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.

Monday, February 02, 2015

Proper consideration of rehab at sentencing

US v. Lemon - In this appeal, the Fourth Circuit heard a sentencing challenge from Appellant Lemon, who argued that the district court plainly erred when it considered her rehabilitative needs during sentencing, or violated the Tapia rule.  In 2008, Lemon pled guilty to conspiracy to commit securities fraud, and she received a 30-month prison sentence, to be followed by three years of supervised release.  Five months into her term of supervision, police arrested Lemon for several instances of forging checks.

The violation report completed by Lemon’s probation officer recommended imprisonment for 24 months, based on the guidelines and the nature of the violations.  At her final revocation hearing, the district court adopted the government’s recommendation of a within-guidelines sentence of 24 months, discussing its perception of Lemon’s mental health, that she must “have a serious emotional problem” with the repetitive nature of Lemon’s criminal activity, and that Lemon needed rehabilitative mental health treatment.

In interpreting Tapia, the Fourth Circuit has held that courts may consider rehabilitation, as long as the court is not imposing or lengthening a sentence to further rehabilitation.  The Fourth Circuit has also held that Tapia applies in the supervised release context.

Here, the panel held that there was no error committed, because the district court did not indicated that its concern for Lemon’s mental health was a factor in determining the length of her sentence, that the court stated it was not even sure that Lemon could receive mental health treatment as a part of her incarceration, and that the rationale for her sentence had nothing to do with Lemon’s mental health, but her tendency to re-offend, and protect the public from further crimes.  The Fourth Circuit affirmed her 24-month supervised release revocation sentence, advising district courts to separate any discussion of rehabilitative needs from its discussion of the factors that influence sentencing.

Mandatory consecutive life sentence under 18 U.S.C. sect. 924(j) affirmed

US v. Bran - Appellant Bran, alleged leader of a violent MS-13 clique, was convicted of three counts related to the murder of one person, and two further counts in relation to the attempted murder of a second person.  In his appeal, Bran challenged the sufficiency of the evidence of Count 3, which charged him with conspiracy to commit murder under 18 U.S.C. sect. 924(j), and for the district court’s imposition of a mandatory consecutive life sentence for that conviction.

In count 3, Bran was charged under three criminal statutes, 18 U.S.C. sects. 924(c)(1)(A), 924(j)(1) and 2; the first of these prohibits the use or carrying of a firearm in relation to a drug trafficking offense or crime of violence, or possession of a firearm in furtherance of one of those crimes, and violation of the statute carries a minimum of five years’ imprisonment, which must run consecutively to any other sentence.  Under the second statute, 924(j), any person who causes the death of another through the use of a firearm in the course of committing a violation of the first statute, 924(c), could receive the death penalty or imprisonment for 10 years to life.

With respect to the relationship between sects. 924(c) and 924(j), the Fourth Circuit held that because Congress made 924(j) separate from 924(c), it must have intended for 924(j) to have the effect of enhancing the sentence imposed for a conviction under 924(c).  To interpret otherwise, according to the panel, would lead to the conclusion that a person with a 924(c) conviction which resulted in murder could receive a more lenient sentence than if the murder never occurred.  Further, the panel held that four out of the five circuits that considered this issue have held that 924(j) requires mandatory consecutive sentencing.

In contrast, the dissent of this case disagreed with the majority about the nature of the relationship between these two statutes, finding that 924(j) is discrete from 924(c), and the express statutory mandate of 924(c) should not be applied to 924(j). Secondly, Congress enacted 924(j) to “extend the death penalty to second-degree murders,” which does not result in a more lenient sentencing scheme, so 924(j) should not be interpreted as requiring mandatory consecutive sentencing.

