Thursday, May 07, 2015

District Court's Advocacy of Plea Bargain Requires Vacation of Plea

US v. Braxton: Braxton was charged with possession with intent to distribute more than 1 kilogram of heroin. His attorney advised him during plea negotiations that, if he went to trial, the Government could file an information increasing his mandatory minimum sentence if convicted from 10 to 20 years. Braxton at first requested a new attorney, but later withdrew the request. He insisted on going to trial, however, before which the Government filed the information.

On the day of trial, the court memorialized the last plea offer that Braxton rejected (he would admit he possessed the heroin, but he wanted to put the Government to its proof) - the Government would withdraw the information and argue for a sentence of 15 years. Braxton again asked for new counsel or, in the alternative, to represent himself. Both of those requests were denied. Wading into the dispute between Braxton and his attorney, the district court expressed reluctance at letting Braxton go to trial, said Braxton was "hurting [his] own interest," and compared his decision to "put[ting] [your] head in a buzz saw that makes absolutely no sense." After a couple of breaks in the proceedings, Braxton changed his mind and agreed to plead guilty. Braxton said he didn't feel coerced or pressured into pleading, although the district court had expressed its concern that he was "unwisely proceeding to trial before a jury." Braxton unsuccessful tried to withdraw his plea and was sentenced to 138 months in prison.

On appeal, the Fourth Circuit vacated Braxton's conviction. Relying on last year's decision in Sanya, the court concluded that the district court had improperly participated in plea negotiations in violation of Rule 11 of the Rules of Criminal Procedure. As in Sanya, the court's "commentary was extensive and persistent, and continued unabated" through the day of trial. In addition, Braxton's change of heart came after one of the district court's more pointed bits of commentary (opining that he "shouldn't put his head in a vice and face a catastrophic result"). The error was plain, affected Braxton's substantial rights, and had to be noticed. It was irrelevant that Braxton said, at the time, that he was entering the guilty plea voluntarily. The court also rejected the Government's argument that the district court was drawn into the issue by Braxton's request to represent himself, noting that issue was resolved before the district court really got going on why he should enter a guilty plea.

Erroneous Career Offender Calculation Cannot Be Corrected in 2255 Proceeding

US v. Foote: Recall last year when the Fourth Circuit, in Whiteside, first concluded that an incorrect career offender calculation due to a Simmons error could be remedied in a 2255 proceeding and then, en banc, concluded that it could not. The issue in Whiteside specifically was the technical 2255 issue of whether the motion in that case (filed within a year of Simmons being decided) was timely. Thus, Whiteside didn't technically address the central substantive issue of whether an erroneous career offender designation could be remedied in a 2255 proceeding. Foote takes that issue head on and, unsurprisingly, comes to a similar conclusion.

Foote pleaded guilty to distributing crack. He was classified as a career offender based, in part, on a pair of prior North Carolina drug convictions that, under Fourth Circuit precedent at the time, carried a potential maximum sentence of more than one year in prison. He challenged the career offender determination on appeal (unsuccessfully) and then in a timely 2255 motion. Simmons was decided while Foote's 2255 motion was pending, showing that his priors were not felonies (because he was not subject to a maximum sentence of more than one year) and he was not, therefore, a career offender. The district court denied the motion, but granted a Certificate of Appealability on the issue of whether the error could be remedied in a 2255 proceeding.

On appeal, the Fourth Circuit concluded that it could not and affirmed the denial of the 2255 motion. Noting that a sentencing error (that does not impact constitutional or jurisdictional claims) can only be remedied in a 2255 proceeding if the error is "a fundamental defect which inherently results in a complete miscarriage of justice," the court concluded that "sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet this remarkably high bar." The court noted that, in general, Guideline errors are not subject to 2255 review in the Fourth Circuit. It also recognized that other circuits had drawn a distinction between career offender errors under a mandatory system (2255 applies) and advisory system (2255 doesn't apply). The court rejected Foote's attempt to stretch the Supreme Court's "actual innocence" cases to include sentencing errors (much less advisory Guideline calculation errors). In conclusion, the court expressed "frustration" at the result (pointing out that Foote had done everything correctly in order to challenge his sentence), but that "the guidance of the Supreme Court and Congress is clear" and it "ties our hands."

Thursday, April 16, 2015

NC Second-Degree Kidnapping Is Crime of Violence

US v. Flores-Granados: Flores-Granados was convicted of second-degree kidnapping in North Carolina in 2007, after which he was deported to his native Honduras. In 2013, he was found in Virginia and eventually pleaded guilty to reentering the country illegally. At issue at sentencing was whether his prior conviction was an "aggravated felony" or "crime of violence" under 2L1.2(b)(1), resulting in an enhancement of either 8 or 16 offense levels. The district court concluded that the conviction was a crime of violence, based on the actual facts underlying the conviction (Flores-Granados broke into a home, threatened the use of a gun, and stabbed the victim with a screwdriver) that showed "the type of violent conduct which justifies the 16-point enhancement."

