Tuesday, April 25, 2006

Felon-in-Possession Required Armed Career Criminal Sentence

US v. McQueen: Police, responding to a tip from a "reliable informant" found McQueen asleep behind the wheel of a running car outside of a bar in Virginia. The car had a crushed rear bumper and out of state license plates. After rousing McQueen and checking his license and registration, the police asked him for consent to search the car. McQueen granted permission and a firearm was found under the back seat.

McQueen was charged and convicted of being a felon in possession of a firearm, after unsuccessfully seeking to have the gun suppressed as the fruit of unlawful Terry stop. At sentencing, the district court rejected the Government's argument that McQueen was an armed career criminal and sentenced him to 120 months in prison.

Both McQueen and the Government appealed.

McQueen appealed the district court's denial of his suppression motion, arguing that the police lacked reasonable suspicion for a Terry stop. The court disagreed, holding that based on a corroborated tip from a reliable informant and their observations about the car when it was found (running, damaged, McQueen asleep inside, etc.) that the police could reasonable conclude that illegal activity was or was about to be afoot.

The court also rejected McQueen's challenge to the interstate nexus instruction given at trial, which McQueen argued did not differentiate between whether the gun crossed state lines "in or affecting interstate commerce" or simply crossed state lines while in his car. The court that the instruction was not an improper statement of the law, relying on US v. Gallimore, 247 F.3d 134 (4th Cir. 2001)(interstate nexus proven by showing that gun was manufactures outside of state in which it was possessed).

As to the sentence, the court rejected McQueen's challenge to the inclusion of a prior felony in the Guideline calculations, while accepting the Government's argument that McQueen should have been sentenced as an armed career criminal. First, the court rejected McQueen's argument that a 1995 conviction for possession with intent to distribute heroin was acquired in violation of his right to counsel. McQueen started that case with retained counsel, fired that attorney and was appointed counsel to represent him, then fired his appointed counsel and proceeded pro se. McQueen's last minute (morning of trial) change of heart on proceeding pro se was properly rejected by the trial judge as a ploy to stall for more time and thus McQueen's subsequent guilty plea was made after waiving his right to counsel.

Next, the court accepted the Government's argument that McQueen should have been sentenced as an armed career criminal. McQueen argued, and the district court apparently agreed, that McQueen was not an armed career criminal because he had his civil rights restored for one of his prior convictions and therefore lacked three prior qualifying convictions. The court disagreed, holding that McQueen has not been legally able to possess a firearm since 1988, after which he committed several more qualifying felonies.

Accordingly, the court affirmed McQueen's conviction, while vacated his sentence and remanding for resentencing.

Monday, April 24, 2006

Court Has Jurisdiction to Review Sentence Within Guideline Range for Reasonableness

US v. Montes-Pineda: Montes-Pineda pleaded guilty to unlawfully returning to the United States after having been deported following an aggravated felony. His advisory Guideline range (after a 16-level bump for the prior aggravated felony) was 46 to 57 months. Montes-Pineda argued for a sentence of 24 months. The district court imposed a sentence of 46 months and Montes-Pineda appealed, arguing that the sentence was unreasonable.

The Government moved to have the appeal dismissed for lack of jurisdiction, arguing that because the sentence fell within a properly calculated Guideline range (all facts were agreed upon by the parties) it was not "imposed in violation of law" under 18 USC 3742(a)(1). The Fourth Circuit roundly rejected that argument (as have the other Circuits that have dealt with it) as contrary to Booker. The court also rejected the Government's premise that "all sentences within a properly calculated Guidelines range are necessarily lawful." Finally, the Court rejected the Government's leger de main argument that unreasonable sentences weren't unlawful per se, only if the sentence was achieved due to some other error such as an incorrect Guideline calculation.

As to the substance of Montes-Pineda's appeal, the court affirmed the 46-month sentence. The court held that the sentence was reasonable, given Montes-Pineda's status as a "chronic offender," which was not sufficiently outweighed by any mitigating factors (Montes-Pineda's prior conviction was 14 years old and he returned to the US to seek medical treatment). However, the court did rather cryptically state that "we need not resolve here whether [those mitigating factors] would suffice to demonstrate the reasonableness of a below-Guidelines sentence in another case."

