Court Lacks Jurisdiction to Consider Subsequent Untimely Filed §2255 Motion

US v. Robinson: In 2002, Robinson was convicted of drug charges as well as a pair of §924(c) firearms charges, resulting in a total sentence or 960 months. He filed numerous motions after his case became final, including an approved second-or-successive §2255 motion. In 2019, the district court reduced his sentence under the First Step Act to 601 months in prison. In 2022, Robinson filed another §2255 motion, this time without permission from the Fourth Circuit, arguing that he could not be convicted on both §924(c) offenses. The district court denied Robinson’s motion (1) because Robinson did not have permission to file another successive §2255 motion the court lacked “jurisdiction” and (2) even if it did, the motion was untimely.

The Fourth Circuit granted a certificate of appealability only on the first issue – whether the First Step Act reduction order was a new judgment from which Robinson could file a §2255 motion without permission. In his opening brief, Robinson sought to expand the certificate of appealability to cover the timeliness issue as well, but the Fourth Circuit denied the motion.

Ultimately, the Fourth Circuit dismissed Robinson’s appeal for lack of jurisdiction. That was because given the narrow scope of the certificate of appealability the court could not reach the district court’s ruling on timeliness and therefore even if Robinson prevailed on the first issue the court could not provide any relief on the second. It rejected Robinson’s argument that the district court’s timeliness ruling was a nullity because it came after the district court concluded it lacked jurisdiction. The court concluded that the second-or-successive requirements in §2255 and §2244 were not actually jurisdictional (the district court used the term too loosely), but claims processing rules, which meant it had the authority to rule on the timeliness issue (which the Fourth Circuit had already declined to review).

Court Affirms Convictions and Sentences for Trio Charged With Smuggling Arms Into Cameroon

US v. Nji: Nji and his two codefendants were part of the “Peanut Project,” a “group dedicated to sending weapons and ammunition to Anglophone fighters in Cameroon who were battling the Francophone government’s forces.” To that end, another project member named St. Michel (who had served in the US military) set up a “lab” where project members would “clean, prime, and refurbish ammunition” and “assemble firearms” that were then smuggled out of the United States. The operation came to the attention of US officials when a shipping container bound for Nigeria was opened revealing more than 35,000 rounds of ammunition and 39 firearms, none of which had serial numbers (9 were “privately manufactured,” while the others had been obliterated in the lab). The defendants went to trial and were convicted of conspiracy, smuggling, and transportation of firearms with obliterated serial numbers. All were sentenced to 63 months in prison.

On appeal, the Fourth Circuit affirmed the convictions and sentences of Nji and his codefendants. Of particular interest, the Court rejected two of the defendants’ arguments related to evidentiary rulings at trial. First, the court found no abuse of discretion in the district court’s exclusion of their proposed expert witness, who would testify about the conflict in Cameroon, and “avoiding a distracting, collateral mini-trial about the nature and merits of the conflict.” Second, the court also found no abuse of discretion in the district court’s ruling excluding a pretrial statement of a coconspirator regarding St. Michel’s alleged assurance that there was “no need for concern” with the operation. The court concluded that the witness could still assert his Fifth Amendment privilege (he’d yet to be sentenced) and that the pretrial statement was not admissible under FRE 807 because it lacked guarantees of truthfulness (including that it contradicted the declarant’s statements made under oath during his guilty plea). Finally, the court rejected the defendants’ asserted Rogers error, holding that where the supervised release conditions at issue were fully set forth in the PSR and summarized by the district court at sentencing they were sufficiently “imposed.”

Court Affirms Naturalization Fraud Conviction

US v. Palmer: Palmer, a native of Jamaica, sought citizenship in 2011. As part of that process he was asked (in print and in person) whether he had “ever committed a crime or offense for which you were not arrested.” Palmer answered “no” and became a citizen. But in 2013, Palmer pleaded guilty to a statutory rape in North Carolina that occurred in 2008 – prior to his naturalization process. As a result, he was charged with naturalization fraud in 2021. After unsuccessfully moving to dismiss for preindictment delay and to exclude the evidence of his state conviction at trial, Palmer was convicted and sentenced to six months in prison (to be served concurrently with his state sentence) as well as have his citizenship revoked.

On appeal, the Fourth Circuit affirmed Palmer’s conviction. The court affirmed the denial of the motion to dismiss concluding that Palmer could not demonstrate any prejudice due to the delay. The potential testimony regarding his “cognitive challenges” from his mother – who passed away prior to the federal charges – was not sufficiently specific. The court also noted that there were other sources of similar testimony (friends, coworkers, other family members) and that the “jury hear no shortage of evidence about Palmer’s” challenges. The court affirmed the introduction of evidence relating to Palmer’s prior conviction as well, noting that a state conviction could only be challenged collaterally in such situations due to the complete denial of counsel, not (as Palmer argued) due to ineffective assistance. Finally, the court concluded that the district court did err in limiting the testimony of Palmer’s expert witness regarding his mental capacity, but concluded that any error was harmless.

