Friday, December 18, 2009

Face to Face "Man With Gun" Tip = Reasonable Suspicion

US v. Griffin: Griffin pleaded guilty to being a felon in possession of a firearm. The gun at issue was recovered from Griffin's car following a traffic stop. Since the relevant facts are few, I'll just reprint them here from the court's opinion:
The evidence presented during the suppression hearing establishes that the Value-Lodge Motel in Charlotte, North Carolina, was well known to officers of the Charlotte-Mecklenburg Police Department as a location for violent crime and drug trafficking. On the evening of September 28,2005, someone called 911 from a second floor room of the Value-Lodge reporting a man in possession of a gun. The 911 call center relayed this information, including the caller’s room number, to Officer Crystal Lee Clifton, and she responded to the call. Upon arriving at the Value-Lodge, Officer Clifton proceeded to the second floor room from which the call was made and talked with one of the room’s occupants (the "informant") who was aware that the call had been placed. Shortly thereafter, Officer Brian Carey, who was also responding to the 911 call, arrived at the Value-Lodge.1 While Officer Clifton was talking to the informant, a white Cadillac drove past in the parking lot below, and the informant immediately pointed to the vehicle and identified the driver as the man with the gun. Officer Carey returned to his patrol car and pursued the Cadillac which was exiting the Value-Lodge parking lot. He proceeded approximately 50 feet and then entered a nearby parking lot where the Cadillac was turning around. Officer Clifton remained with the informant.

Officer Carey then initiated a traffic stop of the vehicle and its sole occupant, Antonio Griffin. When Griffin exited the vehicle, he "started looking around" and "kept turning around like he was going to take off running." J.A. 27, 43. Officer Carey conducted a Terry frisk of Griffin and, out of concern for his safety, handcuffed Griffin and placed him in the backseat of the patrol car. While Officer Carey was speaking with Griffin, Officer Clifton and another officer arrived on the scene. At this time, an individual approached the officers claiming to know Griffin, and onlookers from the motel gathered at the scene. Officer Clifton thereafter performed a search of the passenger compartment of Griffin’s car, finding a pistol on the driver’s side floorboard. Officer Clifton seized the weapon, and Officer Carey placed Griffin under arrest for carrying a concealed weapon.
Griffin unsuccessfully moved to suppress the gun, the district court concluding that there was reasonable suspicion to make the traffic stop and that the search of the car was justified.

On appeal, the Fourth Circuit affirmed, 2-1. First, the court concluded that there was reasonable suspicion to support the traffic stop. The court noted that, even if the original 911 call was anonymous, the first officer subsequently had a face to face meeting with an informant, which enhanced the credibility of the information provided. Second, the court concluded that the totality of the circumstances showed that Griffin was dangerous and there was a possibility that be might access a weapon if a protective sweep was not done.

Judge Gregory dissented, arguing that the "majority opinion brings the Fourth Amendment two steps closer to a death by a thousand cuts." He went on to argue that neither the Fourth Circuit (until now) nor the Supreme Court has adopted a per se rule that a face to face encounter with an informant is inherently reliable. In this case, "none of the indicia of reliability that normally inhere in such circumstances" were present. He would also hold that, even if the traffic stop was justified, the search of Griffin's car was not.

Court Rejects "Reverse 404(b)" Testimony; Affirms "de facto" Career Offender Sentence

US v. Myers: Myers was convicted of several drug charges after trial and sentenced to 360 months in prison. At trial, Count Five involved an alleged sale of cocaine to a confidential informant who was "working off" an earlier charge for selling cocaine. When cross examined about that charge, the CI admitted to it, but took issue with several details about his behavior in the criminal complaint. The CI's testimony was the only evidence that the transaction took place (no video, I guess). Pursuant to a Government objection, Myers was precluded from calling several police officers to impeach the CI's testimony about those details. At sentencing, Myers was subject to a mandatory minimum of 120 months, but a Guideline maximum of only 121 months. However, the district court agreed with the Government that Myers was a "de facto career offender," departed upward, and imposed a sentence of 360 months.

On appeal, Myers challenged both his conviction on Count Five as well as his sentence. The Fourth Circuit upheld both. As to the conviction, the court rejected Myers's argument that the evidence he sought to introduce about the CI was "reverse 404(b)" evidence about the CI's other crimes or acts. The court held that the evidence had already been presented to the jury during cross examination and the district court did not abuse its discretion in concluding it was of limited probative value. As to the sentence, the court concluded that it was both procedurally and substantively reasonable, holding that the district court's reliance on Myers's criminal history was "thoroughly articulated" and was not an abuse of discretion.

Restitution Not Appropriate for Accessories After the Fact Without Proximate Cause

US v. Squirrel: Squirrel and Slee pleaded guilty to being accessories after the fact to murder. At sentencing, the district court ordered the two (along with another codefendant) to pay more than $5000 restitution for funeral expenses incurred by the victim's family, but indicated it would also order the defendants to pay restitution "for the use and benefit" of the victim's daughter. After a further hearing, the district court ordered the defendants to pay nearly $1.5 million in restitution for that purposes.

Squirrel and Slee appealed the second restitution award on several grounds, only two of which survived after the Fourth Circuit partially granted a Government motion to dismissed based on a waiver of appellate rights in the plea agreements. The two surviving issues where whether Squirrel and Slee could be ordered to pay restitution as accessories after the fact and whether the order of restitution was permitted under their plea agreements.

On the first issue, the court concluded that there is no per se rule prohibiting accessories after the fact from being liable for restitution, but that (as in any case) the victim's loss must be proximately caused by the specific conduct for which the defendants were convicted. In this case, there was not sufficient evidence to conclude that the victim's estate suffered any greater loss due to Squirrel and Slee's conduct (as the Government cogently put it, they did not cause "her to be 'more dead' than she already was"). On the second issue, the court concluded that the plea agreements did not provide a basis for imposing the second restitution award. Therefore, the Fourth Circuit vacated and remanded with instructions to delete the second restitution award.

Congrats to defender office in the WDNC on the win!

Tuesday, December 08, 2009

Plain View Provides for Seizure of Pistol in Car

US v. Rumley: Rumley was driving a truck that was stopped because its taillights were not working. Once the officer discovered that Rumley was driving on a suspended license, he arrested him and placed him in the back of his patrol car. The officer then went back to the truck to ask the passenger to get out. When he did so, the officer noticed a silver pistol lying on the floor in front of the passenger seat. The passenger was also secured in the back of the patrol car, after which the officer retrieved the gun. Rumley was charged with being a felon in possession of a firearm. He moved to have the gun suppressed, but the district court denied that request.

On appeal, the Fourth Circuit affirmed the district court's decision. It rejected Rumley's argument that the seizure of the gun violated the Supreme Court's recent Gant decision because he was safely secure in the patrol car before the gun was discovered and that the officer had taken the first step towards an illegal search. The court disagreed, holding that the gun came into plain view before the search began and therefore Gant was not applicable.

Broad Consent to Search Allows Seizure of Gun Stuffed Under Mattress at Crime Scene

US v. Coleman: Coleman lived with his girlfriend. One night, as he came home, he asked her to open the garage door for him. Unbeknownst to either, two men had earlier broken into the house and hid away in the garage. When Coleman's girlfriend went to open the garage door, she was attacked. In the struggle that ensued, Coleman was shot. After his girlfriend returned from next door (where she had called 911), Coleman retrieved a pistol from their bedroom and checked to make sure the attackers, who had fled, were out of the house. Coleman gave the gun to his girlfriend, telling her to "put it up" and had his brother take him to the hospital. The girlfriend stashed the gun under the mattress in their bedroom. When police arrived (after Coleman was taken to hospital), the obtained a consent to search the "anywhere in the house" from the girlfriend. Officers followed a trail of blood to the bedroom, searched under the mattress, and recovered the gun.

Coleman was charged with being a felon in possession of a firearm. He filed a motion to suppress the firearm, which the district court granted. The district court concluded that the search under the mattress exceeded the scope of the girlfriend's consent and emphasized that the gun, after investigation, turned out not to have been used by the attackers. On appeal, the Fourth Circuit unanimously reversed. Noting that there was no suggesting that the consent to search was given involuntarily, the court concluded that the search did not exceed the scope of that consent. The consent to search was exceptionally broad and had not been limited verbally by the girlfriend, who told police they could search "anywhere in the house." Furthermore, when officers found the blood trial that led to the bedroom and the discovery of the gun they could not know it was unrelated to the break in they were called to investigate.

Government Breach of Plea Agreement is Plain Error Requiring Reversal

US v. Dawson: Dawson was charged with conspiracy to distribute crack and powder cocaine. He entered into a plea agreement in which the Government agreed to recommend that Dawson receive a two-level offense level reduction for his minor role in the conspiracy. The parties agreed that the final determination of the issue was left to the district court and that the terms of the plea agreement did not bind the court at sentencing. The PSR did not include the reduction and neither party objected to its absence. At sentencing, Dawson did not argue for a reduction, but did argue for a sentence reflecting the fact that he was not a leader or organizer of the conspiracy. The Government countered that he was "critical" to the conspiracy. The district court sentenced Dawson to 70 months in prison, the bottom of the Guideline range calculated without a minor role reduction. In doing so, it noted that Dawson was a "key player" in the conspiracy.

