All Quiet on the Richmond Front

No fear, loyal readers, the Fourth Circuit Blog still lives. Alas, there is little to report from Richmond, as the court has not handed down a published criminal case since January 17. Rest assured that once they do, you'll read about it here first!

2J1.7 Enhancement in Failure to Appear Cases OK'd; Does Not Violate Double Jeopardy

US v. Fitzgerald: Fitzgerald pleaded guilty to mail fraud and wire fraud and was released on bail pending sentencing. He fled prior to sentencing and was arrested and charged with failure to appear under 18 USC 3146. Fitzgerald pleaded guilty to that offense and proceeded to sentencing. The PSR recommended that Fitzgerald's offense level be increased three levels under USSG 2J1.7 and 18 USC 3147 for committing another offense while on release. Fitzgerald objected, arguing that the enhancement amounted to double punishment and violated the rule of lenity. The district court disagreed, applied the enhancement, and imposed a sentence of 27 months, to be served consecutively to the sentence imposed for the fraud charges.

The Fourth Circuit affirmed, 2-1. Noting that this was a question of first impression in the circuit, the court looked to the Sixth Circuit's decision in US v. Benson, 134 F.3d 787 (1998), for guidance. The court followed Benson's logic and concluded that the statutory language at issue was not ambiguous and therefore the rule of lenity was not applicable. The court also rejected Fitzgerald's Double Jeopardy argument, holding that the Supreme Court has never applied Double Jeopardy guarantees to sentencing proceedings, relying on Monge v. California, 524 U.S. 721 (1998).

Judge King dissented, arguing that the majority's Double Jeopardy argument is contrary to the Supreme Court's decision in Simpson v. US, 435 U.S. 6 (1978), and that the statutory language at issue is ambiguous and requires application of the rule of lenity. As Judge King put it, "[t]he end result in this scenario simply makes no sense."

Court Rejects Numerous Challenges to Pipe Bomb Convictions

US v. Uzenski: Uzenski was convicted by a jury of two counts of manufacturing an unregistered firearm and two counts of possessing an unregistered firearm. The "firearms" at issue were pipe bombs. Uzenski was a local police officer in North Carolina. On March 25, 2002, Uzenski reported to a fellow officer that he was in need of urgent assistance on a local highway. When the officer arrived, he saw Uzenski straddling over what appeared to be a pipe bomb. Indeed, it was a pipe bomb and was subsequently defused by the state bomb squad. The next day, after Uzenski and other officers returned to the site, a second pipe bomb was found and eventually defused. Investigation led to a videotape of Uzenski at a local hardware store purchasing several of the items that made up the bombs. Authorities also obtained a warrant to search Uzenski's home and uncovered various items that could be linked to the building of pipe bombs.

Uzenski appealed his conviction on several grounds, all of which the Fourth Circuit rejected.

• First, he argued that the evidence was insufficient to prove that the objects in question were "destructive devices" because they lacked the functional parts which made them capable of exploding. The court rejected that argument, holding that the testimony of the Government's expert witness, who testified about how the bombs could have exploded while they were taken apart due to sparks that would be generated, was sufficient to meet the Government's burden on that element.
• Second, Uzenski argued that statements he made to investigators prior to being given Miranda warnings should have been suppressed. The court agreed with the district court that Uzenski was not in custody at the time of those statements, and therefore was not entitled to Miranda warnings.
• Third, Uzenski argued that the evidence seized from his home should have been suppressed because the officers executing the search warrant seized items that were beyond the scope of the warrant. The court held that blanket suppression of everything recovered from the home was inappropriate.
• Fourth, Uzenski argued that the district court should have excluded the testimony of the Government's expert witness as to the pipe bombs because the Government never provided him with the expert's notes. The court held that Uzenski's counsel failed to properly request the notes and therefore the testimony should not have been excluded.
• Finally, Uzenski argued that the district court erred by allowing the Government to elicit testimony about his prior statements regarding pipe bombs and a prior bad act of making a false report.

Uzenski's sentence was vacated and remanded under Booker / Hughes.

Disparity Between Federal Defendants, Not Federal and State Defendants, Is Target of 3553(a)(6)

US v. Clark: Clark was convicted of conspiracy to distribute crack in the Eastern District of Virginia. Her advisory Guideline range was 46 to 57 months. At sentencing, the district court asked the parties to brief the issue of what sentence Clark would be facing in Virginia state court for the same offense. The Government argued for a range of 36 to 49 months. Clark agreed, but noted that all but 6 to 12 months of that time would likely be suspended. After hearing unsworn testimony from the probation officer as to her conversations with a state PO about the potential Virginia sentence, the district court sentenced Clark to 8 months in prison. The Government appealed and the Fourth Circuit reversed, in three separate opinions.

Judge Luttig wrote the court's opinion. He began by noting that it was difficult to tell from the district court's statements at sentencing whether it (1) considered the need to avoid unwarranted sentencing disparities at all, (2) whether it considered that factor but the proper comparison was with state sentences, rather than other federal sentences, or (3) whether it considered the need to avoid disparity among federal sentences but felt that need was trumpted by a need to avoid disparity between federal and state sentences. Regardless, Luttig says, the district court erred in applying 18 USC 3553(a)(6). First, 3553(a)(6) clearly requires the consideration of sentencing disparity. Second, the disparity at issue is among federal sentences: "The sole concern of section 3553(a)(6) is with sentencing disparities among federal defendants." (emphasis in original). For example, tying federal sentences to state equivalents would end up creating disparity between similarly situated federal defendants based on the geography of their conviction. Creation of such disparity is unreasonable and, thus, so is Clark's sentence. Luttig did admit that there will be some "unusual cases" where state sentencing factors may influence a sentence that is reasonable under 3553(a) but that this case isn't one of them.

