Defendant Who Fails on Plain Error Appellate Review Can Prevail on Ineffective Assistance of Counsel for Failure to Raise Issue

US v. Carthorne: In 2010 Carthorne pleaded guilty to drug and gun charges and was determined, in the PSR, to be a career offender based on a Virginia conviction for assault and battery against a police officer. Trial counsel didn't object to the classification of that offense as a crime of violence or Carthorne's designation as a career offender. He explained at sentencing that he had "labored over that case long" and asked "providence for a lucky break," but conceded that he couldn't find anything to support an argument that Carthorne wasn't a career offender. Counsel admitted "I'm not a good lawyer" and went on to argue for a variance based on the facts of the actual prior offense - Carthorne spit at a cop. The district court varied slightly and imposed a sentence of 300 months, 89 months higher than the top of the non-enhanced Guideline range.

Carthorne appealed his career offender designation, but was stuck with plain error review. The Fourth Circuit affirmed, finding that the Virginia prior was not a crime of violence, and thus there was an error, but that the error was not plain because existing precedent didn't require that result. Carthorne then filed a 2255 motion alleging that his trial counsel had been ineffective for failing to object to the career offender designation on the ground that his prior conviction wasn't a crime of violence. The district court denied the motion. While Carthorne could easily show prejudice - had he been on de novo review on appeal he would have prevailed - the court concluded that he could not show that his counsel's performance had been deficient "essentially for the same reasons that the Fourth Circuit found not plain (i.e., obvious) error on direct appeal."

On appeal the Fourth Circuit reversed the denial of Carthorne's 2255 motion. The court concluded that the plain error standard and the Strickland ineffective assistance standard are fundamentally different and based in different sources - Federal rules and the Sixth Amendment, respectively. Therefore, they serve "different, yet complementary, purposes" and involve different variants of prejudice. While plain error looks only to settled law, effective assistance of counsel frequently requires "that counsel raise material issues even in the absence of decisive precedent." At the time of Carthorne's original sentencing although there was no precedent directly on point there were cases that "strongly suggested at the time that [the offense] did not qualify as a crime of violence." The sentencing transcript showed that counsel didn't really understand the crime of violence analysis and there was no strategic reason for failing to make an objection to the career offender determination. Therefore, Carthorne had demonstrated deficient performance of counsel, as well as prejudice, and was entitled to be resentenced.

Court Can Sua Sponte Dismiss Untimely Appeals, But Should Do So Sparingly

US v. Oliver: Oliver pleaded guilty to drug charges in 2011. The next year he filed a timely 2255 motion challenging his sentence. The district court ultimately denied the motion in 2015. Three months later, Oliver filed a pro se notice of appeal - from the 2011 original judgment in his case. Counsel was appointed, who filed an Anders brief. The Government didn't file a response brief and Oliver did not file a pro se brief.

There was no doubt that Oliver's notice of appeal was filed years after the 14-day deadline in the Rules of Appellate Procedure. This does not deprive the Fourth Circuit of jurisdiction, because the deadline is merely a claims processing rule, but would generally result in dismissal if the Government asked for it. Since the Government did not, the issue was whether the court could dismiss the appeal sua sponte. The court concluded that it could, given "the potential consequences of adjudicating untimely criminal appeals," including situations - like this one - where the defendant has already unsuccessfully sought collateral review. Having said that, the importance of preserving the adversary system "and its benefits weigh heavily against" invoking that authority. This case, however, was one in which that authority could be exercised, particularly because Oliver had already sought collateral review of his conviction. In doing so he relied upon the finality of his conviction and could not later go back and seek to undermine it. The court dismissed Oliver's appeal.

Court Allows Serial Revocation, Sentencing, of Supervised Release Violations

US v. Harris: Harris was serving a term of supervised release when he was subject to a traffic stop that uncovered guns and drugs. He was arrested and a petition to revoke was filed alleging that he had violated the law by possessing those items. Addenda were filed with additional allegations (after the Government learned that Harris was part of a state murder investigation), including failing to notify his probation officer after contact with law enforcement and new state criminal charges. At a revocation hearing the district court concluded Harris had violated by failing to report, revoked Harris, and sentenced him to a month in prison, followed by 40 more months of supervised release. The other allegations were held in abeyance pending the outcome of proceedings in state court. While in prison, Harris was indicted federally for being a felon in possession of a firearm during the traffic stop. The Government filed another addendum based on that indictment and sought to dismiss the remaining allegations. The district court granted that motion, then revoked Harris a second time, imposing a 36-month term of imprisonment and a further 24-month term of supervised release.

On appeal, the Fourth Circuit affirmed Harris's revocations and sentences. The court noted that it "it well-established that a revocation does not end a term of supervised release" and that "[a]fter revocation, the defendant continues to serve his term of supervised release, but does so in prison." Previously, the court had held that "the district court's jurisdiction over the supervised release continues past revocation" and "the district court's supervisory authority continues as well." As a result, it does not matter that the second revocation was based on an allegation that was made after the first revocation, but involving conduct that occurred before the first revocation. Furthermore, the court found that the combined sentences imposed for Harris's revocations did not exceed the statutory maximum because those limits apply to every revocation and do not aggregate. Thus, with regard to the total new supervised release terms imposed - 64 months, beyond the 60-month statutory maximum - the court held that 18 USC 3583(e)(3) "does not require the district court to credit time previously served on post-release supervision" and so the "district court could sentence Harris up to 60 months of supervised release upon his second revocation without giving credit for any of the time that he had already served." The same is true for the terms of imprisonment. The court also rejected Harris's argument that the second revocation was "additional punishment for his already-revoked, original term" because that "theory would convert per-revocation maximums into per-term of supervised release maximums" which is "contrary to Congress's intent to create a per-revocation maximum."

Use of Peer-to-Peer Software Constitutes Distribution for CP Cases

US v. Stitz: Stitz entered into a plea agreement with the Government to plead guilty to distribution of child pornography. He agreed to a stipulation which set forth that the FBI had used the ARES peer-to-peer file sharing network to download images of child pornography from Stitz's computer (three times). The stipulation also set forth that Stitz told the FBI that he knew "his computer was sharing child pornography files on the ARES network." At sentencing, Stitz argued that he did not intend to distribute any images and his distribution was "passive." In light of that, and other sentencing factors, the district court varied and imposed a sentence or 121 months in prison.

On appeal, the Fourth Circuit affirmed Stitz's conviction. In spite of the plea agreement and stipulation, Stitz argued that there was no factual basis to support a plea of guilty to distribution of child pornography. Reviewing for plain error, the court found not error in the district court accepting Stitz's guilty plea, plain or otherwise. The court noted that the only mens rea requirement for distribution of child pornography is that it was done knowingly, not with bad or evil intent. The record contained multiple instances where Stitz admitted that he knew the files on his computer were being shared with others. The court went on to conclude that the use of a peer-to-peer file sharing system constitutes distribution of child pornography, so long as files are actually available to others. The court had already reached the same conclusion with regard to distribution under the Guidelines and every other Circuit that has decided the issue has reached the same conclusion.

Forcing Minor to Masturbate to Collect Evidence Violates Fourth Amendment

Sims v. Labowitz: This is a 1983 civil rights case arising from a state child pornography investigation in Virginia. 17-year old Sims got in trouble for sending a video of his erect penis to his 15-year old girlfriend. While investigating that an officer, Abbott (who died before the suit - Labowitz his the administrator of his estate), with the aid of a prosecutor, obtained a search warrant allowing him to take pictures of Sims's penis, including while erect. Abbot snatched up Sims, took him to a juvenile detention center and, in a room with two other officers, took pictures. During the process he instructed Sims to "use his hand to manipulate his penis" in order to get a picture of it while erect. Sims couldn't meet the challenge. Undeterred, Abbot got a second warrant and told Sims's attorney that if Sims couldn't perform again he would be "taken to a hospital to give him a an erection-producing injection." The second warrant was never executed and the more-senior prosecutor agreed not to use any of the pics taken pursuant to the first warrant. Sims was basically given a pretrial diversion, with the charges dismissed if he performed well on probation. Once his probation term was over (and the charges gone), Sims sued on two grounds: (1) that the execution of the warrant violated his Fourth Amendment rights, and (2) that under 18 USC 2255(a)(1) he was a victim of the production of child pornography. The district court dismissed the case.

On appeal the Fourth Circuit reversed the dismissal, 2-1, on the Fourth Amendment issue. First, the court found that Abbot's search did violate Sims's Fourth Amendment rights. Walking through a four-step analysis, the court concluded that both the scope of the intrusion and the manner in which the search was convicted were unreasonable, noting that sexually suggestive searches are "terrifying, demeaning, and humiliating." Furthermore, the place where the search was conducted contributed to the violation. Finally, the court held that there was no legitimate evidentiary purpose behind the warrant (so far as I can tell there's nothing suggesting that someone - the victim, presumably - was going to identify Sims based on some particular characteristic of his anatomy). In fact, the court concluded that it "cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others." Second, the court concluded that Abbot was not entitled to qualified immunity because a reasonable officer in his position would have known such a search was unreasonable, even in light of the warrant authorizing it. The court affirmed the dismissal of the production of CP count (because Abbot wasn't doing what he did for "lascivious" reasons) and remanded the case to the district court for further proceedings on the 1983 claim.

Judge King dissented on the Fourth Amendment issue, arguing that there was no violation and, even if there was, Abbot was entitled to qualified immunity.

