Same Result on Remand for SORNA Registrant Who Frequently Changed Residence

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 initially the Fourth Circuit affirmed Kokinda’s conviction and sentence, holding that the SORNA guidelines promulgated by the Attorney General were entitled to Chevron deference as to defining the ambiguous term “habitually lives.” The Supreme Court granted cert in the wake of Loper Bright, but on remand the Fourth Circuit reached the same conclusion. The court held that while the regulations are no longer entitled to Chevron deference, under Loper Bright they “provide an accurate construction of the law” and the jury instructions based on them were not erroneous.

Divided Court Affirms Supervised Release Revocation Where Defendant Proceeded Pro Se

US v. Walton: In 1994, Walton was convicted of multiple counts related to a conspiracy to distribute marijuana and sentenced to life in prison. “Shortly thereafter,” he was also convicted for jury tampering and given a consecutive 60-month sentence. Both sentences had terms of supervised release as well (13 years in total). In 2017, President Obama granted Walton clemency, reducing his total sentence to 387 months while “leaving intact and in effect that 13-year term of supervised release with all its conditions and all other components of the sentence.” Walton finished his term of incarceration in May 2021.

In February 2022, Walton was pulled over for speeding twice, with the second stop leading to the discovery of $26,000 in cash (“stuffed inside a teddy bear”) and a ledger that showed Walton was owed approximately $200,000 in drug proceeds. Walton explained that “he was collecting old drug debts . . . owed to him before he went to prison decades earlier.” He was convicted in Kansas for criminal transportation of drug proceeds, after which his home in West Virginia was searched, leading to the discovery of 13.5 pounds of marijuana. He was charged in West Virginia with possession with intent to distribute the marijuana.

Based on all this, Walton’s federal probation officer filed a motion to revoke his term of supervised release. Prior to the revocation hearing, Walton filed a pro se motion seeking to represent himself during his revocation proceedings. He also made substantive arguments as to the nature of the state offenses and whether the court had jurisdiction to revoke him. Walton’s appointed counsel also moved to withdraw because Walton would not speak to him. Newly appointed counsel appeared with Walton at the revocation hearing, but was unsure as to his role. Walton told the district court that he wanted to proceed “without counsel. Stand-by counsel, yes, sir” and the hearing proceeded in that manner. Walton admitted the violations, but renewed his jurisdictional argument. The district court held that it had jurisdiction, ordered Walton’s term of supervised release revoked, and imposed a sentence of 60 months in prison (in addition to additional terms of supervised release).

On appeal, a divided Fourth Circuit affirmed Walton’s revocation and sentence. First, the court addressed Walton’s jurisdictional argument – that his sentence was a “Presidentially commuted sentence, not a judicially imposed sentence.” The court disagreed, noting the language in the clemency order specifically keeping in place the terms and conditions of supervised release. Second, the court held that the district court did not abuse its discretion in allowing Walton to proceed pro se during his revocation. That standard of review applied because there is no Sixth Amendment right to counsel during revocation proceedings. Here, the court held, Walton made clear (multiple times) that he wished to represent himself and explained the large amount of legal work he had done while incarcerated. Finally, the Court held that Walton’s sentence was not plainly unreasonable because he understood the alleged violations, the violations were graded correctly (even though the court recognized Walton failed to make a timely Campbell argument as to them), and that the district court adequately explained the basis for the sentence it imposed.

Judge Gregory concurred in part, but mostly dissented. Agreeing only that the court had jurisdiction over Walton’s revocation, Judge Gregory argued that Walton “did not knowingly and voluntarily waive his right to an attorney,” which was enough to reverse, but that the “supervised release revocation hearing was riddled with procedural errors” as well.

Evidence of Ineffectiveness Not Sufficient to Prevail on Direct Appeal

US v. Richardson: Richardson was involved in the distribution of methamphetamine. After a traffic stop, police went to his home to execute a search warrant where they found drugs, cash, and a shotgun in a car parked on the property. Richardson pleaded guilty to conspiracy and possession with intent to distribute methamphetamine pursuant to a plea agreement where he agreed to give up his right to appeal his sentence “on any ground,” aside from ineffective assistance of counsel or prosecutorial misconduct. He was sentenced to 240 months in prison, in the middle of a 210-262-month advisory Guideline range.

