Wednesday, November 15, 2017

Jury instruction challenge fails in sex trafficking appeal

US v. Banker:  In this appeal, the Fourth Circuit heard Banker’s appeal of his convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity.  Chiefly, he contended that his jury had been instructed improperly on the scienter element of each offense because they require proof that he knew the victim was a minor.  Secondly, he argued the insufficiency of the evidence.  The Fourth Circuit affirmed.

To reach its decision, the Fourth Circuit agreed with the government’s arguments that unpublished opinions from this Circuit and sister circuits have held that the element of age can be proven by either “knowledge” or “reckless disregard,” a position consistent, according to the Fourth Circuit, with the wording and punctuation of the pertinent statutes.  Accordingly, the Fourth Circuit held that the district court did not err in its instructions to the jury as to the scienter elements of the offenses.  Further, the government had to prove only that the victim was a minor, not that the defendant had actual knowledge of that fact. 

With respect to the sufficiency of evidence at trial, the Fourth Circuit found that Banker could not meet his burden to disrupt the jury’s verdict, as testimony from his co-conspirator and victim, as well as “numerous” other pieces of evidence, including Facebook posts, supported a finding that Banker recklessly disregarded the victim’s age.  The evidence at trial, according to the Fourth Circuit, readily satisfied the standard, i.e., supported a rational determination of guilty beyond a reasonable doubt. 

Wednesday, November 01, 2017

Any Materiality Error in Health Care Fraud Prosecution Harmless

US v. Palin: Palin owned an operated a drug testing facility (assisted by her co-defendant, Webb), which used two kinds of tests: a less expensive "quick-cup" test and a more expensive "analyzer" test. They ran a system whereby uninsured patients who paid cash were only given the quick-cup tests, while insured patients were given both tests, with insurers (including Medicare) being billed for both. As a result, insurers were billed for additional and more expensive tests that were not medically necessary. Palin and Webb were convicted after a bench trial of health care fraud and conspiracy. After the Supreme Court's decision in Universal Health Services, they filed a motion for acquittal or a new trial arguing that the case had changed the standard for materiality in such cases and the court had not found that element proven by the Government. The court denied the motion.

On appeal, the Fourth Circuit affirmed Palin and Webb's convictions. Accepting the Government's concession that materiality was an element of health care fraud, the court held that even if the district court overlooked materiality (it's initial opinion convicting Palin and Webb didn't mention it at all), any error was harmless because the record showed that the insurers wouldn't have paid for the more expensive tests had they known they weren't medically necessary. As for Palin and Webb's argument that Universal Health Services require the use of a more stringent materiality standard, the court did not decide whether that was correct, but concluded that the standard was met, anyway. The court distinguished Universal Health Services, where the victim of the fraud knew the requirements for the payments it made were being violated, there was no such evidence in the record of this case.

North Carolina Assault Inflicting Serious Bodily Injury Crime of Violence Under Residual Clause

US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm and drug possession with intent to distribute. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - North Carolina assault inflicting serious bodily injury ("AISBI"). He was sentenced to 120 months in prison. On appeal, Thompson argued that AISBI was not a crime of violence. The Fourth Circuit held the case in abeyance pending Beckles. Once that case was decided, it ordered additional briefing on whether AISBI was still a crime of violence under the residual clause of the crime of violence definition.

The Fourth Circuit ultimately concluded it was a crime of violence under the residual clause and affirmed Thompson's sentence. In doing so, the court was forced to determine what the Supreme Court's 2015 decision in Johnson meant for Guideline residual clause analysis going forward. The court concluded that Johnson did not overrule the Begay "similar in kind" test the court adopted before Johnson, but it did clarify that the analysis is to be based on "the ordinary case" in both the similar in kind and "degree or risk" assessments. Noting that under state law AISBI involves assaults that are "especially violent and result in the infliction of extremely serious injuries" and therefore had a degree of risk similar to the enumerated offenses in USSG 4B.2. The court rejected Thompson's argument that North Carolina's case law was so broad as to make it impossible to identify the "ordinary case" of AISBI, concluding that it requires actual intent and thus is similar in kind to the "purposeful, violent, and aggressive" offenses enumerated in the Guideline.

