Court Affirms Conviction, Death Sentence, Arising from Multi-State Spree

US v. Basham: Basham, along with a co-defendant, escaped from jail in Kentucky and embarked on a multi-state crime spree that stretched from Indiana to South Carolina. Along the way, the two kidnapped one man in Kentucky, who managed to escape, and two women in West Virginia and South Carolina, who were never seen again. Basham was finally apprehended in Kentucky. He was indicted in South Carolina for carjacking that resulted in death and kidnapping that resulted in death, along with other charges. After a jury trial, he was convicted of those offenses and sentenced to death.

On appeal, Basham raised six challenges to his conviction and sentence, all of which the Fourth Circuit rejected. Each involves a detailed set of facts that cannot be reported here.

First, Basham argued that the district court should have granted his motion for a new trial when it came to light that the jury foreperson had contacted various local news outlets during the trial. Relying on the evidence developed during countless hearings on the matter, the court concluded that the district court had not abused its discretion in concluding that the Government had rebutted the presumption that the juror's actions were prejudicial.

Second, Basham argued that the district court erred by removing his initially appointed counsel because they might have to be witnesses during trial (due to their role in some searches for the victim's body once Basham was arrested). The court concluded that the district court did not abuse its discretion, even though it later ruled that the testimony of those counsel was not admissible at trial.

Third, Basham argued that the district court erred by allowing the Government to introduce certain "bad act" evidence during the guilt phase. The court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.

Fourth, Basham argued that the district court erred by admitting certain evidence at the penalty phase. As with the trial evidence, the court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.

Fifth, Basham argued that the district court erred by not including the "catch all" mitigator on the verdict form for the penalty phase. The court concluded that, in light of the instructions informing the jury of its ability to rely on any mitigating factor, that the absence of the catch all from the form was not error.

Finally, the court concluded that Basham's sentence was not imposed "under the influence of passion, prejudice, or any other arbitrary factor."

New DNA Evidence Allows Plea Withdrawal

US v. Thompson-Riviere: Thompson-Riviere pleaded guilty to being an alien who illegally reentered under 8 USC 1326(b)(4) after being deported to his native Panama. He was born in the Canal Zone in 1965. After entering the plea, however, he learned from a newly discovered relative that his actual father was an American citizen. If that was the case, Thompson-Riviere would also be an American citizen and, thus, could not be an "alien" under 1326 (b)(4) and could not be guilty of the offense. He sought to withdraw his plea, but the district court refused to allow him to do so. Thompson-Riviere was sentenced to 87 months in prison.

On appeal, the Fourth Circuit reversed and remanded for further proceedings. The focus of the court's analysis was one of six factors to be considered when a defendant seeks to withdraw his guilty plea, "whether the defendant has credibly asserted legal innocence." The court concluded that the district court abused its discretion in concluding such an assertion had not been made. After a careful analysis of the relevant statutes and a Second Circuit case that dealt with the same language, the court concluded that Thompson-Riviere's evidence, if believed, would render him not guilty of the offense.

Congrats to the Defender office in the EDVa on the win!

Search, Conviction Upheld, Sentence Vacated in Drugs/Guns Case

US v. Perry: Perry was convicted on drug and gun charges following both a search of his home and a series of controlled buys. Perry unsuccessfully sought to suppress marijuana and firearms found during the search as well as incriminating statements made that day. He was convicted (but not on all counts) after a jury trial and sentenced to 230 months in prison.

On appeal, Perry made several attacks on his conviction, all of which the Fourth Circuit turned away. First, Perry argued that the marijuana and firearms found during the search of his home should have been suppressed because those objects were not specified as the targets of the warrant and the warrant was not supported by probable cause. The court concluded that there was sufficient probable cause to justify the search and that the warrant covered both "other controlled substances" and "firearms and weapons," thus the seizure was within its scope.

Second, Perry argued that statements he made while the search was ongoing should have been suppressed. Specifically, he argued that he was seized by police and not properly Mirandized when they came to his place of employment and drove him back to the house. The court affirmed the district court and concluded that it had not abused its discretion in concluding that Perry was not seized at that point and thus no Miranda warnings were needed. Third, Perry argued that there was not sufficient evidence to support a conviction under 924(c) based on firearms found in his home. The court disagreed, noting the proximity of the firearms to the marijuana in the house as well as concluding that the guns were part of Perry's plan to "protect his business dealings" along with the video surveillance system used at the house.

Finally, the court rejected Perry's arguments that the 924(c) conviction amounted to an impermissible amendment of the indictment and that the jury instructions on that count were flawed.

As to Perry's sentence, the court turned away Perry's argument that the district court erred by using acquitted conduct as a basis for determining his Guideline range. However, the court did remand Perry's sentence for reconsideration in light of Kimbrough, given that Perry unsuccessfully argued for a variance from the crack-related Guideline range based on the inequities inherent in the 100-to-1 powder/crack ratio.

Court Reverses SORNA Convictions

US v. Hatcher: This case was a consolidated appeal of several cases where the defendants were convicted of violating the Sex Offender Registration and Treatment Act ("SORNA") by travelling interstate without properly updating their registrations as sex offenders. The defendants all shared the common traits that: (a) they were convicted in state courts of sex offenses in states that require registration; (b) they served their sentences and were released from prison before SORNA was enacted; (b) the travel which took place and became the basis for the charges against them took place after SORNA was enacted, but prior to July 27, 2006. That date is crucial, because that it when the Attorney General promulgated regulations under 42 USC 16913(d) setting forth how particular groups of sex offenders could comply with SORNA. All the defendants moved to dismiss their indictments on several grounds, all of which were denied.

On appeal, the Fourth Circuit reversed,2-1, but narrowly. The court avoided issues of congressional authority, ex post facto, and due process violations by concluding that the defendants weren't covered by the terms of SORNA due to the timing of the events in their cases. Section 16913(d) delegates to the Attorney General the authority to determine how SORNA will apply to those who cannot comply with its requirements going forward, i.e., before their release from prison. The court concluded that a plain reading of that delegation showed that until the Attorney General promulgated regulations, SORNA did not apply to people like the defendants who were already out of prison. There is a circuit split on this issue, with the Eighth and Tenth Circuits finding that the language is ambiguous and interpreting SORNA to apply in such cases. The Fourth joins the Eleventh Circuit in holding otherwise.

