US v. Lemon - In this appeal, the Fourth Circuit heard a sentencing challenge from Appellant Lemon, who argued that the district court plainly erred when it considered her rehabilitative needs during sentencing, or violated the Tapia rule. In 2008, Lemon pled guilty to conspiracy to commit securities fraud, and she received a 30-month prison sentence, to be followed by three years of supervised release. Five months into her term of supervision, police arrested Lemon for several instances of forging checks.
The violation report completed by Lemon’s probation officer recommended imprisonment for 24 months, based on the guidelines and the nature of the violations. At her final revocation hearing, the district court adopted the government’s recommendation of a within-guidelines sentence of 24 months, discussing its perception of Lemon’s mental health, that she must “have a serious emotional problem” with the repetitive nature of Lemon’s criminal activity, and that Lemon needed rehabilitative mental health treatment.
In interpreting Tapia, the Fourth Circuit has held that courts may consider rehabilitation, as long as the court is not imposing or lengthening a sentence to further rehabilitation. The Fourth Circuit has also held that Tapia applies in the supervised release context.
Here, the panel held that there was no error committed, because the district court did not indicated that its concern for Lemon’s mental health was a factor in determining the length of her sentence, that the court stated it was not even sure that Lemon could receive mental health treatment as a part of her incarceration, and that the rationale for her sentence had nothing to do with Lemon’s mental health, but her tendency to re-offend, and protect the public from further crimes. The Fourth Circuit affirmed her 24-month supervised release revocation sentence, advising district courts to separate any discussion of rehabilitative needs from its discussion of the factors that influence sentencing.
Monday, February 02, 2015
Mandatory consecutive life sentence under 18 U.S.C. sect. 924(j) affirmed
US v. Bran - Appellant Bran, alleged leader of a violent MS-13 clique, was convicted of three counts related to the murder of one person, and two further counts in relation to the attempted murder of a second person. In his appeal, Bran challenged the sufficiency of the evidence of Count 3, which charged him with conspiracy to commit murder under 18 U.S.C. sect. 924(j), and for the district court’s imposition of a mandatory consecutive life sentence for that conviction.
In count 3, Bran was charged under three criminal statutes, 18 U.S.C. sects. 924(c)(1)(A), 924(j)(1) and 2; the first of these prohibits the use or carrying of a firearm in relation to a drug trafficking offense or crime of violence, or possession of a firearm in furtherance of one of those crimes, and violation of the statute carries a minimum of five years’ imprisonment, which must run consecutively to any other sentence. Under the second statute, 924(j), any person who causes the death of another through the use of a firearm in the course of committing a violation of the first statute, 924(c), could receive the death penalty or imprisonment for 10 years to life.
With respect to the relationship between sects. 924(c) and 924(j), the Fourth Circuit held that because Congress made 924(j) separate from 924(c), it must have intended for 924(j) to have the effect of enhancing the sentence imposed for a conviction under 924(c). To interpret otherwise, according to the panel, would lead to the conclusion that a person with a 924(c) conviction which resulted in murder could receive a more lenient sentence than if the murder never occurred. Further, the panel held that four out of the five circuits that considered this issue have held that 924(j) requires mandatory consecutive sentencing.
In contrast, the dissent of this case disagreed with the majority about the nature of the relationship between these two statutes, finding that 924(j) is discrete from 924(c), and the express statutory mandate of 924(c) should not be applied to 924(j). Secondly, Congress enacted 924(j) to “extend the death penalty to second-degree murders,” which does not result in a more lenient sentencing scheme, so 924(j) should not be interpreted as requiring mandatory consecutive sentencing.
In count 3, Bran was charged under three criminal statutes, 18 U.S.C. sects. 924(c)(1)(A), 924(j)(1) and 2; the first of these prohibits the use or carrying of a firearm in relation to a drug trafficking offense or crime of violence, or possession of a firearm in furtherance of one of those crimes, and violation of the statute carries a minimum of five years’ imprisonment, which must run consecutively to any other sentence. Under the second statute, 924(j), any person who causes the death of another through the use of a firearm in the course of committing a violation of the first statute, 924(c), could receive the death penalty or imprisonment for 10 years to life.