4th Circuit considers privacy interests in one's home during term of supervision

US v. Hill, et al.   - In this appeal, three folks on terms of supervised release raised a Fourth Amendment challenge to a probation officer’s walk-through and a dog-sniff of an apartment where one of the folks had purportedly moved.  A United States Probation officer suspected supervisee Eric Barker of moving without notification, and obtained an arrest warrant for Barker, executing it at his alleged new apartment.  Once there, the probation officer discovered Barker and two others living or staying there, both also serving terms of supervised release, and conducted a protective sweep.  After all three folks were arrested and the sweep concluded, the probation officers conducted a further walk-through and dog sniff, during which time the dog alerted and the officers found further evidence of supervised release violations.

Barker and the two others, Robert Hill and Megan Dunigan, claimed on appeal that the walk-through and dog sniff violated the individuals’ rights under the Fourth Amendment, and under Fourth Circuit precedent, a search warrant should have been obtained before the advanced searches, beyond the protective sweep, were conducted.  The Fourth Circuit agreed.  Though all three individuals were subject to the standard condition that required them to “permit a Probation Officer to visit him or her at any time, at home or elsewhere, and [to] permit confiscation of any contraband observed in plain view,” probation officers must comply with the Fourth Amendment’s warrant requirement.

As the legal basis for its decision, the Fourth Circuit panel used United States v. Bradley from 1978, wherein defendant Bradley was on parole with a condition requiring him allow his parole officer to visit his home or place of employment, and no parole condition required Bradley to consent to searches.  Acting on a tip, Bradley’s parole officer went to Bradley’s boarding house, searched his room, and located a firearm.  The Fourth Circuit held that the parole officer should have obtained a search warrant, even where the parolee has consented to periodic and unannounced visits by the parole officer.  Hence, there was an agreement to home visits by a probation officer, but not warrantless searches.  Further, the Fourth Circuit panel found here that Bradley still controls, and that law enforcement officers may not search the home of an individual on supervised release who is not subject to a warrantless search condition, unless the officers have a warrant supported by probable cause.

The Fourth Circuit remanded the case to the district court for an evaluation of whether the information gained during the illegal searches affected the officer’s decision to seek a warrant.

Tuesday, December 23, 2014

Simmons-Fueled Career Offender Error Cannot Be Vacated By 2255 Motion

US v. Whiteside: Whiteside was sentenced as a career offender based on a pair of North Carolina convictions.  After Simmons, those convictions are no longer felonies.  Whiteside filed a 2255 motion within a year after Simmons was decided seeking to vacate his sentence.  The district court denied the motion, for various reasons.  On appeal, a panel of the Fourth Circuit reversed, finding that Whiteside had not waived his right to file the motion, that it was timely because it was filed within a year of Simmons and, at any rate, equitable tolling applied.  The panel also concluded that Whiteside prevailed on the merits and ordered his sentence vacated.

The Government sought rehearing and the full Fourth Circuit reversed the panel, affirming the denial of Whiteside's motion.  In doing so, the en banc court (Judge Wilkinson writing the opinion) did not reach the merits, but concluded that Whiteside's motion was not timely filed.  Although it was filed within a year of Simmons, the court concluded that Simmons only stated new law, and would not constitute a new "fact" which restarted the one-year statute of limitations in 2255.  The court distinguished between a situation where a prior conviction itself was vacated - it's nonexistence is a "fact" - and a legal change that renders the still extant conviction different in kind.  The en banc court also concluded that equitable tolling did not apply, noting that although it might have been futile for Whiteside to file a 2255 on these grounds before Simmons, other defendants had done so (Simmons, for one).

Judge Gregory dissented, joined by Judge Davis, arguing that the majority had misconstrued its ability to act equitably (in light of recent Supreme Court precedent) and that it "is simply unjust to deny someone the opportunity to receive a properly calculated sentence."  He also argues that the majority places too much weight on concerns about finality, noting the recent waves of amendments to the Guidelines that have been made retroactive.  Judge Wynn also dissented, arguing (by quoting Judge Wilkinson from 2012) that the opinion would "drive citizens to rub[] their eyes and scratch[] their heads" and that if the "objectively reasonable person on the street" was asked whether a court could fix this mistake the "response would be 'Of course.  Why do you ask?'"