Flores-Granados appealed his sentence, which the Fourth Circuit affirmed. Although it agreed (and the Government conceded) that the district court erred by analyzing the underlying facts of the prior conviction, rather than the elements or (at most) the Shepard-approved documents, the district court's ultimate conclusion was correct. The court noted that kidnapping is a specifically listed "crime of violence" in the Guidelines and that the elements of second-degree burglary as defined by the North Carolina courts, fall within the generic definition of burglary contemplated by the Guidelines. As the court concluded, "[p]ut simply, the statute is what we mean when we say 'kidnapping.'"

Convictions for Somali Pirates Affirmed

US v. Beyle: Beyle and his codefendant, Abrar, were involved in a Somali pirate raid against a US sailboat, the Quest, which resulted in the death of four Americans on board and the intervention of the US Navy. Both were convicted of 26 counts related to the raid, including murder within the special maritime jurisdiction of the United States (which includes the "high seas") and discharge of firearms during a crime of violence and sentenced to multiple life sentences (some concurrent, some consecutive).

Beyle and Abrar both appealed their convictions, on different grounds, which the Fourth Circuit affirmed. As to Beyle, he argued that the district court lacked jurisdiction on the murder and firearm charges because they took place not on the "high seas" but in Somali territorial waters. The raid occurred in the middle of the Indian Ocean, but the Quest was turned by the pirates toward the Somali coast and was about 30 miles from the coast when the Navy intervened. While that was within the "exclusive economic zone" of Somalia, it was not within the more narrowly defined "territorial waters, which, by international treaty (to which Somalia is a party), extend only 12 miles from the coast.

As to Abrar, he argued that he was denied Fifth and Sixth Amendment rights with regard to his defense of duress - that he had been kidnapped and forced to take part in the raid. The court concluded that his inability to subpoena witnesses was not the fault of the United States, but simply due to the fact that the witnesses were foreign nationals residing in other countries. In addition, there was no evidence that the witnesses actually existed. Therefore, Abrar was not prevented from developing and presented a duress defense.

Lifetime Supervised Release Term Reasonable for CP Defendant

US v. Helton: Helton pleaded guilty to being in possession of child pornography. In a statement to police following the seizure of his computer, Helton admitted the possession, denied sharing it with others, and explained that he had "sought treatment in the past." He was sentenced to 60 months in prison, below the advisory Guideline range, and to a lifetime term of supervised release.

On appeal, the Fourth Circuit affirmed Helton's lifetime term of supervised release. First, the court concluded that there were no procedural errors in the imposition of the sentence. It rejected Helton's argument that the district court had not provided sufficient explanation for why a lifetime term of supervised release was "sufficient, but no greater than necessary." In particular, the court stressed that the district court had concluded that a variance for the term of imprisonment was only appropriate "because she knew that Helton would be subject to a lengthy term of supervised release" and that the district court upheld several of Helton's objections to strict optional conditions of supervised release. Second, the court found the lifetime term (which it described as within the statutory and Guideline ranges) was also substantively reasonable, largely for the same reasons.

Judge Gregory wrote a concurring opinion, in which he praised the district court for "display[ing] courage in varying downward" and hoping that "[p]erhaps, in the future, our Guidelines will evolve to become truly proportional to the severity of our crimes."

NOTE: I argued the case on appeal for Helton.

No Prejudice In Failure to Make Jury Perform Pinkerton Analysis

US v. Rangel: Rangel was convicted at trial of various drug charges, including distribution of more than 1000 kilograms of marijuana, which carried a 120-month mandatory minimum sentence. The jury made a finding that the conspiracy involved that much marijuana, but  was not instructed to determine the amount attributable to Rangel himself under a Pinkerton liability analysis. He was sentenced to 121 months in prison, the bottom of the Guideline range. Rangel filed a 2255 motion, arguing that both trial and appellate counsel were ineffective for failing to request a Pinkerton instruction and that trial counsel was ineffective for failing to object to the amount of relevant conduct attributed to Rangel at sentencing. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the dismissal of Rangel's 2255 motion. With regard to the instruction issue, the court agreed (and the Government conceded) that the jury was not properly instructed and should have been required to perform a Pinkerton analysis in rendering a verdict. Therefore, trial counsel's performance fell below the standard required. However, Rangel was unable to show prejudice because he could not show "a reasonable probability of a different result" at sentencing. Reviewing the evidence at trial, the court concluded that "Rangel's sentence would have been the same with a proper jury instruction" in light of the "overwhelming" evidence against him. Furthermore, the district court would have made the same findings with regard to relevant conduct and the Guideline calculation would have been unchanged. The same analysis applied to appellate counsel's performance, as he would have been saddled with plain error review had the issue been raised. Finally, the same prejudice analysis applied to trial counsel's failure to object to the relevant conduct calculations at sentencing.

