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.