Tuesday, December 23, 2014

Simmons-Fueled Career Offender Error Cannot Be Vacated By 2255 Motion

US v. Whiteside: Whiteside was sentenced as a career offender based on a pair of North Carolina convictions.  After Simmons, those convictions are no longer felonies.  Whiteside filed a 2255 motion within a year after Simmons was decided seeking to vacate his sentence.  The district court denied the motion, for various reasons.  On appeal, a panel of the Fourth Circuit reversed, finding that Whiteside had not waived his right to file the motion, that it was timely because it was filed within a year of Simmons and, at any rate, equitable tolling applied.  The panel also concluded that Whiteside prevailed on the merits and ordered his sentence vacated.

The Government sought rehearing and the full Fourth Circuit reversed the panel, affirming the denial of Whiteside's motion.  In doing so, the en banc court (Judge Wilkinson writing the opinion) did not reach the merits, but concluded that Whiteside's motion was not timely filed.  Although it was filed within a year of Simmons, the court concluded that Simmons only stated new law, and would not constitute a new "fact" which restarted the one-year statute of limitations in 2255.  The court distinguished between a situation where a prior conviction itself was vacated - it's nonexistence is a "fact" - and a legal change that renders the still extant conviction different in kind.  The en banc court also concluded that equitable tolling did not apply, noting that although it might have been futile for Whiteside to file a 2255 on these grounds before Simmons, other defendants had done so (Simmons, for one).

Judge Gregory dissented, joined by Judge Davis, arguing that the majority had misconstrued its ability to act equitably (in light of recent Supreme Court precedent) and that it "is simply unjust to deny someone the opportunity to receive a properly calculated sentence."  He also argues that the majority places too much weight on concerns about finality, noting the recent waves of amendments to the Guidelines that have been made retroactive.  Judge Wynn also dissented, arguing (by quoting Judge Wilkinson from 2012) that the opinion would "drive citizens to rub[] their eyes and scratch[] their heads" and that if the "objectively reasonable person on the street" was asked whether a court could fix this mistake the "response would be 'Of course.  Why do you ask?'"

Friday, December 19, 2014

Court Affirms Denial of 2255 Motion With Selective Prosecution Claim

US v. Mason: Mason was driving a car in Georgia when it was stopped for having overly tinted windows.  The trooper also suspected that Mason and his passenger were up to something because he did not pull over immediately, there was a strong air freshener smell from the car, their stories about where they were going differed, and "there was no visible luggage."  The trooper requested back up and a drug dog, noting that "these guys are spooky, spooky."  He later said that he "felt like we were fixing to have a violent confrontation" because Mason and his passenger were "older black males that are not in good shape" and they were likely "ready to shoot it out."  Mason refused to consent to search.  The drug dog arrived (after Mason got a ticket for the tint), alerted and 10 kilograms of cocaine was found in the trunk.

Mason was charged in South Carolina was conspiracy to possess with intent to distribute more than five kilograms of cocaine.  After the district court denied his motion to suppress, he went to trial, where the passenger was the primary witness against him.  In addition, a recording of a conversation between Mason and the passenger in the back seat of the cop car was introduced.  During closing argument, the Government argued that in the conversation Mason didn't express much surprise at the cocaine being found in the trunk.  The jury convicted Mason and he was sentenced to life in prison.  His conviction and sentence were affirmed on appeal.  Mason filed a 2255 motion alleging that his trial and appellate attorney had been ineffective, which the district court denied.

On appeal, the Fourth Circuit affirmed the denial of Mason's 2255 motion.  The court rejected Mason's argument that counsel was ineffective for not pursuing a claim that he was subject to "racially selective law enforcement," calling such a claim "a long shot," particularly when compared to the Fourth Amendment argument that counsel did raise.  Mason could point to no Supreme Court or Fourth Circuit cases where such a claim had been successful.  Nor did the district court err by not holding an evidentiary hearing on the issue.  The court also rejected Mason's argument that trial counsel was ineffective for not properly challenging the Government's use of his post-arrest behavior during closing argument.  The recorded conversation was done after Miranda warnings were given, was not custodial, and had no police involvement at all.

Judge Gregory concurred and dissented, arguing that Mason's trial counsel was ineffective for not even investigating the potential equal protection claim, based on the testimony of the officer during the suppression hearing.

District Court "Repeated and Direct" Urging that Defendant Accept Plea Bargain Is Plain Error

US v. Sanya: Sanya ran a credit card fraud scheme, to which he pleaded guilty in federal court July 2012.  He was released on bond pending sentencing.  Six weeks later he was arrested after having restarted the fraud scheme.  He was charged in federal court again, this time with multiple charges including access device fraud and aggravated identity theft.  The Government quickly offered a plea bargain that would allow the sentencings for the original conviction and the new charges to take place at the same time.  Sanya rejected the offer initially, but after the district court opined at a detention hearing about the benefits of doing so, Sanya changed his mind.  After entering a guilty plea, he was sentenced to a total (on both convictions) of 212 months in prison.

On appeal, the Fourth Circuit vacated his second set of convictions because of the district court's insertion of itself into plea negotiations.  Applying plain error review, the court found that the district court erred (as the Government conceded) and that the error was plain (as the Government did not).  As to whether the error affected Sanya's substantial rights, the court concluded that the record showed a "reasonable probability that, but for the error, he would not have entered the plea," including his initial refusal of the offer, the breadth of the district court's commentary, and the swiftness with which Sanya changed his mind (he signed a plea agreement five days after the hearing).  The court distinguished the Government's reliance on cases taken from other jurisdictions, raised mostly in a series of five Rule 28(j) letters filed in three weeks ("perhaps a record," the court notes).  Finally, the court concluded that the error was of the kind that it should notice, observing that the district court's comments were "repeated and direct" and that its "exhortations saturated the hearing."

Thursday, December 18, 2014

Labyrinthine sex offender registration requirements confound another defendant

US v. Collins - In this appeal, Dwaine Collins challenged his failure to register conviction on the grounds that the government failed to prove that he knew he had an obligation to register.

Collins, an illiterate man, committed the offense that triggered his 10-year registration obligation in 1998 in North Carolina.  After his release from prison, Collins relocated to Ohio where he registered.  In 2002, Collins failed to register, and moved to Parkersburg, WV.  Nine years later, he was arrested in Ohio for an attempted theft, and he received a state failure to register charge dating back to 2002.  A state court judge in Ohio had suggested to Collins in his state court proceeding that the time period for registration could have expired.  After serving a state sentence in Ohio, Collins returned to WV, where he did not register.  Approximately a year and a half later, he received the instant federal indictment for failing to register under SORNA.

The district court determined that Collins knowingly failed to register, finding ample evidence of Collins’ knowing avoidance of his obligation to register.  It held that the knowledge element of the SORNA offense was satisfied as long as Collins knew that he had to register under some scheme, federal or state, but not SORNA specifically.  The district court also determined that the state court judge was merely advising Collins, not giving him a binding legal opinion on Collins’ registration requirements going forward.  The Fourth Circuit affirmed the district court’s findings.

Collins also appealed the reasonableness of his sentence.  He received a sentence of 30 months’ imprisonment, to be followed by a term of supervised release of 10 years.   Pursuant to the Sentencing Commission’s recent clarifying amendment that the supervised release term associated with a SORNA offense is not a “sex offense,” the Fourth Circuit vacated the supervised release portion of Collins’ sentence and remanded for further proceedings.

Appellant liable as both principal and accessory after the fact

US v. White - In this case, Appellant White received three 78-month concurrent terms of imprisonment for his part(s) in the intentional burning of a two-unit apartment building he owned.  He received convictions for conspiracy to commit arson and mail fraud, aiding and abetting arson, and accessory after the fact to arson.  White made two sufficiency of the evidence challenges: 1) that the government failed to establish the interstate commerce nexus required to sustain the arson convictions of counts 1 and 2; and 2) that the evidence did not establish that he assisted an uncharged co-conspirator in evading apprehension and punishment for the accessory-after-the-fact conviction.  White further challenged his sentence, that the court should not have considered the two-unit apartment house a “dwelling”, which increased his base offense level.    The Fourth Circuit affirmed, 2-1, with a dissent from Justice Wynn, finding that, as a matter of law, a person should not be held criminal liable as both a principal and an accessory after the fact to him or herself, and the defendant’s conviction for being an accessory after the fact constitutes clear legal error.

In upholding the conviction for accessory after the fact, the Fourth Circuit discussed the government’s case, that it presented evidence of White’s false and misleading statement to an insurance representative to help an unnamed co-conspirator to avoid apprehension, which satisfying the elements of the crime.  It based its decision on a 1999 case from the 5th Circuit, which, according to Justice Wynn, “failed to acknowledge, let alone analyze, the conundrum of allowing a principal to be convicted of acting as an accessory after the fact to himself.”

(Decided November 17, 2014).

Change in law after sentencing would likely have resulted in lesser sentence

US v. Archie - In this appeal, the Fourth Circuit reviewed two sentencing issues: 1) whether the district court sentenced the defendant in violation of the 6th Amendment as set forth in Alleyne; and 2) whether the district court relied incorrectly on insufficient evidence in enhancing the defendant’s sentence under ACCA.  The Fourth Circuit affirmed.