Friday, December 19, 2014

Court Affirms Denial of 2255 Motion With Selective Prosecution Claim

US v. Mason: Mason was driving a car in Georgia when it was stopped for having overly tinted windows.  The trooper also suspected that Mason and his passenger were up to something because he did not pull over immediately, there was a strong air freshener smell from the car, their stories about where they were going differed, and "there was no visible luggage."  The trooper requested back up and a drug dog, noting that "these guys are spooky, spooky."  He later said that he "felt like we were fixing to have a violent confrontation" because Mason and his passenger were "older black males that are not in good shape" and they were likely "ready to shoot it out."  Mason refused to consent to search.  The drug dog arrived (after Mason got a ticket for the tint), alerted and 10 kilograms of cocaine was found in the trunk.

Mason was charged in South Carolina was conspiracy to possess with intent to distribute more than five kilograms of cocaine.  After the district court denied his motion to suppress, he went to trial, where the passenger was the primary witness against him.  In addition, a recording of a conversation between Mason and the passenger in the back seat of the cop car was introduced.  During closing argument, the Government argued that in the conversation Mason didn't express much surprise at the cocaine being found in the trunk.  The jury convicted Mason and he was sentenced to life in prison.  His conviction and sentence were affirmed on appeal.  Mason filed a 2255 motion alleging that his trial and appellate attorney had been ineffective, which the district court denied.

On appeal, the Fourth Circuit affirmed the denial of Mason's 2255 motion.  The court rejected Mason's argument that counsel was ineffective for not pursuing a claim that he was subject to "racially selective law enforcement," calling such a claim "a long shot," particularly when compared to the Fourth Amendment argument that counsel did raise.  Mason could point to no Supreme Court or Fourth Circuit cases where such a claim had been successful.  Nor did the district court err by not holding an evidentiary hearing on the issue.  The court also rejected Mason's argument that trial counsel was ineffective for not properly challenging the Government's use of his post-arrest behavior during closing argument.  The recorded conversation was done after Miranda warnings were given, was not custodial, and had no police involvement at all.

Judge Gregory concurred and dissented, arguing that Mason's trial counsel was ineffective for not even investigating the potential equal protection claim, based on the testimony of the officer during the suppression hearing.

District Court "Repeated and Direct" Urging that Defendant Accept Plea Bargain Is Plain Error

US v. Sanya: Sanya ran a credit card fraud scheme, to which he pleaded guilty in federal court July 2012.  He was released on bond pending sentencing.  Six weeks later he was arrested after having restarted the fraud scheme.  He was charged in federal court again, this time with multiple charges including access device fraud and aggravated identity theft.  The Government quickly offered a plea bargain that would allow the sentencings for the original conviction and the new charges to take place at the same time.  Sanya rejected the offer initially, but after the district court opined at a detention hearing about the benefits of doing so, Sanya changed his mind.  After entering a guilty plea, he was sentenced to a total (on both convictions) of 212 months in prison.

On appeal, the Fourth Circuit vacated his second set of convictions because of the district court's insertion of itself into plea negotiations.  Applying plain error review, the court found that the district court erred (as the Government conceded) and that the error was plain (as the Government did not).  As to whether the error affected Sanya's substantial rights, the court concluded that the record showed a "reasonable probability that, but for the error, he would not have entered the plea," including his initial refusal of the offer, the breadth of the district court's commentary, and the swiftness with which Sanya changed his mind (he signed a plea agreement five days after the hearing).  The court distinguished the Government's reliance on cases taken from other jurisdictions, raised mostly in a series of five Rule 28(j) letters filed in three weeks ("perhaps a record," the court notes).  Finally, the court concluded that the error was of the kind that it should notice, observing that the district court's comments were "repeated and direct" and that its "exhortations saturated the hearing."

Thursday, December 18, 2014

Labyrinthine sex offender registration requirements confound another defendant

US v. Collins - In this appeal, Dwaine Collins challenged his failure to register conviction on the grounds that the government failed to prove that he knew he had an obligation to register.

