US v. Herder, No. 08-4420
Conviction of defendant for drug related crimes and sentenced 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 , 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.
Argued: October 30, 2009
Decided: February 11, 2010
Opinion by Circuit Judge Davis
For Appellant: Geremy C. Kamens, Office of the Federal Public Defender
For Appellee: David Brian Goodhand, Office of the US Attorney