On appeal, Dawson sought resentencing based on the Government's breach of its promise in the plea agreement to recommend a minor role reduction. Applying plain error review (because Dawson did not object to the Government's breach at sentencing), the Fourth Circuit vacated Dawson's sentence and remanded for resentencing. The Government's concession that it breached established that there was error and that it was plain. The court went on to conclude that Dawson's substantial rights were affected because the error affected the sentence imposed by the district court, done as it was based on a Guideline range without the minor role reduction and based, at least partly, on the Government's breaching argument about Dawson's role in the conspiracy. Finally, the court decided to notice the error as the kind that affects the integrity of the judicial system, rejecting the Government's argument that the failure of Dawson and the Government to mention to agreement at sentencing operated as some sort of de facto modification to the plea agreement (which, itself, required all modifications to be in writing).

Court Affirms Drug Conspiracy Conivctions

US v. Johnson: Johnson and her codefendants, Martin and Scott, were convicted of conspiracy and other offenses related to a drug distribution scheme that operated across several states. They raised several issues on appeal, but jointly and severally, seeking the reversal of their convictions. Martin also appealed his sentence. The Fourth Circuit rejected all those argument and affirmed.

First, all three defendants argued that the district court erred by not granting a mistrial when a Government witness took the stand and refused to testify. The Government did so, they argued, knowing the witness would refuse to testify and leave the jury with the impression that she had incriminating evidence to offer against them. The court disagreed, concluding that there was no evidence of Government malfeasance nor any evidence of prejudice resulting from the episode. Second, all three defendants argued that the Government improperly vouched for the credibility of its witnesses during closing argument. The court concluded that the prosecutor's use of phrases like "I think" and "I'm convinced" are not vouching.

Johnson argued that the evidence was not sufficient to convict her, an argument the court turned away with a short paragraph of analysis.

Martin raised four issues. First, he argued that the testimony of two expert witnesses violated his Sixth Amendment confrontation right because they testified based on statements from unidentified witnesses. Crawford, the court held, prohibits the use of testimony hearsay as evidence, but not the use of opinions based on such hearsay. The experts in this case presented their own opinions of the language at issue (from phone calls) and were not mere conduits for the presentation of that language to the jury. Second, Martin argued that a 1980 conviction for armed robbery should not have been admitted for impeachment purposes. The court disagreed, finding that if error was committed (which seems likely), it was not prejudicial. Third, Martin argued that had the Supreme Court's decision in Gall been decided prior to his sentencing hearing the district court would have varied from the 360-month sentence advised by the Guidelines. The court disagreed, holding that it can review only the sentence imposed, without consideration of what the district court might have done in different circumstances. Finally, the court rejected Martin's argument to retroactively impose the amended crack guidelines to his case.

Begay Has No Impact on ACCA Listed Offenses

US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government argued that his six prior North Carolina convictions for "breaking or entering" were crimes of violence and thus Thompson should be sentenced as an Armed Career Criminal. The district court disagreed, concluding that under the Supreme Court's decision in Begay "violent felonies" under the ACCA must have "an element that demonstrates the likelihood that an assailant would come in contact with another person" and that Thompson's prior convictions did not meet that test. The district court sentenced Thompson to 92 months in prison.

The Government appealed and the Fourth Circuit unanimously reversed. The court noted that in pre-Begay cases (Bowden and Thompson) it had held that North Carolina "breaking or entering" convictions were violent felonies under the ACCA. The court concluded that Begay did not upset its prior holdings because its analysis is concerned with crimes other than the ones specifically listed as being violent felonies. Thompson's convictions, which meet the generic definition of "burglary", a specifically listed offense, therefore qualify as violent felonies.

Wednesday, November 25, 2009

Items Not Specifically Mentioned in Search Warrant Still Within Its Scope

US v. Phillips: Phillips was charged with and convicted of numerous fraud counts related to the fraudulent use of credit cards and businesses called Phydea (and it's associated website, and Phydea Equity Fund. After an investigation, postal inspectors executed a search warrant at Phillips's home, which specifically authorized the seizure of documents related to and generally items "relating to fraudulent conduct and financial crimes." Among the items seized, after consultation with the US Attorney's office, were documents related to the Phydea Equity Fund. Prior to trial, Phillips moved to suppress the evidence seized because the material exceeded the scope of the seizure authorized by the search warrant. The district court denied the motion, Phillips was convicted at trial, and sentenced to a 121-month term of imprisonment.

Phillips appealed on the issue of the scope of the search and seizure, but the Fourth Circuit affirmed the district court's decision and Phillips's convictions. The court concluded that the items seized fell "comfortably within the warrant's scope," which the court described as "broad and permissive." The court rejected Phillips's reading that would "require us to hold that an item reasonably encompassed by the terms of the warrant somehow falls outside its scope because the item is probative of charges other than those initial charges set forth by the warrant." Given the intermingling of Phillips's frauds and the links between him, Phydea, and Phydea Equity Fund, the officers executing the search warrant were reasonable in seizing items related to all of them.

Court Can't Consult Statement from Related Case to Determine ACCA Applicability

US v. Harcum: Harcum pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was whether Harcum was an Armed Career Criminal, with particular focus on a prior Maryland conviction for second degree assault and whether it was a "crime of violence" under the ACCA.

Harcum was originally charged with assault in the District Court of Maryland in Baltimore City with a supporting Statement of Charges that alleged Harcum punched the victim in the face (sending said victim through a glass window). However, he was not convicted on that charge in that court. Instead, an information was filed in the Circuit Court for Baltimore City, alleging the same offense, on the same day, against the same victim as the District Court charge. However, unlike the District Court charge, the Circuit Court charge did not have an equivalent to the Statement of Charges laying out the offense conduct. Harcum pleaded guilty to second-degree assault based on the information in the Circuit Court.

The issue, both in the district court and in the Fourth Circuit, was whether the district court could look to the Statement of Charges filed in the District Court to determine whether the conviction sustained in the Circuit Court was a crime of violence (the Fourth has previously held that a conviction under the Maryland statute is not per se a crime of violence). The district court concluded that it could and, based on what it found there, concluded that Harcum's conviction was for a crime of violence and sentenced him as an Armed Career Criminal.

The Fourth Circuit disagreed and vacated Harcum's sentence, holding that nothing in the Circuit Court information incorporated the District Court Statement of Charges, either directly or implicitly.

Congrats to the defender office in Maryland on the win!

Tuesday, November 10, 2009

16-Level Enhancement Requires Actual Trafficking in Prior Offense

US v. Maroquin-Bran: Maroquin-Bran was deported following a 1989 conviction in California for "the crime of SALE OR TRANSPORTATION OF MARIJUANA" (yelling in original statute). He reentered the country illegally in 2002 and was charged with illegal reentry in 2007. After pleading guilty, the main issue at sentencing was whether Maroquin-Bran's prior conviction was a "drug trafficking conviction" that triggered the 16-level enhancement under USSG 2K1.2(b)(1)(A). The district court concluded that it was and sentenced to Maroquin-Bran to 57 months in prison, the bottom of the resulting Guideline range.

On appeal, the Fourth Circuit reversed and vacated for further proceedings. Following in the footsteps of every other circuit to resolve the issue, the court held that in order for the enhancement to apply, the specific offense that the defendant was convicted of committing must be a "drug trafficking offense." It is not enough that the statute under which the conviction was obtained includes both trafficking and non-trafficking offenses. In other words, if the same statute addresses possession and distribution, the enhancement only applies if the prior conviction was actually for distribution, not possession. Because the district court was without that guidance initially, the court remanded the case for a determination of whether Maroquin-Bran's actual conviction was a drug trafficking conviction.

Congrats to the EDNC defender office on the win!

Monday, November 09, 2009

Consideration of Uncharged Conduct at Sentecing OK

US v. Grubbs: Grubbs pleaded guilty to six counts of transporting a minor with intent to engage in sexual activity and six counts of travelling interstate to engage in sexual activity with a minor. Those charges involved two victims. In the PSR, the probation officer set forth allegations from nine other victims of similar conduct by Grubbs in the past.

At sentencing, the district court "expressed its concern" that the Guideline range of 151-188 months was not sufficient to fully account for Grubbs's conduct, as it was based only on the counts in the indictment and did not take into account the additional allegations in the PSR. Over Grubbs's objection, the district court concluded that the uncharged conduct was reliable enough to be used at sentencing and departed upwards both as to offense level and criminal history category, raising the Guideline range to 210-262 months. Grubbs received a 240-month sentence.

On appeal, the Fourth Circuit affirmed Grubbs's sentence. Grubbs's primary arguments on appeal related to the use of uncharged conduct to enhance his sentence.

First, he argued that the sentence violated his Sixth Amendment rights under Booker because the 240-month sentence is unreasonable if based only on the offenses of conviction. In other words, only by using uncharged conduct could the sentence be reasonable (this is essentially the argument from Scalia's dissent in Rita). The court rejected that argument as "nullified by clear Supreme Court and Fourth Circuit precedent" allowing the use of uncharged and acquitted conduct at sentencing. Booker, the court held, did not change that precedent.

