Tuesday, January 03, 2017

Court Clarifies 3582, Guideline Ranges, and Departures

US v. Muldrow: This case involved two defendants (consolidated on appeal) who were granted reduced sentences under 18 USC 3582(c)(2), but not to the extent they wanted. Each had received a downward departure in their criminal history categories at their original sentencing and the issue was how that departure figured in the 3582 analysis. Under a 2010 Fourth Circuit decision, Munn, the applicable guideline range is the one calculated after the departure. That holding was at odds with decisions in other circuits, however, and in 2011 the Sentencing Commission amended USSG 1B1.10 to adopt the other position - that the applicable guideline range is the one calculated before the departure. As a result, the defendants in this case had their reductions limited to the bottom of the new Guideline range calculated with their original criminal history categories (denying a further reduction of 22 months in one case, 32 months in the other). The district courts concluded they were bound by the new Guideline amendment, which abrogated Munn.

The Fourth Circuit agreed and affirmed the reductions. The court concluded that the amendment, which revised the commentary to 1B1.10, did not conflict with the text of the Guideline itself and was therefore controlling. The court also held that the district courts did not improperly apply the amendment retroactively because it was binding commentary that was not inconsistent with the Guideline itself.

Monday, December 12, 2016

No Second Amendment Issue With Prosecution for Selling Unlicesnsed Firearms

US v. Hosford: Hosford sold several firearms to an undercover cop. Hosford did not have a federal firearms license. Therefore, he was charged with multiple counts of unlicensed firearms dealing and conspiracy (a confederate bought the guns at gun shows that Hosford then sold). He entered a guilty plea, preserving the right to appeal the district court's denial of his motion to dismiss the charges as violating the Second Amendment, due process under the Fifth Amendment, and he Commerce Clause.

On appeal, the Fourth Circuit affirmed the denial and Hosford's convictions. On the Second Amendment challenge, it held that Hosford's facial challenge was to the "type of regulation deemed 'presumptively lawful' in Heller and "thus facially constitutional." On the as applied Second Amendment challenge, the court applied intermediate scrutiny (after assuming, arguendo, that the law burdens "conduct protected by the Second Amendment") and concluded that the important Government interests involved in regulating the commercial sale of firearms satisfied that burden. Next, the court held that the unlicensed firearm statute was not unconstitutionally vague, even though it did not clarify whether someone is a "dealer" versus a "collector." The statute "clearly gave notice to Hosford that he ought not to regularly sell firearms that he only purchased and resold for profit." Finally, the court held (joining all the other circuits to consider the issue) that the regulation of commercial firearms transactions falls within Congress's power under the Commerce Clause.

Friday, December 09, 2016

ACCA enhancement upheld

US v. Doctor:  Police in North Charleston, SC, received a call from a woman who claimed Doctor stole her cell phone and was inside a residence there with a gun.  Officers arrived at the location, gave Doctor his Miranda warnings, and questioned him about the firearm.  He lead the police to a pistol on the couch.  Doctor later pleaded guilty to being a felon in possession.

Doctor had two prior convictions for possession with intent to distribute cocaine, and one conviction for South Carolina strong arm robbery.  Doctor objected at sentencing to the characterization of the robbery as an ACCA violent felony.  His objection was overruled.  After receiving the mandatory minimum 15-sentence, Doctor appealed.

On appeal, Doctor argued that his conviction for strong arm robbery should not be a crime of violence for ACCA purposes because a defendant can effectuate a robbery with only a slight threat, and his conviction does not match the force clause requirement that force be directed “against the person of another.”  Further, Doctor argued that his conviction could be committed without an intentional use or threat of physical force.  The Fourth Circuit disagreed with Doctor, and using the categorical approach, found that there was no basis to conclude that Doctor’s robbery conviction could be accomplished with force below the physical force threshold.  The Fourth Circuit concluded that Doctor’s prior conviction qualified as a predicate violent felony within the meaning of ACCA.

Attempt to entice minors conviction upheld

US v. Clarke:  Appellant Clarke challenged his conviction for attempting to persuade minors to engage in sexual activity in violation of 18 U.S.C. § 2422.  He had arranged to meet with an undercover officer who he had met on an incest social networking site, after he had expressed an interest in the officer’s fake minor children; on arrival at the meeting place, police arrested Clarke.  While he was being interviewed, the police inventoried and towed Clarke’s vehicle.  A search warrant was later executed on the vehicle.  During the initial search, police located lubrication, condoms, a bag of candy, and an overnight bag, as well as the officer’s phone number, his age and the ages of the “children.”  A jury found Clarke guilty, and the district court sentenced him to 120 months imprisonment and lifetime supervised release; Clarke appealed.  The Fourth Circuit affirmed.

