Affirming Convictions, Sentence, Arising from Sex Trafficking & Overdoses

US v. Wysinger: Wysinger was convicted, by a jury, of conspiracy, sex trafficking, and distributing, or possession with intent to distributing, fentanyl that resulted in one overdose death and a second overdose. “Wysinger would give the women heroin and cocaine they could not afford and then insist they repay their debt by prostituting themselves.” Following his conviction, Wysinger received three life sentences and a concurrent term of 120 months.

On appeal, the Fourth Circuit affirmed Wysinger’s convictions and sentence. First, the court concluded that there was sufficient evidence that Wysinger coerced “vulnerable women by exploiting their drug addictions in exchange for prostitution services,” even in the absence of physical violence. The court also held that there was sufficient evidence that Wysinger’s coconspirator (who was also the overdose death) “understood the nature of their undertaking and agreed to participate.” The court also found that the jury instructions for the conspiracy to commit sex trafficking offense were not plainly erroneous (or erroneous at all). The court also held that the instructions on the two drug charges were correct, in that they allowed for death or serious bodily injury to be the result of both proven distribution and possession with intent to distribute. Finally, the court found that Wysinger’s prior Virginia drug conviction was a qualifying felony drug offense.

Rehaif Is Retroactive for 2255 Purposes

US v. Waters: In 2015, Waters was convicted of being a felon in possession of a firearm and sentenced to 120 months in prison. In 2019, he filed a pro se 2255 motion seeking to vacate his conviction shortly before the Supreme Court decided Rehaif. Once that was decided, he moved for the appointment of counsel to assist with a Rehaif-based claim. The district court denied that motion, as well as the 2255 motion as a whole, holding that Rehaif did not apply to Waters’ offense and that there was “no indication” the Supreme Court intended to make Rehaif retroactive.

On appeal, the Fourth Circuit reversed the denial of Waters’ 2255 motion. First, the court made clear that Rehaif applied not just to the immigration-status offense in that case, but any status-based offense under 18 USC 922(g), including being a felon in possession of a firearm. Second, the court concluded that Rehaif was retroactive, as it “narrowed the scope of a criminal statute by interpreting its terms” and “altered the range of conduct or the class of persons that the law punishes.” At that point, the majority states that on “remand, the district court should consider any issues related to procedural default and prejudice in addition to the merits of Waters’ claim” and suggests prejudice may be a hurdle Waters cannot clear.

Judge Wynn concurred in the judgment, but took the majority to task for bringing up procedural default, noting that not only had the Government not done so in the district court, but had not raised the issue before the Fourth Circuit. Cataloging the number of times the court has held defendants strictly responsible for not raising issues in similar situations, he concluded “that’s not fair.”

Court Limits Impact of Changes in Law During First Step Act Analysis

US v. Troy: In 2004, Troy was part of a group that tried to rob a drug dealer, the attempt ending when Troy shot the dealer in the face (he lived). Troy eventually pleaded guilty to drug and firearm offenses and was designated as a career offender based on (among other things) a prior North Carolina conviction for which he only served ten months in prison. He was sentenced to 276 months in prison, after a downward departure for substantial assistance. In 2019, Troy sought relief under the First Step Act. The district court agreed that he was eligible for relief and that after Simmons he was no longer a career offender, but ultimately decided against reducing Troy's sentence based on the facts of the case and Troy's prior criminal history.

On appeal, the Fourth Circuit affirmed the denial of Troy's First Step Act motion. In doing so, the court relied on the Supreme Court's decision in Concepcion to again limit its own prior decisions related to applying the First Step Act (see also Reed). Concepcion, the court held, limited the recalculation of the Guidelines in First Step Act proceedings to changes directly attributable to the passage of the First Step Act, allowing the consideration of other changes in the law to the discretionary decision of whether (and how much) to reduce a defendant's sentence. That reverses the Fourth Circuit rule (from Chambers), which required courts to consider changes in the law when calculating the applicable Guideline range. Thus, while the district court technically erred here, the error was harmless since it denied the request for a reduction, which left the sentence within the applicable Guideline range. The court also concluded that the district court had adequately considered Troy's arguments for a reduction, sufficiently explained its basis for denying relief, and that the 276-months sentence was, ultimately, substantively reasonable.