Tuesday, February 07, 2012

922(g)(8) Conviction Survives Scrutiny, But Only One At a Time

US v. Mahin: Mahin was arrested and convicted of assault and battery against a family member, his wife. As part of the plea agreement, a protective order was entered against Mahin for two years during which, he was informed, both state and federal law prohibited him from possessing a firearm. Nonetheless, an hour after the court order was issued, Mahin went to a local gun range, rented a gun and purchased ammunition, shot at the range, then returned the gun. His wife called the police when she found Mahin's membership card for the gun range inside her apartment. He was charged and convicted (after a bench trial) with being in possession of a firearm and ammunition while under a domestic violence protective order. He was sentenced to time served and supervised release.
On appeal, Mahin raised two arguments. First, he argued that the convictions violated his rights under the Second Amendment. The Fourth Circuit rejected that argument, holding both that no court had yet held that citizens had any Second Amendment right outside the home and that, even if Mahin's conduct fell within Second Amendment protections, the statute survives intermediate scrutiny when applied to him (relying largely on its recent decision in Chapman). The specific facts of Mahin's possession did not change that result. Second, Mahin argued that the district court erred by sentencing him on two counts for the simultaneous possession of a firearm and ammunition. The court agreed and, applying plain error review, vacated the ammunition possession count, and remanded to the district court for further proceedings.

Court Affirms Stat Max Sentence for Illegal Reentry

US v. Rivera-Santana: Rivera-Santana was born in Mexico and came to the US as a lawful permanent resident in 1973. Between 1974 and 1983 he was convicted of several minor offenses. In 1988, he was convicted of voluntary manslaughter in the shooting death of his wife. After his sentence was served and he was paroled, Rivera-Santana was deported. Afterwards, he was involved in a cycle of entry into the US/deportation/illegal entry. In 2005, he reentered US and went to Virginia to live with family. While there, he was convicted of sexually assaulting his granddaughter and sentenced to 30 years in prison (all but 82 months suspended). While in state custody, he was charged with illegal reentry in federal court. He entered a guilty plea.

The PSR calculated Rivera-Santana's sentencing range to be 57 to 71 months in prison. However, the Government argued for a variance to the statutory maximum of 240 months in prison. At sentencing, the district court first departed, increasing Rivera-Santana's criminal history category and offense level. However, the court concluded that the resulting range (120 to 150 months) was still not sufficient to achieve the purposes of sentencing. Thus, after weighing the 3553(a) factors, the district court varied up to the statutory maximum and imposed a 240-month sentence because Rivera-Santana was a "menace" and "a proven danger to the public" and "in short, an anathema to society."

Rivera-Santana appealed, arguing that his sentence was both procedurally and substantively unreasonable. The Fourth Circuit turned away those challenges. Starting with the procedural challenges, the court first concluded that there was no procedural error in the district court's departures after the application of the illegal reentry Guideline's 16-level enhancement due to Rivera-Santana's prior convictions. Second, the court concluded that, while neither of the upward departures appeared to be improper, any error was harmless due to the district court's eventual variance. Third, the court concluded that the district court did not err by failing to proceed level-by-level during the departure process, noting that the district court nonetheless "employed a well reasoned process." Finally, as to the procedural issues, the court concluded that the district court did consider the mitigating factors presented at sentencing, but found them "entirely insufficient to outweigh the aggravating factors." As to the substantive reasonableness of the sentence, the court concluded that, in spite of the scope of the variance, it was based on a detailed individualized analysis of the 3553(a) factors and therefore was not unreasonable, in light of those factors.

Thursday, February 02, 2012

Honest-services fraud convictions reversed

US v. Hornsby:   In this appeal, the CEO of Prince George’s County Public Schools challenged his convictions for honest-services fraud, tampering with evidence, and obstruction of justice, for his involvement in securing two public contracts for school products and services. The Fourth Circuit reversed Andre Hornsby’s convictions for honest-services fraud, and affirmed the obstruction of justice and tampering with evidence convictions. Hornsby’s case was remanded to the district court in Maryland for re-sentencing in accordance with this opinion.

The Fourth Circuit reversed the honest-services fraud convictions because the district court erroneously instructed the jury, in a way the Fourth Circuit found was not harmless, that the jury could convict Hornsby for honest-services fraud based on a conflict of interest.

922(g)(1) upheld as constitutionally valid

US v. Moore:  Not to be outdone by other circuits who have already published on this issue, the Fourth Circuit holds that § 922(g)(1) passes constitutional muster. This statute prohibits formerly convicted felons from possessing firearms.  Police had arrested Moore for an outstanding warrant, and while searching him incident to the arrest, officers discovered on him a handgun and ammunition.  Moore had prior felony convictions for several offenses. 

Because Moore could not distinguish his circumstances from those of other felons who have been traditionally barred from Second Amendment protections, the Fourth Circuit found the statute constitutional as applied to him. In fact, the Fourth Circuit found that Moore’s criminal history (three prior felony convictions for common law robbery and two prior convictions for assault with a deadly weapon on a government official) "clearly demonstrate that is a far from a law-abiding, responsible citizen."

