Remanding 2255 Proceeding for Hearing Regarding Scope of Investigator’s Misconduct

US v. Paylor: Paylor was charged with being a felon in possession of a firearm, based on evidence provided by Detective Daniel Hersl of Baltimore’s infamous Gun Trace Task Force (as seen in David Simon’s We Own This City). Paylor always claimed (in recorded phone calls from the jail) that the gun, recovered from under a cushion on his front porch, had been planted and that during the arrest Hersl and two other officers stole money from inside the home. After an unsuccessful motion to suppress, Paylor sought from the Government information about allegations of misconduct against Hersl, ultimate a handful of which were turned over. Paylor decided to plead guilty “because counsel did not believe only four complaints were enough to establish a pattern of corruption by Detective Hersl in order to discredit his testimony” about the arrest. Paylor pleaded guilty and was sentenced to 60 months in prison.

Two years later, Hersl was charged (along with others) with extortion, robbery, and other offenses. As part of that case, Paylor testified before a grand jury about his arrest, which produced a superseding indictment against Hersl and a Rule 35 motion for Paylor, which he turned down because of the risk of retaliation from police, that the Government would not entirely vacate his conviction, and the short time left on his sentence. Hersl was eventually convicted on multiple counts after a trial in which the jury specifically found he had falsely arrested and robbed another suspect in circumstances similar to Paylor’s arrest.

Paylor filed a 2255 motion seeking to withdraw his guilty plea, arguing that Hersl’s misconduct “rendered his plea involuntary, and consequently, he should be permitted to withdraw it.” The district court denied the motion, without holding a hearing or permitting Paylor to engage in discovery, as only one of the proven acts of misconduct by Hersl occurred before Paylor’s arrest and it was part of the allegations disclosed to Paylor prior to his plea.

On appeal the Fourth Circuit ordered Paylor’s 2255 motion remanded to the district court. The court noted that in situations like Paylor a petitioner does not have to allege actual innocence, only that “there was egregiously impermissible conduct involved in his prosecution” such that “this misconduct influenced his decision to plead guilty.” The court scolded the Government for its vacillation in Paylor’s case – from arguing he was guilty of the offense, to arguing he was not due to Hersl’s misconduct, and then back to Paylor’s guilt in defending his 2255 motion. Turning to the evidence of Hersl’s misconduct, the court held that the relevant time frame was what happened prior to Paylor’s arrest and that, right now, that included only the incident that was part of Hersl’s guilty verdict (for that reason the court did not reverse the denial of Paylor’s motion). However, Paylor had demonstrated the need for discovery and an evidentiary hearing so that he could attempt to develop further evidence.

Vacating Felon-In-Possession Sentence Due to Pair of Improper Enhancements

US v. Henderson: Police responded to an incident and found Henderson, armed with a rifle, “shove a woman to the ground and point the firearm directly at her.” He fled when confronted, but was quickly captured and the rifle recovered (from a different location). Henderson pleaded guilty to being a felon in possession of a firearm. The probation officer recommended a pair of enhancements that were ultimately applied at sentencing, over Henderson’s objections. The first was a four-level enhancement for possession in connection with another felony offense, particularly possession of a firearm by someone subjected to a Domestic Violence Protective Order. The second was an enhancement for reckless endangerment during flight. The district court imposed a sentence of 60 months in prison, an upward variance from the advisory Guideline range.

On appeal, the Fourth Circuit vacated Henderson’s sentence, finding that the application of both enhancements was error. As to the in-connection-with enhancement, the court noted it had previously held that a defendant cannot be “punished more severely for simultaneously violating multiple provisions of [18 U.S.C.] 922(g) with the same act of possession,” a principle that applies equally to sentencing enhancements. That position is bolstered by Guideline commentary which excludes from the definition of “another felony offense”  offenses such as “explosives or firearms possession or trafficking offenses.” As for flight, the court relied on it’s prior decision in Shivers that flight with a firearm, standing alone, is not enough to justify the enhancement.

No Dismissal Due to Tardy Government Request

US v. Kemp: Kemp was charged with nine counts related to the sexual abuse of his children, eventually pleading guilty to s single count of aggravated sexual abuse. As part of the plea agreement Kemp agreed to “a broad appeal waiver” waiving his right to appeal any sentence so long as it was within the advisory Guideline range. That range was 360 months to life in prison. The district court imposed a sentence of life, followed by a lifetime of supervised release (neat trick!).