Appellant Sherwin Archie pleaded guilty to charges arising from his part in the armed robbery of a Family Dollar store.  In anticipation of sentencing, the Probation Officer drafted a PSR, designating Archie an armed career criminal, based on three prior felony convictions: 1977 3rd degree robbery conviction from New York; 1983 attempted burglary conviction from New York; and a 1994 conviction from North Carolina for assault.  There was also evidence that Archie “brandished” a weapon in the armed robbery, and the district court made a judicial finding of brandishing, which raised the statutory minimum for Archie’s sentence.

Archie’s main issue on appeal is whether he waived the right to argue that his sentence was improperly enhanced by the district court’s determination that he brandished a weapon during the armed robbery, with the appellate waiver in his plea agreement.  Archie’s sentencing occurred just prior to the publication of the Supreme Court’s case Alleyne, which held that because mandatory minimum sentences increase the penalty for crimes, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to a jury.  

The Fourth Circuit found that, at the time of Archie’s sentencing, that the district court correctly applied the law that judicial factfinding that increases a mandatory minimum was permissible under the 6th Amendment.  Even though Alleyne soon overruled this position, the post-sentencing change in the law did not invalidate Archie’s appeal waiver, according to the Fourth Circuit.  The panel determined that Archie assumed the risk that the law under which he was sentenced could change later on, and that Archie’s appeal issue was buyer’s remorse.  Further, the Fourth Circuit has invalidated some appellate waivers in the past, but it chose not to do so here because the sentencing court did not violate “a fundamental constitutional or statutory right that was firmly established at the time of sentencing.”  

Next, Archie argued that there was insufficient evidence to prove the existence of the 1977 3rd degree robbery conviction, as the court had relied upon computerized records to establish the fact of this conviction.  Of the four records the district court considered, one of the records had an inconsistent date.  The district court disagreed and determined that the records provided established by a preponderance the conviction.  On appeal, the Fourth Circuit determined that it had previously considered the issue of what records a district court may consider in determining the fact of a prior conviction and that certified computer printouts, such as the ones submitted here by the Government, were sufficient to prove the fact of a prior conviction.

(Decided November 17, 2014).

960-month sentence survives 8th Amendment challenge

US v. Dowell - In this appeal, the Fourth Circuit considered the propriety of a 960-month sentence, and whether the sentence violates the 8th Amendment’s prohibition against cruel and unusual punishment on the grounds that the sentence was disproportionate to the severity of his crimes, and secondly, whether the district court correctly applied an enhancement for a “vulnerable victim” here.

The Fourth Circuit recently rejected a similar as-applied 8th Amendment challenge in Cobler, where it had upheld a 1440-month sentence on a child porn offender whose appeal argument was indistinguishable from Dowell’s here.  Cobler had, in fact, been convicted of fewer counts than Dowell.  In Cobler, the Fourth Circuit determined that Cobler’s “shocking and vile conduct...failed to substantiate the threshold inference of gross disproportionality” and that Cobler’s crimes were “at least as grave” as possession of 672 grams of cocaine, which the Supreme Court had considered sufficiently egregious to justify a similar sentence (see Harmelin v. Michigan).   The Fourth Circuit decided not to change that course in this case.  Moreover, the 960-month sentence imposed was within the guidelines range of life imprisonment.

The Fourth Circuit found that the application of the “vulnerable victim” enhancement here was in error, but it was a harmless one.  The district court applied the enhancement relying solely on age-related factors, which was an error.  However, the application of the enhancement here did not affect Dowell’s ultimate sentence, so the Fourth Circuit found the error was harmless.

(Decided November 13, 2014).

Illegal reentry sentence enhancement affirmed

US v. Avila  - In this appeal, the Fourth Circuit considered two procedural challenges the appellant made after his sentencing for illegal reentry.  First, he argued that the 8-level sentencing enhancement he received for having a prior conviction for 1st degree burglary in California was incorrect; and second, he argued that the district court’s explanation for his sentence was insufficient.  The Fourth Circuit affirmed.

Avila argued that the California 1st degree burglary should not qualify as an aggravated felony for the 8-level enhancement because it is not a crime of violence under Descamps’ analysis.  The Fourth Circuit found that under ACCA, this offense may not qualify as a predicate offense; however, for the enhancement here under a different statutory scheme than ACCA (to wit, 18 U.S.C. § 16), it does qualify as the definition of crime of violence in this context is more general.  Further, other courts have come to the conclusion that 1st degree burglary in California is a crime of violence, as it requires entry into an inhabited dwelling, and it presents a substantial risk of force with or without unlawful entry.

With regard to Avila’s second appeal issue, the Fourth Circuit found that the district court sufficiently explained its reasons for his sentence, by considering his history and characteristics, and that the safety of the public was the “driving reason” for the sentence it chose.

(Decided November 4, 2014).

Friday, December 05, 2014

Life Plus 60-Month Sentence Substantively Unreasonable

US v. Howard: Howard sold PCP in North Carolina, as evidenced by a string of controlled buys made from him by police.  He was charged, tried, and convicted of conspiracy to distribute, substantive distribution (nine counts), and possession of  a firearm in furtherance of drug trafficking.  All while on supervised release for a prior federal conviction.  In the PSR, Howard's advisory Guideline range was calculated as 78 to 97 months, although he faced a mandatory minimum 120-month sentence due to his prior conviction.

But Howard's sentence only rose from there.  First, the district court attributed more PCP to Howard, bumping his Guideline range up to 120 to 121 months.  Next, the Government requested a variance based on the Guidelines' undrerepresentation of Howard's criminal history, up to a Criminal History Category VI, bumping the range to 140 to 175 months.  The district court, "not satisfied," decided sua sponte that Howard was a de facto career offender and, after applying that Guideline, bumped Howard's range up to 420 months to life.  The district court sentenced Howard to life in prison on the drug counts, followed by a consecutive 60-month sentence on the gun count.  He also received a consecutive 60-month sentence following the revocation of his supervised release.

Howard appealed, challenging the substantive reasonableness of his sentence when requested to do so by the court.*  The Fourth Circuit found that Howard's sentence - life plus 60 months - was substantively unreasonable.  The "extent of the upward departure is unwarranted and amounts to an abuse of discretion" and "is not justified by consideration of the 3553(a) factors as articulated by the district court."  Specifically, the district court "abused its discretion by focusing too heavily on Howard's juvenile criminal history."  That history showed that "most of his serious criminal convictions occurred when he was eighteen years old or younger."  Looking to the Supreme Court's recent cases dealing with juvenile death penalties, the court noted that "in the sentencing context, the diminished culpability of juvenile offenders, given their lack of maturity, vulnerability to social pressures, and malleable identities."  The district court failed to address those issues.  The court also rejected the district court's conclusion that Howard's chance of recidivism was "[a]bsolutely 100 percent" by looking to his age, the age at which he might be released, and noting that recidivism declines as a person ages.  Finally, the court noted that the sentence imposed by the district court was well above what the Government recommended.  While not controlling, the experience of AUSAs can help achieve one of the key goals of the Sentencing Reform Act - avoiding unwanted disparities.

The court vacated Howard's sentence and remanded for further proceedings.  In doing so, it pointed out that it "goes without saying, then, that our holding is limited to the facts of this case."

* Although he initially appealed the supervised release sentence as well, Howard withdrew that issue and that appeal was dismissed.  Howard also challenged the sufficiency of the evidence supporting his convictions, an argument the court rejected.

Tuesday, November 04, 2014

Supervised release revocation sentence related back to initial offense, and Alleyne does not apply in revocation proceedings

US v. Ward:  In this appeal, the Fourth Circuit considered whether George Ward’s supervised release revocation sentence was imposed under the proper version of the statute governing terms of supervised release, whether the federal Savings Statute required a different result, and whether Alleyne applied in the supervised release context.

Ward pleaded guilty in December 1994 to several offenses that occurred between December 1993 and June 1994, receiving a sentence of 260 months (later reduced to 200 months) to be followed by 5 years of supervised release.  At the time of the sentence reduction Ward received, the court expressly left intact the original duration and conditions of his term of supervised release.  Ward left prison in 2010, and in April 2013, the government filed a petition to revoke his supervised release.  At his revocation hearing, Ward admitted the violations, and the district court sentenced Ward to a mandatory sentence, one-third of his supervised release term, pursuant to the version of the supervised release statute in place when Ward committed his original crimes.  The statute was amended prior to Ward’s original sentencing in 1994, but after his initial criminal activity.  At sentencing, the district court noted the harsh result, but that its hands were tied by the mandatory punishment called for by the old version of the statute.

The Fourth Circuit affirmed and held that Ward was subject to the mandatory minimum term under the old version of the supervised release statute (20 months’ imprisonment based on the original 5-year term) because his criminal activity took place while the old statute was in effect. The Supreme Court considered a similar scenario in 2000, in Johnson v. United States, and determined that the defendant was subject to the sentencing provisions of the pre-amendment statute in effect when the initial offense was committed, that “postconviction penalties relate to the original offense.”  Further, the federal Savings Statute, according to the Fourth Circuit, operated to preserve the mandatory minimum punishment provision of the old supervised release statute.

Finally, the Fourth Circuit held that Alleyne’s holding, requiring that a jury determine beyond a reasonable doubt any fact requiring imposition of a mandatory minimum sentence, did not apply to the supervised release revocation context.  It discussed how other courts have persuasively held that the constitutional protections afforded individuals in criminal trials are not similarly applicable in the postconviction context, such as supervised release revocation proceedings.  Individuals on supervised release, according to the panel, possess only “conditional liberty” on account of their convictions on an underlying offense, whereas defendants at trial have not yet been subjected to any deprivation of their liberties.  Thus, a defendant in a postconviction revocation proceeding does not have the constitutional right to a trial by jury under the standard of beyond a reasonable doubt.

