Indictment for “Felonious” Rather Than “Forcible” Assault Not Defective

US v. Johnson: Johnson was in a car with fellow gang members who thought they wound up in pursuit of a car full of rival gang members – at whom Johnson shot eight times (nobody was hit or hurt). Turns out the car was actually driven by FBI agents. Johnson was charged with a discharging a firearm in connection with a crime of violence and assaulting federal officers in an indictment that charged they had been “feloniously” assaulted rather than “forcibly” assaulted, as 18 U.S.C. §111 states. Johnson was convicted at trial and sentenced to 198 months in prison.

On appeal, the Fourth Circuit affirmed his convictions and sentence. In particular, the court rejected Johnson’s challenge to the indictment. Johnson argued that the indictment was defective because, rather than use the “forcibly” language of the statute, it used the term “feloniously.” Applying plain error, court found there was no error because the indictment adequately put Johnson on notice of the charge against him, the district court instructed the jury properly (i.e., it used “forcibly” language), and the jury’s verdict on the firearm charge, which included a finding “that Johnson fired eight shots . . . inherently included a finding that Johnson assaulted the officers with force.” The Government conceded that there was error and it was plain, but argued Johnson’s substantial rights had not been violated, with which the court also agreed.

Defendant Sufficiently Alleged Facts to Require Hearing on §2255 Motion

US v. McNeil: In 2018, police, after observing a car stop in front of McNeil’s house, pulled the car over (“for an unspecified ‘regulatory violation’”) and “recovered a small bag of marijuana.” Police went back to McNeil’s home, knocked, and spoke to two “juvenile subjects” who said McNeil was not home. Officers then walked into the backyard to a “small shed” where they found McNeil and smelled marijuana. A search of the she uncovered money and firearms. McNeil pleaded guilty to drug and firearm charges and was sentenced to 114 months.

McNeil filed a §2255 motion arguing that he had received ineffective assistance of counsel because his trial counsel had failed to file a motion to suppress the evidence found in the shed and failed to engage in any plea negotiations with the Government. Without a hearing, the district court denied the motion, concluding that any motion to suppress would have been “frivolous” and that McNeil had affirmed he was happy with the performance of counsel during his Rule 11 hearing.

The Fourth Circuit reversed and remanded the case for an evidentiary hearing. On each basis that the district court denied relief the court concluded that the record was insufficient to determine whether McNeil’s claims had merit. Taking the facts set forth by McNeil in his motion as true, the court indicated that a motion to suppress may have had some merit, but that further factual development (including whether McNeil told counsel about relevant facts and whether counsel made a reasoned decision not to file such a motion) was required and the district court should have held a hearing. As to the plea negotiations, the court noted that portions of McNeil’s Rule 11 hearing involved multiple defendants answering questions at the same time and the record did not clearly demonstrate that McNeil expressed satisfaction with his counsel’s performance.

Remand Required Where District Court Failed to Address Defendant’s Disparity-Based Variance Argument

US v. Shields: Shields was arrested in West Virginia on an outstanding warrant from Ohio and found to be in possession of a firearm. He pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government objected that the probation officer had failed to enhance Shields’ base offense level by four levels for a prior Ohio conviction that met the definition of “controlled substance offense.” Shields conceded that he was unaware of any caselaw supporting a contrary conclusion, but argued in the alternative for a variance sentence within the originally calculated Guideline range because had Shields sustained the same conviction across the river in West Virginia it would not have been a controlled substance offense under Campbell. The district court imposed a sentence of 51 months, the bottom of the Guideline range, without addressing Shields’ argument.

On appeal, the Fourth Circuit vacated Shields’ sentence and remanded for resentencing. The court noted that while the district court had addressed Shields’ prior conviction in the context of Guideline calculations, it did not go further and address Shields’ argument for a variance. That argument was not frivolous, as it was based on the need to avoid unwarranted disparities and that such disparities – produced when different states treat similar conduct different ways – “is the kind of disparity a district court could consider under §3553(a)(6).” The court also rejected the Government’s argument that any error was harmless.

NOTE: My office represented the defendant in this case.

17-Day Time-Served Sentence Substantively Unreasonable in Large ID Theft and Child Pornography Case

US v. Fitzgerald: Fitzpatrick created and ran an online marketplace that dealt with stolen identification information, to the point that “it became the largest English-language data-breach forum ever, featuring over 14 billion individual records.” Seizure of his devices led to the discovery of child pornography. Fitzpatrick eventually pleaded guilty to two counts related to trafficking in stolen identification information and possession of child pornography. After his guilty plea, while on bond, he violated numerous conditions of release by (among other things) using a VPN to connect with the internet and proclaim his continued innocence. Bond was revoked prior to sentencing. At sentencing, the district court imposed a term of time served (17 days) based on concerns about Fitzgerald’s age (21 years old) and mental health concerns (autism spectrum disorder), concluding that “this young man in general population I think would just be a disaster.”