Tuesday, March 31, 2015

RICO convictions affirmed

US v. Cornell, et al.:  In this appeal, three members of the Latin Kings based in Greensboro, North Carolina, challenged their convictions for conspiracy to violate RICO, asserting trial errors in the jury instructions and a lack of sufficient evidence to support their convictions.

The defendants made several joint arguments: 1) that the government failed to establish that the RICO enterprise affected interstate commerce; 2) the jury instruction on RICO was erroneous because, in the defendants’ view, the district court was required to charge the jury that it had to unanimously agree upon the specific acts that the co-conspirators engaged in during their conspiracy; and 3) the district court gave improper Allen charges, the second of which coerced the jury into an unfavorable verdict.

The district court applied the “minimal effects” standard to determine whether a RICO conspiracy existed.  The Fourth Circuit panel approved the district court’s approach, based on circuit precedent, despite the defendants’ reliance on a Sixth Circuit case, which held that when a gang is not shown to have conducted considerable economic activity, the government must prove that the RICO enterprise substantially effected interstate commerce.  The panel here found that the Sixth Circuit case was not the law, nor did the panel find that case particularly valid in light of a more recent Supreme Court case to the contrary.  Further, even if the Sixth Circuit case did apply here, the district court found evidence that the RICO conspiracy here involved multiple acts of bank fraud, from a false check scheme, as well as the fact that the gang used their cell phones and carried guns during multiple robberies; all of which were economic activities that would trigger a connection to interstate commerce, according to the Fourth Circuit.

With regard to predicate acts, the Fourth Circuit held that there was no requirement that the district court had to instruct the jury as to specific acts that the conspirators engaged in during the conspiracy.  The panel noted that the Supreme Court has held that the RICO conspiracy statute contains no requirement of some overt or specific act, and that the conspirators merely must agree on the same criminal objective, regardless of whether that objective is acted upon or carried out.  So, the panel held that directing a jury to identify what predicate acts occurred is not required.

The defendants argued that the effect of the Allen charges to the jury was improperly coercive.  The Fourth Circuit panel found the district court did not abuse its discretion in the Allen charges it gave to the jury, after analyzing the language of the instruction, its incorporation with other instructions, the timing of the instruction, and the length of the jury’s subsequent deliberations.  The jury here deliberated some three hours after the second Allen charge before returning a verdict, and the jury returned a split verdict, acquitting three co-defendants and finding predicate acts in 5 out of 9 possible categories submitted for review, indicating that the jury carefully considered the evidence against each defendant.

Two defendants raised separate, individual challenges, regarding trial evidence, specifically the striking of one defense witness’s testimony, the admission of a letter written to one defendant purportedly from a former gang member, as well as whether one defendant, a non-gang-member, was properly included in the conspiracy, and the sufficiency of the evidence supporting a portion of the jury’s verdict.  The Fourth Circuit panel found no merit in any of these individual claims of error; it affirmed the judgment of the district court.

Monday, March 30, 2015

Cookie cutter sentences for convenience store robbers rejected

US v. Lymas, et al.:  In this appeal, the Fourth Circuit considered procedural and substantive challenges to three 200-month sentences, ordered to three of the four co-conspirators in a convenience store robbery ring.  Each of the defendants had different criminal histories.  Each had different advisory guidelines ranges.  However, each defendant received the exact same sentence, based upon the district court’s position that the sentencing guideline under-punished the crimes.  The sentences imposed on each defendant amounted to upward variances ranging from 3 months for one, 15 months for the second, and 62 months for the third.

The Fourth Circuit determined that, except for offering its view of the seriousness of the offense that occurred in this case (i.e., robberies that in some instances involved handguns, in one case a juvenile, and some violence), the sentencing court ignored every other statutory factor, and imposed sentences purely based upon the crime rather than the individual defendants.  In imposing these sentences, according to the panel here, the district court rejected not only the Sentencing Commission’s considered judgment as to the appropriate sentence for the crimes, but also the “foundational principles of the Guidelines themselves - - proportionality in sentence, which ‘match[es] punishment with culpability’.”  While the imposition of this sentence may technically be permissible post-Booker, the Fourth Circuit determined that this sort of “wholesale rejection” of the Guidelines requires a “significantly more detailed explanation than” the district court gave here.   The Fourth Circuit vacated the sentences and remanded to the district court for resentencing.

