Thursday, December 15, 2011

Terry-like Scenario Produces Terry-like Result

US v. Glover: Glover was convicted of being a felon in possession of a firearm after being subject to a stop-and-frisk in a parking lot in the "wee hours of the morning." Two officers on patrol drove to a 24-hour gas station which both knew had been the site of prior armed robberies (one of the officers had personally investigated one of the robberies). Only two people were present - the station attendant, who was outside checking the tank levels, and Glover, who was standing 45-60 feet away in an area that was not captured by the station's security cameras. Officers saw Glover glance around a corner and pull his head back, as if trying to hide. When they drove out of the lot, he watched them. The officers were concerned and decided they should talk to Glover. By the time they circled back around to the station, Glover was "standing, basically overtop" of the attendant, who appeared unaware of his presence. The officers walked over to Glover and one of the officer's patted him down, uncovering a gun in his right pants pocket. The district court refused to suppress the gun and Glover was sentenced to 60 months in prison.

On appeal, Glover argued that the officers lacked reasonable suspicion upon which to base a legitimate stop-and-frisk. The Fourth Circuit disagreed and affirmed his conviction. The court held that the actions of the officers in this case were essentially the same as in Terry, undertaken for the same reason. Based on the totality of the circumstances the officers had reasonable suspicion to believe an armed robbery might be in the offing. Among the factors supporting that conclusion was the high-crime nature of the area (not just in general, but the gas station's history itself), the time of night, lack of others around, and the vulnerable position of the attendant, as well as Glover's actions themselves.

Command While Using Gun Supports "Physical Restraint" Enhancement

US v. Dimache: Dimache pleaded guilty to armed bank robbery. He and an accomplice robbed a bank in South Carolina, during which Dimache brandished a gun, using it first to direct a teller to give money to his accomplice and then to force other tellers to get down on the floor. In the PSR, the probation officer recommended a two-level enhancement under USSG 2B3.1(b)(4)(B) for physical restraint of a person to facilitate the offense. In this case, the basis for the enhancement was Dimache using the gun as a threat to force the tellers to the ground. Dimache objected, but the district court imposed the enhancement. The district court sentenced him to 90 months in prison.

On appeal, Dimache argued that the two-level enhancement should not apply in his case because merely pointing a gun at some one and ordering them to move does not constitute "physical restraint." The court rejected that argument. It noted that the "essential nature" of the conduct justifying the enhancement is the "deprivation of a person's 'freedom of physical movement.'" While it was "not an easy question to answer" whether the presence of a gun can lead to physical restraint, the court has previously read the enhancement to apply broadly. Therefore, the use of the gun to restrict the tellers' movements supported imposition of the enhancement.

Child Pornography Warrant Based on Observations of Other Officers Saved by Good Faith

US v. Wellman: Wellman was convicted at trial of possessing child pornography, possessing an obscene image depicting minors, and doing so while being required to register as a sex offender, an offense which requires a 10-year mandatory minimum sentence to run consecutive to any other sentence imposed. The convictions were based on evidence obtained from Wellman's home pursuant to a search warrant. The warrant in turn was based primarily on assertions from a child pornography task force in Wyoming that known images of child pornography was present on Wellman's computer. Prior to trial, Wellman sought to suppress the evidence found pursuant to the warrant, arguing that the factual basis for the warrant was not sufficient to demonstrate probable cause because neither the images of alleged child pornography were attached to the warrant application, nor was there any description of the images in the application. The district court denied the motion. After his convictions, Wellman was sentenced to 300 months in prison, including the 10-year consecutive mandatory minimum.

On appeal, Wellman challenged his convictions as well as his sentence. First, he renewed his argument that there was insufficient evidence to support the probable cause needed to issue the search warrant and that in issuing the warrant the issuing judge simply rubber stamped the requesting officer's conclusions. The court rejected that argument, but did so by finding the Leon good-faith exception applied (assuming arguendo that the warrant was invalid) and that the issuing judge did not act as a rubber stamp, nor was the application so lacking in indicia of probable cause to render reliance on it unreasonable. Second, Wellman argued that the district court erred by not instructing the jury that to convict on the obscenity charge he must have known that the image was obscene. Relying on the Supreme Court's 1974 decision in Hamling, the court held that knowledge of such a legal conclusion is not necessary to sustain the conviction. Finally, Wellman argued that the 10-year consecutive mandatory minimum sentence was cruel and unusual punishment, given his age and likelihood that the sentence imposed was actually a life sentence. The court rejected that argument, concluding that the sentence was not a "disproportionate sentence of constitutional magnitude," as it was based largely on Wellman's prior record.

Convictions Affirmed for Drug Conspiracy (Barely), Scheme to Kill Witness

US v. Hackley: Hackley sold crack cocaine to Jackson, whom had known Hackley since 1992 and acted as a confidential informant almost as long. According to Jackson, Hackley told him he "just got back from Maryland" with some crack. Jackson then contacted local law enforcement, who arranged several controlled buys of crack from Hackley. As a result, he was charged with conspiracy to distribute crack and six counts of distribution. While in jail, Hackley told a fellow inmate, Johnson (among others), that he did not want Jackson showing up in court and that he needed to be killed. He also told Johnson about a pistol he owned. Johnson went to the authorities, after which an ATF agent posed as another inmate. The agent, essentially, became the hit man Hackley sought to hire to kill Jackson. In fact, Jackson's death was staged, complete with a fake news story, which made Hackley "ecstatic." As a result, Hackley was also charged with murder for hire, solicitation of murder, obstruction of justice, and being a felon in possession of a firearm.

After a plea agreement broke down, Hackley moved that he be appointed new counsel. The district court declined and the case went to trial. The district court denied Hackley's request for an entrapment instruction on the murder for hire count. He was convicted on all counts and sentenced to 306 months in prison.

On appeal, Hackley challenged both his convictions and sentence, all of which the Fourth Circuit upheld. First, Hackley argued that there was insufficient evidence to sustain the convictions for conspiracy to distribute crack, solicitation to murder, and being a felon in possession of a firearm. The evidence on the conspiracy count, the court held, "represents the very boundary of what passes for substantial evidence of a conspiracy." However, though the evidence was sparse, it was sufficient to "support an inference that Hackley had a continuous relationship with Maryland suppliers." The evidence was more abundant on the solicitation to murder count, although the communications at issue went to Hackley's "many girlfriends" rather than the ultimate "assassin." There was also sufficient evidence that Hackley possessed the firearm stored in the home of one of those many girlfriends. Second, Hackley argued that the district court should have given an entrapment instruction because the jury could have concluded that Johnson, rather than Hackley, began the conversation about killing Jackson. The court rejected that argument, noting that because Johnson was not a agent of the police at that time, it didn't matter who started the conversation. Third, Hackley argued that the felon in possession charge should have been severed from the rest of the counts. The court disagreed, noting that the gun at issue was offered as a potential tool for dealing with Jackson. Fourth, Hackley argued that the district court erred by denying his request for new counsel a week before the trial was to begin. The court rejected that argument, holding that Hackley never expressed concern about counsel's inadequacy, merely her "style," which was not a sufficient basis for granting the request. Finally, the court affirmed Hackley's sentence, holding that the district court was aware of its ability to impose a below-the-Guidelines sentence and exercised its discretion not to do so.

Detention of Defendant Away from Home Being Searched OK'd

US v. Montieth: After receiving a tip from an ATF agent that Montieth was selling marijuana, local law enforcement (based on the tip and evidence recovered from Montieth's trash) obtained a warrant to search his home. Rather than go straight to the home, they waited until Montieth drove away from the home, stopped and detained him (officers smelled marijuana), and secured his cooperation in executing the search warrant without the need for a "dynamic entry" (I think that's cop speak for "breaking down the front door with the SWAT team"). Once Montieth's wife and children left the home, officers searched the home and, with Montieth's assistance, recovered marijuana and firearms. As a result, Montieth was charged with several offenses, including carrying a firearm in connection with a drug trafficking offense. Montieth moved to suppress both the physical evidence recovered from his home, as well as his statements made during the search. The district court denied the motion and Montieth entered a conditional plea to the gun charge.

On appeal, Montieth reiterated his arguments about the suppression of the physical evidence and his statements. The Fourth Circuit disagreed with those arguments and affirmed. First, the court concluded that the warrant itself was based on sufficient evidence to show probable cause, particularly the evidence recovered from the trash. The warrant also particularly described the items to be seized. Second, the court concluded that the fact a warrant had been obtained justified a Terry stop of Montieth's car, particularly because the warrant allowed the search of Montieth himself, not just his home. It is not necessary for that detention to take place in the location being searched. Third, the court concluded that Montieth's statement during the traffic stop that there was marijuana in the home was not made pursuant to any questioning by the officers and thus there had been no Miranda violation there. Finally, with regards to the search itself, the court held that the statements Montieth made during the search were made following an oral waiver of his Miranda rights and the warrant itself had been validly issued.

Convictions, Sentence Affirmed In "Pump & Dump" Stock Case

US v. Offill: Offill, an attorney and securities specialist, was contacted by another attorney , Stocker, in 2004 about how to issue stock without the need to register it. The two eventually engaged in a "pump and dump" scheme in which they inflated the value of stock they owned before selling it to members of the public at a great profit. Offill was charged with one count of conspiring to artificially manipulate stock prices and nine counts of wire fraud. After a jury trial, he was convicted on all counts. At sentencing, the district court imposed a sentence of 96 months in prison, well below the advisory Guideline range of 168 to 210 months.