Second, Grubbs argued that the sentence violated his Fifth Amendment due process rights because it was based on conduct not proven by clear and convincing evidence. Applying plain error (Grubbs did not specifically object to the use of a preponderance standard), the court concluded there was no error, "plain or otherwise," In doing so, the court concluded that whatever viability the potential exception to the general preponderance standard at sentencing suggested in McMillan v. Pennsylvania - where the enhancement is the "tail that wags the dog of the substantive offense" - has been "nullified" in light of Booker. Adopting a Sixth Circuit formulation, the court explains that challenges to large sentencing enhancements are properly dealt with in terms of Booker reasonableness review, not due process.

The court also rejected Grubbs's argument that the Guidelines had been improperly calculated.

Friday, October 30, 2009

Forced Medication Requries Clear and Convincing Evidence

US v. Bush: Barbara Bush (no, not that one) was charged with two counts of threatening a federal judge. She suffers from "Delusional Disorder, Persecutory Type," which manifests itself in "extreme litigiousness" - she filed more than 100 civil suits since 1995, one of which exploded into this case. As part of that litigation, she wrote a letter to several federal judges whom she believed had wronged her, outlining a theory of self defense (taken from a 1907 treatise) that she concluded would allow her to "slay any of such persons or all of them" (or attempt to "if she misses") who might do her continued harm. A second letter followed shortly thereafter.

After being arrested on the threat charges, Bush was sent to FMC Carswell for an evaluation where she was diagnosed. The evaluation concluded that Bush was incompetent to stand trial but that medication could restore her competency. Bush refused to take the medication, so the Government moved for an order to forcibly medicate her. At one of several hearings, Bush's personal physician agreed with the diagnosis from FMC Carswell, but disagreed that medication would help. One of the FMC Carswell docs testified that despite the "common wisdom" that conditions like Bush's would not respond to medication, he disagreed, partly based a fresh study (done after Bush's evaluation) from FMC Butner. The district court ordered Bush medicated, applying the analysis from Sell v. US.

Bush sought an interlocutory appeal and the district court's order was stayed. On appeal, the Fourth Circuit unanimously reversed the district court and remanded for further proceedings. First, the court held that in order to obtain an order to forcibly medicate a defendant the Government must satisfy all four prongs of the Sell analysis by clear and convincing evidence, rather than a mere preponderance. Applying that standard of proof, the court found the record lacking on the second Sell prong - whether medication will "significantly further" the government's interest in prosecution - and remanded to the district court for further proceedings on that issue. The court also remanded because the district court failed to address whether forced medication was medically appropriate and would serve Bush's best medical interests.

Tuesday, October 20, 2009

Sex-Related SR Conditions Vacated in Threats Case

US v. Armel: Armel called a local FBI office in Virginia, claiming that the Bureau tried to kill him and owed him money. He called back shortly thereafter and claimed that if he didn't get "paid" the people in the office were "gonna' lose you're [sic] genitalia," that "God promised me he would curse you," and that if "[y]ou come and try to pull on me . . . [y]ou will die." He punctuated the final phone call (of three total) with a warning to "[g]et it straight or fucking die!" Armel was arrested and charged with threatening federal officials under 18 USC 115(a)(1)(B). After being convicted at a bench trial, Armel was sentenced to prison and a term of supervised release term that included special conditions involving pornography, contact with children, and mandated sex offender testing.

Armel appealed both his conviction and his sentence to the Fourth Circuit, which affirmed the conviction but vacated the special conditions of supervised release (Armel's term of imprisonment had ended by the time the case was decided).

On the conviction, the court concluded that there was sufficient evidence to support Armel's conviction, both because the statements at issue were true threats and they were directed to a small group of specific people (the employees in one particular FBI office) even if they were not directed at specific named individuals.

With regards to the supervised release conditions, the court found that, while the district court noted that they were "very rigid," it did not provide any basis for why such conditions were necessary in this case, in light of 3553(a). The conditions were not asked for by the Government, which did not argue that they were appropriate on appeal. Lacking any support in the record, the conditions were vacated and the case remanded for resentencing.

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

Tuesday, August 18, 2009

Good Faith Saves Search Based on Anticipatory Warrant

US v. Andrews: Andrews was convicted of being a felon in possession of a firearm after officers recovered a gun during the search of his home pursuant to a warrant. The warrant was issued after a package was intercepted at the local FedEx depot that contained marijuana. Although it was not addressed to Andrews (by name or by street address), circumstances, including a call from the shipper modifying the address (still not Andrews's), led officers to believe it was meant for him. They obtained an anticipatory search warrant set to become effective once Andrews took delivery of the box. Andrews took delivery of the box, took it inside briefly, and then took it to another nearby home. He was arrested at that point and the search, which uncovered the gun, took place.

As before the district court, on appeal Andrews argued that the search of his home violated the Fourth Amendment. The Fourth Circuit disagreed (as did the district court, obviously) and affirmed his conviction. Applying Leon, the court concluded that the facts presented to the issuing magistrate were not so deficient such that they clearly failed to establish probable cause or that the magistrate acted merely as a rubber stamp for the officer. The court also rejected Andrews's argument that the officer who obtained the warrant had misled the issuing magistrate by leaving out relevant information about the location of the search.

Jurisdiction Proper in North Carolina to Prosecute Assault in Afghanistan

US v. Passaro: This case arises from an "interrogation" Passaro, a former special forces medic (apparently a civilian contractor at the time of the incident), inflicted upon an Afghan detainee at a small US base in Afghanistan in 2003. The interrogation consisted mostly of beating and kicking (the suspect died shortly thereafter), which led to Passaro being charged and convicted of assault with a deadly weapon and assault resulting in serious bodily injury (two counts of each) and being sentenced to a 100-month term of imprisonment. The wrinkle is that, while the crime occurred in Afghanistan, it was prosecuted in the Eastern District of NC when Passaro returned to the United States.

On appeal, Passaro challenged his conviction and both he and the Government challenged his sentence. As to the conviction, Passaro first argued that the district court in North Carolina lacked the jurisdiction over acts committed in Afghanistan. The Fourth Circuit disagreed, arguing that the language of 18 USC 7(9) extended jurisdiction to incidents that happened at the US base in Afghanistan. The court also turned away Passaro's argument that the prosecution violated separation of powers principals because the courts were interfering with the executive's foreign policy authority, noting that the executive was the one that brought the prosecution in the first place. In addition, the court concluded that the statute under which Passaro was convicted, 18 USC 113, was not unconstitutionally vague, rejecting his argument that his "battlefield interrogation" could not be an "assault." Passaro's argument that the district court erred in dealing with classified information denied him a fair trial was similarly turned away.

As to sentencing, both Passaro and the Government agreed that the district court's Guideline calculations were wrong (although for slightly different reasons), therefore Passaro's sentence was vacated and the case remanded for resentencing.

DC Use of Presumption of Reasonableness Requires Resentencing

US v. Raby: Raby pleaded guilty to possession of child porn and faced a Guideline range of 210-262 months. Over the course of several sentencing hearings, during which Raby argued for a variance and the Government sang from the Guideline hymnal, the district court judge repeatedly stated that he didn't see how he could impose anything other than a Guideline sentence without getting reversed on appeal. In the end, he imposed a 210-month sentence, explaining that he wasn't at liberty to consider any of the several mitigating factors without being "unreasonable."

Years pass, as the case languishes on appeal. In the interim, the Supreme Court decides Gall and other cases that both uphold the presumption of reasonableness as an appellate review tool, but make clear that district court's cannot apply it at the initial sentencing. The Fourth Circuit, after lots of direct quotations from the numerous sentencing hearings, concluded that the district court erroneously applied the presumption at sentencing and, thus, Raby's sentence was procedurally unreasonable. His sentence was vacated and the case remanded for a new sentencing hearing.

Congrats to the defender office in the SDWV for the win!

Wednesday, July 22, 2009

Maker of Fake Money Not Necessarily a "Leader" of Operation

US v. Cameron: Cameron was caught trying to pass a counterfeit $20 bill at a store in Dunbar. Police who responded secured a second fake $20 and an admission from Cameron that he intended to pass it. Searches of Cameron's grandmother's home and his sister's home follow, uncovering various implements and equipment that could be used for making counterfeit bills. In particular, officers seized a computer from his sister's house that had, on the hard drive, a single image of a counterfeit $20 bill. Cameron went to trial and was convicted of producing and uttering counterfeit currency.

At sentencing, his offense level was enhanced under USSG 3B1.1(a) for being an "organizer or leader" of the counterfeiting operation. However, at sentencing, the Government's sole witness actually testified that she barely knew Cameron, didn't know much of his role in the operation, that he did not recruit her, nor did he get a cut of the scheme's proceeds. Nonetheless, the district court overruled Cameron's objection and imposed the enhancement. Cameron was sentenced to 46 months in prison.

On appeal, Cameron challenged both his production conviction and the application of the leadership enhancement. The Fourth Circuit affirmed the conviction, concluding that there was sufficient evidence collected from the two searches (there was no testimony from inside the operation at trial) to allow a jury to conclude that the Government met its burden of proof.

