Thursday, December 12, 2013

Court Joins Other Circuits - No General FSA Retroactivity

US v. Black: In 2006 Black was sentenced to a mandatory minimum term of 120 months on a conviction involving crack cocaine. In the wake of the Fair Sentencing Act of 2010, Black filed a motion under 18 USC 3582 arguing that his Guideline range had been reduced and that the FSA applied retroactively and dropped the applicable mandatory minimum sentence to 60 months. The district court denied his motion, relying on prior Fourth Circuit law that the FSA was not retroactive.

On appeal the Fourth Circuit affirmed. In the wake of the Supreme Court's decision in Dorsey, which held that the FSA applied to anyone sentenced after its enactment, the court concluded that the FSA was not further retroactive to defendants like Black who had already been sentenced. It rejected Black's argument that the analysis of Dorsey, if not its specific holding, required the FSA be applied retroactively because a 3582 proceeding was a "sentencing proceeding" and that occurred after the FSA was passed. The court noted that the FSA was not, by it's plain language, retroactive; that such a holding was contrary to Fourth Circuit precedent; that Dorsey dealt with a problem not present in 3582 proceedings; and that 3582 proceedings are not "sentencing proceedings."

Judge King concurred, noting that Black's argument might be successful but for prior Fourth Circuit precedent and calling for "congressional and executive action" to remedy the remaining disparity created by the FSA's lack of retroactivity.

Wednesday, December 04, 2013

NC Mitigated Range Sentence Doesn't Avoid ACCA

US v. Kerr: This is yet another case dealing with the meaning of prior North Carolina convictions in federal court.  Kerr was convicted of being a felon in possession of a firearm and sentenced as an armed career criminal based on three 2008 NC convictions for breaking and entering.  For those convictions (apparently all sentenced at the same time) under NC's Byzantine sentencing scheme, Kerr faced a "presumptive minimum term" of 9-11 months and a "presumptive maximum sentence" of 14 months.  However, the sentencing judge found that the mitigating factors outweigh the aggravating ones and departed to the "mitigated range" of 8-10 months, with a possible maximum of 11 months.

Kerr objected to the ACCA designation at his original sentencing, arguing that he did not face more than a year for any of those convictions and thus they were not qualifying "violent felonies."  The district court disagreed.  The Fourth Circuit held his appeal in abeyance while it worked out the Simmons situation, after which it remanded for resentencing.  On remand Kerr added an argument that none of those priors were qualifying felonies for the possession statute in the first place.  The district court disagreed and reimposed the ACCA sentence.

On his second appeal, the Fourth Circuit affirmed Kerr's conviction and sentence, 2-1.  Applying Simmons and its progeny, the court concluded that Kerr's prior convictions carried a potential maximum term of 14 months, and thus were felonies.  The sentencing court's mitigation finding did not require it to impose a sentence in the mitigated range and, even if it did, that didn't change the maximum he faced upon conviction.  Because the maximum Kerr faced was over 12 months, the convictions were felonies for purposes of both his conviction and ACCA sentence.

Judge David dissented, arguing that the majority was returning to the days of "hypothetical" sentences that has been rejected by Simmons and the Supreme Court precedent on which it relied.  He argues that the hypothetical use of prosecutorial discretion to enhance a sentence (rejected by SCOTUS) is no different than the hypothetical possibility that the judge could have imposed a higher sentence in these cases.

Consent Not Valid In Bus Shelter Encounter

US v. Robertson: Robertson was sitting in a bus shelter in Durham, NC, along with several other people, when police approached.  They were responding to reports of three man chasing another who was carrying a gun.  While other officers approached three men who matched the description of the chasers, another officer approached Robertson, who was sitting with his back to the shelter's back wall and was therefore "blocked on three sides."  The officer asked Robertson if he had anything illegal.  Robertson did not answer.  The officer "waved [him] forward" and asked for consent to search.  Robertson said nothing, but stood up, turned around, and raised his hands.  A search uncovered a firearm.  Robertson was charged with being a felon in possession and was convicted after the district court denied his motion to suppress, finding that Robertson consented to the search.

On appeal, the Fourth Circuit reversed, 2-1.  Making it very clear that its holding was based only on the officer's testimony (credited by the district court) and not Robertson's (discredited), the court concluded that Robertson's silent actions were a "begrudging submission to a command."  It noted the presence of multiple police officers and squad cars on the scene, that other officers were "handling" others at the bus shelter, and that the officer's questioning of Robertson was immediately accusatory.  As a result, the district court concluded that the Government had not met its burden of showing consent was given.

District Judge Wilson dissented, not based on a disagreement with the majority's view of the facts, but on the ground that it was not sufficiently deferential to the district court's contrary conclusion.  That conclusion was not clearly erroneous, even if the facts are susceptible to both interpretations.

Monday, December 02, 2013

Indivisible common law crime calls for categorical approach to determine whether it's a crime of violence

US v. Montes-Flores:  Fabian Montes-Flores pleaded guilty to illegal re-entry. At his sentencing, the district court imposed a sixteen-level enhancement for a prior South Carolina conviction for assault and battery of a high and aggravated nature ("ABHAN"), which conviction his pre-sentence report classified as a "crime of violence" under the illegal re-entry guideline. Unfortunately for Montes-Flores, the district court concurred with the PSR classification, a decision it reached after employing a modified categorical approach to determine whether the earlier conviction qualified for the sentencing enhancement. The district court sentenced Montes-Flores at the bottom of the guidelines range it calculated for him, 46 months.

On appeal, Montes-Flores argued that his prior conviction should not be considered a "crime of violence" for sentencing purposes, and the district court should have used the categorical approach to determine the status of his prior conviction for ABHAN. The Fourth Circuit agreed with Montes-Flores, holding that divisible statutes, with some categories of crimes that constitute crimes of violence and some that do not, call for the district court to use a modified categorical approach. Divisible criminal statutes include multiple, alternative versions of the crime. ABHAN, here, according to the Fourth Circuit, is not divisible, so the district court applied the modified categorical approach in error; South Carolina’s ABHAN is not categorically a "crime of violence" because it can be committed without violent physical force. The Fourth Circuit also determined that this error was not harmless, since the district court made no indication that it desired to vary upwards in sentencing Montes-Flores. The Fourth Circuit reversed and remanded for re-sentencing.

Thursday, November 21, 2013

The khat is out of the bag

US v. Ali, and 12 others:  Khat is a flowering plant native to the Horn of Africa and the Arabian Peninsula, and in these areas where it is legal, khat chewing has long been a social custom, dating back thousands of years.  Here, though, it’s a Schedule I drug when fresh, and slightly less potent when stale (then, Schedule IV), and so, it’s illegal to traffic in it.

Seventeen Somali and Yemeni nationals were indicted for their participation in a khat ring, receiving charges for conspiracy; many of them also received conspiracy to commit money laundering convictions as well.  Four of them pleaded guilty and testified at trial for the government, including ring leader Yonis Ishak; the remaining thirteen went to trial and were convicted of almost all the charges against them.  All thirteen joined the appeal, arguing primarily that the evidence against them was insufficient to prove that they knew the powerful stimulant in khat, called cathinone, was a controlled substance and that khat contained cathonine.  They challenged the jury instruction on scienter and willful blindness.  The money laundering defendants challenged whether the indictment provided sufficient information to identify financial transactions involved. Finally, they challenged the district court’s exclusion of their expert witness, and the denial of one defendant’s motion for a severance.

The main focus of the appeal is the sufficiency of the evidence challenge, whether the evidence was sufficient to prove that the defendants knew that khat contained a controlled substance.  The panel acknowledged the lack of direct evidence, but found that all the defendant conducted themselves in a way that indicated they circumstantially knew that khat contained a controlled substance.  The conspirators’ phone calls, the disguised packages, secret circumstances of deliveries of khat, how the money was hidden, etc., were all discussed by the government’s witnesses. Additionally, the conspiracy ring leader turned on everyone involved, such that it became “almost impossible to conclude that any defendant did not know of at least some illegal aspects of the enterprise.”  The panel found support from numerous other courts in similar khat cases, and affirmed the convictions.

Expansion of "relevant conduct" in McGee

US v. McGee:  Randall McGee pleaded guilty to possession with intent to distribute oxycodone and received a sentence of 55 months.  At sentencing, the district court increased Mr. McGee’s sentencing range to include as “relevant conduct” a seizure of cash that occurred two weeks prior to his arrest in this case.  Mr. McGee had previously been stopped by police at the Charleston, West Virginia bus station, where he was discovered to be in possession of nearly $6k in cash.  Though Mr. McGee was not arrested as a result of his bus station encounter with police, the police determined that Mr. McGee “did not have a reasonable explanation for his possession of the cash” when they asked where the unemployed Mr. McGee got the money.

Approximately two weeks later, Mr. McGee sat in the passenger seat of a rental car stopped by Charleston police for an allegedly malfunctioning middle brake light.  Police search Mr. McGee, who reportedly appeared nervous and had shaky hands.  The police discovered a bag in his shorts containing nearly 400 pills.  Mr. McGee moved to suppress the drugs seized during the traffic stop in two separate hearings:  the first questioning the probable cause to believe a traffic violation occurred; and the second, for newly obtained evidence. An investigation into the condition of the rental car tended to show that all the brake lights were operational and there was no record of any repairs after the traffic stop to the vehicle.  The district court held that while a serious factual issue was raised, it was ultimately not sufficient to overcome the police officer’s “unwavering” testimony that the light was non-operational.