Judge Shedd dissented, arguing that the majority read language out of context and that the plain meaning of the statute required compliance from the date of SORNA's enactment.

Congrats to the FPD office in WDVa on the win.

Divided Court Affirms Stat Max Sentence for Robbery

US v. Heath: Heath pleaded guilty to interference with commerce by robbery and being a felon in possession of a firearm. The facts underlying the conviction included the robbery of a convenience store and a burglary during which Heath stole 10 shotguns and rifles. Heath's advisory Guideline ranges were 100-125 months on the robbery and 100-120 months on the gun charge. The PSR laid out Heath's extensive criminal history, including prior convictions for stabbing someone in the chest and shooting a police officer. It also detailed his disciplinary problems during previous terms of imprisonment. The Government sought an upward departure due to the under representation of Heath's criminal history. The district court agreed and imposed a statutory maximum term of 240 months on the robbery charge, to be served concurrently with a 120-month sentence on the gun charge.

Heath appealed, arguing that his sentence was unreasonable. The Fourth Circuit, 2-1, disagreed and affirmed. The court found no procedural error in the district court's application of sentence. Emphasizing the deference which appellate courts much accord a district court's sentence in a post-Booker world, the court also concluded that the sentence was substantively reasonable. It probably didn't help that defense counsel admitted that heath "has the proverbial record as long as your arm and has acted violently, possessed weapons and, in common parlance, has been a bad actor all his life."

Judge Gregory dissented, arguing that the district court did not sufficiently explain why the statutory maximum sentence was needed in this case. It was another assertion of his "position that substantive reasonableness must encompass more than the rote recitation of 3553(a) factors that the Court has condoned in numerous post-Gall cases, and which it continues to condone today."

Alien Using Alias Not "Found" While In State Custody

US v. Uribe-Rios: Uribe-Rios was convicted of illegal reentry following deportation. After his reentry, he was arrested and convicted, under an alias, in North Carolina state court on drug charges in 2001. While serving his state sentencing, ICE lodged a detainer with NC authorities under the alias's name. Once released from state custody, Uribe-Rios admitted to ICE agents who he really was and was charged with illegal reentry. Uribe-Rios moved to dismiss the indictment, arguing that (1) he was "found" for purposes of the illegal reentry statute when arrested by NC officials, therefore the statute of limitations had run; (2) venue in the WDNC was improper because when the ICE detainer was lodged he was in custody in a facility in the EDNC; and (3) the time between his state arrest and conviction amounted unwarranted pretrial delay. The motion was denied, Uribe-Rios pleaded guilty, and was sentenced to 70 months in prison.

On appeal, the Fourth Circuit affirmed Uribe-Rios's conviction and sentence. The court rejected Uribe-Rios's argument about when he was "found," holding that being in state custody is not the same thing as being in federal custody, particularly when the person in custody is using an alias. The court also rejected the venue argument, noting that since Uribe-Rios wasn't "found" until turned over to ICE officials in the WDNC, venue was proper there. With regards to pretrial delay, the court concluded that Uribe-Rios was not prejudiced by not being able to serve his state and federal sentence concurrently, as no such right exists (it also seems to me that the proper time from which to measure "delay" would start with when he was "found" in 2006).

Applicable 3582 "Sentencing Range" Is Pre-Departure

US v. Donnell: This another retroactive crack case. To be eligible to receive a reduced sentence under 3582(c)(2), a defendant's sentence must be "based on" a sentencing range that was subsequently lowered by the Sentencing Commission. The issue in the pair of cases consolidated here was whether, in situations where the offense level but not the sentencing range changes (because the offense level is so high) and the defendants received a substantial assistance departure at sentencing, are the defendants eligible for a reduced sentence? The district courts said no.

The Fourth Circuit, again, agreed. The court rejected the defendants' argument that the proper "sentencing range" that must change is the one on which the district court relied after departing downward. Departures, the court concluded, do not result in a new sentencing range. The only sentencing ranges are those produced as the result of Guideline calculations. Therefore, regardless of the method used by the district court to arrive at its departure sentence, that does not constitute a new sentencing range that can be lowered by a future amendment to the Guidelines.

In spite of that holding, the Fourth Circuit did reverse one of the defendants' denials, as it turned out that the district court judge had worked on his original criminal case as an AUSA a dozen years ago. Both defendants also raised the informal brief argument raised in Hood (with similar results).

No 3582 Reduction in Statutory Departure Cases

US v. Hood: This is another case dealing with issues arising from the retroactive application of the amended crack Guidelines. In this case, actually two consolidated cases, the defendants were subject to mandatory minimum sentences of at least 240 months in prison, but received significantly shorter sentences (100 and 108 months) after providing substantial assistance. Each applied for a further reduction under the amended Guidelines. The district courts denied the motions, each holding that the sentences were not "based on" the changed Guideline ranges, but on the mandatory minimum sentence, which was greater than the Guideline ranges.

On appeal, the Fourth Circuit agreed. Even though the district courts referred to Guideline calculations when initially imposing sentence (as part of determining the extent of the departures), the sentences were still "based on" the mandatory minimum, as it became the Guideline approved sentence when the Guideline range was less than the statutory minimum. Furthermore, the only authority for the district courts to depart from the mandatory minimum came from statute, not the Guidelines, and made the scope of substantial assistance the only criterion in determining sentence.

Separately, both defendants argued that the Fourth Circuit's practice of sending 3582(c)(2) appeals to the "informal briefing" calendar under Local Rule 34(b) raises "serious constitutional problems" due to delay or denial of relief. Noting that the informal process may, in fact, be more streamlined (particularly for pro se appellants), the court concluded that in neither of these cases was there significant delay (Hood's case was decided less than six months after fling his notice of appeal) that raised due process concerns.

Court Affirmed "3 Strikes" Sentence

US v. Thompson: Thompson was convicted of bank robbery and sentenced to life in prison under the "three strikes" law, 18 USC 3559(c). The "strikes" in question are convictions for a "serious violent felony." If the defendant has two prior "strikes" and the current conviction is a "serious violent felony," a life sentence is mandatory. However, there is a "safety valve" provision for robbery convictions, allowing the defendant to escape a life sentence if he can prove by clear and convincing evidence that he did not use or threaten to use a dangerous weapon during the robbery.

