Tuesday, May 02, 2017

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.

Friday, April 07, 2017

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.

Statements made in court-ordered therapy used later to enhance new sentence

US v. Lara:  At Lara’s sentencing for a SORNA violation, the sentencing court heard certain admissions Lara made as part of the conditions of probation for a prior sex offense - he had been participating in a court-ordered sex offender treatment program through the Virginia Department of Corrections - and enhanced his sentence as a result.  Lara argued that the treatment program was protected by the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination; the government argued that he waived any privilege by consenting to the disclosure earlier.  The Fourth Circuit agreed with the government, and found that Lara affirmatively waived any privilege when he agreed to the disclosure of the statements he made in the treatment program.

As a part of his treatment for his prior sex offense, Lara signed a form acknowledging the waiver of confidentiality of statements he made a social worker, who conducted his intake into the treatment program.  During the intake, Lara had made some incriminating disclosures about this sexual history and other criminal activity.  He also confirmed this information in a polygraph exam and a written statement.

The Fourth Circuit discussed how a district court’s decision whether to recognize a privilege is a mixed question of law and fact which it considers de novo.  Under Federal Rule of Evidence 501, a testimonial privilege exists for psychotherapist-patient communications, which may be waived by knowingly and voluntarily relinquishment.  The Fourth Circuit held that Lara affirmatively waived any privilege that may have applied to his incriminating statements here.

Challenge to sex offender special conditions successful, mostly

US v. Douglas:  In this SORNA case, the defendant challenged the imposition of several sex offender “special conditions” to his supervised release.  The defendant had a conviction from 1994 for aggravated sexual assault.  He argued that this conviction was too remote in time to justify the special conditions.  The district court agreed, in part, with the defendant, imposing only 1 of 13 challenged special conditions.  The district court had ordered that the defendant submit to a sex-offender evaluation for the purpose of assessing his risk to the public and to determine “what, if any, other treatment or conditions were warranted to serve the goals of sentencing.”

On appeal, the Fourth Circuit upheld the district court’s plan for the defendant, noting that sex offender conditions may be imposed at sentencing for crimes which are not sex crimes.  No offense-specific nexus need be established for the special conditions to be imposed, except the sentencing court must adequately explain its reasoning for imposing the conditions.  Here, the defendant took 14 years of evasive actions to avoid apprehension by law enforcement after he failed to register as a sex offender, and the Fourth Circuit reasoned that his conduct in avoiding authorities undermined congressional efforts in SORNA to combat the risks of recidivism, so the special condition for a sex offender evaluation was warranted.

Friday, March 03, 2017

Court Won't Apply Rodriguez to Stop That Happened Before It Was Decided

US v. Hill: Hill was a passenger in a car driven by his codefendant, Dodwell. when it was pulled over in North Carolina for following too closely. After a repeatedly prolonged traffic stop, officers recovered $30,000 in cash from the car. Days later, while reviewing video of the stop, an officer saw that Hill "had deposited a bag behind the patrol car's driver seat." It was recovered discovered to contain cocaine. After being charged with possession with intent to distribute more than 500 grams of cocaine, Hill and Dodwell moved to exclude the evidence found in the car. The district court denied the motion, adopting the recommended findings and conclusions of the magistrate just who conducted a hearing on the motion. The defendants entered into conditional guilty pleas.

On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress, for two reasons. First, the court rejected the defendants' attempts to argue that the stop had been unduly prolonged under the Supreme Court's decision in Rodriguez v. US (and a similar Fourth Circuit case of the same vintage) because the stop happened before that case was decided. At the time of the stop, Fourth Circuit precedent was more lenient than Rodriguez and the fact that the officer could have wrapped up the stop more quickly was irrelevant. In essence, the court refused to apply Rodriguez retroactively. Second, the court rejected the challenge to some particular portions of the stop extension because the defendants failed to object to the magistrate judge's recommendations on those grounds.

