#312 Dec 14, 2011
I LOVE THE HELLS ANGELS! I AM MIKE YEVTUCK.
#316 Jan 15, 2012
DA: Founding Hell’s Angels Member Convicted
KVTA News Friday December 16. 2011
The Ventura County District Attorney’s Office says a man who was a co-founder of the Ventura Chapter of the Hell’s Angels has been convicted of witness intimidation and street terrorism. The DA’s office says that 64-year-old Thomas Heath of Ventura was found guilty by a jury of dissuading a witness, threatening a witness, and street terrorism and now faces a maximum sentence of 35-years-to-life in prison. The charges stem from an incident on November 22, 2010 in which Heath was accused of threatening a female roommate after she ordered him to move out for non payment of rent and he refused. Heath has four prior strike offenses including a 1977 bombing in Los Angeles that left a 15-year-old boy and a 22-year-old man dead, and, a 1992 incident in which he was convicted for brutally beating his wife. He spent a total of 14 years in state prison for those crimes. He’ll be sentenced in this latest case February 3, 2012.
#317 Mar 9, 2012
This Guy DL is the biggest idiot and probably a snitch!
#319 Apr 25, 2012
When you talk shit about Jack or Shane you do not talk for them or the Diablos MC. Diablos only support Diablos. R.I.P. Cadillac Jack
#320 Jun 21, 2012
HA = Homosexual Angels
“what ever floats your goat”
Since: Jul 12
#321 Sep 11, 2012
Meanwhile, about one hour inland, in the tiny riverfront community of Guerneville, the Vallejo chapter of the Hells Angels was hosting its annual motorcycle rally. The weekend campout was attended by hundreds of bikers and their supporters.
Two people present at the bike-run was Gerald (Butch) Lester and Charles (Chuck) Diaz. Both were Vallejo Hells Angels. Butch was chapter president and Chuck was chapter vice president.
On the previous night, Chuck was having problems with his bike. He always carried a knife in a sheath on his belt and it came in handy, especially for cutting and stripping electrical wire.
While Billy browsed the isles of the Payless store, Butch and Chuck announced they were going to Fort Bragg to pay Billy a visit and to take care of some “unfinished business.”
Less than a week before, on September 28, 1986, at 3:09 p.m., the club declared Billy was no longer a welcomed member of the Hells Angels, in fact, Billy had quit in bad standing, which basically constituted an expulsion.
Billy possessed two pieces of club property, 600-dollars worth of HAMC support decals and a club tattoo, which was worn on his left arm and read,“84 In, 86 Out.” The unfinished business Chuck and Butch referred to dealt with the confiscation of the decals and making sure Billy’s tattoo was either covered-up or forcefully removed.
Butch and Chuck arrived in Fort Bragg around twelve-noon. Billy was home by this time. The two bikers entered the house and confronted Billy in his living room. Words were exchanged and the situation deteriorated rapidly as Billy’s family watched.
Butch pulled out his 45-caliber pistol and shoved it into Billy’s face. Later the claim would be that the gun accidentally went off. The bullet entered Billy’s mouth and lodged inside his brain. Billy hit the floor and died.
But this wasn’t the first time Butch had accidentally shot someone. On October 26, 1977, in Sacramento County, he accidentally shot two people in a van, covered up their bodies with a sleeping bag, and then proceeded to dump their vehicle into a river. This so-called accidental shooting was over $5,000 dollars worth of meth. One victim survived, the other died. Butch spent four years in state prison over this accident.
5-year old Dallas, horrified at the sight of her daddy getting blown away, ran into her bedroom. Butch looked at Chuck and ordered,“Take care of that one!” At this point, a mutual decision was made to eliminate all witnesses.
While Chuck ran after the little girl, Butch turned his attention on Jerami. He shot Jerami below the left eye and killed him instantly.
Patty made a frantic dash for the door and the desperate look in her eyes resembled “a deer trapped in headlights.” Butch grabbed her by the hair and screwed the 45 into her face. As Patty shielded her face with her forearm, Butch pumped a single round through her arm and into her forehead. The wound was fatal.