North Carolina Robbery Matches "Generic" Robbery Listed In Guidelines

US v. Gattis: Gattis was convicted of being a felon in possession of a firearm. Of the many Guideline calculation issues in his case the primary one was whether his prior conviction for robbery in North Carolina was a "crime of violence" that would drive up his base offense level. Gattis was sentenced under the current/post-Johnson Guidelines, so to qualify as a crime of violence it either had to involve as an element the use of force or match one of the offenses specifically set forth in the Guidelines - which now includes robbery. The district court concluded it did qualify as a crime of violence and sentenced Gattis accordingly.

On appeal, the Fourth Circuit affirmed. The court recognized that, based on Gardner, robbery in North Carolina does not require the use of "violent force" and could not qualify as crime of violence under the force clause. Therefore, the court dove into, for the first time so far as I can tell, defining what "generic" robbery under the Guideline meant. The court ultimately rejected the Model Penal Code formulation in favor of the one used by Professor LeFave. This is because the MPC version - which requires "serious bodily injury" (or the threat thereof) has "not been widely adopted" in the states. Instead, relying on LeFave, the court concluded that "generic robbery is defined as the 'misappropriation of property under circumstances involving [immediate] danger to the person.'" The court went on to concluded that "immediate danger" is "categorically satisfied by the taking of property 'from a person or a person's presence by means of force or putting in fear.'" It distinguishes robbery from larceny from the person as occurring "only when the offender takes property by using force or by threatening immediate physical harm." Such a threat "may be express or implicit but it must be sufficient to include the victim to part company with the property." Applying this definition, North Carolina robbery was a "clean match" where "North Carolina common law robbery is thus subsumed within - and is a categorical match with - generic robbery." The amount of force necessary to match the generic offense is less than needed under the force clause.

Fraudulent mortgage lending conspiracy convictions affirmed

US v. Raza, et al.:  Four former employees of SunTrust Mortgage in Annadale, Virginia, appealed their wire fraud and conspiracy to commit wire fraud convictions, specifically, the jury instructions on materiality and intent to defraud instructions.  Additionally, the defendants argued that the district court failed to instruct the jury that it had to individually assess the guilt of each of the defendants as to each count.  The Fourth Circuit, finding no errors, affirmed the convictions.

In its reasoning, the Fourth Circuit noted that the defendants’ proposed instruction for the wire fraud offense required proof of five elements that the court tracked in its charge to the jury.  The Fourth Circuit found several similarities between this case and one from the 9th Circuit, wherein it concluded that adopting a subjective test of materiality, as defendants urged here, would “essentially grant blanket absolution to low-level fraudsters because of the widespread sins of the mortgage industry.”  Further, the Fourth Circuit discussed the controlling import of its earlier cases, finding that the correct test for materiality is an objective one, “which measures a misrepresentation’s capacity to influence an objective ‘reasonable lender,’ not a renegade lender with a demonstrated habit of disregarding materially false information.”

As to the intent instruction, the Fourth Circuit found that its earlier decision in Wynn explained how the district court’s instruction in this case was correct, that is, the government had to prove more than an intent to deceive; it also had to prove an intent to harm “in some sense.”

With the last challenge, the defendants claimed that the district court’s instructions allowed the jury to find guilty by association.  During the jury’s three days of deliberations, the jury sent a question to the court to clarify if they found the defendants guilty of the conspiracy, was guilt to be assumed, then, for all other counts, and the district court advised them that no, the jury had to look at each count facing each defendant.  The Fourth Circuit found the instructions and the supplement, as well as the separate verdict forms for each defendant, with the counts listed separately, appropriately gave individual consideration to each count alleged. 

Jury instruction challenge fails in sex trafficking appeal

US v. Banker:  In this appeal, the Fourth Circuit heard Banker’s appeal of his convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity.  Chiefly, he contended that his jury had been instructed improperly on the scienter element of each offense because they require proof that he knew the victim was a minor.  Secondly, he argued the insufficiency of the evidence.  The Fourth Circuit affirmed.

To reach its decision, the Fourth Circuit agreed with the government’s arguments that unpublished opinions from this Circuit and sister circuits have held that the element of age can be proven by either “knowledge” or “reckless disregard,” a position consistent, according to the Fourth Circuit, with the wording and punctuation of the pertinent statutes.  Accordingly, the Fourth Circuit held that the district court did not err in its instructions to the jury as to the scienter elements of the offenses.  Further, the government had to prove only that the victim was a minor, not that the defendant had actual knowledge of that fact. 

With respect to the sufficiency of evidence at trial, the Fourth Circuit found that Banker could not meet his burden to disrupt the jury’s verdict, as testimony from his co-conspirator and victim, as well as “numerous” other pieces of evidence, including Facebook posts, supported a finding that Banker recklessly disregarded the victim’s age.  The evidence at trial, according to the Fourth Circuit, readily satisfied the standard, i.e., supported a rational determination of guilty beyond a reasonable doubt. 

Any Materiality Error in Health Care Fraud Prosecution Harmless

US v. Palin: Palin owned an operated a drug testing facility (assisted by her co-defendant, Webb), which used two kinds of tests: a less expensive "quick-cup" test and a more expensive "analyzer" test. They ran a system whereby uninsured patients who paid cash were only given the quick-cup tests, while insured patients were given both tests, with insurers (including Medicare) being billed for both. As a result, insurers were billed for additional and more expensive tests that were not medically necessary. Palin and Webb were convicted after a bench trial of health care fraud and conspiracy. After the Supreme Court's decision in Universal Health Services, they filed a motion for acquittal or a new trial arguing that the case had changed the standard for materiality in such cases and the court had not found that element proven by the Government. The court denied the motion.

On appeal, the Fourth Circuit affirmed Palin and Webb's convictions. Accepting the Government's concession that materiality was an element of health care fraud, the court held that even if the district court overlooked materiality (it's initial opinion convicting Palin and Webb didn't mention it at all), any error was harmless because the record showed that the insurers wouldn't have paid for the more expensive tests had they known they weren't medically necessary. As for Palin and Webb's argument that Universal Health Services require the use of a more stringent materiality standard, the court did not decide whether that was correct, but concluded that the standard was met, anyway. The court distinguished Universal Health Services, where the victim of the fraud knew the requirements for the payments it made were being violated, there was no such evidence in the record of this case.

North Carolina Assault Inflicting Serious Bodily Injury Crime of Violence Under Residual Clause

US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm and drug possession with intent to distribute. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - North Carolina assault inflicting serious bodily injury ("AISBI"). He was sentenced to 120 months in prison. On appeal, Thompson argued that AISBI was not a crime of violence. The Fourth Circuit held the case in abeyance pending Beckles. Once that case was decided, it ordered additional briefing on whether AISBI was still a crime of violence under the residual clause of the crime of violence definition.

The Fourth Circuit ultimately concluded it was a crime of violence under the residual clause and affirmed Thompson's sentence. In doing so, the court was forced to determine what the Supreme Court's 2015 decision in Johnson meant for Guideline residual clause analysis going forward. The court concluded that Johnson did not overrule the Begay "similar in kind" test the court adopted before Johnson, but it did clarify that the analysis is to be based on "the ordinary case" in both the similar in kind and "degree or risk" assessments. Noting that under state law AISBI involves assaults that are "especially violent and result in the infliction of extremely serious injuries" and therefore had a degree of risk similar to the enumerated offenses in USSG 4B.2. The court rejected Thompson's argument that North Carolina's case law was so broad as to make it impossible to identify the "ordinary case" of AISBI, concluding that it requires actual intent and thus is similar in kind to the "purposeful, violent, and aggressive" offenses enumerated in the Guideline.

26-month CP Sentence Substantively Unreasonable

US v. Zuk: Zuk began collecting and sharing child pornography while in high school, then continued when he began college. As part of his involvement with CP, he corresponded with a 16-year old in Texas who was sexually abusing his 5-year old cousin. Among other things, Zuk had this person produce CP images of the cousin as his specific request. Eventually, Zuk was charged with multiple counts related to CP, including possession, receiving, and distributing. Pursuant to a plea agreement, he pled to one count of possession. Although his advisory Guideline range was 324 to 405 months, his plea capped his statutory maximum at 240 months, with no mandatory minimum. After a two-day sentencing hearing, which included testimony from multiple experts on Zuk's mental issues and potential for treatment, the district court imposed a sentence of time served (26 months) and a lifetime term of supervised release "contingent on his successful completion of [a] residential treatment program."

The Government appealed and the Fourth Circuit vacated Zuk's sentence.

First, the court concluded that the Government could, in fact, appeal the sentence. Zuk waived his right to appeal on any grounds other than ineffective assistance of counsel, which he argued meant that the Government had "implicitly" waived similar rights. However, in this plea agreement the Government explicitly reserved its appeal rights. The court found there was no great asymmetry in this, as the Government gave up a lot (dismissing the other charges, all of which included mandatory minimums higher than the sentence Zuk received). That distinguished this case from one where the plea agreement was silent on the Government's appeal rights.

Second, the court concluded that Zuk's sentence was substantively unreasonable. That was primarily because the district court "focused almost entirely on Zuk's autism spectrum" diagnosis. That was particularly problematic because the record didn't support a conclusion that Zuk's condition caused his criminal behavior (he admitted, when caught, that he knew what he was doing was illegal). That was a legitimate consideration in determining sentence, but couldn't be the driving factor. In addition, Zuk's sentence created serious issues of disparity with similarly situated defendants - including the 16-year old in Texas who got 50 years in state court for his role and the "other members of his online community [who] received sentences of 96 to 222 months' imprisonment." Zuk's sentence was also much lower than the Guidelines recommended for a non-aggravated possession conviction.

