United States v. Porter

Mark Porter shouted racial epithets at Lucas Waldvogel, a seven-year-old African American who lived in Porter’s apartment complex. After hearing Porter’s language, the boy’s father, Michael Waldvogel, confronted Porter, who then assaulted Waldvogel with a stun cane. Shortly thereafter, Waldvogel and his family moved out of the complex. A jury convicted Porter of interfering with Waldvogel’s housing because of Waldvogel’s race, a violation of the Fair Housing Act. The district court sentenced Porter to nine months in prison. He appealed his conviction, and the Government cross-appealed his sentence. On direct appeal to the Tenth Circuit, Porter argued: (1) the evidence was insufficient to show he assaulted Waldvogel because of his race; (2) the district court plainly erred by allowing the prosecution’s opening statement and closing arguments, the trial evidence, and the jury instructions to make it likely that the jury convicted him for his actions against Lucas rather than Michael Waldvogel, thereby constructively amending the indictment. The Government argued the district court erred in calculating Porter’s sentence. Based on its review of the trial evidence, the Tenth Circuit held a reasonable jury could find Porter guilty beyond a reasonable doubt. The Court found the presentations at trial clearly identified Michael Waldvogel as the alleged victim. The Tenth Circuit agreed the district court erred when it failed to apply a base level of 10 under the applicable sentencing Guideline when Porter’s offense involved “the use or threat of force against a person.” The conviction was affirmed, but the sentence vacated and the matter remanded for resentencing. View "United States v. Porter" on Justia Law