On appeal, Mr. McGee challenged the procedural reasonableness of his sentence, specifically the inclusion in his offense conduct the earlier incident at the bus station, arguing that there was no evidence to connect the funds to the traffic stop in the instant case.  Also, Mr. McGee challenged the denial of his motion to suppress.  Last, Mr. McGee challenged the lack of individualized assessment in his sentence, that he was wrongly placed by the court in a class of individuals, i.e., drug dealers from Detroit, and sentenced him on that basis.

The panel found that “although McGee’s evidence that the brake light was not inoperative is significant, it is nonetheless circumstantial,” and the defense failed to show that the district court erred in its denial of the motion to suppress.  The panel also held that the incidents of seizure here, the cash and later, the pills, were “more likely than not” part of the “same course of conduct” for sentencing enhancement purposes.  Finally, while some of the district court’s comments on Mr. McGee’s sentence “evince a perilously close flirtation” with error, the panel concluded that the district court did not abuse its discretion.

Friday, November 15, 2013

Sentencing enhancements not punishment for priors

US v. Hunter:   As a juvenile, Appellant Jimmy Hunter received four convictions, all of which are considered violent felonies for ACCA purposes. He also received a fifth felony conviction as an adult, which may or may not be a predicate ACCA offense. In February 2011, Mr. Hunter sold a gun and ammunition to a CI working for the ATF; he received a felon in possession charge to which he pleaded guilty. At the time of his sentencing, the district court determined that Mr. Hunter’s juvenile and adult priors formed the basis for an ACCA enhancement, and sentenced Mr. Hunter to seventeen years’ imprisonment.

On appeal, Mr. Hunter challenged the application of his juvenile offenses as bases for an ACCA enhancement, arguing that this application violated the Eighth Amendment’s prohibition against excessive sanctions pursuant to Miller v. Alabama. In that case, the Supreme Court outlawed life without parole for juvenile offenders, highlighting proportionality concerns for young offenders, i.e., juveniles’ diminished capacity and increased capacity for reform.

The Fourth Circuit did not find any assistance for Mr. Hunter under Miller as he challenged the sentence he received for criminal conduct he committed as an adult, unlike the defendants in Miller who were punished as adolescents for criminal activity they committed as juveniles. Two other Circuits, the Tenth and Eleventh, which considered similar challenges to sentences from adult defendants who received enhancements based on juvenile convictions, determined that nothing in Miller suggests that an adult defendant with juvenile priors should not receive a mandatory life sentence as an adult after committing crime as an adult.

The Fourth Circuit held here that "sentencing enhancements do not themselves constitute punishment for the prior criminal convictions that trigger them," echoing the Supreme Court’s 2008 holding in United States v. Rodriguez, where the Court determined that the defendant’s enhanced sentence was "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one."  Mr. Hunter's sentence was affirmed. 

Friday, November 08, 2013

Phoned-in drug relevant conduct sufficiently reliable

US v. Crawford:  In the indictment against him, Kendrick Crawford received six charges of distributing 38.3 grams of crack.  At the time of sentencing, however, Crawford’s PSR calculation for drug relevant conduct grew to a whopping 408.1 grams of crack, arising from the statements of three individuals who reportedly purchased nearly 370 grams of crack from Crawford over a period of several years.  Two of the three individuals who provided statements were paid informants, former addicts “working off” their own crack charges, and they provided the information for Crawford’s drug relevant conduct over the telephone to an ATF agent on the case.  The district court found the information provided was sufficiently reliable to serve as the basis for Crawford’s drug quantity and sentenced him according to the PSR calculation.

On appeal, Crawford contended that his sentence was procedurally unreasonable because the information provided by the call-in witnesses to the ATF agent was multiple hearsay and unreliable.

The Fourth Circuit determined that the district court did not err in relying on the information phoned in by these two witnesses because while the testimony was multiple hearsay and the witnesses were drug addicts who were looking to reduce their own sentences for crack offenses, they provided reliable information in this and in several other federal and state cases, and at least one of the individuals participated in a controlled purchase under the case agent’s surveillance. The Fourth Circuit affirmed Crawford's sentence.

Thursday, October 31, 2013

Traffic Stop Affirmed; Officer Question After Offer of Cooperation Not "Interrogation" for Miranda Purposes

US v. Johnson: Johnson was driving through a part of Baltimore in which officers "often stops motorists  . . . for minor offenses in the hope that these encounters will lead them to information about more serious crimes."  Johnson was pulled over due to a "bent and illegible temporary registration tag."  Further investigation uncovered marijuana, which led to Johnson being arrested.  While being transported to the police station Johnson said "I can help you out, I don't want to go back to jail, I've got information for you," to which one of the officers responded, "what do you mean?"  Johnson explained that he could "get you a gun," meaning lead them to a gun in his own home which, as a convicted felon, he could not possess.  That led to a consensual search of Johnson's home, the recovery of a firearm, and Johnson's conviction for being a felon in possession thereof.

On appeal, Johnson challenged the district court's denial of his motion to suppress evidence recovered from the traffic stop, as well as his statements to the officers in response to the "what do you mean?" question.  The Fourth Circuit affirmed Johnson's conviction and sentence.  With regard to the stop, the court rejected Johnson's argument that the district court clearly erred by crediting the officers' testimony - that the tag was bent and unreadable - over his own - that it was fine.  It further held that even if the intent of the officers was investigation beyond the traffic violation itself, that didn't undermine the stop as it was based on probable cause of a violation.  With regard to the statements made in response to "what do you mean?", the court held that because Johnson was offering information to try and help himself the question was not "interrogation" as would have required Miranda warnings to be given.  Presumably, when someone in custody offers to "help" the cops, it means something other than "help convict me of a serious federal felony."

Gigatribe Use Doesn't Automatically Lead to Distribution In Expectation of Receipt

US v. McManus: McManus possessed child pornography on his computer, on which he had installed the file-sharing software Gigatribe.  An FBI agent downloaded some of the child pornography files in McManus's shared folder using that software, although it's not clear precisely how he did it.  McManus pleaded guilty to possession of child pornography.  At sentencing, his offence level was enhanced five levels for "distribution . . . for the receipt, or expectation of receipt, of a thing of value."  The Guideline range was well above the 120-month statutory maximum and the district court varied down to impose a sentence of 72 months in prison.

McManus challenged his sentence on appeal and the Fourth Circuit agreed, vacating it for being procedurally erroneous.  McManus argued that his use of the Gigatribe software supported a mere two-level enhancement for simple distribution, not the five-level enhancement.  The court agreed, refusing to adopt the Government's position that the simple use of a limited-access program like Gigatribe (unlike a program that allows anyone access at anytime) implied a quid-pro-quo in the user's decision to allow someone else access to his files.  It would create a per se rule that is inappropriate when dealing with an enhancement so closely tied to the defendant's state of mind.  Other courts have reached the same conclusion.  As the error in calculating McManus's Guideline range wasn't harmless, the court vacated and remanded for resentencing.

3-Hour Interrogation During SWAT-style Execution of Search Warrant Was "Custodial," Required Miranda Warnings

US v. Hashime: Investigators who had obtained child pornography via Email eventually tracked the address to the Hashime home, where the 19-year old lived with his parents. Investigators obtained a search warrant and went to execute it:
Shortly after 9:00 AM on May 18, 2012, a team of 15-30 state and federal law-enforcement agents equipped with a battering ram descended on Hashime’s home. Hashime, at the time a 19-year-old community-college student, lived with his parents in suburban northern Virginia. The agents banged on the entrance, yelling “Open the door.”

After being let in by Hashime’s aunt, the officers streamed into the house with their guns drawn. An officer entered Hashime’s bedroom and pointed a gun at him. Hashime was in bed, naked and asleep, having gone to bed at 5 AM that morning. The officer ordered Hashime to 'Get up. . . . Get out of bed,' and instructed Hashime to show his hands. After Hashime put on boxer shorts, the officer held Hashime by the arm, issuing orders to him, and marched him out to the front lawn, where officers were corralling the other members of his family. Despite the chilly weather, the Hashime family members were kept outside, several of them dressed only in their nightclothes.
Hashime was taken to the basement and interrogated for three hours in a storage area, with Miranda warnings only given about two hours into the process. His mother was told he was under arrest, was denied the ability to obtain a lawyer for him, and could not speak or contact him during the questioning. The interrogation, during which Hashime made several inculpatory statements, was secretly recorded by the cops. Although they told Hashime he wasn't under arrest one officer explained that he "need[ed] to know the truth . . . even if you're afraid, I don't care if you say I don't want to answer that or I'm afraid to answer it."

Hashime was charged with just about every child porn charge (production, receipt, possession, etc.). The district court denied his motion to suppress the statements made during the interrogation, finding he was not in custody and therefore no Miranda warnings were needed. In making that decision, it relied heavily on Hashime's demeanor as recorded during the interrogation, which displayed "no kind of hesitation, no nervousness." Hashime pleaded guilty to receipt and possession charges and went to a bench trial on the production and distribution charges, of which he was convicted. At sentencing, the district court rejected Hashime's argument to set aside the mandatory minimums involved on Eighth Amendment grounds, but called the Government's requested 30-year sentence "way more than would be appropriate." Hashime was sentenced to the mandatory minimum term of 15 years in prison, plus a 20-year term of supervised release.

