Federal Criminal Defense Newsletter

It is essential to have defense counsel knowledgeable in changes in the law. We at Evergreen Attorneys know that the law is in a constant state of change and a single decision can have a major impact on a federal criminal defendant’s case. That is why we strive to stay on top of cases of interest from across the country and report favorable decisions to the public.

If you or someone you know have been charged with a federal offense, do not hesitate to contact the lawyers at Evergreen Attorneys. We can be reached at (303) 948-1489 or by email at [email protected].

Supreme Court Orders New Trial for Man on Death Row

Glossip v. Oklahoma, 604 U.S. __, No. 22-7466 (Feb. 25, 2025)

Prosecutors are required by the Constitution to correct false testimony. Nearly two decades ago, Glossip was convicted of murder for hire and sentenced to death. While facing the death penalty, the State later disclosed previously withheld documents that showed the person allegedly hired for the murder, Justin Sneed, had seen a psychiatrist, was bipolar, and taking lithium. Sneed testified at trial that he had never seen a psychiatrist. Despite the State having evidence conclusively showing otherwise, the prosecutor allowed the false testimony and Glossip was convicted.

Upon learning of the withheld evidence, Glossip sought post-conviction habeas relief. The attorney general conceded error, but the Oklahoma Court of Criminal Appeals refused to grant relief. Glossip’s last recourse to avoid the death penalty was with the United States Supreme Court.

The majority of the Supreme Court justices agreed that the State’s failure to correct false testimony was error under Napue v. Illinois, 360 U.S. 264 (1959). Because the error is supported by ample evidence, the Court ordered Glossip’s conviction vacated and remanded for a new trial.

Fourth Amendment Search and Seizure Cases

In re Tower-Dump Warrants, No. 3:25-cr-38-CWR-ASH (S.D. Miss. Feb. 21, 2025)

Law enforcement sought four search warrant applications for location-and-time based cell-tower data, commonly known as “tower-dump” or “tower-extraction” warrants, from the United States District Court for the Southern District of Mississippi. Based on the reasoning in United States v. Smith, 110 F.4th 817 (5th Cir. 2024) (holding geofence warrants per se unconstitutional), the district court held tower-dump search warrants cannot be issued consistent with the Fourth Amendment.

United States v. Howard, No. 24-cr-4005-LTS-KEM (N.D. Iowa Jan. 31, 2025)

The defendant moved to suppress statements made in an interaction with law enforcement during a traffic stop and a subsequent custodial interview. During the traffic stop, law enforcement advised the defendant of some of his Miranda rights. At the second interaction, the officer referred to the previous advisement of rights. The reading of the Miranda rights omitted any reference to the right to have an attorney appointed if the defendant could not afford one. Accordingly, there was no valid Miranda waiver. The district court granted the motion to suppress statements made during the custodial interview.

United States v. Reyes, No. 24-cr-1992-JES (S.D. Cal. Jan. 22, 2025)

The district court found that officers lacked reasonable suspicion of wrongdoing in tackling and arresting the defendant. While officers are allowed to conduct a Terry stop with minimal intrusion, the defendant’s flight from officers was not sufficient probable cause to arrest him for resisting and obstructing. Because the officers lacked probable cause for the arrest, the subsequent recovery of a firearm from the defendant was unlawful and in violation of the Fourth Amendment.

First Circuit Court of Appeals Decisions

United States v. Salvador-Gutierrez, No. 22-1157 (1st Cir. Feb. 13, 2025) (en banc)

The First Circuit Court of Appeals overturned its 24-year-old precedent in United States v. Patrick, 248 F.3d 11 (1st Cir. 2001) (holding that an increase under U.S.S.G. § 3B1.4 applies as relevant conduct in a conspiracy offense when merely reasonably foreseeable that other members of the conspiracy would use a minor in the conspiracy). The en banc court held that in conspiracy cases or other offenses involving jointly undertaken activity, § 3B1.4 enhancement only applies when the defendant personally used or attempted to use a minor to commit the offense, assist in avoiding detection, or apprehension.

United States v. Castillo, No. 21-1599 (1st Cir. Jan. 28, 2025)

The First Circuit vacated and remanded for resentencing in a case where the prosecution breached the plea agreement by providing only “lip service” to the government’s promise that it would recommend up to a 180-month sentence. At sentencing, the government recommended a 180-month sentence but made aggravating arguments in support of a higher term of imprisonment. The First Circuit concluded this was a breach of the plea and remanded for resentencing before a different judge.