WV Aggravated Robbery Requires Use of Force

US v. Salmons: Salmons was convicted of being a felon in possession of a firearm. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - West Virginia aggravated robbery. Salmons objected, back in the pre-Beckles days, that his prior didn't involve the use of force and therefore couldn't be a crime of violence. The district court disagreed and denied the objection, calculating Salmons's Guideline range to be 30 to 37 months. The district court imposed a sentence of 12 months and 1 day.

Salmons appealed his sentence, which the Fourth Circuit affirmed. The court held that "aggravated" robbery - which requires strangulation, suffocation, striking, beating, or other violence to the person, or the threat or presentment of firearms or "other deadly weapon or instrumentality whatsoever" qualified as a crime of violence under the force clause. "These are brutal acts," the court concluded. The court found no distinction between this prior and SC strong-arm robbery and federal bank robbery, all of which require "violent force" as defined by the Supreme Court. The court noted that West Virginia distinguishes between regular and aggravated robberies "to expressly delineate the more violent forms of the offense." Furthermore, Salmons couldn't point to any WV case suggesting the offense could be committed by something other than the use of force.

Following conviction, substitute assets not available to pay for appellate counsel

US v. Marshall:  Marshall petitioned the court to permit him to use funds in a credit union account not specified as part of the government’s forfeiture order, filed after his convictions for several drug-related crimes.  The government then filed a second order of forfeiture for the funds in Marshall’s credit union account, classifying them as substitute assets under § 853(p).   Marshall filed a separate motion to use the untainted funds in the credit union account to hire appellate counsel. 

The Fourth Circuit considered Marshall’s arguments that 1) the Constitution required the release of substitute assets forfeited by a defendant after conviction if the funds are needed for appellate representation, and 2) the government violated a rule of criminal procedure by failing to seek forfeiture for several months after Marshall’s convictions for the credit union funds. 

The Fourth Circuit discussed how defendants are entitled to effective counsel on appeal, but not the right to counsel of choice on appeal.  The Supreme Court has plainly foreclosed Marshall’s request to use his forfeited funds to hire appellate counsel.  When a defendant’s forfeited property is connected to a crime, title to the forfeited property vests in the government at the time of the criminal act that gives rise to the forfeiture.  In contrast, the government may not freeze untainted assets (i.e., those assets not connected to crimes charged) before trial that a defendant needs to hire counsel of choice. 

Marshall’s case involved the restraint of untainted assets post-conviction.  The Fourth Circuit concluded that based on the Supreme Court’s holdings that Marshall may not use his forfeited assets to hire appellate counsel (title to substitute property vests in the government upon order by the district court after conviction, at the latest).  Marshall’s funds ceased to be his upon issuance of the district court’s forfeiture order following his conviction.  The Court will appoint counsel if the forfeiture renders him indigent or he cannot secure pro bono counsel.

Procedurally flawed revocation sentence vacated

US v. Slappy:  Slappy received a supervised release revocation sentence of 36 months; she appealed, arguing that the sentence was plainly unreasonable because the sentencing court failed to address any of her non-frivolous arguments in support of a within-guidelines range sentence, or to explain at all why it imposed the statutory maximum sentence upon her.  The government countered that the court provided enough explanation and that it was not required to address mitigating evidence if it didn’t think a lower sentence was appropriate.  The Fourth Circuit vacated Slappy’s sentence and remanded for resentencing.

The Fourth Circuit reasoned that the district court committed procedural error by failing to address her arguments in favor of a sentence within-policy-statement range, and that the Fourth Circuit and the Supreme Court have both made clear that in imposing revocation sentences, like original sentences, the court must address arguments like Slappy’s, and if it rejects them, it must explain why.
 
The Fourth Circuit held here that a district court, when imposing a revocation sentence, must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if it rejects these arguments, the court must explain why with sufficient detail that the appellate court can meaningfully consider the procedural reasonableness of the sentence imposed.

No Johnson Relief for Pre-Booker Defendants

US v. Brown: Brown was convicted on drug and gun charges and sentenced as a career offender back in the pre-Booker mandatory Guideline era. One of his prior convictions was for assaulting a police officer while resisting arrest in South Carolina. After Johnson was decided in 2015, Brown filed a 2255 motion arguing that Johnson made the residual clause of the "crime of violence" definition inactive and that his assault conviction didn't otherwise require the use of force. The district court denied the motion.

The Fourth Circuit affirmed the denial, 2-1. We know that after Beckles defendants sentenced after Booker came out are doomed, because the Supreme Court held that advisory Guidelines are not subject to challenge as being unconstitutionally vague. But what about pre-Booker defendants like Brown? Brown argued that Beckles didn't address that issue and that a close reading of Johnson, Booker, and Beckles shows that the Supreme Court has recognized the right he is trying to assert - to not be sentenced pursuant to a unconstitutionally vague mandatory Guideline range. The Fourth Circuit concluded that was precisely the problem - by leaving the question open, the Supreme Court has not actually recognized the right Brown needs to take advantage of. As a result, there is no new declaration of a right that restarts the 1-year limitation on filing 2255 motions. As a result, Brown's motion was untimely because it was filed well after his conviction became final in 2003.

Chief Judge Gregory dissented, arguing that a newly recognized right it not just the "four corners of that holding" in which it is announced, but "is more sensibly read to include the reasoning and principles that explain it."

Trial Judge's Comments About Immigration Program (and the People Who Use It) Require Reversal

US v. Lefsih: Lefsih came to the United States from Algeria via the Diversity Immigrant Visa Program ("DIVP") - a program that provides chances for people from countries without a lot of immigration to the United States to qualify for a lottery and, if they win the lottery, to legally enter the United States. After five years in the United States, Lefsih sought citizenship. On an application form he answered "no" to a question about whether he had "ever been arrested, cited, or detained" by law enforcement. In truth, he had received multiple traffic citations while working as a cab driver. Lefsih claimed that he didn't think such tickets fit the definition of "arrested, cited, or detained" and didn't knowingly provide a false answer. Lefsih was charged with two counts each of making a false statement and immigration fraud and went to trial.

At trial the Government presented testimony from an immigration officer who explained how the DIVP worked. During his testimony the district court repeatedly interjected with its feelings on the program, expressing its amazement that such a thing existed: "Do you think anybody in American knows about this, other than the Committee that sent it through Congress? Probably not."; "Don't you love Congress? I mean, unbelievable, unbelievable. I'm sitting here 32 years, first time I ever heard this." The district court later asked if the witness was "talking about the hundred countries that nobody could name," which were "the bottom hundred," such as Mauritania or Moldova. The court contrasted immigration policies involving "countries that send a lot of people here" and where "you have to show you're . . . someone who is going to contributed to the well-being of the"country with those in the DIVP who "don't have to be a back surgeon or anything."  Finally, the court asked "if you get luck and win the lottery and get a card to come to America you can drag along you ten kids and four wives or what?" Lefsih didn't object to any of this and was eventually convicted on all counts. The district court dismissed the two false statement counts to avoid double jeopardy issues and imposed a sentence of time served (Lefsih was turned over to ICE custody for deportation).

The Fourth Circuit reversed Lefsih's convictions. Although the court found that Lefsih's convictions were supported by sufficient evidence, the court concluded that the district court's repeated interjections about the DIVP denied Lefsih of his right to a fair trial (even applying plain error review). The district court's interjections had the effect of "unfairly lending credibility to the government's case." That was particularly true because the comments went beyond isolated statements about DIVP itself to include criticism of the people who took advantage of the program, like Lefsih. The problem was not "the extent of the judicial participation at trial, but instead the actual content of the court's questions and comments." Lefsih was able to demonstrate prejudice because the Government's case was "substantially weaker" than the "compelling and overwhelming" evidence in similar cases. Furthermore, the district court's belated instruction to the jury that anything it says should not impact their decision was insufficient to cure the prejudice.

Court Affirms Restitution, Non-Recusal In Mortgage Fraud Case

US v. Stone: Stone ran a mortgage fraud scheme, where she "convinced financially distressed homeowners to engage her services as a real estate agent to negotiate 'short sales' with the mortgage holders on behalf of those homeowners." She would buy the properties at an artificially low price, then "flip" the houses, selling them to "predetermined buyers" for much higher prices. As a result, she was charged with numerous fraud offenses as well as conspiracy. Prior to trial she filed a pro se (and "largely unintelligible") motion for the district court to recuse itself because he "sits in consort with the accuser(s)." At a hearing on the motion, Stone (still acting pro se on this issue, although she was represented by counsel) asked if the court had stock or other interests in any of the banks involved in the mortgages. The court responded that "if there was a conflict I wouldn't be here," repeatedly, and denied the motion. Stone was found guilty by a jury on all counts. Prior to sentencing, the PSR calculated the losses of the various mortgage lenders to be just over $2.3 million. Stone objected to that figure for sentencing purposes, but not restitution, arguing that it inflated the true losses suffered and "gives the lenders and windfall the never would have realized." The district court adopted the PSR's calculation, sentenced to Stone to 60 months in prison and required her to pay the full amount in restitution.

While the appeal was pending. Stone filed a motion for a new trial, arguing that the district court should have recused himself due to "an alleged conflict of interest stemming from its ownership of stock in some of the victim banks." The court denied the motion, but did admit that it "did have a financial interest in some of the victim banks" but that still did not require recusal.