Clarke argued that the police inventory search, prior to obtaining a warrant, was illegal.  The Fourth Circuit held that the district court properly denied Clarke’s motion to suppress, as the evidence produced by the government (i.e. the departmental inventory search policy and a standard inventory search form signed by the officer who conducted the search) was sufficient to establish that the search was conducted according to the standard criteria.

Next, Clarke argued that the district court violated Rule 30(b) by failing to advise the defendant of how it would instruct the jury before closing arguments.  Here, the Fourth Circuit held that while the district court should have provided its instructions to counsel before closing argument, the violation did not, however, cause Clarke to experience any actual prejudice.  Clarke’s counsel has been able to make any “essential” arguments, because those arguments reflected the instructions ultimately provided by the court, and because the government produced sufficient evidence to convict him under the correct legal standard, the Fourth Circuit found no prejudice.

Clarke also argued that the district court improperly instructed the jury as to the meaning of “induce” under § 2422(b).  The Fourth Circuit held that the terms of the statute in question, “persuade,” “induce” and “entice” are not statutorily defined, but are “words of common usage” and have “accord[ed] them their ordinary meaning.”  Further, in ordinary usage, the court reasoned, these words are effectively synonymous, which it has previously held elsewhere.  The Fourth Circuit held here that the jury instructions were fair and accurately reflected the law.

Lastly, Clarke argued that the government did not provide sufficient evidence to sustain the conviction, and that the district court erred in denying his motion for acquittal.  The Fourth Circuit had to consider here whether 18 U.S.C. § 2422 can be violated when the defendant does not communicate directly with any minors, rather indirectly through an adult intermediary.  The other circuits to consider this question have held that Section 2422(b) extends to adult-to-adult communications that are designed to persuade a minor to commit the prohibited acts.  The Fourth Circuit agreed.  Moreover, the Fourth Circuit found that the government had introduced enough evidence that, taken together, would allow reasonable jurors to conclude that Clarke intended to coerce minors to engage in sexual acts and that he took substantial steps towards doing so.

When choosing the most applicable guideline goes awry

US v. Williams:  In this appeal, the Fourth Circuit reviewed a guidelines challenge, whether the correct guideline was applied, when compared with the actual misconduct charged.  Here, Ernest Lee Williams, Jr. attempted to rob a bank, but didn’t make it inside the building.  The district court applied the robbery guideline at sentencing, mainly because it included an enhancement for targeting financial institutions.  Williams appealed.

The Fourth Circuit agreed with Williams that the misconduct charged here most closely resembled burglary than robbery, and the burglary guideline should have been applied.  The burglary guideline yielded Williams an imprisonment range of 10 to 16 months, while the robbery guideline produced a range of 37 to 46 months; Williams had originally been sentenced to 38 months.

Williams had been indicted, the Fourth Circuit explained, for attempting to enter a back with the intent to commit a felony and larceny therein, i.e., a bank burglary.  There was no mention in his indictment of any element of “force or violence, or [extortion or] intimidation, which is required for conviction of bank robbery” under statute.  The Fourth Circuit states that it is clear that Williams should have been sentenced under the burglary guideline; it vacated Williams’ sentence, remanding for re-sentencing.

Friday, November 04, 2016

Omitted Information Doesn't Undermine Search Warrant

US v. Wharton: Wharton and her husband, John, were investigated for offenses related to the unlawful receipt of federal benefits (it involved the mismanagement of benefits received for their granddaughters). As part of the investigation, authorities executed a search warrant at their home which uncovered incriminating documentation. The warrant affidavit focused on John, rather than Wharton, although the evidence seized implicated them both. Wharton moved to suppress all the evidence seized, arguing that the affidavit omitted critical information, particularly that while Wharton and John shared the house, they had very separate bedrooms - Wharton's was on the second floor, while John's was in the basement. The district court granted the motion with respect to evidence found in Wharton's bedroom, but otherwise denied it. Wharton was convicted at trial of Social Security fraud, conspiracy, and embezzlement.

On appeal, Wharton argued that the district court erred by not suppressing all the evidence found in the house. The Fourth Circuit rejected that argument and affirmed Wharton's conviction, finding that the omitted material did not undermine the warrant itself. Comparing the case to two recent cases that also involved withheld information, "correcting the affidavit to include the omitted information [in those cases] undermined the foundational core of the affidavit. Here, the inclusion of the omitted information does not do that." That was due to other statements in the affidavit (from earlier in the investigation) that Wharton and John had been married for 43 years, lived together, and John's payment of some of the utilities to the house "support the view that John Wharton had access to the common areas of the house" and supported probable cause, at least to search the common areas of the house.

