Firm News Archive

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Sentencing Case Summaries

[11/22] US v. Ley
Vacating the judgment of the district court and remanding for further proceedings the criminal conviction of a man for being a felon in possession of a firearm and ammunition due to errors in the calculation of points for prior sentences under the Sentencing Guidelines because the court held that a traffic stop, followed by the issuance of a summons, is not an arrest.

[11/21] P. v. Roth
Affirming the trial court's decision to vacate a misdemeanor sentence and reinstate a felony sentence in the case of a probation violation because the misdemeanor sentence had been unauthorized and the reinstatement of the felony conviction was proper.

[11/17] P. v. Gollardo
Affirming the trial court's denial of a petition to reclassify the charged felony offense of forging and issuing a prescription for a narcotic drug as a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act of 2014 because the denial was based on relevant considerations and within the court's discretion.

[11/16] P. v. Kaufman
Affirming the conviction of a man for grand theft by larceny because substantial evidence supported the conviction, there was no basis for the use of the victim's attempted extortion as a valid defense to the crime, and even if it were a defense not enough evidence was provided to establish the extortion for it to warrant a jury instruction, but rejecting a claim by the People of sentencing error and concluding that the trial court classified the offense as a misdemeanor by operation of law in a factually complicated case involving the sale of office property between friends.

[11/14] P. v. Garcia
Affirming the imposition of a statutorily mandated life sentence in the case of a man who, while a guest at his sister-in-law's house, raped his niece while in the course of a first degree burglary, because although he was a guest in the home his entry into rooms with the intent to commit a felony and without the authority to do so still constituted burglary, despite the fact that he didn't have to break into the home itself.

[11/13] US v. Concepcion Montijo
Affirming the imposition of a sentence in the case of a man convicted of being a felon in possession of a firearm because the court justified an upward variance from the guideline by referencing his long criminal record, so any error in calculation was harmless, and this decision was reasonable given the pattern of serious crimes shown by the court.

[11/09] P. v. Lozano
Dismissing an appeal that argued that a juvenile's sentence of life in prison without possibility of parole was a violation of the Eighth Amendment's prohibition on cruel and unusual punishment because the argument was rendered moot when the governor had passed a law entitling juveniles sentenced to life in prison to a parole suitability hearing after 25 years of incarceration.

[11/08] P. v. Valdivia
Rejecting a domestic abuse defendant's challenges to a condition of his probation authorizing warrantless searches of his electronic storage devices such as computers and phones because the condition was not unreasonable or unconstitutional, while complaints about the violation of the privacy interests of third parties were barred by forfeiture, but agreeing that the condition was overbroad and the court ordered the striking of the condition and asked the trial court to consider whether it could be narrowed to allow it to pass constitutional muster.

[11/08] P. v. Avignone
Reversing and remanding the case of a couple that defrauded five investors out of hundreds of thousands of dollars in a real estate scheme who pleaded guilty to three counts of fraud in connection with the offer, sale, and purchase of a security and two counts of grand theft of personal property because the trial court did not have the discretion to sentence them to county jail rather than prison and improperly calculated restitution, but rejecting the argument that the court abused its discretion in denying probation.

[11/08] US v. Lopez Ortiz
Affirming the judgment and sentence in the case of a criminal defendant whose supervised release was terminated and a statutorily authorized above-guideline term of imprisonment was imposed after he repeatedly violated the terms of his release just months into his commencement in the program because although he was made to proceed first in the presentation of evidence this error was harmless.

[11/08] US v. Montalvo-Gerena
Summarily dismissing the appeal of a sentence that was the product of a plea agreement and squarely within the sentences contemplated in the agreement because the court upheld the waiver of appeal that was included within the plea agreement and there was no miscarriage of justice in the defendant's run-of-the-mill claims of sentencing error.

[11/07] US v. Gordon
Affirming the district court's conviction of a man who tried to hire a hitman to kill his wife who turned out to be an undercover cop and then tried to hire a second killer to kill the first who also turned out to be an undercover officer, holding that the objection to the introduction of character evidence could not be pursued because a bald objection was not specific enough to preserve it for review and there was no indication that the admission influenced the outcome of the trial, but directing the district court to merge five multiplicitous counts into a single one for resentencing.

[10/31] People v. Lee
Sentence of twenty-five years to life for four felonies after defendant was found driving a stolen car is vacated where the trial court erred in believing it lacked discretion to reduce the convictions to misdemeanors under Penal Code section 17(b).

[10/31] People v. Francis
Sentence of twenty-five years for assault with a semiautomatic firearm is affirmed as modified. The court held that the gang enhancement for 'other felonies' cannot be appended to a serious or violent felony, and modified the sentence accordingly.

[10/30] US v. Kelly
Conviction and sentence for selling and possessing with intent to sell over 446 grams of ethylone is affirmed where the DEA's temporary listing of ethylone as a controlled substance was lawful and defendant's sentence was not improper.

[10/26] US v. Thompson
Affirming the imposition of a sentence that included an enhancement for a prior conviction for assault inflicting serious bodily injury because the court correctly held that this constituted a crime of violence under the residual clause of the US Sentencing Guidelines authorizing such enhancements.

[10/23] US v. Torres-Rivera
Vacating the denial of a motion to reduce sentence because it appeared from the record that the district court may have been led to believe that the defendant's conduct in prison was materially more problematic than it actually was when the government used the word sanctions, implying that he had been sanctioned multiple times, when he had only been sanctioned once for a single incident.

[10/19] P. v. Hahn
Reversing a court determination that it lacked jurisdiction to order a man to serve a jail sentence following years of repeated failures to appear on the part of the defendant, including a failure to appear to serve the jail sentence at issue, because the defendant had waived their right to object to the court's enforcement of the term when he requested a stay of its execution and then failed to appear as scheduled.

[10/18] US v. Robles-Alvarez
Affirming convictions for drug trafficking but vacating the sentence in a case where the district court failed to address the appellant's potentially persuasive argument in favor of a sentence varying from the advisory guideline range because there was a significant sentence disparity between him and his co-defendants.

[10/17] People v. Warmington
In a criminal action, seeking to reduce defendant's 2003 felony embezzlement conviction after he stole a TV from his employer, Walmart, and returned it for a gift card, the trial court's order denying his petition for redesignation to a misdemeanor is reversed where embezzlement under Penal Code section 503 is eligible for redesignation.

[10/17] US v. Cortez-Vergara
Conviction for maritime drug and conspiracy offenses following the Coast Guard's apprehension of a three-person drug smuggling boat subject to U.S. maritime jurisdiction is affirmed where the sentencing court did not err in refusing to grant defendant a minor role adjustment under U.S.S.G. section 3B1.2(b).

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