Kemp filed a notice of appeal that was untimely. In the Fourth Circuit’s order setting a briefing schedule it specifically informed the Government that failure to file a motion to dismiss by the deadline for filing its response brief “may result in waiver of defenses.” Kemp’s appellate counsel filed an Anders brief and the Government, per the order, filed a motion to dismiss based only on the appeal waiver in the plea agreement. After reviewing the case, the Fourth Circuit ordered supplementary briefing related to the validity of Kemp’s guilty plea and Rogers/Singletary error with regards to supervised release conditions. The Government’s brief addressed both the merits and argued that the appeal should be dismissed for being untimely.

The Fourth Circuit vacated Kemp’s sentence, but affirmed his conviction. In doing so, it denied the Government’s motion to dismiss based on untimeliness, noting that the Government had complied with the initial briefing schedule when it filed a motion to dismiss, but because that was limited to the appeal waiver it resulted in the waiver by the Government of the argument that the appeal was untimely. On the merits, the court held that while the guilty plea colloquy was deficient, it was not so deficient as to undermine its voluntariness. On the supervised release conditions, however, the court held that some were erroneously imposed only in writing after the sentencing hearing, a plain error that required remand for a full resentencing.

In a concurrence, Judge Quattlebaum argued that the court should reconsider Rogers and Singletary because their “internal reasoning” was “inconsistent and conflicts with our precedent concerning errors in a written judgment” and that the full sentencing remedy is one which “we do not consistently employ.”

Proper Amount of Restitution Fell Within Scope of Appeal Waiver

US v. Taylor-Sanders: Taylor-Sanders was charged with multiple counts of wire fraud and identity theft. She pleaded guilty to one count of wire fraud, pursuant to a plea agreement in which she waived “all rights to contest the conviction and sentence in any appeal” on grounds other than ineffective assistance of counsel or prosecutorial misconduct. She later moved to withdraw her plea, arguing that she was told she had no choice but to plead guilty and her plea was not voluntary. The district court denied her request finding her “not credible.” She was sentenced to 66 months in prison and ordered to restitution of more than $700,000.

On appeal, Taylor-Sanders sought review of several issues, including the amount of restitution imposed as part of her sentence. On that issue, Taylor-Sanders argued that because the restitution amount included amounts not covered by the Mandatory Victims Restitution Act the restitution as awarded exceeded the scope of the district court’s authority and, therefore, was not covered by the appeal waiver. The court disagreed, noting the distinction between where a district court lacks the legal authority to award restitution and where it makes a legal error as to the amount of restitution owed. The later error is covered by broad appeal waivers, like the one in this case.

No Clear Error In Upward Variance Based on Fentanyl Potency

US v. Roy: Roy was involved in a pair of traffic stops within tens days of each other. In the first he was the driver of a car from which nearly 62 grams of fentanyl was recovered. In the second, he was the driver of (another) car pulled over after a reported shoplifting from which a firearm was recovered. Roy wound up pleading guilty to aiding and abetting the possession with intent to distribute fentanyl and being a felon in possession of a firearm. The district court ultimately varied upward from the Guideline range, imposing a sentence of 120 months in prison. In doing so, the district court emphasized the lethality of fentanyl, complete with an anecdote that a police officer had told him not to handle fentanyl as it could be lethal.

On appeal, the Fourth Circuit affirmed Roy’s sentence. Roy argued that the district court erred by either basing its sentence on clearly erroneous information or evidence that was outside the record. With regard to the general lethality of fentanyl and the prevalence of it in the nationwide overdose epidemic, the court found no clear error and cited numerous sources that supported that conclusion. As to the lethality of fentanyl to the touch, the court pointed to some government reports that might support that conclusion, as well as contrary evidence from scientific sources. In light of the competing evidence, the court held that the district court’s invocation of fentanyl being lethal to the touch (if it drove the sentence at all) could not be clearly erroneous.

Appeal Alleging Rogers Error Subject to FRAP 4 Time Limits

US v. Brantley: Brantley pleaded guilty to drug and firearm charges and at sentencing was told by the district court that he would be “subject to the standard conditions of supervised release” in the district, but the written judgment “contained several special conditions of supervised release not mentioned in the oral pronouncement” that “were no minor alterations.” Under the Fourth Circuit’s decision in Rogers, this was error.

Brantley filed a notice of appeal 223 days after the entry of judgment. The Government moved to dismiss the appeal as untimely and the Fourth Circuit agreed and dismissed the appeal. The court noted that the time limits in Rule 4 of the Rules of Appellate Procedure are not jurisdictional and can be waived if not timely raised, but the Government raised the matter here. Because the time limits are “not subject to equitable extension” and the court must “strictly apply them” once invoked, dismissal was required. The nature of the alleged error did not make a difference. Even though conditions like the one at issue might be “nullities” it “does not make the written judgment entered here invalid.”

