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Columbus Office
(Headquarters)
10 W. Broad St.
Suite 1020
Columbus, OH 43215
P: 614-469-2999
F: 614-469-5999
Cincinnati Office
36 East 7th St.
Suite 2000
Cincinnati, OH 45202
P: 513-929-4834
F: 513-929-4842
Dayton Office
1 South Main St.
Suite 490
Dayton, OH 45402
P: 937-225-7687
F: 937-225-7688
Members of our organization provide our clients with legal services of the highest quality. We zealously represent the human worth, dignity and interest of our clients with courage, devotion and uncompromised advocacy. We uphold the rights of our clients while dealing ethically with the court system, representatives of the criminal justice system and our clients.
News
Adam Walsh Memo - SORNA AND THE SEX OFFENDER'S DUTY TO REGISTER
Below are summaries of recent, notable Supreme Court and/or Sixth Circuit cases. For a more comprehensive review of cases, “click” on the link for Precedential Value, our office’s periodic newsletter.
Supreme Court Decisions
• 18 USC § 924(e) - ACCA
Begay v. U.S., 06-11543 (4/16/08)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court determined that defendant was an armed career criminal based upon three prior New Mexico convictions for felony DUI. Defendant argued on appeal that felony DUI did not constitute a "violent felony" under the ACCA, but the Tenth Circuit affirmed. The Supreme Court granted certiorari.
* Holding: The phrase "violent felony" is defined under the ACCA as a crime punishable by more than one year in prison that (1) includes the use, or attempted or threatened use, of force, or (2) is "burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." The Court held that the articulation of the enumerated offenses in the statute indicated that Congress intended for the "otherwise" clause to apply only to those offenses that are "similar, in kind as well as in degree of risk posed," to the enumerated offenses. Thus, the "otherwise" clause is intended to apply only to offenses that are "violent and aggressive crimes committed intentionally," such as those enumerated in the statute. Accordingly, the Court ruled that felony DUI, a form of strict liability offense, was not the kind of offense that should be considered a violent felony for ACCA purposes. Defendant's sentence was accordingly vacated.
• 21 USC§841(a)-Prior Felony Drug Offense
Burgess v. U.S., 06-11429 (4/16/08)
> Defendant was charged with conspiracy to possess 50 grams or more of cocaine with intent to distribute. The government enhanced defendant's sentence from a mandatory minimum 10 years to a mandatory 20 years based on the fact that defendant had a prior "felony" drug offense from South Carolina. Defendant argued that the enhancement was inapplicable because, although the South Carolina drug offense was punishable by up to two years incarceration, the state classified it as a misdemeanor. The district court agreed with the government, defendant appealed, and the Fourth Circuit affirmed. Defendant appealed to the Supreme Court.
* Holding: The Court held that the phrase "felony drug offense," as used in 21 USC § 841(a)(1)(A), is defined in 21 USC § 802(44). This section defines a "felony drug offense" as a drug offense that "is punishable by imprisonment for more than one year under any law of the United States or of a State." Based upon this definition, the Court concluded that an offense is a "felony drug offense" if it is punishable under state law by more than a year in prison, even if the state does not classify the offense as a felony. The Court ruled that its holding was not affected by § 802(13) which defines the term "felony" to mean an offense classified by federal or state law as a felony. Accordingly, defendant's prior state misdemeanor drug conviction, that was punishable by up to two years in prison, was properly considered a "felony drug offense." Thus, the district court's application of the enhancement was affirmed.
• Authority to Arrest
Virginia v. Moore, 06-1082 (4/23/08)
> Defendant was stopped by Virginia police for driving with a suspended license. Virginia law generally prohibited officers from arresting a driver for such an offense, but the officers nonetheless arrested defendant. They subsequently searched defendant incident to the arrest and found cocaine. In the state prosecution, defendant moved to suppress the cocaine because the officers arrested him in contravention of Virginia law. The trial court denied the motion, but the Virginia Supreme Court reversed. The state appealed and the Supreme Court granted certiorari.
* Holding: The Court held that when officers have probable cause to believe that a crime has been committed in their presence, they may arrest a defendant regardless of whether the applicable state law requires that officers issue only a citation for the particular offense. Further, the Court ruled that the Fourth Amendment permitted officers to conduct a search incident to an arrest under the circumstances. Accordingly, the defendant's conviction was affirmed.
Sixth Circuit Decisions
• Right to Counsel
Benitez v. U.S., 05-2484 (4/9/08)
> Defendant was convicted of conspiracy to distribute marijuana and to commit money laundering. At sentencing, defendant's attorney, who was retained, advised the court that defendant fired him. Additionally, defendant stated that he did not want the attorney to represent him. The district court made no inquiry into the circumstances of the representation, but proceeded with the hearing with defendant representing himself. The court granted the government's motion to reduce the sentence based upon defendant's cooperation, and proceeded to determine the appropriate sentence. The court again asked defendant if he wished for the attorney to represent him and defendant asked if the court was going to sentence him anyway. The court responded affirmatively, and defendant agreed to let the attorney speak for him. The district court sentenced defendant to 120 months in prison. Defendant did not appeal, but subsequently filed a habeas petition claiming that he was denied his Sixth Amendment right to counsel. The district court denied the petition both on the grounds that it was untimely, and on the merits. Defendant appealed.
* Holding: Where a district court is notified of a defendant's dissatisfaction with counsel, the ourt is under an "affirmative duty to inquire as to the source and nature of that dissatisfaction." This is true regardless of whether the attorney was appointed or retained. In the case, the court found that defendant's and his attorney's statements to the district court were sufficient to trigger the court's obligation to inquire regarding defendant's dissatisfaction. Because the district court made no inquiry into the source or nature of the problem, defendant's Sixth Amendment right to counsel was violated. Accordingly, the case was remanded for resentencing. Additionally, the court instructed the district court to determine whether the untimeliness of the habeas filing was excused by the doctrine of equitable tolling.
The Office of the Federal Public Defender, Southern District of Ohio, operates under authority of the Criminal Justice Act of 1964 (as amended), 18 U.S.C. § 3006A (CJA). We provide defense services to individuals who are financially unable to obtain adequate representation in Federal criminal cases, appeals, and habeas corpus matters. A person’s eligibility for defender services is determined by the federal court. Attorneys of this office may not represent individuals without an appointment from the court, nor may they engage in the private practice of law.