US v. White: Back in March of last year, the Fourth Circuit certified a question to the Virginia Supreme Court - can common law robbery be committed by threatening to accuse the victim of having committed sodomy (as well threatening the use of force)? At the time the court held that if it did, it would not qualify as a "violent felony" under the Armed Career Criminal Act. In November, the Virginia Supreme Court answered the question in the affirmative, tracking that element of the offense way back into the common law of pre-Revolution England. With that decided, in this final opinion the Fourth Circuit follows through on its initial observation and concludes that White was improperly sentenced under ACCA due to the classification of his robbery conviction as a violent felony.
Friday, January 28, 2022
En Banc Court on Direct Appeal Vacates Sentence for Ineffective Assistance
US v. Freeman: As set out in more detail here, Freeman was sentenced to 210 months in prison after pleading guilty to possession with intent to distribute prescription painkillers. At sentencing, her attorney made some ill-advised decisions regarding Guideline objects in a fruitless pursuit to get Freeman into a diversionary program. A panel of the Fourth Circuit vacated the sentence on two grounds: (1) that Freeman's counsel had been ineffective and clearly so based on the record as it existed, given that it included counsel's reasoning for the decisions he made; and (2) that the sentence was substantively unreasonable.
The Government sought and received an en banc rehearing, with the same ultimate result on somewhat narrower grounds, with a 8-5 vote. The same judges from the panel wrote the opinions - Chief Judge Gregory for the majority, Judge Quattlebaum for the dissent. The en banc court again concluded that Freeman's trial counsel had been ineffective, but did not reach the issue of whether the sentence was ultimately substantively unreasonable. The dissent again argued that the record was not sufficient to determine ineffective assistance of counsel on appeal (as it almost never is).
Stinson Controls Impact of Guideline Commentary, Resolves Relevant Conduct Issue
US v. Moses: Moses was convicted on two counts related to drug trafficking in 2018. He also had two prior conviction for drug distribution, which appeared to make him a career offender. Moses objected to that classification, however, arguing that one of the prior convictions, a 2013 conviction from North Carolina, was relevant conduct and therefore was not "conduct not part of the instant offense," as required to be a career offender predicate. Applying Guideline commentary, the district court rejected Moses' argument because he had been convicted and sentenced on the prior offense "well before he committed the instant offenses," and found him to be a career offender. He was sentenced to a downward variance sentence of 120 months in prison.
On appeal, the Fourth Circuit affirmed Moses' sentence. Moses argued that under the Supreme Court's recent decision in Kisor there was no deference due the Guideline commentary unless the Guideline itself was "genuinely ambiguous" and the commentary came "within that the zone of ambiguity." This provided less deference to the commentary than Stinson, which requires disregarding the commentary only if it "violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of" the Guideline in question. Given the unique nature of the Guidelines, the court concluded that Kisor did not narrow the holding of Stinson and that here, because the commentary did not violate the Constitution or a statute or contradict the Guideline itself, it was binding. The court also concluded that Moses' sentence was substantively reasonable.
Judge King dissented in part and concurred in part, noting that the court's analysis was at odds with its recent decision in Campbell and that he was "entirely persuaded of the correctness of the analysis set forth by Judge Motz" in Campbell. Nonetheless, Judge King "agree[d] with the result reached by the panel majority." Note, however, that the opinion in Moses does not purport to overrule or disagree with the holding in Campbell and, to the extent that there is a conflict Campbell, as the earlier decided case, controls.
Length of Sentence Unaffected by Concurrent Nature
US v. Skaggs: Skaggs was convicted of possessing and conspiring to possess meth with the intent to distribute it. The normal statutory sentence of 10 years to life was increased to 15 years due to what the Government labeled a "serious drug felony," a prior conviction for drug distribution in Virginia that resulted in a 26-month sentence. Skaggs objected, arguing that the 26-month sentence was one of six concurrent 26-month sentences imposed at the same time and that the sentence length had to be equally divided among those sentences. As a result, no individual sentence was longer than 12 months, the threshold for a serious drug felony. The district court disagreed and a sentenced Skaggs to serve the mandatory minimum term of 180 months in prison.