26-month CP Sentence Substantively Unreasonable

US v. Zuk: Zuk began collecting and sharing child pornography while in high school, then continued when he began college. As part of his involvement with CP, he corresponded with a 16-year old in Texas who was sexually abusing his 5-year old cousin. Among other things, Zuk had this person produce CP images of the cousin as his specific request. Eventually, Zuk was charged with multiple counts related to CP, including possession, receiving, and distributing. Pursuant to a plea agreement, he pled to one count of possession. Although his advisory Guideline range was 324 to 405 months, his plea capped his statutory maximum at 240 months, with no mandatory minimum. After a two-day sentencing hearing, which included testimony from multiple experts on Zuk's mental issues and potential for treatment, the district court imposed a sentence of time served (26 months) and a lifetime term of supervised release "contingent on his successful completion of [a] residential treatment program."

The Government appealed and the Fourth Circuit vacated Zuk's sentence.

First, the court concluded that the Government could, in fact, appeal the sentence. Zuk waived his right to appeal on any grounds other than ineffective assistance of counsel, which he argued meant that the Government had "implicitly" waived similar rights. However, in this plea agreement the Government explicitly reserved its appeal rights. The court found there was no great asymmetry in this, as the Government gave up a lot (dismissing the other charges, all of which included mandatory minimums higher than the sentence Zuk received). That distinguished this case from one where the plea agreement was silent on the Government's appeal rights.

Second, the court concluded that Zuk's sentence was substantively unreasonable. That was primarily because the district court "focused almost entirely on Zuk's autism spectrum" diagnosis. That was particularly problematic because the record didn't support a conclusion that Zuk's condition caused his criminal behavior (he admitted, when caught, that he knew what he was doing was illegal). That was a legitimate consideration in determining sentence, but couldn't be the driving factor. In addition, Zuk's sentence created serious issues of disparity with similarly situated defendants - including the 16-year old in Texas who got 50 years in state court for his role and the "other members of his online community [who] received sentences of 96 to 222 months' imprisonment." Zuk's sentence was also much lower than the Guidelines recommended for a non-aggravated possession conviction.

WV Aggravated Robbery Requires Use of Force

US v. Salmons: Salmons was convicted of being a felon in possession of a firearm. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - West Virginia aggravated robbery. Salmons objected, back in the pre-Beckles days, that his prior didn't involve the use of force and therefore couldn't be a crime of violence. The district court disagreed and denied the objection, calculating Salmons's Guideline range to be 30 to 37 months. The district court imposed a sentence of 12 months and 1 day.

Salmons appealed his sentence, which the Fourth Circuit affirmed. The court held that "aggravated" robbery - which requires strangulation, suffocation, striking, beating, or other violence to the person, or the threat or presentment of firearms or "other deadly weapon or instrumentality whatsoever" qualified as a crime of violence under the force clause. "These are brutal acts," the court concluded. The court found no distinction between this prior and SC strong-arm robbery and federal bank robbery, all of which require "violent force" as defined by the Supreme Court. The court noted that West Virginia distinguishes between regular and aggravated robberies "to expressly delineate the more violent forms of the offense." Furthermore, Salmons couldn't point to any WV case suggesting the offense could be committed by something other than the use of force.

Monday, October 02, 2017

Following conviction, substitute assets not available to pay for appellate counsel

US v. Marshall:  Marshall petitioned the court to permit him to use funds in a credit union account not specified as part of the government’s forfeiture order, filed after his convictions for several drug-related crimes.  The government then filed a second order of forfeiture for the funds in Marshall’s credit union account, classifying them as substitute assets under § 853(p).   Marshall filed a separate motion to use the untainted funds in the credit union account to hire appellate counsel. 

The Fourth Circuit considered Marshall’s arguments that 1) the Constitution required the release of substitute assets forfeited by a defendant after conviction if the funds are needed for appellate representation, and 2) the government violated a rule of criminal procedure by failing to seek forfeiture for several months after Marshall’s convictions for the credit union funds. 

The Fourth Circuit discussed how defendants are entitled to effective counsel on appeal, but not the right to counsel of choice on appeal.  The Supreme Court has plainly foreclosed Marshall’s request to use his forfeited funds to hire appellate counsel.  When a defendant’s forfeited property is connected to a crime, title to the forfeited property vests in the government at the time of the criminal act that gives rise to the forfeiture.  In contrast, the government may not freeze untainted assets (i.e., those assets not connected to crimes charged) before trial that a defendant needs to hire counsel of choice. 