On appeal, the Fourth Circuit partially dismissed Richardson’s sentence and otherwise affirmed his sentence. Richardson raised two issues related to a two-level enhancement for possession of a firearm (the shotgun) during commission of the offense. The court concluded that the first issue – whether the enhancement was properly applied – was clearly precluded by the appeal waiver and was dismissed. The court then concluded that the second – that Richardson’s counsel was ineffective for failing to object to the enhancement – could not meet the high standard for finding ineffectiveness on direct appeal, as the record showed that the enhancement was properly applied, or at least did not show counsel was “unequivocally wrong” in failing to make the objection.

Delays in Warrant Executions Does Not Violate Fourth Amendment in CSAM Case

US v. Krueger: Police detected an IP address uploading and downloading child sexual abuse material (“CASM”) that they tracked to Krueger in January 2019. Eleven months later, in November, Virginia authorities obtained a search warrant and executed it, seizing devices that contained evidence of CSAM. In July 2022, the state case was dismissed after Krueger prevailed on a motion to suppress based on state procedural rules. In September 2022, federal investigators obtained copies of the devices (the originals still being held by the state) and executed a second search warrant. Krueger unsuccessfully moved to suppress.

On appeal, the Fourth Circuit affirmed the denial of Krueger’s motion to suppress, rejecting two arguments rooted in delay in executing the warrants. First, Krueger argued that the 11-month delay in obtaining and executing the state warrant meant the evidence generating probable cause (which he agreed was there) had gone stale. Applying now long-settled precedent, the court held that CSAM evidence rarely goes “stale” and the evidence did not show that it would have been in this case (there was evidence to suggest Krueger was a “collector” based on repeated uploads/downloads). Second, Krueger argued that the federal investigators unduly delayed searching the devices, either during the years while the state case was pending or the months after the state case was dismissed. The court disagreed, holding that Krueger’s argument failed regardless of the delay because the original devices were always in state custody (the feds got copies) and Krueger never sought their return, so any delay did not interfere with his rights in the property.

Jury Instruction Allowing Intent to Be Inferred from How Fraudulent Transactions Are Carried Out Appropriate

US v. Sanders: Sanders owned a company that contracted with the Government to provide IT equipment and services, but did so fraudulently. In one case he accepted payment for equipment never delivered. He falsely claimed to deliver equipment that was new and under warranty and that he was certified by the companies who built the equipment. When his company’s substandard work was discovered, he set up another one and continued on. He was charged with several counts related to wire fraud and convicted at trial, after which he was sentenced to 45 months in prison (one month below the bottom of the advisory Guideline range).

On appeal, the Fourth Circuit affirmed Sanders’ convictions and sentence. As to his convictions, Sanders argued that the district court had erred in instructing the jury that it could infer intent to defraud from “the secretive or irregular manner in which a transaction is carried out.” While recognizing that the instruction, standing alone, “could risk run the risk of confusing the jury,” in the context of the other six instructions that addressed intent (none of which Sanders challenged) there was no error. As to sentencing, the court rejected Sanders’ argument that the district court erred by imposing an enhancement for sophisticated means. The court concluded that the Guideline provision was genuinely ambiguous, but that the commentary properly defined the scope of “sophisticated means.” Sanders’ conduct, which included several “relatively straightforward and unsophisticated” steps, fell within that scope because of “the way all the steps were linked together.”

Yearslong Delay In State Post-Trial Proceedings Moot Because of Decisions During Pendency of Appeal

Hicks v. Frame: Hicks was convicted of first-degree murder in West Virginia and sentenced to life in prison in 1988. While his direct appeal was still pending, in 1989, he filed a motion for a reduced sentence, which sat for eight years without activity. In 1997, he filed a motion in state court for habeas corpus relief which was assigned to a judge who had been one of the prosecutors in Hicks’ case. In the years since nothing had come of Hicks’ pending motions, through a combination of judicial turnover (five judges have been assigned to his case, including two of his former prosecutors), attorney turnover (several attorneys appointed to represent Hicks did nothing for years before being replaced), and issues gathering the trial transcript.  In 2021, Hicks filed a §2254 motion in federal court, arguing that he should be excused for not exhausting state remedies due to the lengthy delay. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Hicks’ §2254 motion, although on a different basis that the district court. Limiting the issues (due to the wording of the certificate of appealability) to whether the state process was ineffective to protect his rights, the court noted that by the time of oral argument the state court, at long last, had ruled on (and denied) Hicks’ pending motions. Because the inquiry as to the ineffectiveness of state proceedings is prospective, rather than retrospective, it was controlling that Hicks’ case had been ruled upon in state court, regardless of the decades-long delay in getting there.