Meanwhile, in the next room, Chuck was having difficulty killing the 5-year old with his knife, apparently, because it was dull. By the time Butch entered the room, Chuck had allegedly cut this defenseless child five times across the throat, ear to ear. Her spinal cord was severed and she was nearly decapitated. Butch pointed the 45 at the child and discharged one round. Clearly a case of overkill since her death certificate later revealed she died of multiple stab wounds.
The two killers then went to Billy’s body and sliced off his tattoo, probably with the same knife used to murder little Dallas. The severed piece of flesh was placed in a paper bag....anonymous
“what ever floats your goat”
Since: Jul 12
#322 Sep 11, 2012
the vallejo chapter was also having a hunting party in northern california when margo compton and her twins were killed just over the border in oregon,
#323 Sep 15, 2012
EDDY HARDERY, HA IS AMONG THEM AND SUCKS DICK,YEAH YOU FAT BOY.
#324 Feb 12, 2013
The only war on life and women that I know is liberalism with homosexuality and pornography being the two main components. The people that hatched the preposterous idea of ss parenting should be imprisoned for child endangerment.
Being a liberal is a mental illness.
End the fed
End the tax code
Bring the troops home
Let Ishrael defend Ishrael
#325 Mar 14, 2013
MAssachussettes ha Know how to treat the ladies.
Massachussettes - A member of the Hells Angels motorcycle club is free on bail after he was charged Tuesday with menacing a woman with his pit bull during a traffic dispute at a Dunkin' Donuts drive-through, police said.
Shawn Hines, 36, whom Lynn District Court documents identified as "a known member" of the Hells Angels, was released on $750 bail after he was arraigned in connection with the purported encounter, which police said took place at 8 a.m. Tuesday on Boston Street.
According to Lieutenant David Brown of the Lynn Police Department, Hines threatened to kill the woman after approaching her car and terrified her with his pit bull which was "inches away from her face" through the driver's window.
The court documents said that the identities of the alleged victim and several witnesses are being withheld for their protection.
'He exited his truck with his pit bull and approached screaming at her," said Brown. "He said,'I will [expletive] kill you. I will slit your throat,' and he spit at her."
The woman told police that she had pulled into the Dunkin' Donuts parking lot but that she found her access to the drive-through blocked by a pickup truck, Brown said. The woman drove around the truck and joined the queue to place her order, when Hines suddenly blocked her path with his truck and confronted her with his dog, Brown said.
At one point during his alleged tirade, Brown said, Hines turned to his dog and said, "This is who cut us off."
Hines allegedly left the area before police responded. More than a dozen officers went to his Lynn home after witnesses gave investigators the registration number of Hines's truck, Brown said.
"They assembled a team of officers who were aware that he was a member of the Hells Angels," Brown said. Hines was arrested at his home and charged with assault with a dangerous weapon, a dog, and with making threats.
He is scheduled to return to Lynn District Court on Sept. 16 for the alleged dog threat.
Police also arrested a motorcyclist at Hines's Great Woods Road home after the man allegedly spotted the approaching police and turned his motorcycle around on a sidewalk before dumping the bike, which was still running, and bolting into the dwelling. Brown said Christopher Hery, 24, was charged with disorderly conduct and negligent operation after officers found him hiding in the home.
#326 Mar 14, 2013
seems every time you look another USA hells angels sex offender comes to the surface of the flock. a leader no less.
Hells Angels MC.
BY: Todd Feathers.
Massachusetts - A federal judge in Boston has sentenced a member of the Hells Angels motorcycle gang with a long criminal record to 21 years in prison for possession of a firearm and ammunition after committing a felony, prosecutors said.
Eric Franco, 38, was the sergeant-at-arms for the Hells Angels chapter in Lynn, a statement from US Attorney Carmen Ortiz said. He was convicted of the charges in September and sentenced Tuesday in US District Court in Boston.
In May, Lynn police arrested Franco after finding the gun and ammunition in his apartment while investigating a report that Franco was assaulting his girlfriend, the statement said.
Franco's criminal record already included three convictions for assault and battery with a dangerous weapon, and convictions for indecent assault and battery, failure to register as a sex offender, breaking and entering with intent to commit a felony, and conspiracy to violate the controlled substances act.
He was also convicted in Arkansas on an assault and battery in the second degree charge after he and five other Hells Angels stabbed four members of another gang, the prosecutors' statement said.
