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Practice Areas

Eighth Circuit Affirms Denial of “Mere Presence” Instruction

In United States v. Vore, issued on March 4, 2014 (published), the Eighth Circuit affirmed the district court’s denial of the defense request for a “mere presence” instruction. This instruction reminds the jury that a defendant’s mere presence near contraband or those engaged in criminal activity is not enough to establish knowledge or control of […]

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By |March 23rd, 2014|Blog|Comments Off|

Eighth Circuit Affirms Sentencing Enhancement Not Advocated by Government

Is a defendant denying responsibility when he challenges a guideline enhancement in his presentence report? The Eighth Circuit leaves that important question open in United States v. Bowers, issued on March 4, 2014 (published). But it’s a complex question that raises competing principles: accuracy in sentencing, the enforceability of plea agreements, and the burdens of […]

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By |March 23rd, 2014|Blog|Comments Off|

Eighth Circuit Remands Where Alternate Juror May Have Participated in Deliberations

Somehow, an alternate juror managed to stay for jury deliberations in the trial of Manuel Maldonado Aguilar without anyone noticing until the day after the verdict ws rendered. In United States v. Aguilar, issued on February 26, 2014 (published), the Eighth Circuit joined three other circuits that have held that a defendant is prejudiced […]

By |March 23rd, 2014|Blog|Comments Off|

Eighth Circuit Holds Prior Felonies Are Not ACCA Predicates

The highly technical determination of whether prior felony convictions are predicates for Armed Career Criminal Acr (ACCA) enhancements have yielded two notable cases from the Eighth Circuit lately, due to the Supreme Court’s recent decision in Descamps v. United States, which clarified that “sentencing courts may not apply the modified categorical approach when the […]

By |March 23rd, 2014|Blog|Comments Off|

Eighth Circuit Affirms Modest Downward Departure for Illegal Reenterer

A recidivist illegal re-enterer tends to get little sympathy from a sentencing court (to paraphrase Oscar Wilde, to come back once may be regarded as a misfortune; to come back twice “looks like carelessness”). But Milton Gonzalez explained that he returned to the United States to see his girlfriend and two young children when […]

By |March 23rd, 2014|Blog|Comments Off|

Eighth Circuit Affirms Denial of Credit for Time Served in Halfway House

In United States v. Parris, issued on February 4, 2014 (published), the Court affirmed the district court’s refusal to grant Parris credit for time served at a half-way house prior to her sentencing. Parris’ time in the half-way house was designated “a period of release” in her presentence report, and was therefore not detention […]

By |March 22nd, 2014|Blog|Comments Off|

Eighth Circuit Finds Plain but Not Reversible Error in Guilty Plea

In United States v. Simmons, issued on December 6, 2013, Jonathan Simmons was not only charged with a crime that does not exist; he pled guilty to it. No-one – not his lawyer, the prosecutor, or the judge who took the plea – noticed that the law does not in fact penalize the possession […]

By |March 22nd, 2014|Blog|Comments Off|

Eighth Circuit, En Banc, Vacates 30-Year Sentence Due to Erroneous Jury Instructions

In one of its most important decisions of 2013, the Eighth Circuit ruled en banc in United States v. Bruguier, issued on November 5, 2013 (published), that the word “knowingly” in the statute criminalizing sex with a physically or mentally-impaired person applied to all elements of the statute. The government must therefore prove that […]

By |March 22nd, 2014|Blog|Comments Off|

Eighth Circuit Reverses Sentence Where Loss Improperly Calculated

A bank president convicted of misapplication of bank funds in connection with a check-kiting scheme won a new sentencing in United States v. Markert, issued on October 22, 2013 (published). His loss had been calculated based on the total of the nominee loans he had approved ($1.8M) rather than on the actual net loss […]

By |March 22nd, 2014|Blog|Comments Off|

Eighth Circuit Affirms Lengthy Sentence Over Strong Dissent from Judge Bright

In United States v. Scott, issued on October 22, 2013, the Eighth Circuit affirmed a sentence of 115 months plus two life sentences for a 56 year-old defendant convicted of a series of bank robberies “during which no one fired a gun and no one was physically injured.”  Judge Bright dissented on the sentencing […]

By |October 22nd, 2013|Blog|Comments Off|