However, the Fourth Circuit vacated the sentence because of the application of the leadership enhancement. Reiterating both earlier precedent and Guideline commentary that the enhancement only applies to the supervision of other people, not property. It rejected the Government's argument that because Cameron made the bills he must have exercised some leadership role in the operation. The court also noted that the Guidelines provide a separate enhancement in counterfeiting cases for the person who actually makes the fake bills.

Congrats to the SDWV defender office on the win!

Tuesday, July 21, 2009

Failure to Give Justification Defense Requires Reversal of Felon-in-Possession Conviction

US v. Ricks: Ricks's partner, Blue, returned to their home after several days absence, acting strangely. Ricks noticed that Blue had a gun in his hand, so Ricks pinned him against the wall and knocked the gun out of his hand. Ricks then picked up the gun, removed the clip, and tossed the gun and clip away in opposite directions. Blue fled. Ricks picked up the gun and the clip and placed them (without putting the clip back in the gun) on a dresser in their bedroom and returned to the living room to watch TV. About 15 minutes later, Blue returned to the home with two police officers. Ricks admitted there was a gun in the house and admitted he had a prior felony conviction.

Ricks was charged with being a felon in possession of a firearm. At trial, he requested a jury instruction on justification, which the district court denied. The court concluded that such a defense was not available in this circuit, as the Fourth Circuit had never held that the defense existed. However, the district court indicated that, if the defense were available, it would apply in this case. Ricks was convicted at trial.

While he was awaiting sentencing, the Fourth Circuit decided the Mooney case, in which the Fourth Circuit held that failure to inform a defendant that the defense was available constituted ineffective assistance of counsel. The district court held a sue spontehearing as to what application Mooney had to Ricks's case. Reversing itself, somewhat, the district court concluded that although a justification defense was apparently available in the Fourth Circuit, it was not applicable in this case. Therefore, Ricks's conviction stood and he was sentenced to 180 months in prison.

On appeal, the Fourth Circuit unanimously reversed. The parties agreed on appeal that the district court's initial decision that the justification defense was not available in the Fourth Circuit was error. Therefore, the only issue on appeal is whether the facts of the case supported the jury being instructed about the defense. As to that issue, the focus was on what Ricks did with the gun after Blue fled their home. The Government argued that because Ricks left the gun in the home afterwards, he "had other reasonable alternatives to continued possession of the gun." The Fourth Circuit disagreed, essentially concluding that a properly instructed jury could have found otherwise. Critically, the court refused the Government's invitation to hold that the method of dispossessing the firearm in Mooney- turning it over to police as soon as possible - is the only means to do so. The Government also tried to argue that Ricks's constructive possession of the gun extended to the point where the police officers arrived, but the court concluded that there was insufficient evidence to concluded that Ricks intended to exercise continued dominion and control over the gun left in the bedroom.

Ricks's conviction, therefore, was reversed.

Congrats to the FPD office in the WDNC on the win!

Tuesday, July 07, 2009

Conspiracy Is "Violent Felony" Under ACCA

US v. White: White was convicted of being a felon in possession of a firearm and was sentenced as an Armed Career Criminal. The only issue on appeal was whether one of White's priors - a North Carolina conviction for conspiracy to commit robbery with a dangerous weapon - qualifies as a "violent felony" for ACCA purposes. The Fourth Circuit concluded that it does.

White argued that because conspiracy in North Carolina does not have an overt act as an element, it failed to present the a degree of risk similar to the offenses listed in the definition of violent felony. The court disagreed, noting that a defendant must intend the conspiratorial agreement be carried out in order to be guilty of the offense. In addition, the conspiracy offense is similar in kind to the other enumerated offenses in the ACCA.

Carjacking Conviction Affirmed Over Numerous Objections

US v. Blake: Blake and Tolbert were involved in a carjacking in Maryland, during which the driver of the car was shot in the head, run over, and killed. Tolbert was arrested shortly thereafter and gave a statement basically admitting to being part of the process but putting the gun in Blake's hand and the ideas in Blake's head. That statement provided probable cause to arrest Blake.

Once at the station, Blake demanded a lawyer and was placed in a cell. He received a notice of the charges to be filed against him, which incorrectly stated that he faced the death penalty (at 17, he was too young to qualify in Maryland). The notice of charges also included a summary of what Tolbert had told the officers. At one point, while Blake was in the cell, an officer not otherwise involved in the investigation who was accompanying the lead officer taunted Blake, saying "I bet you want to talk now, huh?" He was escorted out by the lead officer, who said, "no, he doesn't want to talk to us, you can't say anything to him, he asked for a lawyer." Later, when the lead officer went to take Blake some clothes, Blake asked if he could talk to him. Blake was re-Mirandized and gave a statement, admitting to being present during the carjacking, but putting the gun in Tolbert's hands.

Blake was charged in Maryland with murder. He moved to suppress the statements he made after his arrest, arguing that they were made in violation of his already invoked right to counsel. The case bounced around the Maryland courts and was eventually accepted for review by the Supreme Court, which later dismissed the case as having been improvidently granted. As a result, Blake was never convicted of the charges in Maryland. Blake was then charged in federal court of, among other things, carjacking causing death. He was convicted and sentenced to life in prison.

On appeal, Blake made several arguments attacking his conviction, all of which the Fourth Circuit rejected. First, Blake made the same argument that had been successful in the Maryland courts, that his statements should have been suppressed. The court disagreed, holding that the officer's taunt about Blake wanting to talk wasn't interrogation and therefore did not violate Blake's right to counsel. The fact that Blake was re-Mirandized and otherwise cooperative after asking to resume conversations with the lead officer was also key. Second, Blake argued that the federal court lacked jurisdiction over him because he was only 17 at the time of the crime and the Government had not complied with the procedures set forth in the Juvenile Delinquency Act.

The court also concluded that Blake was, in fact, not a juvenile by the time federal charges were brought (three months after his 21st birthday) and therefore the JDA had no application to him. The court also concluded that the trial court did not abuse its discretion by denying Blake's request for a mistrial based on statements made during the Government's opening statement, in allowing evidence about a polygraph examination Blake took, allowing a prosecution witness to testify sooner rather than later at trial, or in excluding as hearsay the testimony of a defense witness. Finally, the court rejected Blake's argument that the district court erred in instructing the jury on the death element of the carjacking offense.

Friday, June 19, 2009

Court Rejects Numerous Challenges to SORNA Conviction

US v. Gould: Gould was convicted of a sex offense in DC in 1985. After his release he moved several times in the states surrounding the District. He finally settled in Maryland in August 2006. He did not register as a sex offender, as required by state law. In July 2007, Gould was charged federally with failing to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"). He moved to dismiss the indictment on various grounds, but the district court declined to do so. He entered a conditional plea and was sentenced to 24 months in prison.

On appeal, the Fourth Circuit affirmed Gould's conviction, rejected several of the arguments he had raised below.

First, Gould had argued that SORNA could not be applied to him because, at the time of his indictment, Maryland had not yet updated its sex offender registration procedure to conform with SORNA requirements. In other words, because he could not register in the way SORNA set forth, he could not be convicted for failing to do so. The court concluded otherwise, holding that the criminal provisions of SORNA are separate and apart from the spending/state mandate provisions of SORNA that requires action from the states. Maryland had a means for registration and Gould's failure to avail himself of it was sufficient. For similar reasons, Gould's ex post facto claim was also rejected.

Second, Gould argued that he could not comply with SORNA's registration requirement because it requires registration before completion of a sentence, which he completed in 2002, prior to SORNA's passage. The court noted that this argument "bootstraps on his first argument" due to Maryland's failure to come up to SORNA standards with its registration scheme. Regardless, because Maryland law required Gould to register when he came to the state, SORNA applied to him. The court also noted that Gould was aware of his general duty to register, as he had done so in other states before he moved to Maryland. He was not in the (very small) category of offenders who wasn't required to register with anybody until SORNA's passage.

Third, Gould argued that it could not be proven that he "knowingly" failed to comply with SORNA registration requirements because the Government never notified him of those requirements, as the law requires. However, the court held that the word "knowingly" modifies "fails to register" and thus relates to the Maryland state requirement that he register, not SORNA's specific requirements. Conviction under SORNA does not require knowing that a failure to register violates federal law.

Fourth, Gould argued that the interim regulations promulgated by the Attorney General clarifying that SORNA applied to defendants convicted before it was enacted violated the Administrative Procedures Act. The regulation was enacted without notice and without the required 30-day waiting notice. The court concluded that the AG had good cause to do so, given the "need for legal certainty about SORNA's 'retroactive' application . . ." Delay "could reasonably be found to put the public safety at greater risk."

Finally, Gould argued that SORNA exceeded the scope of Congressional power under the Commerce Clause. The court noted that one of the elements of a SORNA offense is that the defendant "must travel in interstate commerce" and that the Act applies even when the act of failing to register is purely intrastate. The court pointed out several other statutes that criminalize "local acts" undertaken after interstate travel. As explained by the court, "[t]here must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register." That conclusion is in line with other circuits have decided the issue.