Also today, the State Police announced that they had arrested four suspects and executed multiple search warrants on the North Shore as part of a probe into criminal activities of the Hells Angel and Red Devils motorcycle clubs.
Two of the four suspects arrested were Hells Angels; two others were Red Devils. Two other suspects are still being sought. All six face charges of kidnapping, mayhem, and extortion, State Police said.
The charges stem from acts committed against one male victim. State Police said no further details were being released about the victim or the crimes.
#329 Jun 14, 2013
YET another USA hells angels with sex charges against him
Hells Angels Biker James Day Steals Car, Tries to Sell It to Undercover Cop, Police Say
By Matthew Hendley Thu., May 30 2013 at 8:55 AM 21 Comments
Categories: Hells Angels
A member of the Hells Angels Motorcycle Club in Phoenix stole a car from a guy he believed owed him money, then turned around and tried to sell it to an undercover cop, police say.
According to court documents obtained by New Times, James Day, a 47-year-old Hells Angels biker with a lengthy rap sheet, threatened a Phoenix property manager into giving him his car, claiming that the property manager "owed" him money for having his ex-girlfriend's Corvette -- which she abandoned there -- towed from the property.
-Hells Angels Biker Who Beat Charges in 2010 Shootout With Vagos Bikers Arrested After Cutting Off Scottsdale Detective
-Hells Angels' Charges Dismissed in 2010 Shootout With Vagos Bikers
-Hells Angels Play Nice at Bike Week 2012, Despite Warning
Earlier this month, Day told the victim he had to give him the key and title to his Chevy Blazer as payment for the towed Corvette, and the victim did just that, out of fear that "James was going to use the hammer on him of that 'the club'(Hells Angels criminal street gang) would cause him bodily harm if he tried to fight back against James Day," the court documents state.
James Day, AKA, "JD."
Last week, a detective found the man's Blazer on Craigslist, and called the number listed, which was Day's cell phone.
He told the cop the title was open, and he needed to sell the Blazer, for $4,000, to pay his bail bondsmen. The latter part is likely true, as he has two criminal cases pending against him, the documents state.
Day, not exactly the most suave stolen-car salesman, apparently never got the key to the Blazer from the victim, and started up the vehicle with a screwdriver when the undercover cop showed up to his Glendale home.
The two agreed on the sale price, and went to a bank at 43rd Avenue and Bell Road to complete the transaction, where, to Day's surprise, he was arrested.
According to the court documents, Day still insisted that the victim "owed him" for having his ex-girlfriend's Corvette towed.
The documents list Day's arrest history, including DUI, DUI for drugs, possession of narcotic drugs, possession of drug paraphernalia, failure to obey a police order, driving on a suspended license, sexual assault, aggravated assault with a weapon, and domestic violence. He's previously served three years in prison in Cook County, Illinois.
#330 Jun 14, 2013
Federal judge rules against Hells Angel in appeal
By BEN NEARY, Associated Press
Updated 5:35 pm, Tuesday, May 28, 2013
CHEYENNE, Wyo.(AP)— A federal judge has denied an appeal from a former Nevada brothel owner and Hells Angels member who says he didn't get an adequate defense or fair trial before his conviction five years ago on child pornography charges in Wyoming.
David Burgess is serving a 15-year prison sentence on his 2008 conviction in Wyoming on federal charges of possession and transportation of child pornography.
U.S. District Judge Alan B. Johnson of Cheyenne on Friday dismissed Burgess' request for a new trial. In a 149-page ruling, Johnson concluded that Burgess' claims that he didn't get an adequate defense were without merit.
"The file, records, and all submissions by the parties conclusively show he is not entitled to the relief he seeks," Johnson stated.
Burgess, a member of a Nevada chapter of the Hells Angels, owned a legal brothel, the Old Bridge Ranch, near Reno, Nev. Prosecutors say investigators found child porn on Burgess' computer following a 2007 traffic stop in western Wyoming.
A federal appeals court in Denver already has upheld Burgess' conviction.
"There can be no doubt, let alone a grave doubt, that Burgess knowingly possessed child pornography as he traveled from Nevada into Wyoming," a three-judge panel of the 10th Circuit Court of Appeals in Denver ruled in 2009. The U.S. Supreme Court later that year refused to review Burgess' case.