District Court’s Statement It Considered All Sentencing Factors Satisfies Need to Explain Basis of Sentence

US v. Solis-Rodriguez: S-R was involved in two incidents with a gun, the first when he was just in possession of it, the second when he shot someone in the hand. As a result, he was charged with two counts of possession a firearm as an undocumented alien. At the plea hearing before a magistrate, S-R was informed that the statutory maximum for his offenses was 10 years in prison – not 10 years each. After pleading guilty, S-R was sentenced to 180 months in prison, just below the top of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed S-R’s conviction and sentence. As to the conviction, the court found that while the failure to ensure S-R knew that each charge against him carried a 10-year maximum sentence and that the error was plain, it concluded S-R could not show he was prejudiced by that error because he could not prove that he would have not pleaded guilty had he known that information. As to the sentence, the court concluded that the district court sufficiently addressed S-R’s arguments for a lesser sentence. S-R had presented arguments based on his youth and lack of criminal history. While the district court did not specifically address those, it did (twice) ensure it had considered all the §3553(a) factors before focusing on other factors it found “particularly important” (the nature of the offenses). The court also noted that the district court asked counsel after sentence was imposed if there was “any legal reason why this sentence as proposed should not be imposed,” thus “offer[ing] both parties an opportunity to raise concerns with the sentence.”

Judge Traxler concurred in the judgment, arguing plain error was the proper standard of review of the sentence because “defense counsel’s silence in the face of that question” about whether there was any reason not to impose the “proposed” sentence “operated as a forfeiture of defendant’s argument.”

Court Affirms Medicaid Fraud Convictions and Sentence

US v. Booker: Booker ran two companies, one that provided substance abuse treatment and another that provided drug testing services, for which he billed Medicaid. He developed a scheme in which he partnered with two other organizations to provide “patients” who were drug tested (and Medicaid billed as a result) even though such tests were not medically required. Booker was tried and convicted of conspiracy, violating the Anti-Kickback Statute, and money laundering. He was sentenced to 200 months, a light variance from the 210-262-month Guideline range.

On appeal, the Fourth Circuit affirmed Booker’s convictions and sentence. After concluding that there was sufficient evidence to support Booker’s convictions, the court turned to a pair of his arguments regarding evidentiary issues. First, the court concluded there was no error in the district court allowing the Government to question a witness about the results of a state administrative audit of Booker’s companies because Booker (who represented himself) opened the door for such questions during his cross examination of the witness. The court also concluded that even if the audit findings were testimonial there was no Confrontation Clause issue because they were presented to prove that Booker (and others) had notice of the results, not the truth of the results themselves. Second, the court concluded that admission of evidence that Booker deposited $1 million in his personal bank account the same day the same amount was removed from his company’s account was not unduly prejudicial and “highly probative of Booker’s intent or motive to commit Medicaid fraud.”

Court Reinstates Guilty Verdicts In Healthcare Fraud Case

US v. Elfenbein: Elfenbein was a doctor who ran an urgent-care clinic in Maryland. When COVID hit he reconfigured the business into a drive-thru COVID testing operation, with patients being there only for a few minutes. Elfenbein billed insurance for these visits using a billing code that indicated COVID was “a condition likely to result in a high risk of morbidity without treatment” rather than a more mundane condition. For five patients, the Government alleged that Elfenbein inflated the billing code and doctored medical records to support the code. He was tried on five counts of healthcare fraud, for which the jury found him guilty. The district court, however, granted Elfenbein’s motion for acquittal after trial, holding in the alternative that he was entitled to a new trial, concluding that the Government had not proven that Elfenbein’s reading of the billing guidance in terms of the codes had been unreasonable.

On appeal, the Fourth Circuit reversed the district court’s granting of the motion of acquittal, but affirmed the grant of a new trial. The court concluded that there was sufficient evidence from which a jury, “armed with a dose of common sense,” could conclude that COVID did not have a high risk of morbidity, noting that Elfenbein himself testified that “for the vase majority of our COVID patients . . . it was very low, minimal or low risk.” The court also noted that the treatments prescribe for those who tested positive “matched his low-risk assessment.” Testimony from Elfenbein’s employees backed up that assessment. As to Elfenbein’s argument that his statements were not false because they were based on reasonable interpretations of the codes at issue, the court held that “it is the jury’s job to decide . . . which interpretation is better.” That said, the court found no abuse of discretion in the district court’s grant of a new trial, noting that while “the jury had enough evidence to convict Elfenbein . . . it got that evidence in an unusual way” – that is, largely through defense witnesses  (“at the close of the government’s case-in-chief, the jury had little of the key evidence”).