Offill appealed, raising issues related to both his convictions and his sentence, all of which the Fourth Circuit rejected. As to the trial issues, the court first rejected Offill's argument that two of the Government's expert witnesses improperly addressed the ultimate issue in the case, making conclusions reserved for the jury. Although the testimony involved discussion of legal issues that were ultimately covered by the judge's instructions to the jury, the court found no abuse of discretion in allowing the testimony. The court also concluded that the district court did not abuse its discretion by allowing lay expert testimony from two coconsiprators (including Stocker) about their own activity. The court also found no error in the admission of evidence of Offill's subsequent acts or the failure of the district court to give a multiple conspiracies instruction. As to Offill's sentence, the court first concluded that there was sufficient evidence to support the district court's decision that Offill should not have received a Guideline reduction for a minor role in the offense. The court also rejected the argument that Offill's sentence was unreasonable because it was longer than his codefendants (who pleaded guilty and cooperated with the Government). Finally, the court held that the district court properly calculated the loss attributed to Offill.

As-Applied Challenge to 922(g)(9) Shot Down

US v. Staten: Staten was charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. He filed a motion to dismiss, arguing that 922(g)(9) violated his Second Amendment rights. The district court denied the motion and Staten entered a conditional guilty plea preserving the Second Amendment issue.

Between conviction and appeal, the Fourth Circuit issued its published decision in Chester (the second opinion), which laid out a two-step process for evaluating Second Amendment claims (at least in 922(g)(9) cases), but ultimately concluded that the Government hadn't met its burden of proving there was a "reasonable fit" between 922(g)(9) and a substantial governmental objective and remanded for further proceedings. In Staten's case, the Government did not provide the kind of evidence it has on remand in Chester, but did cite numerous social science studies linking domestic violence and firearms.

Ultimately, the Fourth Circuit affirmed the denial of Staten's motion to dismiss because the Government's citations, while not the best way of proving a reasonable fit, did do the job. They were all (but one) available publicly and could have been countered by Staten. What objections he did raise were easily dismissed. In making its ruling, the court repeatedly noted that Staten's challenge on appeal was an as-applied, rather than facial, challenge, so it's unclear what sort of impact it might have on other cases (like Chester itself on remand).

Monday, December 05, 2011

Criminal forfeiture of assets affirmed

US v. Martin, et al.: The Appellants in this case challenged the district court’s criminal forfeiture orders concerning the seizure of property purportedly connected to their drug crimes. The government initially moved civilly to forfeit the property, and following the filing of the fourth superseding indictment, filed criminal forfeiture warrants for the same property.

Appellant Martin argued that the government violated the pre-trial civil forfeiture statute, which renders the later criminal forfeiture invalid. Collectively, the appellants argued that the district court lacked jurisdiction to order the criminal forfeiture (which occurred after their sentences and entry of judgments against them).

With respect to Appellant Martin’s issue, the Fourth Circuit stated that even assuming the government did seize the property at issue illegally (which it declined to decide), the illegal seizure of property does not immunize that property from forfeiture as long as the government can sustain the claim with independent evidence, citing to a 2007 First Circuit case, United States v. Pierre, for support. Here, Martin did not challenge the sufficiency of the evidence produced by the government, independent of the property, to justify the forfeiture; so, the Fourth Circuit rejected this challenge.

The jurisdiction claim failed because of a Supreme Court decision, Dolan v. United States, which guided the Fourth Circuit here to held that missing the deadline under Rule of Criminal Procedure 32.2 for finalizing forfeiture orders at the time of sentencing, does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so long as the sentencing court has clarified prior to sentencing that it intends to order the forfeiture. In Dolan, the Supreme Court provided an analytical structure for examining a statute that sets forth a deadline without specifying a consequence for missing the deadline (e.g., a defendant is ordered to pay restitution to the victim of the crime, and the statute says that the court shall set a date for the determination of the victim’s losses, not to exceed 90 days after sentencing).

The Fourth Circuit considered the kind of deadline in this forfeiture case as a "time-related directive," or the most forgiving type of deadline. This type of deadline is "legally enforceable but does not deprive a judge or other public official of the power to take action to which the deadline applies if the deadline is missed," citing Dolan. The deadline was held not to bar the district court’s exercise of jurisdiction, stating that the purpose of the deadline was not to create a coercive sanction, but to ensure the defendant’s notice of any and all aspects of sentencing, including forfeiture. There was no dispute here that appellants had notice prior to sentencing that a forfeiture was pending at their sentencing.

The dissent argued that the majority’s holding will allow courts to subject defendants to the punishment of forfeiture without discussing it at sentencing or ordering it in judgment, if the defendant has notice that such punishment may be ordered. Also, Judge Gregory argued that the majority took Dolan out of context and expanded the breadth of its holding into a qualitatively separate area of the law. Dolan, the dissent stated, was limited to restitution cases in which the amount of restitution was not yet determined; moreover, the restitution and forfeiture statutory schemes have differing purposes and structures.

Friday, December 02, 2011

Common sense in ACCA cases?

US v. John Joel Foster: In an unfortunate twist for the appellant, the Fourth Circuit vacated Mr. Foster’s twenty-four month sentence for being a felon in possession of a firearm, and remanded the case for re-sentencing under the Armed Career Criminal Act, for the mandatory minimum fifteen-year sentence.

At issue in this appeal was whether Mr. Foster’s prior state convictions for breaking and entering under Virginia’s non-generic burglary statute qualified as violent felonies under ACCA. The Fourth Circuit found that the language of the indictments for Foster’s three prior convictions for breaking and entering mandated that the prior convictions were based on entries into buildings or structures, to wit, the "Sunrise-Sunset Market," the "blacksmith shop," and the "Corner Market," and as such, the convictions qualified as predicate violent felonies of the ACCA.

The concurrence and dissent gain purchase from Judge Agee's statement that "courts are, of course, permitted to draw reasonable inferences from the underlying state documents." The dissent finds that the government "must show more than the possibility, based solely on common sense and logic, that Defendant's prior convictions may qualify under ACCA." The concurrence chides the dissent that "our common sense neither is an outside evidentiary source that is prohibited by Shepard nor is our use of it going to create a trial within a trial in ACCA cases."

Tuesday, November 29, 2011

Effective assistance and CBLA evidence

US v. Higgs: The Fourth Circuit affirmed the district court’s denial of Higgs’ 28 U.S.C. § 2255 motion, having granted a certificate of appealability to consider his due process and ineffective assistance arguments predicated on the introduction of Comparative Bullet Lead Analysis ("CBLA") evidence.

Higgs had been convicted in 2000 in federal district court for his involvement in the abduction and murders of three women at the Patuxent National Wildlife Refuge; Higgs received nine death sentences, which the Fourth Circuit affirmed. Higgs filed motions for a new trial, which the district court denied and the Fourth Circuit affirmed. The government presented the contested CBLA evidence along with other forensic evidence of "rifling" at Higgs’ trial. Prior to Higgs’ attempt at attacking his convictions collaterally, the FBI and others began questioning the significance of bullet lead matching, which resulted in a study conducted by the National Research Council in 2004. Upon the findings of this study, the FBI Laboratory announced that it would no longer perform CBLA, whereas it had been widely used in courts at the time of Higgs’s trial and until at least 2003. Higgs claimed that a Brady violation occurred when the government failed to produce the internal reports that he believed could have impeached the forensic expert’s testimony on CBLA; he also argued that trial counsel were ineffective for failing to present any available expert testimony to challenge the CBLA evidence, and post-trial counsel were also ineffective because they failed to file a motion for a new trial on the basis of the studies on CBLA.

The Fourth Circuit concluded that there was no reasonable probability that the district court would have excluded the CBLA testimony at Higgs’ trial if his attorneys had challenged it, or that the penalty phase of the trial would have ended differently if the CBLA evidence had been excluded or subject to additional cross-examination. Additionally, criticisms of CBLA appear to have been available to others, not just the within the government, so the Fourth Circuit determined that counsel had not been constitutionally ineffective for failing to file a motion under Rule 33 for a new trial because of the post-trial studies.

Monday, November 28, 2011

Habeas relief awarded to remedy 29 years of injustice

Elmore v. Ozmint: The Fourth Circuit awarded Edward Elmore habeas relief on his ineffective assistance of counsel claims, arising from his original 1982 murder conviction. The Fourth Circuit, in its 194-page tome, found that Elmore's attorneys blindly accepted South Carolina's forensic evidence against their client. The Fourth Circuit also noted that there were grave concerns as to whether Elmore actually committed the murder.

"If our opinion embarrasses anyone, so be it. It would be entirely inappropriate for us to pull our punches or take any such consideration into account. There are far greater interests at stake: the fairness of our judicial system and, more specifically, Elmore's Sixth Amendment right to the effective assistance of counsel."

Elmore will be free unless the State of South Carolina decides to prosecute him a fourth time for the murder of Dorothy Edwards. The State has not yet announced its decision, though it must do so within a reasonable time.

Wednesday, November 16, 2011

Reasonable suspicion not established for patdown

US v. Powell: The Fourth Circuit vacated Powell’s conviction for simple possession of crack, holding that the government did not present a set of facts which sufficiently establish reasonable suspicion.

