LEGAL CAREER

Lee’s Cases Involved Defendants Such As Drug Traffickers And Illegal Immigrants Caught After Reentry, Appealing Their Sentences

“For U. S. Attorneys: Paul M. Warner, Richard D McKelvie, Mr., Stewart C. Walz, Mr., Michael S. Lee, US Attorney’s Office; Bruce C Lubeck, Judge, Third Circuit Court, West Valley, UT; Laurie J. Sartorio, Int’l Crmnl Trbnl (For Former), Yugoslavia” (United States Of America, Plaintiff v. Roger Charles Crobarger, et al., Defendant, Case No. 2:95 CR 119 JTG, United States District Court For The District Of Utah, Central Division, 11/1/04)

A Defendant Who Had Been “Convicted Of Drug Trafficking And Threatening A Witness” Had Also Assisted The U.S. Marshal’s Office In Return For A Reduced Sentence, “A Promise Made By A Colorado Assistant U.S. Attorney.” “OVERVIEW: Defendant was convicted of drug trafficking and threatening a witness. Between the end of his trial and his sentencing, defendant aided the U.S. Marshal’s office in stopping a planned jail escape, and at sentencing, the court departed downward under 18 U.S.C.S. § 3553. Defendant moved to compel the U.S. Attorney for the District of Utah to file a Fed. R. Crim. P. 35(b) to reduce the remainder of his 240-month sentence or to eliminate it as time served, based on a promise made by a Colorado Assistant U.S. Attorney (AUSA).” (United States Of America, Plaintiff v. Roger Charles Crobarger, et al., Defendant, Case No. 2:95 CR 119 JTG, United States District Court For The District Of Utah, Central Division, 11/1/04)

•    “The Court Denied The Motion.” The Promise Made By The Assistant U.S. Attorney “Could Not Bind And Require The U.S. Attorney For The District Of Utah To File The Motion In The Absence Of His Consent Or Ratification.” “The court denied the motion. Even though the court found that defendant agreed to continue to assist the government in the future in exchange for the AUSA’s promise to file a Rule 35(b) motion, the Colorado AUSA could not bind and require the U.S. Attorney for the District of Utah to file the motion in the absence of his consent or ratification. A Utah AUSA’s consent to filing a Rule 35(b) motion for defendant was not binding on the U.S. Attorney for the District of Utah. There was no ratification by the Utah AUSA of the agreement between the Colorado AUSA and defendant, and neither Utah’s screening committee nor its U.S. Attorney approved any alleged ratification. OUTCOME: Defendant’s motion to compel was denied.” (United States Of America, Plaintiff v. Roger Charles Crobarger, et al., Defendant, Case No. 2:95 CR 119 JTG, United States District Court For The District Of Utah, Central Division, 11/1/04)

“COUNSEL: For United States of America, Plaintiff – Appellee: Michael S. Lee, Office of the United States Attorney, Salt Lake City, UT.” (United States Of America, Plaintiff – Appellee, v. Nicholas John Vasquez, Defendant – Appellant, United States Court Of Appeals For The Tenth Circuit, Filed 3/3/03)

The Defendant Appealed His Sentence When “The United States District Court For The District [Of] Utah Imposed Defendant’s Sentence For Possession Of A Stolen Firearm,” But He Was Unsuccessful. “PROCEDURAL POSTURE: The United States District Court for the District Utah imposed defendant’s sentence for possession of a stolen firearm. Defendant appealed his sentence. OVERVIEW: Defendant contended that the district court erred in applying a four-level enhancement pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5). Specifically, defendant argued that there was insufficient evidence for the district court to conclude that the two handguns were used in connection with the burglary. The instant court concluded that the district court did not err in applying the enhancement. Although defendant correctly noted that the complainants did not observe defendant in possession of a firearm, the totality of the evidence was sufficient to allow the district court reasonably to infer that the handguns had the potential of facilitating the burglary. OUTCOME: The judgment of the district court was affirmed.” (United States Of America, Plaintiff – Appellee, v. Nicholas John Vasquez, Defendant – Appellant, United States Court Of Appeals For The Tenth Circuit, Filed 3/3/03)