Thompson admitted that he had two prior strikes, but argued that the current robbery conviction qualified for the safety valve. He also argued that increasing his statutory maximum sentence from 20 years to life on the basis of judicial factfinding violated his constitutional rights.

Both the district court and the Fourth Circuit rejected Thompson's arguments. On the facts of the case, the Fourth Circuit recounted the testimony of five witnesses who testified before the district court. While none of the witnesses could put a gun in Thompson's hand, two testified that he made threats involving shooting and one testified being scared for her life. Given that record, there was no clear error in the district court's determination that Thompson threatened to use a dangerous weapon. On the constitutional issue, the Fourth Circuit concluded there was no violation because the judicial factfinding at sentencing did not increase Thompson's sentence. No constitutional issue is present when the sentencing court, upon the finding of certain facts, can impose a lower sentence.

Non-Forcible Statutory Rape Not "Violent Felony" Under ACCA

US v. Thornton: Thornton was convicted of being a felon in possession of a firearm and body armor and sentenced under the Armed Career Criminal Act. At his initial sentencing, the district court identified four qualifying prior convictions. On remand from the Fourth Circuit, the district court concluded that two of those convictions were not "separate" offenses and that Thornton therefore had three qualifying prior convictions. One of those convictions was a Virginia conviction for "carnal knowledge of a minor" without the use of force. Thornton argued that the Virginia conviction was not a "violent felony" as defined by the Act. The district court disagreed and reimposed the ACCA sentence.

On appeal, applying the analysis from the Supreme Court's recent decision in Begay, the Fourth Circuit reversed the district court. The only issues in dispute where whether the Virginia offense was substantially similar to the offenses listed in the "violent felony" definition and whether it posed a "serious potential risk or physical injury." The Government focused on the risk inherent in the offense, which the court noted "ignores the Supreme Court's reasoning in Begay" that every offense that presents such risks meets the definition of violent felony. The court also rejected the Government's argument that the Virginia offense was similar to the enumerated offenses because it involved "constructive force," based on the inability of the minor to consent. The court noted that the ability to consent cannot change the fact that Virginia enumerates both forcible and nonforcible sexual offenses. To adopt the Government's analysis would be to render that distinction meaningless.

Congrats to the FPD office in Roanoke on the win!

NC Felony Stalking = "Crime of Violence" Under USSG 4B1.2(a)

US v. Seay: Seay was convicted of being a felon in possession of a firearm and sentenced to 96 months in prison. On appeal, he argued that the district court made two errors at sentencing and argued that his sentence was unreasonable. The Fourth Circuit concluded otherwise and affirmed.

On appeal, Seay first argued that his prior conviction for felony stalking in North Carolina was not a "crime of violence," as defined in USSG 4B1.2(a) and applied in 2K2.1. The Fourth Circuit, after first looking to the indictment to see in which of two possible ways Seay violated the statute, concluded that his conduct was "purposely carried out with the intended effect of placing a reasonably prudent person in fear of bodily harm." The statute, the court noted, requires "more than mere harassment," which is sufficient under some similar statutes in other states. Seay then argued that the district court erred in considering a risk assessment report prepared by a police officer based on an interview with Seay (done with permission of counsel). Without concluding whether there was error, the court held that any error would be harmless, as the record showed that the district court did not rely on the report in any meaningful way. Finally, Seay's argument that his sentence, an upward variance, was unreasonable was rejected by the court.

Court Affirms Conviction of Former VRS Member

US v. Vidacak: Vidacak was convicted on four counts of making false statements in immigration applications. The basis for the charges was Vidacak's failure to disclose/admit that he had been a member of the VRS (Army of the Republika Srpska) during the Bosnian Civil War. Part of the evidence against Vidacak at trial came from military documents and the testimony of two immigration officials to whom the false statements were allegedly made, via interpreters. Vidacak objected to the use of that evidence. He did so again on appeal.

The Fourth Circuit affirmed Vidacak's conviction, concluding that the district court did not abuse its discretion by admitting the challenged evidence. As to the military records, introduced into evidence by an investigator with the International Criminal Tribunal for the Former Yugoslavia at The Hague, the court concluded that they were sufficiently authenticated, even though the witness could not testify to being present when those particular documents were seized. The court also concluded that they were properly admitted as public agency records under FRE 803(8). As to the witness testimony, the court rejected Vidacak's argument that they could not testify unless they interpreters who translated at the interviews were present for cross examination.

Court Affirms Adult Prosecution of Juvenile in RICO Case

US v. Juvenile Male: This is an interlocutory appeal involving a juvenile defendant who was 17 when charged. He was later transferred to adult prosecution. The defendant appealed that transfer, on various grounds. He was initially charged by information with conspiring to participate in a racketeering enterprise, based on his alleged involvement with a gang called MS-13. After being transferred for prosecution as an adult, the defendant appealed to the Fourth Circuit, which remanded because the information failed to allege that the offense was a "crime of violence." On remand, the Government filed an amended information, alleging both that the offense was a crime of violence and also providing more detail in the charges. Two weeks later, the district court again transferred the defendant over for prosecution as an adult.

In this, the second appeal of this case, the defendant essentially made three groups of arguments: (1) that the information was constitutionally and/or otherwise insufficient; (2) that the transfer proceeding violated his Constitutional and statutory procedural rights; and (3) that the district court abused its discretion in transferring him for adult prosecution. After determining which specific issues it had jurisdiction to consider, the Fourth Circuit affirmed the actions of the district court. First, it concluded that the severity of the charges in the information demonstrated the "substantial federal interest" in prosecuting a juvenile, even if the information did not explicitly state such. Second, the court concluded that the proceedings did not violate his Sixth Amendment right to confrontation or his Fifth Amendment rights to silence and due process. Finally, the court concluded that the district court did not abuse its discretion by transferring the case for adult prosecution.