On appeal, Hashime challenged both his conviction and sentence. The Fourth Circuit reversed his conviction, holding that the district court should have granted his motion to suppress his statements made during the interrogation. Noting that the only issue was whether Hashime was in custody, the court concluded that an objective analysis of the situation showed that a reasonable person in his situation would have understood he was in custody. The court rejected the Government's argument that officer statements that Hashime wasn't under arrest and that they were only executing a search warrant "wholly ignores the larger setting." It also rejected the Government's reliance on the fact that the questioning happened in Hashime's home. Finally, the court rejected the district court's reliance on Hashime's demeanor during the interrogation. Thus, the Miranda warnings were given too late and the error in not suppressing Hashime's statements was not harmless.

Given the resolution of the Miranda issue, the court didn't technically reach Hashime's Eighth Amendment issue. However, it did opine that:
It suffices to note that, in line with our own review of the custody issue and the district court’s comments at sentencing, this was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant’s conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.
Judge King concurred, noting that the district court's conclusion that proportionatily review under the Eighth Amendment isn't available to sentences less than life in prison is an incorrect conclusion, based on Fourth Circuit precedent.

Thursday, October 03, 2013

Maryland Second-Degree Assault Conviction Doesn't Trigger ACCA

US v. Royal: Royal was pulled over in Baltimore and found to be in possession of a loaded antique pistol.  He was charged with being a felon in possession of ammunition.  The pistol itself was old enough that it didn't meet the definition of "firearm" set out in 18 USC 921.  He went to trial, at which an ATF agent testified about the antiqueness of the pistol, but did not go into detail about the ammunition.  Royal sought a judgment of acquittal, arguing that the Government failed to prove the ammo met the statutory definition of "ammunition," which is "designed for use in any firearm" (as defined by the statute, of course).  It was denied and Royal was convicted.  He was sentenced to 180 months in prison under ACCA based on a prior Maryland conviction for second-degree assault.

On appeal, the Fourth Circuit affirmed Royal's conviction, but vacated his sentence and remanded for resentencing.  As to the conviction, the court first held that there was no error in denying Royal's motion for a judgment of acquittal because the issue of whether the ammo was "antique" (in the sense that it was designed exclusively for a weapon too old to be a "firearm") was an affirmative defense that Royal did not raise.  The evidence presented by the Government was sufficient to support the conviction.  The court also turned down a plain-error challenge to the jury instructions related to that issue.

As to the sentence, the case had been held in abeyance pending the Supreme Court's decision last term in Deschamps.  In light of that decision, the court concluded that the Maryland second-degree assault statute is a "facially indivisible statute" and rejected the Government's argument that state court decisions had converted it into a divisible statute (assuming, without deciding, that such an analysis was appropriate in the first place).  As a result the correct analysis was the regular categorical approach, not the modified categorical approach (as utilized by the district court).  Based on that analysis, because the statute allows conviction based on "any unlawful touching," whether violent or not, Royal's prior conviction was not a "violent felony" for ACCA.

Congrats to the Defender office in Maryland on the win!

Thursday, September 12, 2013

Government Discovery Abuses Earn Censure

US v. Bartko:  Gregory Barkto received several convictions in the Eastern District of North Carolina in connection with his participation in a securities fraud scheme. In this appeal, Bartko challenges the denial of two of his four motions for a new trial for Brady or Giglio violations, the district court’s decision to consider an ex parte sealed document, the district court’s decision not to instruct the jury on accomplice/informant testimony and multiple conspiracies, and the district court’s application of several sentencing enhancements based on the amount of loss at stake, the number of victims, and Bartko’s status as a registered broker/dealer at the time of the offenses.

While the Fourth Circuit affirmed Bartko’s convictions and his 272-month sentence, its opinion takes a turn against the government in its discussion of the motions for a new trial, dissecting the discovery practices of the Eastern District of North Carolina’s United States Attorney’s Office, focusing its scrutiny on their repeated "mistakes" in this and other cases. Here, the Fourth Circuit reviewed three alleged constitutional violations - two examples of withholding discoverable evidence, and one instance of leaving uncorrected a witness’s false testimony.

From Judge Floyd:
[O]ur confidence in the jury’s conviction of Bartko was not undermined by the government’s misconduct in this case. And such is the result in many cases. Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices "harmless" as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. "No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it." United States v. Lee, 106 U.S. 196, 220 (1882). The law of this country promises defendants due process, U.S. Const. amend. V, and the professional code to which attorneys are subject mandates candor to the court, see Model Rules of Prof’l Conduct R. 3.3., and fairness to opposing parties, see id. R. 3.4. Yet, the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable. Something must be done...

What we know is that we are repeatedly confronted with charges of discovery abuse by this office. What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable. Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop.

Some of the other examples cited by the Fourth Circuit of discovery abuses include the sending of over 1,000 pages of discovery to a defendant in the week prior to trial, despite a court order to provide the discovery at least 14 days prior to trial, and in that same case, sending a fax to defense counsel without confirmation on the Saturday before trial started the following Monday; failing to disclose to a sexual predator that a victim would testify at the commitment hearing; and, failing to disclose potentially exculpatory grand jury testimony in a felon in possession case, despite requests for the production.

Finally, to ensure that these problems are addressed, the Fourth Circuit sent a copy to the Attorney General as well as the DOJ’s Office of Professional Responsibility. This may not be much consolation to Bartko, however, whose convictions and sentence were undisturbed.

NOTE: This case was decided on August 23, 2013.

Tuesday, August 27, 2013

Apartment Curtilage Doesn't Include Common Areas Right Behind Building

US v. Jackson: Jackson lived in his girlfriend's apartment in Richmond.  Police received a tip from a CI that he was selling drugs.  They went to the apartment and, at four in the morning, pulled two bags of trash out of the can that was placed out behind the apartment.  Based on the evidence in those bags the officers got a warrant, searched the apartment, and recovered guns, drugs, money and other evidence of drug distribution.
Jackson moved to suppress the evidence found in the apartment, arguing that the trash pull was unconstitutional.  Although the morning the officers searched the trash was trash day, the can had not been rolled out to the side street (accessed from a common sidewalk behind the building) for collection.  Instead, it was "sitting partially" in the back yard and "partially on the common sidewalk."  The officers testified that they did not step onto the patio to grab the trash bags.  The district court denied the motion, concluding that Jackson had no expectation of privacy in the trash can, that it was not within the curtilage of the apartment (aka on the patio), and that it was located in a common area.  Jackson entered a conditional guilty plea and was sentenced to 137 months in prison.

Jackson appealed and the Fourth Circuit affirmed, 2-1.  First, the court rejected Jackson's contention that the district court clearly erred by concluding that the trash can was not on the patio, but rather in the common area, when the trash pull took place, noting that the testimony of the officers was not directly contradicted by other evidence.  Second, the court concluded that the location of the can was not within the curtilage of the apartment.  Applying the Supreme Court's recent decision in Jardines, the court concluded that the curtilage extended to the edge of the back patio, but no further.  Finally, the court concluded that the Supreme Court's decision that a person lacked a reasonable expectation of privacy in trash left on the curb for pickup applied here and Jackson lacked such an expectation, even though the trash can was not out at the curb as needed for pickup.

Judge Thacker dissented.  Taking the facts as found by the district court, she argued that "I cannot subscribe to a version of the Fourth Amendment that permits agents of the state to conduct a warrantless search of a citizen's trashcan where the receptacle is located directly behind their home and not otherwise abandoned or left for collection along a public thoroughfare."  She also attaches several photographic exhibits from the joint appendix to provide a better idea of the layout of the area.

Maryland Offense of "Causing Abuse to a Child" Is Not "Crime of Violence"

US v. Carbrera-Umanzor: This is another case tacking the issue of whether a prior conviction is a "crime of violence," this time for purposes of the illegal reentry Guideline and its accompanying 16-level enhancement.  The district court concluded that Carbrera-Umanzor's prior Maryland conviction for "causing abuse to a child" qualified as a crime of violence.  It did so after concluding that the "modified categorical" approach applied, because the Maryland statute could be committed in some ways that would constitute a crime of violence.  The district court then concluded "without considering the elements of the state crime" that having sex with an 11-year old (as Carbrera-Umanzor, who was 19 at the time, was accused of doing) was a forcible sex offense and a crime of violence.  As a result, the enhancement applied on Carbrera-Umanzor was sentenced to 41 months in prison.

The Fourth Circuit reversed and vacated Carbrera-Umanzor's sentence.  Noting that the district court sentencing occurred before both the Fourth Circuit's recent decision in Gomez and the Supreme Court's decision in Deschamps, the court first found that the Maryland statute is not divisible, for categorical analysis purposes.  It is "generally divisible" - it can be committed in different ways - but the modified categorical approach applies "only if at least one of the categories into which the state may be divided constitutes, by its elements, a crime of violence."  Those elements, the court held, "simply do not line up with the elements of any of the potentially applicable crimes of violence" set forth in the Guideline.  The court then went on to conclude that the Maryland statute did not, categorically, set forth a crime violence.