Burgess filed papers in 2010 with Judge Johnson, who had presided over his 2008 trial. Burgess claimed his defense lawyer, James Barrett, a veteran assistant federal public defender in Cheyenne, was inadequate and had failed to prepare for trial or investigate his case.
For his appeal to Johnson for a new trial, Burgess retained prominent San Francisco civil rights lawyer J. Tony Serra. Attempts to reach Serra for comment on Tuesday were unsuccessful.
Kate Hallinan, a San Francisco lawyer who works with Serra, said Tuesday that Burgess' legal team is reviewing Johnson's ruling and may seek permission from the 10th Circuit Court of Appeals to appeal it there.
Prosecutor Jim Anderson of the U.S. Attorney's Office in Cheyenne prosecuted Burgess and opposed his request for a new trial. John Powell, spokesman for the office, said Tuesday the office had no comment on Johnson's ruling.
In his court filing opposing Burgess request for a new trial, Anderson dismissed Burgess' claims that Barrett had failed to prepare defense witnesses so they could present Burgess as a "great member of the community."
"This is pure fantasy," Anderson wrote in 2011. "Regardless of how much witness preparation had occurred in this case, it would not have changed the basic facts: on July 24, 2007,(Burgess) a brothel owner and member of an outlaw motorcycle gang, was apprehended in possession of drugs and tens of thousands of images of child pornography."
Burgess was arrested after state troopers pulled over his motor home, called the "War Wagon," on Interstate 80 in far western Wyoming. He told troopers he was on his way to the 2007 Hells Angels USA Run in Eureka Springs, Ark.
Troopers testified that they originally pulled over the motor home because of an expired motorcycle trailer tag. They stated that a drug dog alerted to the vehicle, which prompted a search that turned up marijuana and cocaine.
Following the traffic stop, authorities searched Burgess' computer that troopers found in the motor home on the grounds that it might show evidence of drug-dealing, court records say. Instead, prosecutors have said that agents at the state's Internet Crimes Against Children Task Force turned up thousands of images of child pornography.
Read the rest no room HERE
Read more: http://www.sfgate.com/news/crime/article/Fede ...
#332 Aug 4, 2013
16.  A file extension consists of one to five characters and informs a computer's operating system what program to utilize in order to open a particular file.   There are thousands of filename extensions. http://​www. ​sharp ened.net/glossary/definition.php... .
17.  Open-source applications like Abiword (.abw), KWord (.kwd), and OpenOffice (.odt,.odm,.odf, etc.), or newer online word processors like Google Docs (which allows you to download the document in a number of file formats) complicate the issue even further.
18.  Hughes testified to having seen computer files in other cases describe pay-owe sheets as “auto repair bills,” marijuana as “green paint,” and cocaine as “white paint.”  (R. Vol. I at 248.)   There was no evidence of deliberate concealment in this case;  some of the filenames are incriminating.   See n. 16.   However, other file names gave little or no indication of the file's content.   See discussion on the next page.
19.  We recognize a unique case might justify looking at tax returns for evidence of payments related to drug activities such as purchases of manufacturing supplies or equipment.
20.  As trial evidence demonstrated some of the file names in Burgess' hard drive were particularly descriptive and a review of the names would have legitimately aroused the suspicions of an agent trained in child pornography and inevitably led to the second search warrant.   See United States v. White, 326 F.3d 1135, 1138 (10th Cir.2003)(“the exclusionary rule is inapplicable if the evidence inevitably would have been discovered by lawful means.”).   For example, one folder named “Nastiest11yoSeries” had a subfolder titled “Sausage” containing pornographic images of a young girl.  (R. Vol. II at 574.)   Another folder titled “AGE” contained subfolders titled “03,”“04,”“05,”“06,”“07,”“08,” “09,”“10” and “11.”  (Id. at 569-70.)   Each subfolder folder contained images of children the same age as described in the title engaged in sexually exploitive conduct.   One file was entitled “Lolita,” a term which Agent Hughes testified is often seen in the investigation of child pornography.   (Id. at 573-74.)