Friday, February 17, 2017

Conspiracy connections need only be slight

US v. Chittenden:  In this appeal, the Fourth Circuit affirmed the bank fraud and conspiracy to commit bank fraud and mail fraud convictions of a former loan officer for drafting and submitting fraudulent mortgage loan applications, mostly for first-time Hispanic home buyers.  Chittenden, the government alleged, submitted loan applications with false income, asset, and employment information, and she undertook this fraud in concert with multiple realtors.

Chittenden went to trial and subsequently was convicted, and the district court entered judgment against her.  It did not, however, enter a forfeiture penalty, and it directed counsel to schedule an evidentiary hearing on the issue of forfeiture.  Chittenden objected that because the judgment was entered against her, the district court lacked jurisdiction to impose a forfeiture any longer.  Over her objection, the parties litigated forfeiture for the next year.  Ultimately, the Fourth Circuit determined that a court’s failure to enter a forfeiture order at sentencing did not deprive it of jurisdiction to impose such an order after sentencing.  Here, the court entered the forfeiture order against Chittenden just over a year after sentencing, for over $1.5 million, the amount of conspiracy proceeds reasonably foreseeable to Chittenden.  She appealed.

Prior to trial, the government froze Chittenden’s assets.  She argued on appeal that this asset forfeiture violated her Sixth Amendment right to counsel.  Chittenden had hired attorneys of her choice to conduct a pre-indictment investigation, and she retained the same counsel for trial and throughout sentencing.  She amassed considerable debt to pay her attorneys, borrowing money from relatives to foot her legal bills.  The Fourth Circuit found, however, that her right to counsel of choice was not implicated here, as she was not forced to change counsel or rely on appointed counsel.

Additionally, Chittenden argued a lack of evidence to support her convictions.  The Fourth Circuit disagreed, finding that the co-conspirator testimony as well as borrower testimony provided a link between Chittenden and the conspiracy, namely her preparation of applications that contained false information.  The Fourth Circuit held that Chittenden’s connection to the conspiracy needed only to be slight, and the other realtors and borrowers provided more than sufficient evidence of her guilt.

Incorrect approach but correct result: career offender designation ok'd

US v. Dozier:  In this appeal, the Fourth Circuit considered whether the career offender enhancement was properly applied to Dozier’s sentence for distributing crack cocaine.  The district court applied the modified categorical approach to determine whether Dozier’s WV prior attempt conviction qualified as a controlled substance offenses for sentencing purposes.  Using de novo review, the Fourth Circuit concluded that the district court erred, analyzed the prior conviction under the categorical approach, and determined that the attempt conviction did qualify as a prior controlled substance offense.  So while the district court may have used the wrong approach, it reached the correct result; the Fourth Circuit affirmed.

At issue here is the WV statute for general attempt (i.e. Dozier was convicted for attempting to distribute a controlled substance) .  The Fourth Circuit determined that sentencing courts must compare the state and generic elements of attempt statutes, as well as the elements of the underlying substantive statutory offense in an analysis of whether a prior attempt conviction qualifies as a controlled substance offense.  Based on its clear precedent, the panel found that the general divisibility of the punishment scheme in the WV attempt statute is not sufficient to compel the application of the modified categorical approach.  Further, the modified categorical approach will apply only where the statute is divisible and at least one of the alternative definitions of “attempt” categorically matches the generic definition.  Finally, the panel held that the underlying offense that Dozier attempted to commit was also a categorical match for a generic controlled substance offense, and concluded that he was properly deemed a career offender.

Illegal re-entry not aided by Padilla

US v. Moreno-Tapia:  In 2009, Moreno-Tapia was deported for North Carolina State convictions for indecent liberties with a child from 2007, when, he argues, neither his counsel nor the court advised him of the immigration consequences of a guilty plea.  Moreno-Tapia re-entered the country without permission, and in 2014, he drew a federal charge for illegal re-entry.  He argued that his underlying 2007 convictions were unconstitutional in light of Padilla, and in 2015, the State of North Carolina vacated his convictions.  Nonetheless, Moreno-Tapia received a 12-level enhancement for the vacated convictions at sentencing for his illegal re-entry charge.  He appealed.