On appeal, the Fourth Circuit vacated the sentence and remanded. The Government argued that the 17-day sentence was substantively unreasonable and the court agreed. It concluded that the district court had focused only on Fitzgerald’s age and mental health, without appropriate consideration of other sentencing factors, including deterrence and the seriousness of his offenses. In particular, the court rejected the district court’s reliance on non-record assertions that the Bureau of Prisons could not adequately treat Fitzgerald if sentenced to a term of incarceration.

Rejecting Plain Error Argument Where No Other Court Had Found Error

US v. Jackson: Jackson was an ear/nose/throat doctor in North Carolina who built a specialty performing ballon sinusplasty surgery (to treat chronic sinusitis). The procedure required a particular device that was “designed for single use and is labeled by the Food and Drug Administration as being approved only for single use.” Jackson and her staff used the devices repeatedly and created intense incentives for office staff to attract new patients/customers. Jackson was eventually charged with numerous offenses related to fraud, as well as “holding for resale adulterated medical devices” – the device used to perform the sinusplasty surgery. She was convicted on all charges and sentenced to 300 months in prison and $5.7 million dollars in restitution.

On appeal, the Fourth Circuit affirmed Jackson’s convictions and sentence. Of primary interest was Jackson’s challenge to her adulterated medical device count, on which Jackson made several arguments, most of which “are raised here for the first time on appeal.” Particularly, Jackson argued that, at most, she held the devices for use, but not for sale. Applying plain error because none of the argument presented below “challenge any aspect of the ‘held for sale’ element,” the court concluded that any error could not be plain. The only Circuit Court to have dealt with the issue rejected Jackson’s argument. Even if that decision was incorrect it means Jackson could not show an error that was “clear or obvious.” As the court noted, it had previously held that a district court does not plainly err when it follows the decision of another Circuit Court on an issue where the Fourth Circuit has not yet ruled.

Conviction for Engaging in a Child Exploitation Enterprise Can Be Based on Aggregation of Three Other Individuals Involved

US v. Kuehner: Kuehner (and others) was charged with knowingly engaging in a child exploitation enterprise, based on conduct online where he had “encouraged and pressured minors to post child sexual abuse material.” At trial, Kuehner argued that someone was impersonating him in these matters, but the court disagreed and found him guilty. He was sentenced to 20 years in prison and a 20-year term of supervised release.

On appeal, the Fourth Circuit affirmed Kuehner’s conviction. His primary argument on appeal focused on the requirement that to prove a child exploitation exercise the statute required that a defendant commits certain acts “in concert with three or more other persons.” Kuehner argued that each offense (of which there must be at least three) each required the participation of three or more other persons. The court disagreed, holding (in accordance with other Circuit Courts to consider the issue) that the three or more persons requirement can be satisfied in the aggregate.

Maryland Robbery Remains Violent Felony Under ACCA

US v. Shanton: After committing a pair of bank robberies in 2007, Shanton pleaded guilty to (among other things) two counts of being a felon in possession of a firearm. At sentencing, he was sentenced under the Armed Career Criminal Act on those two counts and received a total sentence of 608 months in prison. In an already pending §2255 motion, Shanton argued (after the Supreme Court’s decision in Johnson) that two of his prior convictions, for robbery in Maryland, no longer qualified as “violent felonies.” The district court disagreed and dismissed the §2255 motion.

On appeal, the Fourth Circuit affirmed the denial of Shanton’s §2255 motion. The court noted that in 2019 it had held that Maryland robbery still qualified as a violent felony after Johnson. Shanton argued that the Supreme Court’s decision in Borden rendered that decision inapplicable because robbery in Maryland could be committed with a mens rea or recklessness and thus not qualify as a violent felony. The court disagreed, holding that the mens rea of common-law robbery applies not only to the larceny element of the offense but to the use of force (or threat thereof) itself.