Congrats to the Defender office in DMD on the win!

Simmons Is Retroactive (Even If It's Impetus Isn't)

Miller v. US: This is another case involving the fallout from the Fourth Circuit's 2011 decision in Simmons in which it reversed course on the proper analysis for prior convictions from North Carolina.

Miller was convicted in 2008 of being a felon in possession of a firearm.  At the time, his prior North Carolina convictions counted as felonies, even though under state law he could only have  received a maximum sentence of eight months in prison for each.  After Simmons, those priors no longer qualified as felonies.  Miller filed a 2255 motion to vacate his conviction as a result.  In spite of the Government's position that Miller's conviction should be vacated (even waiving any reliance on the 1-year statute of limitations for 2255 filings), the district court denied Miller's motion, holding that Simmons did not have retroactive effect, based on earlier Fourth Circuit precedent holding that the Supreme Court immigration decision that led to Simmons was not retroactive.

On appeal, the Fourth Circuit reversed.  Applying the Teague retroactivity analysis, the court concluded that Simmons announced a new substantive rule that was retroactive, even though the Supreme Court case that led to that decision announced a new procedural, rather than substantive, rule (and therefore is not retroactive).  The court distinguished its earlier case, upon which the district court relied, by noting that the dispositive issue in that case was whether the 2255 motion was timely filed, which involved deciding the retroactivity of the Supreme Court immigration case, but not Simmons.

Congrats to the Defender office in WNC on the win!

Thursday, August 15, 2013

Assault & Battery of Police Officer Not "Crime of Violence"

US v. Carthorne: Carthorne was convicted on drug and gun charges.  In the PSR, the probation officer concluded that Carthorne was a career offender, based in part on a prior Virginia conviction for assault and battery of a police officer - he walked up to a cop and spat in his face.  That increased his Guideline range from 181-211 months to 322 to 387 months in prison.  There were no objections to the PSR and Carthorne was sentenced to a term or 300 months in prison.

On appeal, Carthorne challenged his classification as a career offender, arguing it was plain error.  The Fourth Circuit agreed (unanimously) that he was right, but also agreed (2-1) that the error wasn't "plain" and thus affirmed his sentence.  In 2010, the court held that a conviction under the general Virginia assault and battery statute does not constitute a "crime of violence" for career offender purposes and it rejected the Government's argument that the involvement of an officer changed the result.  It rejected the Government characterisation of such situations as "powder kegs" because the officer is armed and required to respond to the provocation.  However, because other circuits had reached differing conclusions with similar statutes and there was no direct Fourth Circuit opinion on point, the court found the error wasn't plain and affirmed the sentence.

Judge Davis wrote an interesting opinion concurring and dissenting in parts.  He agreed that Carthorne's prior was not a crime of violence, but disagreed about whether the error of finding otherwise was "plain."  After evaluating prior Fourth Circuit cases on plain error, career offenders, and the 2010 case, he concluded that, even without a direct published holding on point from the Fourth.  He also took the majority to task for taking the rare path of finding error and deeming it not plain, rather than assuming error and "plainness" and resolving the appeal on the issues of prejudice or whether this was the type of error of which the court should take notice.  Of course, he also notes that "the government has not remotely suggested" that it could meet those challenges.  He then winds up with a powerful conclusion:
For years now, all over the civilized world, judges, legal experts, social scientists, lawyers, and international human rights and social justice communities have been baffled by the 'prison-industrial complex' that the United States has come to maintain. If they want answers to the 'how' and the 'why' we are so devoted to incarcerating so many for so long, they need only examine this case. Here, a 26-year-old drug-addicted confessed drug dealer, abandoned by his family at a very young age and in and out of juvenile court starting at age 12, has more than fourteen years added to the top of his advisory sentencing guidelines range (387 months rather than 211 months), because, as a misguided and foolish teenager, he spit on a police officer. His potential sentence thus 'anchored' and 'framed' at the high end, between 17 and 32 years, Carthorne may or may not feel fortunate to have received 'only' 25 years (300 months) in prison. I do not believe he is 'fortunate' at all.
Citation and footnote omitted

Tuesday, July 23, 2013

Mandate Doesn't Prevent Renewed Departure Request At Resentencing

US v. Alston: Alston was convicted of possession with intent to distribute more than 5 grams of crack and maintaining a dwelling used to sell drugs.  The Government filed an 851 information based on Alston's prior convictions, producing a 10-years mandatory minimum sentence.  Alston's Guideline range was 120 to 150 months in prison.  He was sentenced to 150 months, after the district court rejected a Government motion for an upward departure due to Alston's criminal history.  The Fourth Circuit vacated the sentence in light of Simmons and remanded.  At resentencing, Alston's Guideline range was 70 to 87 months.  Second time around the district court granted the Government's motion and departed upward, imposing a 120-month sentence.

The Fourth Circuit affirmed Alston's second sentence.  It rejected Alston's argument that the mandate of the first appeal prohibited the Government from renewing its departure request (it did not cross appeal the initial denial), noting that the sentence was vacated and remanded for resentencing de novo.  Given the "much altered Guidelines range landscape" at resentencing, and its duty to follow 3553(a), the district court was free to consider the Government's request.  The court also found the district court's failure to retroactively apply the Fair Sentencing Act harmless and that Alston's sentence was substantively reasonable.

NC "Consolidated Sentence" Only Counts As Single Prior

US v. Davis: Davis robbed a Wendy's in North Carolina and was convicted of a Hobbs Act robbery and firearm charges.  The PSR recommended that Davis was a career offender based on multiple prior North Carolina convictions for burglary.  Davis objected, arguing that the priors were a "consolidated sentence" that counted as only one prior offense.  The district court disagreed, noting that the priors were separated by an intervening arrest.  It sentenced Davis to 276 months, within the career offender Guideline range.

On appeal, the Fourth Circuit vacated Davis's sentence. The court noted that, for Guideline purposes, the operative prior event is the sentence, not convictions, and that a single sentence only counts once, regardless of how many convictions underlie that sentence.  In Davis's case, his prior convictions were consolidated under a specific North Carolina statutory provision that allows for the entry of a single judgment for consolidated offenses.  Thus, he "came to federal court with one consolidated sentence."  It noted that the North Carolina provision is a substantive one that affects the defendant's rights, not merely a procedural means for efficiently imposing multiples sentences in a single proceeding.

Congrats to the Defender office in WDNC on the win!

NOTE: This case was decided on June 24, 2013.

One Cannot Consent to the Use of One's Identity for an Unlawful Act

US v. Otuya: Otuya was involved in a scheme to defraud Bank of America using stolen "convenience checks" and the bank accounts of willing college student accomplices.  For his trouble he was convicted at trial of fraud and aggravated identity theft.  Among the evidence admitted at trial were items recovered from a backpack in Otuya's possession when he was arrested, including a Bank of America account profile and the ID of another Bank of America customer.  Otuya was sentenced to 72 months on the fraud charges, plus a consecutive 24-month term for the identity theft.

On appeal, Otuya challenged his convictions and sentences, all of which the Fourth Circuit affirmed.  As to his convictions, Otuya first argued that the evidence seized from the backpack was improperly admitted because it was offered to prove his poor character.  The court disagreed, agreeing with the district court that the evidence was intrinsic to the crimes charged and not "prior bad act" evidence at all and, even if it was, it was offered for reasons other than proof of character.  Second, Otuya argued that his identity theft conviction could not stand because his use of another's ID was not done "without lawful authority" because it was done with the consent of the other person (one of the college students).  The court disagreed, holding that "one does not have 'lawful authority' to consent to the commission of an unlawful act."  As to his sentence, Otuya argued that an enhancement for more than 50 victims did not apply because those "victims" - individual account holders with Bank of America - were made whole by the bank and sustained no actual losses.  Noting a circuit split on the issue, the court dodged the issue and noted an alternate definition of "victim" that included those who had their mail stolen and clearly numbered more than 50.  The court also affirmed the district court's loss calculation and its imposition of a 3-level enhancement for Otuya being a manager of the operation.

NOTE: This case was decided on June 19, 2013.

Gant Has No Application Where PC Exists to Search Car Anyway

US v. Baker: Baker was driving a car in which Brown was a passenger.  The car was pulled over and Baker was arrested on an "outstanding federal arrest warrant."  With Baker secure, the officer "turned his attention to Brown" who was eventually searched.  The search uncovered a gun, drugs, cash, and a small set of digital scales.  After Brown, too, was arrested, the officer search the car and recovered more drugs and another gun.  Baker was convicted at trial of various gun and drug offenses.  He later filed a 2255 motion alleging ineffective assistance of counsel due to his attorney's failure to argue that the search of the car was unconstitutional under Arizona v. Gant, which was decided while his direct appeal was pending.  The district court denied Baker's motion.

On appeal, the Fourth Circuit granted Baker's request for a certificate of appealability, but ultimately agreed with the district court that the 2255 motion should be denied.  The court noted that, whatever change in the law Gant wrought, it did not change the basic principle that a vehicle can be searched without a warrant so long as probable cause exists.  The court concluded that, once the evidence was recovered from Brown, there was probable cause to support a search of the car.  Since Gant wasn't applicable to the situation, Baker's counsel did not render ineffective assistance of counsel by failing to raise it on appeal.

