RECORD OF CONVICTION - PROBATION REPORT
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. April 22, 2008), revised opinion, (5th Cir. Feb. 5, 2009) (immigration judge properly considered presentence report to establish loss to victim in excess of $10,000, in finding federal conviction of knowingly filing a false tax return, in violation of 26 U.S.C. 7206(1), constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C.
RECORD OF CONVICTION - PROBATION REPORT - PRIVACY OBJECTION TO PRESENTENCE REPORT - SEEK ORDER FROM U.S. DISTRICT COURT TO PROTECT PRIVACY OF REPORT
Arguelles-Olivares v. Mukasey, 526 F.3d 171, 180 (5th Cir. April 22, 2008), revised opinion, (5th Cir. Feb. 2009) (rejecting privacy objection to use of federal presentence report to establish loss to victim over $10,000 for fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i): "[noncitizen] additionally asserts that the PSR is confidential and cannot be accessed without leave of court. Arguelles-Olivares made no attempt during the immigration proceedings to seek an injunction or order from the district court to maintain the confidentiality of the PSR.
NATURE OF CONVICTION - CATEGORICAL ANALYSIS
Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009) (Illinois conviction of "knowingly fail[ing] to report" for periodic imprisonment "to the Jefferson County Jail, a penal institution", in violation of Ill. Comp. Stat., ch. 720, 5/31-6(a), did not categorically constitute a "violent felony" for purposes of applying the Armed Career Criminal Act's 15-year mandatory prison term enhancement of sentence for a conviction of being a felon unlawfully in possession of a firearm, in violation of 18 U.S.C.
AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - EMPIRICAL EVIDENCE ON QUESTION OF WHETHER SPECIFIC OFFENSE BY ITS NATURE INVOLVES A SUBSTANTIAL RISK OF INTENTION USE OF VIOLENT FORCE IN ITS COMMISSION
In considering whether an Illinois conviction of failure to report to jail constituted a "violent felony" under the Armed Career Criminal Act for sentence enhancement purposes, the Supreme Court relied in part on a Sentencing Commission Report. United States Sentencing Commission, Report on Federal Escape Offenses in Fiscal Years 2006 and 2007 (Nov. 2008), reprinted as Appendix A, Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009). The Court reasoned:
JUDICIAL REVIEW - STATUTORY CONSTRUCTION - AVOIDANCE OF CONSTITUTIONAL INFIRMITY
Public Citizen v. United States Department of Justice, 491 U.S. 440, 466 (1989) (canon to construe statutes to avoid constitutional doubt dictates that a court should avoid interpretations that would create doubt about the constitutional validity of a statute).
POST CON RELIEF - FEDERAL - HABEAS CORPUS - AEDPA STATUTE OF LIMITATIONS - CONCLUSION OF OUT OF TIME DIRECT APPEAL MARKS BEGINNING OF FINALITY FOR PURPOSES OF THE AEDPA STATUTE OF LIMITATIONS
Jimenez v. Quarterman, ___ U.S. ___ 129 S.Ct. 681 (2008) (where a defendant is granted permission to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, the judgment is not yet "final" for purposes of 28 U. S. C.
POST CON RELIEF - GROUNDS - INEFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES - SUPREME COURT GRANTS CERTIORARI
Padilla v. Kentucky, __ S.Ct. __, 2009 WL 425077 (Feb. 23, 2009) (mem)
(United States Supreme Court granted cert in Padilla v. Kentucky, in which the Kentucky Supreme Court affirmed the denial of post-conviction relief on a claim of ineffective assistance of counsel for affirmatively misadvising the defendant concerning the immigration consequences of his conviction during plea bargaining). Oral argument will be heard in the fall.
DOMESTIC VIOLENCE - DOMESTIC RELATIONSHIP ELEMENT OF THE FEDERAL CRIMINAL FIREARMS POSSESSION OFFENSE NEED NOT BE IN THE ELEMENTS OF THE PREDICATE OFFENSE OF CONVICTION, BUT CAN BE PROVEN BY OTHER EVIDENCE
United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079 (Feb. 24, 2009) (West Virginia conviction of misdemeanor battery, in violation of W. Va. Code Ann. 61-2-9(c) ("[A]ny person [who] unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, ... shall be guilty of a misdemeanor."), constituted a conviction of a "misdemeanor crime of domestic violence" under 18 U.S.C.
IMMIGRATION OFFENSES - ILLEGAL REENTRY - SENTENCE - PROPORTIONALITY OF EXTENT OF DEPARTURE TO ITS JUSTIFICATION
Gall v. United States, 128 S.Ct. 586 (2007) ("the Court of Appeals' rule requiring "proportional" justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)." Therefore, an "extraordinary" justification is not necessary to a sentence half as long as the bottom of the Guidelines range); see United States v. Marron-Garcia, 555 F.3d 1040 (8th Cir. Feb. 26, 2009).
NATURE OF CONVICTION - CATEGORICAL ANALYSIS - EXTRA ELEMENT ANALYSIS - DOMESTIC VIOLENCE CONVICTION GROUND OF DEPORTATION - DOMESTIC RELATIONSHIP - COURT CAN GO BEYOND THE ELEMENTS OF THE OFFENSE OF CONVICTION TO ESTABLISH THE DOMESTIC RELATIONSHIP
United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079 (Feb. 24, 2009) ("We hold that the domestic relationship, although it must be established beyond a reasonable doubt in a 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.").