Judge Motz concurred in the judgment and discussed what those "unusual cases" might be. Specifically, Motz would limit them to cases of either assimilative jurisdiction, as in 18 USC 13(a), or where the federal offense is defined with some relation to state law, as in 18 USC 1960(b)(1)(A). That is because Congress itself has decided to have the courts look to state law in those cases.

Judge King also concurred in the judgment and agreed "with what Judge Motz has written." However, King leaves open the possibility that the district court could impose the same sentence on Clark after a thorough analysis of all the 3553(a) factors.

Doug Berman over at Sentencing Law & Policy has these thoughts on Clark.

Time of Day Doesn't Matter When Executing Drug-Related Search Warrant

US v. Rizzi: Rizzi was an ex-con who came under investigation of Baltimore police for dealing drugs. When local officers relayed their information about Rizzi to federal authorities, the feds informed them that Rizzi could no longer posses firearms. Baltimore PD officers then obtained a warrant from a state judge to search Rizzi's home for "drugs, firearms, money, records, and other drug-related paraphernalia." The warrant commanded officers to execute it "forthwith." It was obtained on July 7, 2004. On July 9, 2004, at 4:30 in the morning, 24 officers executed the warrant at Rizzi's home. They knocked and announced their presence, waited 15-20 seconds, then broke into the house. Rizzi met them and admitted possessing firearms that were recovered from the basement. He was charged with being a felon in possession of a firearm.

Rizzi filed a motion to suppress the guns, on the grounds that the warrant did not specify that a night-time search could be conducted. Specifically, Rizzi argued that Rule 41(e)(2)(B) controls and suppression was required because the police had not shown, and the issuing judge did not find, good cause for execution of a night-time warrant. The Government contended that 18 USC 879 trumpted Rule 41 because the search involved drugs and that the warrant was sufficient to authorize the search. The district court rejected the Government's argument, concluding that Rule 41 and section 879 "dovetailed" to make the search illegal and ordered the evidence suppressed. The Government appealed.

The Fourth Circuit reversed the district court, adopting the Government's argument as to the relationship between Rule 41 and 879, leaning heaving on Gooding v. United States, 416 U.S. 430 (1974), to do so. The court concluded that because Rule 41 deals with search warrants in general, while section 879 deals with warrants specifically in drug cases, that the more specific statutory rule controlled. Section 879, according to the Fourth Circuit, requires no particular finding by the judge issuing the warrant that a night-time search is warranted. The court concluded:

At bottom, we hold that when a search warrant involves violations of drug crimes, the warrant can be served day or night so long as the warrant itself is supported by probable cause. And to the extent that section 879 might be found to conflict with the general requirement of showing good cause for nighttime searches contained in Rule 41(e), we hold that section 879 exclusively.

The court also rejected Rizzi's argument that, as interpreted, section 879 violated the Fourth Amendment.

Forced Medication for Sentencing is Plain Error, but Doesn't Require Resentencing

US v. Baldovinos: Baldovinos was convicted by a jury of four drug and firearm counts. Prior to sentencing, he filed motion seeking a competency evaluation at FCI Butner to determine his competency to be sentenced. The district court granted the motion and sent Baldovinos to Butner. Over the course of the next year, physicians at Butner diagnosed Baldovinos as suffering from catatonia and schizophrenia and sought court permission to forcibly medicate him. The district court agreed. The medication never completely "cured" Baldovinos, but physicians began to suspect he was malingering and was thus actually competent to be sentenced. The district court held a sentencing hearing and imposed a 120-month sentence, the statutory minimum given the offenses of which Baldovinos was convicted. Baldovinos failed to object to the imposition of sentence.

Baldovinos appealed, arguing that the district court erred by forcibly medicating him and seeking resentencing.* The Fourth Circuit first concluded that the proper analysis of the issue was under Sell v. US, 539 U.S. 166 (2003), which set forth the ability of courts to forcibly medicate a defendant to render him competent for trial, rather than Washington v. Harper, 494 U.S. 210 (1990), which allowed for the forcible medication of defendants for their own safety. Given that conclusion, the Government admitted error which was plain. However, the Fourth Circuit declined to notice the error, holding that because Baldovinos received the lightest sentence possible he suffered no prejudice and his sentence did not "seriously affect the fairness, integrity or public reputation of judicial proceedings."

*Baldovinos also argued ineffective assistance of counsel, but the court quickly rejected that issue as being "unreviewable at this stage."

Blakely Objection Preserves Statutory Booker Claim

US v. Rodriguez: Rodriguez pleaded guilty to illegal reentry after having been deported because of an aggravated felony under 8 USC 1326(a) and (b)(2). The PSR recommended that his offense level be increased 16 levels because the prior felony was a crime of violence. Rodriguez objected under Blakely that only an 8-level enhancement was applicable based on the plea. The district court disagreed, applied the 16-level enhancement and sentenced Rodriguez to the bottom of the resulting Guideline range, 46 months.

The Fourth Circuit reversed, holding that Rodriguez adequately preserved his challenge to his sentence under the mandatory Guidelines by objecting under Blakely (he was sentenced pre-Booker). The court further concluded that the Government could not prove that the imposed sentence was harmless. This brings the Fourth Circuit into line with all the other circuits that have considered whether an objection under Blakely preserves a Booker statutory error claim for appellate review.

Congrats to Geremy Kamens and crew from the ED Va. on the win!