Marshall’s case involved the restraint of untainted assets post-conviction.  The Fourth Circuit concluded that based on the Supreme Court’s holdings that Marshall may not use his forfeited assets to hire appellate counsel (title to substitute property vests in the government upon order by the district court after conviction, at the latest).  Marshall’s funds ceased to be his upon issuance of the district court’s forfeiture order following his conviction.  The Court will appoint counsel if the forfeiture renders him indigent or he cannot secure pro bono counsel.

Procedurally flawed revocation sentence vacated

US v. Slappy:  Slappy received a supervised release revocation sentence of 36 months; she appealed, arguing that the sentence was plainly unreasonable because the sentencing court failed to address any of her non-frivolous arguments in support of a within-guidelines range sentence, or to explain at all why it imposed the statutory maximum sentence upon her.  The government countered that the court provided enough explanation and that it was not required to address mitigating evidence if it didn’t think a lower sentence was appropriate.  The Fourth Circuit vacated Slappy’s sentence and remanded for resentencing.

The Fourth Circuit reasoned that the district court committed procedural error by failing to address her arguments in favor of a sentence within-policy-statement range, and that the Fourth Circuit and the Supreme Court have both made clear that in imposing revocation sentences, like original sentences, the court must address arguments like Slappy’s, and if it rejects them, it must explain why.
The Fourth Circuit held here that a district court, when imposing a revocation sentence, must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if it rejects these arguments, the court must explain why with sufficient detail that the appellate court can meaningfully consider the procedural reasonableness of the sentence imposed.

Tuesday, August 22, 2017

No Johnson Relief for Pre-Booker Defendants

US v. Brown: Brown was convicted on drug and gun charges and sentenced as a career offender back in the pre-Booker mandatory Guideline era. One of his prior convictions was for assaulting a police officer while resisting arrest in South Carolina. After Johnson was decided in 2015, Brown filed a 2255 motion arguing that Johnson made the residual clause of the "crime of violence" definition inactive and that his assault conviction didn't otherwise require the use of force. The district court denied the motion.

The Fourth Circuit affirmed the denial, 2-1. We know that after Beckles defendants sentenced after Booker came out are doomed, because the Supreme Court held that advisory Guidelines are not subject to challenge as being unconstitutionally vague. But what about pre-Booker defendants like Brown? Brown argued that Beckles didn't address that issue and that a close reading of Johnson, Booker, and Beckles shows that the Supreme Court has recognized the right he is trying to assert - to not be sentenced pursuant to a unconstitutionally vague mandatory Guideline range. The Fourth Circuit concluded that was precisely the problem - by leaving the question open, the Supreme Court has not actually recognized the right Brown needs to take advantage of. As a result, there is no new declaration of a right that restarts the 1-year limitation on filing 2255 motions. As a result, Brown's motion was untimely because it was filed well after his conviction became final in 2003.

Chief Judge Gregory dissented, arguing that a newly recognized right it not just the "four corners of that holding" in which it is announced, but "is more sensibly read to include the reasoning and principles that explain it."

Wednesday, August 16, 2017

Trial Judge's Comments About Immigration Program (and the People Who Use It) Require Reversal

US v. Lefsih: Lefsih came to the United States from Algeria via the Diversity Immigrant Visa Program ("DIVP") - a program that provides chances for people from countries without a lot of immigration to the United States to qualify for a lottery and, if they win the lottery, to legally enter the United States. After five years in the United States, Lefsih sought citizenship. On an application form he answered "no" to a question about whether he had "ever been arrested, cited, or detained" by law enforcement. In truth, he had received multiple traffic citations while working as a cab driver. Lefsih claimed that he didn't think such tickets fit the definition of "arrested, cited, or detained" and didn't knowingly provide a false answer. Lefsih was charged with two counts each of making a false statement and immigration fraud and went to trial.