Collins, an illiterate man, committed the offense that triggered his 10-year registration obligation in 1998 in North Carolina.  After his release from prison, Collins relocated to Ohio where he registered.  In 2002, Collins failed to register, and moved to Parkersburg, WV.  Nine years later, he was arrested in Ohio for an attempted theft, and he received a state failure to register charge dating back to 2002.  A state court judge in Ohio had suggested to Collins in his state court proceeding that the time period for registration could have expired.  After serving a state sentence in Ohio, Collins returned to WV, where he did not register.  Approximately a year and a half later, he received the instant federal indictment for failing to register under SORNA.

The district court determined that Collins knowingly failed to register, finding ample evidence of Collins’ knowing avoidance of his obligation to register.  It held that the knowledge element of the SORNA offense was satisfied as long as Collins knew that he had to register under some scheme, federal or state, but not SORNA specifically.  The district court also determined that the state court judge was merely advising Collins, not giving him a binding legal opinion on Collins’ registration requirements going forward.  The Fourth Circuit affirmed the district court’s findings.

Collins also appealed the reasonableness of his sentence.  He received a sentence of 30 months’ imprisonment, to be followed by a term of supervised release of 10 years.   Pursuant to the Sentencing Commission’s recent clarifying amendment that the supervised release term associated with a SORNA offense is not a “sex offense,” the Fourth Circuit vacated the supervised release portion of Collins’ sentence and remanded for further proceedings.

Appellant liable as both principal and accessory after the fact

US v. White - In this case, Appellant White received three 78-month concurrent terms of imprisonment for his part(s) in the intentional burning of a two-unit apartment building he owned.  He received convictions for conspiracy to commit arson and mail fraud, aiding and abetting arson, and accessory after the fact to arson.  White made two sufficiency of the evidence challenges: 1) that the government failed to establish the interstate commerce nexus required to sustain the arson convictions of counts 1 and 2; and 2) that the evidence did not establish that he assisted an uncharged co-conspirator in evading apprehension and punishment for the accessory-after-the-fact conviction.  White further challenged his sentence, that the court should not have considered the two-unit apartment house a “dwelling”, which increased his base offense level.    The Fourth Circuit affirmed, 2-1, with a dissent from Justice Wynn, finding that, as a matter of law, a person should not be held criminal liable as both a principal and an accessory after the fact to him or herself, and the defendant’s conviction for being an accessory after the fact constitutes clear legal error.

In upholding the conviction for accessory after the fact, the Fourth Circuit discussed the government’s case, that it presented evidence of White’s false and misleading statement to an insurance representative to help an unnamed co-conspirator to avoid apprehension, which satisfying the elements of the crime.  It based its decision on a 1999 case from the 5th Circuit, which, according to Justice Wynn, “failed to acknowledge, let alone analyze, the conundrum of allowing a principal to be convicted of acting as an accessory after the fact to himself.”

(Decided November 17, 2014).

Change in law after sentencing would likely have resulted in lesser sentence

US v. Archie - In this appeal, the Fourth Circuit reviewed two sentencing issues: 1) whether the district court sentenced the defendant in violation of the 6th Amendment as set forth in Alleyne; and 2) whether the district court relied incorrectly on insufficient evidence in enhancing the defendant’s sentence under ACCA.  The Fourth Circuit affirmed.

Appellant Sherwin Archie pleaded guilty to charges arising from his part in the armed robbery of a Family Dollar store.  In anticipation of sentencing, the Probation Officer drafted a PSR, designating Archie an armed career criminal, based on three prior felony convictions: 1977 3rd degree robbery conviction from New York; 1983 attempted burglary conviction from New York; and a 1994 conviction from North Carolina for assault.  There was also evidence that Archie “brandished” a weapon in the armed robbery, and the district court made a judicial finding of brandishing, which raised the statutory minimum for Archie’s sentence.

Archie’s main issue on appeal is whether he waived the right to argue that his sentence was improperly enhanced by the district court’s determination that he brandished a weapon during the armed robbery, with the appellate waiver in his plea agreement.  Archie’s sentencing occurred just prior to the publication of the Supreme Court’s case Alleyne, which held that because mandatory minimum sentences increase the penalty for crimes, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to a jury.  