Tuesday, October 21, 2014

Lack of Loss Amount In Verdict Leads to Misdemeanor; Lack of Proof to Limited Remand

US v. Catone: Catone was charged with three counts related to federal workers comp fraud, essentially for receiving income while receiving benefits and not informing the proper authorities.  At trial, the main evidence of this fraud was a $635 check that Catone had received from a local maintenance service.  The jury convicted on one count of filing a false form under 18 USC 1920.  Catone's relevant conduct was identified as over $128,000 dollars (everything he ever got for worker's comp, in essence) and his restitution obligation at over $106,000.  Catone argued that his offense was a misdemeanor, capped at one year of imprisonment, because the jury did not make a finding as to a particular loss amount.  The district court disagreed, sentencing Catone to a 16-month term of imprisonment and ordering him to pay the entire restitution amount.

On appeal, the Fourth Circuit affirmed Catone's conviction, but reversed his sentence.  As to his conviction, the court rejected (reviewing for plain error) his argument that the Government violated Brady by withholding a particular document, noting that (a) it was a document Catone signed and therefore was aware of, (b) was public and could have been uncovered by diligent investigation, and (c) wouldn't have changed the verdict anyway.  As to the sentence, the court first held that the 16-month term of imprisonment was over the one-year statutory maximum for a misdemeanor offense.  Section 1920 defines two offenses, based on the amount of loss involved - a misdemeanor ($1000 or less) and a felony (more than $1000).  Because the amount of loss increases the statutory maximum offense, it was an element of the offense that had to be charged in the indictment and found by the jury.  As it was not, Catone's sentence had to be vacated.  Turning to the loss and restitution amounts, the court found that the district court failed to apply the proper analysis (as the Government conceded) in calculating those amounts, thus requiring reversal.  But the court went further: "Because there is no evidence in the record that could support a loss amount exceeding $5,000, we direct the district court on remand to resentence Catone under U.S.S.G. §2B1.1(b)(1)(A), without any offense-level enhancements for loss amount."  In other words, the court denied the Government a chance at a "do over" on remand.

Congrats to the Defender office in Western North Carolina on the win!

No Pretrial Motion = No Suppression Review

US v. Moore: Moore was apprehended by Maryland police after running from an officer (who was interested in Moore because he might have been walking in public with an open beer).  Moore tossed a package into a dumpster during his flight which contained $10,000 worth of cocaine.  While Moore was in jail, his apartment was burglarized.  A subsequent search (conducted pursuant to a warrant) uncovered drugs, paraphernalia, $45,000 in cash, and two guns.  Moore was charged with multiple offenses, including possessing a firearm in connection with a drug trafficking crime.  Just prior to closing arguments at his bench trial, Moore moved to suppress "all the tangible evidence" because the original officer who wanted to talk to Moore lacked reasonable suspicion to make a Terry stop.  The district court denied the motion and convicted Moore on all counts.  He was sentenced to 271 months in prison.

Moore appealed both the denial of his motion to suppress and his firearm conviction, but the Fourth Circuit rejected his arguments.  On the suppression issue, the court noted that Rule 12 of the Rules of Criminal Procedure requires such motions to be made before trial and the failure to do so waives the ability to file such motions unless "good cause" is shown.  The court concluded that the district court found no good cause to excuse waiver and there was none in this case, rejecting the argument that it was based only on evidence that came to light at trial.  On the firearm conviction, the court found there was sufficient evidence to demonstrate a nexus between the firearm and a drug trafficking offense.

Friday, August 29, 2014

Pre-Jones Warrantless GPS Attachment Doesn't Require Suppression

US v. Stephens: Stephens was the subject of an investigation by a Baltimore area state/local drug task force.  As part of that investigation, officers installed a GPS tracker on Stephens's car.  They did not have a warrant to do so.  Officers then used a combination of the GPS tracker and surveillance to intercept Stephens, who they believed to be armed, at a club when he arrived there.  Stephens was only carrying an empty holster, but a gun was found in his car (after a drug dog alerted).  Stephens was charged with being a felon in possession of a firearm.  Afterwards, the Supreme Court decided Jones, concluding that placing a GPS tracker on someone's car constitutes a search under the Fourth Amendment.  Stephens moved to suppress the gun.  The district court concluded that search was unreasonable under Jones, but declined to suppress the firearm because the officers were acting in good faith.  Stephens entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed, 2-1.  Relying largely on US v. Knotts and its progeny in the lower courts, the court concluded that "a significant body of federal law existed nationally in 2011 to support the view that warrantless attachment of a GPS . . . was not a search within the meaning of the Fourth Amendment."  In addition, the Maryland courts had expressly found that to be the case.  Against that background, the court rejected Stephens's argument that because the Fourth Circuit hadn't specifically OK'd warrantless GPS searches pre-Jones there could be no good faith on the officers' behalf.  Davis, the Supreme Court decision from which Stephens took this "negative implication" did not "alter the general good-faith inquiry," only provide one situation in which good faith was evident.  At any rate, the court concluded that Knotts was controlling at the time of the search and, thus, officers were acting in good faith compliance with it, even though Knotts was "not exactly on point," because "it is the legal principle of Knotts, rather than the precise factual circumstances, that matters."

Judge Thacker dissented, arguing that exclusion was proper where officers "relied on non-binding, non-precedential authority regarding emerging technology -- without first bothering to seek legal guidance -- in order to conduct a warrantless search which spanned . . . nearly two months."  She noted that Davis was all about binding authority and that Justice Sotomayor pointed out, in her concurrence, that "whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled" is a "markedly different question."  That was the case at the time of this search, Judge Thacker argues, noting that Knotts is easily distinguished because the beeper (hardly a modern GPS tracker) in that case had been placed in the suspect cargo with the owner's permission.  As a result, the officers didn't act in an "objectively reasonable" manner suggestive of good faith.

Stash House Robbery Conspiracy Convictions Affirmed, Sentence Vacated

US v. McLaurin: McLaurin sold two guns to a CI and, after the offer of a third sale, was introduced to undercover officers who recruited him to be part of a "stash house robbery."  That is, to rob drug dealers of their product in bulk and then sell it themselves.  McLaurin said he was interested and had committed a "similar" robbery in the past.  He also talked about the need to acquire a gun, since he had sold his.  After a couple of weeks passed, McLaurin contacted the officers and arranged a meeting to discuss the robbery.  He brought along Lowery, his codefendant, to this meeting.  At the meeting, they discussed what weaponry would be needed and how the take from the robbery would be split.  On the appointed day, the defendants and the officers met at a storage area that was to be the staging area for the robbery.  Instead, McLaurin and Lowery were arrested and charged with multiple conspiracy counts.  They were convicted on all counts, with McLaurin also being convicted of two counts of being a felon in possession of a firearm.

On appeal, both defendants challenged their conviction, which McLaurin challenging his sentence as well.  The Fourth Circuit affirmed the convictions, but vacated McLaurin's sentence.  On the convictions, the court first found that the district court had correctly instructed the jury that inducement, in the context of an entrapment defense, "is a term of art necessitating government overreaching," which the defendants argued allowed the jury to rejected their defense based on a "non-factual, value-laden determination" while avoiding "the corse issue of an entrapment defense - predisposition."  Read in conjunction with the rest of the entrapment instructions, the court held that language did no remove predisposition and only "elaborated on the circumstances that can be considered inducement."  The court also affirmed the district court's admission of prior bad act evidence against McLaurin (the earlier robbery) and Lowery (firearm possession).  Finally, the court concluded that the district court's decision to deny McLaurin's motion to sever his felon in possession counts was not error and, if it was, not harmless, as the evidence underlying those charges were admissible under FRE 404(b).  As to McLaurin's sentence, the court found that the district court erred by including two robberies committed as a juvenile in McLaurin's criminal history calculation.  Although limited to plain error review, the court found the error plain, affecting substantial rights, and in need of notice.

Judge Floyd dissented in part, arguing that the district court erred in not granting McLaurin's motion to sever and that the error was not harmless.

Friday, August 15, 2014

Post-Jeopardy Notice of Appeal Don't Give Circuit Court Jurisdiction

US v. Modanlo: Modanlo was charged in ten counts of an 11-count indictment with aiding the 2005 launch of an Iranian communications satellite, via a state-owned Russian consortium.  He was also charged with obstructing bankruptcy proceedings that arose out of that scheme.  Prior to trial, Modanlo moved to dismiss the obstruction count, arguing that the dismissal of the bankruptcy actions constitued collateral estopell and prevented the Government from prosecuting him.  That motion was denied.  Modanlo filed a notice of appeal after his trial had been going on for 12 days (the district court only issued its written opinion six days in, although it had denied it orally pretrial).  The district court denied the Government's motion to label the appeal frivolous, but refused to sever the obstruction count from the rest of the case.  Modanlo filed a notice of appeal from that decision as well.  Modanlo was convicted on all counts  but one and sentenced to 96 months in prison.  He has filed an appeal from the convictions and sentence, although it hasn't reached the briefing stage yet.