VICAR Assault With a Deadly Weapon is 924(c) Crime of Violence

US v. Thomas: Thomas pleaded guilty to racketeering and possessing a firearm in connection with a crime of violence, VICAR assault with a deadly weapon. In the wake of Johnson and subsequent cases he filed a 2255 motion challenging his firearm conviction on the ground that VICAR assault no longer qualified as a crime of violence under 18 USC 924(c). The district court denied the motion.

On appeal, the Fourth Circuit affirmed. The court noted that one of the elements of VICAR assault with a deadly weapon is that “the defendant have committed an assault with a deadly weapon” and that the court’s “precedents establish that the inclusion of a dangerous-weapon element . . . elevates an assault to a crime of violence.” It rejected Thomas’ argument that it should also look to the underlying state offenses that were included in the VICAR definition.

Rule 60(b) Motion Based on Failures of Earlier Counsel Is Second 2254 Motion

Bixby v. Sitrling: Bixby was convicted of two counts of murder and sentenced to death following an incident where he shot two police officers during a property dispute. After exhausting his state appellate and post-conviction remedies, he filed a 2254 motion in federal court. Although represented by counsel. Bixby’s motion was largely lifted from prior state pleadings. Both the magistrate, in recommending denial, and the district court, in adopting that recommendation, commented on the unimpressive nature of the motion.

Newly appointed counsel for Bixby’s appeal to the Fourth Circuit was also appointed for further proceedings in the district court and filed a motion under Rule 60(b) of the Rules of Civil Procedure to seek relief from the district court’s judgment because Bixby “did not receive meaningful, ethical representation.” The district court denied the motion, concluding that the Rule 60(b) motion was really an attempt at an unauthorized second or successive 2254 motion.

Alleged Fifth Amendment Violation at Sentencing Doesn’t Escape Waiver

US v. Carter: Carter was involved in a pair of robberies along with an accomplice who was never caught. He eventually pleaded guilty to one count of Hobbs Act robbery for one robbery and brandishing a firearm in connection with a crime of violence for the other. As part of a plea agreement, Carter agreed to waive his right to challenge his sentence “on any ground” on direct appeal. At sentencing, the district court asked Carter to identify the mystery accomplice, stating it was “a very critical part of this Court’s decision.” Carter declined, and counsel noted there was no cooperation requirement in the plea agreement. The district court rejected Carter’s request for a variance and imposed a sentence of 147 months in prison, the top of the advisory Guideline range.

Carter filed an appeal, arguing that the district court improperly enhanced Carter’s sentence in violation of his Fifth Amendment right to remain silent. The Fourth Circuit dismissed the appeal. After initially concluding that the appeal waiver was valid, the court then went on to conclude that it was enforceable in this case. The court noted that the “real disagreement” in the case was “whether the Fifth Amendment challenge constitutes one of the limited grounds for which Carter retained appellate rights.” Ultimately, the court found that Carter could not show either a violation of a constitutional right that was “firmly established” at sentencing or the use of a “constitutional impermissible factor.” Particularly, the court held that Carter had not been placed in a “classic penalty situation” where he had to choose between remaining silent and getting a harsher sentence because “the district court did not expressly state, nor did it even imply, that Carter’s assertion of his privilege . . . would lead to a harsher sentence.” In addition, the district court “had no substantial reason to believe that Carter’s identification of his accomplice would be incriminating beyond the plea itself.”

Court Affirms Revocation Based on Violation of PO’s Instructions Regarding Supervised Release

US v. Amin: In 2015, Amin (then 17 years old) pleaded guilty to conspiracy to provide material support to ISIS based partly on his online presence and use of a computer. Among the conditions of supervised release imposed as part of his sentence was that he “follow the instructions of the probation officer,” that he not “associate with any person convicted of a felony” without permission, and that he be “subject to any screening or monitoring of internet use, as directed by the probation officer.” When he began supervision, he received additional instructions from his PO that required Amin to submit to computer monitoring, obtain permission before conversing online in a language other than English, not possess any material that reflects extremist or terrorist views, and have no contact with any known extremist. Amin, pro se, challenged the instructions, which the Government in response moved to have made formal conditions of supervision. The district court denied all requests, concluding that the PO’s instructions did not do anything new, only clarified the already imposed conditions.