At trial the Government presented testimony from an immigration officer who explained how the DIVP worked. During his testimony the district court repeatedly interjected with its feelings on the program, expressing its amazement that such a thing existed: "Do you think anybody in American knows about this, other than the Committee that sent it through Congress? Probably not."; "Don't you love Congress? I mean, unbelievable, unbelievable. I'm sitting here 32 years, first time I ever heard this." The district court later asked if the witness was "talking about the hundred countries that nobody could name," which were "the bottom hundred," such as Mauritania or Moldova. The court contrasted immigration policies involving "countries that send a lot of people here" and where "you have to show you're . . . someone who is going to contributed to the well-being of the"country with those in the DIVP who "don't have to be a back surgeon or anything."  Finally, the court asked "if you get luck and win the lottery and get a card to come to America you can drag along you ten kids and four wives or what?" Lefsih didn't object to any of this and was eventually convicted on all counts. The district court dismissed the two false statement counts to avoid double jeopardy issues and imposed a sentence of time served (Lefsih was turned over to ICE custody for deportation).

The Fourth Circuit reversed Lefsih's convictions. Although the court found that Lefsih's convictions were supported by sufficient evidence, the court concluded that the district court's repeated interjections about the DIVP denied Lefsih of his right to a fair trial (even applying plain error review). The district court's interjections had the effect of "unfairly lending credibility to the government's case." That was particularly true because the comments went beyond isolated statements about DIVP itself to include criticism of the people who took advantage of the program, like Lefsih. The problem was not "the extent of the judicial participation at trial, but instead the actual content of the court's questions and comments." Lefsih was able to demonstrate prejudice because the Government's case was "substantially weaker" than the "compelling and overwhelming" evidence in similar cases. Furthermore, the district court's belated instruction to the jury that anything it says should not impact their decision was insufficient to cure the prejudice.

Court Affirms Restitution, Non-Recusal In Mortgage Fraud Case

US v. Stone: Stone ran a mortgage fraud scheme, where she "convinced financially distressed homeowners to engage her services as a real estate agent to negotiate 'short sales' with the mortgage holders on behalf of those homeowners." She would buy the properties at an artificially low price, then "flip" the houses, selling them to "predetermined buyers" for much higher prices. As a result, she was charged with numerous fraud offenses as well as conspiracy. Prior to trial she filed a pro se (and "largely unintelligible") motion for the district court to recuse itself because he "sits in consort with the accuser(s)." At a hearing on the motion, Stone (still acting pro se on this issue, although she was represented by counsel) asked if the court had stock or other interests in any of the banks involved in the mortgages. The court responded that "if there was a conflict I wouldn't be here," repeatedly, and denied the motion. Stone was found guilty by a jury on all counts. Prior to sentencing, the PSR calculated the losses of the various mortgage lenders to be just over $2.3 million. Stone objected to that figure for sentencing purposes, but not restitution, arguing that it inflated the true losses suffered and "gives the lenders and windfall the never would have realized." The district court adopted the PSR's calculation, sentenced to Stone to 60 months in prison and required her to pay the full amount in restitution.

While the appeal was pending. Stone filed a motion for a new trial, arguing that the district court should have recused himself due to "an alleged conflict of interest stemming from its ownership of stock in some of the victim banks." The court denied the motion, but did admit that it "did have a financial interest in some of the victim banks" but that still did not require recusal.

On appeal, the Fourth Circuit affirmed Stone's conviction and sentence. Reviewing the amount of restitution for plain error, the court found no error at all, concluding that the "preponderance of evidence shows that Stone fraudulently induced the lenders to approve the short sales and forego the full value of the mortgages." Particularly, Stone had not presented any evidence to support her argument that the lenders wouldn't have gotten the full value of the mortgages in the regular course of business anyway. For the same reason, the court also concluded that the district court did not clearly err in calculating the loss amount for purposes of calculating the advisory Guideline range.  On the recusal, the court found that the "district court's ownership of stock in the victim lenders is not a . . . financial interest" that required recusal because "the victim lenders here are not parties to the action; this is a criminal case between Stone and the Government." Moreover, any financial interest involved is so small as to be practically nil where the $2.3 million in restitution "will have a negligible effect, if any, on the value of these lenders, each of which is worth many hundreds of millions - if not billions - of dollars."

