Sentence Package Doctrine Can Apply to Allow Reduction of Otherwise Non-Covered First Step Act Offenses

US v. Richardson: In 1996, Richardson was convicted of multiple counts related to drug trafficking, including one count of engaging in a Continuing Criminal Enterprise (“CCE”) and one count of distribution of crack cocaine. He was sentenced to concurrent life terms on both, along with statutory maximum terms of years on other counts. In 2019, he filed for relief under the First Step Act, arguing that it reduced his previous life Guideline “range” to 360 months to life. The district court concluded that Richardson was eligible for relief on the crack count, but exercised its discretion to deny relief.

On appeal, the Fourth Circuit remanded in light of it’s decision in Collington, which (at the time) required a reduction under the First Step Act if the defendant’s current sentence was higher than the newly applicable statutory maximum. The district court concluded that Richardson was not eligible for a reduced sentence on the CCE count because that was not a covered offense (based on intervening Fourth Circuit law), but reiterated its conclusion that he was eligible on the crack charge, reducing that sentence to 480 months, the new statutory maximum.

On appeal, for the second time, the Fourth Circuit vacated and remanded, for the second time. Since the last remand the court had held that Covington was no longer good law in light of the Supreme Court’s decision in Concepcion, meaning that the district court could have completely refused to reduce Richardson’s sentence. However, the district court also could have employed the “sentencing package doctrine” and exercised its discretion to reduce the sentence on the CCE count as well, if it was related to the crack count that was the First Step Act covered offense. The court rejected the Government’s arguments that the doctrine shouldn’t apply, concluding that it was ultimately up to the district court, in the first instance, to determine its applicability.

Intentional Murder Is VICAR “Crime of Violence”

US v. Tipton: In 1992, Tipton and Roane were convicted of multiple offenses related to a “rampage of . . . racketeering activity” that included several “firearm-related murders.” Among the offenses they were convicted of were charges for using a firearm in relation to a “crime of violence” or “drug trafficking crime.” In total, 13 of 24 charges against Tipton and 9 of the 11 charges against Roane were identified as predicate offenses for the firearm offenses. In the wake of the Supreme Court’s decisions in Davis and Borden, Tipton and Roane received permission to file successive §2255 motions challenging the firearm convictions, which the district court denied.

On appeal, the Fourth Circuit affirmed the denial of Tipton and Roane’s §2255 motions. Ultimately, the issue came down to whether murder committed in aid of racketeering (“VICAR murder”) remained a crime of violence, as “it is the only predicate offense underlying each and every one of the” firearm charges. The court concluded that it was. After first holding that the record showed that the VICAR offense at issue was murder itself, rather than conspiracy, the court went on to conclude that the elements of the offense require that there must be an “intentional murder” and, therefore, the use of violent force. Therefore, it is a crime of violence. Finally, the court concluded that Tipton and Roane could not show that there was a “more than a reasonable probability” that their firearm conviction “rested solely on some other, invalid predicate offense.”

Local Sheriff (and Deputies) Were “Agents” for Purposes of Federal Program Theft

US v. Underwood: Underwood was a sheriff in rural South Carolina who, along with a pair of deputies, perpetrated a scheme that saw them do private work while on the public payroll (to build Underwood a barn-sized man cave), skim additional compensation from a privately-funded drunk driving checkpoint program, and violate the civil rights of a resident who was arrested after filming the department’s response to an accident that took place in front of his home. For all this, the defendants were charged, and convicted at trial, of various offenses, and sentenced to terms of imprisonment of between 24 and 46 months.

On appeal, the Fourth Circuit affirmed all the defendants’ convictions and sentences. Among the issues raised by all defendants was whether the Government had presented evidence sufficient to prove they had committed federal-program theft (under 18 U.S.C. § 666(a)(1)(A)). They argued that there was insufficient evidence that they were “agents” of the particular county they worked for and whether that county had received more than $10,000 in federal benefits the preceding year. As to the first issue, the court concluded that the sheriff and his deputies were agents of the county, even though they were technically employees of the state of South Carolina, rather than the particular county that they served. That was because the definition of “agent” for the federal statute was broader than the concept of “employee” in state law and there was sufficient evidence that Underwood and the others were “authorized to act” on behalf of the county. As to the second issue, the court held federal grant money to the county (totaling $370,000) had enabled the county to purchase items, not simply be reimbursed for prior purchases. The court also rejected the defendants’ other challenges to their conviction and sentences.

Attempt to Commit Offense That Requires Actual Use of Force is 924(c) “Crime of Violence”

US v. Lassiter: In 2015, Lassiter was involved in an armed robbery in which a person was shot (Lassiter was a lookout and fired at witnesses while escaping, but did not hit anyone). As a result, he stood convicted (after a direct appeal) on five counts, including two counts each of attempted murder in aid of racketeering activity (“VICAR attempted murder) and discharge of a firearm in connection with a crime of violence – that being the VICAR attempted murder. On remand, Lassiter was sentenced to 300 months in prison.