More Detailed Reasons Need to Exclude Grand Jury Evidence

US v. McTeague: McTeague and her codefendants were indicted on charges related to their alleged importation of undocumented workers to work at their restaurant as well as the treatment of those workers. After returning a superseding indictment that included allegations of witness tampering, the Government went back to the grand jury and obtained an indictment against some others involved in the witness tampering scheme. McTeague moved to dismiss the indictment, arguing that the Government had improperly used the proceedings leading to the third indictment to continue to investigate the offenses already charged. While the district court found no such prosecutorial misconduct, it nonetheless limited the Government's use of such evidence at trial due to the "unique combination of circumstances" in the case which made it "fundamentally unfair."

The Government took an interlocutory appeal to the Fourth Circuit. The court vacated the district court's order, but didn't go so far as the Government asked. Specifically, the Government argued that the kind of sanctions levied by the district court could only come after a finding of prosecutorial misconduct, which didn't happen in this case. The court declined to adopt such a bright line rule, but found that the district court's explanation of its sanctions was so sparse that it abused its discretion by imposing the sanctions. Without a finding of prosecutorial misconduct, it is "particularly incumbent upon the district court to explain both the reasoning for and the parameters of any exclusion of evidence derived from grand jury proceedings." The court therefore vacated the district court's decision and remanded for further proceedings.

Wednesday, September 14, 2016

WV priors not predicates under the ACCA

US v. White:  On appeal, White challenged the district court’s denial of his motion to suppress evidence (i.e., a firearm) obtained during a traffic stop that he argued was unconstitutionally prolonged.  The Fourth Circuit upheld the conviction, finding no constitutional problem with the traffic stop that occurred; it vacated White’s sentence, however, because the district court imposed an enhancement under ACCA for state burglary convictions that had been considered “violent felonies” under the residual clause at the time of White’s original sentencing, which Johnson, decided during the pendency of the appeal, later invalidated.

According to the Fourth Circuit, when an intervening decision of the Circuit or the Supreme Court affects precedent relevant to a case pending on direct appeal, an appellant may timely raise a new argument, case theory, or claim based on that decision while his appeal is pending without triggering the abandonment rule.

When White was originally sentenced, his prior state crimes qualified as “violent felonies” under the residual clause, because the crime posed the possibility of “face-to-face confrontation between the burglar and a third party.”  With Johnson, the Supreme Court expressly overruled precedent and invalidated the residual clause, and White sought leave to file a challenge to his sentence under the ACCA.  The question presented was whether White’s prior state convictions still met the definition of ACCA “violent felony” despite the invalidation of the residual clause.

Using the categorical approach, the Fourth Circuit determined that the WV burglary statute “sweeps more broadly than generic burglary.” Since the state convictions would only qualify as  predicates under the ACCA if the state crime elements were the same as or narrower than the ACCA-enumerated generic offense, the prior crimes here did not qualify as predicates.  The Fourth Circuit found that the district court erred in enhancing the sentence under the ACCA, and vacated it.

Harsh ethnic stereotyping amounts to constitutional error, but harmless

US v. Garcia-Lagunas: Garcia-Lagunas was convicted of conspiracy to distribute cocaine, and received a sentence of 188 months.  He appealed to the 4th Circuit, which affirmed his conviction.  He filed a petition for rehearing and rehearing en banc.  In this panel rehearing, the Fourth Circuit considered whether an evidentiary error could be harmless when the error assumes a constitutional dimension.  Here, the error was the Government’s improper use of an ethnic stereotype to rebut the defense theory that Garcia-Lagunas was a drug user but not a major drug dealer.

Police arrested Garcia-Lagunas in a “squalid” trailer with some body armor, a firearm, a large digital scale, and 800 grams of white powdery substance (later revealed by lab tests to contain no controlled substance).   At trial, the government presented its case that Garcia-Lagunas was a large-scale distributor responsible for selling upwards of 40 kilograms of cocaine, a much larger amount than stated in his indictment.  The evidence presented against him included statements from a detective who informed that jury that in his extensive experience investigating “Hispanic drug traffickers,” that “they’re very modest living” and “they send the majority if not all of the proceeds back to their native countries.”  The government also referred to this testimony in its closing to explain the defendant’s lack of extravagant lifestyle.  The government conceded at oral argument that the evidence in question was unconstitutional.

According to the Fourth Circuit, even without the improper use of an ethnic stereotype, however, a rational jury could have found Garcia-Lagunas guilty, so the Fourth Circuit held that it was satisfied the evidentiary error was harmless beyond a reasonable doubt, and affirmed the conviction.  The Fourth Circuit found that the improper evidence “did not pervade the trial.”