Court Sidesteps Guideline Ex Post Facto Issue

US v. Myers: Myers pleaded guilty to being a felon in possession of a firearm. The firearm at issue was one that had been listed in 18 USC 921(a)(30) as part of the assault weapons ban that lapsed in 2004. Applying the 2006 version of the Sentencing Guidelines (which were in effect at sentencing), the district court enhanced Myers's sentence six levels because the firearm was capable of accepting a large capacity magazine. Myers objected, arguing that the 2005 version of the Guidelines, in effect at the time of the offense, should be used. That version of the Guidelines did not have the large magazine enhancement, but applied a six-level enhancement if the firearm was listed in 921(a)(30). Since that section had lapsed before he committed the offense, Myers argued that the 2005 enhancement was no longer in effect and ex post facto prohibitions applied to prevent his sentence from being enhanced. The district court disagreed.

As did the Fourth Circuit. The court noted that Myers's ex post facto argument only made sense if the lapsing of the assault weapons ban automatically invalidated the 2005 Guideline enhancement provision. But that was not the case, as the Sentencing Commission has the authority to enhance sentences for conduct that is not criminal. Furthermore, the language of the 2005 enhancement only required that a particular weapon be listed in 921(a)(30), not that it be illegal to possess under the assault weapons ban.

In a footnote, the court explained that its resolution of the issue on that ground made it unnecessary to address the Government's argument about the scope of ex post facto protections in a post-Booker world (a topic on which some other courts have split).

Failure to Impose Fine Not Clear Error

US v. Fields: In 2006, Fields was initially sentenced to a term of 12 months in prison (following a conviction for making a false loan application) and a $2000 fine, in spite of the district court concluding that Fields did not have the ability to pay a fine. He appealed and the Fourth Circuit vacated the sentence and remanded for resentencing.

At resentencing, the district court imposed the same 12-month sentence and made the same finding about Fields's ability to pay a fine. However, the district court did not reimpose the $2000 fine. Four days later, the district court sua sponte convened a new sentencing hearing and imposed a $2000 fine. Over Fields's objection, the district court explained that it knew "exactly what [it] had in mind" and that it "intended to impose a fine" at resentencing. The district court cited Rule 35(a) of the Rules of Criminal Procedure as the basis for fixing its "clear error."

Fields appealed the imposition of the fine. The Fourth Circuit vacated the sentence and remanded with specific instructions to impose the first sentence imposed at resentencing - without the fine. The court explained that the "clear error" conceived by Rule 35(a) is a narrow class and, at the least, requires some act that would be reversible error on appeal. No such error occurred at the resentencing hearing when the district court failed to impose a fine. However, the court recognized that had the district court made clear its intent to impose the fine at the resentencing hearing, the failure to do so might have fallen into the Rule 35(a) exception.

Congrats to the FPD office in South Carolina on the win!

Court OKs Warrantless Cell Phone Search, Auto Inventory Search

US v. Murphy: Murphy was convicted of conspiracy to distribute narcotics. The evidence against him consisted largely of items found following a traffic stop of a car in which Murphy (and two others) were riding. Murphy sought to have two pieces of evidence suppressed - information taken from his cell phone and more than $14,000 in cash recovered from a bag in the car's trunk. The district court denied Murphy's motion to suppress.

On appeal, the Fourth Circuit affirmed the district court and Murphy's conviction. As for the cell phone, the court first concluded that it was lawfully seized from Murphy during a search incident to a lawful arrest. Second, the court concluded that due to the potential loss of information from the cell phone, its contents could be viewed by the officers without waiting for a warrant to be obtained to search its contents. As for the currency, the court rejected Murphy's argument that the search of the vehicle was not a proper inventory stop.

Appeal Waiver Precludes Booker Relief

US v. Linder: A cautionary tale on the long arm of appeal waivers. Linder pleaded guilty to a drug charge with a plea agreement that included a waiver of any appellate rights. The guilty plea was entered before Blakely, but sentencing was delayed until the Fourth had incorrectly concluded that Blakely didn't apply to the Guidelines. Consistent with the Fourth's decision in Hammoud, the district court rejected Linder's Sixth Amendment objections to the Guidelines calculations and imposed a sentence of 262 months and announced an alternative sentence of only 120 months.

Linder appealed, seeking relief under Booker, but the Fourth rejected his arguments due to the appellate waiver. Linder then filed a motion under 28 USC 2255 (that right had not been waived), asking the district court to impose the alternate sentence. The district court denied to do so, concluding that Booker did not apply to Linder's case.

On appeal, the Fourth Circuit affirmed the district court, though on different reasoning. The court concluded that Booker did apply to Linder's case, because it was not "final" until after Booker was decided. The appeal waiver provisions of the plea did not change the fact that Linder's appeal was pending when the Supreme Court acted. Nonetheless, applying Shea v. Louisiana, 470 US 51 (1985), the court concluded that the appeal waiver provision that required denying the direct appeal continued to foreclose relief. In other words, because the issue was properly dealt with on direct appeal, it could not be raised again in the 2255 proceeding.

No Fourth Amendment Protection from Video Surveillance in Open Fields

US v. Vankesteren: Fourth Amendment cases come with the oddest sets of facts. Vankesteren was charged and convicted of taking or possessing a migratory bird without a permit. Part of the evidence against him came from surveillance cameras set up to record action on Vankesteren's land where a trap was set. Vankesteren sought to have that evidence suppressed, arguing that it violated his expectation of privacy in his property. The district court disagreed and Vankesteren was sentenced to a fine of $500.

On appeal, the Fourth Circuit affirmed the conviction and the district court's decision not to suppress the video evidence. The court concluded that the trap at issue was located in an "open field," as it was outside the curtilage of Vankesteren's home, although it was on Vankesteren's property. Thus, Vankesteren lacked a reasonable expectation of privacy and could not invoke the protections of the Fourth Amendment. The court also rejected Vankesteren's argument that a higher standard of scrutiny should apply in cases where hidden video surveillance is used.

Convictions (on Fourth Attempt) Don't Violate Double Jeopardy

US v. Hall: Hall and his codefendant, Handy, were repeatedly prosecuted by the Government for their roles in a complex drug trafficking scheme. Twice they were tried in the District of Columbia, but the jury either acquitted or hung on the charges and mistrials were declared. The prosecution shifted to Maryland, where the defendants were tried twice. The first trial resulted in a mistrial after another hung jury. A second trial, at which the defendants were pro se, they were convicted on multiple counts, including conspiracy, use of a communications facility during a drug trafficking crime, and possession with intent to distribute.

