment and the wire-fraud charges in the original indictment and the government could have brought the bank-fraud charge at the same time as the original indictment. United States v. Handa, 2018 BL 203299, 1st Cir., 17-1961, 06-08-18.

1st Circuit: Warrantless Search of
Defendant’s House Was Not Justified by
Protective Sweep Exception

After an informant told law enforcement officers that defendant and another individual were the bank robbers they were looking for, one of the robbers was arrested outside a house while a SWAT team surrounded it. After defendant and his wife came out of the house and he was arrested and cuffed, the SWAT team members conducted a protective sweep and found the robbery money. The 1st Circuit held that the warrantless search of defendant’s home was not justified by the protective sweep exception to the Fourth Amendment’s warrant requirement where defendant and the other suspect had already been detained outside the home and there was no reasonable inference that any third person or other suspect was in the house. Any consent to the search was inextricably related to the illegal search. United States v. Serrano-Acevedo, 2018 BL 209039, 1st Cir., 16-2009, 06-13-18.