The Fourth Circuit, without hesitation, concluded that the government failed to establish that the officers in traffic stop here had reasonable suspicion that Powell was armed and dangerous when they began the patdown in question. First, the context of the stop provided no basis for the officers to reasonably suspect that Powell might have been armed and dangerous. In fact, he was eating at the time the traffic stop began, and he and one of the police officers discussed their mutual appreciation for fish sandwiches. The traffic stop, prior to Powell’s removal from the back seat was "remarkable" for its "amicable, cooperative, and relatively safe nature."

The government urged two factors weighed in support of their reasonable suspicion argument: 1) caution data, or a person’s possible involvement in prior criminal activity; and 2) Powell’s purported deliberate misrepresentation of his driver’s license. While a prior criminal record can be relevant in establishing reasonable suspicion, the Fourth Circuit explained, in most instances, standing alone it is not enough to create reasonable suspicion. The caution data here (a prior armed robbery) was the sole basis for the police officer’s pat down of Powell, and the Fourth Circuit found that it certainly did not justify a reasonable suspicion that Powell was armed and dangerous on the night in question. And, while a false statement can be considered in establishing reasonable suspicion, Powell’s purported misrepresentation, did not "remotely" tend to suggest that he was armed and dangerous.

In dissent, Justice King stated that he found an ample basis here for suspecting that Powell may have been armed and dangerous, and that the risk of dismissing a "common sense" suspicion that a suspect may be armed is "inherently perilous to arresting officers."

Tuesday, November 15, 2011

Matters unrelated to justification for traffic stop

US v. Guijon-Ortiz: Saul Guijon-Ortiz took issue with his conviction for illegal reentry after deportation; the Fourth Circuit affirmed. Guijon-Ortiz appealed the denial of his motion to suppress, in which he argued that during a traffic stop of a vehicle wherein he was a passenger, Guijon-Ortiz provided a fake ID, which the police officer discovered by calling ICE while the traffic stop was ongoing. Guijon-Ortiz argued that because of the length of time it took for the officer to contact ICE, he was subjected to an unconstitutional seizure. Guijon-Ortiz’s fingerprints were obtained when he was subsequently taken to an ICE office and questioned. The Fourth Circuit concluded that under a totality of the circumstances, the traffic stop was not unreasonably prolonged by the officer’s call to ICE.

Guijon-Ortiz’s appeal issue is this: once the officer learned that no one in the stopped vehicle had outstanding warrants, and since Guijon-Ortiz had given the officer an LPR card as identification, was the officer then permitted to call ICE to verify the validity of the LPR card? Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?

The Fourth Circuit relies on its decision from earlier this year, United States v. Digiovanni, in which it held that a stop exceeded the permissible duration and scope when an officer "failed to diligently pursue" the purpose of the stop and went off on a tangential investigation into drugs in the vehicle, the latter investigation constituting the bulk of the encounter. The officer’s diligence in pursuit of the investigation of the justification for the stop, is key, though the duration and scope of the stop are still relevant to the Terry analysis.

The Fourth Circuit finds it decision is consistent the position of the Sixth, Eighth and Ninth Circuits, which is at odds with the Seventh Circuit, which holds that questions unrelated to the justification for a stop that hold potential for detecting crime, that create little or no inconvenience, do not turn reasonable detention into unreasonable detention.

However, the Fourth Circuit affirmed for the following reasons: 1) calling ICE is analogous with how an officer routinely runs a driver’s license and registration to check their validity; 2) the time it took to call ICE was very brief; 3) the purpose of the stop was "still alive" when the officer called ICE; and 4) although the call to ICE was unrelated to the purpose of the stop, the call was a single, brief detour from an otherwise diligent investigation into whether the driver was impaired. They did not decide whether the officer had reasonable suspicion to believe that criminal activity was afoot at the time he called ICE. And, to the extent that the reasonableness of a traffic stop would be judged solely on the duration of the stop, the Fourth Circuit rejects that reasoning.

Drug conspiracy, and the vehicles of its operation

US v. Cabrera-Beltran: A jury in Alexandria, VA, convicted Cabrera-Beltran of conspiracy to import and distribute cocaine and heroin. On appeal to the Fourth Circuit, Cabrera-Beltran raised several issues, including violations of his 6th and 14th Amendment rights.

On appeal, Cabrera-Beltran argued that three Spanish-speaking venirepersons should not have been struck by the district court after each of them expressed an inability to accept the translations of their native tongue by a court interpreter. The Fourth Circuit determined that the district court did not abuse its discretion in striking the potential jurors, holding that the "for-cause striking of prospective jurors based upon their perceived inability to accept an interpreter as the final arbiter of what was said or written does not violate the Equal Protection Clause" of the 14th Amendment, as it is integral to a fair trial that all jurors base their decision on the same evidence.

Next, Cabrera-Beltran argued that case management documents (Treasury Enforcement Communications System, or TECS) maintained by Customs and Border Patrol, to monitor the vehicles and license plates that cross the national borders, should not have been admitted because he could not cross-examine the border patrol agent who produced the information. The Fourth Circuit found that these documents were not testimonial, and did not violate the rule against hearsay because they are kept in the normal course of business, not for the purposes of a subsequent legal action. Additionally, at least two federal courts (5th and 9th) have held that these TECS records are admissible under the public records exception to hearsay.

Cabrera-Beltran also argued that because the jury convicted him for an amount of cocaine less than the amount alleged in the indictment, that he essentially received a variance which required reversal. The Fourth Circuit found, however, that a lesser included offense is included in the charged offense, and hence, there is no variance. Further, Cabrera-Beltran raised the issue of whether the indictment was effective, but since he had not raised this issue prior to trial, this claim was found to be waived. Cabrera-Beltran argued that the district court erred in giving an Allen charge as opposed to granting his request for a mistrial, when the jury announced its failure to reach a verdict. After two days, the jury eventually reached a verdict.

Cabrera-Beltran moved for acquittal based on insufficient evidence, that the witness testimony against him was vague, uncertain and incredible. The Fourth Circuit found substantial evidence supporting the verdict and found that the district court did not err in denying that motion. Cabrera-Beltran raised the issue that the district court erred in admitting testimony from Lorenzo Salgado as 404(b) evidence, testimony which detailed heroin transactions that occurred prior to the conduct alleged in the indictment. The Fourth Circuit concurred with the government that the testimony was relevant to prove knowledge and intent. Finally, Cabrera-Beltran raised two sentencing issues, that the district court erred in calculating the drug quantity by accounting for drugs that were sld to Salgado prior to the events of the indictment; second, that the district court erred in adding a two-level enhancement for his managerial role in the conspiracy. The Fourth Circuit found no sentencing errors.

Thursday, November 10, 2011

Former sheriff's convictions affirmed

US v. Medford: Medford, formerly the Buncombe, North Carolina, County Sheriff appealed his convictions for conspiracy and other charges related to his receipt of bribes in connection with an unlawful video poker machine scheme in that state, involving a South Carolinian video poker machine operator, Henderson Amusement, Inc. The Fourth Circuit affirmed the convictions on all counts.

Medford raised five issues in his appeal: the court committed error in admitting the recording of a meeting between Henderson Amusement reps and people affiliated with a sheriff’s department outside of Buncombe County; the court denied Medford’s motion to sever his trial from a co-defendant’s (Penland); insufficient evidence was presented for a conviction under the Hobbs Act; Medford was subjected to inconsistent and biased treatment from the court; and the Honest Services Statute, 18 U.S.C. sect. 1346 is unconstitutionally vague.

With respect to the admission of the recording, the Fourth Circuit did not decide whether the recording was admissible under Rule 801(d)(2)(E), concluding that any error in the admission of the recording was harmless in light of the "overwhelming evidence" supporting the jury’s verdict. The Fourth Circuit affirmed the district court’s decision not to sever the trials of Medford and Penland, a self-described "captain" in the Buncombe sheriff department, relying on its decision in United States v. Parodi for support. In Parodi, the Fourth Circuit established a four-factor test was issued for the analysis of motions to sever based upon the asserted need for a co-defendant’s testimony. The defendants here failed to satisfy the test because of Penland’s equivocation on his willingness to waive his 5th Amendment rights if the trials were indeed severed.

The Fourth Circuit quickly dispensed with the claim that the district court subjected Medford to inconsistent and biased treatment, reminding that there is a difference between "fair" and "perfect" trials, and concluded that Medford’s treatment was not unfair or biased.

The Fourth Circuit reviewed Medford’s claim that insufficient evidence had been presented to sustain a conviction under the Hobbs Act, under the plain error standard of review, as Medford failed to raise the issue at trial. Here, Medford argued incorrectly that all the parties from whom the conspirators obtained property were part of the conspiracy, which the Fourth Circuit found to be a false premise, and consequently rejected Medford’s claim that the evidence was insufficient.

Finally, the Fourth Circuit found that Medford’s position on the Honest Services statute has been foreclosed by the Supreme Court’s 2010 decision in Skilling v. United States, in which the "bribery and kickback schemes" provisions of the statute, under which Medford was convicted, were not unconstitutionally vague.

Thursday, November 03, 2011

Obstruction of justice enhancement not a foregone conclusion when a defendant takes the stand

US v. Perez: Perez challenged the denial of his request for new counsel, as well as an obstruction of justice imposed on his sentence. The Fourth Circuit affirmed the denial of his request for new counsel, but reversed and remanded on the sentencing enhancement, holding that the district court failed to make the necessary factual findings to support the imposition of the enhancement.