On appeal, the Fourth Circuit affirmed Skaggs' sentence. It concluded that "Skaggs' novel theory cannot be reconciled with fundamental tenets of sentencing law, under which concurrent sentences remain separate and distinct terms of imprisonment even though they are served simultaneously." Skaggs was sentenced not to a single 26-month term spread across multiple counts, but to multiple 26-month sentences. The court reserved for another time how the actual time served by a defendant might affect the analysis (if, say a 13-month sentence led, after good-time credits, to only 11 months being served), as "Skaggs is not such a defendant."
Monday, January 10, 2022
Provisions of 21 USC 841 Control Maximum Supervised Release Terms for Drug Offenses
US v. Perez: Perez was serving a term of supervised release following his conviction for possession with intent to distribute marijuana. Upon revocation, the district court sentenced him to a term of imprisonment followed by a further 36-month term of supervised release. There was some dispute over whether that term exceeded the applicable statutory maximum. After an Anders brief and remand to the district court, the court again imposed the same sentence.
On appeal, the Fourth Circuit affirmed the district court’s new term of supervised release. At issue was the intersection of 21 U.S.C. 841, which sets out supervised release terms for drug offenses, and the general supervised release statute, 18 U.S.C. 3583. The former provide minimum terms of supervised release for drug offenses, but list no maximum – making the maximum authorized term life. The later restricts supervised release maximums based on the classification of the original offense. Prior to 2002, the Fourth Circuit had held that, in at least some instances, the 3583 maximums controlled over the 841 provisions. A Congressional amendment to 841, however, stated that those provisions applied “notwithstanding section 3583 of title 18.” As a result of the amendment, the court concluded that the provisions of 841 controlled and Perez could have received up to a lifetime of supervised release. Therefore, his 36-month term was not problematic.
Youthful Offender Sentence Counts for Guidelines If Imposed In Adult Court
US v. Sitton: Sitton pleaded guilty to being a felon in possession of a firearm. The probation officer recommended an increased base offense level due to a prior conviction for assault and battery in South Carolina for which Sitton was sentenced pursuant to the state’s Youthful Offender Act (“YOA”). Without objection, the district court adopted the recommendation and sentenced Sitton accordingly.
On appeal, the Fourth Circuit affirmed the district court’s sentence, applying plain error review but concluded there was no error in the first place. Noting that the Guideline enhancement applies only based on a prior “adult conviction,” the court looked to a South Carolina supreme court decision which distinguished between a YOA sentence imposed in a “general sessions court” (i.e., regular adult court) and one arising from a case “handled as a juvenile adjudication in family court.” The former was an adult conviction, the later a juvenile conviction. Because Sitton’s sentence was imposed in the general sessions court it was an adult conviction and the Guideline enhancement was properly applied.
Attempt to Distribute Controlled Substance Not a “Controlled Substance Offense”
US v. Campbell: Campbell was convicted by a jury of possession with intent to distribute drugs. At sentencing, the main issue was whether he was a career offender. Campbell argued that one of his two identified prior “controlled substance offenses” – a West Virginia conviction for delivery of crack – did not meet the definition. That was because the WV statute at issue made it a crime to “deliver” a controlled substance, which the statute then defined to include (among other things) “attempted transfer from one person to another.” The district court rejected Campbell’s argument, concluded he was a career offender, and sentenced him to 180 months in prison.
On appeal, the Fourth Circuit vacated Campbell’s sentence. Joining several other circuits, the court concluded that the Guideline itself that defined “controlled substance offense” does not include attempts, which are only included as part of the definition in related commentary. However, commentary that is contrary to the Guideline itself cannot control. Here, the commentary expanded the definition of “controlled substance offense” to include attempts. As a result, attempts to commit controlled substance offenses do not count as career offender predicates.
Congrats to the Defender office in the Northern District of WV on the win!
Late-Filed Memorandum Explaining Compassionate Release Denial Considered on Appeal
US v. Jenkins: In 2017, Jenkins was sentenced to 120 months in prison after pleading guilty to drug and firearm offenses. In 2020, he filed a pro se motion for compassionate release, arguing that his medical conditions placed him at an elevated risk of serious illness or death from COVID. His motion argued the relevant 3553(a) factors, but did not provide any evidence of post-sentencing mitigation. The district court denied Jenkins’ motion, using a form order that noted the motion had been “DENIED after complete review of the motion on the merits” and that a “separate memorandum accompanies this order.” However, no memorandum was filed until 20 days later, after Jenkins had filed a timely notice of appeal. The memorandum set forth conclusions that Jenkins had exhausted his administrative remedies and that he had presented “extraordinary and compelling reasons” for release, but ultimately concluding that the applicable 3553(a) factors weighed against a reduction.
