Wednesday, February 24, 2010

Court Vacates SR Sentence for Procedural Unreasonableness

US v. Thompson: This appeal arises from a supervised release revocation. While Thompson was on supervision, a petition was filed seeking revocation based on two counts of battery on/obstruction of a police officer and possession of methamphetamine. At the revocation hearing, Thompson conceded that the Government could prove the violations by a preponderance of the evidence. The agreed to advisory Guideline range was 12 to 18 months. Thompson argued for a sentence of six months, followed by more supervised release, based on his history of employment, family obligations, and that these were his first violations while on supervised release. The Government pointed out that the incident underlying the petition involved two police officers and happened at 2:00 in the morning, but did not request a specific sentence. The district court imposed a sentence of 18 months, without explanation. Only when the issue of self reporting arose did the district court explain that while Thompson was not a flight right, he was a danger to the community.

Thompson appealed his sentence, arguing that the district court failed to adequately explain its reasons for imposing the 18-month sentence. The Fourth Circuit agreed, 2-1, and vacated the sentence. First, the court held that, in light of its recent decision in Lynn, Thompson had preserved the issue for appeal and a plainly unreasonable standard of review applied. Second, the court went on to conclude that the sentence was procedurally unreasonable because the district court, while required to make a statement of reasons for the sentence imposed, "provided no such statement here." It rejected the Government's argument that the reasoning behind the sentence was apparent from the context of the case. Third, the court concluded that the sentence was "plainly" unreasonable because the requirement that a district court provide an explanation for its sentence is "settled." Finally, the court noted that the err was not harmless and that the Government did not argue otherwise.

Judge Niemeyer dissented, arguing that the court did not afford the proper deference to the district court and that the basis for the sentence was clear from the context of the case.

Congrats to the SDWV Defender office on the win!

Thursday, February 18, 2010

Initial Career Offender Designation Does Not Always Preclude Future Reduction of Sentence

US v. Munn: In 2001, Munn was convicted of distributing more than 50 grams of crack cocaine. Although the Guidelines classified him as a career offender, the district court concluded that designation overstated Munn's criminal history and departed downwards due to that fact (Munn received an additional downward departure for substantial assistance). When the revised crack Guidelines were made retroactive, Munn filed for a reduction in his sentence under 18 USC 3582(c)(2). The district court denied the motion, concluding that because Munn was a career offender the amendments to the crack Guidelines did not change his sentencing range and he therefore was not eligible for a reduced sentence.

A divided Fourth Circuit reversed the district court on appeal. Although defendants sentenced as career offenders are not eligible for a reduction, the circumstances of this case did not fall under the prescription. Noting a split in the circuits on this issue, the court concluded that defendants designated as career offenders are still eligible for a reduced sentence when (1) the district court departs because that status overrepresents the defendant's criminal history, and (2) the extent of the departure is tied to the crack-based Guideline calculations applicable without the career offender enhancement. In doing so, the court rejected the Government's attempt to define what happened to Munn in 2001 based on Guideline definitions of "departures" that were amended afterwards. Judge Duncan dissented, arguing that the applicable "sentencing range" which must change for a defendant to be eligible for a reduced sentence is the one calculated prior to any departure, i.e., the career offender based range.

Defendant Eligible for Reduced Sentence After Prior Rule 35 Reduction

US v. Stewart: Stewart was convicted back in 2002 of conspiracy to distribute crack cocaine and sentenced to 235 months in prison. A Rule 35 motion filed afterward reduced his sentence to 187 months. When the revised crack Guidelines were made retroactive, Stewart filed for a reduction in his sentence under 18 USC 3582(c)(2). The new Guidelines reduced his sentencing range to 188 to 235 months. The district court declined to reduce Stewarts sentence any further because the 187-month sentence "remains appropriate."