The Fourth Circuit considered here what impact, if any, the alleged constitutional deficiency in Moreno-Tapia’s 2007 convictions has on the instant prosecution for illegal re-entry.  The Fourth Circuit found that there was no effect, because Padilla does not apply retroactively to defendants like Moreno-Tapia, who were convicted before it was decided (in 2010).

The vacatur of the state convictions, according to the Fourth Circuit, was not dispositive.  The government had only to show that Moreno-Tapia had, in fact, been previously removed.  The illegal re-entry charge is based, not on the old vacated conviction, but on the deportation, and at the time he was deported, Moreno-Tapia had a valid conviction.

Pharmacist Intern convictions upheld

US v. Agyekum:  Investigation of illegal distribution of oxycodone pills in West Virginia lead officials to A+ Care Pharmacy in Barboursville, WV, as a source of drugs.  The defendant and his wife opened their pharmacy in 2012, and while Patricia was actually the credentialed pharmacist, her husband exclusively ran the business, “controlling everything.”  Officials in the investigation sent a confidential informant to the pharmacy, who twice made controlled purchases of drugs.   Officials also investigated the defendant’s banking practices; eventually investigators obtained a search warrant for the pharmacy recovering tens of thousands of dollars and pills hidden there.

Agyekum agreed to plead guilty to two counts of structuring cash transactions to evade reporting requirements, and also agreed not to contest the judicial forfeiture of over $2 millions, his Lexus station wagon and his residence.  Further, the PSR included enhancements for Agyekum’s role as an organizer or leader, as well as abusing a position of public or private trust, yielding a guidelines range of 57-71 months.  At sentencing, Agyekum objected to the enhancements, all of which were overruled.  On appeal, Agyekum averred that the enhancements were improper, and that the district court failed to ensure that his waiver of rights with regard to the forfeiture of property was knowingly and intelligently made.

The Fourth Circuit held that the enhancements were supported by the defendant’s role in the drug distribution activity and were properly applied.  The majority found that the offenses of conviction, structuring his cash transactions to evade reporting requirements, were temporally and qualitatively linked to the illegal drug distribution activities, so that the transactions would be considered relevant conduct.  Further, the panel described Agyekum’s conspiratorial activities to be broader than the individual drug transactions that occurred, solidifying the drug deals as conduct that went hand-in-hand with the structuring offenses.  As to whether the relevant conduct indicated Agyekum had a leadership role and abused a position of trust, the testimony of Agyekum’s wife that he ran the business and directed her activities as well as the pharmacy activities justified, to the majority, the application of the leadership-role enhancement.  Moreover, the panel found that Agyekum’s “clear abuse of his positions of trust” with his drug distributor and the state board of pharmacy justified the enhancement for position of trust.

Dissenting in part, Judge Wynn found that Agyekum did not occupy a position of trust as he was not a pharmacist, rather an intern, and he did not have a fiduciary-type relationship with the state board of pharmacy or the drug distributor, unlike his wife, who actually was a pharmacist.

Blankenship conviction affirmed

US v. Blankenship:  In this appeal, former chairman and CEO of Massey Energy Company challenged his conviction for conspiracy to willfully violate federal mine safety laws and regulations, arising from the 2010 Upper Big Branch Mine disaster, which caused the death of 29 miners.  Blankenship challenged the district court’s decision not to dismiss the superseding indictment, denying Blankenship the opportunity to re-cross an alleged co-conspirator, the jury instruction for “willfully” under 30 U.S.C. § 820(d), and the jury instruction on the government’s burden of proof.  The Fourth Circuit affirmed Blankenship’s conviction and sentence.

The Fourth Circuit found that the district court’s decision not to dismiss the indictment was proper, as the language of the indictment tracked the language of the statute, and it included a 30-page factual background that identified numerous mine safety regulations that Blankenship allegedly conspired to violate.  The second claim of error, whether Blankenship was properly denied the opportunity to re-cross examine his former colleague.  The Fourth Circuit determined that the district court here “commendably” heard oral argument on the issue of whether the witness, Blanchard, raised new matter in his redirect testimony, and it concluded that he did not.  The Fourth Circuit held that all of the subjects on which Blankenship requested re-cross examination on were either dealt with on cross or were cumulative of other evidence introduced at trial, so no error occurred.