On appeal, the Fourth Circuit affirmed Lassiter’s convictions and vacated his sentence. Lassiter’s main challenge was that his firearm convictions were no longer valid because VICAR attempted murder was no longer a “crime of violence,” but he had not raised that issue either in his initial appeal or upon remand to the district court. Lassiter argued that the mandate of the prior appeal did not prevent him raising the issue because the “controlling legal authority has changed dramatically,” based on the Supreme Court’s decision in Taylor, which held that attempted Hobbs Act robbery is not a crime of violence because it can be committed without the use or threatened use of violent force. VICAR attempted murder, the court held, could be committed in such fashion, because the substantive offense (murder under Virginia law) required the actual of force the attempt to commit that offense involved the attempted use of force. Specifically, the court rejected Lassiter’s argument that Taylor applied to any attempted offense that might be a crime of violence, limiting it to attempted Hobbs Act robbery. The court did vacate Lassiter’s sentence due to a Rogers error in the imposition of conditions of supervised release.

FRE 414 Doesn’t Limit Admissible Evidence to Incidents Involving Minors Under 14 Years Old

US v. Hoover: Hoover was arrested on state charges relating to taking indecent liberties with a minor. Further investigation uncovered videos of child pornography, which led to the identification of two minor boys, one 17 the other 12, who Hoover had recoded performing sexual acts. Hoover was charged with two counts of production of child pornography (one for each victim) and one count of possession. He was convicted after a one-day trial and sentenced to 840 months in prison.

On appeal, the Fourth Circuit affirmed Hoover’s conviction and sentence. Hoover’s primary arguments involved a pair of evidentiary issues. The first was that the district court had erred by allowing the introduction of evidence related to Internet search terms that suggested Hoover had a sexual interest in young boys. Applying plain error, the court agreed with the district court that the evidence was intrinsic to the charged offense, particularly since they were found on the same device used to produce the videos at issue. The second was whether the 17-year-old victim’s testimony should have been admitted under Rule 414 of the Rules of Evidence, which defines “child” as apply only to those under 14 years of age. The court held there was no error, distinguishing between “minor” and “child molestation,” which is defined to include acts that involve any person under 18 years of age.

Government Failure to Turn Over Witness’s Changed Statement Was Not Material for Brady Purposes

US v. George: George was the passenger in a white SUV driven by his cousin, Frazier, that was stopped after police got information about a convenience store theft after which the four perpetrators left in a white SUV. A loaded magazine was found under a seat cover on George’s seat and a firearm was recovered from between his seat and the door. George was charged with being a felon in possession of a firearm and ammunition. Frazier, in statements provided in discovery, said the other two passengers were “Kate” and an unnamed man, who had both been dropped off prior to the stop. Prior to trial, Frazier changed his story and told investigators that the other two passengers were his and George’s cousins.

George learned of the change in Frazier’s testimony when he testified at trial (during which he also said he’d seen George with a firearm and that George had a reputation for carrying firearms). After Frazier was vigorously cross examined about his changed story, George called the investigating officer to testify (he had not testified during the Government’s case) and learned about Frazier’s later statement that had not been disclosed in discovery. The jury, utilizing a special verdict form, specifically convicted George of both being a felon in possession of a firearm and ammunition. The district court denied George’s post-trial motion for a mistrial and dismissal under Brady. He was sentenced to 33 months in prison.

On appeal, the Fourth Circuit affirmed George’s conviction and sentence. The court rejected the Government’s argument that Frazier’s later statement had not actually been withheld because George learned about it at trial. Instead, the court focused on whether the statement was material to the defense, ultimately concluding that it was not. The court noted that when the withheld information is useful for impeachment purposes its materiality can turn on whether the witness in question was effectively cross examined at trial, which is what happened here – “because the jury knew about the inconsistent statement and Frazier was impeached by it, we find it difficult to imagine how an earlier disclosure would have materially altered the course of the trial.”  The court also noted that even if the statement was material to the issue of George’s possession of the firearm, it was not to the issue of his possession of the ammunition, given that he was sitting on it.

NC Attempted Robbery with a Firearm is ACCA “Violent Felony”

US v. Hamilton: Hamilton pleaded guilty to a drug charge and being a felon in possession of a firearm. The probation officers identified three prior convictions that would qualify him for sentencing under the Armed Career Criminal Act. Hamilton objected, arguing that his North Carolina conviction for attempted robbery with a handgun was not a “violent felony” as defined by ACCA. The district court disagreed and imposed the mandatory minimum ACCA sentence of 180 months in prison.

On appeal, the Fourth Circuit affirmed Hamilton’s sentence. Hamilton’s primary argument was that while completed armed robbery required the use of force, attempted armed robbery required proof only of intent to commit the offense and an overt act in furtherance of that intent. The court disagreed, holding that the language of the particular statute in North Carolina “did not create an inchoate attempt offense” but rather includes “robbery cases where the defendant attempted but did not succeed in taking personal property,” a conclusion supported by state supreme court decisions. By contrast, Hamilton’s reading “is entirely untethered from the language of” the statute.

Defendant “Resided” in West Virginia So As to Require SORNA Registration

US v. Kokinda: Due to a pair of state convictions in the 2000s, Kokinda was required to register as a sex offender. He effectively disappeared, and ceased registering. He resurfaced in Elkins, West Virginia, in September 2019, where he was charged with sexual abuse in the third degree after grabbing the buttocks of a girl while pushing her on a swing in a public park. In addition, images of child pornography were found on his phone. Kokinda was charged with failing to register under SORNA. He went to trial, where the Government produced evidence that Kokinda had been in the Elkins area for about a month, staying at various campsites. Kokinda’s defense was that while he had offenses that would require him to register with SORNA, he never “resided” in West Virginia and triggered the registration requirement. He was convicted and sentenced to 63 months in prison, the top of an advisory Guideline range enhanced for committing a sex offense against a minor while failing to register.