On appeal, the defendants raised numerous procedural challenges to their conviction, all of which were rejected by the Fourth Circuit. First, the court concluded that the defendants were not subject to double jeopardy during the repeated prosecutions because the offenses of which they were ultimately convicted were not the same as the charges of which they were acquitted during the trials in DC. The court also concluded that there was no other double jeopardy violation in the multiple retrials. The court also turned away a collateral estoppel challenge to the conspiracy conviction, concluding that no facts essential to that conviction were previously resolved in the defendants' favor during the DC proceedings. Finally, the court concluded that there was no improper delay between the charging and conviction of the defendants.

Post-Sentence Confinement Statute Struck Down

US v. Comstock: This was a challenge to 18 USC 4248, a portion of the Adam Walsh Act that allows the Government to commit someone indefinitely who is a "sexually dangerous" person prior to the expiration of a federal criminal sentence. Comstock and the other defendants in this consolidated case had all been detained past the end of their criminal sentence under the law. The district court concluded that the law exceeded Congress's authority and intruded on powers reserved to the states.

On a Government appeal, the Fourth Circuit (as the first Circuit Court to deal with the issue) unanimously agreed with the district court and struck down the law. Relying on the Supreme Court's decisions in Lopez and Morrison, the court concluded that Congress's authority under the Commerce Clause did not extend so far as to reach the civil incarceration of people with no connection to interstate commerce. "Morrison," the court stated, "forecloses any such argument." The court also turned away the Government's argument that the Necessary and Proper Clause gave Congress the authority to enact the law as part of its general ability to maintain a criminal justice and penal system.

Congrats to the FPD office in Raleigh for the win!

Begay Trumps James

US v. Roseboro: Remember US v. James from 2003, in which the Fourth concluded that a conviction in South Carolina for "failing to stop for a blue light" was a "violent felony" under the ACCA? In this case, the court jettisons James in the wake of the Supreme Court's Begay decision and comes to the opposite conclusion. Roseboro had three prior convictions under the South Carolina statute, which (under James) made him an Armed Career Criminal and increased his Guideline range from 84 to 105 months up to 262 to 327 months.

Examining Begay, the Fourth Circuit concluded that it was "markedly different" from the analysis in James and the court was bound to apply the Supreme Court's analysis. Doing so, the court noted that the South Carolina statute allows convictions both for intentional and unintentional violations of the statute and therefore does not involve the "purposeful, violent, and aggressive conduct" which triggers "violent felony" status. Noting that other circuits had come to the same conclusion, the court concluded that "when a statute does not require deliberate or purposeful conduct, a conviction under such a statute will not be considered a violent felony . . .."

Judge Niemeyer dissented, on two grounds. First, he argued that Begay did not, in fact, overrule James, due to the differences between the state statutes at issue in the two cases. Second, he argued that, even applying the Begay analysis, the South Carolina offense is still a violent felony for ACCA purposes.

Congrats to the Federal Defenders of Western NC for the win!

No Variances in 3582(c)(2) Proceedings

US v. Dunphy: Dunphy pleaded guilty to possession with intent to distribute in 2003 and was sentenced to 135 months in prison, the bottom of the Guideline range. After the 2007 crack amendments to the Guidelines were made retroactive, she sought a reduction in her sentence under 18 USC 3582(c)(2). The bottom of the new Guideline range was 108 months, but Dunphy argued for a larger reduction, arguing that the district court was not limited to imposing a sentence somewhere within the new Guideline range. The district court disagreed and imposed a sentence of 108 months.

On appeal, the Fourth Circuit affirmed the sentence, concluding that the district court's authority was limited to imposing a new sentence within the newly calculated Guideline range. It rejected both of the arguments Dunphy presented arguing otherwise.

First, it rejected Dunphy's argument that under Booker, the district court must treat the Guidelines as advisory, not mandatory, in sentence reduction cases. The court noted that Booker's excision of specific parts of the sentencing statutes did not impact 3582(c)(2) and that the Guidelines were already advisory in such cases (due to the fact that a court was not required to reduce a sentence at all).

Second, it rejected Dunphy's argument that a full consideration of the 3553(a) factors was not possible with the limitations in a system in which the district court could not impose a sentence below the Guideline range.

Request for Money + Metion of Gun = Bank Robbery

US v. Ketchum: Ketchum walked into a North Carolina bank and handed a teller a note which read "[t]hese people are making me do this." He then told the teller that "[t]hey are forcing me and have a gun. Please don't call the cops. I must have at least $500." The teller gave Ketchum $1686 and he left the bank, only to be arrested shortly thereafter. He was charged with one count each of bank robbery and bank larceny. The parties agreed on the factual basis for a guilty plea, but not which charge it proved. The district court concluded that Ketchum's statement to the teller constituted "intimidation" under 18 USC 2113(a) and found him guilty of bank robbery.

On appeal, Ketchum argued that there was not sufficient evidence to sustain a conviction for bank robbery because there was no evidence of intimidation. Specifically, he argued that the statement "[t]hey are forcing me and have a gun" indicated that Ketchum himself, if anyone, was at risk, not the teller. The Fourth Circuit disagreed and upheld the conviction. The court concluded that the combination of a demand for money (which, the court notes "alone may be sufficient") and the mention of a gun was sufficient to prove intimidation.

Recommended Sentence in Plea Agreement Doesn't Prevent Reduction

US v. Dews: This is the first of two recent cases dealing with issues arising from the retroactive application of the amended crack Guidelines.

In this case (actually a pair of consolidated cases), the defendants both pleaded guilty via a plea agreement under FRCrP 11(e)(1)(C). The plea agreement included a recommendation that 168 months in prison, the bottom of the Guideline range, was the appropriate sentence in each case. When the Guidelines were amended and made retroactive, both defendants moved the court to reduce their sentences based on the newly calculated (and lower) Guideline range. The district court declined to do so, concluding that because the plea agreements called for a specific sentence, that sentence was not "based on" the Guidelines.

On appeal, the Fourth Circuit rejected that argument and ruled in favor of the defendants. The court concluded that the Guidelines played a substantial role in fashioning the sentences and that neither Rule 11 nor the plea agreements themselves precluded a reduction. Judge Agee dissented and agreed with the district court that the sentences were based on the plea agreement, not the Guidelines.