In dissent, Senior Judge Davis issued a stern rebuke of the panel’s decision:

“As in any prosecution, whether for a crime involving the infliction of unspeakable violence upon actual victims, or in the prosecution of the most plain-vanilla so-called “white collar” offense, and any prosecution in between, the defendant in our system is entitled to have the jury grapple, if it must, with his defense theory, unaided by blatantly foul blows delivered by the prosecution, abetted by the trial judge, in the use of racial or ethnic entreaties aimed at undermining or dismissing outright the defense theory of the case.”

“The Government’s appeal to an unabashed ethnic generalization was plainly a constitutional error, and as a result, it is the Government’s burden to prove that its error was harmless beyond a reasonable doubt.”

“After this published opinion, future panels of this Court will be required to struggle with the issue of just how much evidence of guilt is enough evidence of guilt to permit the Court to give the Government as pass when it bolsters its pursuit of a conviction through resort to gratuitous racial and ethnic evidence intended to spur one or more jurors to convict.  This case sets a very low bar, considering the level of certainty that the constitutional violation had not effect on any juror is agreed to by “beyond a reasonable doubt,” a standard that, interestingly, this Court has long refused to allow trial judges to define for ordinary jurors.  See United States v. Walton, 207 F.3d 694, 699 (4th Cir. 2000) (en banc) (“We find not reason to alter our current practice of not requiring a jury instruction defining reasonable doubt in criminal cases.”).  Perhaps, as we approach the 50th anniversary of the seminal teachings of Chapman v. California, the time has come for this Court to undertake an examination of just what “beyond a reasonable doubt” means, after all.”

Wednesday, August 31, 2016

Intent to Abuse Sufficient for "Forcible Sex Offense" Under 2L1.2

US v. Alfaro: Alfaro reentered the United States illegally. His prior deportation had come after he was convicted of "third degree sexual offense" in Maryland in 2003. At sentencing, Alfaro's Guideline range was enhanced under USSG 2L1.2(b)(1)(A)(ii) for being a "crime of violence." In that particular Guideline, the definition is contained entirely in the commentary and includes a lengthy list of enumerated offenses, including "forcible sex offenses." The district court concluded that Alfaro's 2003 conviction fit that description and imposed the 16-level enhancement.

The Fourth Circuit affirmed Alfaro's sentence on appeal. Alfaro's argument was that while his 2003 offense was "forcible" it was not a "sex offense." In an earlier decision (Diaz-Ibarra), the Fourth Circuit had held that "sexual abuse of a minor" in the same Guideline required that such an offense was committed "for a purpose associated with sexual gratification." Alfaro's 2003 offense, by contrast, could be committed "for the abuse of either party" as well as for "sexual arousal or gratification." The court rejected Alfaro's argument, holding that while "sex" and "sexual" have similar meanings, the operative things being defined are the phrases "forcible sex offense" and "sexual abuse of a minor" and don't require the same result. Other circuits have read the definition of "forcible sex offense" in a similarly broad manner.

The bigger takeaway from this case is how the court reached its conclusion. This wasn't an element of force argument, it was a question of whether Alfaro's state conviction matched the "generic" definition of an enumerated defense. However, rather than resort to a survey of state laws to determine the generic definition of "forcible sex offense," the court concluded that it was "difficult if not impossible" to "identify a consensus set of the minimum elements necessary to define the category." As a result, the court turned to "the plain, ordinary meaning of the language used by the Guidelines." Given the list of enumerated offenses in the new version of the career offender Guideline, this could be very important going forward.

Thursday, June 16, 2016

Third-party doctrine and historical cell-site location information

US v. Graham:  Upon rehearing en banc, the Fourth Circuit revised its earlier position in this case, finding instead that no Fourth Amendment violation occurs when the government obtains historical cell-site location information (CSLI) from a cell phone provider.  Under the Supreme Court’s third-party doctrine, an individual maintains no Fourth Amendment protection over information voluntarily turned over to a third party.  This holding falls in line with all of the sister circuits’ holdings on this issue.

Pertinently, the government conducted no tracking or surveillance here; rather, it obtained the CSLI from the cell phone provider pursuant to a search warrant.  The Fourth Circuit refers to a myriad of federal cases that permit the government to acquire similar third-party records, even when individuals do not “actively choose to share” the information contained in those third-party records.

The Supreme Court, according to the Fourth Circuit, has delineated clearly between contents of communications and the non-content information that enables communications providers to transmit the content, and CSLI “undeniably” belongs in the non-content category of information.

Moreover, the Fourth Circuit notes that Congress could grant individuals greater privacy protection over CSLI, as the legislative branch is “better positioned to respond to changes in technology than are the courts.”