Monday, May 04, 2020

Sex Offense by Registered Sex Offender Is Offense, Not Sentencing Enhancement

US v. Beck: Beck, already a registered sex offender, was charged with multiple counts arising from the abuse of a minor, including the production of child pornography and doing so while required to register as a sex offender. Beck pleaded guilty to both charges (others were dropped) and was told that the district court was required to imposed the 10-year mandatory sentence on the sex offender count consecutively to whatever sentence was imposed on the production count. The district court imposed the statutory maximum 40-year term on the production count, plus the ten years. After remand because there was no consecutive requirement the district court reimposed the same sentence.

The Fourth Circuit affirmed Beck’s sentence in a second appeal. This time, Beck argued that the statute under which the sex offender conviction was sustained, 18 USC 2260A, does not actually state an offense at all – it was merely a sentencing enhancement. As a result, his conviction on that count was invalid (because the other offense to which he pleaded guilty was not one of the listed predicate offenses for which a sentence could be enhanced). The court rejected that argument, looking the language of 2260A and concluding that it did state an offense. In particular, because liability under 2260A requires proof that a minor was involved in the offense (not all of the listed predicate offenses involve minors) which was an element of an offense.

Judge Harris wrote a concurring opinion to “emphasize some of the peculiar features of this case that have muddled the statutory question,” while Judge Rushing dissented, arguing that the court should have dismissed the appeal pursuant to the waiver provision in Beck’s plea agreement (she agreed that 2260A is a substantive offense, however).

No Need to Specify Evidence Upon Which Supervised Release Revocation Is Based

US v. Patterson: Patterson was in a local jail while also serving a term of supervised release when his cellmate overdosed and was taken to the hospital. Patterson was eventually charged with violating his conditions of supervised release by possessing heroin and Xanax with intent to distribute as a result of that incident. He denied the charges and the district court held a contested revocation hearing in which it heard testimony from the cellmate (he got better) and others. The district court concluded that Patterson had provided the drugs the cellmate used to overdose, revoked his term of supervised release, and imposed a term of 39 months in prison.

On appeal, the Fourth Circuit affirmed Patterson’s revocation, but vacated his sentence. As to the revocation, the court rejected Patterson’s argument that the district court violated his due process rights by not specifying the particular evidence upon which it based its decision to revoke his term of supervised release. That was because “the record plainly shows the trial court’s rationale” in the way it “actively engaged with the witnesses and counsel.” The court also found the district court’s conclusion was not clearly erroneous. As to the sentence, however, the court agreed with Patterson that the district court did not provide a sufficient explanation for the sentence it imposed, because while it “gave a fulsome explanation” of the 3553(a) factors it “failed to not that it had considered Patterson’s mitigation points.”

Monday, April 27, 2020

Court Must Apply Retroactive Law to Career Offender Designation in 1SA Proceeding

US v. Chambers: In 2005 Chambers was convicted as a career offender to 262 months in prison after being convicted of a crack conspiracy. Two of his prior predicate convictions were for North Carolina drug offenses for which, because of the state’s then-existing guideline scheme, he did not actually face a maximum sentence of more than one year. Under Fourth Circuit law at the time, however, they counted as predicates. More recently, Chambers filed for relief under the First Step Act’s retroactive application of the Fair Sentencing Act and argued that the district court should correct the original career offender designation in light of Simmons. The district court declined to do so and did not reduce Chambers’ sentence.

A divided Fourth Circuit reversed the district court. The court rejected the Government’s position that the 1SA only allowed the district court to make “statutory Fair Sentencing Act adjustments and preclude[d] it from correcting Guideline errors,” noting that Section 404(b) of the 1SA uses the term “impose” a sentence, rather than “modify” or “reduce.” When imposing a sentence “a court does not simply adjust the statutory minimums; it must also recalculate the Guideline range.” Unlike the language of 18 U.S.C. 3582(c)(2), there are no limitations on doing do under 3582(c)(1), the mechanism for applying the 1SA. Of particular import in this case was that the change in the law that occurred in Simmons had been made retroactive, so that the career offender designation was “as wrong today as it was in 2005.” The court also explained (in noting Government concessions) that the usual 3553(a) factors apply in 1SA proceedings and that courts may consider a defendant’s post-sentencing conduct in determining whether and to what extent to reduce a sentence.

Judge Rushing dissented, arguing that Guideline calculations are not part of what is “expressly permitted” by the 1SA and noted that the court, while making Simmons retroactive the context of challenges to a felon-in-possession conviction, reached the opposite conclusion with regard to Guideline calculations in 2255 proceedings.

Congrats to the Defender office in Western NC on the win!