Congrats to the Maryland FPD office on the win!

UPDATE: The Government sought rehearing in this case, which the court granted, thus vacating this opinion per Local Rule 35(c). However, the case was dismissed as moot before the rehearing took place.

Court Rejects First Amendment Challenges to Child Related Obscenity Charges

US v. Whorley: Whorley was charged with a whole boatload of obscenity and child pornography charges after his receipt of that material was discovered on a publically accessible computer. Specifically, he was charged with 20 counts of receiving obscene Japanese cartoons depicting children; 20 counts of doing so after having been previously convicted of possessing child pornography; 15 counts of possession of child pornography (based on photographs); and 20 counts of sending or receiving obscene Emails describing children in interstate commerce. He was convicted by a jury on 74 of the 75 counts (one of the child porn counts was dismissed) and sentenced to 240 months in prison.

On appeal, Whorley challenged the obscenity convictions - those involving the Emails and cartoons - and the enhanced sentence for the cartoon charges, arguing that they violated the First Amendment, in several ways. The Fourth Circuit affirmed, shooting down all those arguments. First, the court disagreed that because 18 USC 1642 did not make an exception for the private receipt or possession of obscene material it violated the First Amendment as interpreted in Stanley v. Georgia. As the court points out, the Supreme Court has repeatedly held that just because Stanley protects the private possession of obscene materials there does not exist a related right to receive obscene material. Second, the court rejected the argument that section 1642 was impermissibly vague. Third, the court rejected Whorley's as applied challenges to 1642, for largely the same reasons as it rejected the facial challenges. Specifically, it rejected the argument that the text Emails or cartoons could be obscene. Finally, the court rejected the argument that the enhancement provisions of 18 USC 1466A(a)(1) was unconstitutional as applied to the cartoons at issue because they did not depict actual children. The court also rejected (and briefly discussed) Whorley's challenges to some trial issues and his sentence.

Judge Gregory dissented on the issue of whether the Emails could be obscene and the sentencing enhancements. With regards to the Emails, he did so based on an argument admittedly not raised by Whorley, that the Emails "were pure speech protected by the First Amendment." Judge Gregory contends that the majority's note that the Supreme Court has held that words can be obscene "is not sufficient, on its own, to criminalize pure speech." However, Judge Gregory never defines what "pure speech" is and how it is distinguishable from words that can be obscene. His dissent seems to be more an objection to Supreme Court holdings that obscenity lies outside the protection of the First Amendment (an objection I share, BTW). As for the sentence enhancements, Judge Gregory reads the applicable statutes to require the pictures at issue to depict an actual child, so the cartoons at issue in this case do not apply.

UPDATE: My apologies - apparently "pure speech" is a term of art in First Amendment cases with which I was not familiar. It refers to speech that is not bound up with conduct and is thus "pure."

Arrestee's Information Reliable Enough to Supprt Arrest

US v. White: A gentleman named Ali arrived in Charleston, West Virginia, and was arrested for possession of crack. He cooperated with investigators and agreed to set up a controlled purchase of cocaine from White later the same day. Ali set up the deal on the phone (while investigators watched) and said that White agreed to sell him nine ounces of cocaine at the Family Dollar parking lot. A vehicle, which Ali identified as White's, appeared at the Family Dollar parking lot, briefly, before it drove to a nearby house. White called Ali and told him that he had to move the deal because the parking lot was "too hot" and designated another location. On the way there, White was pulled over. He refused consent to search the car. After a second drug dog alerted on the driver's door of White's car, officers searched the trunk and found 89.5 grams of cocaine.

White sought to suppress the cocaine recovered during the search of the car. The district court denied the motion, concluding that Ali's information provided to the investigators was reliable and that they had probable cause to believe White was transporting drugs when he was stopped (alternatively, that they had reasonable suspicion to make a Terry stop, which ripened into probable cause). White pleaded guilty to one count of possession with intent to distribute cocaine and was sentenced to 240 months in prison.

On appeal, the Fourth Circuit affirmed the district court's suppression ruling and the sentence imposed. It agreed with the district court that Ali was a reliable source and that the investigators had probable cause to support White's arrest and a search of his car. As the court noted, "every bit of information that Ali provided was quickly borne out by actual events." The court dismissed White's claim of sentencing error in a footnote.

Agent's Assertions Save Warrant Under Leon

US v. Williams Williams and a codefendant, Thomas, were charged with drug crimes. They moved to suppress evidence found at their residences pursuant to state search warrants procured by a DEA agent.

In each case, the affidavit set forth in some detail the fruits of the investigation into Williams and Thomas, including details of controlled purchases, tips from CIs, etc. to establish a conspiracy to distribute narcotics. However, neither warrant affidavit included any evidence that any sales or other drug-related activity took place at either man's residence. Instead, the affidavit's explained that, based on the agent's experience, those involved in the drug trade frequently kept evidence of it (cash, registers, possibly a "stash" of product) in their home. On that basis, the warrants were issued.

The district court granted Williams and Thomas's motion to suppress the fruits of those searches. The Government conceded the lack of probable cause, but relied on the Leon good-faith exception to save the search. The district court disagreed and concluded that the warrants were based on bare bones affidavits that did not clearly demonstrate probable cause to believe there would be evidence at the locations searched. It also concluded that there was no basis on which to determine whether Williams and Thomas were actually residing at those locations.

The Government appealed and the Fourth Circuit unanimously reversed. Applying Leon (and avoiding the question of whether the Government could not argue the probable cause issue it conceded below), the court concluded that the affidavits were not bare boned after all. The court held that warrants to search a home are proper if (1) there is probable cause to support a charge of criminal activity and (2) the reasonable suspicion that drug dealers store evidence in their homes. Thus, it was error for the district court to disregard the agent's experience on the second prong. Had it properly considered the agent's statement, it could not have concluded that the affidavits were bare boned. The court also concluded that the agent's uncorroborated statement that the homes search were the defendants' residence was enough to save the affidavits from being bare boned.

District Judge = "Judicial Officer" for Bond Appeal (Who Knew?)