The court also rejected Montes-Pineda's argument that the sentence was unreasonable because of the disparity between it and a lesser sentence for the same offense handed out in a "fast-track" district. The court generally deferred to discretionary fast-track scheme set up by Congress, but did indicate that "[t]his is not to say that a district court may never consider the disparities" between the two kinds of sentences.

Finally, the court held that the district court sufficiently explained its reasons for imposing the 46-month sentence.

Friday, April 21, 2006

Court Finds Above-the-Guidelines Sentence Unreasonble; Notice Required Before Court Varies

US v. Davenport: Davenport pleaded guilty to fraudulent use of an access device after swiping a credit card from a woman while boarding a shuttle bus at Baltimore-Washington International Airport. He made one fraudulent purchase and was caught, along with three other guys. The conduct occurred pre-Booker.

The calculations in the PSR produced an advisory sentencing range of 30 to 37 months at his post-Booker sentencing hearing. Davenport argued for a 24-month sentence because of his limited role in the offense. By contrast, the Government argued for a Guideline sentence because Davenport was actually the leader of a "nationwide pickpocket ring" that travelled the country's major events looking for victims (they were in Baltimore for the Preakness Stakes).

The district court disagreed with Davenport's characterization of his role and sentenced him to 120 months in prison. Davenport was also ordered to pay $8738.76 in restitution to various financial institutions and persons whose credit cards had been taken.

On appeal, the Fourth Circuit vacated. Initially, the court rejected Davenport's argument that the ex post facto clause prevented the district court from imposing a sentence greater than 37 months. However, the court concluded that the 120-month sentence was wrongly imposed, for two reasons.

First, the district court imposed a the above the Guidelines sentence without providing notice of its intent to do so. The notice requirement survives Booker and is still a "critical part" of sentencing. However, the court did not determine whether the lack of notice actually prejudiced Davenport, because it vacated the sentence on another ground.

The other ground was that the 120-month sentence was unreasonable. In a mirror image of Moreland, the court concluded that an upward departure/variance was proper, but that the 120-month sentence was too great an increase. Therefore, the court vacated Davenport's sentence.

The court also vacated Davenport's order of restitution, holding that the district court failed to make adequate factual findings to support the order. The court also held that the district court erred by labeling the persons whose cards had been stolen as "victims," as the term in this case could apply only to the credit card companies liable for the fraudulent charges (which, the court pointed out, amounted to only $58.85 on the current record).

Wednesday, April 19, 2006

Murder Evidence Not Unduly Prejudicial to Felon-in-Possession Trial

US v. Williams: Williams was convicted of being a felon in possession of a firearm by a jury. Most of the evidence at trial related to a murder Williams allegedly committed with the firearm in question (it was never recovered). The Fourth Circuit rejected several challenges Williams made to his conviction.

First, the court held that introduction of evidence of the murder at trial was not unduly prejudicial. Noting that it had perviously held that evidence of a shooting was a proper way to show that a defendant possessed a firearm, the court refused to make an exception where the shooting resulted in death. In addition to showing possession, the evidence also went to prove that the firearm was operational and that there was a nexus with interstate commerce (via an examination of the fatal bullet).

Second, the court concluded that the district court did not err by allowing into evidence testimony that Williams was silent when asked by his drug supplier whether he killed someone. While the court agreed with Williams that the silence was not an adoptive admission that could be introduced into evidence as an admission of a party opponent, the court went on to conclude that because the silence was not offered to prove the truth of the matter asserted it was not hearsay at all. Even if it was improperly admitted, the court concluded that any error would be harmless. On a related note, the court held that the Government's reference to that silence during closing argument could not be construed as a comment on Williams's failure to testify at trial.

Finally, the court held that the district court did not err in denying Williams a continuance to have more time to investigate the Government's main witness to the murder.

This case presents an interesting Booker situation, as it was tried between the time the Fourth Circuit handed down Hammoud and the Supreme Court handed down Booker. In spite of Hammoud's holding that the Guidelines did not violate the Sixth Amendment, the Government charged numerous sentencing factors (the murder, most notably) in the indictment and the jury returned findings regarding those factors. Based on the jury's findings, the district court cross-referenced to the murder Guideline and sentenced Williams to life in prison. While the court concluded that there was no Sixth Amendment Booker error due to the jury's findings, the court nonetheless vacated Williams's sentence on statutory Booker grounds because he objected to being sentenced under a mandatory system and the district court provided no insight as to whether it would have imposed the same sentence in an advisory scheme.