Third, Blankenship argued that the jury instruction for “willfully” violating federal mine safety and health standards was wrong.  The Fourth Circuit determined that “willfully” in the pertinent criminal statute could be defined in terms of “reckless disregard” as well as “plain indifference,” and that Blankenship’s willful conduct tracked the government’s theory of the case, in that he was repeatedly informed of safety violations at Upper Big Branch and instead of taking steps to prevent the violations from continuing, he chose to prioritize production and pay fines.  Further, for the purposes of the criminal statutes at stake in this case, the Fourth Circuit found that the district court properly concluded that willfulness encompasses reckless disregard, per congressional intent and the conclusions of other courts.  Moreover, Congress imposed penalties on corporate officers in addition to enterprise penalties because corporate officers will treat criminal penalties as a ‘license fee for the conduct of an illegitimate business’ to be factored into profit-maximization analyses, which the Fourth Circuit found that the government’s evidence showed Blankenship did here.  

Finally, Blankenship argued that the district court provided an improper “two-inference” jury instruction, which impermissibly reduced the government’s burden of proof.  While the Fourth Circuit definitely disapproved of the instruction, it found that the court’s instructions correctly stated the government’s burden, so the district court did not reversibly err in providing the two-inference instruction.

Sentencing Court determines "applicable guidelines range"

US v. Tate:  Tate pleaded guilty to possession with intent to distribute and distribution of crack, and his plea agreement contained a clause wherein the government would seek a sentence at the low end of the applicable guidelines range; it also contained an appellate waiver.  At Tate’s sentencing, the district court included some criminal history points that Tate had disputed in its calculus of Tate’s sentence, resulting in a higher guidelines range than he had previously expected.  The government requested a sentence at the lowest end of the higher guidelines range.  Tate argued on appeal that the government breached the plea agreement because it did not request a sentence in the range for which Tate had argued.

The Fourth Circuit disagreed with Tate and affirmed the conviction and sentence.  In doing so, the Fourth Circuit reasoned that Tate’s claim had to be reviewed for plain error because he failed to raise the issue at his sentencing.  Under plain error review, an appellant must show four things: that an error occurred, the error was plain, the error affected the appellant’s “substantial rights,” and the error must affect the fairness, integrity, or public reputation of judicial proceedings.  The Fourth Circuit here held that Tate could not succeed because he could not establish the first prong of plain error review, than an error occurred.  The Fourth Circuit held that the meaning of “applicable guidelines range” is the range found by the district court; therefore, the government’s sentencing recommendation for Tate complied with the plea agreement.

Wednesday, February 15, 2017

Court Affirms Above-Guideline Sentence for Mailing Threatening Letter

US v. Spencer: Spencer was an inmate in a local jail in Virginia when he sent a letter to the federal clerk's office that contained a letter "covered in white powder" that stated (among other things) that the "very letter you hold may indeed by the last that you hold." The letter asked "Are you already infected with the pain?", then answered that "Only time will tell." US Marshals instructed the clerk, who was "disconcerted and afraid" to lock herself in the mailroom, alone, until inspectors could arrive. Ultimately, the powder was harmless - dried toothpaste. Interviewed at the jail, Spencer admitted sending the letter and explained that the powder was "to enhance the effect . . . in order to put fear into the reader" that the powder was poison.

Spencer pleaded guilty to mailing a threatening communication. At sentencing, the district court overruled Spencer's objection to a six-level enhancement for "conduct evidencing intent to carry out [the] threat" and sentenced him to the top of the resulting Guideline range, 46 months. Spencer appealed and the Fourth Circuit vacated his sentence, finding that the enhancement should not apply. On remand, the district court concluded that a sentence within the new Guideline range - 21 to 27 months - was "totally inadequate" for the facts of the case, which included the "lady who got that letter thought it was anthrax, and she thought somebody had sentenced her to death." Therefore, the district court announced it was going to "upwardly depart" and impose a sentence of 45 months based on several factors, including that Spencer "ha[s] successfully appealed the prior sentence." Such a sentence was "fair" and was the sentence the district court "would have given" without any advice from the Guidelines. When imposing the 45-month sentence, the district court  made clear it was "strictly an upward departure," but on the Sealed Statement of Reasons checked the box for a variance.

