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Friday, April 01, 2005

Ind. Decisions - 7th Circuit posts four today

USA v. Mykytiuk, Robert (WD Wis.) [11 pp.]

Before POSNER, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. After executing a state search warrant for Robert Mykytiuk’s residence and truck, Wisconsin law enforcement officers found a handgun and equipment, materials, and chemicals used to manufacture methamphetamine. Later, federal prosecutors took over the case, and Mykytiuk moved to quash the search warrant and suppress the evidence. The district court denied the motion. Mykytiuk then entered a conditional guilty plea to one count of possessing pseudoephedrine with intent to manufacture methamphetamine, see 21 U.S.C. § 841(c)(2), and one count of possessing a firearm in furtherance of drug trafficking, see 21 U.S.C. § 924(c)(1)(A), reserving in his plea agreement the right to challenge the denial of his motion to suppress. The district court sentenced him to 90 months’ imprisonment on Count One and 60 months’ imprisonment on Count Two, to run consecutively. On appeal, Mykytiuk challenges the denial of his motion to suppress, arguing that the warrant was too broad and that the court erred in applying the good-faith doctrine. We conclude that the evidence was admissible under United States v. Leon, 468 U.S. 897 (1984), and we therefore affirm the judgment of conviction. Mykytiuk’s challenge to his sentence, however, cannot be resolved until after a limited remand for further proceedings in the district court.

Murillo, Edward A. v. Frank, Matthew (ED Wis.) [12 pp.]

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge.

[A question here is whether Crawford applies retroactively on collateral review. [p. 8] "This shows, as the tenth circuit observed in Brown, that Crawford cannot have established the sort of indispensable doctrine that applies retroactively even to closed cases."]

USA v. Newsom, Ernest (SD Ind., Larry J. McKinney, Chief Judge) [11 pp.]

Before BAUER, POSNER, and WOOD, Circuit Judges. WOOD, Circuit Judge. Ernest Newsom was caught with child pornography on his computer, including pictures of his own daughter and his ex-girlfriend’s daughter. He was charged and found guilty of receipt, possession, and production of child pornography. Newsom appeals from the district court’s denial of his motion to suppress evidence recovered from his home and computer and from two sets of sentencing enhancements. We affirm the district court’s denial of his motion to suppress and the sentencing enhancements. We order a limited remand to the district court for consider ation whether Newsom’s sentence would be different in light of United States v. Booker, 125 S.Ct. 738 (2005), in keeping with the procedure established in United States v. Paladino, Nos. 03-2296 et al., 2005 WL 435430 (7th Cir. Feb. 25, 2005). In order to allow the court to take into account the sentence that the Guidelines would advise, along with other pertinent factors, we discuss Newsom’s Guidelines arguments in this opinion. * * *

[Court discusses "Grouping Enhancement" and "Vulnerable Victim Enhancement']

We therefore AFFIRM the judgment of conviction. We order a LIMITED REMAND to the district court for further consideration of Newsom’s sentence, which should be undertaken in conformity with the procedures spelled out in Paladino. This court will retain jurisdiction over the appeal during the pendency of the limited remand.

Gallo-Vasquez, Carlo v. USA (ND Ill.) [13 pp.]

Before FLAUM, Chief Judge, and BAUER and KANNE, Circuit Judges
FLAUM, Chief Judge. Carlos Gallo-Vasquez moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging that his counsel at trial and on direct appeal provided him with ineffective assistance. The district court dismissed the motion without holding a hearing or requiring the government to respond. Gallo-Vasquez appeals. Because the record conclusively shows that petitioner is not entitled to relief, we affirm.

Posted by Marcia Oddi on April 1, 2005 12:15 PM
Posted to Ind. (7th Cir.) Decisions