Wednesday, February 28, 2007

Upward Departure Vacated for Lack of Sufficient Explanation of Scope

US v. Dalton: Dalton was convicted of credit card fraud based on a scam in which he used other persons' credit cards to purchase computer software which he turned around and sold on eBay. The Guideline range calculated in the PSR was 46 to 57 months. The Government moved for an upward departure based on the underepresentation of Dalton's criminal history in the PSR's calculation of a Criminal History Category of VI. The district court granted the motion and imposed a sentence of 105 months in prison.

On appeal, the Fourth Circuit reversed. Surveying the PSR, the court concluded that the district court properly concluded that an upward departure was appropriate based on Dalton's extensive criminal history, including many prior fraud convictions. In fact, many convictions were for fraudulent schemes that Dalton began just after release from prison (a few even began in prison). However, the court concluded that the district court did not adequately explain the scope of the departure. Specifically, the court failed to failed to employ the incremental departure analysis required by USSG 4A1.3(a)(4)(B) and calculated the departure range by moving horizontally on the sentencing table (i.e., to a higher hypothetical Criminal History Category) rather than vertically (to the next higher offense level).

Tuesday, February 27, 2007

Warrantless Search of Probationer Upheld

US v. Midgette: Midgette was on probation for two North Carolina convictions when his probation officer received a tip from a police officer that Midgette was in possession of firearms, in violation of the conditions of his probation. Another condition of Midgette's probation was that he submit to warrantless searches of his person, home, or vehicle at the request of his probation officer at reasonable times and if the search was reasonable related to his probation. After a meeting with Midgette, his probation officer ordered two police officers to search Midgette's car. They did so and recovered ammunition. The four of them then went to Midgette's home, where the officers also conducted a search, discovering firearms and marijuana. Midgette was indicted by a federal grand jury for being a felon in possession of a firearm, possession of an unregistered firearm, and possession of marijuana.

Midgette filed a motion to suppress the evidence seized in his home and car, arguing that the warrantless searches violated the Fourth Amendment. Midgette's motion was referred to a magistrate judge, who made findings of fact and recommended that the motion be denied. Midgette filed objections to the magistrate judge's recommendations, specifically arguing that (1) the magistrate improperly assumed he was on probation, (2) the magistrate incorrectly concluded that the meeting that triggered the searches was regularly scheduled, and (3) that the searches were conducted in violation of North Carolina law, which allows probation officers, not police officers, to make such warrantless searches. The district court overruled Midgette's objections and denied the motion to suppress. Midgette pleaded guilty and was sentenced to 46 months in prison.

On appeal, Midgette made three arguments: (1) North Carolina's probation statute violates the Fourth Amendment because it allows warrantless searches without individualized suspicion, (2) the probation officer lacked reasonable suspicion to conduct the search, and (3) that the searches by police officers, rather than probation officers, violated North Carolina law. The Fourth Circuit rejected all those arguments. As to the first two, the court agreed with the Government that Midgette had waived those arguments by failing to present them in the objections to the magistrate judge's recommendations. Specific objections are required to preserve issues in such situations. Regardless, the court went on to note in dicta that those two arguments were not persuasive at any rate, relying on Griffin v. Wisconsin, 483 U.S. 868 (1987), and US v. Knights, 534 U.S. 112 (2001). As to Midgette's third argument, the court held that the searches were conducted in accordance with North Carolina law because they were instigated and directed by the probation officer, even though the police officers did the actual searching.

Monday, February 26, 2007

Trial on 924(c) Charge Doesn't Preclude Acceptance on Related Drug Counts

US v. Hargrove: Hargrove was charged with multiple drug counts and a 924(c) charge. He pleaded guilty to the drug counts and went to trial on the 924(c) charge, for which he was also convicted. At sentencing, Hargrove was denied credit for acceptance of responsibility on the drug counts because he went to trial on the 924(c) charge. The district court concluded that it lacked the authority to give Hargrove credit for acceptance because of the 924(c) trial.

On appeal, the Fourth Circuit reversed, narrowly, 2-1. The court first concluded that the "offense of conviction" to which the acceptance reduction would apply was the grouped drug counts, not the 924(c) charge (which, of course, exists outside the Guidelines anyway). Therefore, the district court had the legal ability to award Hargrove acceptance of responsibility because of his guilty pleas on the drug counts. However, the court went out of its way to make clear that Hargrove was not necessarily entitled to the reduction, only that the district court had the power to award it. The message seems clear - the district court has the legal authority, but it probably shouldn't exercise it on remand. Judge Wilkins dissented, arguing that denying the facts of any charged offense, regardless of grouping, precludes a defendant from receiving credit for acceptance of responsibility.