The Fourth Circuit dismissed both of Modanlo's appeals, concluding that the notices of appeal he filed didn't confer jurisdiction upon it.  His "premature appeals . . . are a nullity and must be dismissed."  The court noted that jurisidiction cannot be divested from the district court once trial has begun and jeopardy has attached.  Although the issue Modanlo initially sought to appeal could be the subject of an interlocutory appeal that could have stayed proceedings in the district court, that is true only if the notice of appeal had been filed before trial began.  However, since the order denying Modanlo's motion to dismiss was not entered prior to trial, Modanlo's only option was to wait until a final judgment had been entered and seek appeal from there.  To be fair, the Fourth Circuit pointed out that the district court messed up by not entering that order before trial, but given that Modanlo didn't challenge the failure to do so, he was precluded from trying to appeal the order once it was entered.

Tuesday, August 05, 2014

Prior conviction is predicate for sentencing enhancement in illegal reentry case

US v. Valdovinos:  In this appeal, the Fourth Circuit considers a novel issue, whether a prior conviction under North Carolina’s Structured Sentence Act, imposed after a binding plea agreement to a sentence of less than one year, is a predicate felony offense for purposes of the sentencing enhancement applicable to those convicted of illegal reentry after deportation.  Valdovinos pleaded guilty in North Carolina state court in 2008 to selling heroin, a conviction which carried a maximum penalty of 16 months in prison; by virtue of Valdovinos’ plea agreement, however, he received a sentence of 10-12 months.  Under NC law, once the judge accepted the plea, the judge was forced to sentence him within the range recommended in the plea agreement.  Valdovinos was deported after serving this sentence.  In May 2013, he returned to North Carolina, got arrested for resisting a public officer, and received an illegal reentry charge, to which he pleaded guilty.

Valdovinos objected to the application of this sentencing enhancement because his prior conviction did not, in his view, qualify as a felony under the Guidelines as his sentence was between 10 and 12 months, less than a term exceeding one year, as defined in the Guideline.  His prior conviction could not serve as a predicate offense, he argued, to enhance his sentence for illegal reentry.

The Fourth Circuit affirmed the district court’s imposition of the sentencing enhancement for illegal reentry defendants with prior felony offenses, because North Carolina’s Structured Sentencing Act, not Valdovinos’ plea agreement, determined whether a defendant’s conviction was punishable by imprisonment exceeding one year, qualifying as a federal sentencing predicate.  The dissent lambasts the majority holding, and the panel’s decision to hinder the progress of federal sentencing jurisprudence with its decision, and is totally worth reading (begins on page 19 of the published opinion).

Friday, August 01, 2014

$1.2 million restitution order affirmed

US v. Seignious:   In this appeal, the Fourth Circuit considered the restitution order that resulted from Ehizele Seignious’ convictions for an extensive credit card scheme.  In crafting the restitution order, the district court imposed an amount, $1,213,347, sought by the government, as representing the actual losses caused by the fraud conspiracy, pursuant to the Mandatory Victims Restitution Act (“MVRA”).  The amount, however, was determined without the district court having made findings on the record of actual losses caused to specific victims.

Seignious timely appealed the restitution order, and approximately one week later, the government provided a document to the court, itemizing losses to banks and retailers, as well as victims’ names and addresses, entered as a sealed document.  Appellate counsel for Seignious filed an Anders brief, the government responded, Seignious filed a pro se supplemental reply, and the Fourth Circuit set the case for oral argument on the issue of the restitution order.

Under the MVRA, the government has an obligation to provide information concerning restitution to the probation officer 60 days in advance of the scheduled sentencing date; the probation officer must, to the extent practicable, provide notice to victims and collect any necessary information from them, including documentation and testimony.  Further, the defendant must provide the probation officer with information concerning his background, financial resources, and ability to pay restitution.  If the victim’s losses cannot be ascertained by 10 days prior to sentencing, under the MVRA, the district court can set another date for the disclosure of that information up to 90 days after sentencing.

The Fourth Circuit reviewed the record, and found that restitution was imposed without the procedural requirements of MVRA being met.  The standard of review is plain error, though, and the Fourth Circuit upheld the restitution order, denying Seignious relief.  Seignious, according to the Fourth Circuit, failed to carry his burden on appeal of demonstrating that the district court’s error affected his substantial rights.  The record left the panel with no doubt that had the procedural requirements been met, it is unlikely that a different restitution amount would have been imposed.

Seignious did not object to the amount of restitution ordered or dispute the amounts proposed by the government.  The Fourth Circuit found that, although the district court could have done a better job of making a record with respect to restitution, the panel was not convinced an error occurred in finding that the conspiracy caused $1.2 in actual losses.

Disability benefits fraud convictions affirmed

US v. Perry:  Christopher Perry received three convictions for Social Security fraud, federal health benefit program fraud, and health care fraud.  He had begin receiving benefits in 1996 or 1997 under the proviso that if his medical condition improved such that he could work or if he returned to work, he would report this to the Social Security Administration (“SSA”).

Perry, however, began working in 1996, and between 1996 and 2006, he worked for a variety of companies.  When the SSA made inquiries about Perry’s income from other sources, Perry either did not respond or he reported that he was not receiving income other than his disability payments.  In 2007, Perry was accepted into the Federal Career Intern Program, a training program for the SSA, to become a Benefits Technical Examiner - - while he continued to submit claims for Medicare benefits.  In 2009, SSA canceled Perry’s benefits after he failed to respond to two further employment inquiries.

When the government charged Perry with three counts of fraud, he moved to dismiss the indictment, which the district court denied, but it ordered the government to file a bill of particulars, “to delineate specifically the employment Defendant ha[d] failed to report.”  The government responded by identifying Perry’s various employers since 1996.  At trial, a jury found Perry guilty on all counts.

On appeal, Perry made several challenges to the indictment as well as the sufficiency of the evidence for one of the counts.  The Fourth Circuit affirmed the district court’s judgment, finding that the indictment was sufficient to apprise Perry of the charges against him and identify the elements of the crimes charged.  According to the Fourth Circuit, the indictment tracked the statutory language, provided specific details about the nature of the charges, and identified the “event” that triggered Perry’s disclosure obligations.  Perry also argued that the indictment failed to allege specific intent to defraud, but the Fourth Circuit found intent to defraud was charged in each count.  Additionally, Perry argued that the indictment was time-barred under the statute of limitations.  A five-year statute of limitation operated here; the district court found that the charged offenses were “continuing offenses” and part of a course of conduct, which constituted the violation.  Finally, in his challenge to the sufficiency of the evidence on the health care fraud count, the Fourth Circuit found that the government presented evidence showing that Perry knew he had a duty to report employment to the SSA, as well as evidence from Perry’s training to be a Benefits Technical Examiner, including training on the receipt and termination of benefits.  This evidence, according to the Fourth Circuit was sufficient for a rational jury to find Perry guilty of health care fraud.

Course of 10-year drug ring ends in life sentence

US v. Brown:  Jean Brown received convictions for her leading role in a marijuana trafficking operation across several states, Mexico, and Jamaica.  Brown also received convictions for the kidnapping and murder of Michael Knight, a player in the conspiracy.

On appeal, Brown challenges the life sentence she received, based on the district court’s calculation of the drug relevant conduct.  She challenged the admission at trial of videotaped recordings of her police station interviews, arguing in addition that the trial was structurally undermined when the judge left the bench during the playback of one interview.

The videotapes of custodial statements were admissible, according to the Fourth Circuit, because there was no legitimate basis to suppress them.  Brown did not challenge the validity or adequacy of the Miranda warnings she received, rather she claimed that her attorney, hired for a separate case (cash smuggling) was ineffective for failing to accompany her to the police station for these interviews concerning as-yet uncharged criminal activity.  The Fourth Circuit declined to address an ineffectiveness claim on direct appeal, as the facts here did not conclusively establish Brown’s ineffectiveness claims were legitimate.

The Fourth Circuit found that no structural error occurred, despite the fact that the district judge did vacate the bench, without warning, while the jury was shown part of the police station interview videos.  Here, the district court was only absent for a short time after all the evidence had been presented, no rulings were requested in the court’s absence, and nothing else occurred.   Any error here, according to the panel, was harmless.

The district court erred in its drug quantity instruction and verdict form, to which Brown failed to properly object according to the Fourth Circuit.  Further, the marijuana ring involved so many thousands of pounds of marijuana, that the amount involved dwarfed the amount required for the district court to impose a life sentence, so the Fourth Circuit found that the district court did not plainly err in its miscalculation.

Wednesday, July 02, 2014

Maryland First-Degree Burglary Conviction Not "Crime of Violence"

US v. Henriquez: Henriquez pleaded guilty to illegal reentry.  His advisory Guideline range included a 16-level enhancement for have been previously convicted of a "crime of violence" - a 2000 first-degree burglary conviction in Maryland.  The district court overruled Henriquez's objection that the Maryland burglary statute is broader than the "generic" burglary recognized by the Supreme Court and imposed a within-Guideline sentence of 41 months.

On appeal, the Fourth Circuit vacated that sentence, 2-1, after concluding that the enhancement was improper.  For illegal reentry purposes, the definition of crime of violence includes "burglary of a dwelling," which the court has recognized previously matches the definition of "generic" burglary promulgated by the Supreme Court.  Although the Maryland statute does specify that it only applies to burglary of a dwelling, it does not define "dwelling."  As a result, Maryland courts have defined the term as being broader than just a home (extending it to include RVs and unoccupied apartments), broadening the definition beyond that set forth by the Supreme Court.  Applying the categorical approach, the court concluded that it was not clear whether Henriquez's 2000 conviction involved a home or one of the places specifically excluded by the Supreme Court, such as a boat or a car.  Therefore, it was error to enhance his sentence.

Judge Motz dissented, arguing that the majority misconstrued Maryland court decisions on the scope of the burglary statute.