Court Reverses Mortgage Fraud Conviction for Insufficient Proof of Venue

US v. Mosby: Mosby, the former State’s Attorney for Baltimore, was preparing for retirement and looking to purchase homes in Florida. As part of that she made two pre-retirement withdrawals under a CARES Act provision (to avoid tax penalties) based on the claim she had “experiences adverse financial consequences” as a result of COVID-19 and used the proceeds to cover downpayments and closing costs on two properties. For the second, she also executed a “gift letter” stating that her husband would pay a $5000 shortfall on the second property, after which Mosby provided him with the money to pay her. As a result, Mosby was charged in Maryland with two counts of perjury (for the two CARES Act withdrawals) and two counts of mortgage fraud (one for each property). She had two trials, the first on the perjury counts, the second on the mortgage fraud counts; she was convicted on both perjury counts, but acquitted on the mortgage fraud count related to the first property and convicted on the count related to the second.

On appeal, a divided Fourth Circuit affirmed Mosby’s perjury convictions, but reversed her mortgage fraud conviction. On the perjury convictions, the court rejected Mosby’s argument that the questions on the CARES Act withdrawal forms related to her basis for the withdrawals was too ambiguous to support perjury charges, concluding that in context the questions were sufficiently clear. The court also affirmed the district court’s decision to allow the Government to present evidence as to how Mosby used the withdrawn funds as probative of whether she was in the condition required for the CARES Act benefits. However, on the mortgage fraud conviction, the court found that the proper venue for that offense was in Florida, where the actual transaction occurred, not Maryland, for preparations for the transaction took place and the jury was not instructed properly. As a result, there was insufficient evidence of that element to support a conviction.

Judge Niemeyer dissented on the mortgage fraud issue, arguing that the jury instruction was proper and there was evidence supporting venue in Maryland.

Sentencing Disparity Can Be “Extraordinary and Compelling” Reason for Sentence Reduction

US v. Johnson: In the 1990s, Johnson was part of a drug trafficking scheme during which he was involved with the killing of two people. He was arrested in 1997 and charged, with numerous charges, including two counts of murder in aid of racketeering,  along with two codefendants – Damein and Rickey – who were charged in one of the deaths. The codefendants both pleaded guilty, cooperated with the Government was received sentences of 20 years and 40 years in prison, respectively. In addition, Brown (the hitman used for the second killing) was ultimately charged and pleaded guilty, receiving a sentence of five years in prison. Johnson went to trial and was convicted of (among other things) of manslaughter in connection with one killing and aiding and abetting murder for the second. He received two life sentences, plus 790 months in prison.

In 2021, Johnson filed a motion for a reduced sentence under 18 U.S.C. § 3582(c)(1)(A) arguing that the disparity between his sentence and those of his codefendants (and Brown) constituted “extraordinary and compelling” reasons for a reduction. The district court granted the motion, concluding that disparities did warrant compassionate release.

On appeal, a divided Fourth Circuit affirmed the grant of relief in this case. The court concluded that such sentencing disparities can be the basis for a compassionate release motion, holding that the list of circumstances laid out in the applicable Guideline section was not exhaustive. After that, it was a question of whether the district court abused its discretion in granting relief, which the court held it did not.

Judge Niemeyer dissented, arguing both that such disparities are not a legitimate legal basis for such relief and that, even if they were, the disparities in this case were not sufficient, stressing the cooperation provided by Johnson’s codefendants (and Brown).

Non-NFA Weapons Not Relevant Conduct for NFA Violation Offense

US v. Simmons: Police executed a search warrant at Simmons’ home, where they found 10 unregistered firearms covered by the National Firearms Act, along with 33 other firearms. Also found was “evidence of unlawful drug use,” which Simmons admitted to later (he also tested positive). He pleaded guilty to possession of an unregistered machine gun – four “auto sears” required to be registered under the NFA. The probation officer recommended enhancements to Simmons’ offense level based on the number of firearms and that one of the firearms was stolen. In doing so, all the firearms recovered were considered, not just the 10 NFA ones. The district court overruled Simmons’ objections to the Guideline calculations, but ultimately imposed a downward variance sentence of 36 months in prison.

On appeal, the Fourth Circuit vacated Simmons’ sentence. Although the court did reject Simmons’ argument that his base offense level, elevated by being a “prohibited person” in possession of the firearms, violated the Second Amendment under Bruen, the court did agree that the district court improperly applied the enhancements by considering both NFA and non-NFA weapons. In doing so, the district court failed to find that the non-NFA weapons were either part of the “offense of conviction” (they couldn’t be) or relevant conduct (they weren’t). At bottom, Simmons’ possession of non-NFA firearms was not “relevant” to his possession of the NFA weapons. The court additionally concluded that the error, even in spite of the downward variance, was not harmless.

