Monday, May 02, 2016

US v. Warner: Warner pleaded guilty to being a felon in possession of a firearm. In the plea agreement, the parties agreed that the 4-level Guideline enhancement for use of a firearm in connection with another felony offense did not apply because the conviction at issue - a North Carolina breaking and entering conviction - was not a felony. However, the agreement also stated that the Government "will inform the Court and the probation office of all face pertinent to the sentencing process and will present any evidence requested by the Court." The PSR recommended that the enhancement applied. Warner objected. The Government, on the other hand, noted the agreement with Warner, but then explained (at some length) how its analysis had changed in light of newer Fourth Circuit case law. Nonetheless, it asked that the district court "honor the agreement of the parties." Warner argued that the Government breeched. The district court disagreed, applied the enhancement, and sentenced Warner to 48 months in prison, just below the bottom of the resulting Guideline range.

The Fourth Circuit vacated Warner's sentence and remanded for resentencing before a different judge. The court concluded that the Government did breech the plea agreement, even though it was acting in good faith. The court distinguished between the Government merely representing its position (which it did) and actually recommending that the enhancement not apply (which is promised to do). The former is a "mere recommendation," advice that the district court was free to reject. The latter would have made the district court more hesitant to apply the enhancement. Furthermore, there was a difference between recommending that the enhancement shouldn't apply versus arguing that it should not apply.

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

No Oral Conditional Plea Without Government Explicit Consent

US v. Fitzgerald: Fitzgerald was charged with various gun and drug offenses and unsuccessfully moved to suppress evidence found as the result of the execution of a search warrant at his home. He rejected a plea offer from the expressed his desire to enter an "open plea." At the plea hearing the district court indicated that, by pleading guilty, Fitzgerald might be unable to raise certain issues on appeal, but said that "you certainly retain your ability to appeal any decision the Court has made with regard to a motion to suppress." The Government didn't say anything about the district court's statement. The district court accepted the guilty plea and sentenced Fitzgerald to 130 moths in prison.

Fitzgerald appealed, challenging the denial of his motion to suppress, but the Fourth Circuit ordered supplemental briefing on the issue of whether he had entered "a valid conditional plea that reserved his right to appeal these issues." Ultimately, the court concluded that he had not. Although Rule 11(a)(2) requires conditional pleas to be in writing, the court noted that it deems that requirement satisfied when "the reservation is so clearly show on the record that there is no doubt that a conditional plea was agreed to." However, the other requirements of the rule - Government consent to the plea and district court approval - are mandatory. At the very least, the court held, the Government consent requirement was not met because the Government never addressed the issue during the plea hearing. The Government's concluding assertion of "that's perfect" to the district court wasn't enough. Because Fitzgerald's plea was not valid, the court vacated the judgment and remanded to the district court for Fitzgerald to decide whether to go to trial or enter a conditional plea.

Burglaries of Homes Next to Each Other on Same Night Separate for ACCA Purposes

US v. Linney: Linney pleaded guilty to being a felon in possession of a firearm. In the PSR, he was designated an Armed Career Criminal based on three prior North Carolina burglary convictions, two of which, Linney argued, occurred on the same occasion. He argued that they took place on the same night and in close proximity. Records produced by the Government showed they took place next door (or across the street) from each other on the same night, one between 8 and 10pm, the other between 7 and 10pm. At the same time Linney pleaded guilty to those two offenses he also pleaded guilty to (among other things) 17 counts of breaking and entering and two attempted breaking and entering counts. The Government argued that the two burglaries involved different victims and locations and were "distinct criminal episodes." The district court agreed and sentenced Linney to 235 months in prison.

On appeal, the Fourth Circuit affirmed Linney's sentence. Linney conceded that the offenses involved separate victims, but argued that they occurred in the same location "because the burglarized houses were only thirty feet apart" and that the objective of the burglaries was the same. The court rejected that argument, finding that separate houses mean separate geographic locations which gave Linney "a sufficient opportunity to evaluate whether to commit another crime." Nor did the Shepard documents in the record show that Linney was acting with an accomplice which would have "complicat[ed] the different occasions analysis."

Prior Record, Other Factors, Justified Extension of Traffic Stop

US v. Palmer: Palmer was pulled over in Virginia because of too darkly tinted windows and the inspection sticker appeared to be fraudulent. Upon approaching the car, the officer noticed several air fresheners in the car, "some hanging in the passenger compartment and others plugged into the air-conditioning vents." The officer retrieved information from a couple of different databases that indicated Palmer was a gang member with a prior criminal record that included drug offenses. The officer radioed for a drug dog, then went to more fully examine the inspection sticker. In leaning into the car to do so (the back of the sticker is the best evidence of fraud, apparently), the officer smelled the odor of marijuana. Although the officer told Palmer he had grounds to search the car, he "wanted to be '110% sure'" and waited for the drug dog, which alerted on the vehicle twice. The eventual search uncovered crack cocaine and a firearm. Palmer is charged with drug and gun offenses, has his motion to suppress denied, and enters a conditional guilty plea.

The Fourth Circuit affirmed the denial of Palmer's motion to suppress. First, it found that the stop itself was lawful, finding no clear error in the officer's conclusion that the window tint was too dark (indeed, measurement after Palmer was arrested showed the officer was right). Second, the court rejected Ring's argument that the officer expanded the scope of the stop before getting to the point where he smelled marijuana (and thus had probable cause to search). With regard to Palmer's argument that Palmer had no basis to "delve into his criminal record" because it was unrelated to the basis for the stop, the court held that to "describe that contention is to discard it" because an officer "is entitled to inquire into a motorist's criminal record after initiating a traffic stop." The information the officer received from the database about Palmer's prior record gave him reasonable suspicion (along with the other facts then known) that criminal activity was afoot. Those factors, in their totality, "eliminated a substantial portion of innocent travelers and demonstrated a connection to possible criminal activity."