21.  It would seem odd to require an officer who merely suspects pornography to stop the search for evidence of drug trafficking.   The concurring opinion in Carey suggests it would not be necessary.  “[I]f the record showed that Detective Lewis had merely continued his search for drug-related evidence and, in doing so, continued to come across evidence of child pornography, I think a different result would be required.”   172 F.3d at 1277.   It would also seem odd to require the officer to attempt to obtain a pornography warrant before confirming his suspicions about a file.   Especially so in this case because if the suspicions did not, in the view of a judge, amount to probable cause the officer could continue his structured search for evidence of drug trafficking and eventually return to and open the suspicious file (and multiple others) to guard against deceptive labeling.
22.  The parties briefed and argued the issue in the district court, which did not reach it, and it was briefed on appeal.   Thus, we may consider it.   See United States v. Harrison, 566 F.3d 1254, 1256 (10th Cir.2009)(proceeding directly to Leon analysis not decided by the district court).
23.  The motorhome was seized before the search warrant was issued.   In a broad sense, then, so was the computer equipment.   But neither the laptop nor the hard drives were separately seized (or searched) until after the warrant issued.
O'BRIEN, Circuit Judge.
#333 Aug 4, 2013
8.  The November 1, 2007 Edition of the United States Sentencing Guidelines Manual was used for sentencing.
9.  The district court ruling on these objections is not at issue on appeal.
10.  “[T]he justification to conduct such a warrantless search does not vanish once the car has been immobilized,” Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), and “[t]here is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure.”  United States v. Johns, 469 U.S. 478, 484, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985).
11.  See United States v. Stewart, 473 F.3d 1265, 1270 (10th Cir.2007)(“A canine alert gives rise to probable cause to search a vehicle.   This is so even when the dog alert occurs during a warrantless sniff on the exterior of a vehicle during a lawful traffic stop because such sniffs do not implicate the Fourth Amendment.”)(citation and quotations omitted).
12.  “Flash drives” are solid state memory devices that can comfortably be carried on a key chain.   They can be used, usually thru a USB port, much like an external hard drive.   They hold tremendous amounts of data, commonly having 2 to 32 GB of memory.   One manufacturer has recently announced the release of a 256 GB flash card, which would equal or exceed the hard drive capacity of many contemporary laptop computers.   See, http://​www.R 03;physorg.​com/ ​news​1674 61888.​html.
13.  Doing so would be much like searching a cell phone for recent calls (in and out), information contained in the address book, image files (still or digital video), audio files (including phone messages) or other digital information.   The memory cards, available in some cell phones can, like flash drives, hold vast amounts of information, including image and data files.   See, for instance http://​www.R 03;sandisk.​com/ ​Products/​ ;Item(2537)-​SDSDQ- ​8192-​A ​1 1M-SanDisk_microSDH C_8GB_Card_with_SD_Adapter.asp x.
14.  In Riccardi, we held the seizure of computer equipment was permissible, but the subsequent warrant authorizing the search “was not limited to any particular files, or to any particular federal crime” and therefore violated the Fourth Amendment.  405 F.3d at 862.   The warrant authorized the search of Riccardi's computer:and all electronic and magnetic media stored therein, together with all storage devises [sic], internal or external to the computer or computer system, including but not limited to floppy disks, diskettes, hard disks, magnetic tapes, removable media drives, optical media such as CD-ROM, printers, modems, and any other electronic or magnetic devises used as a peripheral to the computer or computer system, and all electronic media stored within such devises.Id.(emphasis added).
15.  “While the warrant does not explicitly instruct officers to look solely for those text files containing child pornography, in context-and certainly in the view of the officers conducting the search-the restrictions placed upon searches for image files also apply to the other types of files.   In other words, although the language of the warrant may, on first glance, authorize a broad, unchanneled search through Brooks's document files, as a whole, its language more naturally instructs officers to search those files only for evidence related to child pornography.   In this light, the warrant should be-and was-read by officers to implicitly place the same restriction (i.e., to locate child pornography) on the scope of the entire search.”Brooks, 427 F.3d at 1252.
#334 Aug 4, 2013
3.  Burgess claims the second search warrant (authorizing a search for child pornography) was tainted by the first search, but raises no other issues with respect to the second warrant or the resulting search.