NOTE: This case was decided on June 13, 2013.

Monday, July 15, 2013

Speed Trial Act Requires Motion Prior to Trial

US v. Cherry: Cherry was charged with gun and drug charges arising from an attempted traffic stop and chase.  He was arrested on state charges in March 2010, indicted on federal charges in July, then released to the federal detainer in April 2011.  He was tried in September 2011 and was convicted.  After the jury's verdict, but prior to the jurors being polled, the district court explained that they were not allowed to hear everything, including information about Cherry's prior criminal history.

On appeal, Cherry argued that his convictions should be reversed, for two reasons.  The Fourth Circuit rejected them both and affirmed his convictions.  First, Cherry argued that his prosecution violated the Speedy Trial Act.  The facts of that claim aren't developed in the opinion because the court concluded that Cherry waived his right to raise that issue by failing to raise it prior to trial.  Second, Cherry argued that the district court's remarks to the jury about Cherry's criminal history prior to polling them was error.  Reviewing for plain error, the court held that there was error and it was plain, but that Cherry could not demonstrate prejudice because "the evidence against him was overwhelming" and the circumstances indicated that the remarks did not impact the verdict.

NOTE: This case was decided on June 13, 2013

Immigrant On Overstayed Visa Is "Unlawful" for Firearm Possession Statute

US v. Sabahi: Sabahi came to the United States from Yemen pursuant to a visa in 1997.  The visa expired in 1998, but Sabahi remained.  He eventually registered with program called NSEERS (a "War on Terror-related program pursuant to which non-immigrant men of certain ages and from certain countries were fingerprinted, photographed, and interviewed").  He was placed in removal proceedings.  However, in 2003 he marred a US citizen and filed an application to "legalize his presence in the United States."  While this was going on, in 2007, Sabahi possessed  multiple firearms.  For that, he was charged with being "illegally or unlawfully present in the United States" while in possession of a firearm.  He moved to dismiss the charges, arguing that either his NSEERS registration or pending alteration proceeding meant he was not in the country "illegally or unlawfully."  The district court denied the motion and Sabahi was convicted following a jury trial.

The Fourth Circuit affirmed Sabahi's conviction.  The court agreed with the district court that neither Sabahi's NSEERS registration nor the adjustment proceedings took him outside the language of the statute.  As for the NSEERS registration, the court concluded that Sabahi's registration did not place him in the equivalent of "parole" status with regards to immigration.  As to the adjustment proceedings, the court concluded that until Sabahi's status was actually changed, those proceedings made no difference to the criminal charge.

NOTE: This case was decided on June 12, 2013.

Remand Required for Consideration of Alternatives to Forced Medication

US v. Chatmon: Chatmon was charged with conspiracy to distribute more than 280 grams of crack cocaine and 100 grams of heroin, a charge that carried a maximum penalty of life in prison.  He was determined to be incompetent due to schizophrenia and sent to FMC Butner to be "restored."  The report from Butner was that Chatmon could be restored to competency by the use of antipsychotic medication.  However, Chatmon would not agree to take medication.  Based on those findings, the Government moved to forcibly medicate Chatmon.  The district court granted the motion, finding Chatmon's offense to be "one of the most serious offenses that can be committed" and that forced medication was needed "because there is no less intrusive means shown to be available."

Chatmon appealed the district court's order and the Fourth Circuit reversed.  The court began by rejecting Chatmon's argument that his offense wasn't a "serious crime" that leads to the important Government interest in forcing medication.  It concluded that the question of a crime's severity is determined solely by the maximum potential punishment the defendant faces if convicted of it.  By that metric, his offense is, indeed, a serious crime.  However, the court agreed with Chatmon that the district court clearly erred by not considering alternatives to medication that may produce similar results, as it mentioned such considerations only in summary fashion.  That's particularly true where the defendant, as Chatmon did here, offers potential alternatives.

NOTE: This case was decided on June 10, 2013.

Altered, But Legible, Serial Numbers Still Lead to Enhancement

US v. Harris: Harris was arrested after threatening a woman with a gun.  The serial number of said firearm was described as having been "altered" with "numerous deep gouges and scratches across" it.  "However," the police report continued, "the numbers are still legible."  Harris pleaded guilty to being a felon in possession of a firearm.  At sentencing, the district court imposed a 4-level Guideline enhancement for possession of a firearm with an "altered or obliterated serial number," concluding (after an examination of the gun itself) that the damage was not accidental and interfered with the ability to read the number, even if it could be done.  Harris was sentenced to 105 months in prison.

On appeal, Harris argued that the district court erred by imposing the enhancement when the serial number was still legible.  The Fourth Circuit disagreed and affirmed the sentence.  The court noted that Harris's argument, that "altered" means changed so as to make the number illegible was "rational," it didn't take into account the fact that something can be altered if it is less legible than intended, rather than completely illegible.  Serial numbers altered in such a way interfere with the regulatory scheme (and the purpose therefore) requiring serial numbers in the first place.

NOTE: This case was decided on June 26, 2013.

Thursday, July 11, 2013

Shooting Is Relevant Conduct for Felon in Possession Conviction

US v. Ashford:  Ashford  was a felon.  He possessed a firearm.  He shot someone else three times, as part of an argument that escalated out of control.  At sentencing, the district court applied a Guideline cross reference to attempted second-degree murder, producing a Guideline range of 110-120 months in prison (the statutory maximum).  He was sentenced to 120 months.

On appeal, Ashford challenged his sentence on both legal and factual grounds.  The Fourth Circuit turned away both challenges and affirmed his sentence.  First, Ashford argued that the shooting wasn't relevant conduct for his offense of conviction.  Looking to USSG 1B1.3(a), he argued that all four subsections were conditions that must be met before something qualified as relevant conduct.  The court disagreed, finding subsections (3) and (4) to be linked, but only to each other and not to the other two subsections, which were also not linked to each other.  Specifically, conduct must satisfy either subsection (1) or (2) to be classified as relevant conduct.  Unlike US v. Horton, 693 F.3d 463 (4th Cir. 2012), the shooting here clearly occurred "during the commission" of the offense of conviction and qualified as relevant conduct under 1B1.3(a)(1).  Second, Ashford argued that the facts did not support a cross reference to attempted second-degree murder, but at most attempted voluntary manslaughter.  The court had "no trouble affirming" the sentence on the facts in the record.

NOTE: This case was decided on June 20, 2013.

Wednesday, July 10, 2013

No "Standing" to Assert Fourth Amendment Protection in Vehicle on Common Carrier

US v. Castellanos: A Ford Explorer was taken off a car carrier in Texas, inspected (with the consent of the carrier's driver) and found to contain $3 million worth of cocaine in the gas tank.  Castellanos arrived (from North Carolina) to pick up the Explorer (for which he had the title), which he was allegedly in the process of purchasing from Castaneda (who may or may not exist).  Castellanos was charged with conspiracy to possess with intent to distribute cocaine in North Carolina.  He moved to suppress the drugs found in the Explorer, but the district court concluded that he had no reasonable expectation of privacy in the Explorer, which had been "given over to a common carrier with addresses which were ascertained to be false."  Notably, Castellanos did not introduce the title into evidence during the suppression hearing.  He entered a conditional guilty plea and was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed the district court, 2-1.  The court agreed with the Government that Csatellanos failed to show any ownership or possessory interest in the Explorer that would allow him to assert any Fourth Amendment rights.  The burden of showing "standing" to assert a Fourth Amendment claim rests with the person asserting it.  Although Castellanos told the officer in Texas that he owned the Explorer he did not introduce any evidence to support that claim at the suppression hearing.  Similarly, he offered no evidence that he possessed the Explorer with permission from the actual owner (whether that be Castaneda or someone else).

Judge Davis dissented, arguing that the record showed that Castaneda was actually an alias for Castellanos and showed he had an interest in the Explore that would allow him to make a Fourth Amendment claim.  He also argued that neither the district court nor the Government "called on" Castellanos to prove "standing."

NOTE: This case was decided on May 29, 2013.

Restitution Payment Change Without Consideration of Ability to Pay Equals Abuse of Discretion

US v. Grant: Grant pleaded guilty to theft of government property in Florida.  She was sentenced to probation and to pay restitution of $250 per month.  That amount was later reduced to $125.  Her probation was then transferred to Virginia.  Grant's probation officer, upon learning that Grant had received tax refund checks the prior two years, moved the district court to add a condition to Grant's probation that she apply "moneys received from income tax refunds" or other "unexpected financial gains" to her outstanding restitution balance.  This was to take into account her "receipt of an annual windfall."  The district court agreed and imposed the condition.

On appeal, the Fourth Circuit reversed.  The court began by noting that there had been no material change since Grant's sentencing in Florida, as the PSR accurately recounted her regular receipt of tax refunds for several years.  It also hinted that the Government's argument that the district court's ability to modify conditions of probation (and supervised release) allowed for a modification of restitution amounts, but did not decide that issue.  Instead, it assumed that the district court could have modified Grant's probation conditions, but that doing so in this case was an abuse of discretion.  While the MVRA requires the total amount of restitution to be awarded without reference to the defendant's ability to pay it, the rate at which she must pay the restitution is tied to her ability to do so.  Because the district court did not consider Grant's ability to pay the increased restitution rate before modifying her conditions, it abused its discretion.