NOTE: I was counsel on the briefs in this case, which my colleague Lex Coleman argued.

Pennsylvania Drug Offense Fits Within Definition of “Controlled Substance Offense”

US v. Suncar: Suncar pleaded guilty to distribution of fentanyl. The probation officer classified him as a career offender based on two prior convictions from Pennsylvania for delivery of cocaine. Suncar argued that Pennsylvania state law defined delivery to include attempted transfer of drugs, which did not fit the definition of “controlled substance offense.” The district court disagreed and imposed the enhancement, although it ultimately imposed a downward variance sentence of 92 months in prison.

On appeal, the Fourth Circuit affirmed Suncar’s sentence. The court rejected Suncar’s reliance on an unpublished Pennsylvania court decision that suggested that the state offense included attempted transfer, concluding that the state supreme court would “reach a different result under the plain language of the statute.” The court then followed Third Circuit precedent that had held that the offense did qualify as a controlled substance offense as it did not include attempted transfers. The court also concluded that, even if it did, that was a completed offense, not an inchoate one subject to the rule of Campbell.

Divided Court Affirms Drug Convictions, Rejecting Competency Concerns

US v. Cabrera-Rivas: Cabrera-Rivas, who “likely has a learning disability . . . doesn’t speak fluent English” and has a third-grade education, nonetheless “had a side business peddling” cocaine. He met Hector – actually a Homeland Security confidential informant – and arranged for Hector to meet a “dude from Texas” who could sell him methamphetamine. After arranging the deal and bringing all the parties together, Cabrera-Rivas was arrested and charged with conspiracy to distribute and possession with intent to distribute methamphetamine.

Prior to trial, Cabrera-Rivas’s counsel moved for a competency evaluation. At a hearing before a magistrate judge, defense counsel testified about Cabrera-Rivas’s behavior and difficulty communicating with him and a paralegal testified about Cabrera-Rivas’s “anger issues.” The judge also considered a declaration from Cabrera-Rivas’s wife about his “irrational and violent behavior throughout their four-year marriage.” In response, a Government expert who had evaluated Cabrera-Rivas testified that he understood what he was charged with, various legal concepts (when explained in a “simplified” manner), and what the end result of his case might be (conviction and deportation). The magistrate judge found that opinion credible and concluded that Cabrera-Rivas had not shown he was incompetent. Cabrera-Rivas did not object to that decision and it was never reviewed by the district court.

Cabrera-Rivas was convicted on both counts after a jury trial. Following trial, Cabrera-Rivas filed a motion for a “retrospective competency hearing” arguing that Cabrera-Rivas’s conduct at trial (he testified in his own defense) “showed he was unable to comprehend the proceedings.” The district court denied the motion, based on its personal observations of Cabrera-Rivas’s testimony and conduct during trial and the lack of objection to any competency-related issue during trial.

On appeal, a divided Fourth Circuit affirmed Cabrera-Rivas’s convictions, primarily focused on the district court’s handling of Cabrera-Rivas’s competency issues.  The court first rejected the Government’s argument that because Cabrera-Rivas had not objected to the magistrate judge’s competency decision that the court lacked jurisdiction, concluding that an untimely (or absent) filing of objections does not divest the court of appeals of jurisdiction. As to the merits of that decision, the court concluded that there was no clear error in the magistrate judge’s crediting of the expert testimony over the evidence presented by Cabrera-Rivas, noting that the burden is on a defendant to demonstrate lack of competence, not on the Government prove competence.

Next, the court turned to the issue of whether a magistrate judge could “finally decide” the issue of competency. Noting that this issue was “important, but it wasn’t preserved,” the court applied plain error review and found none, noting both the lack of objection in the district court and failure to raise the argument in Cabrera-Rivas’s opening brief. The court rejected the framing that Cabrera-Rivas could not waive issues related to competency issues, concluding that that “isn’t at all what happened here,” where Cabrera-Rivas had a competency hearing, but “forfeited instead . . . his right to challenge the magistrate judge’s powers.” The court also held that there could be no prejudice (in the plan error analysis) because even if the magistrate judge had entered proposed findings and recommendations for the district court to adopt Cabrera-Rivas would have failed to object to those, too. The court also found no clear error in the district court’s denial of his post-trial motion.