Friday, April 14, 2006

Fast-Track Variance Brief

In many jurisdictions, defendants charged with illegal reentry after conviction of an aggravated felony (18 U.S.C. Sec. 1326(a)) are allowed to participate in early disposition or "fast-track" programs in which the government agrees to a reduced sentence in exchange for a quick plea and a pledge not to contest deportation. Use of these programs is widespread. Approximately 75% of all illegal reentry defendants are prosecuted in districts with fast-track programs.

Unfortunately, none of the districts in the Fourth Circuit offer a fast-track program. This means that illegal reentry defendants who happen to have been arrested in, say, North Carolina face substantially longer sentences than identical defendants arrested in Arizona. A North Carolina defendant facing a sentence of 70 months or more might receive a sentence as low as 24 months in a fast-track jurisdiction.

Many defendants in non-fast-track jurisdictions, citing the obvious injustice of predicating increased punishment on a fluke of geography rather than any difference in individual culpability, have argued that courts should ameliorate the sentencing disparities caused by these fast-track programs pursuant to their authority under 18 U.S.C. Sec. 3553(a). They have also argued that the sentences received by fast-track defendants are relevant to a number of the other statutory purposes of sentencing, including the need for the sentence to reflect the seriousness of the offense, to afford adequate deterrence and to promote respect for the law.

In the Eastern District of North Carolina, two of our judges (following the lead of a district judge in Eastern Virginia) have accepted this argument and imposed sentences comparable to what a defendant would have received in a fast-track jurisdiction.

The government has now appealed these sentences and argued that a district court has no authority to correct any sentencing disparities caused by fast-track programs. Its main point is that fast-track programs were authorized by Congress in the PROTECT Act and therefore any disparities they cause can not be deemed "unwarranted" within meaning of Sec. 3553(a)(6). The government goes even further and argues that a court can not consider a fast-track sentence for any purpose without violating the will of Congress or intruding on prosecutorial discretion.

Several appellate courts have expressed sympathy for the argument that fast-track disparities may not be "unwarranted," however, few, if any, courts have yet addressed whether these fast-track sentences may be relevant to other statutory sentencing factors. Accordingly, any defendant seeking a lower sentence based on fast-track considerations would be wise to cast his argument as broadly as possible and not present it solely in terms of the need to avoid unwarranted disparity.

A detailed discussion of all of these issues can be found in the defendant's brief in one of the cases the government is appealing, United States v. Perez-Pena, No. 05-5054, which can be found here. Anyone interested in receiving copies of the district court pleadings in this case should contact me.

This case is scheduled to be argued in May.

Tuesday, April 11, 2006

Greater Sentence OK After Booker Remand

US v Williams: Williams pleaded guilty to conspiracy to possess counterfeit securities, stemming from a scheme in which he and others (not codefendants) stole commercial checks from businesses, altered them, and cashed them at various locations. At sentencing, the Guideline sentencing range, largely driven by the amount of loss, was 77 to 96 months for an offense with a statutory maximum of 60 months. Williams objected to the sentencing enhancements under Blakely. The district court agreed and imposed a "statutory sentence" of 36 months. Both Williams and the Government appealed. When Booker came down, the Government moved to remand for resentencing. That motion was granted. At resentencing, the district court made the same Guideline calculations and imposed the statutory maximum term of 60 months in prison. Williams appealed.

The Fourth Circuit affirmed, briefly shooting down three arguments. First, the court held (finally, in a published opinion) that applying the remedial post-Booker "advisory" Guideline scheme to persons whose conduct took place prior to Booker does not violate due process or ex post facto principles. Second, the court held that the increased sentence was not evidence of vindictiveness. "In short," the court concluded, "we hold that there is no vindictiveness in a post-Booker sentence that exceeds the original pre-Booker sentence solely because Booker changed the law." Finally, the court held that the 60-month sentence was not unreasonable.