US v. Goforth: Goforth pleaded guilty to a drug offense carrying a maximum sentence of more than ten years in prison. He sought release pending sentencing from the district court, which concluded detention was mandatory under 18 USC 3143(a)(2). Specifically, the court concluded that it was not a "judicial officer"under 18 USC 3145(c) because that provision was limited to circuit courts.

The Fourth Circuit reverses, holding that the plain language of the statute clearly makes district judges judicial officers. The court vacated the district court's order and sent the case back for consideration of whether the defendant should be able to "go forth."

Court Defines Scope of Search Warrant in Health Care Fraud Investigation

US v. Srivastava: Srivastava was a doctor under investigation for health care fraud. As part of that investigation, investigators obtained search warrants for Srivastava's two offices and his home. The warrant for his home was based on information that much of the billing paperwork was handled there. Investigators executed the warrants, seizing numerous personal documents at his home (they returned 80% of what was seized there). Among the documents seized from Srivastava's home were documents showing financial transfers to the Bank of India. Following that lead, investigators determined that Srivastava had filed false income tax returns. As a result, Srivastava was indicted on two counts of tax evasion and one count of making false statements on a tax return. Srivastava moved to suppress the evidence discovered in his home, arguing that they were personal, not business documents, and beyond the scope of the items the warrant authorized investigators to seize. The district court agreed, suppressing all the evidence seized during the three searches.

The Government appealed and the Fourth Circuit reversed. The court concluded that the documents seized at Srivastava's home was within the scope of the warrant. Specifically, the warrant allowed the seizure of "financial" documents which, given the nature of Srivastava's medical practice, covered personal as well as business documents. The court also concluded that the documents fell within the warrant's scope that the only documents seized be those that "may constitute evidence of [health care fraud]." The court also concluded that the district court's blanket suppression order, covering all the evidence seized during the three searches, was an abuse of discretion.

Exigent Circumstances Justify Warrantless Entry

US v. Moses: Moses pleaded guilty to possession with intent to distribute more than five grams of crack and being a felon in possession of a firearm. The evidence against him was seized in two warrantless searches of homes. The police, operating on tips, set up a perimeter around the first home and began to surveil Moses. When Moses eventually left the home, his car was stopped because his license has been suspended. At some point during that stop, Moses made a phone call to his cousin back at the home he'd just left. Police went to the home, an apartment building with two units. Police eventually used Moses's keys to open one unit, fearful that someone might be there destroying evidence. No one was found, but some evidence of narcotics were present. A search warrant was obtained, at which point a pistol was recovered. During that search, police got information that Moses had sold drugs from another home nearby. With Moses's keys, officers went to the home and entered, again to prevent the destruction of evidence. Again, some evidence of narcotics activity was present and a warrant was obtained. Officers found 14 grams of crack in the home.

Moses moved to suppress the evidence recovered from the two homes. The district court concluded that the first warrantless search was justified by exigent circumstances. The second warrantless search was not. However, the district court nevertheless refused to exclude the evidence found there, because the second search was made pursuant to a warrant based on probable cause that was untainted by the unsupported warrantless search. On appeal the Fourth Circuit agreed, affirming Moses's convictions. The court concluded that probable cause existed to enter the first home and that exigent circumstances were present to allow entry without a warrant. The court also concluded that the search warrant that was obtained for the second home was sufficient, once stripped of any information gained from the illegal initial warrantless entry. Judge Gregory dissented, on all those arguments.

Forced Medication OK'd as Supervised Release Term

US v. Holman: While Holman was incarcerated for drug offenses, he was diagnosed with a mental illness that required medication. Holman would regularly refused to take medication voluntarily, leading to him being administered intramuscular antipsychotic meds against his will. When released, he was given a supply of oral medication and instructions on when to take it. It was recommended that he continue the injections as well, to guard against going off his meds altogether. The initial conditions of this supervised release neither required mental health treatment nor medication. However, those conditions were modified to require such treatment, including injections. Holman violated his supervised release twice, the second time by refusing to take his meds. He appealed both the length of his 12-month sentence as well as the continued condition that he submit to the injections. The Fourth Circuit affirmed, holding that the condition did not violate Holman's due process right to be free from unconsensual medical treatment, given the evidence that Holman was a danger to himself and others in an unmedicated state.

Speedy Trial Violations Doom Pot Prosecution

US v. Henry: The Henrys (husband and wife) were indicted on multiple charges related to growing marijuana on November 3, 2004. A trial date was originally set on July 7, 2005, but both parties requested a continuance, noting that the Henrys had already prospectively waived their speedy trial rights. The motion was granted and proceedings continued until March 24, 2006, when the court learned that plea negotiations had broken down. Trial was set for July 5, 2006. At the March 24 hearing, Mr. Henry complained that the case had "dragged on for two years." Before the trial date rolled around, the Supreme Court handed down Zedner, in which it held that defendants could not prospectively waive speedy trial rights.

At a pretrial motions hearing on June 27, 2006, the district court brought up the Zedner issue sua sponte. After concluding that the Henrys' speedy trial rights waivers were invalid, the district court nonetheless concluded that the continuances granted on July 7, 2005 and March 24, 2006 satisfied the "ends of justice" criteria for being excluded from speedy trial calculations, the first to facilitate plea negotiations and the second because the need for proper trial preparation outweighed interests in a speedy trial. The district court acted on its memory of the March 24 hearing, without reference to a transcript. Nonetheless, the Henrys moved to dismiss the indictment due to speedy trial violations. The district court denied the motion, the Henrys pleaded guilty, and were sentenced to 60 months in prison.

On appeal, the Fourth Circuit reversed the district court. Reviewing the entirety of the record, including a transcript of the March 24 hearing, the court concluded that the district court in granting the continuance relied upon the Henrys' waivers of their speedy trial rights. Under Zedner, those waivers were now invalid. Critically, at the March 24 hearing the district court did not consider whether the ends of justice supported a continuance, as Zedner now requires. The court remanded with orders to dismiss, but left it to the district court to decide whether to do so with prejudice.

Congrats to the Northern WV FPD office on the win!

