Rogers/Singletary Error Really Requires Full Resentencing

US v. Mathis: In 2016, Mathis was convicted on numerous counts related to robbery and racketeering. In 2021, after a remand after one count was vacated on appeal, Mathis was sentenced to four concurrent life sentences (plus 48 years in prison) along with a term of supervised release. While recognizing that it was unlikely that any conditions of supervised release would ever come into effect, the district court imposed a condition requiring Mathis to submit “to warrantless search and seizure to ensure compliance with these conditions.” In the written judgment, however, that condition was expanded as to its scope and required him to notify third parties that their premises may be subject to search as well.

On appeal, the Fourth Circuit reluctantly vacated Mathis’ sentence and remanded for the third imposition of sentence in this case. There was no real disagreement among the parties that the written judgement expanded the condition applied at sentencing and therefore violated Rogers and Singletary. However, the parties did have different positions on a remedy. Mathis argued for the entire search condition to be struck, while the Government argued that the court should strike the portions of the condition in the written judgment that didn’t match the orally pronounced condition. Ultimately, the court concluded that Rogers and Singletary provided only one remedy in such situations – a complete resentencing (even in a case like this where supervised release conditions are mostly theoretical questions).

Fingerprint on Moveable Object Sufficient for Probable Cause

US v. Darosa: A metal and jewelry store in Charlotte was robbed at gunpoint. The owner of the shop said he’d seen a man “in a black mask and gloves at the door . . . writing in a small, black notebook.” In addition to taking some merchandise from the store, the robber also took the owner’s backpack, which contained a firearm. The notebook was left behind and seized at the scene. Police eventually got a warrant to search Darosa’s home, where they found incriminating evidence (including the stolen firearm). After unsuccessfully moving to suppress the evidence found during that search, Darosa was convicted at trial.

On appeal, the Fourth Circuit affirmed Darosa’s conviction. Specifically, with regard to the search warrant, the court found it was supported by probable cause. Darosa argued that the warrant was largely based on a fingerprint found on the notebook and that was insufficient, given the court’s prior decisions cautioning reliance on fingerprints on easily moveable objects. The court agreed that caution was appropriate, but noted that those cases involved sufficiency of the evidence at trial, and thus proof beyond a reasonable doubt, rather than the much lower burden of probable cause. Thus, it did not render the warrant insufficient. Even if it had, good faith would have saved its execution.

Guideline Commentary Applies to “Crime of Violence” Definition

US v. Campbell: While on supervised release in 2014 (following convictions for Hobbs Act robbery and using a firearm in connection with that offense), Campbell tried to rob someone during a drug deal and promptly shot the guy twice (once in each foot). Campbell’s term of supervised release was revoked, with the probation officer concluding this was a Grade A based on Campbell’s admission that he had engaged in attempted robbery which was a crime of violence. Campbell received a sentence of 28 months in prison (to run consecutively to a 120-month sentence on new charges).

On appeal, the Fourth Circuit affirmed Campbell’s sentence. He argued that, under an earlier Campbell decision, his attempted robbery conduct was not a “crime of violence” because it was attempt and inchoate offenses were only included in the definition of that term by the commentary. The court disagreed, distinguishing between the definition of “controlled substance offense” (at issue in the prior Campbell decision), with which the commentary was contradictory, and “crime of violence,” which at the time included a still-operative residual clause.* In the latter case, the commentary was consistent with the residual clause and therefore still applied.

* The clause was removed in 2016, making this case (which hung around a long time on appeal while other cases were decided) a kind of outlier in the modern Guideline landscape.

Period of Incompetency Excluded from Speedy Trial Act Calculations

US v. Minton: Minton was charged with being a felon in possession of a firearm “after an episode that started with him knocking on a stranger’s door to ask for a drink of water and ended with him pulling a gun.” Minton was charged on December 16, 2019, but found incompetent on June 11, 2020. After being transported for treatment, the district court held that Minton’s competency had been restored on September 27, 2021. Minton unsuccessfully moved to dismiss the indictment under the Speedy Trial Act and was ultimately convicted.