Amin violated the conditions/instructions in several ways (including, for example, using Linux for an operating system, which defeated probation’s tracking software, and communicating with “American Taliban” John Walker Lindh) and the Government sought the revocation of his term of supervised release based on some (but not all) of the alleged violations. The district court agreed, revoked Amin’s term of supervised release, and sentenced him to one year in prison and reimposed the lifetime term of supervised release from his original sentence.

On appeal, the Fourth Circuit affirmed Amin’s revocation and sentence, rejecting various arguments Amin made about the nature of the conditions and instructions he violated (there was no factual dispute that he violated them). For example, the court rejected Amin’s argument that the PO’s instructions amounted to additional conditions of supervised release that were not properly imposed by the district court, agreeing with the district court that they merely clarified and gave effect to conditions imposed at sentencing. The court also rejected as applied challenges to the underlying conditions, reinforcing its holding that such challenges must come in the direct appeal of the initially imposed sentence. As to any as-applied challenges to the any vagueness in the PO’s instructions, the court held that Amin had multiple means to seek clarity if there was confusion about their scope but did not.

Waiver of Appellate Rights Covered Sentence Eight Times Longer than Government Wanted

US v. Toebbe: Diana Toebbe’s husband, Jonathan, was a nuclear engineer with the US Navy’s Reactor Engineering Division, with high-level clearance to handle “restricted material.” In 2020, Jonathan offered restricted material related to Virginia-class nuclear submarines to a foreign nation, which notified the FBI. Subsequently, Jonathan delivered several SD cards with restricted material on them via dead drops during which Diana would act as a lookout, in return for payments in cryptocurrency. Each were charged (in separate cases, it appears) with conspiracy to communicate restricted data and two counts of aiding and abetting the communication of restricted data.

Diana entered into a binding plea agreement with the Government under Rule 11(c)(1)(C) of the Rules of Criminal Procedure in which she agreed to plead guilty to conspiracy in return for a sentence of no greater than three years in prison. At the plea hearing, the Government described Diana’s role as “limited” and “passive” in a “scheme led be her husband,” and that her “offense boils down to acting as a cover and a lookout on three occasions in a three-month period. Nothing more than that. Nothing less.” The district court rejected the plea agreement, calling the 36-month sentence “strikingly deficient” given the nature of the offense and the danger it posed to US naval forces. The district court noted that the probation officer had calculated the advisory Guideline range as 151 to 188 months and “found no justifiable reasons for accepting a plea agreement that would bind it to impose a sentence that far below that range.”

Diana and the Government then entered into another Rule 11(c)(1)(C) plea, in which she again agreed to plead guilty to conspiracy. This agreement bound the district court to impose a sentence of “not more than the low end of the applicable Guideline range,” which would be determined by the district court. The parties agreed to an advisory Guideline range of 108 to 135 months, based on a 3-level departure for substantial assistance and acceptance of responsibility. The plea agreement contained a waiver of Diana’s right to appeal any sentence imposed pursuant to the language above. After the agreement was reached, the probation officer, on their own initiative, contacted the jail where the Toebbes had been detained and learned that Diana had tried to send Jonathan a pair of letters making “attempts to induce her husband to . . . provide statements to authorities affirming her ignorance of his criminal scheme.”

At sentencing, the district court denied the Government’s motion for substantial assistance, assessed a two-level enhancement based on the letters, and declined to award a reduction for acceptance of responsibility, producing an advisory Guideline range of 262 to 327 months. Diana argued for a variance sentence “in the range of 3 to 4.9 years,” arguing that Jonathan “was the principal actor” who came “up with the idea to do this” and that a 262-month sentence would be an unwarranted disparity compared to other espionage cases. The Government argued for a three-year sentence, arguing that it was “universally accepted” that the “person with the access . . . should be punished more severely than someone who might have helped in some way.” It urged the district court to not give excess weight to the letters and reiterated the assistance that Diana had given, which was considered “significant” by both the FBI and the Navy. The district court imposed a sentence of 262 months, noting that this offense was “one of the most serious it had ever seen” and concluding that far from being a minor participant “it was most probably Mrs. Toebbe that was driving the bus.” The district court sentenced Jonathan to 232 months.

On appeal, the Fourth Circuit granted the Government’s motion to dismiss the appeal without reaching the merits of any of Diana’s arguments. She argued that the district court’s rejections of the parties’ position as to a departure and acceptance, and the Government’s ultimate support for a three-year sentence, resulted in a sentence she could not have anticipated at the time the plea agreement was signed. The Government argued that the language of the plea agreement covered the arguments Diana sought to make. The court agreed, ultimately concluding that the sentence was at the bottom of the Guideline range found to apply by the district court, who the plea agreement recognized had the ultimate authority on such calculations.

