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.
Tuesday, August 27, 2013
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!
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!
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:
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
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