Wednesday, October 14, 2020

No Evidence of Lack of Permit Means Stop Violates Fourth Amendment


US v. Feliciana: Feliciana was driving a bakery delivery truck down the George Washington Memorial Parkway (in Virginia, but a federal enclave) when he was pulled over by a Park Police officer. His offense? The officer knew that commercial vehicles requires a permit to operate on the parkway and Feliciana’s truck appeared to be one. Once stopped, the officer found marijuana on Feliciana, who was charged with possession and operating a vehicle without a permit. The district court denied Feliciana’s motion to suppress and he entered a conditional guilty plea (to the marijuana charge, only).

The Fourth Circuit reversed the district court’s denial of the motion to suppress. The court noted that the “entire factual basis . . . offered for conducting the traffic stop was that he saw a vehicle requiring a permit on the Parkway,” but that was “wholly innocent.” It rejected the Government’s argument that such permits are rarely issued, raising an inference of a violation, by noting that “we find no evidence in the record to support” that claim. Without more, the Government failed to “articulate some particularlized and objective basis for suspecting illegality.” The court also rejected the Government’s argument that the regulation requiring permits is structured in such a way as to allow “discretionary spot checks” on vehicles on the Parkway. Finally, the court held that the stop was not made pursuant to any administrative scheme that would avoid Fourth Amendment issues.

Congrats to the Defender office in the Eastern District of VA on the win! 

Court Affirms Juvenile Life Sentence After Resentencing


US v. McCain: McCain, who was then 17 years old, shot a pair of what he believed were cooperators in the investigation of the drug operation of which McCain was a part. One of them died, the other lived “but with permanent and disabling injuries” (McCain ran out of bullets, so he ran off and returned with a knife, only to find a crowd gathered at the shooting site). McCain was transferred to adult status and pleaded guilty to witness tampering by murder, witness tampering by attempted murder, and using a firearm in connection with a drug trafficking crime and a crime of violence. The district court imposed a mandatory sentence of life on the murder charge (after McCain, while awaiting sentencing, sent letters threatening to kill several people, including the attempted murder victim).

In 2016, McCain filed a 2255 motion to vacate his sentence on the basis of intervening Supreme Court law that had held that mandatory life sentences for juveniles violated the Eighth Amendment. The Government agreed and McCain was resentenced. The district court imposed another life sentence, concluding that McCain’s record in prison (which included a sexual assault of another inmate when he was moved back to the district court for resentence) showed that this was “one of those uncommon cases where sentencing a juvenile to the hardest possible penalty [was] appropriate.”

The Fourth Circuit affirmed McCain’s new life sentence. First, the court rejected McCain’s argument that because the only authorized sentences for the murder conviction were life in prison or death, the district court could not actually sentence him at all and should have sua sponte vacated the conviction. Applying plain error, the court concluded there was no prejudice (even if there was error) because McCain’s other counts of conviction (and the accompanying Guideline ranges) would still have allowed for the life sentence. Second, the court concluded that “the sentencing hearing easily satisfied our requirements for procedural reasonableness” and the relevant Supreme Court cases and that the district court appropriately considered McCain’s juvenile status at the time of the offense, not just his post-arrest record. The court also concluded that there was no procedural error in the district court’s rejection of McCain’s request for a “de facto parole” setup where the court would regularly revisit his sentence, noting that there is no law authorizing such a scheme. Finally, the court held that McCain’s life sentence was substantively reasonable.

Tuesday, September 01, 2020

Cannot Challenge Legality of SR Condition Collaterally Without Changed Circumstances

US v. McLeod: McLeod pleaded guilty to aggravated identity theft and interstate travel for purposes of prostitution in 2013. At his guilty plea hearing, the Government mentioned that the prostitution charge may require McLeod to register as a sex offender, but the district court did not elaborate. Recognizing the mistake at sentencing, the district court gave McLeod the chance to withdraw his guilty plea. McLeod declined and was sentenced to 70 months in prison, plus a term of supervised release which required, as a condition, that he register as a sex offender.

After his term of imprisonment was complete, McLeod moved the district court to eliminate the registration requirement, arguing that neither of his offenses of conviction required registration under SORNA. The district court denied the motion on the merits, admitting that while the prostitution count did not require registration, the identity theft count did because it was a “specified offense against a minor.”

The Fourth Circuit dismissed McLeod’s appeal. The Government initially sought dismissal under the appeal waiver provision of McLeod’s plea agreement. Likening McLeod’s argument to one where the district court imposed restitution in a case where it lacked the authority to do so, the court concluded that McLeod’s argument was essentially that he was sentenced above the statutory maximum for his offenses, an issue which cannot be waived in a plea agreement. However, the court dismissed on another ground – that the supervised release statute did not provide a means for McLeod to file the motion in the first place. While the statute does provide the district court flexibility to modify conditions of supervised release after they’re imposed, and the defendant to seek such modification, it does not allow for a challenge to the legality of the condition if the basis for the alleged illegality was present at sentencing. In other words, a condition imposed at sentencing cannot be modified collaterally unless changed law or circumstances are present. A straight up challenge to the legality of a condition must be made on direct appeal (or a 2255 proceeding).