On appeal, the Fourth Circuit affirmed Stone's conviction and sentence. Reviewing the amount of restitution for plain error, the court found no error at all, concluding that the "preponderance of evidence shows that Stone fraudulently induced the lenders to approve the short sales and forego the full value of the mortgages." Particularly, Stone had not presented any evidence to support her argument that the lenders wouldn't have gotten the full value of the mortgages in the regular course of business anyway. For the same reason, the court also concluded that the district court did not clearly err in calculating the loss amount for purposes of calculating the advisory Guideline range.  On the recusal, the court found that the "district court's ownership of stock in the victim lenders is not a . . . financial interest" that required recusal because "the victim lenders here are not parties to the action; this is a criminal case between Stone and the Government." Moreover, any financial interest involved is so small as to be practically nil where the $2.3 million in restitution "will have a negligible effect, if any, on the value of these lenders, each of which is worth many hundreds of millions - if not billions - of dollars."

Adam Walsh Act Has Low Standard for Hearing on Motion to Release

US v. Maclaren: In 2009 the Government declared that Maclaren was a "sexually dangerous person" and subject to indefinite detention under the Adam Walsh Act (the opinion doesn't report what his initial conviction was for, but a footnote states he is "believed to have sexually abused" over 38 children over  period of more than 40 years). In 2013, the district court found the Government had met its burden and ordered Maclaren committed. In 2015, Maclaren filed a motion seeking a hearing on whether he should be discharged pursuant to a conditional release plan. The district court denied the motion, holding that Maclaren had not shown in his motion that his condition had improved since his commitment and he had failed to provide information about a release plan.

On appeal the Fourth Circuit reversed the district court's decision, but not on the merits. Rather, the issue was what showing a person like Maclaren had to show in such a motion to get a hearing, not get release. The court agreed with Maclaren that "a successful motion for a discharge hearing need only plausibly allege that the detainee is entitled to discharge." The district court erred by treating the motion as an vehicle for reaching the substantive issue of whether Maclaren should be released, not whether he was entitled to a hearing on whether he should be released.

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

Flight crew interference not categorically COV

US v. Diaz:  In this appeal, the Fourth Circuit considered whether the Victim and Witness Protection Act (VMPA) or the Mandatory Victims Restitution Act (MVRA) applied in the defendant, David Diaz’ case, after he pleaded guilty to interfering with the flight crew on a cross-country flight he tried to take in 2015.  Diaz, who self-medicated his declining mental health, got drunk before a flight that he was supposed to take to move from his father’s home in Northern Virginia, to his mother’s home in Texas.  Approximately 45 seconds after take off, an inebriated Diaz left his seat and rushed the cockpit, and resisted attempts to restrain him.  After the plane landed back in D.C. a short 13 minutes later, the flight crew refused to get back on the plane, the flight was canceled and passengers booked onto other flights.  United Airlines lost approximately $22k as a result.

After Diaz pleaded guilty, the PSR noted United’s losses but did not indicate a statutory basis for restitution.  Diaz argued that his offense fell within the scope of the VMPA and restitution was not mandatory, but he suggested that he could more readily afford a slightly lesser amount of restitution, in light of his financial situation.  At sentencing, the government argued for the application of the MVRA and mandatory restitution.  The district court agreed with the government, and did not rule on whether flight crew interference was a crime of violence.  Diaz appealed the restitution order.

The issue for the Fourth Circuit was whether it is possible for a crime presumptively covered by the VWPA to instead fall within the scope of the MVRA, and the court says yes.  It is clear that the MVRA may apply in determining restitution for a defendant who interferes with a flight crew, but only if it is also determined that flight crew interference falls within the scope of a statutory list of certain crimes.  If it is not a crime of violence, it won’t fit on the list.  The Fourth Circuit did a categorical approach analysis of whether flight crew interference is a crime a violence and determined the statute is indivisible, that it did not qualify as a crime of violence under the force clause (and the government, by failing to address the argument, waived the residual clause possibility).  It concluded that the appropriate statute to apply in Diaz’s case for determining the restitution question here was the VWPA.

Survivor's benefits are "things of value"

US v. Kiza:  Social Security survivor’s benefits are benefits paid to eligible surviving spouses and children, and they come from a trust fund established by Congress.  To oversee the trust, Congress created a Board of Trustees that reports to Congress on its operation and “actuarial status,” recommends improvements to its administration, and notifies Congress when the amounts in the fund grew too small.

In this case, Kiza began receiving survivor’s benefits as the representative payee for his two children, after representing to the Social Security Administration that his minor children were entitled to benefits upon the death of their father.  Except he wasn’t dead, just created a fake identity, his “twin brother.”  In total, Kiza received survivor’s benefits around $51,860.  

Kiza was indicted for theft of government property and he went to trial.  The jury found Kiza guilty of the sole charge against him.  He appealed, arguing that the survivor’s benefits were not “things of value.”  In Kiza’s argument, the benefits he received from the trust were money from individual citizens, not money from the U.S. Government.  The Fourth Circuit agreed with the government’s position that the money originated from the government, were regulated and accounted for by the government, so the benefits were a thing of value.  The Fourth Circuit upheld the verdict against him.

(Decided 5/1/17).

Residual Clause of career offender guideline valid for MD robbery with dangerous weapon

US v. Riley:  On appeal, Riley challenged his classification as a career offender, arguing that his prior conviction for Maryland robbery with a dangerous weapon was not a predicate “crime of violence” to enhance his sentence (from a guidelines range of 21-27 months to a whopping 210-262 months).  Riley did not object at the time of sentencing, so the Fourth Circuit reviewed Riley’s issue for plain error, instead of review de novo.

The Fourth Circuit held that the district court did not err in classifying Riley as a career offender, as Maryland robbery with a dangerous weapon “fits comfortably” within the residual clause’s definition of a crime of violence.  Despite Johnson and because of Beckles, the Fourth Circuit concluded, the residual clause of the career offender guideline remains valid.

(Decided 5/9/17).

16-level bump affirmed

US v. Walker:  In this case, a Jamaican national pleaded guilty to illegal reentry, and the district court that sentenced him found him to have been previously convicted of an aggravated felony.  This prior offense was a drug conviction from Ohio, which the district court concluded was a “drug trafficking offense” which called for a 16-level enhancement of Walker’s sentence, yielding an advisory guidelines range for Walker of 46-57 months.  The district court imposed a 30-month sentence, and Walker appealed the issue of whether his drug crime was a “drug trafficking offense.”

The Fourth Circuit affirmed the application of the enhancement to Walker’s sentence, after concluding that his prior drug conviction from Ohio qualified as a “drug trafficking offense” under the illegal reentry guideline, then in effect.  In 2004, Walker pleaded guilty to a charge of drug trafficking under Ohio law.  Walker argued that the conviction should not qualify as a “drug trafficking offense” because the statute required only that the defendant act knowingly, rather than with specific intent, as he argued was required by the guidelines.  The Fourth Circuit disagreed, finding that Walker misread the guidelines’ definition of “drug trafficking offense,” and that the absence of a specific-intent requirement in the Ohio statute does not prevent the 2004 conviction from qualifying as a drug trafficking offense under the guidelines.

The Fourth Circuit analyzed the Ohio statute using the categorical approach, stating that the Ohio statute qualifies as a drug trafficking offense only if all of the ways of violating the statute, including the least culpable, satisfy the definition of “drug trafficking offense.”  The 10th circuit considered the same Ohio statute and found that it qualified as a “controlled substance offense” under the career-offender guideline, concluding that all the acts prohibited by the Ohio statute qualified as “distribution.”  The Fourth Circuit agreed with 10th Circuit and concluded here that Walker’s conviction from Ohio qualified as a “drug trafficking offense” and the 16-level enhancement to his sentence was proper.

(Decided 5/24/17).

NC robbery with a dangerous weapon qualifies as ACCA predicate under force clause

US v. Burns-Johnson:  The mandatory minimum 15-year term of imprisonment imposed here was upheld by the Fourth Circuit, which found that even though robbery is not an enumerated offense, statutory armed robbery in North Carolina qualifies as a violent felony under the force clause of the ACCA.  Under a categorical approach, the Fourth Circuit held that robbery with a dangerous weapon categorically qualified as a violent felony under the ACCA force clause.

Burns-Johnson argued on appeal that his prior conviction did not qualify as a violent felony because the crime did not require the use of violent physical force “capable of causing physical pain and injury to another person,” e.g. administering poison.  The Fourth Circuit disagreed, holding that Torres-Miguel was not dispositive here, and even if NC statutory armed robbery could by committed by use of poison, the crime would still entail the use, attempted use, or threatened use of violent physical force under the ACCA, based on its holding in In re Irby and the Supreme Court’s holding in Castleman.

Burns-Johnson also argued that his prior conviction did not constitute a violent felony because it did not explicitly require that a person intentionally use or threaten to use force, which argument the Fourth Circuit foreclosed in its recent decision, United States v. Doctor.  The Fourth Circuit found that it would require the exercise of pure “legal imagination” to suppose that NC appellate courts would apply this statute when a robbery occurred with the unintentional use of a dangerous weapon.

Mandate Rule and Sentencing Package Doctrine in Re-sentencing appeal

US v. Ventura:  The Fourth Circuit granted Ventura relief from one count of seven for which he had received convictions, and remanded his case to the district court for re-sentencing.  Originally, he received a sentence of 420 months for his part in operating several brothels in Annapolis and Easton, Maryland, and in Portsmouth, Virginia.  On re-sentencing, Ventura received a sentence of 420 months again.  He appealed, arguing that the district court violated the mandate rule, arguing that the district court acted vindictively in sentencing him a second time to 420 months, even though one of his convictions had been overturned.  Third, he argued the new sentence was unreasonable because the court considered facts related to the count that had been vacated as well as some of his conduct while he was incarcerated with the BOP.  The Fourth Circuit affirmed.