Monday, March 16, 2015

Robbery conspiracy convictions affirmed - cell phone evidence

US v. Reed, et al.:  In this appeal, the four appellants challenged the trial court’s admission of FBI cellular analysis maps from cell phones purportedly belonging to the four, and their service providers’ cell phone towers, as well as the admission other data derived from the appellants’ cell phones.  They also raised a sufficiency of the evidence challenge, generally denying that they committed the crimes because there were no eye witnesses who could identify them and the government’s theories could have been mere coincidences.  The Fourth Circuit affirmed on all counts.

The appellants committed three robberies in and around the greater metropolitan area of Washington D.C. in December 2012.  During their final robbery, they unwittingly took some cash embedded with GPS devices, which lead police directly to the appellants.  The four appellants went to trial.

At trial, the government provided the appellants’ names, rather than phone numbers, when showing locations of the cell phones on a variety of maps (which, they also argued, were not drawn to scale) corresponding with locations of each of the robberies that took place.  Using a process known as “historical cell-cite analysis,” the FBI can extrapolate an area in which a phone was located over time.  This cell phone evidence, admitted at trial, placed at least one of the appellant near the scene of each robbery at the time the robberies occurred.  Appellants argued that this evidence was not properly authenticated, irrelevant, and unfairly prejudicial.

The Fourth Circuit reviewed the district court’s admission of this evidence for an abuse of discretion, i.e., whether the admission of the evidence was “arbitrary and irrational,” and it found that the district court properly admitted the evidence, as the government provided adequate reason for the jury to believe that the cell phone data could be used to approximate the phones’ locations at pertinent times and that each cell phone was associated with a particular defendant.  In addition to the FBI maps, the photos and text messages, and the labeling of people in the cell phone contacts lists, served to authenticate each phone as belonging to a specific individual.

One of the appellants raised a Sixth Amendment Confrontation Clause challenge, because no everyone in the chain of custody for his purported cell phone testified at trial, i.e., there was no testimony about who initially seized the phone and where it was taken.  Again, the stored photos and text messages on the cell phone allowed the government to connect the phone to this appellant, so any error that may have occurred in the introduction of the evidence was harmless beyond a reasonable doubt.

Tuesday, March 10, 2015

Drug totals must be proven with facts

US v. Flores-Alvarado:  In this appeal, the Fourth Circuit vacated and remanded a life sentence (and concurrent 480-month term) for the defendant’s convictions for his part in a drug trafficking conspiracy that purportedly involved over 30,000 kilos of marijuana equivalent.  At issue was whether the district court conducted a sufficient inquiry into the calculation of the defendant’s drug relevant conduct, and the Fourth Circuit determined that it had not, and remanded the case for further specific factual determinations regarding the defendant’s role in the conspiracy, in addition to whether the drug quantities were reasonably foreseeable as to him.

An investigation into the trafficking organizations, which involved multiple sources of both marijuana and cocaine, lead to two main seizures of drugs from houses in Stokesdale, North Carolina and Lexington, Kentucky, described briefly in the PSR.  During two separate sentencing hearings, the Government did not call any witnesses or present any other evidence about the drug quantities in either of these seizures.  The district court relied upon the recitation of events from the PSR, which attributed all seized quantities to the defendant.  At both sentencing hearings, Flores-Alvarado objected to the drug quantities attributed to him, to no avail.

The Fourth Circuit found that the district court clearly erred in failing to resolve the dispute about whether the events as described in the PSR supported attributing the seized amounts to Flores-Alvarado, and it did not make the necessary factual findings to attribute those amounts to him.  When dealing with drug conspiracies, the Fourth Circuit requires lower courts to “make particularized findings with respect to both the scope of the defendant’s agreement and the foreseeability of [the conduct at issue].”  The Fourth Circuit concluded that the PSR did not contain facts sufficient to show that the seized drug quantities were within the scope of Flores-Alvarado’s criminal activity, that the district court failed to make any findings on that “critical” point, and consequently, the Fourth Circuit was unable to review the issue.

Tuesday, March 03, 2015

Denial of Mens Rea Can Lead to Loss of Acceptance

US v. Burns: Burns got in a beef with Poole at a convenience store.  The next day, according to Burns's fiance, he wanted "to kill" Poole for "jumping him at the store."  Burns (and his fiance) was in a parked car later that day when he saw Poole (and others) in another car.  According to the fiance, Burns got out, confronted Poole, returned to the car and got his gun, telling her "I'm going to shoot him."  She also testified that Burns either said "I'm going to shoot that motherfucker" or said to Poole, "motherfucker, I'm going to kill you."  After one of Poole's passengers got out of the car, Burns shot once into the car (no one was hurt).  Poole sped away, initially pursued by Burns, who later broke off the chase.