On appeal, the Fourth Circuit affirmed Kokinda’s conviction and sentence. As to his conviction, Kokinda’s main argument was that the district court had erred in instructing the jury on the definition of “resides” and “habitually lives,” particularly in taking the definition of the latter term from the SORNA guidelines promulgated by the Attorney General. The court rejected that argument, holding that the guidelines are part of a civil regulatory scheme and entitled to Chevron deference in defining the ambiguous term “habitually lives.” The court also held that there was no conflict with the Supreme Court’s decision in Nichols. As to Kokinda’s sentence, the court found no clear error in the district court’s determination that he had committed a sex offense against a minor, either by grabbing her buttocks or by possessing child pornography.

Judges Express Concern Over Johnson VICAR Analysis

 US v. Kinard: Last year, in United States v. Thomas, the Fourth Circuit held that assault with a deadly weapon under the violent crimes in aid of racketeering statute (VICAR) was a crime of violence. In doing so, the court held that because the federal VICAR offense itself had, as an element, a requirement that the offense was done for purposes related to the racketeering enterprise that it required a “deliberate choice” that satisfied the mens rea requirement for the crime of violence analysis, even when the underlying state offense could be committed recklessly.

Kinard raised the same issue with a related state offense and the Fourth Circuit affirmed his conviction, based on Thomas.

Judge Keenan, joined by Judge Heytens, concurred in the result, agreeing that the panel was bound by Thomas, “which issued after briefing and argument in this case.” Regardless, she had “concerns with the resulting analysis,” arguing that looking to the mens rea of the racketeering element of the offense is incorrect and out of step with the approaches of other circuits. As she explained, “the mens rea required under the force clause thus differs from the mens rea required under the purpose element in that the latter does not require a showing that the defendant knowingly directed force at a target,” as required by the Supreme Court’s decision in Borden.

Court Approves Broad Search Warrants for Facebook Data

US v. Zelaya-Veliz: Zelaya-Veliz, along with five codefendants, were involved in a conspiracy to traffic minor girls for prostitution in and around Virginia and Maryland. As part of the investigation into their operation (after one of the girls managed to escape), authorities sought a series of search warrants – four in total – for Facebook data related to Zelaya-Veliz and his codefendants, other coconspirators, and the trafficked victims. Two of the four warrants had no temporal limitation to the data that Facebook was required to disclose and all allowed authorities to search a wide swath of information, although they allowed only for a seizure of information related to specific federal crimes under investigation. Motions to suppress the information from those warrants were denied. Zelaya-Veliz and his codefendants were convicted of conspiracy and substantive sex trafficking counts at trial and sentenced to between 180 and 300 months in prison.

On appeal, the Fourth Circuit affirmed the defendants’ convictions. Their primary argument was that the district court erred by denying their motions to suppress the evidence from the Facebook warrants (which the court notes was substantial and critical to the Government’s case at trial). Initially, the court concluded that the defendants could challenge all the warrants other than the first, noting that none of their data or accounts were involved with the first warrant. In doing so, the court made clear that Facebook (or other social media) account holders have Fourth Amendment standing to challenge searches of those accounts. Turning to the merits of the defendants’ challenges, the court first held that there was sufficient probable cause for issuance of the warrants. Next, the court held that they were sufficiently limited both temporally (for two of the remaining warrants) and in terms of their scope (for all of them). As to the latter, the court held that the two-step process employe here – where investigators were allowed to search essentially all of a Facebook account but only seize that evidence related to specific federal crimes – resulted in a sufficiently particularized warrant. As to the former, for the warrant that had no temporal limitations at all, the court held that was problematic, but that ultimately the search was saved by good faith.

Defendant Cannot Take Interlocutory Appeal from Denial of Motion for Resentencing Without His Presence

US v. Castellon: In 2022, the Fourth Circuit vacated Castellon’s conviction under 18 U.S.C. § 924(c) and remanded for resentencing. On remand the parties agreed to the newly calculated Guideline range, that 210 months was the appropriate sentence, and that a resentencing hearing was not required. The district court “rejected the parties’ claim that Castellon could be resentenced in absentia, concluding that the only situation covered by the “voluntarily absent” language in Rule 43(c)(1)(B) of the Rules of Criminal Procedure was when the defendant fled proceedings and refused to submit themselves to the court. While noting that Castellon had “asserted valid reasons for sentencing in absentia, he hadn’t provided the court authority to do so.”

Castellon sought an interlocutory appeal to the Fourth Circuit to resolve the issue. While recognizing that the court’s “precedent appears to support their position” that a defendant can waive their presence at sentencing, the court held that it lacked jurisdiction over an interlocutory appeal on the matter. The court held that it did not fall under the collateral order doctrine because Castellon failed to identify “an important right implicated by the orders denying him the opportunity to be resentenced in absentia.” Castellon’s interest did not rise to the level of other issues that defendants can raise in an interlocutory appeal (such as double jeopardy claims), with the court concluding that “the district court’s error in interpreting a rule governing sentencing procedure isn’t compelling enough to warrant interlocutory appeal.”