In its analysis, the Fourth Circuit determined that the mandate rule was not violated because the lower court was permitted to consider the issue de novo and it could entertain any relevant evidence on that issue that it could have heard at the first hearing.  Additionally, pursuant to the Sentencing Package Doctrine, when a court of appeals vacates and remands a case for re-sentencing, the original sentence becomes void in its entirety and the district court is free to revisit any rulings from the initial sentencing.  The Fourth Circuit found that the sentencing package doctrine controlled the result in this case.  Moreover, the Fourth Circuit determined that its remand did not automatically entitle Ventura a 60-month reduction merely because his count seven conviction had been vacated; rather, the mandate left plenty of room for the district court to recalculate the sentences for the other six convictions that were not vacated.  The Fourth Circuit held that the district court did not exceed the mandate in the First Decision (appeal).  

Regarding the vindictiveness challenge, the Fourth Circuit held that Ventura’s challenge failed because he did not receive an increase in his aggregate sentence upon re-sentencing; the district court imposed the same term.  Under the “aggregate package” approach, courts compare the total original sentence to the total sentence after re-sentencing.  If the new sentence is greater than the original sentence, the new sentence is considered more severe.  Since Ventura received the same sentence, 420 months in prison, his attempt to establish a presumption of vindictiveness fails.

Finally, Ventura’s reasonableness challenges fail because the district court was permitted to consider Ventura’s violent conduct and alleged possession of firearms in crafting his sentence, and secondly, the factual underpinnings of the vacated count against Ventura were nonetheless proved by a preponderance of the evidence and could be considered in connection with Ventura’s re-sentencing.  With regard to Ventura’s conduct while in BOP custody, the Fourth Circuit held that a re-sentencing court could account for and decrease a sentence based on a defendant’s rehabilitation, or, by the same token, potential misdeeds.

No credit for time on improper release from jail

US v. Grant:  In this case, Briceton Grant pled guilty to an information that charged him with possession of PCP, and received a sentence that included one year of supervised probation.   A mere four days later, Grant received an additional charge of PWID marijuana and a schedule I/II drug.  His PO filed a petition to revoke his supervised probation.  A magistrate judge found Grant in violation and revoked his probation, and remanded Grant to the marshals for 15 days of incarceration as punishment for the violation.

The marshals erroneously allowed Grant to be released eleven days too early.  Grant’s attorney contacted the government to determine how to proceed given the error.  Grant’s PO filed a petition to have Grant remanded to serve the additional days, and Grant surrendered to the marshals.  Grant filed a motion to receive credit for the 10 days during which time he was mistakenly release.  After the magistrate denied the motion, Grant filed the instant appeal.

According to the Fourth Circuit, there appeared to have been a federal common law right to credit for time erroneously spent at liberty that dated back to the 1930s, and since then, some sister circuits have recognized a federal common law right to credit for time erroneously spent at liberty.  Some circuits award this credit when the government has been shown to have acted maliciously.  Other courts award credit whenever the government errs, even if it was merely negligent.  The Court notes that it is not certain at all that a federal common law right to credit for time erroneously spent at liberty currently exists.  Grant played no role in causing the premature release, and the government did not act with malice when it negligently released him.  Yet, the Fourth Circuit held that the district court did not abuse its discretion in denying Grant his credit for time erroneously at liberty because Grant had paid only 1/3 of his debt to society, he could serve his time on weekends to accommodate his employment, the ten days will not disrupt his life in a way that months or years of re-incarceration might do, and the government promptly recognized its mistake.  The Fourth Circuit affirmed the district court’s judgment.

Indirect Force Enough to Sustain ACCA Sentence

US v. Reid: Reid was convicted of being a felon in possession of a firearm. He had three prior conviction in Virginia for inflicting bodily injury on a correctional officer. The district court concluded that these were "violent felonies" for ACCA purposes and sentenced Reid to 15 years in prison.

The Fourth Circuit affirmed the sentence. Applying the categorical approach, the court concluded that the Virginia offense was a violent felony and, therefore, the ACCA mandatory minimum was triggered. It rejected Reid's argument that although the offense requires the causing of bodily injury, it did not meet the meaning of "force" (as the Supreme Court set forth in 2010's Johnson) because such injuries could be sustained by "indirect means." In other words, Reid relied on Torres-Miguel and it's conclusion that just because an offense requires a particular level of energy does not mean it has an element requiring the use of force. The court adopted the Government's position that the Supreme Court's decision in Castleman eclipses Torres-Miguel ("while the holding may still stand . . . it's reasoning can no longer support" the argument) and, therefore, indirect force is good enough. The court cites Irby, but does note that it doesn't apply directly to ACCA. Again, there doesn't seem to be any engagement with the idea that the language of Castleman (and Voisine) itself limits its reach to misdemeanor crime of domestic violence situations.

Only Assistance Itself Is Relevant to Guideline-Based Substantial Assistance Departure

US v. Concha: Concha was convicted of conspiracy to distribute cocaine on the basis of 43 kilos of cocaine that were found in his tractor trailer. After his arrest, Concha worked with law enforcement to deliver his cargo, thus leading to the arrest of his co-conspirators. At sentencing, his advisory Guideline range was 168 to 210 months in prison. The Government moved for a departure for substantial assistance, "viewed Concha's assistance very favorably," and asked the court to depart 50% from the bottom of the Guideline range. The district court granted the departure, but balked at the 50% request due to "his involvement in these drug crimes, and it's huge" and a recognition that he was able to provide such valuable assistance precisely because he was so deep in the conspiracy. The district court eventually imposed a sentence of 126 months, a 40% reduction from the top of the advisory Guideline range.

The Fourth Circuit vacated Concha's sentence. Noting that it's review was based on the district court's error of law in giving the departure, not the amount of the departure itself, the court distinguished between assistance departures under Rule 35 and the Guidelines. Under Rule 35, a court may only consider the defendant's assistance in deciding whether to grant a departure, but may consider other factors in determining the extent of the departure. Under the Guidelines, however, the sentencing court may only consider assistance related factors when determining the extent of the departure. In Concha's case, the district court considered factors beyond his assistance in deciding the extent of the departure. Those factors were appropriate for the determination of what the non-departure sentence would have been (top of the Guideline range), but not the extent of a subsequent departure.

Court Limits Ability to Raise New Issues in 2254 PF&R Objections

Samples v. Ballard: Samples was convicted of murder in West Virginia and sentenced to life in prison. A first 2254 petition in Federal court was denied because Samples had not yet exhausted his state habeas remedies. In denying the motion, the court stated that Samples might be able to bring a 2254 claim for ineffective assistance of counsel claim under Martinez, which allows defendants to bring IAC claims in federal court even if not made in a state habeas proceeding. After an unsuccessful return to state court, Samples filed a second 2254 petition, which the magistrate judge recommended be dismissed. In the objections to those PF&Rs, Samples raised, for the first time, "contentions related to the effectiveness of trial counsel, and argued that cause existed to excuse his failure to exhaust these issues" under Martinez. The district court overruled the objections, concluding that it had the ability to hear the IAC claims, but exercised its discretion not to do so. The district court also granted a certificate of appealability on the issue of whether it should hear Samples's IAC claims raised for the first time in the objections.

The Fourth Circuit affirmed the district court's decision. First, the court held that a prior decision (George ), in which it held that a district court performing a de novo review of a magistrate's recommendation could not deem issues raised for the first time in objections as "waived" and instead "must entertain them," applied in the context of 2254 proceedings. It conceives of a proceeding as (1) a legal case, that is then divided into (2) issues, which are then divided into (3) arguments. Applying that framework to a 2254 proceeding, (1) the legal case is the petition itself, (2) the issues or claims are the grounds for relief, and (3) the arguments are the positions taken for or against the claims for relief. This rejected Samples's conception, which would have identified only one issue - illegal custody - and transform the grounds for relief in to mere legal arguments. That position would "require us to find that a habeas petitioner could merely state the he is in illegal custody and then make all arguments later" which would "result in an end run around AEDPA."

Venue (Mostly) Proper in Eastern Virginia for Disclosure of Classified Material

US v. Sterling: Sterling worked for the CIA for nearly a decade. During that time, he took part in operations to funnel "realistic but ultimately flawed nuclear plans" to Iran via a Russian scientist. Sterling's term at the CIA didn't end well - he sued the agency for racial discrimination and was ultimately fired. Shortly thereafter, a reporter contacted the CIA about a story (eventually a book) he was going to publish about the Iran program. An investigation showed multiple contacts between Sterling and the reporter (who had written an article about Sterling's lawsuit). During a search of Sterling's house investigators found several classified documents. Sterling was charged, in the Eastern District of Virginia, with multiple counts related to the improper disclosure of classified material, fraud, and obstruction of justice. Sterling was acquitted of fraud, but convicted on all other counts and sentenced to 42 months in prison.

On appeal, the Fourth Circuit affirmed the majority of Sterling's convictions, but reversed on count of disclosure. Sterling's main arguments related to venue - both that the jury was improperly instructed on venue and that it improperly found venue was appropriate in EDVA. In general, the court concluded that venue was proper for Sterling's convictions because the evidence showed that information was either transmitted or retained by him while he lived in EDVA (the court didn't address the Government's broader backup theory - that venue was proper in EDVA because the reporter's book was for sale there). However, on one count of disclosure - which involved a letter, rather than phone or other type of contact - there was no evidence of where the letter was transmitted to the reporter. The court refused to take the Government's "presumption" that since the letter was found in Sterling's Virginia home the transmission must have begun there. Therefore, venue was not proper in EDVA on that count and it had to be reversed. The court found no error with the district court's instructions on venue, however. The court also held that Sterling obstructed justice when he deleted an email to the reporter following the issuance of a subpoena and that evidence of his prior mishandling of confidential material was admissible under Rule 404(b).

