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).
Monday, February 23, 2009
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.
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.
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!
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.
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.
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.
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.
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