First-Time-On-Appeal Challenge to Factual Basis of Guilty Plea Rejected

US v. Pittman: In 2020 Pittman pleaded guilty to an information to aiding and abetting the malicious damage by fire of the Market House, a historic building in Fayetteville, North Carolina. Prior to sentencing, Pittman filed a motion to dismiss that count, arguing that 18 U.S.C. §844(f) required a nexus between federal financial assistance and the property damaged and that the information itself was invalid for failing to allege such nexus. Pittman did not move to withdraw his guilty plea. The motion to dismiss was denied and Pittman was sentenced to 60 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Pittman’s motion to dismiss, upholding his conviction and sentence. The court rejected Pittman’s argument, based on the Supreme Court’s decision in Class, that his guilty plea did not waive his challenge to the scope of the statute, holding that Pittman’s unconditional guilty plea “necessarily admitted that his conduct violated the statute.” While the unconditional guilty plea also arguably waived Pittman’s as-applied constitutional challenge to the statute, the court held that it “need not resolve that issue” because Pittman could not meet the requirements of plain error review. Specifically, any error that might have occurred was not plain.

Court Affirms Enhancement for Permanent Scarring, Vacates for Vulnerable Victim

US v. Thuy Luong: Luong, a native of Vietnam who became a United States citizen and was fluent in both English and Vietnamese, ran a nail salon in North Carolina. She hired Victim (it’s the only way she’s identified in the opinion), also a native of Vietnam who was not particularly fluent in English, to work at the salon, then subjected her to various forms of intimidation, extortion, and physical abuse. As a result, Luong was convicted at trial of forced labor. At sentencing, the district court imposed an enhancement for vulnerable victim and for permanent scarring, based on injuries Victim suffered at Luong’s hands. Luong was sentenced to 180 months in prison.

On appeal, the Fourth Circuit vacated Luong’s sentence. The court concluded that the district court had erred in imposing the vulnerable victim enhancement, holding that the findings the district court made were not sufficiently specific to Victim. Instead, the district appeared to believe it sufficient that Victim was part of a “susceptible class” (an immigrant with limited English fluency) without “any particularized facts about the impact of that culture on the Victim.” Nor was there sufficient evidence in the PSR to show what “made the victim unusually vulnerable and why.” However, the court also concluded that the enhancement for permanent scarring was appropriately applied, finding the district court’s findings – based on Government assertions made a year prior to sentencing – were sufficient. The court remanded the case for resentencing.

Probable Cause Supported Arrest, In Spite of Misidentification

US v. Mayberry: Davis was the passenger in a car that was pulled over for speeding. He told officers that he was headed to a hotel to meet a man he knew as “Red” to purchase four pounds of methamphetamine. Officers showed Davis a picture of another man, Phillips, who he identified as Red. Using Davis’ cell phone, officers texted with Red, who was on his way to the hotel. Shortly thereafter, a pickup truck entered the parking lot and Davis got a text from Red saying that he had arrived.

The driver of the truck – Mayberry, not Phillips – got out (with a young child) carrying a red, white, and blue bag and entered the side door of the hotel. Officers intercepted Mayberry on the second floor, without the bag. The bag was found behind a door in the stairwell Mayberry had used. It was found to contain about 4.4 pounds of methamphetamine. After a motion to suppress was denied, Mayberry pleaded guilty to drug and firearm charges and was sentenced to 414 months in prison.

The Fourth Circuit affirmed Mayberry’s conviction and sentence. The district court rejected two arguments with regard to the motion to suppress. First, the court concluded that Mayberry’s statements made after his arrest should not have been suppressed because the police had probable cause to make the arrest. It specifically rejected Mayberry’s reliance on the fact that Davis identified someone else as Red, pointing to the accuracy of the other information Davis provided that was “supported independently by the officers’ real-time observations of Mayberry” after they started texting with Red. Second, the court agreed with the district court that Mayberry had abandoned the bag with the methamphetamine in it and therefore could not challenge its search.

Court Erred By Not Determining Scope of Jointly Undertaken Conduct

 US v. Bright: Bright was involved with others in the sale of drugs, largely using two middlemen to meet with the CI to whom Bright would eventually sell drugs. Along with seven others, Bright was indicted for conspiracy to possess with intent to possess multiple types of drugs, although Bright’s conduct was limited to fentanyl. Bright pleaded guilty. At sentencing, the district court imposed a three-level enhancement for aggravating role in the conspiracy, concluding that “the criminal activity involved five or more participants.” Bright argued only a two-level enhancement should apply since his conduct only involved supervising two others. The district court imposed a sentence of 97 months, the top of the resulting Guideline range.

On appeal, the Fourth Circuit vacated Bright’s sentence. Relying on last year’s decision in Evans, the court concluded that the district court had made the same error here, in that it failed to first determine Bright’s specific role in the conspiracy before determining the extent of the activity that he supervised. Nor did the district court make a determination that that conduct was “otherwise extensive,” as the enhancement required.