4.  The images are clearly child pornography.   They show a pre-pubescent girl wearing nothing but a light dress pulled up over her chest:  Exhibits 805-808 show the nude child in various poses centering on her genitalia.   One image shows her with an adult male.
5.  These exhibits include one nude image of R.C. taking a shower and several semi-nude pictures of R.C. dressed only in a towel.   The images appear with graphic and vulgar superimposed text.   For example, one image is R.C. sitting cross-legged on a bed wearing only a short towel (genitalia exposed) with superimposed text referring to “Uncle David's ․ Princess.”  (R. Sealed Vol. II, Exh. 816.)   The nude shower image contains the superimposed statement,“I think this is one of the sexiest pictures in my collection.”  (Id., Exh. 834.)
6.  Ladies and gentlemen of the jury, the two charges contained in the Indictment in this case refer to the Maxtor hard drive.   I need and wish to caution you at this point concerning evidence as to the Seagate hard drive.Evidence that an act was done or that an offense may have been committed by the defendant at some other time is not, of course, any evidence or proof whatever that at another time the defendant performed a similar act or committed a similar offense, including the offenses charged in this Indictment.   Evidence of a similar act or offense may not be considered by the jury in determining whether the defendant actually performed the physical acts charged in this Indictment, nor may such evidence be considered for any other purpose whatever unless the jury first finds beyond a reasonable doubt, from other evidence in the case standing alone, that the defendant physically did the acts charged in the Indictment.   If the jury should find beyond a reasonable doubt from other evidence in the case the defendant did the act or acts alleged in the counts under consideration, the jury may then consider the evidence as to an alleged earlier act of a like nature in determining the state of mind or intent with which the defendant actually did the act or acts charged in the Indictment.It is also offered for the purpose of identity, that it was the defendant that did the acts, as well as knowledge on the part of the defendant that the acts have been performed.Of course, I want to again emphasize that you will hear evidence of other digital images contained in the Government's 800 series of exhibits that were found on the Seagate hard drive that the Government alleges were possessed by the defendant.   You may consider this evidence only as it bears on the defendant's intent, the identity of the defendant, the defendant's knowledge and the absence of a mistake, and for no other purpose.   Of course, the fact that the defendant may have possessed these images does not mean that the defendant necessarily committed the act charged in this case.(R. Vol. II at 615-16.)
7.  Some of these images include the same image of R.C. contained in Exhibits 816 and 834, but with additional material.   In Exhibit 832 an oval containing a much younger picture of R.C. is superimposed to the side of the sexually explicit picture of R.C. The same picture appears again in Exhibit 848 without text.   Exhibit 833 is a composite of R.C. as well as a friend, both in various states of undress;  the superimposed text reads,“Gee ․ you think this might be the reason why your daddy doesn't want his 14-yr-old daughter spending the night in a motel room with me.”  (R. Sealed Vol. II, Exhs. 827, 832, 848.)
#335 Aug 4, 2013
Id. For these reasons, the court held the district court properly denied defendant's request for a decrease in his base offense level.   We find the Sixth Circuit's reasoning without flaw and adopt it here.   The district court did not err in denying Burgess' request for a reduction under USSG § 2G2.2(b)(1).
b. Other Procedural Issues
On appeal, Burgess claims the district court treated the guidelines as mandatory because, at sentencing, the court stated:
I do look at the other cases that have been prosecuted before this Court and really have to look in this case at the guidelines for guidance in imposing sentence in this case and will be imposing the sentence within the guideline range that has been ․ established.
(R. Vol. II at 1025.)   Burgess also claims the court failed to provide a sufficient explanation of the reasons for his sentence.
Our review of the record reveals the district court's statement regarding its intention to sentence within the guideline range followed a complete analysis of the evidence in this case as it bears on the § 3553(a) factors.   The court then continued to thoroughly assess the facts relevant to Burgess' conduct.   There is no evidence the court considered the guidelines mandatory or failed to consider the sentence in light of the § 3553(a) factors.   Indeed, the court went well beyond what we require.   See United States v. Tindall, 519 F.3d 1057, 1065 (10th Cir.2008)(“A one-sentence explanation accompanying a within-guidelines sentence-in the absence of the need to address specific § 3553(a) arguments brought to the district court's attention-satisfies the district court's duty to impose a procedurally reasonable sentence.”).   The sentence is procedurally reasonable.
