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.