Judge Michael dissented, arguing that the AG's reason for promulgating a rule without following the APA procedures was inadequate. Because Gould's conviction relied upon that regulation, it must be reversed.

Thursday, June 18, 2009

Court Affirms Drug, Gun Convictions Against Multiple Claims of Error

US v. Jeffers: Jeffers was involved with crack distribution in western Virginia. After a three-day trial, he was convicted of conspiracy to distribute 50 grams or more of crack and carrying a firearm in connection with that offense. He was sentenced to a total of 302 months in prison. He raised several challenges on appeal to his conviction and sentence, all of which the Fourth Circuit rejected.

First, Jeffers argued that his due process rights were violated when certain proceedings were held but not transcribed by the court reporter, particularly the charge conference. While noting that Jeffers had a due process right to an appeal with a complete transcript, the court concluded that there is no requirement that the charge conference be held in open court and that counsel had ample opportunity to make any objections to the jury instructions on the record.

Second, Jeffers argued that the evidence was insufficient to sustain the firearm conviction. The court noted that several witnesses linked Jeffers to firearms in relation to drug trafficking and concluded that, in the light most favorable to the Government, the evidence was sufficient.

Third, Jeffers raised several instructional errors relating to the conspiracy charge, including the failure to give a multiple conspiracy instruction, giving an instruction allowing the inference of guilt from attempts to conceal himself after indictment, and the failure to instruct the jury to determine the amount of crack attributable to Jeffers. The court rejected all those argument on a plain error review, as none of them had been preserved at trial.

Fourth, Jeffers challenged two aspects of his sentence: the amount of crack attributed to him and the imposition of a $25,000 fine. The court held that the determination of relevant conduct was amply supported by the evidence in the record and that the fine was not imposed in retaliation for Jeffers not providing financial information to the probation officer on Fifth Amendment grounds.

Finally, Jeffers argued that the Government failed to abide by the discovery provisions in Rule 16 of the Rules of Criminal procedure in that it would not allow him to have copies of certain documents related to controlled buys in the case, although his counsel had access to them at the US Attorney's office. While concluding that the Government failed to abide by the terms of Rule 16, the court held that Jeffers failed to show how he was prejudiced and thus the error was harmless. The court also concluded that Jeffers was not entitled to an acquittal of his convictions under Brady for material that related to several other charges for which he was acquitted.

Monday, June 08, 2009

Evidence Not Sufficient for Enhanced Statutory Drug Penalties

US v. Kellam: Kellam and his codefendant were convicted on multiple drug counts and, on appeal, each alleged multiple errors at trial. Although the Fourth Circuit affirmed their convictions, the court vacated Kellam's life sentence.

That sentence was imposed after the Government filed an information under 21 USC 851 alleging Kellam had prior convictions that made her eligible for an enhanced sentence. In response to the 851 information, Kellam disputed both of the alleged prior convictions and argued that the Government and not proven beyond a reasonable doubt that she had been convicted of them. The Government produced certified copies of the criminal dockets in the two cases, which the district court concluded proved the convictions.

On appeal, the Fourth concluded that it was "unable to conclude" that the Government had met its burden of proof with regards to the prior convictions. The district court made no finding, and the Government made no effort to prove, that Kellam was the same person named in the documents showing the prior convictions. No photographic or fingerprint evidence was produced to link Kellam with the prior convictions. In addition, the district court failed to ask Kellam at the hearing whether she affirmed or denied that she had been previously convicted. In summary, the court concluded that it was possible, "or perhaps probable," that Kellam was convicted of the prior offenses, but such speculation does not satisfy the burden the Government has to prove that fact beyond a reasonable doubt.

Wednesday, June 03, 2009

No Mistake of Age Defense for Child Porn Manufacture

US v. Malloy: Malloy and a friend twice had sex with a 14-year old girl, one of the times being videotaped by Malloy. He was charged and convicted of sexual exploitation of a minor for the purpose of producing a visual depiction and sentenced to the mandatory minimum sentence of 180 months.

On appeal, the Fourth Circuit affirmed both Malloy's conviction and sentence. As to his conviction, Malloy raised three arguments that the court rejected. First, he argued that a mistake of age defense must be read into section 2251(a) for it to pass First Amendment muster, as without it the statute is overbroad and chills protected speech. Second, he argued that because the indictment charged that he acted "knowingly," although that was not an element of the offense and thus not charged to the jury, the charge against him was constructively amended. Third, he argued that the statute as applied to him exceeded Congress's authority under the Commerce Clause. As to Malloy's sentence, the court rejected his argument that the mandatory minimum penalty violated the Eighth Amendment.

Indicment for Conspiracy Must Define Elements of Underlying Offense

US v. Kingrea: This case arose from a raid on a cockfighting venue in Virginia. Kingrea was there as a vendor of equipment and materials used in the fighting, but did not have an animal involved in the fighting. He was charged with conspiracy to sponsor or exhibit and animal fighting venture and illegal gambling business, conspiracy to sell animal fighting equipment, aiding and abetting the animal fighting operation, and conducing an illegal gambling business. The district court dismissed the substantive animal fighting operation count, but Kingrea was convicted on the other three counts and sentenced to six months in prison and six months of home confinement.

On appeal, the Fourth Circuit reversed Kingrea's conviction on the conspiracy count, while affirming on the other two. On the conspiracy count, the court concluded that the indictment failed to state a necessary element of the offense - that the underlying conspiracy involve "an animal fighting venture" and that the inclusion of that element in the jury instructions amounted to a constructive amendment. The court rejected the Government's argument that because the missing element was part of the object of the conspiracy was not a constitutional error. The court affirmed Kingrea's other two convictions and remanded his case for resentencing.

Court Narrows Understanding of "Best Evidence" Rule

US v. Smith: Smith was charged with (among other things) being a felon in possession of firearms and possessing firearms in connection with a drug trafficking offense. At trial, the Government presented testimony from an ATF agent who explained that all the firearms were manufactured out of state (and therefore traveled in interstate commerce), based upon his review of ATF databases and written reference materials. Smith objected to that testimony, arguing that without entering the materials upon which the agent relied into evidence, allowing his testimony violated the best evidence rule of FRE 1002. The district court disagreed and allowed the testimony. Smith was convicted and sentenced to 197 months in prison.

On appeal, the Fourth Circuit affirmed Smith's conviction. The court concluded that Smith's argument rested on a "misconception" of FRE 1002, namely that it required the Government to produce the "best evidence" of the information to which the agent testified. In fact, FRE 1002 is better understood as the "original document rule," as it is designed to require production of an original document "to prove the content" of it. The Government never sought to prove the contents of the materials upon which the agent relied, only that the firearms at issue moved in interstate commerce.

The Fourth Circuit did vacate Smith's sentence, as the district court employed a presumption of reasonableness for the Guidelines when it imposed sentence.

Wednesday, May 20, 2009

Non-Governmental Interception of Phone Calls Requires Suppression

US v. Crabtree: Crabtree was on supervised release, living with his girlfriend. When she became suspicious about Crabtree's relationship with his ex-wife, she began taping his phone calls. Among other things, the calls showed Crabtree threatened to burn down the ex's home and truck (I assume - it's difficult to say whether the threat was to the ex or the girlfriend, from the way the opinion is written) and set up a third party to be arrested. The girlfriend called Crabtree's probation officer to report that she was throwing him out of the house and turned over the recordings. Crabtree was charged with 13 supervised release violations, the most serious of which sprang from the recorded phone calls. After considering those recordings, the district court revoked Crabtree's term of supervised release and sentenced him to 24 months in prison.

On appeal, the Fourth Circuit vacated and remanded for further proceedings. First, the court noted that the girlfriend clearly violated the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 because neither Crabtree nor his ex consented to the recording and the girlfriend was not a party to the conversations. Second, the court noted that 18 USC 2515 generally excludes the use of evidence procured in violation of Title III. Finally, the court rejected the district court's reading of a "clean hands" exception into section 2515. Noting that the circuits are split on whether such an exception exists, the Fourth sides with the majority and agrees that it does not. The language of 2515 is clear and has no "gaps or shadows in the language that might leave lurking a clean-hands exception."

Although there were other violations found by the district court, those based on the recordings were the most serious and thus required remand.

Congrats to the defender office in the Western District of Virginia on the win!

Gun On Person Possessed "In Connection With" Simple Possession Felony

US v. Jenkins: Jenkins (aka "Big Tim") was confronted by Charleston, South Carolina, police, while carrying a firearm. After he was arrested, officers noticed "a white rock-like substance between his fingers, later identified as .29 gram[] of cocaine base" while processing him. Jenkins was charged and pleaded guilty to being a felon in possession of a firearm. At sentencing, his offense level was enhanced four levels because he possessed the firearm "in connection with another felony offense" - the possession of cocaine base. Jenkins objected to the enhancement, but the district court applied it and sentenced him to 71 months in prison.

On appeal, the Fourth Circuit affirmed. Jenkins conceded that he committed another felony offense, but argued that his possession of the firearm was not done in connection with it. The court disagreed, concluding that Jenkins's possession of the firearm facilitated, or had the potential to facilitate, his possession of drugs. "[I]t is clear," the court wrote, "that the possession of a firearm can facilitate a simple drug possession offense," as it provides a means for the user to protect his stash and the investment therein. In Jenkins's case, the fact that he took a gun out into the street where a shot had recently been fired showed "there was a heightened need for protection and that the firearm emboldened" him.