Congrats to the Defender office in Maryland on the win!

More Than Fraudulent Scheme Needed for Sophisticated Means Enhancement

US v. Adepoju: Adepoju was involved in a bank fraud scheme, along with another person who happened to be a confidential informant.  Adepoju provided the CI with false identification documents to use to open two bank accounts.  Adepoju was then to provide checks to the CI for deposit, then split the cash withdrawals with the CI and the CI's "insider" at the bank.  As a result, Adepoju was charged with two counts of bank fraud and identity theft.  After a jury convicted him of all counts, the district court sentenced Adepoju to 70 months in prison.

Adepoju appealed his convictions to the Fourth Circuit, which were affirmed, as well as his sentence, which was vacated.  On the convictions,  the court rejected Adepoju's argument that there was insufficient evidence to support them, based largely on the testimony of the CI.  As to his sentence, however, the court concluded that the district court had incorrectly applied a two-level Guideline enhancement for use of a sophisticated means in the scheme.  The court concluded that the Government had failed to prove the enhancement applied, noting that it takes more than mere fraud to qualify as "sophisticated."  The district court had erred by essentially putting the burden on Adepoju to disprove sophistication.  Finally, the court rejected an Allenyne-based due process argument with regard to Adepoju's two-year sentence on the identity theft charge, noting that there is only one possible sentence for such a conviction, not a staggered series of mandatory minimums.

Thursday, June 19, 2014

Court Refuses (Again) to Recognize Parent-Child Testimonial Privilege

Under Seal v. US: Officers responded to a domestic dispute 911 call at the home occupied by Doe, Doe Jr., and Doe's wife.  As a result, they uncovered a large stash of firearms and marijuana, which prompted a federal grand jury to investigate.  The Government subpoenaed Doe Jr. to testify before a grand jury about the ownership of the guns and drugs.  By that time, Doe Jr.'s parents had separated and he was living with Doe, on whom he was largely dependent financially.  Doe Jr. sought to quash the subpoena, invoking a "parent child privilege," arguing that forcing him to testify against his father would irreparably harm their relationship.  The district court granted the request and quashed the subpoena.

On appeal, the Fourth Circuit reversed.  Although a few district courts have recognized such a privilege, the court noted that every court of appeals (including the Fourth Circuit) to address the issue has rejected it.  However, the court found earlier Fourth Circuit cases had not created a "blanket rejection" of the privilege.  Nonetheless, the court concluded it was not proper to create one in this case.  Doe, Jr.  was an adult and admitted that his father would not "cut him off" if he testified against him.  In addition, Doe Jr.'s testimony, according to the Government, might not even wind up implicating his father.  As a result, Doe Jr. had not shown that recognizing the privilege would promote sufficient important interests that outweigh the need for probative evidence.

NC "Breaking or Entering" Conviction is Crime of Violence Under ACCA

US v. Mungro: Mungro was convicted of being a felon in possession of a firearm.  He was sentenced as an Armed Career Criminal based (in part) on prior North Carolina convictions for "breaking or entering."  The district court concluded that those were "violent felonies" under ACCA because they met the generic definition of burglary set out by the Supreme Court.

On appeal, the Fourth Circuit affirmed.  It concluded that, although the statutory language in North Carolina would appear to make "breaking or entering" much broader than the traditional burglary identified by the Supreme Court, state courts had narrowed the language to reflect preexisting North Carolina common law that required the state to prove the defendant was acting without the consent of the building owner.

Search "Fatally Tainted" By Officer's Incorrect Statement of Probable Cause

US v. Saafir: Saafir was pulled over in a residential area for speeding and excessively tinted windows.  During the stop, Saafir admitted that his license had been revoked, a fact confirmed by the officer.  The officer also retrieved information that suggested Saafir was armed and dangerous, a flight risk, and had a significant criminal record.  When the officer ordered Saafir out of the car, he saw a flask "commonly used to carry alcohol" in the driver's door map pocket.  Saafir consented to a patdown (which uncovered nothing), but refused consent to search the car, which was not his.  The officer stated that he had probable cause to believe Saafir was violating a North Carolina law prohibiting the carrying of alcohol in "other than . . . the opened manufacturer's original container," based on the flask.  With that said, Saafir told the officer there "might" be a gun in the vehicle.  A gun was found and Saafir was charged with being a felon in possession of a firearm.  He moved to suppress the gun, but the motion was denied.  He entered a conditional guilty plea.

On appeal, the Fourth Circuit reversed, finding that the only basis for probable cause to search the car - that Saafir admitted there "might" be a gun inside - came after the officer incorrectly stated he had probable cause to search the car.  The officer's incorrect assertion that the flask (which was never shown to contain anything, much less alcohol) provided probable cause "fatally taints the search of the car."

Congrats to the MDNC Defender Office on the win!

Second 2255 Isn't "Second or Successive" After Prior Conviction Vacated

US v. Hariston: Hairston was convicted in 2003 of a drug conspiracy charge.  His sentence was based on a Criminal History Category IV, which was calculated including a prior North Carolina traffic offense that occurred during a time in which, Hairston claimed, he wasn't in North Carolina.    He subsequently filed a 2255 that was denied.  He also filed a motion in North Carolina court to have that conviction set aside.  That motion was granted, in 2011.  Shortly thereafter, Hairston filed a new 2255, seeking a resentencing based on a CHC III.  The district court dismissed the motion as an unauthorized second or successive motion.

On appeal, the Fourth Circuit reversed.  First, the court rejected the Government's argument that Hairston had waived his right to challenge the prior conviction via his plea agreement because, ironically, the Government had failed to raise that argument at the informal briefing stage.  In other words, the Government waived its waiver argument (ha!).  Next, the court concluded that Hairston's second 2255 was not "second or successive" because it was based on facts that weren't available to him when he filed his initial 2255.

Tuesday, June 10, 2014

Some Convictions Vacated, But Sentence Still Stands

US v. Barefoot: In 2002, Barefoot pleaded guilty to possessing a firearm while under a domestic violence protective order after he was found in possession of scores of guns and explosives and a pair of Kinestik "binary explosive cartridges" were found in his son's possession.  As part of the plea agreement, the Government agreed not to prosecute him for "conduct constituting the basis for the Indictment" or to use statements made during debriefing in future proceedings not involving "crimes of violence."  Barefoot gave a lengthy debriefing in which he (among other things) admitted obtaining the Kinestik charges and being involved with the murder of a fellow KKK member who was believed to be an informant.

After being finishing his sentence on the 2002 charge, Barefoot was charged in state court with involvement in the informant's murder.  He was also charged with a new six-count federal indictment with: (1) conspiracy to possess stolen firearms; (2) possession of stolen firearms; (3) solicitation to arson involving a local courthouse that also contained a VA office; (4) receiving explosives, that is the Kinestik charges; (5) improper storage of explosive materials (a misdemeanor); and (6) distributing explosive materials to a person under 21 years of age.  He went to trial and was convicted on all charges.  He was sentenced to 60 months on Count 1, a consecutive 120-month term on the other felony charges (to be run concurrently with each other), and a 12-month sentence on the misdemeanor, to run concurrently with the other imposed sentences.

Barefoot challenged his convictions and sentences on multiple grounds.  The Fourth Circuit reversed two of his convictions, but affirmed the others as well as his sentence.  First, it concluded that the district court did not abuse its discretion  by denying Barefoot's request that he represent himself at trial due to concerns about his ability to do so given previous concerns about his competency.  Second, it concluded that evidence about Barefoot's involvement with the informant's murder was admissible under FRE 404(b) to show the animosity between him and the sheriff whose office was in the courthouse that would have been bombed.  Third, the court found there was sufficient evidence to convict Barefoot on Counts 3 and 4.  On Counts 5 and 6, the court concluded that they were not "crimes of violence" and therefore the plea agreement immunized Barefoot from being subject to those charges.  Therefore, the court vacated those convictions.  However, the court concluded (after concluding that the district court correctly grouped the various offenses), that the vacation of those charges "had no material effect on his sentence" and therefore declined to order a remand for resentencing.

Monday, June 09, 2014

Robberies of Marijuana Dealers Trigger Hobbs Act Liability

US v. Taylor: Taylor was part of a group that planned to rob drug dealers.  The only problem (well, the first problem) is that the people they targeted for robberies didn't really have much to take.  During a first robbery, they made off with $40, some jewelry, two cell phones, and a joint.  During the second, they managed only a cell phone.  Both robberies involved pistol whipping, groping, and holding a six-year old at gunpoint.  Taylor was charged with two counts of robbery under the Hobbs Act and two counts of using a firearm in furtherance of a crime of violence.  After a first trial ended in a mistrial, the Government successfully precluded Taylor from offering evidence that the drugs involved in the robberies was marijuana that was grown in the same state, and thus did not affect interstate commerce.  Taylor was convicted on all counts, save one of the gun counts, and sentenced to 336 months in prison.

On appeal, Taylor argued that there was insufficient evidence that the robberies affected interstate commerce and that he should have been allowed to put on evidence of the marijuana's in-state origin.  The Fourth Circuit rejected both those arguments and affirmed.  First, it concluded that there was sufficient evidence that the targets of the robberies were drug dealers and that Taylor "depleted or attempted to deplete" their assets during the robberies.  In addition, the items taken during the robberies, while not of significant value, were enough "to meet the de minimis standard under the depletion-of-assets theory."  Second, it concluded that the district court did not abuse its discretion by limiting the evidence Taylor could present about the source of the marijuana.

