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.