Prior to trial, Perez moved for new counsel, which request the district court denied. After trial and prior to sentencing, Perez moved for new counsel a second time, which the district court denied again (without a hearing), deciding that it would be better for Perez to be represented at sentencing by an attorney familiar with his case. On appeal, the Fourth Circuit found that there had been neither a lack of communication nor an inadequate defense, despite Perez’s complaint that counsel had "avoided my rights. He has not been paying attention to them." In the balance with the district court’s interest in efficiently administering justice, the Fourth Circuit found the district court correctly denied Perez’s request for new counsel.

In considering Perez’s obstruction of justice enhancement, the Fourth Circuit discusses the irregular application of United States v. Dunnigan by its district courts. In that case, the Supreme Court said that an enhancement based on perjury does not unconstitutionally undermine the right to testify in one’s own defense, as "not every accused who testifies at trial and is convicted will incur an enhanced sentence." If a defendant receives the enhancement and object to it, the district court is supposed to conduct a review of the evidence and make "independent findings necessary to establish a willful impediment to, or obstruction of, justice..."

District courts, after Dunnigan, are also supposed to make separate and clear findings to address each element of the alleged perjury, but it will suffice if they make a finding that encompasses all of the factual predicates for perjury. It is this sufficiency that has apparently caused some problems, and the Fourth Circuit gives a little mea culpa, stating, "[t]o date, we have not provided a great deal of guidance to the district courts in applying Dunnigan..." and resolves to remedy the situation by holding that "if a district court does not make a specific finding as to each element of perjury, it must provide a finding that clearly establishes each of the three elements...and requiring district courts to clearly articulate the findings necessary to reach a legal conclusion preserves our ability to conduct meaningful appellate review."

Wednesday, November 02, 2011

Statment of PC Not Sufficient to Determine Prior

US v. Donnell: This is a pretty straight forward application of Shepard. Donnell was convicted of being a felon in possession of a firearm. His Guideline range was enhanced because the district court concluded that his prior Maryland conviction for second-degree assault was a "crime of violence." That conclusion was based on a "statement of probable cause" that the Government presented at sentencing in order to sort out the facts of the incident. Of course, such a statement was not part of the Shepard-approved documents during the plea hearing in Maryland, thus the Fourth Circuit concludes that the district court erred by considering it. Sentence vacated and remanded for further proceedings.

No mens rea Required for Stolen Firearm Enhancement; Counsel's Affirmation OK Basis for ACCA Prior

US v. Taylor: Taylor and his codefendant, Thompson, were both convicted by a jury of being felons in possession of a firearm (same one, actually). A police officer in Baltimore saw Taylor hand the weapon to Thompson. When officers approached to arrest them, Thompson fled, dropping the gun along the way. Taylor received a sentence 96 months in prison, partly due to a two-level enhancement based on the firearm being stolen, while Thompson got a sentence of 180 months in prison, based on the application of the ACCA.

Taylor challenged both his conviction and sentence on appeal. As to the conviction, the Fourth Circuit concluded that there was sufficient evidence to support it, even though it was based on the direct observation of only one police officer (upon whose credibility Taylor launched "an extended attack"). As to the sentence, Taylor argued that the two-level enhancement for possession of a stolen firearm could not apply because it lacks a mens rea requirement. The court rejected that argument, noting that every other Circuit has rejected it and concluding that a mens rea requirement, while important in general, is not required for every sentencing enhancement to apply. The court also concluded that Taylor's bottom-of-the-Guideline range sentence was substantively reasonable.

Thompson challenged only his sentence on appeal, specifically whether a prior Maryland conviction for second-degree assault was a "violent felony" under the ACCA. The district court had relied upon a recitation of facts at Thompson's state plea hearing as a basis for concluding that the conviction was a violent felony. Thompson did not directly affirm those facts, but his counsel said there were no "additions or corrections" to that recitation. The court turned away Thompson's reliance on Alston, noting that his plea was not an Alford plea. That his lawyer, rather than Thompson himself, affirmed the factual basis for the plea was irrelevant.

Judge Davis dissented with regards to Thompson's sentence, arguing that the majority effectively rewrites Shepard and its protections for a defendant to not be bound by anything not explicitly agreed to by him.

"Employment" Can Include, Doesn't Require, Payment of Wages

US v. Weaver: Weaver and his codefendants were members of the Pagans Motorcycle Club, which the Government alleged was involved in various nefarious activities. They were charged with "being employed" by a prohibited person and possessing a firearm "in the course of such employment." The "employer" was the president of the club, who was a convicted felon and, thus, could not legally possess firearms. The district court concluded that the statute required the Government to prove that Weaver and the others were "employed for wages," a standard which the Government admitted it could not meet. Therefore, the district court dismissed that charge.

The Government appealed and the Fourth Circuit reversed. After dealing with the procedural irregularities of the appeal (in a footnote), the court concluded that the district court's reading placed "an artificial restriction on the statute." The statute's plain language, the court concluded, does not show a "rigid requirement that defendants be hired for tangible compensation," because the word "employ" has many potential meanings. A more flexible test is appropriate and better implements the structure and purpose of the statute. However, the court declined the opportunity to set out that test in detail, remanding to the district court for further proceedings.

Wednesday, October 12, 2011

En Banc Court Addresses ACCA, Categorical Approach, and Indecent Liberties

US v. Vann: Vann was convicted of being a felon in possession of a firearm. The PSR recommended that he be classified as an Armed Career Criminal based on three prior convictions in North Carolina for "indecent liberties" (aka sex offenses against children), which were violent felonies under the ACCA. Vann objected, arguing that in a post-Begay world some indecent liberties convictions would be violent felonies, while others would not and the record did not prove that his were violent felonies. The district court and a panel of the Fourth Circuit disagreed and Vann was sentenced to 180 months in prison.

Sitting en banc, the Fourth Circuit reversed course and vacated Vann's sentence. In a brief per curiam opinion (in which nine judges joined), the court explained that it "assumed" that (applying a "modified" categorical approach) any conviction under subsection (a)(2) (as opposed to (a)(1)) of the North Carolina indecent liberties statute was a violent felony, the Government could not prove that Vann's convictions were sustained under that subsection. It rejected the conclusion of Judge Niemeyer (concurring and dissenting) that because the charging documents were worded conjunctively and cited both subsections that Vann pleaded guilty to violating both of them, holding that (a) those documents weren't part of the record before the district court and shouldn't be considered and (b) even if they were, prior circuit precedent on conjunctively worded indictments did not support the dissent's position.

That's the first 10 pages. The other 90 pages of the opinion consist of a plethora of concurrences and one dissent:
  • Judge King concurred (with three others signed on),arguing against adopting a modified version of the categorical approach, concluding that such would "contravene Supreme Court precedent and the interests of justice," although noting that the result is the same in this particular case.
  • Judge Agee concurred both with the per curiam opinion Judge Keenan's concurrence and picks up Justice Scalia's withering attack on the vagueness of the ACCA (a "black hole of confusion and uncertainty stymies our best efforts," Judge Agee writes) in Sykes, calling upon Congress to fix it, and lays the blame squarely at Congress's feet "should a majority of the Supreme Court come to find Justice Scalia's conclusion the only constitutionally valid course."
  • Judge Davis (who joined Judge King's concurrence) concurred, offering more thoughts on the perils of the modified categorical approach.
  • Judge Keenan's concurrence (to which four other judges signed on) offers a defense of the modified categorical approach.
  • Judge Wilkinson concurred, offering another defense of the modified categorical approach, noting that "too many courts are too deep in the weeds on the matter of the ACCA's residual clause."
  • Judge Niemeyer dissented (joined by Judge Shedd), arguing that the record showed that Vann's prior convictions were ACCA violent felonies. He concurred in the use of the modified categorical approach, however.
Congrats to the Defender office in the Eastern District of North Carolina on the win!

Monday, August 22, 2011

Warrantless Entry Violates Fourth Amendment, Will Later Consent Avoid Suppression?

US v. Hill: Police obtained a warrant for Hill's arrest on drug charges. They went to his last known address, a townhouse he shared with his girlfriend and their son. However, from prior experience the officers knew that Hill only spent about half of his time there and one officer speculated there was only a 20% chance he would be there (a previous visit to the home on a 911 hang-up led Hill's girlfriend to tell the officers he knew he had an arrest warrant out against him). Officers knocked on the door, but no one answered. They could hear what sounded like the TV playing inside. One officer called Hill's wife, who was at work. She said the only person who would be there was her sister. She did not give the officers' permission to enter.

Nonetheless, one of them turned the knob, opened the door, and saw Hill (and a friend) sitting on the couch. Officers did a protective search of the home, finding some marijuana. One officer went to obtain a search warrant. Before he returned, however, Hill's girlfriend arrived home. She may or may not have consented to a search of the home at that time. Regardless, a search was done by the time the warrant arrived. Officers found a gun and more drugs in the home, leading to Hill being charged with drug and firearm offenses. Hill moved to suppress the evidence, but the motion was denied. He entered a conditional guilty plea and was sentenced to 120 months in prison.

On appeal, the Fourth Circuit reversed the denial of the motion to suppress. First, the court held that the officers did not have sufficient evidence to suggest that Hill was actually in the home to execute the arrest warrant. Hill conceded he resided there (he had to in order to assert a Fourth Amendment protection), but the court held there was not sufficient evidence from which the officers could conclude he was actually there. Second, the court concluded that there were no exigent circumstances present that would justify entry into the home without a warrant. Third, the court held that Hill's girlfriend did consent to a search once she arrived at the home. However, the court did not decide whether the consent dissipated the taint of the initial illegal entry, an issue the district court did not reach. It remanded to the district court for further proceedings on that issue.