North Carolina Assault by Strangulation Remains Crime of Violence

US v. Robinson: In 2022, in Rice, the Fourth Circuit held that a conviction in North Carolina for assault by strangulation is a “crime of violence” under the Sentencing Guidelines. As I wrote at the time:

Rice argued that the assault conviction was not a crime of violence because it the only intent required to sustain a conviction was culpable negligence. Had his prior offense been “run of the mill assault . . . he would have a point.” The complicating factor here was strangulation, which by its nature involves conduct that “could not be accomplished absent an intentional, knowing or purposeful state of mind.” This was true “even if not expressly stated” in North Carolina law. In addition, no “ordinary person would say that a person could strangle another without a purposeful, knowing or intentional state of mind.” Nor could Rice point to any cases sustaining convictions for strangulation that did not involve purposeful conduct.

Robinson, like Rice, was convicted of being a felon in possession of a firearm and had his base offense level increased because of a prior conviction for assault by strangulation. He argued that after the Supreme Court’s decision in US v. Taylor (decided shortly after Rice), the Fourth Circuit’s precedent was no longer valid and his prior conviction was not a crime of violence. Specifically, Robinson argued that Rice relied on “a survey of the conduct in published state cases” and Rice’s “failure to identify a single case where the conduct described was negligent or reckless,” a methodology that “cannot be squared” with Taylor.

In affirming the outcome of Rice, the Fourth Circuit did not fundamentally disagree with Robinson on the holding of Taylor, but ultimately concluded that Rice would have reached the same conclusion even without considering such survey data. The court noted that in Rice it had “found that North Carolina law suggests that assault by strangulation requires intentional conduct” and that it “independently interpreted the text of the North Carolina statute . . . and concluded that a person cannot commit the act of strangling without knowing or intending it.” The survey analysis “in Rice was only added to the opinion to provide additional confirmation for our holding.”

No Fourth Amendment Violation In Traffic Stop, Seizure of Occupants and Search

US v. Perry: Perry was in a SUV driven by his girlfriend, McCarr, which police observed in “an area well-known for gang activity and violent crimes.” The SUV lacked the necessary front license plate, leading officers to follow. The SUV “tried to flee” from the officers, running two stop signs. They found the SUV in a nearby parking lot, where they saw McCarr get out of the driver’s side door and Perry briefly “lean towards the ground, the floorboard” from the passenger’s seat “before jumping over the center console” to exit the SUV.

Perry and McCarr were both handcuffed. A patdown of Perry uncovered a blue bandana which, along with intelligence that Perry had gang connections, made officers conclude he was affiliated with the Crips. McCarr gave permission to search the car, which uncovered a revolver “protruding from a purse on the passenger’s-side floorboard.” McCarr said the gun belonged to Perry. A second gun was found on the passenger’s-side floorboard, which turned out to be stolen (and also belonged to Perry, according to McCarr). Perry was charged with being a felon in possession of a firearm, multiple counts of witness tampering (based on attempts to keep McCarr from testifying against him), and possession of marijuana. He was convicted at trial on all counts after unsuccessfully moving to suppress the evidence found during the traffic stop. He was sentenced to 210 months in prison.

On appeal, the Fourth Circuit affirmed Perry’s convictions and sentence. Perry’s primary argument was that “he was unconstitutionally seized for much of the” traffic stop. The court disagreed. The SUV was seized when police found it in the parking lot and activated their blue lights, at which point they had “both probable cause of observed traffic violations and reasonable suspicion of other criminal activity.” The court rejected Perry’s argument that the investigation during the stop went beyond the basis for it (running the stop signs), concluding that “this ignores important evidence that drove the mission of the seizure,” which included investigation of other criminal activity. The court also found no violation in either the length of the stop or Perry’s detention during it, based on the observations of the officers.

Ruan Requires Vacation of Doctor’s Drug Convictions

US v. Smithers: Smithers was a rural Virginia doctor who was eventually charged (after a couple of superseding indictments) with hundreds of counts of unlawful dispensing and distribution of controlled substances. Witnesses at trial testified that many of Smithers’ patients did not pay for their own prescriptions, some failed drug tests and other controls meant to root out abuse, and Smithers sent some prescriptions through the mail without seeing patients in the office. An expert witness testified that Smithers’ practices were outside the scope of professional practice and not for legitimate medical purposes. Smithers was convicted on all counts and sentenced to 480 months in prison.

In his appeal, Smithers challenged (among other things) the jury instructions given during his trial. His case was initially put in abeyance pending the outcome of the Supreme Court’s decision in Ruan, which addressed the mens rea which the Government was required to prove in order secure a conviction in cases like this one. In light of Ruan, and after supplemental briefing, the Fourth Circuit vacated Smithers’ convictions.

First, the court concluded that Smithers had properly raised the issue below and, even if he had not, he was not precluded from presenting it in supplemental briefing as “it would have been futile for him to argue for a subjective standard” in his opening brief. Second, the court turned to the instructions given at trial. At issue was the definition of “unauthorized” prescribing, which was defined as either “without a legitimate medical purpose or beyond the bounds of medical practice.” The court held that the instruction “misstated the law post-Ruan” and that the error was not corrected by any other jury instructions that had been given. Nor was the error harmless.