On appeal for the second time the Fourth Circuit affirmed Spencer's sentence. First, the court rejected Spencer's argument that the district court erred by departing from the Guideline range without providing prior notice, as required by the Rules of Criminal Procedure. Although the court noted that "the boundary between departures and variances is often murky," especially so in this case, it treated the sentence as a departure ("a measure of formality must mark the sentencing procedure"). However, because Spencer did not object to the lack of notice, review was only for plain error and Spencer could not show any prejudice because "the district court repeatedly telegraphed that it might deviate from the Guidelines" and after the initial successful appeal eliminated the six-level enhancement "Spencer had every reason to believe that the court might adopt an above-Guidelines sentence." Second, Spencer argued that the 45-month sentence was substantively unreasonable. The court disagreed, holding that the district court did not abuse its discretion in imposing the sentence. The court relegated the comment about Spencer's successful appeal to a footnote, stating that the district court's "passing reference" was not enough to give rise to a presumption of vindictiveness.

Carjacking Is Crime of Violence

US v. Evans: Evans was a passenger in a car driven by his friend, Duke. Duke pulled into a parking lot where Evans was supposed to meet his cousin. Instead, Evans pulled out a gun, shot Duke twice (once in each leg), and stole his car. For his trouble, Evans was charged with carjacking resulting in serious bodily injury and using a firearm in during that crime of violence, in addition to two counts of Hobbs Act robbery, each with a matching use of a firearm charge. Evans moved to dismiss the firearm charges, arguing that neither carjacking nor Hobbs Act robbery were crimes of violence. The district court denied the motion and Evans pleaded guilty to one Hobbs Act robbery, carjacking, and discharging a firearm during the carjacking. He was sentenced to a total of 216 months in prison.

Evans appealed, renewing his argument that carjacking was not a crime of violence. The Fourth Circuit disagreed and affirmed his conviction. At the outset, the court noted that while Evans was convicted under the subsection of carjacking that required causing bodily injury it "consider[ed] on appeal the more general offense," without regard to injury. As a result, the analysis focused on whether the offense categorically involves the use of violent force as defined in the Supreme Court's 2010 Johnson decision. Evans argued that carjacking committed via "intimidation" does not meet that standard. The court found that the issue had been resolved in McNeal, in which the Fourth Circuit held that federal bank robbery was a crime of violence. It can also be committed via intimidation and there was no reason to read the term differently in the carjacking statute.

Tuesday, January 03, 2017

Court Clarifies 3582, Guideline Ranges, and Departures

US v. Muldrow: This case involved two defendants (consolidated on appeal) who were granted reduced sentences under 18 USC 3582(c)(2), but not to the extent they wanted. Each had received a downward departure in their criminal history categories at their original sentencing and the issue was how that departure figured in the 3582 analysis. Under a 2010 Fourth Circuit decision, Munn, the applicable guideline range is the one calculated after the departure. That holding was at odds with decisions in other circuits, however, and in 2011 the Sentencing Commission amended USSG 1B1.10 to adopt the other position - that the applicable guideline range is the one calculated before the departure. As a result, the defendants in this case had their reductions limited to the bottom of the new Guideline range calculated with their original criminal history categories (denying a further reduction of 22 months in one case, 32 months in the other). The district courts concluded they were bound by the new Guideline amendment, which abrogated Munn.

The Fourth Circuit agreed and affirmed the reductions. The court concluded that the amendment, which revised the commentary to 1B1.10, did not conflict with the text of the Guideline itself and was therefore controlling. The court also held that the district courts did not improperly apply the amendment retroactively because it was binding commentary that was not inconsistent with the Guideline itself.