Judge Agee dissented, arguing that the majority did not give sufficient deference to the district court's finding of facts. When viewed with the proper deference, there was no basis for overturning the district court's ruling.

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

Court Reverses on North Carolina Priors

US v. Simmons: Simmons was convicted on a federal drug charge and faced an enhanced sentence for a prior drug conviction "punishable by imprisonment for more than one year." The prior at issue was a North Carolina conviction for possession with intent to distribute marijuana. A "Class I" felony, it carried a potential sentence of more than one year in prison only if (a) certain aggravating factors were present and (b) Simmons had a "prior record level" of at least 5. Neither condition was met in Simmons's case. Nevertheless, the district court found that Simmons's prior qualified him for an enhanced sentence, applying an old Fourth Circuit case which held that the applicable potential maximum sentence in such cases was based on an offender with the worst possible criminal history. A panel of the Fourth Circuit affirmed that sentence, both before and after a remand from the Supreme Court.

On a rehearing en banc, the court changed course, 8-5, and vacated Simmons's sentence. The court, via Judge Motz, concluded that the Supreme Court expressly rejected the "hypothetical defendant" approach for analyzing North Carolina convictions. Because a defendant's maximum potential sentence on an offense in North Carolina is tied directly to his criminal history, the correct analysis is to determine what the maximum sentence possible a defendant with the same criminal history could have received (the actual sentence received is, of course, irrelevant). That brings the Fourth Circuit into line with the other two circuits that have looked at the North Carolina system.

Judge Agee led the dissenters, arguing that the language of the enhancement statute talks about an "offense" that is "punishable" by a certain potential sentence and does not allow for any consideration of a particular defendant's criminal history.

Congrats the Defender office in Western North Carolina, which headed up the amicus forces on this win!

Tuesday, August 16, 2011

Nervousness During Refusal to Consent to Patdown Doesn't Generate Reasonable Suspicion

US v. Massenburg: Officers in Richmond responded to an anonymous report of shots fired in a "high-crime" neighborhood. They encountered a group of four men, including Massenburg, about four blocks away. The men were generally helpful (one reported hearing shots), provided identification, and consented to patdowns. However, Massenburg refused to consent to a patdown. He was, according to one of the officers, "real reluctant to give consent." Because Massenburg distanced himself somewhat from the other three men and would not make eye contact with an officer repeatedly asking for consent to perform a patdown, an officer patted him down anyway. The patdown uncovered a gun and some marijuana, leading to Massenburg being charged with drug possession and possession of a firearm by a drug user. He moved to suppress the gun and marijuana, but the district court denied the motion. Massenburg entered a conditional guilty plea and appealed that decision.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. Noting that it recently (in Foster) chided the Government for attempting to spin "mundane acts into a web of deception" in order to support a Terry intervention, the court wrote that such concern "is only heightened when the 'mundane acts' emerge from the refusal to consent to a voluntary search," concluding that, if Terry is to mean anything, "refusing to consent to a search cannot itself justify a nonconsensual search." After examining the testimony about the incident in some detail, the court concluded that "there is precious little to sustain the district court's holding" that there was reasonable suspicion to support a patdown. Massenburg's observed nervousness came only when the officer repeatedly sought his consent to pat him down, a situation that would make almost anyone nervous. The court also refused to impart to the officer who searched Massenburg the observation of another officer (not reported at the time) that he saw a bulge in Massenburg's jacket.

3582 Reduction Requires Reliance on Guidelines

US v. Brown: Brown pleaded guilty to maintaining a crack house in 2005. As part of a Rule 11(c)(1)(C) binding plea agreement, he agreed that the "appropriate sentence in this case is incarceration for not less than 180 months and not more than 240 months." He was sentenced to 210 months in prison. In 2009, Brown filed a motion for a reduced sentence under 3582(c)(2) and the revised crack guidelines. The district court granted the motion and reduced his sentence to 180 months. The Government appealed, arguing that the district court lacked the jurisdiction to reduce a sentence imposed as part of a binding plea agreement.

On appeal, the Fourth Circuit agreed and vacated Brown's reduced sentence. The Supreme Court recently dealt with the issue in Freeman v, United States. However, as the Fourth recognized, that decision was not a hallmark of clarity. Four justices held that reduced sentences are always available in binding plea cases, while four others concluded (in dissent) that such reductions are never available. Justice Sotomayor took a middle approach, concluding that reductions were unavailable in such cases, unless the plea agreement specifically relies upon a particular Guideline range. Concluding that Sotomayor's opinion controls, the court concludes that Brown's plea agreement does not rely on a particular Guideline range. Therefore, the district court lacked the authority to reduce his sentence.

Identity Evidence Insufficient to Sustain Robbery, Firearm Charges

US v. Bonner: Bonner was charged with a Hobbs Act robbery and use of a firearm. The charges arose from the robbery of a Subway restaurant in North Carolina by two African American men. One was wearing a NY Yankees cap. That was the only description provided by the two employees present during the robbery. Police pulled over an SUV exiting the parking lot shortly thereafter that, while it only included one occupant (who was never charged), did contain items linking the vehicle to Bonner. Police also recovered a Yankees cap from behind the store which contained DNA that matched Bonner (as well as several other people who could not be identified). Finally, a canine followed a scent from the area to a nearby gas station, from which a phone call was placed to Bonner's girlfriend several hours after the robbery.

Bonner was convicted at trial. However, the district court granted his motion for a judgment of acquittal after the conviction, having deferred ruling on Bonner's motion made after the close of the Government's case (and every subsequent opportunity). The Government appealed, arguing that the evidence was sufficient to support the convictions, when considered in the light most favorable to the Government.

The Fourth Circuit affirmed the district court's grant of the motion for acquittal. The court concluded that there was a "conspicuous absence of any contemporaneous 'identity' evidence linking the defendant to the robbery." As for the DNA match to the Yankee cap, the court noted that the cap had several different DNA samples on it and nothing proved that Bonner wore it the night of the robbery (as opposed to some other time). The court also refused to rely on an inference put forth by the Government that the dog tracking a scent from the scene to the gas station did so based on the "predominant DNA" present on the cap (Bonner's). The court noted that the Government's inference lacked any basis in the record. In addition, "not every articulable inference is proper because scientific rigor demands more than a theory of plausible deductions strung together."

Thursday, July 28, 2011

Tailgating traffic stop lasts too long

US v. Digiovanni: The government appealed the district court's decision in this case to suppress evidence found after a traffic stop for tailgating lead to a baseless, involuntary vehicle search on I-95. The Fourth Circuit affirmed the district court's decision to suppress.

In addressing the length of the stop, the district court found that it lasted longer than necessary, at approximately 15 minutes, when the purpose of the stop was to issue Digiovanni with a warning not to tailgate. The police officer did not diligently check Digiovanni's license, instead he embarked on a unwarranted drug investigation, not supported by any reasonable suspicion. The district court also found fault with the officer's coercive attitude during the traffic stop and the involuntariness of the written consent Digiovanni signed.

Neither party disputed the lawful nature of the traffic stop at its inception; however, the seizure was not limited in both scope and duration as required under Terry: if the officer wants to extend the discussion outside the scope of the initial stop, there must be reasonable suspicion or he must receive the driver's consent. Unrelated questions during an investigative stop are okay, but they cannot extend the length of the time in which the defendant is detained.

The articulated facts of the case, according to the district court, simply did not eliminate a substantial portion of innocent travelers, so there was no reasonable suspicion to investigate Digiovanni beyond the traffic stop. The video evidence from the police car helped to expose the absurdity of the stop and its justifications to great effect.

Friday, July 08, 2011

Abuse-of-trust enhancement ok'd for fake bail bondsman

US v. Brack: Brack pled guilty to wire fraud and aggravated identity theft, after posing as a bail bondsman and pretending to assist an elderly man in posting bond for his granddaughter. Brack took the man's social security card, driver's licence and ATM card, opening up multiple lines of credit and purchasing several items; he later gave Brack cash amounting to $16,568 and the deeds to two properties as collateral for his granddaughter's bond. At Brack's sentencing, the district court applied an abuse-of-trust enhancement, based on her masquerade as a licensed bail bondsman. The Fourth Circuit affirmed.

Brack failed to object to the abuse-of-trust enhancement at sentencing, so the Fourth Circuit reviewed the district court's factual findings only for clear error. The Fourth Circuit discussed how the enhancement applies to imposters, so long as the "defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust." Brack argued that as a matter of law, bail bondsmen in North Carolina do not occupy a position of public or private trust, to which the Fourth Circuit responded that indeed, bail bondsmen are subject to a comprehensive system of regulation to obtain a license, their qualifications are spelled out statutorily, and they must meet residency, educational and training requirements - clearly positions of public trust that entail certain fiduciary duties to customers. The Fourth Circuit concluded that no clear error occurred in the imposition of the abuse-of-trust enhancement in Brack's case.

Just deserts for timely acceptance of responsibility

United States v. Divens: Divens pled guilty to distributing cocaine, signed his acceptance of responsibility letter, but declined to sign a plea agreement that would waive his right to appellate review and collateral attack. The Government subsequently refused to give Divens a third-level reduction for acceptance of responsibility under sect. 3E1.1(b).

At the time of sentencing, Divens objected to the pre-sentence report Guidelines calculation, acknowledging that the district court could only award the third level reduction upon motion of the Government, and the Government argued that its refusal to move for the additional reduction was "rationally related to the purposes of the guidelines" because it allowed the Government to avoid defense of "a complete appeal" and to "allocate its resources to other matters."