Stewart appealed and the Fourth Circuit reversed the district court. Interpreting USSG 1B1.10, which applies to such proceedings, the court held that the "original sentence" to which it refers is the sentence being served at the time the defendant seeks a reduction, not necessarily the first sentence imposed. Thus, Stewart's 187-month sentence was the "original" sentence and he was eligible for a further reduction from that sentence (although the district court was not required to grant it). The court did not reach the issue of whether Stewart was entitled to a reduction, but returned the case to the district court.

Unrequested Variance to Probation Vacated

US v. Morace: Morace pleaded guilty to one count of possessing child pornography, after an investigation showed that he was sharing child porn files across an Internet peer-to-peer network. The parties agreed that the advisory Guideline range was 41 to 51 months and, at sentencing, further agreed that a sentence of 41 months in prison was appropriate. Without explanation, the district court continued the hearing. When the hearing resumed two months later, the district court varied from the Guidelines and imposed a sentence of five years probation. The Government objected and appealed.

On appeal, the Fourth Circuit vacated Morace's sentence. Although the Government conceded that some variance might be warranted in this case, and that a variance to probation could be appropriate in some child porn cases, it nonetheless argued that the variance in this case was too great. Morace, the court concluded, was a "mine-run" defendant, as demonstrated by his agreement that a 41-month sentence was appropriate and the district court's "commonplace reasons" for imposing a sentence of probation. Without request, the district court had "imposed the most extreme downward variance possible." Thus, the court vacated Morace's sentence and remanded for further proceedings, without concluding that a new sentence of probation would necessarily be unreasonable.

Conviction Affirmed, Sentence Vacated, In Crack Possession Case

US v. Herder: Herder was confronted in a parking lot by an officer who had followed his vehicle from a "park and ride" commuter lot known for drug activity. Herder's driving was suspicious because it was "overcautious" - "keeping under the speed limit and signalling well in advance of turns." Herder consented to a search of his car, which uncovered 21 bags of crack cocaine and some marijuana in false bottom containers. Herder was in possession of more than $1000 in cash. He was charged with possession of marijuana and more than five grams of crack, both with intent to distribute. He was convicted on both counts, although the jury found only 3.8 grams of crack were involved, at trial and sentenced to 41 months prison and the forfeiture of the cash in his possession at the time of his arrest.

On appeal, Herder challenged his convictions, sentence, and order of forfeiture. The Fourth Circuit affirmed his convictions and order of forfeiture, while vacating the sentence. As to the convictions, Herder made two arguments. First, he argued that the evidence was not sufficient to establish that he knowingly possessed the drugs found in his car. At trial, Herder presented testimony from his fiance that the car was used to make deliveries for their T-shirt business and, as a result, collects a lot of "junk" and that he had made such a delivery shortly before the search. The court rejected that argument, calling the evidence "more than ample" to sustain the convictions. Second, Herder argued that the district court erred by failing to give his requested instruction with regards to possession, particularly that the presence of drugs in a car driven by the defendant was not alone sufficient to establish possession. The court concluded that the district court's charge to the jury "substantially covered" Herder's request.

As to his sentence, Herder argued it was procedurally unreasonable because the district court did not understand its ability to vary from the Guidelines at sentencing. The court agreed that the district court held that mistaken belief and, further, had imposed sentence before Herder had a chance to argue the matter. Finally, as to the forfeiture, the court formally adopted the "substantial connection" standard test to determine whether property is subject to forfeiture and concluded that the evidence was sufficient to demonstrate that connection in this case.

Judge Niemeyer dissented on the sentencing issue, arguing that the record did not show that the district court failed to consider or did not know it had the authority to deviate from the Guideline range.

Congrats to the EDVA Defender office on the win!

Court Affirms Loss Calculations Based on Sampled Data

US v. Mehta: Mehta was a tax preparer in Maryland who would prepare tax returns for clients that contained phantom deductions beyond those which the clients related to him. He would then submit the returns electronically to the IRS and, via BankOne, participate in a program whereby the bank cut a check for the taxpayer, with the bank later taking possession of the actual refund from the IRS. Mehta was convicted at trial of multiple counts of aiding and abetting the preparation of false tax returns and wire fraud. He was sentenced to 48 months in prison.