On appeal, the Fourth Circuit affirmed the denial of Jenkins’ motion. First, the court rejected Jenkins’ argument that it should not consider the late-filed memorandum. The court concluded that the late filing was a clerical error and that it was in the record by the time Jenkins filed his brief and, therefore, could be considered when judging the denial of the compassionate release motion. Judging the reasons set forth in the memorandum sufficient, the court then concluded that the district court did not abuse its discretion in denying the motion.
Upward Variance Where Death Occurred After Drug Distribution Is Reasonable
US v. McKinnie: McKinnie sold Nelson “‘China White,’ a potent narcotic containing fentanyl” twice within the span of a few days. The day after the second sale, Nelson died of “acute intoxication of alprazolam, heroin, and fentanyl.” McKinnie pleaded guilty to distribution of fentanyl, but a count charging distribution resulting in death was dismissed as part of a plea agreement. Due to the small amount of drugs involved, McKinnie’s advisory Guideline range was 21 to 27 months. There was no Guideline enhancement related to Nelson’s death. Pursuant to a Government request for an upward variance, the district court sentenced McKinnie to 120 months in prison, concluding that he “absolutely manifested a complete disregard for human life” and had a “callous” disregard of the risk of distributing fentanyl. The court also pointed to McKinnie’s “extensive criminal history along with his failure to respond to leniency shown for previous convictions.”
On appeal, the Fourth Circuit affirmed McKinnie’s sentence. Primarily, McKinnie argued that the district court procedurally erred by considering his role in Nelson’s death where he was neither convicted of a death-resulting count nor subject to a Guideline enhancement based on Nelson’s death and the district court did not make a but-for finding that his fentanyl was the cause of Nelson’s death. The court disagreed, concluding that “evidence of causation, even if it does not meet the but-for standard, is clearly relevant to the circumstances and seriousness of an offense and may thus be properly considered under the 3553(a) variance analysis.” That said, the court also concluded that such a but-for finding was made, even if the district court did not use the “magic words.” The court ultimately concluded that the district court satisfactorily explained its reasons for imposing the 120-month sentence and that the sentence was substantively reasonable.
No Expectation of Privacy In Car By Passenger Who Recently Exited It
US v. Smith: Smith was a passenger in a car into which a person whom police knew was a felon was also a passenger. Police followed the car (driven by a third person) and ran the license plate number, accidentally transcribing two of the numbers and getting a result showing the plate belonged to another car. The car pulled into a gas station, where police also pulled in and began to confront the known felon. Smith had already gone into the convenience store at the station, in line to check out. Police placed him in handcuffs because “of a fictitious tag,” which prompted Smith to say the car was not his. A search of the car uncovered drugs and guns. When Smith was arrested and told he was being charged with trafficking, prompting Smith to ask about the weight of heroin seized and that it should only be 3.5 grams, not 4.5 as claimed by the police (it was actually 3.32 grams).
Smith was charged with drug and firearm offenses and moved to suppress the evidence found in the car. The district court denied the motion, concluding both that the stop was lawful and that Smith had no standing to challenge the stop. Smith went to trial and was convicted on all counts. He was sentenced to 138 months in prison.
On appeal, the Fourth Circuit affirmed Smith’s conviction. As to the stop and search of the car, the court agreed with the district court that Smith lacked standing to challenge the stop and search. As to the search, Smith disclaimed ownership in the car and merely being a passenger does not confer a legitimate expectation of privacy to challenge the search. Nor did Smith claim ownership of the drugs and firearms found in the court, although he did claim a cell phone found in the center console. While a “fact to be considered,” it was not enough to support standing, particularly as Smith was not in the car at the time. As to the stop itself, Smith also lacked standing because he was not in the car when it was actually seized. The court also concluded that the district court did not err in not giving a jury instruction on the lesser-included offense of simple possession. Expert testimony at trial was that there the amount of heroin involved “between eleven and thirty-two doses,” and, when coupled with his behavior (taking that amount into a nightclub, asking the police about weight), supported the district court’s decision not to give a simple possession instruction. The court also concluded that the evidence was sufficient to support Smith’s convictions.
Judge Wynn dissented on the jury instruction issue, arguing that “our precedent requires that a jury decide whether Smith was guilty of the lesser or greater offense.”