The Fourth Circuit broke with other circuits in determining that the Government does not enjoy the discretion it does under sect. 5K1.1 in sect. 3E1.1, finding that sect. 3E1.1 does not require that a defendant provide the prosecution with assistance that must reduce "expense and uncertainty" at attends an appeal. Nothing in sect. 3E1.1 permits the Government to withold the third level reduction on the basis of an interest in conserving appellate resources. Next, the Fourth Circuit disagreed with the Government that courts should interpret the guidelines in a manner that facilitates the Government's pursuit of appellate waivers. Third, the Fourth Circuit held that when a defendant pleads guilty unconditionally in a timely fashion, that defendant's refusal to sign an appellate waiver has no impact on the ability to challenge a conviction or on the Government's need to "anticipate" such a challenge.

Congrats to Jonathan Byrne in the Southern District of West Virginia!!!

Monday, May 30, 2011

Nearly 20-year sentence vacated by 4th Circuit

US v. Doyle: Doyle was convicted of receiving, possessing and mailing child pornography, and received a sentence of 235 months. On appeal, Doyle challenged the district court's decision to deny his motion to suppress. The Fourth Circuit disagreed with the district court that the good faith exception from Leon applied in this case, and held that the affidavit in support of the search warrant lacked the necessary information that the neutral magistrate could glean probable cause to support a search for child porn. The Fourth Circuit framed the question for review as not whether the warrant was simply deficient, rather whether the warrant was so deficient that relying upon it was unreasonable, thus precluding the operation of the good faith exception.

Wednesday, May 18, 2011

Court appointed counsel and their clients are people, too

US v. Smith, a.k.a. Poe: It's a subject matter close to the hearts of court appointed counsel everywhere, the quality of harmony in attorney-client relations. In this appeal, defendant Smith challenged the voluntariness of his plea, to which he had agreed following several attempts to obtain substitute counsel.

The Fourth Circuit waxes sympathetic as it considers the Sixth Amendment right to assistance of counsel, to deal with Smith's contention that the district court's denial of his substitution of counsel request rendered his guilty plea involuntary (he had been named in a 20-count indictment charging him and 27 others with racketeering and conspiracy to district and possess with intent to distribute drugs). "The mere physical presence of counsel is not enough: it is the marriage of the attorney's legal knowledge and mature judgment with the defendant's factual knowledge that makes for an adequate defense...more than a 'warm body' is required to satisfy the Sixth Amendment." The Fourth Circuit refers to Sixth Circuit's findings in three cases of per se Sixth Amendment violations, and a Ninth Circuit case where the denial of a substitution motion resulted in the constructive denial of counsel. Upon resolving the question of the appropriate standard of review to consider the denial of substitution requests as clear error review, the Fourth Circuit declines to find clear error.

Was Smith's guilty plea rendered involuntary? Was it effectively uncounseled because of a failure to communicate between appointed counsel and client? The parties remained on speaking terms, counsel continued to make visits to his client in prison, and though the two may have argued, the Fourth Circuit found that there was no conclusive break prior to the plea hearing, and Smith's contention that his plea was involuntary failed. Neither did the Fourth Circuit find that the denial of Smith's request for substitute counsel at the time of sentencing cause a clear error.

The Fourth Circuit considered the nature of the communication between counsel and client throughout the representation, and it noted that there had been severe damage by the time of sentencing; yet, since counsel and client had met, reviewed the PSR, and communicated enough to allow counsel to present some concerns to the court, the Fourth Circuit declined to find that counsel failed to render genuinely effective assistance.

And while "there is no one-free-lawyer" rule, the Fourth Circuit found that Smith's one appointed lawyer was sufficient here to protect his Fifth and Sixth Amendment rights.

Tuesday, May 17, 2011

Confrontation Clause at sentencing hearings

US v. Powell: Powell was convicted of mail fraud, wire fraud and attempted destruction of evidence, following an investigation made on behalf of customers of his Internet-based electronics sales business. On appeal, Powell challenged the way the government gathered evidence against him for use at his sentencing hearing: the number of victims and amounts of monetary losses were not solely determined by trial testimony, but also through hearsay statements of other victims made to the investigating postal inspector. The government requested an enhanced sentence based on all of this evidence, not just the testimony of the eight victims who testified at trial. Powell argued that these investigatory methods violated his Confrontation Clause rights by relying on hearsay statements from individuals who did not testify.

The Fourth Circuit discussed the distinctions between trial evidence and sentencing evidence, especially with respect to hearsay, finding a long line of established cases in the Supreme Court, sister circuits and its own jurisprudence, indicating the confrontation right does not apply at sentencing. The Fourth Circuit found that Powell was not without some evidentiary protections, however, stating that due process requires a minimal level of reliability sufficient to support its "probable accuracy" as required by the Guidelines.

Friday, May 13, 2011

"Structural" versus "trial error" in discussion of co-defendants' guilty pleas

US v. Poole: Poole, an accountant, was convicted following a bench trial of four counts of aiding and assisting in the preparation of false tax returns. The Fourth Circuit affirmed.

Poole's appeal challenged the district court's verdict in three ways, claiming that the convictions were unlawfully based on the guilty pleas of his co-defendants, on the improperly credited testimony by a key government witness that Poole believed to have been false, and insufficient evidence that he knew the returns were fraudulent and that he acted willfully in filing them.

Poole referred to the district court's multiple mentions of his co-defendants' guilty plea on the record as grounds for denying him a fair trial. The Fourth Circuit found these statements to constitute error on the basis that the district court gave consideration to facts not in evidence. While Poole wanted the Fourth Circuit to find this error as "structural" as opposed to "trial error," as explained in United States v. Blevins, the Fourth Circuit held that the district court's error was "a classic example of trial error subject to harmless error review," and following a harmless error analysis, found the error harmless in light of "overwhelming" evidence of Poole's guilt.

The Fourth Circuit considered Poole's second appeal issue as a request to reverse a credibility determination, made by the district court, which it declined to do; it deferred to the district court's estimation of the witness's credibility and reliability. Finally, the Fourth Circuit determined that Poole purposefully ignored large accounting discrepancies, such that he could not claim willfull blindness about his clients' financial misdeeds.

Thursday, May 12, 2011

Overreaching protective sweep "saved" by independent source doctrine

US v. Bullard: Bullard was convicted of possession with intent to deliver crack. He appealed the denial of a motion to suppress, argued the disparities in sentencing for cocaine and crack offenses violate both Equal Protection and Due Process, and that the FSA should apply to him.

First, the Fourth Circuit held that Bullard's Fourth Amendment rights were not violated by the investigating officers in this case. After finding it unnecessary to determine whether Bullard had a privacy interest as an unregistered hotel guest, the Court focused its attention on the problematic protective sweep the police conducted here. The protective sweep included a search of closed luggage and cabinets, but only after the police had found obviously incriminating evidence in plain view (e.g. the "smell" of narcotics, paraphernalia, and cocaine residue); however, the Fourth Circuit found that the sweep was saved by the independent source doctrine for two reasons: 1) the officers did not rely on the information they obtained in the protective sweep to obtain their search warrant; and 2) the officers intended at the outset of the search to obtain a search warrant. An overly aggressive protective sweep requires suppression, only if the "illegal search tainted the later recovery of the same evidence pursuant to a valid search warrant."

Second, the Fourth Circuit held that only the Supreme Court could overrule Fourth Circuit precedent set by a prior Fourth Circuit panel, declining to adjust the position that the disparities in crack and cocaine sentencing in 21 U.S.C. sect. 841 do not violate Equal Protection or Due Process rights.

Third, the Fourth Circuit held that the Savings Statute precludes the retroactive application of the new penalty provisions of the FSA to individuals who had been sentenced prior to the effective date of the FSA in early August 2010, a decision in concert with sister circuit rulings.

Murder and Conspiracy convictions affirmed following evidentiary challenges

US v. Byers: Byers and Co-Defendant Goodman were convicted of conspiracy and murder of a witness, Carl Lackl, to prevent Lackl from testifying in a Maryland state murder trial. On appeal, the two challenged several evidentiary rulings, and Goodman appealed the denial of his pretrial motion to suppress. The Fourth Circuit affirmed.

Lackl was to testify as an eyewitness against Byers in the March 2006 shooting of Larry Haynes; another eyewitness recanted, leaving Lackl as the sole person who could place Byers at the Haynes murder scene. Whether Byers had motive to kill and whether Lackl was accurate in his identification of Byers in the earlier murder investigation became crucial at trial.

The Fourth Circuit determined that 404(b) evidence of Byers's invovled in two prior shootings suggested a common theme, and was "necessary" to counter Byers's strategy of negating motive. And, for good measure, even if the district court abused its discretion in allowing this evidence in, the Fourth Circuit found this error was harmless. Byers attacked Lackl's reliability as an effective witness and Lackl's identification of Byers at the scene of Haynes's murder. Also, the Fourth Circuit held that it was not error to admit the statements of Lackl's girlfriend, who warned him of the mortal danger of his involvement as a testimonial witness.

Goodman's appeal issues concerned the testimony of a rebuttal witness, arguing that the proposed testimony failed to counter any new evidence presented in Goodman's case-in-chief. The Fourth Circuit decided that the proposed testimony went to the witness's credibility, and any error in admitting it was harmless. Goodman also appealed the denial of his motion to suppress of his post-arrest statements, which he claimed were involuntary. Under a totality of the circumstances, the Fourth Circuit found no unconstitutional coercion on the record.