On appeal, Mehta challenged both his wire fraud convictions and his sentence. The Fourth Circuit affirmed on all counts. First, Mehta argued that the district court should have granted his motion for acquittal as to the wire fraud counts both because the evidence was insufficient to support convictions and that there was a variance between the indictment and the proof at trial. After reviewing the evidence, the court concluded that it was sufficient to sustain the convictions. As for the variance, the court concluded that the discrepancy as to which particular states the defrauded wires travelled through was not prejudicial to Mehta.

The court was more divided, in reasoning but not outcome, with regards to the proper calculation of Mehta's advisory Guideline range. At sentencing, the district court based Mehta's tax loss amount (which drove the Guideline range) on an IRS audit of only a portion of the total number of returns at issue. Specifically, the loss was based on the amount of additional tax owed that the taxpayers involved agreed to pay to the IRS. First, Mehta argued that district court should not have relied on those agreements by taxpayers to determine the amount of loss. The court concluded that those agreements were sufficient evidence to use in the loss calculation. Second, Mehta argued that the district court erred by taking the average tax liability from the IRS sample and multiplying it by the total number of fraudulent returns in order to determine loss. The court agreed, but found the error to be harmless, as the record still supported a loss amount sufficient to trigger the same advisory Guideline range. Judge Shedd concurred as to the result, but argued that there was no error.

Juvenile Priors Without Jury Right Can Trigger ACCA

US v. Wright: Wright got involved in a fight at a nightclub in South Carolina, which led the crowd inside to pour out into the parking lot. Wright grabbed an AK-47 from a car and "sprayed 22 rounds" into the parking lot, wounding one person and killing another (who was asleep in his car at the time). Wright was convicted of being a felon in possession of a firearm, determined to be an Armed Career Criminal, and sentenced to life in prison.

On appeal, Wright raised several challenges to his sentence, all of which the Fourth Circuit rejected. First, Wright argued that prior juvenile convictions that were used to trigger the ACCA enhancement violated Apprendi because the juvenile proceedings did not involve the right to a jury trial. Because a jury trial is not Constitutionally required in juvenile proceedings, there was no error in using the results of those proceedings to increase a later sentence. Second, Wright argued that his prior juvenile convictions, in which he committed burglaries during which he stole firearms, did not involve "the use or carrying of a firearm" - as required to be ACCA predicates - because the act of burglary was complete before he possessed the firearms. The court disagreed, concluding that such burglaries "involve" the firearms. Finally, Wright argued that district court erred by applying the cross-reference to the first degree murder Guideline. The court concluded that Wright acted "willfully, deliberately, maliciously, and with premeditation" and thus the cross-reference applied. Judge Gregory dissented on the last point, arguing that there was no evidence that Wright "had a premeditated design to effect the death of any person."

