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Posted by: Karen Belcher on Jul 10, 2020

KAREN NELSON MOORE, Circuit Judge. Wayne Russell Fugate pleaded guilty to being a felon in possession of a firearm in connection with a firearms-trafficking operation. At sentencing, the district court applied two separate enhancements for the same conduct: an enhancement under U.S.S.G. § 2K2.1(b)(5) for engaging in trafficking of firearms, and an enhancement under U.S.S.G. §2K2.1(b)(6)(B) for possessing or trafficking firearms in connection with another felony—here, knowingly trafficking stolen firearms under 18 U.S.C. § 922(j). We hold that applying the § 2K2.1(b)(6)(B) enhancement based on knowingly trafficking stolen firearms under §922(j) was impermissible double-counting under the Sentencing Guidelines. We accordingly REVERSE the district court’s sentence of Fugate to 97 months’ imprisonment and REMAND for resentencing.

Posted by: Karen Belcher on Jul 10, 2020

BOGGS, Circuit Judge. Sardar Ashrafkhan came to the United States in 1991 after receiving a scholarship to study at Michigan State University. He earned a Ph.D. in 1996 with a research focus on pathology and the genetics of cancer. He settled in Ypsilanti, Michigan and soon became an active member of the community. However, according to prosecutors, Ashrafkhan’s life did not continue so wholesomely. In 2006, he founded Compassionate Doctors (“Compassionate”), a medical practice outside of Detroit. But it appears that Compassionate was nothing more than a sham, and indeed was a “pill mill,” where unscrupulous doctors would write fraudulent prescriptions for fake patients. Compassionate would then bill Medicare for the fake patient visits, and it collected millions of dollars in Medicare payments over the course of several years. Worse yet, the fraudulent prescriptions would be filled by individuals recruited by Compassionate at pharmacies that paid Compassionate kickbacks. Those drugs would then be sold on the street, resulting in hundreds of thousands of opioid-based drugs being distributed onto the illegal drug market.

Ashrafkhan was tried and convicted of one count of conspiracy to distribute controlled substances, one count of conspiracy to commit healthcare fraud, and two counts of money laundering. He was sentenced to twenty-three years of imprisonment. Ashrafkhan now appeals, raising a number of arguments against his prosecution, ranging from his indictment to his sentencing. We affirm Ashrafkhan’s conviction and sentence, writing for publication only with regard to our discussion of the jury instruction on reasonable doubt. All other issues raised by Ashrafkhan are addressed and decided in an unpublished appendix to this opinion.

Posted by: Karen Belcher on Jul 10, 2020

The Petitioner, Joseph A. Colwell, Sr., appeals the Maury County Circuit Court’s denial of his petition for post-conviction relief, seeking relief from his two convictions of rape and two convictions of incest and resulting effective twenty-year sentence. On appeal, the Petitioner contends that he received the ineffective assistance of counsel because trial counsel failed to object to evidence of prior sexual abuse pursuant to Tennessee Rule of Evidence 404(b), failed to file a motion to question one of the victims about her prior sexual behavior pursuant to Tennessee Rule of Evidence 412, and failed to present evidence from electronic devices that would have been helpful to his case. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Posted by: Karen Belcher on Jul 10, 2020

A mother appeals the termination of her parental rights to her children. The juvenile court determined that there were five grounds for terminating the mother’s parental rights and that termination of her parental rights was in the children’s best interest. Because the record contains clear and convincing evidence to support both the grounds for termination and the best interest determination, we affirm.

Posted by: Karen Belcher on Jul 9, 2020

CLAY, Circuit Judge. Defendant Calvin McReynolds appeals his conviction and sentence for conspiring to distribute and to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. For the reasons that follow, we affirm McReynolds’ conviction but vacate his sentence and remand for resentencing.

Posted by: Karen Belcher on Jul 9, 2020

A Knox County Criminal Court Jury convicted the Appellant, James Ruba Hill, Jr., of burglary, theft, and evading arrest. The trial court sentenced the Appellant as a career offender to a total effective sentence of twelve years in the Tennessee Department of Correction. On appeal, the Appellant contends that the evidence is insufficient to sustain his burglary conviction and that the theft conviction should be merged into the burglary conviction. Upon review, we conclude the evidence is sufficient to sustain his burglary conviction and remand to the trial court for the theft conviction to be merged into the burglary conviction.

Posted by: Karen Belcher on Jul 9, 2020

Defendant, Jesus Alfonso Castillo, was indicted by a Rutherford County Grand Jury along with four co-defendants for conspiracy to sell over 300 grams of methamphetamine in a drug free zone. Defendant was also indicted for delivery of over 300 grams of methamphetamine in a drug free zone and possession of over 300 grams of methamphetamine in a drug free zone. The second and third counts and the drug free zone enhancement were dismissed prior to trial. A jury convicted Defendant on the conspiracy count. The trial court imposed a fifteen-year sentence to be served in confinement. Defendant filed a motion for new trial that was denied by the trial court. Defendant timely appeals whether the trial court had territorial jurisdiction and whether venue was proper. Defendant further argues the evidence was insufficient to support his conviction. After a review, we affirm the judgment of the trial court.

Posted by: Karen Belcher on Jul 9, 2020

This dependency and neglect action focuses on ten siblings: Josiah, Nehemiah, Jonathan, Hadasah, Nathaniel, Noah, Hope, Malachi, Obadiah, and Grace (“the Children”), whose ages ranged from eighteen years to one year at the time of trial.1 All of the Children were born during the marriage of Amy H. (“Mother”) and Timothy H. (“Father”). The Children were taken into the custody of the Department of Children’s Services (“DCS”) based on allegations of abuse and neglect by the parents. The Fentress County Juvenile Court (“juvenile court”) determined that the Children were dependent and neglected, and the parents appealed that ruling to the Fentress County Circuit Court (“trial court”). Following a de novo trial, the trial court also determined that the Children were dependent and neglected and that the parents had committed severe child abuse. Both Mother and Father have appealed. Discerning no reversible error, we affirm.

Posted by: Karen Belcher on Jul 8, 2020

COLE, Chief Judge. David Hargett appeals a federal magistrate judge’s order upholding the decision of an administrative law judge (“ALJ”) that denied Hargett social security disability benefits. Hargett contends that the ALJ failed to give proper consideration to a functional capacity evaluation signed by his treating physician. Because the ALJ erred, and this error was not harmless, we vacate with instructions to remand to the Commissioner.

Posted by: Karen Belcher on Jul 8, 2020

The Petitioner, James Rodney Smith, appeals the Houston County Circuit Court’s order summarily dismissing his petition for post-conviction relief as untimely. On appeal, the Petitioner argues that due process requires the tolling of the one-year limitations period. After reviewing the record, we conclude that while the petition was untimely, the Petitioner has alleged facts that would toll the limitations period. As such, we reverse the judgment of the post-conviction court and remand the case for an evidentiary hearing to determine whether the Petitioner is entitled a late-filed petition for post-conviction relief.


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