Tuesday, February 20, 2007

"When the mother's talk . . ." Miranda Doesn't Apply

US v. Kimbrough: Baltimore police received information that two men were dealing drugs in front of a specific home. Surveillance confirmed that information. Officers approached the men and asked if they lived at the residence. They replied that they were guests of the homeowner, Ms. Kimbrough (defendant's mother). The officers found Ms. Kimbrough and obtained consent to search the home from her, after she denied any knowledge of drugs being inside. After hearing a noise from the basement, officers went there and found Kimbrough (the defendant) cutting cocaine. Kimbrough was arrested. At that point, the officers called Ms. Kimbrough down to the basement to show her what they found. She confronted her son, asking "what is this?" and "is there anything down here?" An officer recited the Miranda warnings and Kimbrough agreed to speak without an attorney. Kimbrough answered his mother that he had a gun stuffed under a couch cushion. Kimbrough was charged with possession of a stolen firearm, possession of cocaine with intent to distribute, and possession of a firearm in connection with another felony offense.

Kimbrough moved to suppress his statements made in response to his mother's questioning in the basement. The district court granted the motion, holding that the Miranda warnings that were given were ineffective and that the officers used Ms. Kimbrough as a proxy to question her son. The district court concluded, "Detective Himes . . . quite candidly in his testimony, [said that] she did his questioning for him, that is, Miss Kimbrough did the question that [O]fficer Himes otherwise would have done. So this was official interrogation." The court ordered Kimbrough's statements, but not the actual gun, suppressed. The Government appealed.

The Fourth Circuit reversed the district court and held that Kimbrough's statements could be used against him. Relying on Rhode Island v. Innis, 446 U.S. 291 (1980), and Arizona v. Mauro, 481 U.S. 520 (1987), the court held that Miranda was not implicated by questioning of a suspect by a family member, absent some indication that she was used as an interrogator for the police. There was no evidence to support that claim, the court held, noting that Ms. Kimbrough has non-law enforcement motives for confronting her son. Because the confrontation in the basement was not a custodial interrogation, Miranda was not implicated and any insufficiency of the warnings given was irrelevant.

Thursday, February 08, 2007

No Resentencing Hearing Needed After 2255 Proceeding

US v. Hadden: Hadden was originally convicted by a jury of drug charges and a 18 USC 924(c) charge for using a firearm in relation to those drug offenses. He was sentenced to 228 months in prison - 168 months on the drug counts plus 60 months on the 924(c). Hadden's convictions and sentence were upheld on direct appeal. Hadden then filed a 28 USC 2255 motion in which he alleged, among other things, ineffective assistance of counsel in relation to the 924(c) charge. The district court accepted that argument and vacated the 924(c) conviction. The district court then entered an "amended judgment order" in the criminal case imposing a sentence of 168 months. That order was entered without any resentencing hearing.

Hadden appealed, arguing that the district court erred by not having a hearing prior to imposing the new sentence and that the sentence violated Booker (Hadden's trial, appeal, and 2255 proceedings were ongoing during the Blakely/Hammoud/Booker proceedings). The Fourth Circuit rejected those arguments and affirmed Hadden's sentence.

Before reaching the merits, the court analyzed whether it had jurisdiction to hear the appeal, which turned on whether Hadden's appeal was part of the 2255 proceeding or the underlying criminal case. If the former, the court lacked jurisdiction because neither it nor the district court issued a Certificate of Appealability. If the latter, the court had jurisdiction to review the new sentence as a direct appeal of a newly entered final order. After reviewing precedent and parsing the language of 2255, the court concluded that in this case the sentence that was being appealed was part of the underlying criminal case and it therefore had jurisdiction.

On the merits, however, the court ruled against Hadden. First, it concluded that the district court's imposition of a 168-month sentence was not really a resentencing, but rather a "correction" of sentence under 2255 because it removed the 924(c) sentence and left the rest intact. While the district court could have held a resentencing hearing, nothing in the statute or case law required it to do so. Second, the court rejected Hadden's Booker arguments, holding that there was no Booker statutory error and refusing to take notice of the Booker Sixth Amendment plain error that occurred.

Monday, February 05, 2007

Court Clarifies Duties to Conflicting Clients

US v. Nicholson: Nicholson pleaded guilty to being a felon in possession of a firearm. At the time of his arrest, Nicholson told police that he possessed the gun because he was fearful of Lorenzo Butts, who had previously threatened Nicholson and his family, attempted to kill Nicholson's brother, and had killed Nicholson's step father. Nicholson was sentenced to 189 months in prison as an armed career criminal.

Nicholson filed to vacate his sentence, under 28 U.S.C. 2255, based on ineffective assistance of counsel at sentencing due to his defense counsel's conflict of interest. Specifically, at the time he represented Nicholson, Nicholson's counsel also represented Butts in an unrelated case. Nicholson argued that in order to argue for a downward departure at sentencing based on his fear of Butts because to do so would undermine his attorney's simultaneous representation of Butts. The district court denied Nicholson's petition, holding that Nicholson's attorney suffered from no actual conflict because the simultaneous representation of the two men was in unrelated cases.

On appeal, the Fourth Circuit reversed and remanded the case for further proceedings. The court held that Nicholson's counsel did have an actual conflict of interest because the interests of Nichols and Butts were "in total opposition to each other" during the simultaneous representation. The court remanded for a determination of whether the conflict prejudiced Nichols, given that he received a sentence only 9 months higher than the mandatory minimum under the Armed Career Criminal Act.