District Court Must Advise Defendant of “Effect of Supervised Release” During Rule 11 Colloquy

US v. King: King pleaded guilty to having possessed a firearm as a felon. At the plea colloquy, “the court did not advise King of the effect of supervised release or that a violation of the terms of supervised release could result in a total maximum term of imprisonment in excess of the statutory maximum for the offense.” King did not object or otherwise try to withdraw his plea. He was sentenced to 110 in prison, followed by a three-year term of supervised release.

On appeal, King’s counsel initially filed an Anders brief, but the Fourth Circuit ordered the parties to address the issue of the district court’s failure with regard to the effect of supervised release and whether that required vacating King’s guilty plea. The court held that the district court had erred, but that King suffered no prejudice and thus could not satisfy the needs of plain error review. Looking at the history of Rule 11, the court noted that prior Fourth Circuit precedent specifically required that defendants be notified of the impact of supervised release and revocations and that the require had, for a time, been within the rule itself. The specific reference in Rule 11 was removed in 2002, but the court concluded that since those amendments were not intended to be substantive that it did not change the requirements of prior precedent. King’s substantial rights had not been violated because he could not show that, had he been properly informed during the Rule 11 colloquy, that he would have decided not to plead guilty.

Speedy Trial Act Doesn’t Always Pause During Plea Negotiations

US v. Hart: Hart was involved in drug distribution and sex trafficking and drew the attention of federal investigators. When he found out that one of his prostitutes had been subpoenaed to appear before a grand jury he told her not to attend and, after she did anyway, “he physically assaulted her and threatened to kill her son.” For this he was charged, by complaint, on April 26, 2017, with witness intimidation. At the request of the parties, the district court entered an order on May 30, 2017 to “delay the filing of an Indictment and the holding of a preliminary hearing to discuss the possibility” a plea agreement. No agreement was reached, however, and Hart was ultimately indicted on July 17, 2017, 60 days after his was arrested. A superseding indictment added drug and sex trafficking counts to the witness intimidation charge. The district court denied Hart’s motion to dismiss under the Speedy Trial Act and he was convicted on all counts at trial.

On appeal, the Fourth Circuit reversed the witness intimidation count, affirmed convictions on all other counts, and remanded the case for resentencing. The court first addressed whether the late initial indictment violated the Speedy Trial Act. The court held it did, as none of the time between the running of the 30-day deadline for indictment and the actual indictment (another 30 days later) was properly excluded. The court held that intervening Supreme Court law had abrogated prior Fourth Circuit decisions that time during which plea negotiations were ongoing was automatically excluded. Instead, it could be excluded only if the district court made the proper findings required for “end of justice” continuances. As there was no such finding here, the Speedy Trial Act had been violated and required dismissal of at least the witness tampering count. The court rejected Hart’s argument that all counts should be dismissed, concluding that the evidence presented on the witness intimidation count would have been admissible even if that count had been dismissed and therefore there was no “prejudicial spillover” from the Speedy Trial Act violation.

Cell Phones in Plain View Properly Seized as Instrumentalities of Drug Offenses

US v. Davis: Investigators believed Hough was trafficking in firearms and had him under surveillance when he went to a local gun store and purchased three pistols, having provided an “inaccurate address,” driven a rental car to the store, and paying in cash. They stopped Hough’s car, in which Darby was a passenger (and a felon), from which they recovered “two ripped plastic baggies” they believed were consistent with drug distribution. Hough admitted to his gun trafficking and said that some of the guns were located in Darby’s home, into which Hough was soon moving. Officers obtained a search warrant for the home.

Executing the warrant, officers found Davis at the home, who initially tried to run from them. While detained during the search, Davis was seen trying to dispose of drugs into an HVAC vent on the floor. He was searched, with officers recovering a small amount of drugs and some cash. In a bedroom that appeared to be Davis’, officers found a shotgun, more drugs, and cash. Three cell phones were seized from the home, one of which belonged to Davis. Davis was eventually charged with conspiracy, possessing with intent, and firearm offenses. He unsuccessfully moved to suppress evidence found during the search and entered a conditional guilty plea to one of the drug charges.

On appeal, the Fourth Circuit affirmed the denial of Davis’ motion to suppress. After concluding, generally, that there was probable cause to believe that there was evidence of a crime present in the home, the court sidestepped the particular issue of whether there was probable cause necessary to search for and seized drugs, instead holding that the seized drugs were either in plain view or seized pursuant to Davis’ arrest. As to Davis’ cell phone, the court rejected the Government’s argument that the phone was properly seized pursuant to his arrest, noting that the record only showed that the phone was “recovered from the residence,” but not specifically where. Instead, the court held that the seizure of the phone was proper under the plain view doctrine as “its incriminating character was immediately apparent,” given the evidence of drug trafficking that was found on Davis himself and in his bedroom. The court pointed out that “we do not hold that cell phones in plain view may always be seized as instrumentalities of a crime,” noting that the “nature of the alleged crime and the totality of the evidence are critical considerations.” A cell phone is an “everyday object” without a primary criminal purpose, so “for a cell phone to be seized in plain view, the additional evidence or indicators of criminality have significant work to do to establish probable cause.” The court also made clear that it was not holding that the lawful plain view seizure of the phone authorized a search of its contents (for which investigators had gotten a warrant).