Court Affirms Sentence In Spite of Delinquent Government PSR Objections

US v. Henderson: Henderson was the passenger in a taxi that was stopped in Charleston, West Virginia, after which 1.9 kg of “ice” methamphetamine was found in his bag. Following his arrest, Henderson made several phone calls from the regional jail that appear to show him (speaking in code) directing others on how to continue a drug trafficking operation, including telling one person (Cagle) what to do with several firearms. Henderson pleaded guilty to possession of 500 grams or more of methamphetamine.

In the initial PSR, the probation officer recommended a two-level enhancement for possession of a firearm in connection with the drug trafficking offense. Henderson objected in a letter to the probation officer and Government, to which the Government made no response. The probation officer agreed with Henderson and withdrew the recommended enhancement, a decision to which the Government made no objection.

In light of the Fourth Circuit’s decision in Jones, the district court asked for briefing as to whether Henderson might qualify for the safety valve. The Government used that opportunity to make untimely objections to the lack of the two-level gun enhancement, as well as a leadership enhancement, and to argue that Henderson should not receive credit for acceptance of responsibility. Henderson objected to the late objections and also argued that the enhancements should not apply. Ultimately, the district court applied the firearm and leadership enhancements, while awarding acceptance of responsibility, and sentenced Henderson to 188 months in prison (a downward variance based on the meth/ice disparity in the Guidelines).

On appeal, the Fourth Circuit affirmed Henderson’s sentence. Henderson’s primary argument was that the district court erred by considering the Government’s late objections, arguing that an invitation for briefing about the safety valve did not invite new objections to the PSR. The court disagreed and found no abuse of discretion in the district court considering the Government’s objections. In doing so, the court made it clear that “district courts have an independent obligation to properly calculate the applicable guideline range” and in “doing so, they aren’t limited to the parties’ arguments or the recommendations in the presentence report.” The court also rejected Henderson’s argument that the district court clearly erred in imposing the firearm enhancement.

NOTE: I was counsel on this case and argued it before the court. 

Court Affirms Denial of Motion to Suppress Relying on Findings Made by the District Court

US v. Coe: An officer saw Coe sitting in a car outside a convenience store known for “drug activity” and saw Coe holding what appeared to be plastic baggies with cocaine in them. The officer drew his gun, opened the car door, grabbed Coe as he started to get out and “pinned him to the car.” The officer holstered his gun and got his taser, after which Coe started to struggle and “threw the baggies in front of the car.” In the struggle, the officer saw a gun in Coe’s waistband. Coe unsuccessfully moved to suppress the firearm and entered a conditional guilty plea to being a felon in possession of a firearm.

On appeal, the Fourth Circuit affirmed the denial of Coe’s motion to suppress. The “centerpiece of Coe’s argument” is that the officer violated the Fourth Amendment by pointing his firearm at Coe “with no safety, with his finger on the trigger.” However, the court noted that the district court never made a finding that the officer pointed the gun at Coe while he had his finger on the trigger. Furthermore, Coe did not argue that the district court clearly erred in not making such a finding. As a result, “based on the findings the district court did make,” the court concluded that the officer did not violate the Fourth Amendment as it was “not constitutionally unreasonable” for him to briefing draw his gun under the circumstances. The court did note the officer’s “declared philosophy” during the suppression hearing that he always goes into a situation with his gun drawn (“because you never know what that person has”), stating that “is not the law, and we denounce such views in the strongest possible terms.”

Inmate Cannot Receive First Step Act Credit If Any Part of Sentence Is For Excluded Offense

Bonnie v. Dunbar: In 2005, Bonnie pleaded guilty to a drug offense and using a firearm in relation to that offense under 18 U.S.C. §924(c). He began serving a term of supervised release in 2017. In 2021, he was sentenced to 120 months in prison on new drug charges, as well as a consecutive term of 24 months in prison for revocation of his term of supervised release. Bonnie sought time credits under the First Step Act, which the Bureau of Prisons denied because §924(c) sentences (which Bonnie’s revocation was) were ineligible for such credits, rendering his entire sentence ineligible. Bonnie sought relief in the district court, which was denied.

On appeal, a divided Fourth Circuit affirmed the denial of Bonnie’s motion in the district court. The issue was how to handle aggregate sentences which included both eligible First Step Act offenses – Bonnie’s new drug sentence – and ineligible ones – Bonnie’s revocation (§924(c)) sentence. The court rejected Bonnie’s arguments that his sentences should be treated separately, relying on 18 U.S.C. §3584(c), which requires the BOP to treat multiple terms of imprisonment as “a single, aggregate term of imprisonment.” The court also noted that the First Step Act eligibility provision excludes “a prisoner” with certain convictions, not “a sentence.”

Judge Wynn dissented, arguing that the “text and purpose of the First Step Act . . . makes clear” that Bonnie is entitled to time credits on the eligible portion of his sentence.