Monday, May 11, 2009

Disqualification of Counsel Did Not Vioalte Sixth Amendment; Court May Hear Appeals Filed Outside 10-Day Window

US v. Urutyan: Urutyan was convicted of fraud, conspiracy, and aggravated identity theft, based on a scheme to collect PINs from an ATM at a convenience store where he (and other conspirators) worked. Once they had the numbers, the conspirators withdrew about $600,000 from various accounts and wired the money to Russia and Armenia. Urutyan was initially represented by appointed counsel, but eventually retained a California attorney to represent him. Investigation prior to trial revealed that the attorney was being paid by a nearly anonymous third party, likely from some of the proceeds of the conspiracy, and that the attorney was not properly accounting for the cash payments made with the IRS. After a hearing, the district court disqualified retained counsel. Urutyan went to trial with retained local counsel and was convicted.

On appeal, the Fourth Circuit affirmed Urutyan's convictions, rejecting the only argument presented, that the district court violated his Sixth Amendment right to counsel when it disqualified the California attorney. The court concluded that the district court did not abuse its discretion in disqualifying counsel due to a serious potential conflict of interest, given the investigation into the source of the funds with which he was retained (and the implication that counsel was part of the grander conspiracy).

Before reaching that issue, the Fourth concluded, in line with all other circuits to reach the issue, that the failure to file a timely notice of appeal is not a flaw of jurisdictional dimension, preventing the court from hearing an appeal. Applying recent Supreme Court precedent, the court concluded that the non-statutory 10-day deadline to file a notice of appeal is a claim processing rule, not a jurisdictional requirement.

Thursday, April 30, 2009

Plain Error Sinks Unknowing ACCA Plea

US v. Massenburg: Massenburg pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the probation officer concluded that he was an armed career criminal. At sentencing, Massenburg objected on Apprendi/Blakely grounds and also that the prior offenses were all part of the same course of conduct and should be counted as only one qualifying prior conviction. The district court disagreed and sentenced Massenburg to 210 months in prison.

On appeal, Massenburg raised a new argument - that he should be able to withdraw his guilty plea because he was not informed of the possibility of being sentenced as an armed career criminal. Although the court has found such a failure to require reversal in earlier cases, because Massenburg did not make an objection on the issue in the district court he was stuck with plain error review. Under that analysis, although there was error and it was plain, Massenburg could not show a "reasonable probability that, but for the error, he would not have entered the plea."

Limited Consent to Search Means Limited Consent

US v. Neely: Neely was pulled over late at night in Charlotte, NC, after leaving a parking lot in a high crime area without turning his lights on. After the officer received a valid license and registration, he gave Neely a verbal warning about the lights. He then asked, before returning the license and registration, whether Neely had any "guns, weapons, grenades, bazookas [in the vehicle]." Neely said he did not, but offered to let the officer search the trunk. After Neely searched (in vain) for the trunk release button, the officer ordered Neely out of the car. He complied, giving his keys to the officer, who then patted him down, and had him sit on the hood of the police car. Although the pat down didn't uncover anything, the officer started questioning Neely about why he was out so late at night. When backup arrived, the officer began to search the passenger compartment of the car, but not the trunk. In the passenger compartment, he found a gun. Neely was charged with being a felon in possession of a firearm. After a denial of his motion to suppress, Neely pleaded guilty to that offense.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. First, the court concluded that the officer's search exceeded the scope of Neely's consent to search the trunk. Specifically, it rejected the district court's conclusion that Neely's handing of keys, generally cooperative manner, and failure to object to the search of the passenger compartment broadened the scope of his consent to search the trunk. Second, the court concluded that the search was not a proper protective search because the officer could not have reasonably believed that Neely was dangerous when he began the search.

Congrats to the defender office in the WDNC on the win!

Tuesday, April 28, 2009

District Court Must Explain Why Sentence Is Appropriate to Specific Case

US v. Carter: Carter assisted some friends of his in their licensed firearm sales business. Unfortunately, they were selling short-barrelled rifles at gun shows, which led to an ATF investigation. As part of that investigation, Carter's home was searched and it was learned he was a convicted felon. Charged with multiple firearms offenses, Carter pleaded guilty to one count of being a felon in possession of a firearm. His Guideline range at sentencing was 36 to 46 months, although if his objections to the calculations were sustained, the range would have been 10 to 16 months and in a range that allowed probation. The district court overruled all the objections, but nonetheless varied from the Guidelines and imposed a sentence of probation. The Government appealed.

The Fourth Circuit vacated Carter's sentence and remanded for further proceedings. The court concluded that the district court had not sufficiently explained why the sentence it imposed was appropriate in Carter's case. Although the court made some statements, they did not apply to Carter's case specifically, such that they "could apply to any sentence, regardless of the offense, the defendant's personal background, or the defendant's criminal history." The court continued that "a talismanic recitation of the 3553(a) factors without application to the defendant being sentenced does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review." Finally, the court noted that while in pre-Booker times it could assume that the district court adopted Carter's arguments, the current sentencing scheme prohibits such a presumption. Thus, the sentence was procedurally unreasonable.

Use of Peer-to-Peer Network Triggers Child Porn Distribution Ehancement

US v. Layton: An informant told cops they say Layton looking at child porn on his computer. Cops went to investigate and questioned Layton, who gave a statement admitting to downloading porn, that there were a few thousand images on his computer, and that he used a peer-to-peer software called WinMX. He pleaded guilty to possession of child porn. At sentencing, he objected to enhancements based on the number of images, their type (i.e., masochistic), and that he "distributed" them via the WinMX software. Layton's arguments were based largely on factual issues that he alleged were left out of the investigators' report of the investigation. The district court rejected all Layton's arguments and sentenced him to 97 months, the bottom of the Guideline range.

Layton appealed his sentence, which the Fourth Circuit affirmed. After brushing aside Layton's fact-based claims on the number and types of images he possessed, the court moved on to the issue of whether his offense involved "distribution" of child porn via the file sharing WinMX software under USSG 2G2.2(b)(3). Noting that the other circuits have all concluded that use of peer-to-peer file sharing software constituted distribution, the Fourth Circuit agreed. The court concluded that "[w]hen knowingly using a file-sharing program that allows others to access child pornography files," the enhancement is appropriate. Finally, the court concluded that Layton's sentence was procedurally and substantively reasonable (without reference to the presumption of reasonableness, oddly).

Thursday, April 02, 2009

Defendant "Found" By ICE Detainer After State Arrest

US v. Sosa-Carabantes: Sosa-Carabantes was arrested on state charges in North Carolina after illegally reentering the United States. While in state custody, ICE placed a detainer on him via a local officer who had been certified to screen state arrestees for immigration violations. Sosa-Carabantes eventually was convicted and sentenced on the state charge. He was then indicted for illegal reentry in federal court, to which he pleaded guilty. At sentencing, the parties disagreed on whether Sosa-Carabantes's state conviction should figure in the calculation of his criminal history score under the Guidelines. Sosa-Carabantes argued that because he was "found" by ICE prior to the state sentence being imposed, it should not be counted. The district court disagreed and sentenced Sosa-Carabantes to 46 months in prison.

On appeal, the Fourth Circuit vacated Sosa-Carabantes's sentence. The court concluded that the crucial issue was ICE found Sosa-Carabantes. It noted that on the day Sosa-Carabantes was arrested, ICE lodged a detainer with the local authorities that identified him by name, birth date, place of birth, and A-file number. Thus, he was "found" at that point. The court turned away the Government's argument that Sosa-Carabantes could not be found before a full investigation had been completed.

Congrats to the Defender office in WDNC for the win!

Notice Required For Trespass Conviction

US v. Madrigal-Valadez: Madrigal-Valadez was convicted after a bench trial of entering a military installation, Fort Lee in Virginia, for a purpose prohibited by law. That purpose, allegedly, was being an alien in the United States illegally. The conviction arose from an incident in which Madrigal-Valadez drove a soldier back to Fort Lee. When his vehicle was stopped to be checked out prior to entry, Madrigal-Valadez could not present the proper identification needed to satisfy Fort Lee's entry requirements. He was arrested at that time.

On appeal, the Fourth Circuit reversed Madrigal-Valadez's conviction. Addressing an issue not before resolved in this circuit, the court concluded, in line with several other circuits, that before a person can be convicted of this trespass offense he must be provided notice that entry onto the military property is prohibited. Although there was a sign on the road to the gate that provided some notice (albeit in English, which Madrigal-Valadez didn't speak), it was not sufficient because once someone turned onto that road they were already on the base. Thus, Madrigal-Valadez's conviction could not stand. The court also rejected the district court's conclusion that Madrigal-Valadez's illegal immigration status could constitute a "purpose prohibited by law" for which he entered the base.

Congrats to the Defender office in the EDVa on the win!