Trial Delay Primarily Based on COVID Conditions Doesn’t Require Granting Motion to Dismiss

US v. Pair: Pair was charged with two counts of distribution of fentanyl on January 31, 2020 – the same day the first case of COVID-19 was confirmed in the United States. He was convicted of both counts at a trial that began 401 days later, after unsuccessfully moving to have his case dismissed for violations of the Speedy Trial Act and Sixth Amendment speedy trial rights. With the exception of time excluded due to defense counsel illness and the need for new counsel, most of the time was due to district-wide general orders continuing trials due to COVID or case-specific orders due to COVID. The district court found all that time excludable due to the ends of justice and found no Sixth Amendment denial of rights.

On appeal, the Fourth Circuit affirmed Pair’s convictions and the denial of his motion to dismiss. As to the Speedy Trial Act analysis, the court first found that the delay caused be counsel’s illness and the need for new counsel was properly excluded, even though Pair himself objected to any such continuance, as was the time needed to resolve Pair’s motion to dismiss. The court then addressed the COVID-fueled delays and ultimately found that they were all excludable, both those directly related to the general orders and those caused by specific orders entered in Pari’s case (which nonetheless incorporated the findings of the general orders regarding COVID). In those orders it was “clear that the district court contemporaneously balanced” the relevant factors and that the “result of this balancing was not in error.” “It would,” the court concluded, “be the worst kind of hindsight to say that this judgment was in error.” As for the Sixth Amendment analysis, while the 401-day delay was presumptively prejudicial (the Government agreed), the other factors did not favor Pair. In particular, the court rejected Pair’s defense was adversely impacted by his pretrial detention, noting that “were such prison conditions to establish a Sixth Amendment violation . . . entire facilities could be substantially depopulated, a result that [the Supreme Court] in no way countenanced.”

Coram Nobis Claim Fails on Failure to Prove Underlying Offense Subsection

US v. McDaniel: In 1993, McDaniel was involved with a robbery that turned into a chase in which he (the front seat passenger in a car) “leaned from a car window and fired at least two pistol shots” at the pursuing US Marshal. He eventually pleaded guilty to an information charging him with using a firearm in relation to a crime of violence – “an assault on a deputy marshal” and was sentenced to 36 months in prison. In 2005, McDaniel was charged in a multi-count indictment with  (among other things) another firearm possession offense, this time in connection with a drug trafficking crime. Due to his 1993 conviction, McDaniel was subject to the 25-year mandatory minimum on that charge because it was his second such conviction.

In the wake of Johnson and other cases narrowing the relevant definition of “crime of violence,” McDaniel sought relief, either through a 28 USC 2255 motion or a writ of coram nobis, arguing that his 1993 conviction was invalid because his assault offense did not meet the definition of crime of violence. The district court denied relief, on the 2255 because he was no longer in custody related to that offense, and on the coram nobis because McDaniel had failed to prove that the version of assault for which he was convicted was not a crime of violence.

On appeal, the Fourth Circuit affirmed the district court’s denial of relief. McDaniel proceeded only on the coram nobis theory, arguing that the version of assault for which he was convicted did not require the necessary level of force to qualify as a crime of violence. The Fourth Circuit agreed that the relevant statute, 18 USC 111, set forth different offenses in subsection (a) and (b), with the first no longer qualifying as a crime of violence. The court rejected McDaniel’s argument that the firearm enhancement in subsection (b) could be committed recklessly. Under the standard for obtaining coram nobis relief, however, McDaniel had to prove with certainty which version of the offense he had been convicted of committing. The relevant documents were not sufficiently clear to support that burden.

Maryland Assault with a Firearm Not ACCA Violent Felony

US v. Redd: In 2008, Redd was convicted of being a felon in possession of a firearm and sentenced to the 180-month statutory maximum under the Armed Career Criminal Act. Two of the prior convictions that served as ACCA predicates were convictions from Maryland for first-degree assault. In 2016, Redd filed a second 2255 motion arguing that those convictions no longer met the definition of “violent felony” under ACCA. The district court denied relief, holding that because the Fourth Circuit affirmed the sentence on direct appeal Redd’s argument was foreclosed.

On appeal, the Fourth Circuit reversed the denial of relief for Redd. Examining the statutory text of the applicable Maryland statute, the court concluded that it was indivisible, setting out only one offense. The conclusion was reinforced by how Maryland courts had dealt with the statute and by charging practices for that offense. Looking to the elements of the offense, the court first concluded that the offense could be committed recklessly, as it was merely second-degree assault (simple common-law assault) “plus a statutorily defined aggravating factor, such as the use of a firearm.” The court then concluded that there was no added mens rea requirement related to the aggravating factor. Thus, the court ultimately concluded that the offense was not a violent felony.

