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.
Friday, February 17, 2017
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.
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.
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.
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.
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.
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.
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.
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.
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