With respect to the relationship between sects. 924(c) and 924(j), the Fourth Circuit held that because Congress made 924(j) separate from 924(c), it must have intended for 924(j) to have the effect of enhancing the sentence imposed for a conviction under 924(c). To interpret otherwise, according to the panel, would lead to the conclusion that a person with a 924(c) conviction which resulted in murder could receive a more lenient sentence than if the murder never occurred. Further, the panel held that four out of the five circuits that considered this issue have held that 924(j) requires mandatory consecutive sentencing.
In contrast, the dissent of this case disagreed with the majority about the nature of the relationship between these two statutes, finding that 924(j) is discrete from 924(c), and the express statutory mandate of 924(c) should not be applied to 924(j). Secondly, Congress enacted 924(j) to “extend the death penalty to second-degree murders,” which does not result in a more lenient sentencing scheme, so 924(j) should not be interpreted as requiring mandatory consecutive sentencing.
4th Circuit considers privacy interests in one's home during term of supervision
US v. Hill, et al. - In this appeal, three folks on terms of supervised release raised a Fourth Amendment challenge to a probation officer’s walk-through and a dog-sniff of an apartment where one of the folks had purportedly moved. A United States Probation officer suspected supervisee Eric Barker of moving without notification, and obtained an arrest warrant for Barker, executing it at his alleged new apartment. Once there, the probation officer discovered Barker and two others living or staying there, both also serving terms of supervised release, and conducted a protective sweep. After all three folks were arrested and the sweep concluded, the probation officers conducted a further walk-through and dog sniff, during which time the dog alerted and the officers found further evidence of supervised release violations.
Barker and the two others, Robert Hill and Megan Dunigan, claimed on appeal that the walk-through and dog sniff violated the individuals’ rights under the Fourth Amendment, and under Fourth Circuit precedent, a search warrant should have been obtained before the advanced searches, beyond the protective sweep, were conducted. The Fourth Circuit agreed. Though all three individuals were subject to the standard condition that required them to “permit a Probation Officer to visit him or her at any time, at home or elsewhere, and [to] permit confiscation of any contraband observed in plain view,” probation officers must comply with the Fourth Amendment’s warrant requirement.
As the legal basis for its decision, the Fourth Circuit panel used United States v. Bradley from 1978, wherein defendant Bradley was on parole with a condition requiring him allow his parole officer to visit his home or place of employment, and no parole condition required Bradley to consent to searches. Acting on a tip, Bradley’s parole officer went to Bradley’s boarding house, searched his room, and located a firearm. The Fourth Circuit held that the parole officer should have obtained a search warrant, even where the parolee has consented to periodic and unannounced visits by the parole officer. Hence, there was an agreement to home visits by a probation officer, but not warrantless searches. Further, the Fourth Circuit panel found here that Bradley still controls, and that law enforcement officers may not search the home of an individual on supervised release who is not subject to a warrantless search condition, unless the officers have a warrant supported by probable cause.
The Fourth Circuit remanded the case to the district court for an evaluation of whether the information gained during the illegal searches affected the officer’s decision to seek a warrant.
Barker and the two others, Robert Hill and Megan Dunigan, claimed on appeal that the walk-through and dog sniff violated the individuals’ rights under the Fourth Amendment, and under Fourth Circuit precedent, a search warrant should have been obtained before the advanced searches, beyond the protective sweep, were conducted. The Fourth Circuit agreed. Though all three individuals were subject to the standard condition that required them to “permit a Probation Officer to visit him or her at any time, at home or elsewhere, and [to] permit confiscation of any contraband observed in plain view,” probation officers must comply with the Fourth Amendment’s warrant requirement.
As the legal basis for its decision, the Fourth Circuit panel used United States v. Bradley from 1978, wherein defendant Bradley was on parole with a condition requiring him allow his parole officer to visit his home or place of employment, and no parole condition required Bradley to consent to searches. Acting on a tip, Bradley’s parole officer went to Bradley’s boarding house, searched his room, and located a firearm. The Fourth Circuit held that the parole officer should have obtained a search warrant, even where the parolee has consented to periodic and unannounced visits by the parole officer. Hence, there was an agreement to home visits by a probation officer, but not warrantless searches. Further, the Fourth Circuit panel found here that Bradley still controls, and that law enforcement officers may not search the home of an individual on supervised release who is not subject to a warrantless search condition, unless the officers have a warrant supported by probable cause.
The Fourth Circuit remanded the case to the district court for an evaluation of whether the information gained during the illegal searches affected the officer’s decision to seek a warrant.
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