Judge Agee concurred in the judgment, agreeing with the resolution of the plea agreement issue, but arguing that even changed circumstances would not provide a basis for a collateral challenge to a condition of supervised release.

Parts of Anti-Riot Act Unconstitutional, but Severable; Convictions Affirmed

US v. Miselis: Miselis and his codefendant were part of a “local white supremacist group” in California dedicated to going to political rallies “at which its members engaged in violate attacks on counter-protestors.” As particularly relevant to this case. The defendants took part in a pair of violent confrontations in California before travelling to Charlottesville, VA for the “notorious ‘United the Right’ rally” in 2017, where the also engaged in violence. As a result, they were charged with conspiring to violate the Anti-Riot Act as well as travelling in interstate commerce to violate the Anti-Riot Act. After a motion to dismiss the indictment was denied, the defendants entered conditional guilty pleas to the conspiracy count and were sentenced to 27 and 37 months in prison.

The Fourth Circuit affirmed their convictions on appeal, but in doing do struck down large parts of the Anti-Riot Act as unconstitutional under the First Amendment. The problem, as the court noted late in its opinion, is the problematic parts of the Act – those addressing promoting or encouraging violent acts or similar advocacy – may have passed constitutional muster when the Act was enacted in 1968, but in the wake of the Supreme Court’s decision in Brandenburg (1969) and the refinement of First Amendment law, those portions no longer survived. However, the court concluded that the Act was severable and the problematic portions could be struck, leaving the Act focused only on actual acts and advocacy that fell within the bounds of Brandenburg. As a result, the defendants convictions were affirmed because the conduct to which they admitted in their guilty pleas fell clearly within the bounds of the parts of the Act that survived.

Rehaif Error in Indictment, Jury Instructions Is Plain Error Requiring Reversal

US v. Medley: Medley was convicted at trial in 2017 with being a felon in possession of a firearm. While his appeal was pending, the Supreme Court decided Rehaif, which held that to prove that offense the Government must show not only that the defendant was of a certain restricted status, but that the defendant was aware of that fact. In supplemental briefing, Medley argued that after Rehaif his conviction had to be reversed because the status knowledge element was neither pled in the indictment or part of the jury’s instructions, leading to a conviction on insufficient evidence.

A divided Fourth Circuit agreed and reversed Medley’s conviction, applying plain error review. There was no dispute that there was Rehaif error and that error was plain. The dispute was over whether that error impacted Medley’s substantial rights and whether the court should notice it and reverse his conviction. Examining each error individually, the court concluded that each of them impacted Medley’s substantial rights, as did the weight of the errors together. As to whether to notice the error, the court concluded that regardless of whether they individually required notice, the combined errors were “sufficient to undermine confidence in the outcome of the proceedings.”

Judge Quattlebaum dissented, arguing that if “ever there was a case in which errors likely had no effect on the outcome of the proceedings, and the proceedings led to a fair and reliable determination of guilt, this is it,” noting that (among other things) Medley “remained on parole” at the time of his offense.

Congrats to the Defender office in Maryland on the win!

Monday, August 31, 2020

Virginia Controlled Substance Conviction Is “Controlled Substance Offense,” Even If State Statute Is Broader Than Federal

US v. Ward: Ward was convicted of distributing cocaine and classified as a career offender. The basis for that designation was two prior convictions in Virginia for possession of heroin with intent to distribute. The district court rejected Ward’s argument that because the Virginia statute at issue defined “controlled substances” more broadly than federal law his prior convictions could not be “controlled substance offenses.” He was sentenced to 120 months in prison.

The Fourth Circuit affirmed Ward’s sentence, but did so in a divided fashion. The court noted that the Guideline definition of controlled substance offense required a violation of either federal or state law that then must by punishable by more than one year in prison and involve particular actions involving a “controlled substance.” Ward’s argument was that Virginia’s definition of “controlled substance” was broader than federal law’s. The court turned to the Black’s definition of “controlled substance” as “any type of drug whose manufacture, possession, and use is regulated by law” and concluded that the substances covered by the Virginia statute met that definition. When examining a state conviction, “we look to see how the state law defining that offense defines the punishment and the prohibited conduct.” The Guideline definition “refers neither to the federal definition of a ‘controlled substance’ nor to the federal drug schedules” and, furthermore, the Sentencing Commission has shown in other contexts it knows how to cross-reference to such statutes.

Chief Judge Gregory concurred in the result, but got there in a different way. He argued that the majority had ignored prior Fourth Circuit decisions that held that the Virginia statute at issue was divisible and that the identity of the drug involved was an element of the offense. Applying that law, and the modified categorical approach, it was clear that Ward’s prior conviction was for distributing a controlled substance (heroin) that was covered by federal law as well as Virginia’s. Instead, he argued, the majority had “ignor[ed] our recent precedent and creat[ed] an entirely new framework that requires us to split from several of our sister circuits.”