Judge Quattlebaum concurred, but got “there following a slightly different path.”

Tennessee Intentional Aggravated Assault is ACCA Violent Felony

US v. Ogle: Ogle pleaded guilty to being a felon in possession of a firearm. The primary issue at sentencing was whether he qualified for sentencing under the Armed Career Criminal Act and, in particular, whether a 2017 conviction out of Tennessee for aggravated assault fit the definition of “violent felony.” The district court held that it was and sentenced Ogle to 210 months in prison.

On appeal, the Fourth Circuit affirmed. Agreeing with the parties that the Tennessee statute was divisible and Ogle had been convicted of the version of the offense that criminalizes the knowing commission of an assault that required “causing extremely offensive or provocative physical contact with another  . . . that involves the display of a deadly weapon.” That display of a weapon meant that the assault “necessarily” involved “a threat of violent force.” It doesn’t matter that simple assault requires only de minimis force because of the use of a weapon, with the court noting that “ACCA’s force clause . . . does not require that injury be an element of the crime . . . only the use, attempted use, or threated use of force ‘capable of causing physical pain or injury.”

Neighborhood Stranger With Weighted Pocket Not Enough to Support Stop

US v. Critchfield: Critchfield was walking down an alley in Bridgeport, West Virginia, when he caught the eye of a postal inspector who was leaving his house. The inspector through Critchfield looked suspicious (he thought “Critchfield had an ‘Oh, no, I’m caught’ look on his face”) and kept an eye on him, noticing that his sweatshirt “had what appeared to be something very heavy in it, so heavy that it was falling down below his crotch.” Critchfield also kept looking back over his shoulder at the inspector. The inspector called the local police (with whom he’d worked on prior investigations) and relayed this information. Two officers arrived, stopped Critchfield, and recovered a gun and some pills from his sweatshirt pocket. Critchfield unsuccessfully moved to suppress that evidence and eventually pleaded guilty to being a drug user in possession of a firearm.

On appeal, the Fourth Circuit reversed the denial of Critchfield’s motion to suppress. In doing so, the court emphasized both the need for reasonable suspicion to be articulable and for it to be particularized to support a stop. Noting that the two officers who stopped Critchfield didn’t see anything suspicion, so they were relying entirely on the observations from the postal inspector. The court concluded that those observations were not enough to generate reasonable suspicion, as they did not suggest that he had been involved in a theft (the offense being investigated). The court noted that Critchfield’s evasive behavior meant less here than it might if he’d had reason to know that the inspector was a law enforcement officer. Further, there was no testimony as to why, specifically, the nature of the pocket of Critchfield’s sweatshirt was suspicious of criminal activity.

Congrats to the NDWV Defender office on the victory!

Gun Enhancement Vacated, Assault Enhancement Affirmed in Fractured Opinion

US v. Mitchell: Police arrived at a rural road and found a car “stopped at a stop sign with the engine running and brake lights on” with “Mitchell in the car, non-responsive and slumped over in the driver seat with a gun in his right hand.” After securing the gun, officers eventually roused Mitchell who, when ordered out of the car simply “stared at them.” When an officer “attempted to forcibly remove Mitchell from the car . . . Mitchell twice punched him in the face.” The officer fell and hit his face. The struggle continued, but Mitchell eventually got out of the car (during which one officer observed “keep in mind he’s incoherent”). Officers found a “small plastic baggie in Mitchell’s pants pockets that contained a white substance,” cocaine. Mitchell pleaded guilty to being a felon in possession of a firearm and was sentenced to 84 months in prison.

On appeal, a fractured Fourth Circuit vacated his sentence. At issue was a pair of Guideline enhancements – a six-level enhancement for assault of a law enforcement officer that created a serious risk of serious bodily injury and a four-level enhancement for possession of the firearm in connection of another felony offense, possession of cocaine – that boosted Mitchell’s sentence. On the six-level enhancement, Judges Benjamin and Rushing rejected Mitchell’s arguments that the enhancement should not apply – concluding that the district court made sufficient findings, that there was sufficient evidence of assault, that Mitchell knowingly struck a law enforcement officer, and that his action created a substantial risk of serious bodily injury (although no actual injury occurred). On the four-level enhancement, Judges Benjamin and Keenan agreed that the district court did not make sufficient findings to support the conclusion that the firearm facilitated or had the potential to facilitate the possession of the cocaine. They distinguished this case from Jenkins, where there were specific findings as to how the firearm in that case facilitated drug possession.

