Wednesday, May 01, 2019

District Court’s Case-Specific Reasons for Rejecting Plea Agreement OK


US v. Walker: Walker was originally charged with three counts of distributing heroin, two counts of distributing fentanyl, and being a felon in possession of a firearm. The parties negotiated a plea agreement to allow Walker to plead guilty to a single-count information of possession with intent to distribute heroin. The district court accepted the guilty plea, but delayed accepting the plea agreement pending the completion of the PSR. When sentencing began, with Walker facing a Guideline range of 21 to 27 months, the district court announced it was rejecting the plea agreement. It did so based on Walker’s prior criminal history (including prior lenient punishments), as well as concerns about the ongoing opioid crisis in West Virginia, the lack of jury trials, and the disregard for the charges returned by the grand jury. Walker withdrew his guilty plea.

The Government returned a superseding indictment charging Walker with two counts of distributing heroin, one count of distributing fentanyl, and being a felon in possession of a firearm. Walker pleaded guilty, without a plea agreement, to the drug counts and went to trial on the gun charge. During jury selection the district court overruled Walker’s Batson objection when the Government struck the only African-American member of the jury venire. Walker was convicted at trial and was eventually sentenced to 120 months in prison, based partly on a finding that the gun at issue had been stolen.

On appeal the Fourth Circuit affirmed Walker’s convictions and sentence. First, the court rejected Walker’s argument that the district court abused its discretion by rejecting his initial plea agreement based on “a vague policy that generally disfavors plea agreements” that “interferes with the prerogatives of prosecutors and defense lawyers,” and was based on “empirical grounds” that were “not factually sound.” Instead, the court concluded that the district court “centered its analysis on whether the particular plea . . . was too lenient and on whether it served the public interest,” which was squarely within the district court’s purview. The court did not dig into any of the policy bases expounded upon by the district court. Second, the court concluded that there had been no Batson error because Walker failed to rebut the Government’s non-race-based grounds for dismissing the juror in question. Finally, the court held that the district court’s reliance on an NCIC report to conclude that the gun at issue was stolen was not error, at least where Walker could not show that the information in the report was inaccurate.

Armed Flight “Plus” Constitutes Reckless Endangerment


US v. Dennings: Dennings, armed with a firearm, tried to rob someone. The man resisted (he hit Dennings in the face) and the gun went off twice, attracting the attention of a nearby police officer. The officer gave chase as Dennings fled, with his right hand “not empty and freely swinging like his left hand” and the officer “unable to determine if Dennings was digging in his pocket or holding onto something.” The officer caught Dennings when he fell, but Dennings continued to resist and was “hesitant to relinquish control” of his right arm. The officer recovered a firearm from Dennings’ jacket pocket. For his trouble Dennings was convicted of being a felon in possession of a firearm. At sentencing, he was assessed a two-level enhancement for reckless endangerment based on his flight from the officer and was sentenced to 110 months in prison.

On appeal the Fourth Circuit affirmed the application of the two-level enhancement. Dennings argued that because “instinctive flight” is not enough to warrant application of the enhancement, such flight while possessing a firearm (but not doing anything with it) should not, either, because such flight is the safest way to flee while armed. The court disagreed, concluding that situations where a party is armed, or there is evidence he might be armed, still present a sufficient risk of harm to justify imposing the enhancement. The court did stress that it was not address pure armed instinctive flight, because Dennings’ “situating involved flight-plus-something more,” particularly the shots fired and the other elements of the chase.

Thursday, April 25, 2019

NC Assault With a Deadly Weapon on a Government Official Is Not a “Crime of Violence”


US v. Simmons: Simmons was on supervised release when he was involved in a high-speed chase with police during which he sideswiped a state trooper. The district court, upon revoking Simmons’ term of supervised release, concluded that he had committed a Grade A violation because Simmons had committed the NC offense of assault with a deadly weapon on a government official (“AWDGOGO”), which qualified as a “crime of violence.” The district court then sentenced Simmons to 36 months in prison, the top of the resulting advisory Guideline range.

On appeal the Fourth Circuit vacated the sentence, concluding that AWDGOGO was not a crime of violence. Analyzed both under the enumerated offense clause (as “aggravated assault”) and the force clause, the problem was the same – AWDGOGO requires only a mens rea of “culpable negligence,” which is less than the recklessness required by the Guidelines. In doing so, the court restricted itself to the “least culpable conduct under the North Carolina statute,” rejecting the Government’s argument that it should look to the “ordinary or typical case.” The error of classifying  AWDGOGO as a crime of violence was plain, impacted Simmons’ substantial rights, and required vacation of his sentence.