Congrats to the Defender office in EDVA on the win!

NOTE: This case was decided on May 9, 2013

No Restitution For "Victim" of Possession of Stolen Firearm

US v. Davis: Davis broke into a home, stole a gun, ammo, and some jewelry, then escaped into the woods, where was apprehended (with the ammo and jewelry, but not the gun).  He pleaded guilty to possession of a stolen firearm.  The PSR identified the homeowner as a "victim" of Davis's offense and noted that he submitted a claim for $695 in restitution.  However, the PSR also noted that no restitution was applicable in this case absent some agreement between the parties (of which there was none - the plea agreement merely referenced the restitution statute).  Regardless, at sentencing, the district court ordered Davis to pay restitution to the homeowner.

On appeal, the Fourth Circuit reversed.  First, the court held that the homeowner was not a "victim" for restitution purposes because the statutory definition limits the definition of victim to the elements of the offense of conviction, not other conduct engaged in by the defendant.  Second, the court held that the plea agreement's reference to the restitution statute was not an agreement by the parties for Davis to pay restitution to anyone outside that statutory definition of "victim."  The court's order was therefore erroneous, plainly so, and affected Davis's substantial rights.  The court noticed the plain error and remanded.

NOTE: This case was decided on May 1, 2013.

Tuesday, July 09, 2013

Maryland Resisting Arrest Conviction Is "Crime of Violence," Says Divided Court

US v. Aparicio-Soria: Aparicio-Soria was convicted of illegal reentry.  At sentencing, the main issue was whether a prior Maryland conviction for resisting arrest was a "crime of violence" so as to support a 16-level Guideline enhancement.  Applying the categorical approach, the district court concluded that it was unclear whether the level of force necessary to commit the generic offense was sufficient to trigger the enhancement.  Turning to a modified categorical approach, the district court concluded that the actual force involved (Aparicio-Soria fled, drunk, from officers, first in a car and then on foot, finally being subdued during a struggle in which he bit one officer in the hand) did trigger the enhancement.

Aparicio-Soria appealed his sentence, which the Fourth Circuit affirmed, 2-1.  The court held that there was no need to go beyond the basic categorical approach, as the statute as issue was nondivisible.  Thus, the proper focus was only on the elements of the offense, not the particular facts underlying Aparicio-Soria's prior conviction.  "Force," the court explained (drawing from ACCA cases) means "violent force . . . capable of causing physical pain and injury to another person."  Maryland state courts define the elements of Aparicio-Soria's prior offense as including resistance "by force or threat of force."  The court also held that there was an "abundance of evidence" that state courts require that force to be "violent" and directed against another person.  As a result, a Maryland conviction for resisting arrest is a "crime of violence" that triggers the Guideline enhancement.

Judge Davis concurred in part and dissented in part.  Agreeing with the majority that the categorical approach applied, he nonetheless concluded that resisting arrest does not necessarily involve "violent force."  In doing so, he criticized the majority's "freewheeling analysis of underlying conduct in a smattering of reported cases" and "linguistic jiu jitsu," concluding that while the end result won't matter much to Aparicio-Soria, the "damage done here is to the rule of law in this circuit, a much more lasting wound."

NOTE: The court has granted Apraicio-Soria's petition to rehear this case en banc.

Monday, April 29, 2013

Conviction Affirmed, Sentence Vacated In Crack Conspiracy Case

US v. Allen: Allen was involved in a large crack distribution operation in North Carolina.  Although he conceded that he had sold drugs to a member of the conspiracy, he denied being part of the conspiracy itself.  He was convicted of conspiracy to possess with intent to distribute 50 grams or more of crack cocaine and sentenced to the then applicable mandatory minimum sentence of 10 years.

On appeal, Allen challenged his conviction and sentence.  As to his conviction, Allen first argued that the evidence showed two transactions, but not any involvement in the larger conspiracy.  The court disagreed, noting that the amount Allen sold, over such a short period of time, was certain to be distributed by the conspiracy.  Second, Allen argued that the district court erred by refusing to let him see the PSRs and sealed sentencing memoranda of others convicted in the conspiracy.  The court disagreed, holding that Allen's "conclusory" claims about what those document might reveal did not justify disclosure.  Third, Allen argued that the district court erred by not allowing him to present expert testimony to help explain the impact of the plea agreements entered into by other codefendants.  The court disagreed, concluding that expert testimony of that nature was not appropriate under the Federal Rules of Evidence.  As to Allen's sentence, the Fourth Circuit agreed that the Fair Sentencing Act applied and Allen was not subject to a 10-year mandatory minimum sentence.  It vacated the sentence and remanded.

Unnecessary Cardiac Stents Can Support Health Care Fraud Conviction

US v. McLean: McLean was a heart doctor who performed (among other things) procedures that inserted stents into the arteries of those with blockages.  Following an internal investigation at the hospital where he worked, which led his resignation, McLean was charged with health care fraud and several counts of filing false paperwork as a part of the fraudulent scheme.  The basis for the fraudulent scheme was that McLean would bill insurance companies for medically unnecessary stent procedures (i.e., a procedure where the arteries weren't blocked enough to warrant it).  After trial, McLean was convicted and sentenced to 97 months in prison.

On appeal, McLean challenged both his convictions and his sentence.  The Fourth Circuit affirmed.  As to his convictions, McLean raised three arguments.  First, he argued that the health care fraud statute as applied to him was unconstitutionally vague because it contained no clear standard of "medical necessity."  The court disagreed, concluding that the requirement that the Government prove the fraud was done "knowingly and willfully" covered any fair notice argument McLean might have.  Second, McLean argued that there was insufficient evidence to support his convictions.  The court disagreed, concluding that there was sufficient evidence from which a jury could conclude he was guilty (see the opinion for a lengthy discussion of those facts).  Third, McLean argued that several evidentiary issues deprived him of a fair trial.  The court disagreed, finding no Brady error with regard to one piece of evidence and no abuse of discretion on the district court's part on the others.  As to his sentence, McLean argued that the district court erred when calculating the amount of loss attributable to him.  The court disagreed, finding no clear error in the district court's acceptance of the hospital's calculation of loss that included additional expenses incurred beyond the actual payments fraudulently obtained.

Categorical Approach, Not Modified, Applies to Oregon Prior Drug Distribution Charge

US v. Medina-Campo: Medina-Campo, a Mexican national, was deported in 2005 following his conviction in Oregon on several drug counts, including distribution of heroin, for which he was sentenced to 24 months in prison.  After being stopped for DUI in Maryland, Medina-Campo was charged with illegal reentry after having been deported due to an "aggravated felony."  He pleaded guilty.  At sentencing, the district court applied a 16-level enhancement based on Medina-Campo's prior conviction being a "drug trafficking offense" (over Medina-Campo's objection) and sentenced him to 50 months in prison, 7 months below the bottom of the Guideline range.

On appeal, Medina-Campo challenged his sentence, arguing that his prior conviction was not a drug trafficking offense, as defined by the Guidelines, and his true sentencing range was only 15 to 21 months, because Oregon law include solicitation of the delivery of drugs within the delivery statute.  The Fourth Circuit disagreed and affirmed his sentence.  The court concluded that a regular categorical approach, rather than a modified one, was appropriate, rejecting Medina-Campo's argument that the Oregon statute at issue delineated multiple offenses.  Applying that approach, the court concluded that any conviction under the Oregon statute is a "drug trafficking offense."

Saturday, April 20, 2013

Duplicates are counted as separate images for §2G2.2(b)(7)

US v. PriceSean Price uploaded images of child pornography to and West Virginia State Police traced the images to Price’s email account.  The state police obtained a search warrant and seized several computers and hard drives from Price’s home.  Fifteen images were discovered on the hard drives; Price also submitted to an interview with police in which he admitted to possessing child pornography. 

Sometime after the police search and seizure at Price’s residence, four emails containing attachments of child pornography were sent to ninety-three individuals.  The emails were sent to appear as if the sender was a West Virginia State Police Sergeant.  Price later admitted that he created the subterfuge of sending the emails. 
A grand jury indicted Price with accessing the internet via computer with the intent to view child pornography; Price pleaded guilty.   The district court sentenced Price as if he had possessed well over 600 images, based on the images sent in the emails, multiplied by the number of recipients.  Price wanted the district court to count only those images he actually possessed, 113, and that he did not duplicate the images when he sent them to multiple individuals via email. 
The Fourth Circuit determined that the language of the Application Note 4 to U.S.S.G. §2G2.2 , “[f]or the purpose of determining the number of images under subsection (b)(7):  each photograph, picture, computer or computer-generated image, or any similar visual depiction shall be considered to be one image,”  means that each and every image, regardless of originality, must be counted separately. 

Two trial errors not reversible error in tax fraud case

US v. WoodsA grand jury charged Michael Woods with multiple counts of preparing and presenting false and fraudulent tax returns, wire fraud, identity theft and aggravated identity theft, in connection with his side business of preparing tax returns for private individuals (Woods worked full-time for the U.S. Department of Veterans’ Affairs  as a data warehouse manager). 