Court Affirms Conviction, Death Sentence, Arising from Multi-State Spree

US v. Basham: Basham, along with a co-defendant, escaped from jail in Kentucky and embarked on a multi-state crime spree that stretched from Indiana to South Carolina. Along the way, the two kidnapped one man in Kentucky, who managed to escape, and two women in West Virginia and South Carolina, who were never seen again. Basham was finally apprehended in Kentucky. He was indicted in South Carolina for carjacking that resulted in death and kidnapping that resulted in death, along with other charges. After a jury trial, he was convicted of those offenses and sentenced to death.

On appeal, Basham raised six challenges to his conviction and sentence, all of which the Fourth Circuit rejected. Each involves a detailed set of facts that cannot be reported here.

First, Basham argued that the district court should have granted his motion for a new trial when it came to light that the jury foreperson had contacted various local news outlets during the trial. Relying on the evidence developed during countless hearings on the matter, the court concluded that the district court had not abused its discretion in concluding that the Government had rebutted the presumption that the juror's actions were prejudicial.

Second, Basham argued that the district court erred by removing his initially appointed counsel because they might have to be witnesses during trial (due to their role in some searches for the victim's body once Basham was arrested). The court concluded that the district court did not abuse its discretion, even though it later ruled that the testimony of those counsel was not admissible at trial.

Third, Basham argued that the district court erred by allowing the Government to introduce certain "bad act" evidence during the guilt phase. The court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.

Fourth, Basham argued that the district court erred by admitting certain evidence at the penalty phase. As with the trial evidence, the court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.

Fifth, Basham argued that the district court erred by not including the "catch all" mitigator on the verdict form for the penalty phase. The court concluded that, in light of the instructions informing the jury of its ability to rely on any mitigating factor, that the absence of the catch all from the form was not error.

Finally, the court concluded that Basham's sentence was not imposed "under the influence of passion, prejudice, or any other arbitrary factor."

New DNA Evidence Allows Plea Withdrawal

US v. Thompson-Riviere: Thompson-Riviere pleaded guilty to being an alien who illegally reentered under 8 USC 1326(b)(4) after being deported to his native Panama. He was born in the Canal Zone in 1965. After entering the plea, however, he learned from a newly discovered relative that his actual father was an American citizen. If that was the case, Thompson-Riviere would also be an American citizen and, thus, could not be an "alien" under 1326 (b)(4) and could not be guilty of the offense. He sought to withdraw his plea, but the district court refused to allow him to do so. Thompson-Riviere was sentenced to 87 months in prison.

On appeal, the Fourth Circuit reversed and remanded for further proceedings. The focus of the court's analysis was one of six factors to be considered when a defendant seeks to withdraw his guilty plea, "whether the defendant has credibly asserted legal innocence." The court concluded that the district court abused its discretion in concluding such an assertion had not been made. After a careful analysis of the relevant statutes and a Second Circuit case that dealt with the same language, the court concluded that Thompson-Riviere's evidence, if believed, would render him not guilty of the offense.

Congrats to the Defender office in the EDVa on the win!

Search, Conviction Upheld, Sentence Vacated in Drugs/Guns Case

US v. Perry: Perry was convicted on drug and gun charges following both a search of his home and a series of controlled buys. Perry unsuccessfully sought to suppress marijuana and firearms found during the search as well as incriminating statements made that day. He was convicted (but not on all counts) after a jury trial and sentenced to 230 months in prison.

On appeal, Perry made several attacks on his conviction, all of which the Fourth Circuit turned away. First, Perry argued that the marijuana and firearms found during the search of his home should have been suppressed because those objects were not specified as the targets of the warrant and the warrant was not supported by probable cause. The court concluded that there was sufficient probable cause to justify the search and that the warrant covered both "other controlled substances" and "firearms and weapons," thus the seizure was within its scope.

Second, Perry argued that statements he made while the search was ongoing should have been suppressed. Specifically, he argued that he was seized by police and not properly Mirandized when they came to his place of employment and drove him back to the house. The court affirmed the district court and concluded that it had not abused its discretion in concluding that Perry was not seized at that point and thus no Miranda warnings were needed. Third, Perry argued that there was not sufficient evidence to support a conviction under 924(c) based on firearms found in his home. The court disagreed, noting the proximity of the firearms to the marijuana in the house as well as concluding that the guns were part of Perry's plan to "protect his business dealings" along with the video surveillance system used at the house.

Finally, the court rejected Perry's arguments that the 924(c) conviction amounted to an impermissible amendment of the indictment and that the jury instructions on that count were flawed.

As to Perry's sentence, the court turned away Perry's argument that the district court erred by using acquitted conduct as a basis for determining his Guideline range. However, the court did remand Perry's sentence for reconsideration in light of Kimbrough, given that Perry unsuccessfully argued for a variance from the crack-related Guideline range based on the inequities inherent in the 100-to-1 powder/crack ratio.

Monday, March 16, 2009

Court Reverses SORNA Convictions

US v. Hatcher: This case was a consolidated appeal of several cases where the defendants were convicted of violating the Sex Offender Registration and Treatment Act ("SORNA") by travelling interstate without properly updating their registrations as sex offenders. The defendants all shared the common traits that: (a) they were convicted in state courts of sex offenses in states that require registration; (b) they served their sentences and were released from prison before SORNA was enacted; (b) the travel which took place and became the basis for the charges against them took place after SORNA was enacted, but prior to July 27, 2006. That date is crucial, because that it when the Attorney General promulgated regulations under 42 USC 16913(d) setting forth how particular groups of sex offenders could comply with SORNA. All the defendants moved to dismiss their indictments on several grounds, all of which were denied.

On appeal, the Fourth Circuit reversed,2-1, but narrowly. The court avoided issues of congressional authority, ex post facto, and due process violations by concluding that the defendants weren't covered by the terms of SORNA due to the timing of the events in their cases. Section 16913(d) delegates to the Attorney General the authority to determine how SORNA will apply to those who cannot comply with its requirements going forward, i.e., before their release from prison. The court concluded that a plain reading of that delegation showed that until the Attorney General promulgated regulations, SORNA did not apply to people like the defendants who were already out of prison. There is a circuit split on this issue, with the Eighth and Tenth Circuits finding that the language is ambiguous and interpreting SORNA to apply in such cases. The Fourth joins the Eleventh Circuit in holding otherwise.

Judge Shedd dissented, arguing that the majority read language out of context and that the plain meaning of the statute required compliance from the date of SORNA's enactment.

Congrats to the FPD office in WDVa on the win.

Divided Court Affirms Stat Max Sentence for Robbery

US v. Heath: Heath pleaded guilty to interference with commerce by robbery and being a felon in possession of a firearm. The facts underlying the conviction included the robbery of a convenience store and a burglary during which Heath stole 10 shotguns and rifles. Heath's advisory Guideline ranges were 100-125 months on the robbery and 100-120 months on the gun charge. The PSR laid out Heath's extensive criminal history, including prior convictions for stabbing someone in the chest and shooting a police officer. It also detailed his disciplinary problems during previous terms of imprisonment. The Government sought an upward departure due to the under representation of Heath's criminal history. The district court agreed and imposed a statutory maximum term of 240 months on the robbery charge, to be served concurrently with a 120-month sentence on the gun charge.

Heath appealed, arguing that his sentence was unreasonable. The Fourth Circuit, 2-1, disagreed and affirmed. The court found no procedural error in the district court's application of sentence. Emphasizing the deference which appellate courts much accord a district court's sentence in a post-Booker world, the court also concluded that the sentence was substantively reasonable. It probably didn't help that defense counsel admitted that heath "has the proverbial record as long as your arm and has acted violently, possessed weapons and, in common parlance, has been a bad actor all his life."

Judge Gregory dissented, arguing that the district court did not sufficiently explain why the statutory maximum sentence was needed in this case. It was another assertion of his "position that substantive reasonableness must encompass more than the rote recitation of 3553(a) factors that the Court has condoned in numerous post-Gall cases, and which it continues to condone today."

Monday, March 09, 2009

Alien Using Alias Not "Found" While In State Custody

US v. Uribe-Rios: Uribe-Rios was convicted of illegal reentry following deportation. After his reentry, he was arrested and convicted, under an alias, in North Carolina state court on drug charges in 2001. While serving his state sentencing, ICE lodged a detainer with NC authorities under the alias's name. Once released from state custody, Uribe-Rios admitted to ICE agents who he really was and was charged with illegal reentry. Uribe-Rios moved to dismiss the indictment, arguing that (1) he was "found" for purposes of the illegal reentry statute when arrested by NC officials, therefore the statute of limitations had run; (2) venue in the WDNC was improper because when the ICE detainer was lodged he was in custody in a facility in the EDNC; and (3) the time between his state arrest and conviction amounted unwarranted pretrial delay. The motion was denied, Uribe-Rios pleaded guilty, and was sentenced to 70 months in prison.

On appeal, the Fourth Circuit affirmed Uribe-Rios's conviction and sentence. The court rejected Uribe-Rios's argument about when he was "found," holding that being in state custody is not the same thing as being in federal custody, particularly when the person in custody is using an alias. The court also rejected the venue argument, noting that since Uribe-Rios wasn't "found" until turned over to ICE officials in the WDNC, venue was proper there. With regards to pretrial delay, the court concluded that Uribe-Rios was not prejudiced by not being able to serve his state and federal sentence concurrently, as no such right exists (it also seems to me that the proper time from which to measure "delay" would start with when he was "found" in 2006).