On appeal, the Fourth Circuit affirmed the denial of Minton’s motion to dismiss. The issue was a “pure question of law” – specifically, “how much of the 473-day period” between the incompetency/competency determinations “is included in the Speedy Trial Act calculation.” The court concluded that none of it was, based on the portion of the Act excluded any delay “resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial.” That provision is “absolute” and did not support Minton’s invocation of another provision that might exclude the 139-day period while he was waiting to be transported for treatment.

If It’s Error for Judge, Not Jury, to Determine Whether Prior Is “Serious Drug Felony” It Was Harmless

US v. Lee: Lee was charged with multiple drug and firearm charges, including a pair of drug charges with enhanced mandatory minimum penalties if he had a prior conviction for a “serious drug felony.” Pursuant to 21 U.S.C. §851, the Government filed an information seeking such enhancements based on a prior New York conviction. Both Lee and the Government took the position that the jury, not the district court, had to find the facts necessary to determine whether that offense was a “serious drug felony” (specifically whether Lee had served a term of more than 12 months in prison and whether he had been released within 15 years of the current offense), but the district court disagreed. It made the necessary findings, concluded that the prior offense was a serious drug felony, and sentenced Lee to 340 months in prison (include 280 months each on the two serious drug felony counts).

On appeal, the Fourth Circuit affirmed Lee’s sentence. Assuming, without deciding, that Lee and the Government were right that the jury should have found the necessary facts, the court concluded that any error was harmless. Both factual elements were “uncontested and supported by overwhelming evidence.” It also appears, from the brief opinion anyway, that the increased statutory penalties didn’t have any real impact on the eventual sentence imposed.

Filing of Information Sufficient to Satisfy Statute of Limitations

US v. Briscoe: In May 2015, Briscoe was involved in a drug trafficking operation when one of his sources was arrested. He learned that his other source was told to sell Briscoe 80 grams of narcotics to raise money for bail. Rather than purchase the drugs, Briscoe stole them, shooting and killing his other source and her 7-year-old son. On May 26, 2020, Briscoe was charged via information with a last alleged date of conduct (possession with intent to distribute) of May 27, 2015. An indictment was filed on July 1 (two superseding indictments were filed later). After his motion to dismiss for violation of the statute of limitations was denied, Briscoe was convicted at trial of six counts, including two counts of using a firearm to cause murder and one count of killing a witness. He was sentenced to life in prison.

On appeal, the Fourth Circuit affirmed Briscoe’s convictions, rejecting several arguments. Of particular interest, the court concluded that there was no violation of the statute of limitations. All agreed that the indictment ultimately returned related back to the originally filed information, but Briscoe argued that because he did not consent to being charged by information that it did not “institute” proceedings as required. The court disagreed, joining several other circuits, in holding that an information does institute proceedings. The court also rejected Briscoe’s argument that police use of a cell site simulator violated the Fourth Amendment because the Maryland state law procedure used by the officer required the finding of probable cause by a detached judicial officer.

Remand Require for Consideration of Whether Change in Law Was “Extraordinary and Compelling” Reason for Compassionate Release

US v. Davis: In January 2013, Davis pleaded guilty to conspiracy to possess heroin with the intent to distribute it, was found to be career offenders, and ultimately sentenced to 210 months in prison (about the middle of the Guideline range). In 2021, he filed a motion for compassionate release, on two grounds: (1) that he was uniquely susceptible to COVID-19 and (2) that under US v. Norman he would no longer be considered a career offender. The district court denied the motion, finding that Davis was not particularly susceptible to COVID-19 and that the proper vehicle for addressing his career offender status was a §2255 motion. At any rate, the district court concluded, the relevant sentencing factors would not support a reduced sentence.

On appeal, a divided Fourth Circuit partially affirmed and partially vacated the district court’s ruling. As to the COVID-19 holding, the court affirmed, concluding that Davis’ argument was “unpersuasive” because he could not show that his risk of contracting the disease, or suffering a fatal case of it, was higher outside of prison than inside. As to the career offender argument, the court concluded that the district court erred in viewing Davis’ argument as an attack on his original sentence. Rather, the court concluded that after the Supreme Court’s decision in Concepcion that “changes in law are fair game in compassionate release motions.” Thus, the case had to be remanded for the district court to consider the impact of the changed law and whether it was an extraordinary and compelling reason for a reduction.