“COUNSEL: For United States of America, Plaintiff – Appellee: Michael S. Lee, Office of the United States Attorney, District of Utah, Salt Lake City, UT.” (United States Of America, Plaintiff-Appellee, v. Wayne Frank Barbuto, Defendant-Appellant., No. 02-4072, United States Court Of Appeals For The Tenth Circuit, 3/27/03)

The Defendant Appealed His “Conviction For Two Counts Of Possession Of Firearms And Ammunition By A Restricted Person, And One Count Of Dealing In Firearms Without A License,” But He Was Unsuccessful. “PROCEDURAL POSTURE: The United States District Court for the District of Utah entered defendant’s conviction for two counts of possession of firearms and ammunition by a restricted person, and one count of dealing in firearms without a license. Defendant appealed. OVERVIEW: First, defendant argued that the district court violated his Sixth Amendment right to represent himself at trial. The trial court initially granted defendant’s request to proceed pro se. However, by refusing to respond to the district court’s inquiries regarding his intention to continue representing himself, defendant forfeited his Sixth Amendment right to self-representation. Second, defendant argued that the district court erred in appointing counsel to represent him without granting a continuance of the trial. The district court did not err in denying a continuance because: (1) defendant failed to request a continuance; (2) defendant was not diligent; (3) a continuance was unlikely to have improved defendant’s preparation for trial; (4) a continuance would have been prejudicial to the government; and (5) defendant pointed to no evidence of actual prejudice.  OUTCOME: The judgment of the district court was affirmed.” (United States Of America, Plaintiff-Appellee, v. Wayne Frank Barbuto, Defendant-Appellant., No. 02-4072, United States Court Of Appeals For The Tenth Circuit, 3/27/03)

“COUNSEL: For United States of America, Plaintiff – Appellee: Michael S. Lee, Office of the United States Attorney, District of Utah, Salt Lake City, UT.”

The Defendant Appealed A U.S. District Court’s Ruling To Not Suppress Evidence And The Appeals Court Sided With The Defendant. “PROCEDURAL POSTURE: After the United States District Court for the District of Utah denied his motion to suppress evidence, defendant entered a conditional guilty plea to illegal possession of a firearm. The district court sentenced defendant to 21 months’ imprisonment followed by 36 months of supervised release. Defendant appealed. OVERVIEW: The weapon underlying defendant’s conviction was discovered when a police officer investigating a shoplifting complaint frisked defendant and found a pistol in his jacket, which defendant had set on the floor while talking to the officer. Defendant argued that the search of his person and his jacket was unconstitutional. The appeals court agreed. The officer lacked reasonable suspicion to believe defendant was armed and dangerous. Defendant had been cooperative, polite, and non-threatening. His clothing did not contain bulges suggestive of weapons, and he was accused of committing a non-violent petty crime. . . . In addition, the officer lacked probable cause to arrest defendant for shoplifting, so the search was not incident to a lawful arrest. OUTCOME: The court reversed the district court’s order denying defendant’s motion to suppress evidence and remanded the case to the district court with instructions to vacate defendant’s conviction and sentence.” (United States Of America, Plaintiff-Appellee, v. Cornell Deon Mitchell, Defendant-Appellant, No. 02-4120, United States Court Of Appeals For The Tenth Circuit, Filed 3/31/03)

“COUNSEL: For United States of America, Plaintiff – Appellee: Michael S. Lee, Office of the United States Attorney, District of Utah, Salt Lake City, UT. William L. Nixon, U.S. Attorney’s Office, Salt Lake City, UT.” (United States Of America, Plaintiff-Appellee, v. Martin Barajas-Ruiz, Defendant-Appellant., No. 02-4065, United States Court Of Appeals For The Tenth Circuit, Filed 5/6/03)