2. Substantive Error
The substantive aspect of a sentence relates to the length of the sentence and we ask “whether the length of the sentence is reasonable considering the statutory factors delineated in ․ § 3553(a).”  United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir.2007), cert. denied,--- U.S.----, 128 S.Ct. 1922, 170 L.Ed.2d 782 (2008).   Stripped to its essence, Burgess argues his sentence was too long and points to several cases and articles criticizing the guideline recommendations as too harsh compared to the five-year minimum allowed under the statute.   While recognizing the district court correctly calculated Burgess' guideline range as 168 to 210 months imprisonment, he claims the court unreasonably sentenced him to 180 months because he was merely “a first-time offender prosecuted for having a private collection of pornography with him in his travels.”  (Appellant's Br. at 43.)   We are not convinced by this characterization of the crime and the relevant conduct appropriately considered by the district court.   In this case, we could, but need not, presume the district court's guidelines sentence was reasonable. See United States v. Navarrete-Medina, 554 F.3d 1312, 1313 (10th Cir.2009)(a sentence falling within a correctly calculated advisory range is entitled to a rebuttable presumption of reasonableness).   The district court's extensive and reasoned consideration of the facts and law is more than evident in the record.   Burgess' sentence is not substantively unreasonable.
1.  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2.  Agents from this division are trained in computer examinations and work on cases from many different law enforcement divisions, including narcotics.
#336 Aug 4, 2013
The wording of U.S.S.G.§ 2G2.2(b)(1 ) is neither complicated nor ambiguous.   By its express terms, this Guideline permits a two-level reduction in the offense level only if a defendant meets three requirements:  (1) his base offense level must be 22, in accordance with subsection (b)(1)(A);  (2) under subsection (b)(1)(B), his conduct must be “limited” in scope of the receipt or solicitation of material involving the sexual exploitation of a minor;  “and”(3) under subsection (b)(1)(C), he did not intend to traffic in or distribute such material.   Here, defendant's undisputed base offense level is 22.   However, defendant has not met the second requirement because his criminal conduct was not limited to the receipt or solicitation of pornographic materials, but also encompassed the transportation of materials involving the sexual exploitation of a minor in interstate commerce in violation of 18 U.S.C.§ 2252(a)(1), an offense that is separate and distinct from, and goes beyond, the mere receipt or solicitation of pornography proscribed by 18 U.S.C.§ 2252(a)(4)(B ).  We further note that U.S.S.G.§ 2G2.2(b)(1 ) is devoid of any language suggesting that the offense of transporting child pornography in interstate commerce otherwise qualifies for the two-level decrease in a defendant's offense level.
#337 Aug 4, 2013
552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007).
We review a sentence for abuse of discretion.  Id. at 600.   We review the court's legal conclusions de novo and its factual findings for clear error.  United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006).   A sentence is procedurally unreasonable if the district court “fail [ed] to calculate (or improperly calculate[ed] ) the Guidelines range, treat [ed] the Guidelines as mandatory, fail[ed] to consider the § 3553(a) factors ․ or fail[ed] to adequately explain the chosen sentence.”  Gall, 128 S.Ct. at 597.
1. Procedural Error
a. USSG § 2G2.2(b)
Burgess claims the district court erred as a matter of law in interpreting USSG § 2G2.2(b)(1) to prohibit the reduction of his offense level by two points.   This section provides if a defendant is convicted of a child pornography offense with a base offense level of 22, the court will decrease the offense level by two points if “the defendant's conduct was limited to (B) the receipt or solicitation of material involving the sexual exploitation of a minor;  and (C) the defendant did not intend to traffic in, or distribute such material.”  USSG § 2G2.2(b)(1).   The district court determined that, because Burgess' conduct included transportation of child pornography, not only receipt, he did not qualify for the reduction even though Burgess did not intend to distribute the material.
Burgess claims the court's interpretation is in error because it is contrary to guideline commentary defining distribution.  “Distribution” is defined as:
[A]ny act, including possession with intent to distribute, production, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor.
