Thursday, May 27, 2010

Ex Post Facto Still Applies to Guidelines

US v. Lewis: Lewis was sitting in the driver's seat of a car parked in Richmond when three police officers approached. One of them saw an open beer bottle in the car. When Lewis rolled down the car window, officers smelled marijuana. Lewis was asked to exit the car but refused and had to be "removed . . . from the vehicle." After Lewis was in handcuffs, officers saw a pistol on the driver's side floorboard of the car. A computer check showed that Lewis was a convicted felon and he was subsequently charged with being a felon in possession of a firearm.

After an unsuccessful motion to suppress the firearm, Lewis was convicted following a jury trial. At sentencing the main issue was which version of the Guidelines applied - those in effect at the time of sentencing (2008 version) or those in effect at the time of the offense (2005 version). The older Guidelines produced a sentencing range about half that of the 2008 version. Lewis objected to the use of the 2008 Guidelines on ex post facto grounds and the district court agreed, eventually imposing a 27-month sentence.

The Government appealed the district court's Guideline decision and Lewis cross-appealed the denial of his motion to suppress. The Fourth Circuit rejected both arguments. As to the motion to suppress, the court held that the interaction with Lewis began as a consensual encounter and probable cause for a search of the car developed once the officers saw the beer bottle and smelled the marijuana.

As to the Guideline issue, the court noted a split between the Seventh and DC Circuits as to whether post-Booker advisory Guidelines could violate the ex post facto clause at all. The court sided with the DC Circuit and held that they could, given the that the Guidelines "represent the crucial 'starting point,' as well as the 'initial benchmark'" for post-Booker sentencing proceedings. The key was not whether use of the 2008 Guidelines de jure required a higher sentence, but whether it had the practical effect of creating "a significant risk of increased punishment for Lewis."

SDWV Chief Judge Goodwin, sitting by designation, dissented from the court on the Guideline issue, arguing that "the majority ignores the reality that the Guidelines lack legal force" and that it "creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as a anything more than advisory."

Congrats to FPD office in EDVA on the win!

Monday, May 17, 2010

2J1.3 Proper Guideline for False Statement In Bankruptcy Petition

US v. Boulware: In 12 years, Boulware filed for bankruptcy 16 times in three separate districts. After the NDGA barred her from filing any additional petitions for five years, Boulware filed for bankruptcy in South Carolina. In her petition, she did not mention any of the petition she had filed in the eight years prior, as required by the petition. Boulware pleaded guilty to making a fraudulent statement under penalty of perjury. At sentencing, the district court calculated her advisory Guideline range based on USSG 2J1.3 rather than the general fraud Guideline, 2B1.1. She was sentenced to 15 months in prison, the bottom of the Guideline range.

On appeal, Boulware challenged her sentence on two grounds. First, she argued that the district court used the wrong Guideline in determining her sentencing range. The Fourth Circuit disagreed. Although the statutory index in the Guideline Manual lists both 2B1.1 and 2J1.3 as applying to 18 USC 152, Boulware's offense of conviction, 2J1.3 was more applicable to her offense because it was never alleged that she engaged in a scheme to defraud anyone. Second, Boulware argued that the district court did not sufficient explain its basis for the sentence imposed. Noting that the Government conceded error, the court bypassed that question directly and instead concluded that any error was harmless, given the district court's consideration of Boulware's argument for a lower sentence and the district court's admitted consideration of all the 3553(a) factors.

Thursday, May 06, 2010

Shepard No Limit When Calculating Guidelines

US v. Dean: Dean pleaded guilty to one count of possession of cocaine with intent to distribute. The probation officer determined that Dean was a career offender based on two prior North Carolina convictions for drug offenses. Dean objected, arguing that the sentences for the two convictions were imposed on the same day and there was no evidence that the offenses were separated by an intervening arrest. Therefore, they should be treated as one prior conviction and he would not qualify as a career offender. The district court disagreed, based on bond documents and documents from the court clerk's office showing an intervening arrest. Dean was sentenced to 151 months in prison.

On appeal, Dean challenged his classification as a career offender, particularly arguing that in making its decision the district court looked beyond the material approved by Shepard v. United States to determine the character of prior convictions. Assuming that the documents at issue fell outside the bounds of Shepard, the court nevertheless rejected Dean's argument.

The court held that Shepard had no application "in contexts where there is no Sixth Amendment right to a trial by jury" and that Dean's argument "runs headlong into this principle." Furthermore, because the career offender Guideline is "no less advisory than any other portion," it did not increase Dean's statutory maximum punishment and therefore did not implicate the Sixth Amendment. Therefore, "because the Sixth Amendment does not apply to the process of calculating an advisory sentence under the Guidelines, Shepard's Sixth Amendment-based evidentiary restrictions do not apply to that process, either." In addition, under Rita and Gall it is essential for a district court to "calculate a defendant's advisory range using the fact-finding tools normally available to it." Thus, it affirmed Dean's sentence based on the findings of the district court.

Administrative Subpoena to Yahoo! Poses No Fourth Amendment Problem

US v. Bynum: Federal officers searched Bynum's home (he was living with his parents), pursuant to a warrant, following the investigation of a Yahoo! group to which Bynum had uploaded child pornography. A subsequent search of Bynum's laptop uncovered numerous pieces of child pornography, including those uploaded to the Yahoo! group. Three years later, he was charged with three counts of transporting child pornography and one count of possession. Prior to trial, Bynum unsuccessfully sought to suppress both the evidence uncovered during the search and the testimony of a Government expert on whether the images at issue involved actual children or were computer generated. He was convicted on all counts and sentenced to 192 months in prison.

On appeal, Bynum challenged both his conviction and sentence, which the Fourth Circuit affirmed. Bynum raised two Fourth Amendment challenges. First, he argued that the Government's use of administrative subpoenas - about which he had no knowledge - to identify him from his postings on the Yahoo! group violated the Fourth Amendment. The court disagreed, holding that Bynum had no expectation of privacy in that sort of information as it was stored by third parties to whom he had voluntarily conveyed it. Second, Bynum argued that the search warrant for his home was not based on sufficient probable cause due to discrepancies in the dates it alleged the files were uploaded and the passage of time (six months) between the uploads and the search. The court disagreed, holding that the difference in dates were "minor" and, even if they were not, the warrant was not so bare bones to be relied upon in good faith.

Bynum also made two evidentiary challenges to his trial. First, he argued that the Government offered insufficient evidence that he, rather than someone else in the home, actually uploaded the files and as to whether the images depicted real children. The court disagreed, applying the deferential standard applicable to sufficiency challenges, and concluded that a rational fact finder could have convicted Bynum. Second, Bynum argued that the district court erred by allowing the Government's expert on the nature of the images to testify because he did not show the reliability of his methods. The court found no error, likening the expertise at issue with expert testimony about "drug-code testimony" and sufficiently reliable.

Finally, the court rejected Bynum's argument that his middle of the Guidelines sentence was substantively unreasonable.

Two interesting side notes. First, this case marks the first time when I've seen a defendant's screen name and email address used as "aka"s in the case name. Second, for a story of a Government "expert" on child porn going all wrong (until the happy ending), see here.