185-month Sentence Affirmed for Fake CPA

US v. Weiss: Weiss ran a "professional employer organization" for ten years in North Carolina, providing "human resource functions, including payroll processing, for companies through employee leasing agreements."  During that time, he falsely held himself out to be a CPA.  Over that time, he pocketed funds from companies that should have been paid to the IRS, state tax authorities, and workers' compensation insurance companies.  All told, Weiss diverted to his own use nearly $5 million.  He also filed false personal income tax returns, underpaying more than $1 million in taxes.  He also used false tax returns to secure bank loans to finance the construction of a new home.  Finally, he filed false insurance claims for jewelry he had reported stolen, but were recovered in his home pursuant to a search by law enforcement.  For all his trouble, Weiss pleaded guilty to charges of wire fraud, money laundering, making false loan statements, and tax evasion.  He was sentenced to 185 months in prison.

Weiss challenged his sentence on appeal, arguing it was procedurally unreasonable for several reasons, all of which Fourth Circuit rejected.  First, the court upheld the imposition of a two-level enhancement for abuse of a position of trust, concluding that Weiss's holding himself out as a CPA, even if he was not acting as an accountant for his victims, nonetheless aided his scheme because it led the victims to reasonable believe he had a special skill that would aid his job performance.  Second, the court upheld the loss calculation, concluding that the district court correctly included the amount Weiss obtained by not accurately reporting his taxed with the loss amounts from the other schemes.  Finally, the court concluded that the failure of the district court to sua sponte appoint experts to assist in his defense at sentencing was, at the very least, not plain error, if it was error at all.

Friday, June 06, 2014

When a Burglary Is Not a Crime of Violence

US v. Martin: This is yet again another case that wades into the murky waters of figuring out whether a prior conviction is a "crime of violence" or not.  Martin pleaded guilty to being a felon in possession of a firearm, with two prior convictions.  One, everyone agreed, was a crime of violence and made his base offense level at least 20.  The Government argued that the other, a 2009 conviction in Maryland for fourth-degree burglary, was, too, and bumped Martin's base offense level to 24.  The district court agreed and sentenced Martin to the bottom of the resulting Guideline range.

On appeal, a divided Fourth Circuit reversed, concluding that the 2009 conviction was not a crime of violence.  The court first noted that the Maryland conviction did not have an element involving physical force.  It also concluded that it was not a "burglary of a dwelling," even though a dwelling was involved, because it did not match the generic elements of burglary set out by the Supreme Court because it did not require the intent to commit  a crime when making the unlawful entry.  Therefore, the court moved on to the inquiry of whether the 2009 conviction "otherwise involves conduct that presents a serious potential risk of physical injury to another."  Which is where it got complicated.

The court first looked to the Supreme Court's decision in Begay (2008), which emphasized the need to analyze the conviction in question to determine whether it was similar in kind as well as the degree of risk posed by the enumerated offenses.  However, it noted that the Supreme Court in Sykes (2011) emphasized the degree of risk analysis over all else.  Martin argued Begay's two-step analysis applied, while the Government argued that Sykes limited the two-step analysis to only crimes that were akin to strict liability offenses.  Noting that, while some Circuits have gone the route urged by the Government, the Fourth Circuit has continued to employ Begay will full force, the court proceeded to the two-step analysis.  Ultimately, it concluded that the 2009 conviction posed a similar degree of risk to generic burglary, but lacked the "purposeful" conduct of the enumerated offenses.  Therefore, the offence of fourth-degree burglary in Maryland is not a crime of violence for career offender purposes.

Judge Diaz concurred, explaining that if he was "writing on a cleaner slate," he would have ended the analysis after concluding that the 2009 offense posed a similar risk to generic burglary.  District Judge O'Grady dissented, arguing that the post-Sykes law in the Fourth Circuit is not so definitive and that only the degree of risk analysis is needed.  Nevertheless, he goes on to argue that even under the Begay two-step approach, the 2009 conviction is a crime of violence.

Notably, both Diaz and O'Grady point out that next term the Supreme Court will again return to this issue (in an ACCA case involving a sawed-off shotgun) and, perhaps, provide some more clarity in this area.

Courts Martial Are Convictions from "Any Court" for ACCA Purposes

US v. Grant: Grant was convicted of being a felon in possession of ammunition.  Based on two prior courts martial involving crimes of violence, he was designated as an armed career criminal and sentenced to 212 months imprisonment.

On appeal, Grant challenged his sentence, which the Fourth Circuit affirmed.  Using a 2005 Supreme Court decision that held foreign convictions don't constitute convictions from "any court," Grant argued that courts martial are sufficiently different from civilian courts that they should not be considered part of any court.  Relying largely on legislative history, the court concluded that whatever differences exist between the two doesn't override the reasons for enacting the ACCA in the first place.

Monday, June 02, 2014

Analogue substances conviction upheld

US v. McFadden:  Stephen McFadden received nine convictions in connection with his distribution of “bath salts,” in violation of the Controlled Substance Analogue Enforcement Act of 1986, 21 U.S.C. sect. 813.   On appeal, McFadden argued that the statute was unconstitutionally vague as applied to him, that the district court erred in some of its evidentiary decisions during trial, and that the government failed to prove that whatever substance McFadden distributed qualified as an analogue under the Act.  The Fourth Circuit affirmed, finding that included under the rubric of the Act were the bath salts that McFadden distributed.

McFadden’s void for vagueness constitutional challenge was rejected based on the Circuit’s holding in an earlier case, Klecker, which dealt with another designer drug, commonly known as “Foxy.”  In that case, the Fourth Circuit observed that the considerable similarities between Foxy and the Schedule 1 substance DET were sufficient to put a reasonable person on notice of the proscribed conduct, that is, Foxy was a DET analogue.  The Fourth Circuit panel applied the same reasoning to the instant case, finding that expert testimony supported the conclusion that the chemical structures of bath salts were sufficiently similar to the Schedule 1 substances 4-MEC, MDVP, and methylone, and a reasonable person in McFadden’s position would understand that his conduct was prohibited by the Act.  Further, the Fourth Circuit used Klecker as its basis for rejecting McFadden’s challenge to the district court’s refusal to give a specific knowledge instruction to the jury.

The Fourth Circuit also affirmed the district court’s decision to admit a bath salt user’s testimony to prove the effects of the designer substance, as there was sufficient evidence presented to prove that McFadden made the bath salts that he distributed.  The Fourth Circuit affirmed the admission into evidence of taped phone conversations between himself and Lois McDaniel, who had previously sold McFadden’s bath salts in her video rental store.  McDaniel agreed to cooperate with investigators, and worked as a confidential informant, and the Fourth Circuit rejected McFadden’s relevancy challenge to them.  Finally, McFadden’s sufficiency of the evidence and denial of his motion for acquittal arguments failed, because the panel found the government’s expert testimony about the chemical composition of the bath salts and their effects were sufficient evidence here.

Harmlessness no substitute for proper procedure

US v. Ferguson:  The district court found that Jori Ferguson violated his supervised release by possessing marijuana.   Ferguson appealed, alleging that in the absence of good cause for expert unavailability, it violated the Federal Rules of Criminal Procedure rules to admit a laboratory report without calling the expert who prepared the report to testify.

According to the Fourth Circuit, while revocation hearings are less formal than criminal trials, some due process rights apply!  Reiterating the circuit’s holding in Doswell, the Fourth Circuit held here that unless the government makes its showing of good cause for the unavailability of its relevant witness, hearsay evidence is not admissible at revocation hearings.  There is a balancing under Rule 32.1, with the releasee’s interests in confronting an adverse witness, against the government’s good cause for denying such confrontation.  Reliability is an important factor, but not a dispositive one.

And, “[f]inally, we emphasize our displeasure with the government’s barefaced failure to abide by our command in Doswell.  In may cases, a facially compelling harmlessness argument can be made because, as noted above, defendants who have been stripped of their confrontation rights will be hard-pressed to point to concrete symptoms of the constitutional harm that afflicts them.  We refuse to let the government take advantage of this reality, essentially ignoring our command in Doswell by using harmlessness as a substitute for proper procedure.”   Even while dissenting from the majority’s position that the error here was not harmless, Judge Keenan concurred that the “government must act diligently to ensure that revocation proceedings be conducted fairly in accordance with the plain requirements of the Federal Rule of Criminal Procedure 32.1(b)(2)(C).”

Decoding expert's testimony and substantial prejudice lead to new trial

US v. Garcia:  Danilo Garcia received five convictions for his alleged involvement in a narcotics trafficking ring that operated between New York City, Philadelphia and Baltimore.  One of three co-defendants out of a group of fourteen people indicted by a grand jury in Maryland, Garcia proceeded to a trial wherein the government presented the testimony of investigating agent/attorney as both a fact witness, based on her observations having listened to thousands of taped phone conversations, and as an expert “decoding” witness, who could testify as to coded meanings the co-conspirators alleged used in the course of the alleged drug trafficking.

On appeal, Garcia challenged the admission of the decoding expert agent’s testimony as well as the denial of his motion for judgment of acquittal for lack of sufficient evidence as to one of the substantive counts of conviction.  The Fourth Circuit reversed the convictions, holding that the admission of the decoding expert’s testimony resulted in substantial prejudice to the defendant because neither the district court’s cautionary instructions, nor the sporadic sustaining of defense counsel’s “early and often, always respectfully” objections, adequately mitigated the risks the testimony presented.

