Not a bad week for favorable cases. While most of these cases were decided on direct appeal, remember that these can be converted into ineffective assistance claims for a 2255 motion, if argued correctly.
United States v. Colon-Cordero, Nos. 22-1171, 22-1172, 2024 U.S. App. LEXIS 1300 (1st Cir. Jan. 19, 2024)
Luis Ángel Colón-Cordero was convicted of violating the terms of his supervised release and charged with new criminal conduct, including the possession of a firearm. The district court sentenced Colón-Cordero to an upwardly variant sentence for his new criminal conduct and a maximum term of imprisonment for violating his supervised release, which was to run consecutively. Colón-Cordero appealed, challenging the sentences as unreasonable. The appeals court vacated and remanded the case for resentencing. The court held that the district court had not adequately justified or explained its upward variance from the sentencing guidelines in the new criminal conduct case. Specifically, the appeals court found that the district court had not adequately engaged with the mitigating impact of Colón-Cordero’s intellectual disability, despite this being a primary argument presented by his defense. In the case of the revocation sentence, the appeals court held that the district court’s finding that Colón-Cordero was “constantly engaging in the illegal use of controlled substances” during his supervised release period was clearly erroneous. The record showed that Colón-Cordero had only tested positive for drug use twice during his release period, contradicting the district court’s characterization of his drug use as constant. The court concluded that this error may have affected the sentencing outcome. The case was remanded for resentencing to a different judge.
United States v. Hart, No. 20-4534, 2024 U.S. App. LEXIS 1740 (4th Cir. Jan. 25, 2024)
Kenneth Hart was convicted of drug dealing, sex trafficking, and witness tampering. He appealed his convictions, arguing that the government violated the Speedy Trial Act by failing to indict him for the witness tampering charge within thirty days of his arrest. The United States Court of Appeals for the Fourth Circuit agreed that the government violated the Speedy Trial Act on the witness tampering conviction but rejected his evidentiary challenges. The court held that the government failed to indict Hart for witness tampering within the Speedy Trial Act’s thirty-day window. So it vacated only Hart’s witness-tampering conviction and remanded the case for resentencing on the four counts added by the superseding indictment. Hart also contended that the district court erred by allowing certain prejudicial evidence at trial, but the court disagreed and affirmed the district court’s rulings on these evidentiary challenges.
United States v. Newby, No. 21-4018, 2024 U.S. App. LEXIS 1284 (4th Cir. Jan. 19, 2024)
Martrey Antwain Newby, who was initially sentenced for six non-violent drug crimes, appealed his sentence modification under the First Step Act of 2018. The district court had included discretionary conditions of supervised release in its written judgment that were not orally announced during the sentencing hearing, which was considered to be an error according to a precedent set by United States v. Rogers (2020). The main issue in this appeal was that the court during Newby’s resentencing under the First Step Act, carried forward the same conditions of supervised release that were not orally announced in the initial sentencing hearing. The Fourth Circuit concluded that the district court could not have imposed any new discretionary conditions of supervised release in Newby’s First Step Act proceeding, as the only type of modified sentence authorized by the First Step Act is a reduced one. The court also noted that Newby’s conditions of supervised release, which were never announced in his presence and were part of his written judgment, were nullities according to the Rogers precedent. The court argued that because these conditions were never imposed, they could not be carried forward in the district court’s amended judgment.
United States v. Wilcher, No. 22-1400, 2024 U.S. App. LEXIS 1744 (7th Cir. Jan. 25, 2024)
Joseph Wilcher was convicted of attempted enticement of a minor and travel with intent to engage in illicit sexual activity after he drove across state lines to meet someone he believed was a fifteen-year-old girl, who was actually a federal agent. The United States District Court for the Central District of Illinois sentenced Wilcher to a custodial prison term and a term of supervised release. In explaining the sentence, the district court only discussed the seriousness of the offense and did not address any of Wilcher’s arguments for mitigation. On appeal, the United States Court of Appeals for the Seventh Circuit found that the district court erred in its sentencing. The appellate court held that the district court had relied on the seriousness of the offense as the sole justification for the sentence, including the term of supervised release. However, the seriousness of the offense is not a factor that courts can consider when imposing a term of supervised release. The appellate court also found that the district court had failed to consider Wilcher’s principal mitigation arguments. The appellate court concluded that the district court’s failure to adequately explain the sentence precluded meaningful appellate review. The Court of Appeals for the Seventh Circuit vacated Wilcher’s sentence and remanded the case for a full resentencing hearing. The court clarified that on remand, the district court could not consider the seriousness of the offense when imposing a term of supervised release and must consider Wilcher’s principal mitigation arguments.