Rehearing on Batson claim results in affirmance

US v. Barnette: Barnette was convicted in 2000 of killing his ex-girlfriend and another person. He received a death sentence, appealed it, had his convictions affirmed but received a new sentencing hearing. His death sentence was affirmed; on his second appeal of the sentencing, the Fourth Circuit rejected his initial Batson challenge. Barnette appealed to the Supreme Court, which granted certiorari, vacated the judgment and remanded the case for reconsideration of the Batson claim in light of the Supreme Court's recently-issued opinion, Miller-El v. Dretke. The Fourth Circuit remanded to the district court, which in turn issued a memorandum order, finding that Barnette had not met his burden of demonstrating that the prosecution had engaged in unconstitutional peremptory strikes against five African American members of the jury venire for his second sentencing in 2002. The Fourth Circuit found no prejudicial error in the district court's findings, and affirmed.

Monday, May 09, 2011

Burglary of "Shop" In Virginia Triggers ACCA Enhancement

US v. Baxter: Baxter was convicted of being a felon in possession and was sentenced as an armed career criminal. Baxter argued that a 1976 Virginia conviction for burglarizing a "shop" was not a violent felony, within the meaning of ACCA. The district court disagreed. On appeal, the Fourth Circuit affirmed the sentence. Relying on "the definitive construction" of the burglary statute from the Virginia Supreme Court, the court held that "shop" was not so vague as Baxter argued and that the "shop" was "affixed to the ground" and therefore fell within the generic definition of "burglary" found in Taylor v. US, 495 U.S. 575 (1990).

Delay In Mutli-Defendant Drug Case Doesn't Violate STA or Due Process

US v. Shealey: Shealey was initially charged, along with several codefendants, with several counts related to the distribution of drugs. As trial neared - already delayed by on continuance - one of Shealey's codefendants sought further delay, based on a change of counsel and the late delivery of substantial discovery by the Government. Shealey objected to the continuance and asked for his trial to be severed from the others and to proceed without delay. That motion was denied. After rejecting a plea bargain, Shealey was further charged with two counts of money laundering. He was convicted on all counts at trial and sentenced to life in prison.

On appeal, Shealey raised several arguments challenging his conviction and sentence, all of which the Fourth Circuit rejected. First, Shealey argued that the district court erred by dismissing his motion to sever, particularly given that numerous codefendants who testified at his trial only pleaded guilty after the original trial date had passed. The court disagreed, holding that the district court did not abuse its discretion and that Shealey's argument for why he was harmed is not an injury to a "specific trial right" or other prejudice that resulted from a joint trial. Second, Shealey argued that the late filing of the superseding indictment against him violated his right to due process because it gave the Government time to negotiate plea bargains with other defendants/witnesses. The court disagreed, holding that Shealey could not point to any concrete prejudice he suffered as a result. Finally, Shealey argued that his life sentence was substantively unreasonable. The court disagreed, noting his criminal history and "voluminous quantities of drugs" involved.

Felony Enhancements for Unauthorized Computer Access Misdemeanors Violate Double Jeopardy

US v. Cioni: Cioni engaged in a pattern of harassment against an ex-lover and those around him. As a result, she was charged with several offenses, including two counts of obtaining information through unauthorized access to computers. Although that offense is ordinarily a misdemeanor, it can become a felony if it was committed "in furtherance" of other offenses. In Cioni's case, she was alleged to have committed the offenses in furtherance of obtaining access to communications in electronic storage. The jury convicted her on those charges (and three others) and found they were committed in furtherance of other offenses, triggering the felony enhancement.

On appeal, the Fourth Circuit reversed Cioni's convictions on those two counts, remanded for the imposition of misdemeanor convictions and for resentencing. The court agreed with Cioni that, the way the offenses were charged, she was convicted of the misdemeanor offense and then had that enhanced to a felony, based on the same conduct. That enhancement violated the Double Jeopardy Clause. The court then rejected Cioni's arguments that the evidence was insufficient to sustain two of the other convictions against her, that she did not knowingly and voluntarily waive her right to counsel at sentencing, where she proceeded pro se, and several other minor arguments. The court vacated Cioni's 15-month sentence, the two felony convictions, and remanded for further proceedings.

Wednesday, April 20, 2011

Court Clarifies "Evidnce as a Whole" in 2255 Cases

US v. MacDonald: MacDonald was convicted in 1979 of murdering his wife and two daughters at Fort Bragg in 1970. He has steadfastly maintained his innocence. In 2006, he filed (with permission from the Fourth Circuit) a successive 2255 motion asserting a due process claim of newly discovered evidence with regards to a former US Deputy Marshal named Britt ("Britt claim"). Britt stated that he was present when the prosecutor at MacDonald's trial interviewed another potential suspect (and defense witness) and threatened her with being prosecuted for the murders if the testified consistently with what she told him. Shortly thereafter, results of DNA testing (authorized by the Fourth Circuit in 1997!) became available. MacDonald (without permission) added a claim of actual innocence based on the results of the DNA tests ("DNA claim"). He also urged the district court to consider the DNA evidence as part of the "evidence as a whole" in resolving the Britt claim. The district court denied relief. As to the DNA claim, the court found it lacked jurisdiction because MacDonald failed to get permission to file that claim. As to the Britt claim, after a "more searching" analysis than the Fourth Circuit made, the court denied MacDonald leave to file the new 2255 motion.

The Fourth Circuit (a two-judge panel, due to the death of Judge Michael after oral argument) reversed and remanded for further consideration of both claims. As to the Britt claim, the court found that the district court applied the standard of review applicable to review of state convictions, rather than federal ones. While the standards were very similar, the court remanded for reconsideration rather than find the error be harmless because "the court committed prejudicial error by taking an overly restrictive view of what constitutes the 'evidence as a whole'" by not expanding the record to consider evidence received after trial and MacDonald's initial 2255 petition. The district court erred by limiting its review to only the trial record and the specific newly presented evidence of the Britt claim. As to the DNA claim, the court concluded that the district court had jurisdiction over it because it was properly added to an otherwise authorized successive motion. The court did not reach the substance of either of MacDonald's new claims.

Flight Tolls Supervised Release Term

US v. Buchanan: Buchanan started his five-year term of supervised release in 1993. He was allowed to relocate to Ohio, but his supervision continued out of the Eastern District of Virginia. In 1994, he was indicted on state drug charges in Ohio. When his trial started in 1995, Buchanan was a no show. His probation officer in Virginia filed a petition to revoke Buchanan's supervised release and a warrant was issued. Years passed, until Buchanan was located and arrested in Georgia in 2008. After his arrest, the probation officer in Virginia filed two addenda to the petition to revoke. Buchanan moved to dismiss the addenda, as they were filed after his five-year term had expired. The district court held that the term was tolled while Buchanan was on the lam, revoked his supervised release, and sentenced him to concurrent sentences of 48, 36, and 27 months on the petition and two addenda.*

On appeal, the Fourth Circuit affirmed the district court. The court noted that the supervised release statute does not address whether a term tolls while a supervisee is AWOL, if no petition/warrant is issued during the supervised release term. For the First Circuit, that means it does not toll. For the Ninth, it read into the statute a tolling mechanism in order to avoid providing supervisees with a reason to abscond. The Fourth Circuit followed the Ninth (I can't believe I actually wrote that!), holding that to do otherwise would foil congressional intent and reward absconders.

* This completely baffles me. In every supervised release case I've seen, there's only been one sentence per SR term, not one per violation (or batch of violations). Since Buchanan didn't challenge the initial petition, which was the basis of the 48-month term, the Fourth Circuit could have dismissed the appeal under the "concurrent sentence doctrine" but declined to do so.

Court Affirms Threatening Mail Convictions for Letters to USMS

US v. Rendelman: Rendelman went to trial (pro se) on six counts of mailing threatening communications under 18 USC 876(c). The threat in Count Two was directed specifically at the president, while the threat in Count Seven (one count of the indictment was dismissed before trial) was directed against the president and "all White House employees." Both counts involved letters sent to the US Marshal's Service while Rendelman was incarcerated. He was convicted on all counts and sentenced to 180 months in prison, including an enhanced 120-month term on Count Seven (in which the stat max was doubled because of the threat to White House employees).

On appeal, Rendelman (no longer pro se) raised several challenges to Counts Two and Seven, which the Fourth Circuit rejected. First, he argued that both counts were fatally defective for failing to allege violations of the statute. As to Count Two, the court rejected Rendelman's argument that the USMS is not a "person" under 876(c), holding that Count Two alleged the fundamental elements of the offense: mailing, threat, and mens rea. The same argument met the same fate on Count Seven, which also set forth the element triggering the enhanced statutory maximum. Second, the court rejected Rendelman's argument that the evidence was insufficient to support the convictions, including the jury's determination that the Count Seven enhancement had been triggered. Finally, the court rejected, with little discussion, his argument that the charges had been constructively amended at trial.

Friday, March 18, 2011

One to watch

On Wednesday, March 23, 2011, the Fourth Circuit will hear argument in the case, US v. Maurice Williams, No. 10-4368, considering whether the district court erred in imposing the mandatory minimum term on crack cocaine in light of the FSA and a 5-year consecutive term on a Sect. 924(c) count.