Judge Traxler concurred in part and dissented in part, arguing that venue was proper on the vacated disclosure count in EDVA.

Evidence Supports Two-Level Gun Enhancement Following Conspiracy Conviction

US v. Mondragon: Mondragon was convicted of conspiracy to distribute meth and possession with intent to distribute meth. The conspiracy ran from 2012 until 2014. Among the evidence presented at trial was testimony from Mondragon's "closest associate," Carroll, who testified that once at Mondragon's apartment he saw Mondragon "break down" a revolver while, at another time, Mondragon told stories of having killed people in Mexico. Another witness, Young, testified that he saw Mondragon with a gun "a couple of times in the past." Based on that evidence, Mondragon's advisory Guideline range was enhanced for the possession of a weapon.

The Fourth Circuit affirmed the sentence on appeal. Mondragon argued that the Government failed to carry its burden on the gun enhancement by showing that the firearms had any relation to drug trafficking activity. The court rejected that argument, holding that the testimony of Carroll (who only knew Mondragon during the conspiracy) proved that a gun was present during the conspiracy. Furthermore, the district court did not clearly error by concluding that there was a linkage between the gun and the conspiracy. Because Mondragon "did not even attempt to rebut the government's showing," the enhancement was proper. The court also rejected an argument, made for the first time at oral argument, that the evidence of possession was insufficient because it was based on statements made in the PSR, rather than trial - statements which Mondragon did not challenge as false.

Court Affirms Later Adult Conviction for Hobbs Act Robbery Comitted While Juvenile

US v. Lopez: In 2007 two men robbed a brothel in Maryland, during which a woman was raped and another man stabbed to death. The crime went unsolved until 2012, when DNA testing of a knife sheath left at the crime scene was matched to Lopez. A year later he was indicted for conspiracy to commit Hobbs Act robbery and a substantive Hobbs Act charge. Lopez was only 17 years old at the time of the offense, but 24 by the time of trial. His co-conspirator pleaded guilty to the conspiracy, but Lopez went to trial. He was convicted on both counts and sentenced to 20 years in prison.

On appeal, the Fourth Circuit affirmed Lopez's conviction and sentence. Lopez's arguments on appeal focused mainly in the delay between the commission of the offense and the indictment. First, he argued that because the offense occurred when he was only 17 years old he could not have been tried as an adult. Specifically, he argued that the defining "juvenile" to exclude those who were charged after they turned 21 (where the offense occurred before) violated the Constitution. The Fourth Circuit disagreed, holding that the designation of someone as a juvenile is not about culpability at a particular age, but about assuring that minors are placed into a system that is specially designed to handle their needs. It is thus "entirely rational" to exclude from that definition those who are charged after they turn 21. Second, Lopez argued that the Hobbs Act charge was outside the 5-year statute of limitations, even taking into account the late discovery of the DNA. He argued that he was "implicated" (the point at which the limitations period restarts) in 2008 when his DNA was first put into the database, not in 2012 when the match occurred. The court disagreed, holding that someone is implicated by DNA only once there is a match. Finally, Lopez argued that the delay in his prosecution violated his right to due process. The court disagreed, noting that he could not show any prejudice from the delay.

Court Vacates RICO Conspiracy, Federal Theft Convictions

US v. Pinson: Pinson was a member of the board of trustees at South Carolina State University as well as a participant in various business ventures, including Supremes, LLC (a diaper business) and VRE (real estate), and was charged with RICO and related charges arising from them. As a SCSU trustee, Pinson convinced the school to hire a particular promotor for its homecoming concert, from whom he received money and attempted to have the school purchase a luxury resort (as an "off-campus retreat facility"), for which he was supposed to receive a "commission." As for Supremes, Pinson helped the company receive a federal grant to refurbish an old factory, but the work was not completed and Pinson was involved in sending false invoices. Finally, with VRE, Pinson was involved with a housing contract. Pinson was charged with RICO conspiracy, theft from Government programs, extortion, money laundering, false statements, and various frauds.  After a two week trial he was convicted of numerous counts, including the RICO conspiracy, and sentenced to 60 months in prison and more than $340,000 in restitution and penalties.

On appeal, the Fourth Circuit affirmed most of Pinson's convictions, but vacated several. Specifically, the court found that the evidence did not show that there was a single RICO conspiracy that encompassed all four of Pinson's activities. Pinson and those he worked with did not commit the safe offenses and did not form a RICO "enterprise." The court also concluded that the evidence was not sufficient to sustain Pinson's two convictions for federal program theft related to VRE because one of Pinson's associates was not an "agent" of a covered entity and VRE did not receive a federal benefit.

Judge Diaz dissented on the RICO conspiracy and would have affirmed that conviction.

Aiding and Abetting Rape Can Be Tier III SORNA Predicate

US v. Cammorto: Cammorto pleaded guilty to violating SORNA by failing to register as a sex offender in Virginia. At sentencing, the district court concluded he was a Tier III offender (the most serious classification under SORNA) and, consequently, that his advisory Guideline range was 33-41 months. At issue was Cammorto's prior conviction in Georgia for rape - he argued that he was convicted only of aiding and abetting and, therefore, should be only a Tier I offender. The court disagreed and imposed a sentence of 41 months in prison.

On appeal, the Fourth Circuit affirmed Cammorto's sentence. Cammorto argued that because Georgia law allowed a person "who never even touched the victim" to be convicted of rape as an aider and abetter, that offense was broader than the federal offense of aggravated sexual abuse and, therefore, could not count as a Tier III offense. Applying the categorical approach, the court concluded that it was "readily apparent . . . that the Georgia rape statute is narrower than the federal offense." That the a person can be convicted as a principal under Georgia law as an aider and abetter was irrelevant because "under federal law, aiders and abetters are also treated as principals." The court also rejected Cammorto's argument (raised for the first time at oral argument) that Georgia's aiding and abetting standard is broader than the federal one.

Drug-Related Gun Bump Doesn't Preclude Safety Valve Relief

US v. Bolton: Bolton was charged with conspiracy to distribute marijuana. A search conducted at his home following his arrest uncovered (among other things) a shotgun and a rifle in his bedroom. The shotgun was stolen. Bolton was released on bond and eventually pleaded guilty to the conspiracy and was released pending sentencing. Prior to sentencing, Bolton's bond was revoked after it was learned that he was involved with the distribution of cocaine. Following his arrest, he was debriefed by law enforcement. He was eventually charged with conspiracy to distribute cocaine, pleaded guilty to that, and a consolidated sentencing hearing was scheduled. At sentencing there was a dispute over the application of a two-level gun enhancement recommended in the PSR and the PSR's failure to include reductions for acceptance of responsibility and because Bolton qualified under the "safety valve" provision. The district court overruled Bolton's objections, applying the gun enhancement because of the circumstances surrounding the possession of the guns (which happened outside of the time frame of the charged conspiracy) and concluding Bolton didn't qualify for the safety valve because of the gun enhancement. Nor did he receive credit for acceptance of responsibility.  Bolton was sentenced to 161 months in prison.

The Fourth Circuit affirmed Bolton's sentence, but no precisely on the grounds identified by the district court. Bolton challenged the district court's rulings on the gun enhancement and the safety valve. On the gun enhancement, the court held that the Government met its burden by showing that the guns were found in Bolton's bedroom along with marijuana and cash and that Bolton did not show that it was "clearly improbable" that the guns were linked to drug trafficking. However, the court also concluded that the district court's finding on the gun enhancement did not preclude Bolton receiving relief under the safety valve. That is because the burdens of proof on the two are different - to avoid the enhancement the defendant must show it was "clearly improbable" that the gun at issue wasn't possessed in connection with drug trafficking, but under the safety valve he must show that he "did not possess a firearm in connection with the offense." This, the court held, "is not a distinction without a difference." Thus, the district court erred by concluding that because the enhancement applied the safety valve could not. However, the court also concluded that the error was harmless because Bolton hadn't proved that he did not possess a firearm under the later standard. Finally, the court concluded that the district court did not err in denying Bolton a reduction for acceptance of responsibility, given that he was continuing to distribute drugs while on bond.

Court Affirms Convictions for Medicare Fraud Resulting in Death

US v. Chikvashvili: Chikvashvili ran a "diagnostic imaging company" - they provided portable x-rays, sonograms and such wherein a company tech would go to a patient's location, do the imaging, then transmit the images to a doctor. However, Chikvashvili developed an "elaborate, longstanding conspiracy to cheat Medicare" via fraud that included (among other things) using the technicians to interpret the imaging results, then fraudulently stating that a qualified doctor had given the results. Then Medicare would be billed for work allegedly done by doctors but actually "done" by lower-paid techs. The techs sometimes misread the images and in two cases patients died after images were misread and various conditions were missed. Chikvashvili was charged with two counts of healthcare fraud resulting in death. After a pair of Government experts testified at trial that the misread images led to the patients' deaths, a jury convicted Chikvashvili on both counts (as well as dozens of others). He was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed Chikvashvili's fraud resulting in death convictions. First, the court held that a resulting in death count can be based on the "execution of a fraudulent scheme" rather than only on the submission of a false claim. There was sufficient evidence to convict on those counts. Second, the court held that the jury was properly instructed about that standard. Finally, the court held that the Government's expert on causation was properly allowed to testify.