The Fourth Circuit stated that the while the district court manifested a “deep familiarity with this Circuit’s settled guideposts with regard to this type of testimony,” there were problems the district court identified early with respect to this agent’s testimony: the blurring of the distinctions between lay fact testimony (her personal knowledge) on one hand and her expert opinion testimony gained through training and experience on the other; and ensuring that the agent testified on the basis of her experience and expertise in coded language, and not what cooperators or witnesses told her.

The Fourth Circuit found no problem with the agent’s qualifications as an expert, which adhered to Circuit precedent; it did, however, find fault with the nature of her testimony, as well as how extensive and highly influential it was in the jury’s evaluation of the government’s case.  The jury instructions given did not mitigate the prejudice, as a jury might reasonably have assumed that all of the agent’s testimony was based on her decoding expertise, as evidenced by the multiple occasions the agent testified about information she gathered in the investigation - none of which had anything to do with her decoding expertise.  The Fourth Circuit found the agent’s testimony impermissibly exceeded the bounds of Federal Rule of Evidence 702, which contemplates expert evidence “will be ‘helpful to the jury,’ not merely helpful to the prosecutor as transmutations of simple fact testimony.”  The agent’s testimony lacked independent judgment, and the government failed to elicit proper foundations to demonstrate the agent’s claimed reliably-applied methodology.

Thursday, May 01, 2014

Guilty Verdict Actually Requires Guilty Verdict

US Ramirez-Catillo: Ramirez-Catillo was serving a sentence at FCI Estill when officials recovered two potential weapons from his cell.  One, "[a] homemade shank," was found on Ramirez-Catillo's person, while the other, a "piece of metal, sharpened to a point on one end" was found in his locker, along with several pairs of shoes and other personal items.  He was charged with possession of "two homemade weapons" in prison.  At trial, he testified that he used the "shank" to repair shoes (and showed where such repairs had been done on shoes recovered from his cell) and that he had never seen the "piece of metal" prior to the search, but admitted that it could be used as a weapon. The verdict form asked the jury two questions, whether the shank was a weapon and whether the piece of metal had been possessed by Ramirez-Catillo (as he conceded possessing the shank and that the piece of metal was a weapon), but did not specifically include choices for "guilty" or "not guilty."  The jury answered "yes" to both questions.  The district court concluded that Ramirez-Catillo was "adjudicated guilty" and sentenced him to 33 months in prison.

On appeal, the Fourth Circuit reversed the conviction.  Applying plain error review, the court concluded that "we do not hesitate to conclude that Appellant's right to have a jury determine his guilt beyond a reasonable doubt was violated."  Rather than seeking a guilty/not guilty verdict, the district court put to the jury only questions to factual questions on disputed elements, but not all the elements of the offense.  At the court noted "the jury never actually returned a guilty verdict.  In fact, it was never given the opportunity to do so."  That error was plain, affected Ramirez-Catillo's substantial rights, and was the type of error of which the court would take notice.

Second Amendment Doesn't Protect Pot User's Possession of Firearms

US v. Carter: Carter was a user of marijuana.  Police arrived at his home, pursuant to a complaint about drug dealing.  Carter allowed them to enter and informed the officers he had two guns in the house.  There was no evidence of drug dealing.  Carter, nonetheless, was charged with being a drug user in possession of a firearm.  He moved to dismiss the charge, arguing that the statute violated his right to keep and bear arms under the Second Amendment.  He possessed the guns for his own protection, he argued (shortly after his arrest, Carter's neighbor was shot 8 times in a robbery).  The district court denied the motion, Carter entered a conditional guilty plea and was sentenced to probation.

In an initial appeal, the Fourth Circuit reversed the conviction and remanded to the district court.  Applying the two-step intermediate scrutiny analysis from Chester, the court concluded that while Carter's drug use took him outside the "core" of the Second Amendment right, the Government has not shown the right "fit" between the statute and its compelling interest in attacking gun violence.  The court remanded the case to the district court for further proceedings.

On remand, the parties submitted numerous studies addressing drugs and firearms.  Upon review of those submissions (and some the district court requested by put into the record at its request), the district court again denied Carter's motion to dismiss.  The district court concluded that the studies showed a link between gun use and drugs that made the statute an appropriate fit, noting it only had to be "reasonable," not "perfect."  Carter's term of probation - which he had already successfully completed - was reimposed.

Carter returned to the Fourth Circuit, which again affirmed the district court's denial of his motion to dismiss.  The court first rejected Carter's argument that the district court erred by relying on factors outside the record generated on remand - including "common sense" - that had been available to the court on the first appeal.  It then proceeded to examine the studies submitted on remand and concluded that the Government's studies showed a "strong link between drug use and violence" and dismissed Carter's argument that the studies were flawed, overbroad, and dealt with drugs aside from marijuana.  As a result, the court joined every other Circuit Court do address the issue and concluded that the drug-user-in-posession-of-a-firearm statute does not fun afoul of the Second Amendment.

DISCLAIMER: Your humble narrator was co-counsel for Carter on this case.

Victims of Hobbs Act Conspiracy Can Also Be Part of It

US v. Ocasio: Ocasio was a Baltimore police officer who was part of a scheme to direct business to a local car repair shop, in return for kickbacks.  He was originally charged, along with several other officers and the owner/operators of the shop, with conspiracy to violate the Hobbs Act.  Each of the other defendants pleaded guilty, while a superseding indictment charged Ocasio and a different officer with the same conspiracy, along with substantive Hobbs Act extortion violations.  Ocasio was convicted at trial on all counts (his codefendant pleaded guilty after the Government rested its case).  He was sentenced to 18 months in prison and ordered to pay restitution of $1500 to the police department and $1870 to Geico, based on a fraudulent insurance claim made regarding Ocasio's wife's car at the repair shop.

On appeal, Ocasio challenged both his convictions and his restitution order.  The Fourth Circuit affirmed the conviction, rejecting Ocasio's argument that the conspiracy conviction was "fatally flawed."  He argued that one cannot be convicted (under federal law) of conspiring with the victims of the scheme (in this case, the shop and its owner/operators).  Relying on prior circuit precedent, the court distinguished between a conspirator/victim whose conduct consisted of "mere acquiescence" to the scheme and one who was an active participant.  In other words, an active participant can be both a conspirator and a victim of the scheme.  As a result, it affirmed the conspiracy conviction based on the active roles of the victims.  The court rejected a competing Seventh Circuit reading of the statute favorable to Ocasio, holding it was precluded by circuit precedent.  As to restitution, the court concluded that Geico was not a victim of Ocasio's offenses of conviction and, therefore, vacated the restitution order.

Tuesday, April 29, 2014

Court Splits On Assumed Harmless Error Analysis For Within Guideline Sentences

US v. Gomez-Jimenez: This is a consolidated appeal involving two codefendants, Gomez-Jimenez and Juarez-Gomez (there was a third defendant, Pedro, who didn't appeal).  Investigators used a CI to make several controlled purchases of cocaine from Juarez-Gomez.  After the final buy, Juarez-Gomez was arrested and officers went to search a mobile home, where Gomez-Jimenez and a minor were located, along with drugs, cash, and a firearm.  All three defendants were charged with conspiracy to distribute and possession with intent, with Juarez-Gomez additionally being charged with four counts of distribution and being an illegal alien in possession of a firearm.  Gomez-Jimenez pleaded guilty to both counts.  The district court imposed a sentence of 180 months in prison, noting that even if it had calculated the Guidelines incorrectly, it would impose the same sentence.  Juarez-Gomez went to trial and was convicted on all counts, aside from the firearm count.  He was sentenced to 390 months in prison, with the district court again noting it would have imposed the same sentence regardless of the Guideline calculations.

The Fourth Circuit affirmed all sentences and convictions, but not unanimously.  Juarez-Gomez challenged conspiracy and possession with intent convictions, which the court concluded were supported by sufficient evidence.  As to sentencing, Juarez-Gomez argued that the district court erred by enhancing his sentence for use of a minor to commit or avoid detection or apprehension for the offense.  Recognizing that the enhancement only applies where there is evidence "beyond the minor's mere presence," the court concluded that the district court did not clearly err in applying the enhancement because there was sufficient evidence that the minor was involved with the offense.  Gomez-Jimenez argued that the district court erred by enhancing his sentence for possession of a firearm because he did not possess a firearm during any drug transaction.  The court disagreed, noting that three guns were found in the trailer (along with Gomez-Jimenez) and there was ample evidence to support the enhancement.  Both defendants challenged another enhancement, but the court declined to address them on the merits and proceeded to an assumed harmless error analysis.  The court concluded that the district court had expressly stated it would have applied the same sentences regardless of any Guideline calculation error and the resulting sentences were substantively reasonable.

Judge Gregory concurred with regards to Juarez-Gomez's convictions and Gomez-Jimenez's firearm enhancement, but dissented with regards to everything else.  First, he argued that the definition of "use" in the Guidelines with regard to a minor is "elastic," but did not stretch so far as to include the conduct in this case.  Second, he argued that the district court's announcement that it would have imposed the same sentences regardless of the Guidelines calculations was not sufficient for the court to be "clear" such would have happened, as the sentences then imposed would have been large upward variances that the district court did not justify.

Court Affirms Death Sentence In Double Murder; No Right of Confrontation At Capital Sentencing

US v. Umana: Umana shot and killed two men in a North Carolina restaurant after a dispute over music and because one of the victims disrespected MS-13, the gang to which Umana belonged.  He was convicted on multiple counts arising from the murders which carried the potential maximum sentence of death.  During trial, Umana tired to smuggle a blade into the courtroom and threatened a witness after he testified.  After hearing evidence about Umana's lengthy history with MS-13 (which continued after his arrest), including participation in other murders, the jury sentenced him to death.