The Fourth Circuit did throw Moore a bone, albeit a small one, when it vacated the order requiring him to pay his court-appointed attorneys’ fees. It was not disputed that Moore was indigent and qualified for a court appointed attorney under the Criminal Justice Act. Additionally, the district court failed to make the necessary findings to support an order of reimbursement, in error. The Fourth Circuit left open the issue of whether it could impose payment of fees at a later date, such as when Moore went on supervised release, i.e., as a condition of release; the Court limited its holding to whether the district court erred in failing to make the statutorily mandated factual finding that "funds were available" for repayment.

Wednesday, February 01, 2012

Criminal acts after illegal search not intervening event

US v. Gaines:  The government appealed a district court’s decision to grant a motion to suppress in this case, in which the district court held that a gun found on a passenger in a vehicle illegally stopped by the police should be suppressed as fruit of the poisonous tree. Gaines was a passenger in a vehicle stopped by police who testified they observed a crack in the rear windshield the vehicle from across an intersection and through a tinted window. The district court did not find the police officers’ testimony credible, and determined that the stop in this case was supported by reasonable suspicion and was unlawful.

The government appealed under an attenuation doctrine theory, in which an assault on the police officers by the defendant after the police located a gun on the defendant served as an intervening event, purging the taint of the initial illegal stop. This government theory relied heavily upon the Fourth Circuit’s decision in U.S. v. Sprinkle, in which the Fourth Circuit recognized that it has "strong policy reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient intervening event to provide independent grounds for arrest."

Here, however, the Fourth Circuit disagreed with the government’s application of Sprinkle to the facts in Gaines’ case, as the attenuation doctrine placed greatest legal importance and emphasis on the discovery of the evidence, rather than the seizure of evidence. The Fourth Circuit agreed with the district court, finding that Gaines’ illegal conduct occurred after the police had located the gun in his waistband. Thus, because the gun was located prior to any criminal act by Gaines, his criminal act did not serve as an intervening event for purposes of the attenuation doctrine.

Way to go, FPD in MD!

Assault convictions affirmed

US v. Thomas:   In this appeal, a federal inmate challenged his convictions stemming from the assault of a female corrections officer at U.S.P. Hazelton. The Fourth Circuit affirmed the district court.

First, the indictment contained two plain errors, which the government conceded, that count one failed to allege an intent to commit another felony as required under 18 U.S.C. § 111(a) and that count two failed to allege infliction of bodily injury as required under 18 U.S.C. § 111(b). The government contended that while these defects were plain error, they did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings," and the Fourth Circuit agreed, finding that the prison guards’ testimony at trial satisfied the elements missing from the indictment.

Next, the appellant argued that the indictment was "multiplicitous," in that a single offense was charged in two counts in the indictment. The appellant relied on the Supreme Court’s decision in Ladner v. U.S., from 1958, in which the Court held that a single shot fired at multiple officers constituted a single offense. According to the Fourth Circuit, courts have applied Ladner in situations where there is more than one act resulting in assaults, not whether more than one federal officer is injured by the same act. Here, the district court determined, and the Fourth Circuit agreed, that Thomas committed two separate acts, the verbal threats and a punch to the guard’s face; thus, the indictment was not found to be multiplicitous.

Additionally, the appellant argued that the district court improperly sustained hearsay objections to his testimony, thereby denying him the ability to adequately present his defense. The appellant stated that the intended purpose of the statements in question went to his state of mind, not to prove the truth of the matter. The Fourth Circuit disagreed, and found that the statements were properly excluded because they were irrelevant and bore no relation to whether he committed the charged offense.

Two five-level enhancements approved

US v. Strieper:   At Strieper’s sentencing for attempted enticement, receipt of child porn, and possession of child porn, the district court applied two different five-level enhancements under U.S.S.G. §2G2.2(b)(5), the first for engaging in a pattern of sexual abuse or exploitation of a minor, and the second for distribution of child pornography for receipt of a thing of value. On appeal, the Fourth Circuit considered the propriety of these enhancements, and affirmed the district court’s judgment.

The Sentencing Guidelines permit a five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." A "pattern of activity" consists of two or more separate instances of such conduct. A "minor" may include unidentified children, as application of the enhancement indicates a focus on the danger a defendant would pose if given the opportunity to carry out his plans, rather than on the whether a defendant actually has exposed a child to direct harm. Here, one of the bases for the enhancement included Strieper’s communication with "Stu," a confidential source from the U.S. Department of Homeland Security. Strieper argued unsuccessfully that his attempt to entice Stu does not qualify for the enhancement because the definition of "minor" required a specific victim, a requirement that the Fourth Circuit rejected.

At his sentencing, Strieper did not object to the second five-level enhancement, for distribution of child porn for the receipt of a thing of value, so the Fourth Circuit reviewed this enhancement for plain error only. The district court applied this enhancement because Strieper used a peer-to-peer file-sharing network; prior to this decision, the Fourth Circuit had previously upheld a two-level enhancement for sharing child pornography files via such a network, but it had not yet addressed the question of whether a five-level enhancement for sharing files this way was appropriate.

The Fourth Circuit followed the reasoning of the Eighth Circuit, which held that a five-level enhancement for file sharing on a peer-to-peer network, e.g. Limewire, is appropriate because these networks exist for the purpose of sharing, exchanging, or trading files with other users (as opposed to the Tenth Circuit’s position, which holds that the enhancement does not always apply to peer-to-peer file sharing network users, because defendants do not always use these networks with the expectation of receiving other users’ files in return). The Fourth Circuit found that no error had been committed in the application of this enhancement.