Court Sets Standard for Preservation of Procedural Sentencing Error

US v. Lynn: This is actually three apparently unrelated sentencing appeals (one involves codefendants, however) collected in one place to resolve one issue - the proper standard of review when a party argues on appeal that the district court committed procedural error in selecting the sentence it imposed. The Fourth Circuit concluded that the correct standard is abuse of discretion (aka "reasonableness"), followed by an examination of harmless error if the district court did abuse its discretion. That is if the party arguing on appeal properly preserved the issue in the first place, else they are stuck with plain error review. Reviewing FRCrPr 52, the court concluded that the appealing party does not have to make a post-imposition objection in order to preserve the issue on appeal. All that is needed is for the party to seek a particular ruling from the district court (i.e., a particular sentence based on the 3553(a) factors) and have the court rejected that plea. As for the individual cases:
  • US v. Peake: Peake, the court concluded, did not adequately preserve the issue and was subject to plain error review. After the district court calculated the Guideline range, Peake's counsel did not argue for a specific sentence and admitted that the PSR fairly set out the circumstances of Peake's offense (felon in possession) and background. The district court imposed a sentence at the bottom of the Guideline range. There was no error, or at least none that affected Peake's substantial rights. Sentence affirmed.
  • US v. Tucker: The main issue at Tucker's sentencing (also a felon in possession - shot himself in the leg) was the district court's desire to depart upward to the statutory maximum because the Guidelines underrepresented Tucker's criminal history (the district court had sustained Tucker's objection to being classified as a career offender). Tucker argued against the departure, noting the three-year gap between the incident and the federal charge, during which time he had done nothing to get himself into trouble. The district court, without addressing that argument, departed and imposed a sentence of 101 months. The Fourth Circuit concluded that Tucker had preserved the procedural reasonableness issue for appeal, found that the district court abused its discretion, and could not conclude that the error was harmless. Sentence vacated.
  • US v. Lynn: Lynn and his codefendant, Rhodes, were convicted of conspiracy to distribute and possession to distribute more than 100 grams of heroin. At sentencing, Lynn was classified as a career offender. He argued for a downward variance, on grounds that he was "at the very margins of career offender status." Without addressing his claims, the district court imposed a within the Guideline sentence. The Fourth Circuit concluded that Lynn properly preserved the procedural reasonableness issue, that the district court abused its discretion, and that the Government could not show that the error was harmless. Rhodes, apparently, did not challenge his sentence (both challenged the denial of motions to suppress, those arguments being rejected by the court in a footnote).

Monday, February 08, 2010

Court Declines to Find Exception to Auto Exception

US v. Kelly: Kelly was the subject of an investigation into drug dealing in the Hampton Roads, Virginia, area. Officers obtained a warrant to search Kelly's home, although not any vehicles that were there. When police executed the search warrant, a green Lexus that was known to be Kelly's was one of three vehicles outside the house. When Kelly was told that a drug dog was on its way, he acknowledge that there were drugs in one or more of the vehicles, but did not specify which ones. The drug dog alerted at the Lexus's driver's door, but a search of the passenger compartment revealed nothing. Officers then searched the trunk, in which they found cocaine and ecstasy. Kelly sought to suppress that evidence, but the district court concluded that there was probable cause to believe there were drugs in the Lexus, including in the trunk, and that no warrant was required under the automobile exception. Kelly was convicted by a jury of conspiracy and substantive drug charges.

On appeal, Kelly advanced three arguments to overturn his convictions, all of which the Fourth Circuit rejected. First, the court concluded that the district court properly denied Kelly's motion to suppress. The automobile exception to the warrant requirement applied, even though the Lexus was under police control and there was no danger of evidence being removed from it prior to a search. Furthermore, there was probable cause to search the entirety of the car. Second, the court rejected Kelly's arguments that the prosecutor had engaged in misconduct by referring to two earlier arrests during trial but offering evidence only relating to one of them and, thus, coerced Kelly to testify on his own behalf. Finally, the court affirmed that the evidence was sufficient to sustain Kelly's convictions.

Decision to Agree to Mistrial Is Counsel's to Make, Not Defendant's

US v. Chapman: In this 2255 action, Chapman challenged the effectiveness of his counsel at trial. In particular, Chapman argued that when the Government went beyond the scope of certain evidentiary rulings with relation to FRE 404(b) evidence, his counsel was ineffective for moving only for a mistrial with prejudice, which the district court denied. The district court "offered" to grant a mistrial without prejudice, but trial counsel declined the invitation. Chapman argued, unsuccessfully before the district court, that counsel's failure to accept the offer when Chapman told him to do so was ineffective assistance.

On appeal, the Fourth Circuit affirmed the district court's conclusion that Chapman's counsel was not ineffective. The court agreed with the Government that decisions about whether to seek a mistrial, and on what grounds, are tactical decisions that belong to counsel, not the defendant.

Judge Michael concurred in the judgment, but wrote separately and argued that the court should have resolved the appeal on the narrow facts of the case, rather than announcing a broader rule of general application.