Economically Coerced Statement's Use at Trial Requires Reversal

US v. Giddins: Giddins was connected to three bank robberies - he allegedly committed one, then loaned his car to the perpetrators of two others. Police recovered the car, obtained an arrest warrant for Giddins, and lured him to the police station so that he could pick up his car. He was immediately taken into an interview room and informed that his car was used in a crime (the entire interview was videotaped). While going over a Miranda waiver form, Giddins was (essentially) told he wasn't going to be able to take his car until he answered some questions about "these young ladies who decided to use your car in a crime."  An officer told Giddins that he wasn't in trouble ("Not at this point, no") and implied that he didn't have anything to worry about. Giddins eventually signed the form. After about 15 minutes more questioning (during which the officer kept taking control of Giddins's phone), the officer showed Giddins a surveillance photo from the first robbery and told him he was the robber, which Giddins denied. After the officer "laid out the case" against him, Giddins invoked his Fifth Amendment right to counsel. The officer finally seized Giddins's phone, "prying it from Giddins's hands." Giddins was indicted for bank robbery and conspiracy to commit bank robbery. Giddins unsuccessfully moved to suppress the video of the questioning. He was convicted of one count of bank robbery and one count of conspiracy at trial.

On appeal, the Fourth Circuit reversed Giddins's conviction, 2-1. Noting that Giddins argued primarily that his statements weren't voluntary, the court held that "it is the Miranda waiver that is decisive in this case." The court rejected the Government's argument that Giddins wasn't in custody while being questioned, which was the conclusion of the district court. While the district court's findings (that Giddins wasn't under arrest, wasn't handcuffed, that no weapons were drawn or visible during questioning, etc.) were not incorrect, they were "not complete . . . and fail to paint the full picture." For instance, while there was an unlocked door, it was behind the questioning officer and, thus, would have required Giddins to make his way past him. Also, the officer "moved Giddins's phone away" from him twice during the session. In addition, "there is the issue of Giddins's car." Specifically, the court concluded that a "reasonable person would have felt unable to cease the interview and thus forfeit the opportunity to obtain the return of his or her property." Considering the totality of the circumstances, therefore, Giddins was in custody. Having concluded that Miranda warnings were needed, the court went on to conclude that "both the questioning and the waiver were involuntary and the result of coercion." Specifically, obtaining the Miranda waiver by making it condition precedent for Giddins getting his car back was economically coercive to an improper degree. The court also found that the officers' repeated statements that Giddins wasn't "in trouble" were unduly coercive - the officers already had an arrest warrant and planned to execute it, thus there was "no doubt that Giddins was 'in trouble.'" Finally, the court found that the admission of Giddins's statement at trial was not harmless error.

Judge Agee dissented, arguing that Giddins was not in custody and his statement was not coerced.

Congrats to the Defender office in Maryland on the win!

Double Jeopardy Prevents Charge In Larger Conspiracy After Guilty Plea to Smaller One

US v. Jones: Jones pleaded guilty to an information in 2012 in the Eastern District of Virginia charging him with a drug conspiracy that ran from July to August 2012. He was sentenced to 135 months in prison. In 2014, he was indicted in the Western District of Virginia for a drug conspiracy that ran from 1998 to 2012. Jones moved to dismiss the indictment on double jeopardy grounds. The district court denied the motion. Although the two conspiracies involved some of the same people (and the same drug), the 2012 conviction was based on a discrete delivery of drugs and thus could be differentiated from the 14-year conspiracy charged in the 2014 indictment.

The Fourth Circuit reversed in an interlocutory appeal. Double jeopardy prohibits the Government from "dividing one overarching conspiracy into two separate counts." To determine if the two conspiracies are separate, the court looks to the entirety of the record and evaluates a totality of the circumstances. After noting that the Government did not dispute the district court's finding that Jones mad a "non-frivolous" argument that the conspiracies overlapped, the court concluded that for each of the five factors it analyzed "the Government has failed at every turn to prove separate and distinct conspiracies." Rather, "the Government has identified one large conspiracy to traffic cocaine." The court also identified the Government's argument that there was no double jeopardy issue because the second conspiracy had an "expanded scope, a broader reach, and a different object" as having a "glaring, fundamental flaw" that "misconstrues our double jeopardy precedent." In such cases the court looks to the degree of overlap between the charges, not the degree of similarity.

Admission of Improper 404(b) Evidence Requires Reversal in Constructive Possession Case

US v. Hall: Hall was charged with possession of marijuana and guns. Said guns and marijuana were found in a locked bedroom in the house where Hall appeared to be living. However, the door was locked when police searched the home and Hall did not have the key. Furthermore, none of the items seized from the locked bedroom had Hall's fingerprints and no one would testify that the items belonged to Hall. What the Government did have was several of Hall's prior convictions - for both simple possession of marijuana and possession with intent - which were admitted at trial as 404(b) evidence. The district court admitted the convictions even though it wasn't "sure Rule 404(b) was drafted to be that broadly construed" but it was "bound  . . . to follow the Fourth Circuit law" - in this case, an unpublished decision from 2013. Hall was convicted on all counts at trial.

On appeal, the Fourth Circuit reversed his convictions, 2-1. Although Hall presented multiple issues, the only one the court resolved was whether the prior convictions were properly admitted under Rule 404(b). After a lengthy discussion of the nature of constructive possession (the only avenue open to the Government to secure the conviction) and the Government's burden to show how 404(b) evidence is relevant to the issues at trial, the court concluded that the Government failed to meet its burden. As a result, the district court abused its discretion by admitting the evidence. Along the way, the court shot down the Government's attempt to review the issue for plain error and the district court's reliance on unpublished - therefore non-binding - authority as the basis for its decision. The court also spent a lengthy amount of time responding to the dissent. The error in admitting the convictions was not harmless and required the reversal of Hall's convictions.

As to the dissent, Judge Wilkinson argued that the district court not only didn't abuse its discretion but made the right call in admitting the evidence. He takes the majority to task for not providing a full picture of the facts (thus making it look like Hall's connection to the drugs was more tenuous than it really was). More notably, he accuses the majority of engaging in the "encroachment of overactive appellate judging on the roles of district courts, juries, and advocates in the conduct of a trial." He also argued that the majority had declared that prior drug convictions were almost never relevant under Rule 404(b).

Castelman Supersedes Torres-Miguel; Murder Is Crime of Violence

In re Irby: Irby was arrested for being a felony in possession of a firearm. The Government eventually dismissed that charge rather than disclose the identity of the informant whose tip led to the search that discovered the firearm. Back on the street, Irby figured out the informant was Deadwyler (they shared the same attorney), whom Irby blamed for his father's death (due to stress brought on by the search and arrest). Irby went to Deadwyler's home, shot him three times, stabbed him 147 times (to "make sure it was over"), and burned a pile of his possessions. He was then convicted after a jury trial of second-degree retaliatory murder, causing death with a firearm under 924(c), and destruction of property by fire. After the Supreme Court's 2015 decision in Johnson, Irby sought permission from the Fourth Circuit to file a second or successive 2255 motion because his murder conviction was not a "crime of violence" as required to sustain his 924(c) conviction.

The Fourth Circuit denied that permission. Relying on the two-step method laid out in Hubbard, the court concluded that even if Johnson was applicable retroactively to 924(c) cases, Irby could not make a "plausible" claim for relief because second-degree murder is still a crime of violence that involves an element of physical force under the Supreme Court's 2010 Johnson decision. After reviewing that decision (and noting that it was applying the categorical approach only because precedent required it), the court looked to the Supreme Court's decision in Castleman which "expounded on what it means to use  physical force." What it means is that force is used even when it really isn't - such as when a person is poisoned - and it doesn't matter if the victim is harmed indirectly, rather than directly. This makes "it pellucid that second-degree retaliatory murder is a crime of violence" because it requires the use of force. Most notably, the court held that it's prior decision in Torres-Miguel, if it was ever intended to apply beyond threat offenses, "the distinction we drew in Torres-Miguel between indirect and direct applications of force and our conclusion that poison 'involves no use or threatened use of force,' no longer remains valid in light of Castelman's explicit rejection of such a distinction." Nowhere does the court deal with the argument that Castleman is limited to "force" in the domestic violence context and should not apply outside that area.

Carjacking Conviction Affirmed Where Defendant Brandished Gun, Made Verbal Threat

US v. Robinson: Crawford had gone into labor. She and her boyfriend were hurrying toward her car when they saw three men - Robinson and his confederates - carrying guns and wearing masks. Robinson got to the car and started banging on the window before the boyfriend could get the door open. Boyfriend promptly fled. Robinson and the others walked Crawford back to her apartment, Robinson asking "do you want to die?" Unable to get into the apartment (the key had fallen off Crawford's key ring when the boyfriend took off), Robinson grabbed Crawford's key ring and he and another man (it's unclear what happened to the third) drove away in her car. Robinson and his codefendant were later apprehended and charged with carjacking, use of a firearm during a crime of violence, and being a felon in possession of a firearm. Robinson was convicted by a jury on all three charges.

On appeal, the Fourth Circuit affirmed Robinson's convictions. Robinson argued that there was insufficient evidence to sustain the carjacking conviction because there wasn't enough proof that he had the intent to cause death or serious bodily injury at the time he took Crawford's car keys. The court noted that while the codefendant testified that they never would have hurt Crawford (since she was in labor), Robinson had nonetheless pointed a gun at her and asked if she wanted to die. While a jury could go either way as to which of those pieces of evidence to credit, it was "a question of fact, and it is clearly the jury's duty, not ours, to decide it." It didn't matter that the carjacking was an "afterthought" when the robbery went south. Robinson also argued that his felon in possession charge was duplicitous because it charged both actual possession of the pistol he was carrying and constructive possession of the shotgun his codefendant carried. After noting that Robinson couldn't raise that challenge now because it wasn't raised prior to trial, the court went on to hold that there was no problem, anyway, because simultaneous possession of multiple firearms can only be a single violation of the felon in possession statute.

