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.

Court Affirms “Prohibited Person” Status at Sentencing in Firearm Case, Finds No Plain Bruen Error

US v. Claybrook: Claybrook broke into a sporting goods store and stole several firearms, two of which were recovered from his home. At the same time, in his car, officers found six grams of methamphetamine. After a federal indictment for possession of stolen firearms was obtained and Claybrook was arrested, officers found marijuana in his home. At sentencing, his base offense level was increased due to the fact that he was a “prohibited person” at the time he possessed the guns because he was an unlawful user of drugs. Claybrook objected to that designation on a factual basis, but was overruled. The district court sentenced him to 70 months in prison, an upward variance.

On appeal, the Fourth Circuit affirmed Claybrook’s sentence. While taking note that the “legal contours of ‘unlawful user’ of a controlled substance are not well defined within the statute,” the court found the district court’s conclusion that Claybrook was one was not clearly erroneous. The record included not just the drugs recovered from Claybrook’s car and home, but his statements during the presentence interview that he “was addicted to marijuana and had been smoking the substance on a daily basis” until his arrest. The court also rejected a challenge to the vagueness of the unlawful user statute, 18 U.S.C. § 922(g)(3), noting that Claybrook’s conduct “falls squarely within the confines of the disputed statute.” Claybrook also argued that § 922(g)(3) was unconstitutional in light of the Supreme Court’s decision in Bruen. Applying plain error review, the court concluded that, at the very least, a contrary conclusion was not “plain” (without addressing first whether it was error).

Court Affirms Denial of Compassionate Release on § 3553(a) Grounds

US v. Centeno-Morales: Centeno-Morales was convicted in 2015 on gun and firearm charges and sentenced to a total of 180 months in prison. In 2021, he filed a pro se motion for compassionate release based on his poor health and the increased risks related to COVID-19 in correctional facilities. He later supplemented the motion after the death of his wife, arguing that his son was now without a primary caregiver, an additional reason for relief. The Government conceded this constituted “extraordinary and compelling” reasons for relief, but argued Centeno-Morales should not be released based on the relevant sentencing factors from 18 U.S.C. § 3553(a).

On appeal, the Fourth Circuit affirmed the denial of Centeno-Morales’s motion for compassionate release. In doing so, the court noted the “broad discretion” that courts have in resolving such motions. In particular that is the case for judges who were the same judge that sentenced the defendant initially, as happened here. The court concluded that the district court did not overlook any of Centeno-Morales’s arguments and was not required to refute each one in detail. In addition, the court’s discussion of the § 3553(a) factors was sufficient.