Thursday, July 20, 2017

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.

Wednesday, July 05, 2017

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.

Wednesday, June 28, 2017

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.

Monday, June 26, 2017

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.

Wednesday, June 07, 2017

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!

Monday, June 05, 2017

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).

Friday, June 02, 2017

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.

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.