No 3582 Reduction for Sentence Not Based on Guideline Range

US v. May: May entered a guilty plea to drug and gun charges via a Rule 11(c)(1)(C) plea bargain with the Government. The agreement called for a sentence of 240 months total in prison (180 months on the drugs, consecutive 60 on the gun). The probation officer calculated the applicable Guideline range as 151 to 188 months (plus the consecutive 60 months for the gun). The district court accepted the plea and imposed the 240-month sentence. Years later, the district court sua sponte denied May a sentence reduction under 18 USC 3582(c)(2) because his sentence was based on the plea agreement, not a Guideline range that had since been changed. May (now with appointed counsel) filed a motion for reconsideration, which the district court also denied.

On appeal, the Fourth Circuit affirmed the denial of the 3582 motion. The court found that May's plea agreement did not specifically tie his sentence to a particular Guideline range that had subsequently been changed by retroactive amendments. As a result, the sentence wasn't based on a Guideline range that had been subsequently lowered and May was not eligible for a reduced sentence.

Court Finds IAC Prejudice in Case Where Defendant Was Misinformed of Immigration Consequences

US v. Swaby: Swaby was a Jamaican citizen, living in the US as a permanent resident along with his girlfriend. In 2011, they were charged with trafficking in counterfeit goods  and conspiracy. Appointed counsel immediately recognized that any guilty verdict could have immigration consequences, so he consulted with an expert immigration lawyer. She assured him that the statute under which the Government wanted Swaby to plead guilty would not be an aggravated felony that would lead to Swaby's mandatory deportation. Counsel informed Swaby, who pleaded guilty. However, counsel had given the immigration expert the wrong version of the applicable statute - the one to which Swaby pleaded guilty to violating was an aggravated felony. Swaby was sentenced to just under a year in prison. When he was released, immigration proceedings were begun against him. Swaby filed a pair of motions (one styled coram nobis, the other 2255) alleging ineffective assistance of counsel, which the district court denied because at the plea hearing it had still warned Swaby that his plea could lead to deportation.

On appeal, the Fourth Circuit reversed the district court. After concluding that it had jurisdiction to hear the issue, the court concluded that counsel's performance was deficient when he provided the wrong version of the statute to the immigration expert. Nor could the court find that the district court's generic warnings at the plea hearing corrected that ineffectiveness. Finally, as to prejudice, the court found that Swaby showed a "reasonable probability that he would have gone to trial" rather than plead to the mandatory deportation offense or, at the very least, would have negotiated a different plea bargain that correctly addressed the immigration issue. As for going to trial, it "is rational that a person in his situation, with such strong connections to this country, would rather risk a trial to reduce the loss amount than plea guilty and accept the certainty of deportation." That decision "does not need to be optimal and does not need to ensure acquittal; it only needs to be rational."

Warrantless Search of Abandoned Car OK Due to Inevitable Discovery

US v. Bullette: In 2013, the DEA investigated a potential PCP lab in the California desert following a house fire. After the local sheriff notified them of suspicious activity at the site, investigators arrived and "observed evidence that suggested someone had been manufacturing PCP on the property." Among that evidence was a trio of abandoned vehicles near large drums of chemicals. One of them, a Pontiac sedan, had no license plate or visible registration. Inside investigators could see "a backpack, amber liquid in bottles . . . believed to be finished PCP (which later turned out to be Pine-Sol), and various documents." All three cars were searched. There were no warrants. For reasons not evident from the opinion, Bullette was charged in Maryland for conspiracy to distribute PCP and moved to suppress the evidence recovered from the Pontiac. He was convicted at trial after the district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of the motion to suppress. Rolling past an automobile exception analysis or exigent circumstances, the court held that it was inevitable that the evidence in the Pontiac would have been discovered via an inventory search on the car. "Impoundment," the court noted, "constitutes a reasonable course of action when the owner of a vehicle abandons it, or law enforcement cannot identify the owner." That applied to the Pontiac, which was impounded pursuant to standard DEA procedure, which included an inventory search. That there was no written policy about such searches was irrelevant.

Court Affirms Immigration Fraud Conviction, Rejecting Sixth Amendment and Hearsay Issues

US v. Zhu: Zhu came to the United States from China in 2001 and overstayed his visa. In 2011, federal agents began an undercover sting targeting fraudulent green card users. An undercover agent, working through a non-agent intermediary, would produce fake green cards for aliens seeking to remain in the United States. The agent made it clear that this was all illegal (and consequently very expensive). Zhu became involved via an intermediary named Hui. Zhu provided Hui with falsified document that were then passed on to the agent. He also later participated in an interview with the agent, during which he again explained that "what we are doing is not legal." Hui was arrested when he took a group of people (not including Zhu) to finally get their fake green cards. In a statement to investigators Hui said that he told a few people (not including Zhu) that the green cards were legal and legitimate. Hui was convicted of green card fraud and deported. Zhu was arrested a year later and convicted, following a jury trial, of conspiracy to commit immigration fraud and misuse of immigration documents.

On appeal, Zhu challenged his convictions on several grounds, all of which were rejected by the Fourth Circuit. First, Zhu argued that by deporting Hui the Government denied him the right to compulsory process of witnesses. Zhu maintained that Hui would have been a favorable witness because he would have testified that he told people the green cards they were getting were legal and legitimate. The court found no basis for this in the record, noting that Hui did admit to telling that to a few people, but Zhu wasn't one of them and the rest of Hui's statement showed he was fully aware of the illegality of their conduct. Thus, even if the Government had acted in bad faith in deporting Hui (an issue the court did not reach), Zhu could not show prejudice. Second, Zhu argued that the district court erred by admitting an email from Hui to the agent both because it was not properly authenticated and it was hearsay because it must have been written by a translator (the email was in English - Hui didn't speak English). On the authentication issue, the Fourth Circuit concluded that the Government had presented sufficient evidence, including testimony from the agent that the email came from a secret address only he and Hui knew about. On the hearsay, the court concluded that the district court did not abuse its discretion in concluding that the interpreter in this instance was only a conduit for the speech of another, not the producer of it. Finally, the court rejected Zhu's argument that the district court improperly interrupted his trial counsel during the questioning of witnesses and closing argument.

Tax attorney fails in Franks and reasonableness challenges

US v. White:  Saundra White appeals her fraud and identity theft convictions, challenging the affidavit for a search warrant authorizing the search of her home, which lead to the discovery of a fraud scheme paper trail, as well as the reasonableness of her sentence.  The Fourth Circuit affirmed.

In this case, Ms. White was approached by a woman who attended the same church as her for many years, Ms. Hiler, as Hiler knew White was an attorney, and Hiler needed assistance to create a guardianship for her cousin, Ms. Millner, who was rendered helpless by a severe stroke.  Unfortunately, it appears that White took the opportunity to defraud both women to the tune of over $800,000.  Hiler became suspicious when, after Millner’s death, Hiler received notices that she as Millner’s estate representative, owed large sums of money for debts of the estate.  Another lawyer confirmed Hiler’s suspicions, which lead to state and federal investigations of White.

The agent who requested a search warrant relied upon Hiler’s statements to police, as well as 25 years of experience, to support the affidavit for search and seizure warrant.  The search “uncovered a bevy of incriminating evidence” of White’s fraud scheme.  During Hiler’s testimony, White requested a Franks hearing, as White argued that Hiler’s testimony called the validity of the warrant into question.  The Fourth Circuit determined that the district court correctly rejected White’s request for a Franks hearing because White did not make a substantial showing that the investigating agent knowingly or intentionally or with reckless disregard, make a false statement in the affidavit.

Regarding the reasonableness of the sentence, White challenged the application of sophisticated means enhancement, as well as an enhancement for misrepresenting a government agency.  The latter enhancement was based on two pieces of evidence: the fraudulent tax statements White created to induce Hiler to remit cash, and 2) a voicemail recording that purportedly came from a tax collector for the US Treasury Department and the State of Maryland.  The Fourth Circuit found that the enhancement encompasses any fraud that involved a misrepresentation, and the application note to the guideline does not explicitly require a direct misrepresentation.  The panel affirmed the application for misrepresenting a government agency.  According to the Fourth Circuit, the sophisticated means enhancement applies to the entirety of a scheme, and can be made up of individual actions which are not in themselves sophisticated; the panel concluded that the district court did not clearly err in applying this enhancement.

With or without the ACCA, violent felon sentence affirmed

US v. McDonald:  In this appeal, the Fourth Circuit heard a challenge to the district court’s application of the ACCA to the defendant’s sentence when the defendant asserts that the qualifying predicate offenses are not all crimes of violence.  The district court had noted at sentencing that with or without the ACCA, it would have ordered the same 188-month sentence for the defendant.

Here, the Fourth Circuit analyzed the case using the “assumed error harmlessness inquiry,” wherein it required 1) the knowledge that the district court would have reached the same result even it had decided the guidelines issue the other way, and 2) the determination that the sentence would be reasonable even it the guidelines issue had been decided in the defendant’s favor.   Here, the Fourth Circuit assumed that the district court had erred in its sentencing, and proceeded to examine whether the assumed error affected the sentence.  It concluded that the district court would have imposed the same sentence absent the application of an ACCA enhancement, so the Fourth Circuit affirmed the sentence here, without clarifying whether South Carolina second-degree burglary still falls within the ACCA’s list of predicate offenses.