Judge Rushing dissented and would have affirmed the district court’s decision, concluding that the district court’s consideration of the required sentencing factors demonstrated that it had considered all of Davis’ arguments and had a reasoned basis for rejecting his request.

Court Affirms Convictions, Sentences in Multi-Defendant Drug Racketeering Case

 US v. Hunt: Hunt and several codefendants were part of the “36th Street Bang Squad” in Virginia. They were charged with numerous counts related to drug trafficking, associated violence, and the use of firearms in connection to both. After a five-week trial, during which “the Government marshalled a mountain of evidence to support these charges,” the defendants were convicted “on most of the counts alleged in the indictment.” The defendants received sentences of between 180 months and life in prison.

On appeal, the Fourth Circuit affirmed the defendants’ convictions and sentence, rejecting numerous arguments. Of particular interest, the court provided additional analysis of the status of attempt offenses as “crimes of violence” after the Supreme Court’s decision in Taylor. As it did recently in US v. Lassiter, the court held that attempting to commit an offense that requires the actual use of force if completed is a crime of violence. The court also rejected the argument that three of the Government’s expert witnesses should have been excluded because their field of expertise – ballistics – is “categorically unreliable,” agreeing with the district court that such concerns went to the weight of the evidence, not its admissibility.

Abandonment of Bag Extinguishes Fourth Amendment Claim

US v. Frazer: The day after a shooting in Silver Spring, Maryland, a police officer saw two men – Frazer and Moore – walking through the area, each with “small black bags strapped across their bodies.” The officer thought that was suspicious, because the bags were useful for carrying firearms and easily disposable, but didn’t make contact with the men. Two weeks later, in the same area, the officer saw Frazer and Moore again, both with bags. After calling for backup, the officer decided to stop them for a “pedestrian violation” (they were walking down the middle of a road/apartment parking lot rather than on the sidewalks) – admittedly a pretext. When uniformed officers arrived, Frazer and Moore fled “through the apartment complex.”

Officers found Frazer and Moore in an open stairwell of one of the buildings and yelled for them to stop. Neither did, and instead “responded by climbing over the second-story railing of the stairwell.” Moore managed to escape (briefly), but Frazer, “who was hanging on to the second-story railing,” climbed back to the stairs and started walking down after the officer threatened to taze him. When ordered to drop the bag, Frazer “turned and walked away” to “the second-story railing where he had been dangling, took off his black bag, and threw it at least 40 feet away.” Frazer was arrested, the bag was seized, and a firearm recovered, along with some marijuana. He was charged with several firearm and drug offenses, and, after unsuccessfully moving to suppress the evidence found at the time of his arrest, was convicted of drug conspiracy, possession with intent, and being a felon in possession of a firearm.

On appeal, the Fourth Circuit affirmed the district court’s denial of Frazer’s motion to suppress. As to the stop itself, the court concluded that “Frazer’s headlong flight and noncompliance” with the officer’s commands “establish the necessary reasonable suspicion” to support the stop. The court noted that Frazer and Moore fled “while others in the community did not flee” and rejected Frazer’s argument that, as a Black man, he might have justification to run from police as being “without evidentiary support.” That is regardless of whether the “pedestrian violation” would have supported a stop in the first place. As to the search of Frazer’s bag itself, the court concluded that he “voluntarily abandoned the bag and that he lacks and Fourth Amendment standing to challenge the search.”

Illegal Reentry Prosecution Doesn’t Violate Due Process

US v. Sanchez-Garcia: This was a consolidated appeal for six defendants charged in the Middle District of North Carolina with illegal reentry. All filed motions to dismiss arguing that the illegal reentry statute, 18 U.S.C. §1326, was unconstitutional under the Due Process Clause due to the racially discriminatory purpose for its initial enactment. After hearing from expert witnesses on the matter, the district court denied the various motions to dismiss.

On appeal, the Fourth Circuit joined several other circuits in rejecting the Due Process claim. In doing so the court rejected the defendants’ argument that any racially discriminatory motive involved in passage of the 1929 predecessor to §1326 tainted the enactment of the modern statute in 1952. Specifically, the court concluded that the 1952 act was not simply a recodification of the original 1929 statute.