The Fourth Circuit affirmed Umana's convictions and sentence.  On the convictions, it first concluded that venue was proper in the Western District of NC, even though the shootings took place in the Middle District, because the racketeering operation of which the murders were a part took place in both districts.  Second, the court rejected (under a plain error analysis) Umana's argument that the murder in aid of racketeering charges fell outside the scope of Congress's authority under the Commerce Clause.  Third, the court rejected Umana's argument that two jurors, who expressed some equivocation as to their ability to fairly consider the case, should have been excused for cause.

On the sentence, the court first held that the use of a statement Umana gave to California investigators after his arrest about his activities there did not violate the Fifth Amendment, as he was given Miranda warnings, he explained them, and was otherwise willing to talk.  It did not matter that the investigators told him the statement would not be used in this case and he had "nothing to lose" by talking to them.  Next, the court concluded that the testimony of officers about their interviews with other witnesses was properly admitted, as it was not hearsay and did not implicate the Confrontation Clause, which does not apply during sentencing proceedings.  Nor did the district court err by admitting those statements, even though they contained comments from the investigators that appeared to vouch for their credibility.  Third, the court held that the district court did not err by precluding Umana from introducing evidence of murders committed by his coconspirators, in order to show "his own violent proclivities were not unique, but rather were a 'product of social conformity.'"  Finally, the court rejected Umana's claim that statements by the prosecution during closing arguments were improper and prejudicial.

Judge Gregory dissented, arguing that the Confrontation Clause does apply to capital sentencing, although it does not in non-capital sentencing proceedings.

NOTE: The court denied Umana's request to reconsider its decision en banc.  The request did, however, provoke substantive opinions from Judge Wilkinson (not in favor of rehearing) and Judge Gregory (in favor), which can be found here.

Child Porn Distribution Is Relevant Conduct of Possession Offense

US v. McVey: McVey was convicted of possession of child pornography based on a DVD he received from an undercover police officer.  During a statement to police after his arrest, McVey admitted that he had uploaded child pornography to the Internet five or six times over the course of ten years.  In addition, investigators found a tip report of McVey uploading child pornography 30 months prior to his arrest.  At sentencing, the district court concluded that the uploading constituted relevant conduct, and therefore triggered the Guideline distribution enhancement. McVey was sentenced to a term just below the resulting Guideline range.

On appeal, the Fourth Circuit affirmed the district court's relevant conduct determination.  The court first concluded that the proper standard of review was clear error, rather than de novo, because the issue was ultimately about the weighing of evidence, not the legal analysis used to determine whether something was relevant conduct.  The court then went on to conclude that the district court did not clearly err in finding that McVey's distribution constituted relevant conduct.  Particularly, the court relied on McVey's statement that he had distributed child pornography several times over the past ten years and the similarity of his offense of conviction (possession) with the prior conduct (distribution).  The court noted that "[p]ossession is a necessary prerequisite for distribution."

Court Affirms Pro Se Drug Conviction

US v. Galloway: Galloway was implicated as part of a drug investigation that began in San Diego, but eventually reached Galloway in Baltimore.  He was convicted of conspiracy to distribute heroin, based largely on evidence gained from wiretaps of his cell phones, as well as the expert testimony of two investigators (one from San Diego, the other from Baltimore) about the nature of the drug operation.  Galloway represented himself at trial, after firing two prior attorneys.  He was sentenced to 292 months in prison.

On appeal, the Fourth Circuit affirmed Galloway's conviction (he did not challenge his sentence).  The court first rejected Galloway's claim of ineffective assistance of counsel (of his initial, retained counsel, fired well before trial), holding that he could not conclusively prove either ineffectiveness or prejudice, noting that Galloway's second counsel had an opportunity to make up for any errors of the first and that, ultimately, Galloway represented himself at trial.  Next, the court concluded that the district court had not abused its discretion by limiting Galloway's review of discovery and other documents, limiting his access to the lockup in the courthouse, rather than allowing him to retain documents at the jail.  Third, the court affirmed the district court's decision that there was sufficient evidence to justify one of the wiretaps at issue.  Finally, the court concluded that the district court had not plainly erred by allowing the investigators to testify as experts.

No Problem With 120-Year Sentence for Child Porn Producer

US v. Cobler: Cobler sexually abused a four-year-old boy (at a time when he was "afflicted by a serious communicable disease"), which he documented on video and in pictures.  He also admitted to downloading and sharing child pornography over a peer-to-peer network on the Internet.  Cobler pleaded guilty to multiple child pornography offenses, including three production counts, and was sentenced to 120 years in prison.

The Fourth Circuit affirmed Cobler's sentence.  He argued first that it violated the Eighth Amendment's ban on cruel and unusual punishment.  The court reaffirmed its position that an "extensive proportionality" analysis is available only in cases of actual life terms in prison or de facto life terms.  It then concluded, as the first step of that analysis, that Cobler's sentence was not "grossly disproportionate to his crimes."  Calling his conduct "shocking and vile," the court concluded it was "at least as grave" as the cases in which the Supreme Court had upheld life sentences.  The court also found Cobler's sentence to be reasonable, concluding that he had not rebutted the presumption of reasonableness for his within-the-Guidelines sentence.

Wednesday, April 09, 2014

Simmons-Fueled Miscalculation of Career Offender Status Can Be Reviewed In 2255 Proceeding

Whiteside v. US: This is yet another in the line of cases arising from the Fourth Circuit's sea change on how it views North Carolina's sentencing scheme in Simmons.  Whiteside was classified as a career offender before Simmons based on a pair of North Carolina convictions.  Within a year of Simmons being decided, but more than a year after his case had become "final," Whiteside filed a 2255 motion seeking to vacate his sentence.  The district court dismissed the motion, concluding that it was untimely, that Whiteside had waived his right to file it due to a waiver in his plea agreement, and that, at any rate, he had no right to relief because his sentence was within the correct statutory range.

A deeply divided Fourth Circuit reversed.  Judge Gregory, for the majority, first concluded that Whiteside had not waived his right to file the 2255 motion, noting that there was conflicting language in the agreement and, when construed against the Government, Whiteside's challenge to his career offender status was not waived.

Second, the court concluded that although Whiteside's motion was filed outside the usual one-year window, it was filed within one year of the decision in Simmons and equitable tolling applied because extraordinary circumstances (of which Whiteside had no control) prevented him from filing the motion earlier.  Those circumstances, the court candidly acknowledges, included its own incorrect decisions about the North Carolina scheme before it reversed course in Simmons.  Specifically, had Whiteside filed a 2255 motion within one year of his case becoming final, it would have been futile under then binding Fourth Circuit law.  The court labelled the Government's argument that he should have filed one anyway as "having an air of absurdity about it."

Finally, turning to the merits, the court concluded that Whiteside could challenge his sentence collaterally due to "an incorrect application of the career offender enhancement."  It distinguished this from the "ordinary misapplication" of the Guidelines, which is not a "miscarriage of justice" and not subject to collateral attack.  In response to the dissent, it points out that the "career offender enhancement is plainly not a run-of-the-mill guideline."  In doing so, the court noted that other circuits have not reached the same conclusion, except for the Eleventh Circuit, in a panel decision that's already been vacated pending an en banc rehearing.  Nonetheless, relying on recent Supreme Court decisions emphasizing the key role of the Guidelines in a post-Booker world, the court held that an erroneous career offender designation meets the high standard required for 2255 relief.  It rejected the Government's argument that the sentence was "lawful" because it was within the applicable statutory range, aside from any Guideline issues.  Whiteside's sentence was vacated and remanded for further proceedings.

Judge Wilkinson wrote a lengthy dissent, in which he argued that the court's decision was a "dramatic expansion of federal collateral review" that "makes a shambles of the retroactivity doctrines that have long safeguarded the basic finality of criminal convictions."  He argued that Whiteside's sentence was not improper when it was applied and that no change in the law sense makes it the kind of violation (a due process violation, specifically) that is reviewable in a 2255 proceeding.  He also argued that there was no miscarriage of justice in Whiteside's sentence, noting how divided the court was when Simmons itself was decided.  To conclude otherwise was to "adopt a naively Whig history of law as an unbroken march toward progress and enlightenment." (To which the majority responds that the dissent is "rank with the fearful mistrust of individualized decision-making inherent to traditional conservatism.").  He also argued that Whiteside's motion was untimely and that futility was not a valid reason for not filing a 2255 before Simmons was decided.  Wilkinson concluded that "I view this decision as wholly wrong and deeply damaging to our criminal-justice system."

Senior Judge Davis concurred, noting that the majority opinion "fully responds to the dissent's overwrought and formalistic protestations that our judgment here presages an end to law as we know it." He called the dissent "hopelessly pleased with itself . . . as it prostrates itself at the altar of finality."  He also took the dissent and the Government to task for putting control of whether such cases would be reviewed in the hands of the Department of Justice (which, the opinion shows, had frequently not invoked waivers in similar cases), rather than the courts.

Congrats to the Defender office in the Western District of NC on the win!

NOTE: On June 6, 2014, the Government filed a petition for rehearing en banc in this case.  Rehearing was granted and, on December 19, 2014, the en banc court reversed and affirmed the denial of Whiteside's 2255 motion.