Judge Wynn dissented on the competency issue, arguing that the majority “overlooks well-established precedent from the Supreme Court and this Court to deny Cabrera-Rivas the remedy that the Constitution compels – review of his competency by an Article III judge.”

Government Breaches Plea Agreement by Seeking Guideline Enhancements

US v. Craig: Craig pleaded guilty to being a felon in possession of a firearm, part of a plea agreement in which the Government agreed to dismiss three other drug-related counts. One provision of the plea agreement contained a stipulation of Craig’s conduct that addressed only his unlawful possession of a firearm. At the plea hearing, however, the a police officer testified (on cross examination) that the gun had been stolen. During the colloquy with the district court, the Government stated that the stipulation was the “total relevant conduct” for the case, an understanding that Craig said he shared.

The probation officer calculated the advisory Guideline range as 57 to 71 months, based on the nature of Craig’s prior convictions, but did not include any additional enhancements. The Government objected, seeking an enhancement because the gun was stolen and because it was possessed in connection with another felony offense (possession of drugs). The district court rejected Craig’s objections and applied the enhancements, boosting the Guideline range to 100 to 120 months (the statutory maximum) and imposing a sentence of 100 months in prison.

On appeal, the Fourth Circuit vacated Craig’s sentence, agreeing with Craig that the Government had breached the plea agreement when it advocated for the two Guideline enhancements. The provision in the plea agreement, along with the representations during the plea hearing, clearly limited Craig’s relevant conduct, even if the Government might have intended otherwise. Nor did another provision of the plea agreement allowing the Government to correct any inaccuracies, or its duty of candor to the court, apply since the Government went beyond any of that into advocacy for the enhancements.

Court Rejects Challenge to Illegal Reentry Removal Proceedings

US v. Castro-Aleman: Castro-Aleman fled political violence in El Salvador in 1973, when he was eight years old, entering the United States unlawfully. Over the hears he accumulated several criminal convictions (most for DUI, plus an identity theft charge) and, in 2016, was taken into ICE custody and subject to removal proceedings. When Castro-Aleman expressed fear of returning to El Salvador, the immigration judge told him he could apply for asylum and continued the hearing. When the hearing resumed, Castro-Aleman explained he had not completed the asylum paperwork because he could not get his father’s death certificate. The judge asked if Castro-Aleman wanted more time, but Castro-Aleman said no and asked for voluntary departure instead. The judge rejected that request and ordered Castro-Aleman removed and mentioned the possibility of appeal.

Castro-Aleman returned to the United States and was found in 2023 and charged with illegal reentry. He moved to dismiss the indictment, arguing that his removal proceedings had been flawed and therefore his removal was invalid. The district court disagreed and Castro-Aleman entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed the denial of Castro-Aleman’s motion to dismiss, holding he could not show that his removal order was “fundamentally unfair.” First, the court concluded (based on prior precedent) that Castro-Aleman had no constitutional right to be properly advised of his eligibility for discretionary relief and, therefore, it didn’t matter if the immigration judge had failed to adequately develop the record with regard to his asylum claim. Second, the court concluded that even if the immigration judge failed to adequately inform Castro-Aleman of his right to appeal the removal order that Castro-Aleman could not show prejudice because, based on his record, he would not have prevailed.

Court Rejects Ineffective Assistance Claim Related to Additional Offense

US v. Yelizarov: Y was charged with multiple offenses arising from a robbery and was presented with a plea bargain in which the Government promised not to seek a sentence higher than 40 years in prison and prevented local authorities from charging Y with anything related to the conduct set forth in the statement of facts. Y accepted. Afterwards, his counsel was told by the Government that Y was a suspect in an unrelated murder. Y told counsel not to try and resolve that charge along with the others, but he was reconsidering his plea. Ultimately, another plea bargain was negotiated that included a binding 30-year sentence and maintained the limitation on state prosecution. Y pleaded guilty and was sentenced to 30 years in prison. He was then charged separately with the murder, for which he received a consecutive sentence of 20 years. The district court rejected Y’s argument that he received ineffective assistance of counsel related to the plea negotiations.

On appeal, the Fourth Circuit affirmed the denial of Y’s ineffective assistance of counsel claim. Skipping to whether he had been prejudiced by any defective performance, the court concluded that Y had not shown that he would have decided not to plead guilty had he known that the subsequent murder charges had been brought. The court also affirmed Y’s 30-year sentence, holding that any appeal of it was barred by a valid appeal waiver, even after one of the charges had been vacated due to shifts in “crime of violence” law, given that it was a binding plea that specifically provided for such a contingency.