Appeal Waiver Not Valid, Defendant Loses Anyway

US v. Manigan: Manigan pleaded guilty to three counts of possession of cocaine with intent to distribute, pursuant to a plea agreement in which he waive his right to all appeals and 2255 claims (save ineffective assistance of counsel and prosecutorial misconduct) - the Government waived nothing. Nonetheless, the district court at the plea hearing told Manigan that after sentencing "you . . . may have a right to appeal this sentence." At sentencing, the parties argued about whether Manigan possessed two firearms that resulted in an enhancement under USSG 2D1.1(b)(1). The district court applied the enhancement, which nevertheless did not figure in the final sentence as Manigan was a career offender. He was sentenced to 169 months in prison.

On appeal, Manigan sought to challenge the district court's use of the gun enhancement. The Government argued that Manigan waived his right to appeal that issue based on the appeal waiver in the written plea agreement. Although the language of the agreement was clear, the Fourth Circuit held that it was not applicable to Manigan because the district court incorrectly informed him of a right to appeal following sentencing. Furthermore, there was no mention made of the appeal waiver during Manigan's Rule 11 hearing. Moving on to Manigan's substantive argument, the district court affirmed the district court. Noting that the issue was not moot in light of the career offender designation because the gun enhancement had consequences in other areas (i.e., with BoP), the court held that the guns were possessed in connection with his offenses.

Judge Michael dissented on the gun enhancement issue. He argued that the majority opinion stretched the reach of the enhancement far beyond the language of the Guidelines or prior caselaw required. Because the facts were largely untested, the majority erred by using a clear error standard or review, instead of a de novo standard. He also argued that the majority approach "appears to be a green light to apply the . . . enhancement to every drug deal with a handgun in his residence" and will "practically eliminate any limitation on the scope of the provision."

13 B&Es at Same Location Trigger ACCA

US v. Carr: Carr pleaded guilty to being a felon in possession of a firearm. He had 13 prior felony convictions in North Carolina for breaking or entering, leading the district court to determine he qualified as an Armed Career Criminal. Carr agreed that he had the 13 convictions, but argued that they did not occur "on occasions different from one another." Specifically, the 13 convictions stemmed from 13 indictments for breaking into 13 different storage units at a self-store complex. The district court rejected that argument and sentenced Carr to 262 months in prison.

On appeal, the Fourth Circuit rejected Carr's argument as well and affirmed his sentence. After surveying prior cases addressing the issue of whether ACCA predicates were part of "separate and distinct criminal episodes," the court concluded that Carr's prior offenses, although all taking place in one general location, were separate episodes. Noting the disjunctive nature of the charges (breaking or entering), the court concluded that each offense was complete when each unit was opened, regardless of whether Carr went back and forth between the units once they were open.

Lawfully Obtained ID Info Can Be Used Unlawfully

US v. Abdelshafi: Abdelshafi owned and ran a medical transport (aka ambulance) service that contracted with Medicaid to transport patients in Virginia. As part of the routine transportations that Abdelshafi's company would do, it would collect bits of personal identifying information such as birth dates and Medicaid IDs. Eventually, investigators discovered that Abdelshafi's company was overcharging for some transports and charging for transports that never took place. He was charged with (among other things) two counts of aggravated identity theft. Abdelshafi moved for an acquittal on those counts, arguing that he did not possess the patients' identifying information "without lawful authority" since it had been gained during the normal course of lawful business. The district court disagreed, denied the motion, and convicted Abdelshafi. He was sentenced to 62 months in prison.

On appeal, Abdelshafi challenged his conviction and sentence, both of which the Fourth Circuit affirmed. As to the conviction, Abdelshafi renewed his argument that he did not possess identifying information "without lawful authority." The court disagreed, holding that information originally obtained legitimately cane become used "without lawful authority" once it is used beyond the scope which is proper. As to his sentence, Abdelshafi argued that the district court erred by imposing a two-level enhancement for abuse of a position of trust. The court disagreed, concluding that Abdelshafi enjoyed a position of trust "in regard to patients' identifying information" comparable to that of a hospital orderly, an example found in the commentary to USSG 3B1.3.