The government alleged that Woods added false information to his private customers’ tax returns in order to qualify them for substantial refunds.  Woods also allegedly listed non-existent dependents for some customers, for which he charged $500 in extra fees, by stealing names of false dependents from the VA computer system.   Woods represented himself at trial with stand-by counsel; after a four-day trial, a jury convicted him on all counts. 
Woods appealed several trial issues, two of which the Fourth Circuit determined to be errors:  1) that the government made an improper statement in closing argument, by stating that Woods lied under oath at trial about part of his fraud scheme; and 2) the district court improperly declined to issue a jury instruction about Woods’ good character.   Despite a finding that the government’s statement in closing was improper and that plain error results when the government statutes that a defendant has lied under oath at trial, the Fourth Circuit determined that the trial was not impacted by the improper statement, because a considerable portion of the government’s evidence directly contradicted Woods’ theory of defense.  Further, the government’s line of questioning a defense witness, in which Woods’ guilt was assumed for the purpose of influencing the content of the witness’s character testimony, and the district court’s decision not to give a good character jury instruction based on the tainted line of questioning, was similarly improper.  The Fourth Circuit concluded that the jury would have concluded that Woods was guilty with or without the jury instruction.  Ultimately, the two errors were not reversible error, and the Fourth Circuit affirmed the convictions. 

TN statutory rape conviction not “crime of violence” for sentencing enhancement

US v. Rangel-CastanedaRangel-Castaneda received an indictment for one count of illegal re-entry after his arrest in 2010 for driving while impaired and failing to register as a sex offender. He pleaded guilty to this offense in June 2011.  Previously, Rangel-Castaneda had received a conviction in Tennessee for having sex with his then-girlfriend, who was 16 years old at the time, for aggravated statutory rape.  At Rangel-Castaneda’s sentencing for illegal re-entry, the district court considered the Tennessee statutory rape conviction a “crime of violence” for sentencing enhancement purposes.   Rangel-Castaneda appealed the propriety of this sentencing decision.

The Fourth Circuit determined that Rangel-Castaneda’s Tennessee statutory rape conviction was not a “crime of violence” for sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(c).   Because Tennessee’s statute sets the age of consent at 18, significantly broader than the generic statutory rape offense across the country (the generic age of consent, based on a canvas of many states’ rape statutes, is 16), the Tennessee statute is overbroad under a “categorical” approach to determine whether a conviction qualifies as a “crime of violence.”  According to the Fourth Circuit, the disparity between the predicate state crime here and Rangel-Castaneda’s contended generic offense “cannot be considered insignificant.”  Moreover, to hold the statutory rape conviction here as a “crime of violence” would criminalize behavior that in neighboring states would be perfectly legal is just the kind of odd and unjust result that the Supreme Court intended to preclude with Taylor v. United States. 

Crack sentence reduction permitted when district court made no specific finding of defendant’s drug relevant conduct

US v. MannConvicted in 1998 for cocaine and crack offenses, Mann had originally been sentenced according to the Sentencing Guidelines in place at that time.  Then, a defendant responsible for 1.5 kilograms of more of crack received a base offense level of 38, the highest quantity-based base offense level, no matter how much cocaine was also involved in Mann’s convictions.  Mann petitioned for a reduction in his sentence when the Sentencing Commission changed the penalties for crack offenses in 2008 and in 2011.  Pertinent to this appeal, the district court that originally sentenced Mann gave him a sentencing reduction, finding that the record did not support a finding, as the government argued, that Mann should have been held responsible for 8.4 kilograms of crack and that he should be ineligible for a sentencing reduction. 

The Fourth Circuit held that the district court did not clearly err in its decision that it made no (uncorrected) finding that Mann had been responsible for any specific amount above 1.5 kilograms of crack.  Additionally, the Government argued that the district court, at Mann’s resentencing, could make additional findings as to drug amounts, consistent with its original findings, in making a resentencing determination.  Other circuits have held that addition findings are within the district court’s discretion; however, the Fourth Circuit held that the district court did not abuse its discretion by deciding not to make additional findings here, more than a decade after the original sentencing.

Tuesday, April 02, 2013

Officer Lie to Obtain Search Warrant Voids Guilty Plea

US v. Fisher: Fisher was arrested and charged with possession with intent to distribute crack and being a felon in possession of a firearm after a search of his home, pursuant to a warrant, uncovered drugs and a gun.  Fisher pleaded guilty to the felon in possession count and was sentenced to 10 years in prison.  The warrant to search Fisher's home had been procured by a DEA agent named Mark Lunsford who, in the affidavit supporting the warrant application, told of a tip from a confidential informant who had provided reliable information in the past.  A year after Fisher pleaded guilty, Lunsford himself was charged with crime related to his duties as a DEA agent.  As relevant to Fisher's case, he admitted that the CI identified in the warrant affidavit "had no connection to the case" and that someone else was the "real informant."

After Lunsford entered a guilty plea based on his misconduct, Fisher filed a pro se motion to vacate his guilty plea.  The district court eventually (after appointing counsel for Fisher) denied the motion, concluding that although Fisher almost certainly would have filed a motion to suppress had he known of Lunsford's false affidavit and that motion might have been successful, he nonetheless admitted his illegal possession of the firearm. Thus, not allowing him to withdraw his guilty plea would not work a "miscarriage of justice."  The district court also noted that neither Fisher's counsel nor the Government knew of Lunsford's duplicity and could not be faulted for allowing him to enter the plea.

On appeal the Fourth Circuit reversed, 2-1.  The court recognized that to set aside a guilty plea because it is involuntary a defendant must show (1) some egregiously impermissible conduct and (2) that the misconduct influenced the decision to plead guilty.  The court found that Fisher met the first requirement because "government misrepresentation constitutes impermissible conduct."  It recognized that this case involved "highly uncommon circumstances in which gross police misconduct goes to the heart of the prosecution's case."  Furthermore, Fisher did not seek to withdraw his plea merely because of buyer's remorse - he  calculated his options and calculated incorrectly - but because of a misapprehension about the strength of the Government's case brought about by police misconduct.  The court held that it was immaterial that Fisher did not claim to be actually innocent of the charge to which he pleaded guilty.  The court also concluded that Fisher likely would not have pleaded guilty had he known about Lunsford's fraudulent affidavit.  As a result, the totality of the circumstances required the vacation of Fisher's plea because it was involuntary and made in violation of his due process rights.

Judge Agee dissented, arguing that the court's application of the "affirmative misrepresentation" standard had no basis in prior precedent and that, ultimately, Fisher is stuck with his guilty plea.

Friday, March 22, 2013

Only one Orioles fan in Baltimore? Well, it was the off-season

US v. Moore:  Tyrone Moore was charged with carjacking, using a firearm in furtherance of carjacking, and conspiracy.  Police encountered Moore wearing Orioles gear, in the company of another individual, Walton, who had a key to the stolen car in his pocket.  The vehicle in question had been stolen seven days earlier, and had been involved three days after the carjacking in a controlled buy, when it had been driven by another individual known to police, Michael Pollin.  When the police took the key from Walton, they located the stolen vehicle nearby; inside the vehicle, police discovered an Orioles baseball hat.  From Moore’s friendship with Walton, as well as his attire that evening, police photographed Moore.  The owner of the stolen vehicle, who admittedly only saw the carjacker’s eyes and dreadlocks on the evening of the theft, later identified Moore as the car thief in a photo line-up (the perpetrator wore a hat and bandana covering his face).

As his defense at trial, Moore made the identity of the carjacker the main focus.  Pollin was the first individual seen by police driving the stolen vehicle three days after the carjacking.  The government had provided Moore with a picture of Pollin allegedly taken around the time of the car theft; the government presented at trial the photo of Pollin which showed that he did not have dreadlocks around that time.  Additionally, a police detective familiar with Pollin testified at trial that he was not aware that Pollin had ever worn dreadlocks.  A defense witness offered testimony that Pollin indeed had dreadlocks around this time, but this testimony was weak in comparison to the detective’s testimony and the government’s photos of Pollin.  Moore was convicted.

Shortly after trial, Moore continued to insist that Pollin had dreadlocks at the time of the carjacking, and the government continued to insist that Moore was either mistaken or lying.  Moore’s counsel met with a former attorney of Pollin’s, who was in possession of a properly dated booking photograph of Pollin with dreadlocks, taken around a month after the carjacking.  Upon the basis of this photograph as newly discovered evidence and the government’s failure to disclose it as a Brady violation, Moore petitioned the district court for a new trial, which the district court denied.  Moore appealed to the Fourth Circuit, which determined that Moore was entitled to a new trial.

In the Fourth Circuit, to succeed on a Rule 33 motion for a new trial, a defendant must satisfy a five-part test by demonstrating: 1) newly discovered evidence; 2) defendant exercised due diligence; 3) the newly discovered evidence is neither cumulative nor impeaching; 4) the evidence is material; and 5) the evidence would probably result in acquittal at a new trial.  The district court did not believe that the newly discovered evidence Moore possessed was material; however, the Fourth Circuit determined that Moore had made the carjacker’s identity the chief focus of the trial, and thus, any newly discovered evidence relevant to the carjacker’s identity was “undoubtedly” material.  The Fourth Circuit vacated Moore’s conviction and remanded to the district court.