Court Affirms Gang Convictions Arising from Murder of Alleged Informant

US v. Ordonez-Zometa: Ordonez-Zometa and his codefendants, Hernandez-Garcia* and Ortega-Ayala, were charged with being a part of MS-13 and having participated in the murder of a teenage gang member that was believed (incorrectly) to have been talking to police. Ordonez-Zometa was the leader of this particular clique and ordered the murder, in which the others participated and assisted either in disposal of the body or cleanup of the murder scene. Each was charged with multiple offenses, including murder in the aid of racketeering. They were convicted at trial and sentenced to life in prison.

On appeal, the Fourth Circuit affirmed the defendants’ convictions. As to all three, the court concluded that the Government had sufficiently proved that the clique, and MS-13, had the required impact on interstate commerce to support federal jurisdiction. Noting that the standard is a “de minimis effect,” the court held that proven by evidence of the gang’s use of Western Union to collect dues and send them to El Salvador, along with the use of cell phones. As to Ordonez-Zometa specifically, the court concluded that the district court correctly denied his motion to suppress evidence obtained from the traffic stop that led to his arrest (based on the necessary suspicion), a statement he made to police after his arrest (not involuntary and, even if it was, any error was harmless), and evidence recovered pursuant to search warrants (supported by probable cause and sufficiently specific and, if not, good faith applied). As to Ortega-Ayala, the court affirmed the denial of his motion to suppress evidence retrieved from his phone for the same reason. Finally, as to Hernandez-Garcia, the court held that there was no error in the district court’s denial of his motion for a new trial based on testimony regarding an altered cell phone location expert report, holding that while the district court ruling on such motions could reweigh the credibility of witnesses, it was not required to do so.

* NOTE: I represented Hernandez-Garcia in this appeal.

Rapport-Building Section of Sex Abuse Victim Video Admissible

US v. Fergusson: While Fergusson was station in Japan working for the Department of Defense, his 11-year-old stepdaughter, JD, sent at text to her mother alleging that Fergusson had sexually abused her. JD’s mother took her and left the home and contacted investigators. As part of the ensuing investigation, JD was interviewed by an investigator with specialized training in conducting child forensic interviews. After an nearly 10-minute introductory section of rapport building and rule establishing between the interviewer and JD, JD restated the allegations against Fergusson. Fergusson was charged with sexual abuse and went to trial. At trial, after JD had been cross-examined, the Government was allowed to introduce the entire interview with JD into evidence. Fergusson was convicted.

On appeal, the Fourth Circuit affirmed Fergusson’s conviction. At issue was the first portion of the interview video, which Fergusson argued was inadmissible hearsay, not covered (as he agreed the rest was) by the hearsay exception for prior recorded statements. Noting that the record was unclear as to the precise basis on which the video was admitted, the court ultimately concluded that the challenged portion of JD’s interview was not hearsay at all because it was not presented for the truth of the matter asserted, but to show proper forensic interview techniques that went to the reliability of JD’s statements. In addition, the court held that that portion of the video was not more prejudicial than probative.

Court Clarifies Recent Guideline Amendments Involving “Extraordinary and Compelling” Basis for Sentence Reduction

US v. Crawley: In 2016, Crawley was sentenced to 188 months following a drug trafficking conviction, having been designated as a career offender. One of his predicate “crimes of violence” was a 2009 conviction for robbery in Virginia. Crawley unsuccessfully filed a pair of “compassionate release” motions under 18 U.S.C. § 3582(c)(1)(A) related to COVID. Then, following the Fourth Circuit’s decision in White, in which it held that Virginia robbery did not qualify as a “violent felony” under the Armed Career Criminal Act, he filed another motion, arguing that he would no longer be classified as a career offender and the resulting disparity between his sentence and what he would receive now constituted an “extraordinary and compelling” basis for relief. After the Sentencing Commission had amended the applicable policy statements, the district court denied Crawley’s motion.

On appeal, the Fourth Circuit affirmed the denial. First, the court decided that the amended Guidelines (which were more limited in terms of relief for such sentencing disparities) did apply, even though Crawley’s motion was filed before they took effect. The language of the relevant statutes are in the present tense, speaking to the responsibility of courts to apply the currently applicable policy statements. Second, the court decided that there was a sentencing disparity because White applied to the Guideline definition of “crime of violence” and, therefore, Virginia robbery no longer qualifies as a career offender predicate. Finally, however, the court concluded that Crawley was not eligible for relief, as the amended Guideline precluded sentencing disparity relief for those who had “served at least 10 years of the term of imprisonment.” The court held that time frame pointed to time actually served on a sentence, the length of sentence imposed, and thus it did not involve any calculation of good time or similar credits. Because Crawley had not served 10 years, he could not get relief.