Adam Walsh Act Has Low Standard for Hearing on Motion to Release

US v. Maclaren: In 2009 the Government declared that Maclaren was a "sexually dangerous person" and subject to indefinite detention under the Adam Walsh Act (the opinion doesn't report what his initial conviction was for, but a footnote states he is "believed to have sexually abused" over 38 children over  period of more than 40 years). In 2013, the district court found the Government had met its burden and ordered Maclaren committed. In 2015, Maclaren filed a motion seeking a hearing on whether he should be discharged pursuant to a conditional release plan. The district court denied the motion, holding that Maclaren had not shown in his motion that his condition had improved since his commitment and he had failed to provide information about a release plan.

On appeal the Fourth Circuit reversed the district court's decision, but not on the merits. Rather, the issue was what showing a person like Maclaren had to show in such a motion to get a hearing, not get release. The court agreed with Maclaren that "a successful motion for a discharge hearing need only plausibly allege that the detainee is entitled to discharge." The district court erred by treating the motion as an vehicle for reaching the substantive issue of whether Maclaren should be released, not whether he was entitled to a hearing on whether he should be released.

Congrats to the Defender office in the ED North Carolina on the win!

Thursday, July 27, 2017

Flight crew interference not categorically COV

US v. Diaz:  In this appeal, the Fourth Circuit considered whether the Victim and Witness Protection Act (VMPA) or the Mandatory Victims Restitution Act (MVRA) applied in the defendant, David Diaz’ case, after he pleaded guilty to interfering with the flight crew on a cross-country flight he tried to take in 2015.  Diaz, who self-medicated his declining mental health, got drunk before a flight that he was supposed to take to move from his father’s home in Northern Virginia, to his mother’s home in Texas.  Approximately 45 seconds after take off, an inebriated Diaz left his seat and rushed the cockpit, and resisted attempts to restrain him.  After the plane landed back in D.C. a short 13 minutes later, the flight crew refused to get back on the plane, the flight was canceled and passengers booked onto other flights.  United Airlines lost approximately $22k as a result.

After Diaz pleaded guilty, the PSR noted United’s losses but did not indicate a statutory basis for restitution.  Diaz argued that his offense fell within the scope of the VMPA and restitution was not mandatory, but he suggested that he could more readily afford a slightly lesser amount of restitution, in light of his financial situation.  At sentencing, the government argued for the application of the MVRA and mandatory restitution.  The district court agreed with the government, and did not rule on whether flight crew interference was a crime of violence.  Diaz appealed the restitution order.

The issue for the Fourth Circuit was whether it is possible for a crime presumptively covered by the VWPA to instead fall within the scope of the MVRA, and the court says yes.  It is clear that the MVRA may apply in determining restitution for a defendant who interferes with a flight crew, but only if it is also determined that flight crew interference falls within the scope of a statutory list of certain crimes.  If it is not a crime of violence, it won’t fit on the list.  The Fourth Circuit did a categorical approach analysis of whether flight crew interference is a crime a violence and determined the statute is indivisible, that it did not qualify as a crime of violence under the force clause (and the government, by failing to address the argument, waived the residual clause possibility).  It concluded that the appropriate statute to apply in Diaz’s case for determining the restitution question here was the VWPA.

Thursday, July 20, 2017

Survivor's benefits are "things of value"

US v. Kiza:  Social Security survivor’s benefits are benefits paid to eligible surviving spouses and children, and they come from a trust fund established by Congress.  To oversee the trust, Congress created a Board of Trustees that reports to Congress on its operation and “actuarial status,” recommends improvements to its administration, and notifies Congress when the amounts in the fund grew too small.

In this case, Kiza began receiving survivor’s benefits as the representative payee for his two children, after representing to the Social Security Administration that his minor children were entitled to benefits upon the death of their father.  Except he wasn’t dead, just created a fake identity, his “twin brother.”  In total, Kiza received survivor’s benefits around $51,860.  

Kiza was indicted for theft of government property and he went to trial.  The jury found Kiza guilty of the sole charge against him.  He appealed, arguing that the survivor’s benefits were not “things of value.”  In Kiza’s argument, the benefits he received from the trust were money from individual citizens, not money from the U.S. Government.  The Fourth Circuit agreed with the government’s position that the money originated from the government, were regulated and accounted for by the government, so the benefits were a thing of value.  The Fourth Circuit upheld the verdict against him.