Friday, April 07, 2006

Court Expounds on Reaosnablenss Review for Within the Guidelines Sentence

US v. Johnson: Johnson pleaded guilty to three drug counts of cocaine and crack distribution. Using the grouping rules in USSG 3D1.2, the district court calculated Johnson's advisory Guideline sentencing range to be 97 to 121 months. Johnson objected, arguing that the district court should use its discretion under Booker to not apply the 3D1.2 grouping principles. The district court disagreed and sentenced Johnson to 97 months in prison.

The Fourth Circuit affirmed on appeal. Starting with the observation that the court has twice concluded that a sentence within an advisory Guideline sentencing range is presumptively reasonable, the court noted that in neither case (US v. Green and US v. Moreland) had the sentence at issue been imposed within a properly calculated range. Given that situation in this case, the court took "this opportunity to briefly explore the three justifications [for presumptively reasonable Guidelines] in greater detail." Those justifications are:

"The first reason that Guideline sentences are presumptively reasonable under Booker is the legislative and administrative process by which they were created." "By now," the court concluded, "the Guidelines represent approximately two decades of close attention to federal sentencing policy. It would be an oddity, to say the least, if a sentence imposed pursuant to this congressionally sanctioned and periodically superintended process was not presumptively reasonable." The court did not note that the Guidelines operated for most of those two decades in a fashion that violated the Sixth Amendment.

"[T]he incorporation into the Guidelines of the factors Congress identified in 18 USC 3553(a) as most salient in sentencing determinations." "The conclusion to be drawn," the court writes, "is that the advisory Guidelines are not something separate and apart from Congress's objectives in 3553(a). Rather, they embody many of those objectives." The court does not discuss the various sentencing factors in 3553(a) that the Guidelines not only fail to incorporate, but specifically exclude from consideration.

Finally, "such sentences are based on individualized factfinding and this factfinding takes place in a process that invites defendants to raise objections and requires courts to resolve them."

Because Johnson's sentence falls within a properly calculated Guideline range, it is presumptively reasonable. The court found neither of Johnson's arguments for not applying the Guidelines compelling. First, the court held that if "Johnson believes that 3D1.2's grouping provision is unreasonable or unfair as a general matter, the proper forum in which to raise this issue is Congress or the Sentencing Commission, not a federal court. Second, the court held that the district court provided an adequate examination of the 3553(a) factors.

Thursday, April 06, 2006

Failure to Object to PSR Doesn't Waive 6th Amendment Sentencing Rights

US v. Milam: The Milam brothers, Jason and Lee, pleaded guilty to distribution of at least 51 Ecstasy tablets. Their PSRs assigned them considerably higher offense levels based on statements from other sources as well as Jason and Lee themselves.

At sentencing, Lee objected to the relevant conduct calculation and two-level gun enhancement. The district court partially sustained and overruled Lee's objection, produced a sentencing range of 51 to 63 months and imposed a sentence of 51 months.

Jason did not object to the PSR, except to the denial of credit for acceptance of responsibility. At sentencing, Jason's range was 87 to 108 months. He was sentenced to 87 months.

Lee and Jason appealed, arguing that their sentences were increased beyond the facts to which they pleaded guilty, in violation of (initially) Blakely and Booker. The Government conceded that Jason's sentence violated the Sixth Amendment and agreed to remand.

As to Jason, however, the Government argued that because Jason had not objected to the PSR calculations he had "admitted" those facts for Sixth Amendment purposes and his sentence did not violate the Sixth Amendment.

The Fourth Circuit vacated Jason's sentence. It rejected the Government's argument that Rule 32(i)(3)(A) and USSG 6A1.2(b) required a defendant to contest any enhancement in the PSR or risk waiving his Sixth Amendment rights. Noting that facts that increase a defendant's maximum sentence are now (essentially) elements of the offense, the Court held that the defendant's silence at sentencing could no more waive his Sixth Amendment rights then than silence at a guilty plea could constitute waiver of the right to trial. The Court also noted that Rule 32(i)(3)(A), USSG 6A1.2(b), and prior Circuit law (see US v. Terry, 916 F.2d 157, 162 [4th Cir. 1990]) violated prohibitions on burden shifting by forcing the defendant to disprove allegations in the PSR. Therefore, Jason's sentence was vacated and his case remanded for resentencing.
Lee's sentence was also vacated and remanded.

Congrats to CJA panel attorney Jason Parmer (Lee) and your humble narrator (Jason) of the SDWV office on the win!