Monday, February 23, 2009

Applicable 3582 "Sentencing Range" Is Pre-Departure

US v. Donnell: This another retroactive crack case. To be eligible to receive a reduced sentence under 3582(c)(2), a defendant's sentence must be "based on" a sentencing range that was subsequently lowered by the Sentencing Commission. The issue in the pair of cases consolidated here was whether, in situations where the offense level but not the sentencing range changes (because the offense level is so high) and the defendants received a substantial assistance departure at sentencing, are the defendants eligible for a reduced sentence? The district courts said no.

The Fourth Circuit, again, agreed. The court rejected the defendants' argument that the proper "sentencing range" that must change is the one on which the district court relied after departing downward. Departures, the court concluded, do not result in a new sentencing range. The only sentencing ranges are those produced as the result of Guideline calculations. Therefore, regardless of the method used by the district court to arrive at its departure sentence, that does not constitute a new sentencing range that can be lowered by a future amendment to the Guidelines.

In spite of that holding, the Fourth Circuit did reverse one of the defendants' denials, as it turned out that the district court judge had worked on his original criminal case as an AUSA a dozen years ago. Both defendants also raised the informal brief argument raised in Hood (with similar results).

No 3582 Reduction in Statutory Departure Cases

US v. Hood: This is another case dealing with issues arising from the retroactive application of the amended crack Guidelines. In this case, actually two consolidated cases, the defendants were subject to mandatory minimum sentences of at least 240 months in prison, but received significantly shorter sentences (100 and 108 months) after providing substantial assistance. Each applied for a further reduction under the amended Guidelines. The district courts denied the motions, each holding that the sentences were not "based on" the changed Guideline ranges, but on the mandatory minimum sentence, which was greater than the Guideline ranges.

On appeal, the Fourth Circuit agreed. Even though the district courts referred to Guideline calculations when initially imposing sentence (as part of determining the extent of the departures), the sentences were still "based on" the mandatory minimum, as it became the Guideline approved sentence when the Guideline range was less than the statutory minimum. Furthermore, the only authority for the district courts to depart from the mandatory minimum came from statute, not the Guidelines, and made the scope of substantial assistance the only criterion in determining sentence.

Separately, both defendants argued that the Fourth Circuit's practice of sending 3582(c)(2) appeals to the "informal briefing" calendar under Local Rule 34(b) raises "serious constitutional problems" due to delay or denial of relief. Noting that the informal process may, in fact, be more streamlined (particularly for pro se appellants), the court concluded that in neither of these cases was there significant delay (Hood's case was decided less than six months after fling his notice of appeal) that raised due process concerns.

Court Affirmed "3 Strikes" Sentence

US v. Thompson: Thompson was convicted of bank robbery and sentenced to life in prison under the "three strikes" law, 18 USC 3559(c). The "strikes" in question are convictions for a "serious violent felony." If the defendant has two prior "strikes" and the current conviction is a "serious violent felony," a life sentence is mandatory. However, there is a "safety valve" provision for robbery convictions, allowing the defendant to escape a life sentence if he can prove by clear and convincing evidence that he did not use or threaten to use a dangerous weapon during the robbery.

Thompson admitted that he had two prior strikes, but argued that the current robbery conviction qualified for the safety valve. He also argued that increasing his statutory maximum sentence from 20 years to life on the basis of judicial factfinding violated his constitutional rights.

Both the district court and the Fourth Circuit rejected Thompson's arguments. On the facts of the case, the Fourth Circuit recounted the testimony of five witnesses who testified before the district court. While none of the witnesses could put a gun in Thompson's hand, two testified that he made threats involving shooting and one testified being scared for her life. Given that record, there was no clear error in the district court's determination that Thompson threatened to use a dangerous weapon. On the constitutional issue, the Fourth Circuit concluded there was no violation because the judicial factfinding at sentencing did not increase Thompson's sentence. No constitutional issue is present when the sentencing court, upon the finding of certain facts, can impose a lower sentence.

Wednesday, February 04, 2009

Non-Forcible Statutory Rape Not "Violent Felony" Under ACCA

US v. Thornton: Thornton was convicted of being a felon in possession of a firearm and body armor and sentenced under the Armed Career Criminal Act. At his initial sentencing, the district court identified four qualifying prior convictions. On remand from the Fourth Circuit, the district court concluded that two of those convictions were not "separate" offenses and that Thornton therefore had three qualifying prior convictions. One of those convictions was a Virginia conviction for "carnal knowledge of a minor" without the use of force. Thornton argued that the Virginia conviction was not a "violent felony" as defined by the Act. The district court disagreed and reimposed the ACCA sentence.

On appeal, applying the analysis from the Supreme Court's recent decision in Begay, the Fourth Circuit reversed the district court. The only issues in dispute where whether the Virginia offense was substantially similar to the offenses listed in the "violent felony" definition and whether it posed a "serious potential risk or physical injury." The Government focused on the risk inherent in the offense, which the court noted "ignores the Supreme Court's reasoning in Begay" that every offense that presents such risks meets the definition of violent felony. The court also rejected the Government's argument that the Virginia offense was similar to the enumerated offenses because it involved "constructive force," based on the inability of the minor to consent. The court noted that the ability to consent cannot change the fact that Virginia enumerates both forcible and nonforcible sexual offenses. To adopt the Government's analysis would be to render that distinction meaningless.

Congrats to the FPD office in Roanoke on the win!

Monday, February 02, 2009

NC Felony Stalking = "Crime of Violence" Under USSG 4B1.2(a)

US v. Seay: Seay was convicted of being a felon in possession of a firearm and sentenced to 96 months in prison. On appeal, he argued that the district court made two errors at sentencing and argued that his sentence was unreasonable. The Fourth Circuit concluded otherwise and affirmed.

On appeal, Seay first argued that his prior conviction for felony stalking in North Carolina was not a "crime of violence," as defined in USSG 4B1.2(a) and applied in 2K2.1. The Fourth Circuit, after first looking to the indictment to see in which of two possible ways Seay violated the statute, concluded that his conduct was "purposely carried out with the intended effect of placing a reasonably prudent person in fear of bodily harm." The statute, the court noted, requires "more than mere harassment," which is sufficient under some similar statutes in other states. Seay then argued that the district court erred in considering a risk assessment report prepared by a police officer based on an interview with Seay (done with permission of counsel). Without concluding whether there was error, the court held that any error would be harmless, as the record showed that the district court did not rely on the report in any meaningful way. Finally, Seay's argument that his sentence, an upward variance, was unreasonable was rejected by the court.

Court Affirms Conviction of Former VRS Member

US v. Vidacak: Vidacak was convicted on four counts of making false statements in immigration applications. The basis for the charges was Vidacak's failure to disclose/admit that he had been a member of the VRS (Army of the Republika Srpska) during the Bosnian Civil War. Part of the evidence against Vidacak at trial came from military documents and the testimony of two immigration officials to whom the false statements were allegedly made, via interpreters. Vidacak objected to the use of that evidence. He did so again on appeal.

The Fourth Circuit affirmed Vidacak's conviction, concluding that the district court did not abuse its discretion by admitting the challenged evidence. As to the military records, introduced into evidence by an investigator with the International Criminal Tribunal for the Former Yugoslavia at The Hague, the court concluded that they were sufficiently authenticated, even though the witness could not testify to being present when those particular documents were seized. The court also concluded that they were properly admitted as public agency records under FRE 803(8). As to the witness testimony, the court rejected Vidacak's argument that they could not testify unless they interpreters who translated at the interviews were present for cross examination.

Court Affirms Adult Prosecution of Juvenile in RICO Case

US v. Juvenile Male: This is an interlocutory appeal involving a juvenile defendant who was 17 when charged. He was later transferred to adult prosecution. The defendant appealed that transfer, on various grounds. He was initially charged by information with conspiring to participate in a racketeering enterprise, based on his alleged involvement with a gang called MS-13. After being transferred for prosecution as an adult, the defendant appealed to the Fourth Circuit, which remanded because the information failed to allege that the offense was a "crime of violence." On remand, the Government filed an amended information, alleging both that the offense was a crime of violence and also providing more detail in the charges. Two weeks later, the district court again transferred the defendant over for prosecution as an adult.

In this, the second appeal of this case, the defendant essentially made three groups of arguments: (1) that the information was constitutionally and/or otherwise insufficient; (2) that the transfer proceeding violated his Constitutional and statutory procedural rights; and (3) that the district court abused its discretion in transferring him for adult prosecution. After determining which specific issues it had jurisdiction to consider, the Fourth Circuit affirmed the actions of the district court. First, it concluded that the severity of the charges in the information demonstrated the "substantial federal interest" in prosecuting a juvenile, even if the information did not explicitly state such. Second, the court concluded that the proceedings did not violate his Sixth Amendment right to confrontation or his Fifth Amendment rights to silence and due process. Finally, the court concluded that the district court did not abuse its discretion by transferring the case for adult prosecution.