The Defendant Had Illegally Reentered The United States After Being Deported And Was Appealing His Sentencing. “PROCEDURAL POSTURE: In the United States District Court for the District of Utah, defendant pled guilty to violating 8 U.S.C.S. § 1326(b)(2) by illegally reentering the United States following his earlier deportation. The district court sentenced defendant to fifty-seven months. Defendant appealed only his sentence. OVERVIEW: The presentence report stated that because defendant had been deported after conviction for an aggravated felony, he was subject to a sixteen-level enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A). The appellate court noted that, prior to November 1, 2001, previously deported illegal reentry defendants were subject to the sixteen-level enhancement of U.S. Sentencing Guidelines Manual § 2L1.2(a) and (b). Under the Sentencing Guidelines effective when defendant was sentenced in January 2002, the increase based on a prior conviction for an aggravated felony was eight levels, § 2L1.2(b)(1)(C), unless the prior conviction was for one of the specifically enumerated offenses listed in § 2L1.2(b)(1)(A) or was covered by § 2L1.2(b)(1)(B), (D), or (E). There was no indication in the record that § 2L1.2(b)(1)(A) applied to defendant’s case. Noting that a defendant was to be sentenced under the Sentencing Guidelines in effect at the time of sentencing, the appellate court reversed. Use of the wrong guideline resulted in a sentence range nearly double that for an unspecified aggravated felony. OUTCOME: The judgment of the district court was reversed and the matter was remanded for resentencing.” (United States Of America, Plaintiff-Appellee, v. Martin Barajas-Ruiz, Defendant-Appellant., No. 02-4065, United States Court Of Appeals For The Tenth Circuit, Filed 5/6/03)

“COUNSEL: For United States of America, Plaintiff – Appellee: Michael S. Lee, Office of the United States Attorney, District of Utah, Salt Lake City, UT.” (United States Of America, Plaintiff-Appellee, v. Rafael Delgado-Morales, Defendant-Appellant, No. 02-4247, United States Court Of Appeals For The Tenth Circuit, 8/19/03)

The Defendant “Challenged A Judgment . . . Which Sentenced Him To A Term Of Imprisonment Of 57 Months After He Pled Guilty To Illegal Reentry Following Prior Deportation . . . .” “PROCEDURAL POSTURE: Defendant challenged a judgment from the United States District Court for the District of Utah, which sentenced him to a term of imprisonment of 57 months after he pled guilty to illegal reentry following prior deportation in violation of 8 U.S.C.S. § 1326(a). OVERVIEW: Defendant argued that the district court erred in calculating his criminal history score by awarding three points for his sentences on two related drug-trafficking convictions and three points for his sentence on a failure-to-appear conviction. Defendant claimed that the sentences on all three convictions should have been considered ‘related’ under U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) because all three charges were consolidated for trial and sentencing.” (United States Of America, Plaintiff-Appellee, v. Rafael Delgado-Morales, Defendant-Appellant, No. 02-4247, United States Court Of Appeals For The Tenth Circuit, 8/19/03)

•    The Court Affirmed The Defendant’s Given Sentence. “In affirming the sentence, the court noted that defendant was arrested for the drug-trafficking in 1989, and he was arrested in 1991 for failure to appear for trial on the drug-trafficking charges. The fact that all of the charges were consolidated for trial and sentencing was irrelevant because the underlying offenses were separated by an intervening arrest. Based on the intervening arrest, the district court properly determined that the sentence for the failure-to-appear conviction was ‘unrelated’ to the sentences for the drug-trafficking convictions pursuant to U.S. Sentencing Guidelines Manual § 4A1.2, cmt., application n. 3.  OUTCOME: The court affirmed the sentence.” (United States Of America, Plaintiff-Appellee, v. Rafael Delgado-Morales, Defendant-Appellant, No. 02-4247, United States Court Of Appeals For The Tenth Circuit, 8/19/03)

“COUNSEL: For United States of America, Plaintiff – Appellee: Michael S. Lee, Office of the United States Attorney, Salt Lake City, UT.” (United States Of America, Plaintiff – Appellee, v. Robert Henry Paisola, Defendant – Appellant, No. 02-4129, United States Court Of Appeals For The Tenth Circuit, Filed 8/21/03)