Statement Taken by Prison Guard Beating Was Not Involuntary

US v. Purks: Purks was serving a sentence in Florida state prison when he was investigated, and eventually charged, in the Western District of Virginia with conspiracy and numerous substantive counts of distribution of methamphetamine. As part of the investigation, Purks was interviewed by a DEA agent while in state prison. Having been read his Miranda rights, Purks engaged in a “cordial” and “respectful” discussion with the agent, during which he declined to discuss particular topics. He was in a wheelchair and “would grimace and moan,” the result, he said, of a recent assault by prison guards. Purks later moved to suppress his statement as involuntary. The district court denied the motion, crediting the agent’s testimony that Purks never asked for a lawyer (Purks said he did) and concluding that the assault (assuming it happened as Purks described) did not involve any federal agents and thus could not taint his statement to the DEA agent. Purks was convicted at trial on all counts and sentenced to 300 months in prison.

On appeal, the Fourth Circuit affirmed Purks’ convictions. As to the statement, the court agreed with the district court, holding that the DEA agent complied with Miranda (assuming it applied in the first place) and that while Purks was “still recovering from the alleged beating” he “testified that he was not in so much pain that it clouded his understanding of what was happening.” In addition, no federal agents were involved in the beating and the statement itself showed they “did not grill Purks for hours attempting to wear down his will,” as evidenced by the fact that when he declined to discuss particular matters the DEA agent didn’t press the matter. The court also rejected Purks’ argument that venue was not proper in the Western District of Virginia, given that he was in Florida during the alleged offenses. Concluding that distribution of drugs is a continuing offense, the court concluded venue was proper in the locale where the drugs were eventually distributed or seized – here, the Western District of Virginia.

Misstatement In Oral Jury Instructions Does Not Lead to Constructive Amendment

US v. Contreras-Avalos: Castro-Aleman and two codefendants were charged with “various crimes related to their involvement in the transnational gang MS-13.” Specifically, they were charged with two counts of aiding and abetting a violent crime in aid of racketeering for their roles in a pair of murders (one of an alleged informant and the other of a rival gang member). During the oral presentation of jury instructions, the district court told the jury that on each of those counts the charge was conspiracy to commit those murders. The actual elements of the offenses were correct and the written charge that went to the jury was also correct. The defendants were convicted on all counts.

On appeal, the Fourth Circuit affirmed the convictions of Castro-Aleman and his codefendants. The court held that plain error was the proper standard of review, noting that the defendants did not object to the misread instructions, although they did “point one of them out – the government raised the other.” The court rebuffed the Government’s argument that invited error analysis applied, ultimately “choos[ing] not to decide” because the result was the same either way. That is because although there was error and it was plain, the defendants could not show prejudice, due to the correct explanation of the elements and the correct written instructions.

Search Broader Than Warrant Authorized Cannot Be Saved By Good Faith

US v. Ray: Ray, a sailor in the US Navy, was alleged to have sexually assaulted an 8-year-old boy while babysitting him. Part of the allegations was that Ray had shown the boy videos of adult pornography as a prelude to the abuse. The boy did not allege that Ray recorded the abuse itself. A NCIS agent sought a “command authorization for search and seizure” – CASS – the military equivalent to a search warrant authorizing the seizure of (among other things) Ray’s phone, on which the agent “intended to do a full extraction.” The CASS ultimately authorized the seizure of the phone, but not the search of it. Nonetheless, the phone was both seized and search, uncovering child sexual abuse material (CSAM), but related to the original allegations. Ray was ultimately charged with five counts, including possession of CSAM and sexual assault of other victims. Ray successfully moved to suppress the evidence recovered from his phone.

On appeal by the Government, a divided Fourth Circuit affirmed the grant of Ray’s  motion to suppress. The Government agreed that the warrant did not authorize a search of the phone, but argued that Leon’s good-faith exception applied, based on the theory that the warrant itself was defective due to a lack of particularity. The court disagreed, holding that there was no deficiency in the warrant at all – it just wasn’t as broad as the Government wanted it to be: “The CASS was no deficient. Law enforcement was. Accordingly, the good faith exception does not apply.”

Judge Rushing dissented, arguing that the “majority today creates an exception to the exception, under which a court need not consider the objectively reasonable basis for an officer’s mistaken belief in the legality of a search if the warrant did not actually authorize the search.”