Judge Rushing filed a separate opinion concurring and dissenting in parts, arguing that there was sufficient evidence to support the four-level enhancement. Judge Keenan also filed a separate opinion concurring and dissenting, arguing that the six-level enhancement suffered from the same flaw as the four-level one, that the district court had not sufficiently identified the basis for its application.

Congrats on the EDNC Defender office on the victory!

Reversing Denial of Compassionate Release Motion Based on 924(c) Disparity

US v. Brown: In 2014, Brown was convicted of (among other things) two counts of possessing a firearm in connection with a drug trafficking offense, under 18 USC 924(c). At the time, the statute was written in such a way as to require the “second” of those convictions to carry a mandatory minimum sentence of 25 years, served consecutively to any other imposed sentence – including the five-year mandatory minimum on the “first” 924(c) count. All told, Brown was sentenced to 687 months in prison.

In 2020, Brown filed a motion for compassionate release based on his increased risk of complications should he contract COVID-19 in prison. The motion also “highlighted the steps he had taken to rehabilitate since he was sentenced.” The district court initially denied Brown’s motion, but the Fourth Circuit remanded because the district court did not address all of Brown’s arguments. On remand, Brown argued that the changes to 924(c) – under which he would now be subject only to a pair of stacked five-year terms – separately constituted “extraordinary and compelling reasons” for his release. The district court again denied Brown’s motion, holding that he had not proven he was at a particularized risk from COVID-19 and that the 924(c) argument had not been properly presented to the Bureau of Prisons before Brown made it in court.

On appeal, a divided Fourth Circuit reversed the denial of Brown’s motion. As to the COVID-19 issue, the court found no abuse of discretion on the district court’s part. As to the 924(c) disparity argument, however, the court held that it was a basis for relief. Noting that the district court’s procedural ruling was no longer good law under since-decided Fourth Circuit precedent, the court found that it was error for the district court to fail to address it (either as the basis for relief or under the relevant factors for imposing a new sentence). The court then reviewed the record and found that the 924(c) disparity was both an exceptional and compelling reason for granting relief and weighed heavily in determining a new sentence. Rather than remand, the court directed that Brown’s motion be granted and his sentence reduced.

Judge Quattlebaum dissented from what he called an “extraordinary, and in my view, regrettable decision.” He took issue not just with the majority’s conclusion of error on the district court’s failure to address the 924(c) disparity, but in the majority’s decision to directly order relief rather than remand.

Aiding and Abetting Carjacking Remains a Crime of Violence

US v. Draven: Draven and his paramour hired a hitman to kill her husband. As a result, he was convicted of (among other things) murder with a firearm in relation to a crime of violence, said crimes being a conspiracy to commit murder and aiding and abetting carjacking resulting in death. While Draven’s post-Johnson motions were winding through the courts, the Fourth Circuit held, in the appeal of his codefendant Runyon (the shooter) that carjacking remains a crime of violence. Ultimately, Draven conceded that carjacking remained a crime of violence, but because the verdict on the firearm count was a general one it was unclear which predicate the jury relied upon, particularly whether it had relied on an aiding and abetting theory.

The Fourth Circuit concluded Draven’s firearm conviction should be affirmed. It rejected his argument that the Supreme Court’s recent decision in Taylor rendered aiding and abetting no longer a basis for an offense being a crime of violence, similar to attempt. The court relied upon Ali, in which it held that the aiding and abetting statute “does not set forth an essential element of the offense” meaning that “aiding and abetting a crime has the exact same elements as the principle offense.” As such, “aiding and abetting and attempt are not comparable offenses.”

Court Affirms Convictions and Death Sentence Despite Competency Issues

US v. Council: Council robbed a bank in South Carolina, during which he shot and killed a teller and a manager. He was charged with bank robbery resulting in death and using a firearm in relation to a crime of violence causing death. He was convicted at trial and sentenced to death.

On appeal, the Fourth Circuit affirmed Council’s convictions and sentence. His primary argument on appeal revolved around how issues of his competency had been dealt with by the district court. While not arguing against “the district court’s bottom-line finding that he was competent to proceed,” he argued that the district court should not have deferred to the representations of his counsel (based on their retained experts) as to his competency. While the district court raised the issue “on its own initiative several times,” Council’s counsel “vigorously opposed any court-ordered examination . . . because it could place information in the government’s hands that could increase the risk of a death sentence.” Ultimately, the court conclude that even if it agreed “that obtaining an independent evaluation that results in the filing of a detailed report is generally preferable to relying on a private evaluation by defense-chosen experts – we cannot say the district court exceeded its discretion in proceeding as it did here.” The court also rejected Council’s arguments regarding jury selection, both that the district court should have asked more nuanced questions about racial bias and that the Government’s violated Batson, holding that the Batson challenge had been “affirmatively waived” by trial counsel.