United States v. Kearn, No. 23-3029, 2024 U.S. App. LEXIS 1471 (10th Cir. Jan. 23, 2024)
Jonathan Kearn was initially indicted on three child pornography offenses involving his own children. He faced up to 30 years’ imprisonment for these charges. However, the government offered a plea agreement for a 10-year sentence if Kearn pled guilty to one of the counts. Following a six-minute conversation with his trial counsel about the plea agreement, Kearn decided to reject the offer and proceed to trial. He was then convicted on all three counts and sentenced to 24 years in prison. After exhausting his appeals, Kearn filed a pro se motion arguing that his trial counsel was constitutionally ineffective during the plea-bargaining phase. The district court granted Kearn’s motion, finding that his trial counsel provided deficient advice about the proposed plea deal and that there was a reasonable probability that, but for counsel’s errors, Kearn would have pleaded guilty. The court ordered the government to reoffer the plea. It then accepted Kearn’s guilty plea, vacated the prior judgment, and resentenced him to 10 years’ imprisonment. On appeal, the Tenth Circuit affirmed the district court’s decision. The appellate court found that Kearn’s trial counsel’s brief discussion with him was inadequate to explain the complexities of the plea and that counsel had given Kearn inaccurate and misleading information. The court also found that given the substantial difference in sentencing exposure—20 years—and the evidence suggesting Kearn was amenable to pleading guilty if he had been adequately advised, the district court reasonably found that Kearn would have accepted a properly presented plea deal and avoided trial.
United States v. Tighe, No. 22-50332, 2024 U.S. App. LEXIS 1758 (5th Cir. Jan. 25, 2024)
After being convicted and sentenced for possession of stolen firearms, possession of a firearm by a convicted felon, and conspiracy to possess stolen firearms, Tighe alleged ineffective assistance of counsel. He claimed that his trial attorney, Sharon Diaz, did not consult with him about filing an appeal. The Court of Appeals, applying the Strickland test, found that Diaz failed to adequately consult with Tighe about the potential appeal, which was considered professionally unreasonable. Furthermore, the court found that Tighe demonstrated a reasonable interest in appealing, given the unexpected severity of his sentence and his request to Diaz to ask the court to run his federal sentence concurrently with his forthcoming state sentence. The court also determined that Tighe had shown there was a reasonable probability that he would have timely appealed, but for Diaz’s deficient performance. As a result, the court found that Tighe had successfully made an ineffective assistance of counsel claim which entitled him to an appeal. The case was remanded to the district court with instructions to grant an out-of-time appeal and reenter Tighe’s criminal judgment.
United States v. Swan, No. 22-6132, 2024 U.S. App. LEXIS 1472 (10th Cir. Jan. 23, 2024)
John Miguel Swan appealed the district court’s denial of his presentence motion to withdraw his guilty plea. The case originated from a grand jury indictment of Swan for being a felon in possession of ammunition. Swan initially pled guilty, but five months later, the district court allowed Swan’s plea counsel to withdraw and appointed new counsel. Swan later wrote a pro se letter to the district court asserting his factual innocence and indicating that his plea counsel had compelled him to plead guilty. This appeal focuses on the claim that plea counsel materially misrepresented the nature of Swan’s right to a jury trial, which, Swan argued, rendered his guilty plea unknowing and involuntary. The court found that Swan’s plea counsel informed him that all minorities would be removed from his jury and his case would be tried before exclusively white jurors. This was seen as a material misrepresentation about Swan’s right to an impartial jury selected through racially nondiscriminatory means. The court determined that under these circumstances, Swan’s plea was unknowing and involuntary, and the district court abused its discretion in denying Swan’s motion to withdraw his guilty plea. Accordingly, the court reversed the lower court’s decision and remanded the case back to the district court to allow Swan to withdraw his guilty plea for further proceedings.
Dale Chappell works with individuals, families, and attorneys on sensitive and high-profile federal cases, focusing on prison preparation, housing, and post-conviction strategy. He supports clients and legal teams with research, issue analysis, and drafting used in federal post-conviction matters, including § 2255 motions, appeals, sentence reductions, and related filings.
His work is based on nearly 17 years of experience and more than 450 published articles in legal publications focused on post-conviction relief. His focus is helping clients and their families understand how the system actually works and avoiding preventable mistakes.
Have questions?
Email Dale directly at dale@dale-chappell.com.
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