USSG § 2G2.2(b)(1)(C), cmt. n. 1 (2007).   Burgess argues the definition's alignment of the word “transportation” with the concept of “transfer” of child pornography demonstrates the drafters' intention to apply the two level reduction to defendants who transport material without intending it be transferred to anyone else.
The Sixth Circuit has rejected this argument in a case nearly identical to this one.   See United States v. Fore, 507 F.3d 412 (6th Cir.2007).   In Fore, it was uncontested there was “insufficient evidence that defendant intended to ‘distribute’ the images found in his vehicle,” but the government maintained “the simple fact that defendant's criminal conduct ․ also involved the interstate transportation of child pornography in violation of 18 U.S.C.§ 2252(a)(1), disqualifie[d] defendant from receiving the reduction.”  Id. at 415.   The court began with the plain language of the guideline, recognizing “[s]entencing guidelines should be read as they are written.”  Id.(quotations omitted).   The court stated
#338 Aug 4, 2013
nor was his conduct at the motorcycle rally.   The government does not explain why it was necessary to introduce twelve rather than one or two additional images for impeachment purposes (especially given the district court's determination that the four stipulated images and four additional Seagate images were sufficient to prove Burgess' intent and lack of mistake).   Nonetheless, we “afford great deference to the district court;  review of a cold record is a poor substitute for a trial judge's intimate familiarity with the evidence and its role in the context of the trial as a whole.”  United States v. Hubenka, 438 F.3d 1026, 1036 (10th Cir.2006)(quotations omitted).   Considering whether to admit “more of the same” is a judgment call best made by the trial judge.   It is most difficult for us to look at a cold record and decide if eight would be sufficient or four or two.   We may have reached a different conclusion but that does not make the trial court's decision an abuse of discretion.
In any event, the admission of these photographs and texts does not call into question the jury's guilty verdict.   Any error in admitting the photographs was harmless.  “A non-constitutional error, such as a decision whether to admit or exclude evidence, is considered harmless ‘unless a substantial right of [a] party is affected.’ ” United States v. Charley, 189 F.3d 1251, 1270 (10th Cir.1999)(quoting Fed.R.Evid. 103(a)).   An error affecting a substantial right of a party is an error which had a “substantial influence” on the outcome or which leaves one in “grave doubt” as to whether it had such effect.  United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990)(quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).  “[W]e review the record as a whole.”  Charley, 189 F.3d at 1270.  “The question is not whether, omitting the inadmissible statements, the record contains sufficient evidence for a jury to convict the defendant,” but whether the evidence had a substantial influence on the jury's decision.  United States v. Tome, 61 F.3d 1446, 1455 (10th Cir.1995).
The jury was presented with evidence Burgess possessed thousands of images of child pornography, among them the charged images, which were present on both hard drives.   The hard drives also contained Burgess' personal photos and files.   All the material on both hard drives, both legal and illegal, was organized in a singular and sophisticated fashion.   Putting aside all inferences of an improper fascination with R.C., no reasonable jury could have reached a conclusion other than the one reached here.   There can be no doubt, let alone a grave doubt, that Burgess knowingly possessed child pornography as he traveled from Nevada into Wyoming.
Under Gall v. United States, the Supreme Court set the procedure for the district court's imposition of a sentence:
[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.   As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.   The Guidelines are not the only consideration, however.   Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.   In so doing, he may not presume that the Guidelines range is reasonable.   He must make an individualized assessment based on the facts presented․ After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.
Add your comments below
|Cutting of pastor's role called 'vindictive' (Oct '08)||3 hr||Bruser||8,195|
|Review: Sahdev Devinder (Dec '10)||Wed||Eddie||24|
|WARNING.....Do not park on Winter Street unless...||Tue||JACK||1|
|Review: Dare To Dream Dance (Jun '09)||Feb 8||Vinny t||521|
|Review: iLoveKickboxing - Franklin Square (Jun '15)||Feb 7||Tara M||17|
|Hicksville Teen accused of hammering friend (Mar '08)||Feb 5||PrivateEye||435|
|Healthcare Aide Charged With Stealing from Pati... (Oct '10)||Feb 4||AMM||3|
Find what you want!
Search Baldwin Forum Now
Copyright © 2016 Topix LLC