Thursday, March 10, 2011

The case for changing your email password

United States v. Blauvelt: Blauvelt appealed from his convictions for possession and production of child porn, as well as possession of cocaine and two counts of distributing controlled substances to minors. Blauvelt received a 293-month sentence. The Fourth Circuit affirmed, with the Honorable Sandra Day O'Connor sitting by designation as an Associate Justice.

Factually, Blauvelt's former girlfriends, Anne Bridges and Erin Ruley, had a phone conversation, in which Bridges revealed that she had received an email from Blauvelt that contained explicit images of Ruley's 14-year-old sister, B.R. Bridges reportedly deleted the email, but she recalled Blauvelt's email account password and used it to open Blauvelt's email account, accessed the images, and showed them to Ruley. Ruley recognized both her younger sister and the interior of Blauvelt's home depicted in the photos. Bridges supplied Ruley with the email password, and Ruley went to her mother's home, printed out the photos and a screen shot of Blauvelt's email inbox, which demonstrated that the explicit photos were taken with Blauvelt's cell phone and were forwarded to his email account.

Ruley's mother called police, who then interviewed her, Ruley, and B.R., who confirmed that she was the girl in the photos. T.J., a minor male who also appears in the photos, arrived and gave statements to the police, incriminating Blauvelt. The police went to Blauvelt's home, and secured the residence while waiting for a search warrant to be signed. When the rest of the investigative team arrived with the warrant, Blauvelt was given his Miranda warnings, and he waived these rights. Blauvelt then gave statements to police; infamously, he said "oops." Officers seized his cell phone, a desktop computer, a media storage card, a digital camera, a mirror and a straw.

On appeal, Blauvelt made numerous challenges, starting with the denial of his motion to suppress evidence seized pursuant to the search warrant (for lack of probable cause), to the denial of his request for a hearing pursuant to Franks v. Delaware, to the legality of his detention for three hours prior to the issuance of the search warrant, to the improper admission of some bad acts evidence under Rule 404(b), the imposition of a two-level obstruction of justice enhancement, and jury tampering. The Fourth Circuit showed little trouble rejecting each of these arguments and affirming the convictions.

Wednesday, March 09, 2011

Convictions affirmed, Circuit split joined

US v. Halstead: Halstead was convicted of healthcare fraud and conspiring to launder money, and he received a sentence of 151 months. After his direct appeals failed, Halstead filed a petition for the collateral review of his convictions, attempting to vacate the money laundering conviction. Halstead wanted the Fourth Circuit to find a "merger problem" resolved by the Supreme Court in United States v. Santos, so that his money laundering conviction would be vacated, and dramatically reduce the jail time he could expect.

The Fourth Circuit decides here that Santos does not apply, because the charging documents for Halstead's convictions adequately defined his crimes as separate transactions not subject to merger. Indeed, affirming Halstead's convictions was a sideshow in comparison to the main event in this case, in which the Fourth Circuit joins a circuit split on the correct reading of the Santos holding.

The Fourth Circuit joins the 1st and 8th Circuits, finding that Santos requires the solution that when a merger problem arises in the context of money laundering coupled with illegal gambling, the proceeds of the illegal gambling business are its net profits. When the merger problem rears its ugly head outside of this context, e.g. when a case involves money laundering with some predicate crime other than illegal gamblng, the solution depends on a case-by-case analysis, with a consideration of the legislative history of the predicate offense.

Monday, March 07, 2011

Army Board decision on application for discharge reinstated

Kanai v. McHugh: Kanai, a West Point cadet in his final year, sought a discharge from the Army as a conscientious objector. The Department of the Army Conscientious Objector Board denied Kanai's application on the basis that he failed to demonstrate sincerely-held beliefs entitling him to conscientious objector status. The Army subsequently relieved Kanai of his duties at West Point; Kanai went home to Maryland and filed a petition for writ of habeas corpus under 28 U.S.C. 2241. The district court granted Kanai's petition, and the Army appealed.

In determining whether the district court had jurisdiction to hear Kanai's habeas petition, the Fourth Circuit was presented with a question the federal courts have not yet resolved: where should habeas suits be filed when the petitioner is not in jail? The Fourth Circuit sidestepped the challenge to formally resolve the precise meaning of the phrase, "within their respective jurisdictions," in section 2241(a), finding instead that this statutory language "identifies the proper location of the federal district court in which a habeas petition should be filed," rejecting a subject-matter jurisdiction analysis (in accordance with the Supreme Court's holding in Rumsfeld v. Padilla). Additionally, the Fourth Circuit states that any challenge based on this language is waived if not asserted at the district court. Since the Army did not assert a jurisdictional challenge until its appeal, the Fourth Circuit deemed it waived.

On the merits of whether the Army Board had a basis to deny Kanai's application for discharge as a conscientious objector, the Fourth Circuit decided against Kanai, though it remarked favorably on him as "contemplative, self-reflective, and honest." The standard of review for the Army Board's decision required the Fourth Circuit to uphold the denial if it were supported by a "basis in fact." Such a basis exists when "conflicting inferences can be drawn from the same evidence." The Fourth Circuit held that three members of the Army Board's five-member panel appropriately found that Kanai had not presented sufficient evidence to demonstrate his "moral opposition to all wars." On this narrow standard of review, it upheld the Army Board's denial of Kanai's application for discharge.

Thursday, March 03, 2011

Vitalizing the exclusionary rule

US v. Foster: Foster pled guilty to one count of possession with intent to deliver cocaine after police officers discovered drugs and some paraphernalia during an investigative stop. Foster reserved the right to appeal the denial of a suppression motion in which he argued that the officers lacked a reasonable suspicion to make the stop.

In a felicitous turn for Foster, the Fourth Circuit on appeal expresses its dismay at what it characterizes as "Government attempts to spin these largely mundane acts into a web of deception," finding a lack of articulable facts to support the district court's finding of reasonable suspicion sufficient to support the investigative stop, and vacates Foster's conviction.

Remarking on the similarity of this case to the factual scenario of US v. Sprinkle, in which the court held officers had unlawfully seized a driver with a known criminal record and his passenger while the two were huddled together in a car parked in a high crime area, the Fourth Circuit here chides the Government for making sinister the actions of Foster in a parked SUV: Foster sat up swiftly from a crouched position in the front passenger seat as a detective walked towards the vehicle; and Foster's "frenzied" arm movements directed towards the floor of the car. In its evaluation of the totality of the circumstances, the Fourth Circuit decided that the defendant's behavior, observed at some distance by the off-duty detective, in the middle of the day, in a parking lot near a restaurant where the detective had just lunched with his wife, could not have supplied the requisite reasonable suspicion necessary for a Terry stop. The Fourth Circuit concludes by advising the Government against a reliance upon "ad hoc rationalizations to validate those seizures that happen to turn up contraband."

Please use this case for the colorful judicial invective in such quotes as "we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous," and "we note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Bookmark this case for your next motion to suppress, folks.

Wednesday, February 23, 2011

Harp Still Controls Analysis of NC Priors

US v. Simmons: Simmons pleaded guilty to three drug charges after the Government filed an information under 21 USC 851 to enhance his sentence based on a prior conviction. The prior at issue is a 1996 North Carolina conviction for possession with intent. Under North Carolina law, which ties statutory sentencing maximums to criminal history, Simmons could not have been sentenced to a term of more than 12 months in prison for that offense, as needed to trigger the 851 provisions. However, someone with the worst possible criminal history could have received such a sentence. Under Fourth Circuit law at the time of his sentencing, the conviction therefore triggered the provisions of 851.

After Simmons's sentence was affirmed on appeal, the Supreme Court GVR'd in light of Carachuri-Rosendo v. Holder. On remand, the Fourth Circuit held that Carachuri-Rosendo did not undermine the earlier circuit precedent and again affirmed the sentence. Specifically, the court rejected Simmons's argument that Carachuri-Rosendo required the court to abandon its "hypothetic defendant" analysis when examining prior convictions. The court held that the difference in statutory language between the immigration laws at issue in Carachuri-Rosendo and 851 showed the rule of Carachuri-Rosendo could not be imported into the 851 context. Carachuri-Rosendo was simply "inapplicable to our present inquiry." The court also rejected Simmons's argument with regards to whether his prior conviction was obtained in violation of his right to counsel.

UPDATE: See here, reversed en banc.

Harmless Error Analysis for Guideline Miscalculation

US v. Savillon-Matute: Savillon-Matute pleaded guilty to illegal reentry. Prior to sentencing, the probation officer recommended an 8-level enhancement because Savillon-Matute's prior Maryland conviction for second-degree assault was an "aggravated felony." The Government objected, arguing that a 16-level enhancement was applicable because that prior offense was a "crime of violence" because the victim was seven years old and force was involved. Savillon-Matute argued that neither enhancement applied. At sentencing, the district court agreed with Savillon-Matute that his Maryland conviction was not a crime of violence, but took judicial notice that the charging documents made the age of the victim and use of force clear. The 8-level enhancement was applied. However, Savillon-Matute was sentenced to 36 months in prison, twice the top of the advisory Guideline range.

On appeal, Savillon-Matute argued that his sentence was unreasonable because the district court incorrectly calculated the advisory Guideline range by using documents outside the scope of those allowed by Shepard to determine the victim's age and use of force. The Fourth Circuit affirmed the sentence, refusing to "wad[e] into the morass of how to apply Shepard in the particular circumstances of this case" because any error in calculating the Guidelines was harmless. Adopting the logic of an 11th Circuit case, the court held that "it would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm." Looking to the statements of the district court in this case, the court concluded that the same sentence would have been applied regardless of the Guideline calculation.