BLOG BULLETS: A recent Supreme Court decision – Mellouli v. Lynch, 135 S. Ct. 1980 (2015) – held a state drug conviction didn’t qualify as a controlled substance offense under immigration law because the state controlled substance schedules included substances not included in the federal controlled substance schedules. This is essentially the same holding reflected […]

BLOG BULLETS: The Supreme Court has just held the residual clause of the Armed Career Criminal Act unconstitutionally vague – in Johnson v. United States. This invalidates a host of court of appeals decisions holding various convictions to be for “violent felonies” under the residual clause, including convictions for burglary under overbroad burglary statutes; kidnapping […]

BLOG BULLETS: Multiple cases and courts recognize the incentives of informants to lie in return for testimony that helps the government. It’s important to try to get the information you need prior to trial, because it’s much easier to effectively use the information with a jury than to use it with a court in post-conviction […]

BLOG BULLETS: Two recent Ninth Circuit opinions support District Judge Pregerson’s opinion in United States v. Sudikoff that prosecutors have an obligation to disclose any favorable evidence, not just favorable evidence they think might affect the result. Comstock v. Humphries says that evidence is favorable when it has any affirmative, evidentiary support for the defendant’s […]

BLOG BULLETS: Think about looking at other U.S. Attorney office discovery policies in addition to your own district’s. Other district policies may be more extensive and may have persuasive value with either your prosecutors or your judges. Other district policies may also provide good policy and legal arguments for discovery even if they don’t create […]

BLOG BULLETS: A recent USA Today article collects discovery policy memos for most United States Attorney’s offices that USA Today obtained through FOIA. The memos vary in detail, but most contain some helpful policies about discovery to be provided, including both reinforcement of rules and case law requiring discovery and suggestions of disclosure beyond what’s legally required. […]

BLOG BULLETS: Recent Sentencing Commission statistics reflect that probably close to half the contested sentences in fraud and theft cases in the last fiscal year were below the guidelines. A former government prosecutor who used to be a strong supporter of the guidelines has published numerous scholarly articles strongly criticizing the theft/fraud guideline since leaving […]

BLOG BULLETS: The Sentencing Commission has adjusted the loss tables to take inflation into account, though the adjustment accounts only for inflation since 2001. The Commission has also made favorable changes to the victims enhancement, the sophisticated means enhancement, and the definition of “intended loss.” Finally, the Commission has added considerations and commentary to the […]

BLOG BULLETS: The limits on how court records can be used under the modified categorical approach that are recognized in the Marcia-Acosta and Sahagun-Gallegos cases discussed in last week’s post suggest prior Ninth Circuit cases permitting broader use aren’t good law after Descamps. The cases which may no longer be good law include cases like United […]

  BLOG BULLETS: Two recent Ninth Circuit cases place strict limits on how court records can be used under the modified categorical approach, making clear that records can be used only to identify necessary elements, not extraneous facts that aren’t elements. One of the cases establishes that it isn’t enough for there to be a […]