Erroneous Guideline Calculation Didn’t Undermine Denial of First Step Act Relief

US v. Smith: Long ago (it’s unclear precisely when), Smith was convicted of conspiracy to distribute crack cocaine. He received the then-mandatory minimum sentence of 240 months, above the otherwise applicable Guideline range of 188 to 235 months. He sought relief under the First Step Act. The Government agreed that Smith was eligible for relief (his mandatory minimum had dropped to 120 months), but argued that he should not get it. The district court ultimately recalculated the advisory Guideline range as 130 to 162 months in prison, but noted that his 240-month sentence was still within the statutory maximum (life) for the offense. Noting that the amount of crack attributable to Smith was just below the new threshold for the 240-month mandatory minimum, as well as its “strong suspicion” that Smith played a role in an informant’s murder, the district court denied Smith’s motion.

On appeal, the Fourth Circuit affirmed the denial of Smith’s First Step Act motion. Smith argued, under plain error, that his newly applicable Guideline range was even lower than that calculated by the district court, but the court held that was incorrect – the applicable Guideline range was actually 151 to 188 months, even higher than the one used by the district court. Given that determination, there was “no reasonable probability the outcome would have been different had the court recognized its mistake.” The court also concluded that Smith’s 240-month sentence remained substantively reasonable based on the totality of the circumstances, even though the district court did not note that the sentence was now an upward variance, rather than the minimum required by law. As to the “strong suspicion” of Smith’s involvement in a murder, the court noted that the district court also stated that it “was not convinced that the evidence was sufficient to implicate” Smith.

Six-Month Longer Sentence Made Consecutive to State Sentence Not Vindictive

US v. Singletary: In 2019, following participation in an armed robbery, Singletary was sentenced to 60 months on a Hobbs Act robbery charge and a consecutive 84-month sentence on a firearm brandishing charge. He appealed, challenging the application of a pair of supervised release conditions. Successful, the Fourth Circuit vacated his entire sentence, remanding for further proceedings. At resentencing, the district court imposed an extra six months of imprisonment on the robbery charge and ordered his federal sentence to run consecutively to a state sentence imposed after his initial federal sentencing (those state charges had been pending at the time). As a result, Singletary’s sentence was effectively increased by about 11 years.

On appeal, the Fourth Circuit affirmed Singletary’s new sentence. The court first concluded that Singletary’s appeal was not covered by a waiver of his right to appeal his sentence in his plea agreement because the argument he was making – that his new sentence was the product of vindictive conduct by the district court – did not fall within the scope of the waiver. However, the court ultimately held that the presumption of vindictiveness created by the lengthened sentence had been rebutted. That was due to two factors relied upon by the district court in imposing the new sentence. The first was Singletary’s poor disciplinary record in prison, which led the district court to doubt the sincerity of Singletary’s initial remorse at sentencing. The second was the new state convictions, which the district court did not consider when first imposing sentence because they were merely pending charges at the time.

False Lien Filed Against IRS Agent’s Pseudonym Supports Attempt Conviction

US v. Reed: Reed owed years’ worth of unpaid taxes and was referred to the Abusive Tax Avoidance Transactions division of the IRS. There an IRS agent, acting under a pseudonym, directed Reed’s employer to garnish his wages. After he was unsuccessful convincing his employer not to do so he lost his job, then filed a series of documents against the IRS agent’s pseudonym stating she owed him a judgment. When IRS investigators came to Reed’s home, he admitted that he intended the false lien (and related paperwork) to “get the IRS to leave him alone.” As a result, he was charged with attempting to file a false lien against a federal employee and attempting to interfere with the administration of internal revenue laws. Reed was convicted on both counts at trial and sentenced to 60 months in prison.

On appeal, the Fourth Circuit affirmed Reed’s convictions and sentence. As to his conviction for attempting to file a false lien, the court rejected Reed’s argument that he could not be convicted under that statute because the lien was filed in the name of the IRS agent’s pseudonym. The pseudonym was still a real person, “no more fictious than George Eliot or Mark Twain,” and had impacted the agent’s credit history. As to the interference conviction, the court held that the IRS action involving Reed was the type of “targeted administrative action” required under the Supreme Court’s interpretation of the statute. The court also rejected several related Guideline arguments.