Burns pleaded guilty to being a felon in possession of a firearm.  The PSR recommended that his Guideline range be calculated based on a cross reference to murder Guideline.  With a reduction for acceptance of responsibility, his Guideline range was 92-115 months.  Burns objected to those calculations.  Although he admitted possessing the gun and firing it in the car, he denied having the mens rea needed to support an (attempted) murder cross reference, as opposed to aggravated assault.  The district court not only overruled that objection and applied the murder cross reference, but concluded that Burns had falsely denied relevant conduct and did not award a reduction for acceptance of responsibility.  As a result, Burns's Guideline range was 120 months - the statutory maximum.  That was the sentence he received.

On appeal, the Fourth Circuit affirmed Burns's sentence.  The court styled the issue by asking "is acting with a particular mental state relevant conduct within the meaning of USSG 1B1.3(a)(1)(A)?"  The court concluded that it was, rejecting Burns's argument to restrict relevant conduct to only physical actions.  That reading was inconsistent with earlier Fourth Circuit law approving of cross references for attempt (which is all about mens rea) based on "acts or omissions" of the defendant.  Thus, "when Burns denied his 'acts and omissions' including shooting with intent to kill, he denied relevant conduct attributable to him."

Court Rejects Jury Instructions In Marriage Fraud Case

US v. Sonmez: Sonmez came to the United States on a tourist visa in 2000 but remained past its expiration date.  In 2008 he wed Eckloff and sought a green card based on marriage to a US citizen.  The green card was never awarded and eventually an investigation led to Albrecht, who told investigators of a scheme where citizens would marry nationals from the Middle East in order favorably impact their immigration status.  She had introduced Eckloff to Sonmez, who were married two weeks later.  Both Sonmez and Eckloff were charged with marriage fraud, but Eckloff pleaded guilty and testified against Sonmez.  She testified that received $2000 for marrying Sonmez and that they never had a romantic or sexual relationship with each other.  Sonmez testified that the relationship was real, had lasted six months prior to marriage, and the marriage was "real" for him.  He was convicted and sentenced to a year in prison.

On appeal, the Fourth Circuit affirmed Sonmez's conviction.  Sonmez argued that the district court had erred by not giving two requested instructions to the jury, one that required the Government to prove that Sonmez's "only reason" for marrying was the obtain a green card and one that required proof that he and Eckloff had "no intent to establish a life together."  Instead, the court instructed the jury that the Government had to prove that the marriage was "entered into for the purpose of evading" US immigration laws.  The court found that Sonmez's requested instructions were properly rejected because they were improper statements of the law.

Analysis of SORNA Priors Involves Fact-Intensive Approach

US v. Price: Price pleaded guilty 2010 to "assault and batter of a high and aggravated nature" in South Carolina.  The basis for the charge was the claim that Price had forced a 12-year old girl to perform oral sex on him, as set forth during the plea hearing.  After his sentence was finished, Price moved to several different states, eventually returning to South Carolina.  Generally, during this time, he was not registering as a sex offender.  As a result, he was charged in South Carolina with failing to register under SORNA.  Price moved to dismiss, arguing that his prior conviction wasn't a "sex offense" as defined by SORNA.  Looking to the facts of the prior conviction the district court denied the motion.  Price entered  a conditional guilty plea and was sentenced to 24 months in prison and a lifetime term of supervised release.

On appeal, the Fourth Circuit affirmed Price's conviction by vacated his sentence.  On the conviction the court framed the issue as whether the categorical or circumstance-specific approach was appropriate in determining whether a prior offense was a "sex offense" under SORNA (the modified categorical approach was out because the court had earlier found the relevant South Carolina offense indivisible).  The court concluded the circumstance-specific approach - which allows the district court (or jury) to examine the underlying facts of the offense - was appropriate for two reasons.  First, the text, structure, and purpose of SORNA supported that conclusion because of it's references to "conduct" and the "nature" of the offense, rather than elements of a generic conviction.  Second, the Sixth Amendment concerns that animated the categorical approach in sentencing contexts was not present here because the Government bore the burden of proving a prior offense was a "sex offense" to a jury if the defendant went to trial.  On the sentence, the court applied the recent Collins decision, concluding that the district court incorrectly concluded that the supervised release Guideline range was life and remanding for resentencing.