Posted On: August 10, 2012

Eighth Circuit Finds That Two Nearly Simultaneous Drug Sales Are One Offense for Sentencing Purposes

In United States v. Willoughby, 653 F.3d 738 (8th. Cir. 2011), Defendant Willoughby appealed from the United States District Court for the Western District of Missouri, which designated him an armed career criminal under the Armed Career Criminals Act (ACCA), 18 U.S.C.S. § 924(e) and sentenced him to the ACCA's mandatory minimum sentence of 15 years' imprisonment.

The presentence report (PSR) prepared in advance of Willoughby’s sentencing recommended that defendant be classified as an armed career criminal, pursuant to the ACCA. Defendant objected to this finding by the PSR, specifically challenging whether his selling marijuana to two different people during one drug deal constituted two offenses that were committed on different occasions as the ACCA required. Reversing, the court rejected the government's argument that defendant's sale to an undercover officer and, seconds later, to a confidential informant, constituted "separate and distinct criminal episodes," instead finding that the sale was, in actuality, one continuous course of conduct.

The court noted that it had never held two convictions to be sufficiently separate and distinct to serve as predicate ACCA convictions where those convictions were for drug offenses that the defendant committed, in essence, simultaneously. The insignificant disparity between the amounts of marijuana that the officer and the confidential informant purchased was insufficient to demonstrate a substantive discontinuity. The court reversed and remanded for resentencing.

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Posted On: August 7, 2012

Child Pornography Sentence Vacated

In United States v. Inman, 666 F.3d 1001; 2012 U.S. App. LEXIS 1394, The United States Court of Appeals for the Sixth Circuit vacated the sentence of defendant Brandon Inman, a federal prisoner who pleaded guilty to possession of child pornography. Inman appealed from The United States District Court for the Eastern District of Kentucky’s judgment imposing lifetime supervised release and certain conditions of that supervised release. The appellate court held that because the district court did not articulate a rationale for the length of supervised release and some of the conditions it imposed, Inman’s case had to be remanded for re-sentencing.

Inman pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Inman admitted possession of a computer thumb drive that he knew contained many images of minors engaged in sexually explicit conduct. At the sentencing hearing, the district court considered all of the sentencing factors enumerated in 18 U.S.C. § 3553(a) before imposing a term of incarceration of fifty-seven months. Although both parties requested a ten-year term of supervised release, the court imposed a lifetime term of supervised release with standard and special conditions. The special conditions included orders that barred the defendant from consuming alcohol for life, required him to submit to periodic drug testing, and required him to keep the probation office informed of any prescription medications in his possession. The district court also precluded him from using any device capable of creating pictures or video.

The circuit court questioned the reasons for these restrictions, stating that nothing in the record suggested defendant Inman had any problem with alcohol or drug dependence. The court also held that because the underlying conviction involved receiving child pornography through the Internet, the restriction on any device capable of creating pictures or video was not clearly justified, noting that, “This special condition effectively prohibits Inman for his lifetime from possessing a cell phone with photo or video capability, a video camera, or any other device capable of creating pictures or videos, even if such devices might be used appropriately in connection with employment or family activities.”

Because the record did not demonstrate that the district court considered any of the pertinent 18 U.S.C.S. § 3553(a) factors when it imposed the term of supervised release, and the district court did not explain why it chose certain special conditions, the judgment imposing supervised release with conditions was vacated and the case was remanded for further proceedings consistent with the opinion.

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Posted On: August 2, 2012

Pennsylvania Court Considers the Standard of Proof Required for Online Child Abuse Registry

In G.V. v. Department of Public Welfare, Caregiver G.V. appealed the order of the Pennsylvania Department of Public Welfare (DPW), Bureau of Hearings and Appeals', which adopted an administrative law judge's recommendation denying petitioner's appeal and his request to have a child abuse report against him expunged under the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6386.

G.V. was accused of sexually abusing his 16 year-old great niece of whom his wife and himself had custody. An investigation was conducted and a report was filed with the ChildLine and Abuse Registry (ChildLine Registry) listing him as a perpetrator of child abuse. A subsequent hearing was held at which time petitioner's request for expungement was denied. The court held that there was substantial evidence to support the indicated report of child abuse based on the testimony of the niece and a county children and youth social service agency investigator. However, the court addressed the standard that must be met in order for an indicated report of child abuse summary to be maintained on the ChildLine Registry and held that substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry. The court was unsure whether that standard was met in the case.

The court held that, “An indicated child abuse report impacts upon three competing interests: (1) the child, (2) the accused perpetrator, and (3) limited government officials, law enforcement and individuals. The Pennsylvania General Assembly has clearly stated that the lowest evidentiary standard is to be applied where the safety and well-being of the child is in question. Accordingly, any doubt of harm will be resolved in favor of providing protection to the child. However, completely absent from the Child Protective Services Law, 23 Pa.C.S. § 6303(a), is the standard of proof required to maintain designated information from the indicated report on the ChildLine Registry or to disclose it to limited outside third parties.”

Because of this unclear standard, the court vacated the order denying petitioner's appeal and remanded the matter to DPW for a hearing to determine whether there was clear and convincing evidence to maintain disclosure of petitioner's child abuse on the ChildLine Registry.

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