Result of Prior Search, Presence of Unanticipated Person During Arrest, Supported Protective Sweep

US v. Everett: Everett was involved in a drug distribution operation in which he was “known to sell ‘practically . . . everything’” in North Carolina. He had two associates to whom he would sell large amounts of (among other things) marijuana, who would then distribute the drugs. One of the associates, Murray, was arrested and gave a statement to police that pointed to an apartment used by Everett as a stash house. Officers executed a search warrant there, recovering drugs and a firearm (among other things).

Officers obtained an arrest warrant for Everett and tracked him to a different apartment. Everett was home with officers arrived, along with his wife, a friend, and two children. Officers decided to do a protective sweep of the apartment, during which they discovered multiple firearms and some THC gummies. They eventually obtained a warrant to search the apartment and seized four firearms, “at least” $65,000 in cash, and other drug paraphernalia. After being charged with multiple drug and firearm counts, Everett unsuccessfully moved to suppress the evidence found in the apartment where he was arrested. He was found guilty of all counts at trial and sentenced to 480 months in prison.

On appeal, the Fourth Circuit affirmed Everett’s convictions and sentence. His main challenge to the convictions was that police lacked the necessary concern to conduct the protective sweep of the apartment where he was arrested, which led to the seizure of significant evidence used against him. The court concluded that the officers had sufficient evidence to reasonably believe that another dangerous person was present, based both on what was found in the search of the stash house (the firearm, particularly), evidence that Everett was a “high-level drug dealer,” the presence of unexpected people at the apartment, and the presence of security cameras outside the apartment. As to his sentence, Everett’s primary challenge was the district court’s reliance on Murray’s statement to police in attributing relevant conduct to him, rather than Murray’s trial testimony, which was less specific as to amounts. The court concluded that the district court’s determination that Murray’s initial statement was credible was not clearly erroneous.

Court Divides on Extension of Traffic Stop

US v. Smart: Smart was pulled over in Louisiana in 2017 by a state trooper. The trooper was suspicious because Smart “seemed nervous,” could “provide only ‘clunky’ answers to questions,” and had a gas can in his car. The trooper ran his drug dog around the car. It alerted and 5.6 kilograms of cocaine were recovered from the car. Additional investigation, including search of homes in Virginia and North Carolina, led to Smart being indicted for conspiracy to possess cocaine with intent to distribute it, along with other drug and firearm offenses. At trial, Smart was acquitted on the firearm charge, but convicted on all others, and sentenced to a term of 360 months in prison.

On appeal, the Fourth Circuit affirmed Smart’s convictions. Smart’s main argument on appeal was that the district court erred by denying his motion to suppress evidence from the initial Louisiana traffic stop, contending that the trooper lacked the suspicion needed to extend the stop to allow his drug dog to be run around the car. The court disagreed, holding that the totality of circumstances showed reasonable suspicion to prolong the stop. In particular, the court deferred to the trooper’s explanation of why the gas can in the car was suspicious (in his experience, drug traffickers frequently take extra gas with them so they will not have to stop as often on the return trip), specifically noting that the district court found the trooper’s “testimony credible and relied on it.” The court also noted that Hart was not merely described as “nervous” but “extremely nervous,” conclusions that were backed up by the trooper’s observations of Smart during the stop.

Judge Traxler wrote a concurring opinion, diving more deeply into the record to “highlight the additional evidence that was presented at the suppression hearing that supports the district court’s decision.” Judge Wynn, however, wrote a dissenting opinion, arguing that the “majority opinion makes critical errors in its analysis – errors that will reverberate far beyond this case” because “it defers to a police officer’s (apparently unassailable) expertise on innocuous facts to find reasonable suspicion where there is none.” The “ultimate result” of that analysis is that “little more than a driver’s nervousness and the presence of a can of gas now offer open invitations for police officers to invade drivers’ privacy.”

Court Clarifies Standard of Review for “Serious Bodily Injury” Enhancement

US v. Gross: Gross, a felon, possessed a rifle which he used to shoot at AC, who had been staying at the home Gross shared with his parents and girlfriend. The shot didn’t hit AC, but it hit the ground near him and “three metal fragments” hit him near the right eye. AC ran away and a neighbor called 911. AC said he felt pain while waiting for paramedics arrived and, while initially telling them he was not in pain, told doctors at the hospital he was and received pain killers. AC left the hospital shortly thereafter, but continued to have pain (“probably one of the worst pains I have had”) and experienced “chronic sinus problems” since the incident. At sentencing, the main issue was whether AC’s injury was sufficient to be “serious bodily injury” under the Guidelines (rather than lesser “bodily injury”), a determination that would lead both to an enhancement and a cross-reference that would increase Gross’ advisory Guideline range. The district court applied the enhancement and sentenced Gross to the bottom of the resulting Guideline range.

On appeal, the Fourth Circuit affirmed Gross’ sentence. The court’s main focus was on what the proper standard of review to apply was in this case. Gross argued for a de novo standard, because the application of the enhancement turned on a legal interpretation of the Guideline’s terms, while the Government argued for a clearly erroneous standard, as the district court’s decision was primarily resolving a question of fact. The court agreed with the Government, noting that had the district court applied the wrong legal standard when resolving Gross’ objection that would have been a legal question subject to de novo review, but that the district court applied the correct standard. The application itself was not clearly erroneous, even though Gross could muster contrary facts that might support his position.