Monday, March 04, 2013

No Requirement That Courts Apply Higher Competency Standard for Self Representation

US v. Bernard: Bernard was charged with gun and drug offenses.  Based on a long history of mental illness, the district court ordered a competency evaluation.  He was initially deemed incompetent to stand trial (due to schizophrenia, paranoid delusions, and disorganized thought processes), but after treatment was determined to have been restored to confidence.  At the second competency hearing, the district court addressed a motion by Bernard to proceed pro se (with then assigned counsel as standby).  The district court, having found Bernard competent, granted the motion, although it noted it was "not real comfortable with this" because it was a "fluid situation" that "may not be the same tomorrow."  Bernard went to trial and was convicted (after 12 minutes of deliberation!).  Sentencing, at which Bernard was again fully represented by counsel (although it's unclear precisely how that came to be) was initially delayed "after it became clear that [Bernard]'s mental condition was wholly compromised at that time."  When sentencing reconvened, Bernard was sentenced to 180 months in prison.

Bernard appealed his convictions, arguing that the district court erred by allowing him to proceed pro se and represent himself at trial and that, under the Supreme Court's 2008 decision in Edwards, the court was required to apply a higher standard to the pro se issue than the competency issue.  The Fourth Circuit disagreed and affirmed, 2-1.  Proceeding with a plain error analysis, the court first noted the fundamental nature of the Sixth Amendment right to self representation and that the Supreme Court in Godinez (1993) rejected the argument that the competency to waive constitutional rights (including the right to counsel) was a higher threshold than the competency to be tried in the first place.  Edwards, the court concluded, did not change that standard, but only permits the states to require counsel in cases where a defendant is competent to stand trial, but perhaps not competent to proceed pro se, but the Constitution does not require it.  As a result, there was no error, much less plain error, in the district court allowing Bernard to proceed pro se at trial.  Nor was the district court required to sua sponte revisit the issue of competency during trial.

Judge Diaz dissented, agreeing with the majority that Edwards provided a discretionary, not mandatory, duty on trial courts facing this issue, but disagreed that the district court in this case was aware of that discretion.

Fake Distress Call That Summons Coast Guard Suffices for Federal Crime

US v. Deffenbaugh: Deffenbaugh was on probation for a Maryland state conviction and was facing revocation.  To avoid that fate, he attempted to fake his own death, jumping off a boat off the Virginia coast and slipping away (with the help of his girlfriend) while the Coast Guard and others tried to locate him.  Rather that be pronounced dead and avoid incarceration, Deffenbaugh and his girlfriend were apprehended in Texas and returned to Virginia.  Deffenbaugh was charged with conspiring to cause a fake distress call to the Coast Guard and substantively causing that call.  He was convicted of both counts at trial (at which his girlfriend testified against him) and sentenced to a total of 84 months in prison.

On appeal, Deffenbaugh challenged both his conspiracy conviction and sentence, both of which the Fourth Circuit affirmed.  As to the conspiracy conviction, Deffenbaugh argued that the evidence was insufficient because it could not show that he and his girlfriend shared "the same criminal objective" because she didn't know that the Coast Guard would respond to the 911 call made about Deffenbaugh's disappearance.  Because she did not act with that knowledge, the aim of the conspiracy was not commit a federal crime.  The court disagreed, concluding that the knowledge requirement of the statute when to the falseness of the call itself, not the jurisdictional hook (i.e., that the Coast Guard would response).  The evidence was sufficient to show that Deffenbaugh and his girlfriend shared that knowledge.  As to the sentence, the court concluded that the district court was not plainly unreasonable by looking to the fraud Guideline for guidance in sentencing Deffenbaugh for an offense without an applicable Guideline range.  The court also concluded that his ultimate sentence, including the district court's decision to impose consecutive sentences, was not plainly unreasonable.

SORNA Requires Registration of Juvenile Offender

US v. Under Seal: JD (for "juvenile defendant") was judged delinquent based on allegations of sexual assault against his half sisters.  He was sentenced to a term of incarceration and supervision until his 21st birthday.  A special condition of that supervision is that he register as a sex offender under SORNA, over JD's objection.

On appeal, the Fourth Circuit affirmed that condition.  The court first noted that JD fell within the language of SORNA's definition of a "sex offender" because he was over 14 years of age and had been adjudicated as delinquent.  It then rejected JD's two arguments that the registration requirement nonetheless was invalid.  First, JD argued that the registration requirement violated the confidentiality provisions of the Federal Juvenile Delinquency Act.  The court disagreed, concluding that the more specific provisions of SORNA controlled over the general confidentiality provisions of the FJDA and that Congress clearly intended that result.  Second, JD argued that the registration requirement violated the Eighth Amendment's prohibition against cruel and unusual punishment.  The court disagreed, concluding that SORNA is a "non-punitive, civil regulator scheme, both in purpose and effect" that did not implicate the Eighth Amendment.

Waiver Precludes Review of Erroneous Guideline Calculations

US v. Copeland: Copeland pleaded guilty to one count of distribution of more than five grams of crack cocaine.  As part of his guilty plea, Copeland waived his right to appeal any sentence within or below the advisory Guideline range calculated at sentencing (the Government waived nothing).  Prior to sentencing, Copeland was designated as a career offender based on (among others) two prior North Carolina convictions and his advisory Guideline range calculated as 188 to 235 months.  One of those convictions also served to increase Copeland's statutory range from five-to-40 years up to 10-to-life.  Sentencing occurred while Simmons was awaiting rehearing in the Fourth Circuit and Copeland maintained an objection to the use of the North Carolina priors in determining his sentence.  The district court imposed a sentence of 216 months and announced that, even if there were any problems in calculating the Guideline range, it would have imposed the same sentence anyway.

Copeland filed an appeal, challenging his classification as a career offender, the length of his sentence, and the district court's failure to continue his sentencing.  The Government invoked the waiver in the plea agreement and moved to dismiss Copeland's appeal.  As to the career offender and substantive reasonableness of the sentence, the court granted the motion to dismiss.  Finding the waiver valid, the court concluded that the Guideline calculations were at the heart of it, even though the eventual outcome in Simmons shows them to have been wrong (an error which the Government admitted).  A future change in the law does not render an otherwise valid waiver invalid.  Furthermore, the sentence was not substantively "illegal" and therefore outside the scope of the waiver.  As to the continuance, the court found the district court did not abuse its discretion.

Tuesday, February 26, 2013

Another Strong Affirmation of the Fourth Amendment's Vitality

US v. Black: Two officers in Charlotte saw a car parked at a gas pump in a convenience store parking lot and thought it suspicious, as the driver sat inside for several minutes before driving off.  They followed the car, which parked in a parking lot between two apartment complexes.  A computer check on the car returned nothing suspicious.  The driver, Troupe, parked and joined a group of five other men, including Black, standing and talking in the parking lot.  After calling for backup, in order to make "voluntary contact," the officers approached the men, one of whom an officer recognized from prior arrests.  When he saw officers approaching, Troupe pointed to the openly-carried gun in a holster on his hip.  An officer seized the gun (even though open carry is legal in North Carolina - the officer "had never seen anyone do it") and then, based on the theory that when one gun is present another is also, officers began frisking the other men.

When another officer began talking to the men Black voluntarily provided his ID, which the officer thought suspicious because the other men were "argumentative and did not give any information."  It showed that he living in another part of Charlotte.  He told the officer he was visiting friends.  The officer kept Black's ID and "pinned it to his uniform" while questioning the others.  Another officer described Black as "extremely cooperative."  While the others were being frisked, Black was seen leaning forward on the edge of his seat and looking left and right, which officers interpreted as him looking for an escape route.  Black got up and started to leave, but was told he wasn't free to go.  He walked away anyway, until an officer grabbed his bicep (and felt his "'extremely fast' pulse through Black's t-shirt").  A struggle ensued, during which Black was placed in handcuffs and a firearm was recovered from Black.  He was charged with being a felon in possession of a firearm.  His motion to suppress was denied, Black entered a conditional guilty plea, and he was sentenced to 180 months in prison.

On appeal, the Fourth Circuit reversed the district court's denial of Black's motion to suppress.  The court first concluded that Black had been seized (for Fourth Amendment purposes) prior to the officer's statement that he was not free to leave, due to a combination of factors including the "collective show of authority" of the officers, the fact that Troupe's firearm had been seized and that he, at least, was not free to leave, and the retention of Black's ID.  Thus Black was seized at the point his ID was pinned to an officer's uniform and another officer began frisking everyone on the scene.  The court also noted that, although it did not resolve the issue, it "doubted that this encounter was consensual at its inception."  The court then concluded that the totality of circumstances at the time of the seizure (which didn't include Black's looking left and right or his attempt to leave the area) did not support reasonable suspicion to support a seizure.  The court called this case "yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot be rationally relied on to establish reasonable suspicion."  In conclusion, the court said:
The facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic. In the words of Dr. Martin Luther King, Jr., we are reminded that 'we are tied together in a single garment of destiny, caught in an inescapable network of mutuality,' that our individual freedom is inextricably bound to the freedom of others. Thus, we must ensure that the Fourth Amendment rights of all individuals are protected.
Congrats to the Western District of NC defender office on the win!