(Decided 5/1/17).

Residual Clause of career offender guideline valid for MD robbery with dangerous weapon

US v. Riley:  On appeal, Riley challenged his classification as a career offender, arguing that his prior conviction for Maryland robbery with a dangerous weapon was not a predicate “crime of violence” to enhance his sentence (from a guidelines range of 21-27 months to a whopping 210-262 months).  Riley did not object at the time of sentencing, so the Fourth Circuit reviewed Riley’s issue for plain error, instead of review de novo.

The Fourth Circuit held that the district court did not err in classifying Riley as a career offender, as Maryland robbery with a dangerous weapon “fits comfortably” within the residual clause’s definition of a crime of violence.  Despite Johnson and because of Beckles, the Fourth Circuit concluded, the residual clause of the career offender guideline remains valid.

(Decided 5/9/17).

16-level bump affirmed

US v. Walker:  In this case, a Jamaican national pleaded guilty to illegal reentry, and the district court that sentenced him found him to have been previously convicted of an aggravated felony.  This prior offense was a drug conviction from Ohio, which the district court concluded was a “drug trafficking offense” which called for a 16-level enhancement of Walker’s sentence, yielding an advisory guidelines range for Walker of 46-57 months.  The district court imposed a 30-month sentence, and Walker appealed the issue of whether his drug crime was a “drug trafficking offense.”

The Fourth Circuit affirmed the application of the enhancement to Walker’s sentence, after concluding that his prior drug conviction from Ohio qualified as a “drug trafficking offense” under the illegal reentry guideline, then in effect.  In 2004, Walker pleaded guilty to a charge of drug trafficking under Ohio law.  Walker argued that the conviction should not qualify as a “drug trafficking offense” because the statute required only that the defendant act knowingly, rather than with specific intent, as he argued was required by the guidelines.  The Fourth Circuit disagreed, finding that Walker misread the guidelines’ definition of “drug trafficking offense,” and that the absence of a specific-intent requirement in the Ohio statute does not prevent the 2004 conviction from qualifying as a drug trafficking offense under the guidelines.

The Fourth Circuit analyzed the Ohio statute using the categorical approach, stating that the Ohio statute qualifies as a drug trafficking offense only if all of the ways of violating the statute, including the least culpable, satisfy the definition of “drug trafficking offense.”  The 10th circuit considered the same Ohio statute and found that it qualified as a “controlled substance offense” under the career-offender guideline, concluding that all the acts prohibited by the Ohio statute qualified as “distribution.”  The Fourth Circuit agreed with 10th Circuit and concluded here that Walker’s conviction from Ohio qualified as a “drug trafficking offense” and the 16-level enhancement to his sentence was proper.

(Decided 5/24/17).

NC robbery with a dangerous weapon qualifies as ACCA predicate under force clause

US v. Burns-Johnson:  The mandatory minimum 15-year term of imprisonment imposed here was upheld by the Fourth Circuit, which found that even though robbery is not an enumerated offense, statutory armed robbery in North Carolina qualifies as a violent felony under the force clause of the ACCA.  Under a categorical approach, the Fourth Circuit held that robbery with a dangerous weapon categorically qualified as a violent felony under the ACCA force clause.

Burns-Johnson argued on appeal that his prior conviction did not qualify as a violent felony because the crime did not require the use of violent physical force “capable of causing physical pain and injury to another person,” e.g. administering poison.  The Fourth Circuit disagreed, holding that Torres-Miguel was not dispositive here, and even if NC statutory armed robbery could by committed by use of poison, the crime would still entail the use, attempted use, or threatened use of violent physical force under the ACCA, based on its holding in In re Irby and the Supreme Court’s holding in Castleman.

Burns-Johnson also argued that his prior conviction did not constitute a violent felony because it did not explicitly require that a person intentionally use or threaten to use force, which argument the Fourth Circuit foreclosed in its recent decision, United States v. Doctor.  The Fourth Circuit found that it would require the exercise of pure “legal imagination” to suppose that NC appellate courts would apply this statute when a robbery occurred with the unintentional use of a dangerous weapon.