Court Affirms VICAR, and Other, Convictions; Vacates One Life Sentence

US v. Ortiz-Orellana: Ortiz-Orellana and his codefendant, Perez-Chach, were MS-13 members who were involved in two murders, one of a supposed informant (they killed the wrong guy), the other of a rival gang member. They were convicted at trial of RICO conspiracy, multiple counts of VICAR murder in aid of racketeering, and related firearm offenses. Each was convicted at trial and sentenced to multiple life sentences.

The Fourth Circuit affirmed Ortiz-Orellana’s and Perez-Chach’s conviction, and most of their sentences. Both of them argued that the district court erred by allowing the Government to use summary exhibits at trial and failing to provide a limiting instruction as to those exhibits. The charts involved phone calls made by the codefendants, from which the Government was required to redact names. Nor were the charts admitted into evidence, but used only as an “illustrative aid” during the testimony of an FBI agent. The court held that the district court’s instructions on the charts (including that they were not “independent evidence” and could not be given “greater consideration” than the evidence upon which they were based) and, thus, no abuse of discretion. Because Ortiz-Orellana and Perez-Chach did not ask for any additional limiting instruction review was for plain error and the court found none. Ortiz-Orellana separately argued that his VICAR convictions were not based on a “crime of violence” because the Maryland state murder offenses involved could sustain convictions on a felony-murder theory. While that was true, the court ultimately held that the statutes in question were divisible and, upon reviewing the Shepard documents, it was “clear” that Ortiz-Orellana “committed a deliberate, premeditated, and willful killing,” which made it a crime of violence. The court did vacate Ortiz-Orellana’s sentence as to one count, where the district court (in contravention of a recent Supreme Court decision) held that it was required to impose the life sentence on that count consecutively to all others.

Requirement That Witnesses Wear Face Masks During Trial Did Not Violate Sixth Amendment

US v. Maynard: Maynard was a police officer in West Virginia. He and his partner one night arrested Wilfong on outstanding warrants and for public intoxication. A tense rapport developed between Maynard and Wilfong (most of which was captured on video recorded in the police station). After Maynard had escorted Wilfong to the bathroom (which was off camera), he put on a pair of black gloves and told his partner “tonight’s the night” before flipping off the camera. From the bathroom came shouting and a series of loud noises. Wilfong fell on the floor (back on camera), at which point Maynard picked him up and hauled him across the room, eventually slamming Wilfong’s head into a doorframe. Maynard told his partner to call an ambulance and that he “went too fucking far.” Wilfong had a broken nose and cuts on his forehead that required staples to close.

Maynard was charged with violating Wilfong’s civil rights. Prior to trial, the district court entered an order requiring that everyone participating in the trial, including witnesses, wear face masks at all time due to the COVID-19 pandemic. Maynard objected and suggested an alternative – clear face masks that would allow jurors to see the witnesses’ faces as they testified. The district court rejected the suggestion, finding such masks insufficient protection. Maynard went to trial, was convicted, and sentenced to 108 months in prison, the bottom of the advisory Guideline range calculated at sentencing.

On appeal, the Fourth Circuit affirmed Maynard’s conviction and sentence. As to the masking of witnesses, the court rejected Maynard’s argument that it violated his Sixth Amendment right to confront witnesses and interfered with the jury’s prime position with regards to determining the credibility of those witnesses. The court held that the district court’s decision reflected an “important public policy interest” such as that the Supreme Court recognized in Craig, holding that was still good law after Crawford. In addition, the court held that the reliability of witness testimony was “otherwise assured” as they were cross-examined and the jury could examine their demeanor (at least partially). Finally, the court held that Maynard’s trial “preserved the Confrontation Clause’s core principles – physical presence and the opportunity for cross-examination.” The court also rejected Maynard’s argument that the district court erred in imposing a Guideline enhancement for “serious bodily injury,” holding that Wilfong’s injuries met that standard.

Full disclosure - I was defense counsel in this appeal.

Remand Required Due to “Opaque” Ruling on Obstruction Enhancement

US v. Pettus: Pettus stole a gold chain from a man named Salley, who chased him, caught him, and started beating him up. Pettus pulled a gun and Salley backed off. About an hour later they saw each other again and Pettus fired several times in Salley’s direction. Pettus then ran to a nearby parking garage and secreted the gun in the wheel well of a parked car. Police arrived, Salley identified Pettus as the robber, and they found the gun shortly thereafter. Pettus pleaded guilty to being a felon in possession of a firearm and was sentenced to 108 months in prison, within the advisory Guideline range calculated at sentencing.

On appeal, the Fourth Circuit vacated Pettus’ sentence and remanded for further proceedings. Among the enhancements applied at sentencing was one for obstruction of justice based on Pettus hiding the gun. The court found the district court’s ruling overruling Pettus’ objection to that enhancement to be “opaque” such that it “prevents us from determining whether the matters in disputed are mainly factual or legal.” It noted that the district court mentioned “concealment” as the basis for the enhancement, but that the Guideline does not support the enhancement on that basis if the concealment was contemporaneous with the arrest. “The problem is that, on this record,” the court held, “we cannot tell how (or even if) the district court answered those questions.” On remand, the court pointed out, the district court should make its ruling on the record as it currently exists, without the Government having a chance to bolster it.