The Fourth Circuit found that, at the time of Archie’s sentencing, that the district court correctly applied the law that judicial factfinding that increases a mandatory minimum was permissible under the 6th Amendment.  Even though Alleyne soon overruled this position, the post-sentencing change in the law did not invalidate Archie’s appeal waiver, according to the Fourth Circuit.  The panel determined that Archie assumed the risk that the law under which he was sentenced could change later on, and that Archie’s appeal issue was buyer’s remorse.  Further, the Fourth Circuit has invalidated some appellate waivers in the past, but it chose not to do so here because the sentencing court did not violate “a fundamental constitutional or statutory right that was firmly established at the time of sentencing.”  

Next, Archie argued that there was insufficient evidence to prove the existence of the 1977 3rd degree robbery conviction, as the court had relied upon computerized records to establish the fact of this conviction.  Of the four records the district court considered, one of the records had an inconsistent date.  The district court disagreed and determined that the records provided established by a preponderance the conviction.  On appeal, the Fourth Circuit determined that it had previously considered the issue of what records a district court may consider in determining the fact of a prior conviction and that certified computer printouts, such as the ones submitted here by the Government, were sufficient to prove the fact of a prior conviction.

(Decided November 17, 2014).

960-month sentence survives 8th Amendment challenge

US v. Dowell - In this appeal, the Fourth Circuit considered the propriety of a 960-month sentence, and whether the sentence violates the 8th Amendment’s prohibition against cruel and unusual punishment on the grounds that the sentence was disproportionate to the severity of his crimes, and secondly, whether the district court correctly applied an enhancement for a “vulnerable victim” here.

The Fourth Circuit recently rejected a similar as-applied 8th Amendment challenge in Cobler, where it had upheld a 1440-month sentence on a child porn offender whose appeal argument was indistinguishable from Dowell’s here.  Cobler had, in fact, been convicted of fewer counts than Dowell.  In Cobler, the Fourth Circuit determined that Cobler’s “shocking and vile conduct...failed to substantiate the threshold inference of gross disproportionality” and that Cobler’s crimes were “at least as grave” as possession of 672 grams of cocaine, which the Supreme Court had considered sufficiently egregious to justify a similar sentence (see Harmelin v. Michigan).   The Fourth Circuit decided not to change that course in this case.  Moreover, the 960-month sentence imposed was within the guidelines range of life imprisonment.

The Fourth Circuit found that the application of the “vulnerable victim” enhancement here was in error, but it was a harmless one.  The district court applied the enhancement relying solely on age-related factors, which was an error.  However, the application of the enhancement here did not affect Dowell’s ultimate sentence, so the Fourth Circuit found the error was harmless.

(Decided November 13, 2014).

Illegal reentry sentence enhancement affirmed

US v. Avila  - In this appeal, the Fourth Circuit considered two procedural challenges the appellant made after his sentencing for illegal reentry.  First, he argued that the 8-level sentencing enhancement he received for having a prior conviction for 1st degree burglary in California was incorrect; and second, he argued that the district court’s explanation for his sentence was insufficient.  The Fourth Circuit affirmed.

Avila argued that the California 1st degree burglary should not qualify as an aggravated felony for the 8-level enhancement because it is not a crime of violence under Descamps’ analysis.  The Fourth Circuit found that under ACCA, this offense may not qualify as a predicate offense; however, for the enhancement here under a different statutory scheme than ACCA (to wit, 18 U.S.C. § 16), it does qualify as the definition of crime of violence in this context is more general.  Further, other courts have come to the conclusion that 1st degree burglary in California is a crime of violence, as it requires entry into an inhabited dwelling, and it presents a substantial risk of force with or without unlawful entry.

With regard to Avila’s second appeal issue, the Fourth Circuit found that the district court sufficiently explained its reasons for his sentence, by considering his history and characteristics, and that the safety of the public was the “driving reason” for the sentence it chose.

(Decided November 4, 2014).