Mandate Rule and Sentencing Package Doctrine in Re-sentencing appeal

US v. Ventura:  The Fourth Circuit granted Ventura relief from one count of seven for which he had received convictions, and remanded his case to the district court for re-sentencing.  Originally, he received a sentence of 420 months for his part in operating several brothels in Annapolis and Easton, Maryland, and in Portsmouth, Virginia.  On re-sentencing, Ventura received a sentence of 420 months again.  He appealed, arguing that the district court violated the mandate rule, arguing that the district court acted vindictively in sentencing him a second time to 420 months, even though one of his convictions had been overturned.  Third, he argued the new sentence was unreasonable because the court considered facts related to the count that had been vacated as well as some of his conduct while he was incarcerated with the BOP.  The Fourth Circuit affirmed.

In its analysis, the Fourth Circuit determined that the mandate rule was not violated because the lower court was permitted to consider the issue de novo and it could entertain any relevant evidence on that issue that it could have heard at the first hearing.  Additionally, pursuant to the Sentencing Package Doctrine, when a court of appeals vacates and remands a case for re-sentencing, the original sentence becomes void in its entirety and the district court is free to revisit any rulings from the initial sentencing.  The Fourth Circuit found that the sentencing package doctrine controlled the result in this case.  Moreover, the Fourth Circuit determined that its remand did not automatically entitle Ventura a 60-month reduction merely because his count seven conviction had been vacated; rather, the mandate left plenty of room for the district court to recalculate the sentences for the other six convictions that were not vacated.  The Fourth Circuit held that the district court did not exceed the mandate in the First Decision (appeal).  

Regarding the vindictiveness challenge, the Fourth Circuit held that Ventura’s challenge failed because he did not receive an increase in his aggregate sentence upon re-sentencing; the district court imposed the same term.  Under the “aggregate package” approach, courts compare the total original sentence to the total sentence after re-sentencing.  If the new sentence is greater than the original sentence, the new sentence is considered more severe.  Since Ventura received the same sentence, 420 months in prison, his attempt to establish a presumption of vindictiveness fails.

Finally, Ventura’s reasonableness challenges fail because the district court was permitted to consider Ventura’s violent conduct and alleged possession of firearms in crafting his sentence, and secondly, the factual underpinnings of the vacated count against Ventura were nonetheless proved by a preponderance of the evidence and could be considered in connection with Ventura’s re-sentencing.  With regard to Ventura’s conduct while in BOP custody, the Fourth Circuit held that a re-sentencing court could account for and decrease a sentence based on a defendant’s rehabilitation, or, by the same token, potential misdeeds.

No credit for time on improper release from jail

US v. Grant:  In this case, Briceton Grant pled guilty to an information that charged him with possession of PCP, and received a sentence that included one year of supervised probation.   A mere four days later, Grant received an additional charge of PWID marijuana and a schedule I/II drug.  His PO filed a petition to revoke his supervised probation.  A magistrate judge found Grant in violation and revoked his probation, and remanded Grant to the marshals for 15 days of incarceration as punishment for the violation.

The marshals erroneously allowed Grant to be released eleven days too early.  Grant’s attorney contacted the government to determine how to proceed given the error.  Grant’s PO filed a petition to have Grant remanded to serve the additional days, and Grant surrendered to the marshals.  Grant filed a motion to receive credit for the 10 days during which time he was mistakenly release.  After the magistrate denied the motion, Grant filed the instant appeal.

According to the Fourth Circuit, there appeared to have been a federal common law right to credit for time erroneously spent at liberty that dated back to the 1930s, and since then, some sister circuits have recognized a federal common law right to credit for time erroneously spent at liberty.  Some circuits award this credit when the government has been shown to have acted maliciously.  Other courts award credit whenever the government errs, even if it was merely negligent.  The Court notes that it is not certain at all that a federal common law right to credit for time erroneously spent at liberty currently exists.  Grant played no role in causing the premature release, and the government did not act with malice when it negligently released him.  Yet, the Fourth Circuit held that the district court did not abuse its discretion in denying Grant his credit for time erroneously at liberty because Grant had paid only 1/3 of his debt to society, he could serve his time on weekends to accommodate his employment, the ten days will not disrupt his life in a way that months or years of re-incarceration might do, and the government promptly recognized its mistake.  The Fourth Circuit affirmed the district court’s judgment.