Second Circuit Court of Appeals Decisions

United States v. Cannon, No. 23-7069 (2d Cir. Jan. 23, 2025)

Although the U.S. Sentencing Guidelines are advisory, the failure to consider U.S.S.G. § 5G1.3(c) (regarding concurrency of anticipated related state sentences) is a procedural error. Here, the defendant was charged with related conduct in the state and federal case. Defense counsel brought this to the court’s attention at sentencing, but the district court made no assessments or determinations on the matter. The defendant’s sentence was vacated and remanded for the district court to consider the applicability of § 5G1.3(c).

United States v. Mangano, No. 22-861, 22-937 (2d Cir. Feb. 13, 2025)

The defendant challenged his convictions for conspiracy to commit federal programs bribery and honest services fraud. The Second Circuit held that the evidence presented at trial was insufficient to convict the defendant of conspiracy to commit federal programs bribery or the related substantive offense. The conviction was reversed and the case remanded for further proceedings.

Fourth Circuit Vacates Denial of Fifth Motion for Compassionate Release

United States v. Matthews, No. 24-7014 (4th Cir. Jan. 23, 2025)

After four unsuccessful motions for compassionate release under 18 U.S.C. § 3582(c)(1)(A), the defendant filed his fifth motion raising multiple grounds for relief. The district court denied the motion in a brief order, noting that the Fourth Circuit had affirmed the denial of the most recent motion for compassionate release. Although the court is not required to explicitly acknowledge and address every single argument in support of a compassionate release, it still must “set forth enough to satisfy the court [our] court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decision making authority.” United States v. Davis, 99 F.4th 647, 559 (4th Cir. 2024). The Fourth Circuit found the district court’s denial insufficient in failing to analyze the arguments in the fifth motion for compassionate release. The order denying compassionate release was vacated and remanded for further proceedings.

Sixth Circuit on the Confrontation Clause

United States v. Taylor, No. 23-5834 (6th Cir. Feb. 7, 2025)

The Sixth Amendment’s confrontation clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. A Sixth Amendment violation occurs when the district court prohibits a defendant from appropriate cross-examination of a witness to uncover biases. Here, the district court limited the cross-examination of a cooperating witness to uncover bias, prejudice, or motivation to testify. The Sixth Circuit found this limitation to be an improper violation of the Sixth Amendment, reversed the defendant’s conviction, and remanded for a new trial.

Eighth Circuit Finds Error in Firearms Enhancement

United States v. Thomas, 24-1101 (8th Cir. Feb. 11, 2025)

U.S.S.G. § 2K2.1(a)(3) provides for a base offense level of 22 under the Sentencing Guidelines if the offense involved “a semi0automatic firearm capable of accepting a large capacity magazine.” On appeal, the defendant argued that the district court erred in finding that the Glock 9 mm pistol was capable of accepting a large capacity magazine. The Eighth Circuit held that there was insufficient information in the Presentence Investigation Report to support the enhanced base offense level. The defendant’s sentence was vacated and remanded for resentencing.

Ninth Circuit on Loss vs. Gain

United States v. Barama, No. 23-2087 (9th Cir. Jan. 27, 2025)

The defendant was sentenced under U.S.S.G. § 2B1.1(b)(1), which increases the offense level based on the amount of loss caused by the offense. At the time he was sentenced, the Guidelines’ commentary provided that a court could use “gain that resulted from the offense as an alternative measure of loss only if there is a loss but it cannot be determined.” U.S.S.G. § 2B1.1, cmt. n.3(B) (Nov. 2023). However, the former definition of “loss” under § 2B1.1 was not so ambiguous as to allow for a gain that does not approximate the victim’s loss. Accordingly, the Ninth Circuit found the district court erred in using gain as a substitute for loss without making any findings on the victim’s loss.

Double Jeopardy in the Tenth Circuit

United States v. Jacobo, No. 23-5114 (10th Cir. Feb. 13, 2025)

The defendant was tried and convicted of one count of directing a continuing criminal enterprise (CCE), three counts of drug conspiracy, and twenty-one counts of unlawful use of a communication facility. He was sentenced to life imprisonment. On appeal, the Tenth Circuit held that the CCE and conspiracies violated the Double Jeopardy Clause of the Fifth Amendment. The court of appeals concluded that the CCE count and conspiracy charged in Count Two through Four were multiplicious sentences that violated the Fifth Amendment. The Tenth Circuit remanded to the district court with instructions to vacate the concurrent sentences and special assessments on the lesser included offenses of conspiracy.

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