Congrats to the Defender office in WDNC on the win!

References to Punishment During Explanation of Revocation Sentence Didn’t Make It Unreasonable

US v. Lewis: Lewis was on supervised release when he committed, and was convicted of committing, three state drug offenses. His supervised release was revoked for violating the standard condition that he not violate any state, federal, or local law. At sentencing, the Government argued for a sentence at the bottom of the advisory Guideline range, 37 months, while Lewis argued for a sentence of 36 months, concurrent with his state sentence. The district court imposed a sentence of 20 months in prison (consecutive to his state sentence), noting two particular factors in its explanation, Lewis’ criminal history (which was “horrendous”) and his in-custody record (which had “been good”). The district court also stated that such a sentence would “satisfy all the factors set forth in §3553(a), and provide for just punishment, and reflect the extent of the breach of trust evidenced by” Lewis’ conduct.

On appeal, the Fourth Circuit affirmed Lewis’ revocation sentence, rejecting two related arguments. The first was that the district court relied on an improper factor when it considered the need to “provide for just punishment.” That is because while 18 U.S.C. § 3583(c) incorporates most of the § 3553(a) factors, it specifically excludes the need to provide the just punishment for the offense. The court concluded that the district court’s references to those factors were “ambiguous when considered in their overall context,” including the fat that the “factors on which the court actually made its decision were fully authorized.” The court likewise rejected Lewis’ related argument that the policy statements in the Guidelines were invalid because they incorporated the need for punishment into them.

All Counts Related to Marriage-Based Citizenship Fraud Reversed

US v. Gallagher: Gallagher met Kalugin, who was in the United States on a student visa, while in law school in California. They were married in 2015 and began the process of getting Kalugin his citizenship. They moved to Virginia in 2016, so Gallagher could become a foreign service officer. Shortly thereafter, however, Kalugin returned to California, obtaining a new ID that listed his address in that state. Between 2016 and 2018, Gallagher moved to Mexico to begin her service, Kalugin travelled to Virginia twice for immigration interviews, and he received his citizenship (in accelerated fashion due to Gallagher’s job). Kalugin then briefly moved to Mexico with Gallagher, but left after a month. Gallagher filed for divorce, listing their separation date as May 1, 2016, before either of Kalugin’s immigration interviews.

They were charged with conspiring to falsely obtain naturalization and citizenship for Kalugin and two substantive counts, one based on Kalugin making four materially false statements in a form submitted as part of the process and the other on two false statements he made during his final interview. They were found guilty on all counts, with Kalugin sentenced to six months in prison and Gallagher to 15 months.

On appeal, the Fourth Circuit vacated their convictions on all counts, although on different grounds. After concluding that there was sufficient evidence to sustain all the convictions, the court looked to the count based on the form Kalugin had filed, noting that while it alleged four different false statements the jury’s verdict was a general one “without specifying the statement(s) on which that verdict was based.” Post verdict, however, the district court had correctly ruled that one of those statements could not have supported a conviction because Kalugin’s answer was literally true, if misleading. The jury was allowed to consider a “legally inadequate theory” of conviction and it was not clear the jury necessarily relied on another, legally adequate one. As to the other two counts, they required vacation because the district court had abused its discretion by excluding evidence of Facebook messages Gallagher and Kalugin shared with each other after the spring of 2016, when the Government alleged the marriage was already over. The court concluded that they were admissible either as non-hearsay or under an exception for statements showing a defendant’s “then-existing state of mind.”

Congrats to the Defender office in EDVA (and co-counsel) on the win!

Vacating Drug Conspiracy Sentence Where District Court Utilized Wrong Standard

 

US v. Evans: Evans was involved in a conspiracy to sell drugs in West Virginia and Ohio. He got his drugs from Gregory, in Ohio, who in turn worked for Douglas, who transported large quantities from Georgia to Ohio. On one trip he was stopped by police, who recovered 2.78 kilograms of “ice” methamphetamine. Evans was convicted, at trial, of conspiracy and two substantive counts of possession with intent based on controlled buys made from his underlings. At sentencing, the probation officer calculated Evans’ Guideline range as life in prison, capped by 80 years worth of statutory maxima. Among his many objections, Evans objected to the relevant conduct attributed to him – the 2.78 kilograms of meth recovered from Douglas, upon which the Government exclusively relied. The district court overruled the objection and sentenced Evans to 80 years in prison.

On appeal, the Fourth Circuit vacated Evans’ sentence. The court noted that to attribute relevant conduct from one coconspirator to another the court must make particularized findings as to the scope of their agreement and whether the coconspirator’s conduct fell within it. The district court failed to make such findings in this case, instead asking “only whether the drugs seized from Douglas were within the scope of the entire conspiracy.” That was the standard for substantive liability, not for attributing relevant conduct. The court refused to determine the relevant conduct attributable to Evans on appeal, calling it a “fact-intensive determine” that was “well outside our purview as an appellate court.” The court also held that the district court erred by imposing enhancements for both possession of a firearm and making a credible threat to use violence, noting that the later cannot apply if it is based entirely on the possession of a firearm.