Read US v. Herder, 08-4420

Conviction of defendant for drug related crimes and sentence to 41 months' imprisonment is affirmed in part, vacated in part, and remanded where: 1) the direct and circumstantial evidence presented at trial was more than ample to support the jury's verdict; 2) district court did not abuse its discretion in denying defendant's request for a "mere proximity" jury instruction; 3) defendant's sentence is vacated and remanded as, on the record, district court did not understand that it had discretion to depart from the Guidelines, and was therefore, procedurally unreasonable; and 4) the order of forfeiture is affirmed as the district court did not clearly err in finding that defendant intended to use the $1,223 to commit, or to facilitate the commission, of the offenses for which he was convicted.

Appellate Information

• Argued 10/30/2009
• Decided 02/11/2010
• Published 02/11/2010

Judges

• Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.

Court

• United States Fourth Circuit

Counsel

• For Appellees:
  
• ARGUED:Geremy C. Kamens, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. David Brian Goodhand, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:Michael S. Nachmanoff, Federal Public Defender, Richard H. McWilliams, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Jeanine Linehan, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.