Court Reversed Decision Excluding Old Fraud Evidence

US v. Siegel: Siegel was indicted on multiple counts of wire fraud and mail fraud, in addition to a count of murder to prevent the reporting of those offenses. The charges stem from the latest in a long line of (alleged) scams Siegel perpetrated against family, friends, and strangers. The indictment against her dealt specifically with fraud against a boyfriend before and after his death in 1996. However, the indictment included, as part of the definition of the "scheme or artifice to defraud" allegations against several other people stretching back decades. The Government also filed notice of its intent to use other evidence of prior frauds (and convictions) as FRE 404(b) evidence. Siegel moved to exclude the Government from presenting any such evidence and striking the language in the indictment as surplusage. The district court granted the motions (at least in regard to the Government's case in chief) and the Government appealed.

The Fourth Circuit reversed the district court. In doing so, it first had to determine whether it had jurisdiction to entertain such an interlocutory appeal at all. The court concluded that it did, as the district court's order was final, even if couched as a preliminary order. It precluded the Government's use of the evidence in its case in chief. While the court indicated that it might reconsider its ruling, it said it would do so only at the close of evidence, after jeopardy had attached. Given the finality of the order, the Fourth Circuit concluded it had jurisdiction.

On the merits, the Fourth also sided with the Government. As to the 404(b) evidence, the Government argued that it demonstrated how Siegel would defraud "anyone available, be it family or friend." The Fourth Circuit agreed, holding that such evidence demonstrated Siegel's scheme and her motive for murder. That evidence was also not precluded under FRE 403 as it was neither unduly prejudicial nor likely to cause confusion or repetition at trial. Given those conclusions, the Fourth Circuit held that there was no basis for striking any language from the indictment.

District Judge Kiser (WDVa) dissented with respect to the evidentiary issues, arguing that the majority failed to show appropriate deference to the district court findings and that the district court did not abuse its discretion in excluding the evidence.

Court Affirms Conviction, Life Sentence, for Crack Possession

US v. Farrior: Farrior was involved in two car searches that uncovered crack cocaine.

The first was the result of a traffic stop for an inoperable tag light. After Farrior was given a verbal warning, the officer who pulled him over asked if he would step out of the car and talk. Farrior agreed and eventually consented to a search of the car, which uncovered nothing. In the interim, another officer arrived on the scene with a drug dog, which sniffed the outside of the car, alerting to the trunk. The officers eventually searched one of Farrior's boots, finding 5.5 grams of crack cocaine and cash.

The second search occurred when Farrior was the victim of a shooting. After towing his vehicle, officers searched it and found 469 grams of crack cocaine (also in boots). Farrior was convicted of possession with intent to deliver crack cocaine and possession of more than 50 grams of crack cocaine and sentenced to life in prison. On appeal, Farrior challenged both his convictions and sentence, which the Fourth Circuit affirmed.

First, the court rejected Farrior's argument that the evidence uncovered during the first traffic stop should be suppressed. The court concluded that the officers did not unduly prolong the valid traffic stop such that it violated the Fourth Amendment. Second, the court rejected Farrior's Batson challenge to the Government's strike of his jury's only African-American member, pointing out the numerous race-neutral reasons given by the Government to support its decision. Third, the court concluded that the district court properly denied Farrior's request for a new trial due to statements of the prosecution about reasonable doubt during closing argument.

As to Farrior's sentence, the Fourth Circuit first rejected Farrior's argument that the court document used to prove a prior conviction was not sufficient because it did not contain an actual judge's signature, only a mechanical "authorized signature." The court noted that the records relied upon by the district court were certified, signed, and produced by the court of conviction. Even without the "authorized signature" they would have been sufficient. The court also rejected Farrior's argument that his sentence was unreasonable, noting that the life sentence was mandatory.

Rape Via Lack of Consent Is "Forcible Sex Offense"

US v. Chacon: Chacon is a Honduran citizen who entered the US illegally and was deported following a conviction in Maryland for second-degree rape. Afterwards, Chacon again entered the country illegally, this time using false ID documents. He pleaded guilty to illegal reentry and fraud. At sentencing, he was assessed a 16-level enhancement under 2L1.2(b)(1)(A) because his Maryland conviction constituted a "crime of violence." Chacon objected, arguing it was merely an aggravated felony (an 8-level enhancement). The district court disagreed and sentenced Chacon to 41 months in prison.

On appeal, the Fourth Circuit affirmed, dealing with the first time with the issue of whether a sexual offense committed based on lack of consent, as opposed to physical force, constituted a "forcible sex offense" and, therefore, a crime of violence. The Maryland information to which Chacon pleaded guilty did not specify which of the three subsections he violated - rape by force, rape of a person unable to give consent, or statutory rape. The Fourth Circuit began by noting that it was clear that the first and third provisions were forcible sex offenses by the language in the Guidelines. As to the second provision, noting a circuit split on the issue, the court held that sex offenses committed based on the inability to give consent are forcible sex offenses. Thus, the court affirmed Chacon's sentence.

Gain From Criminal Activity Not Proper Measure for Restitution

US v. Harvey: Harvey and his codefendant, Kronstein, were convicted by a jury of honest services wire fraud and bribery. The convictions arose from an arrangement by which Harvey, a civilian military employee, funnelled a no-bid contract to a company owned by Kronstein. Harvey and Kronstein also moved funds between themselves, using businesses and intermediaries (including their wives) as conduits. Harvey was sentenced to 72 months in prison, Kronstein to 70 months and ordered them, jointly and severally, to pay $383,621 in restitution.

They appealed both their convictions and sentences. The Fourth Circuit affirmed the convictions and prison terms, while vacating the restitution award.

As to the convictions, the court first concluded that the evidence was sufficient to convict Harvey and Kronstein of honest services wire fraud, rejecting the argument that the Government failed to show either that their scheme involved a material misrepresentation or concealment of fact or that they had the specific intent to defraud. The court also rejected the argument that there was insufficient evidence to sustain the bribery convictions, holding that there was sufficient evidence of corrupt intent in their dealings.

As to the sentences, the Fourth Circuit turned away factual challenges to Guideline enhancements for the amount of loss, the number of bribes involved, and Harvey's and Kronstein's roles in the offense.

As to the restitution, the court concluded that the Government had failed to prove the amount of actual loss attributable to the defendants, rather than intended loss (which was used in the Guideline calculations). Specifically, the court rejected the practice of using the profit gained from the criminal activity as a proxy for actual loss. Thus, the restitution award was vacated and remanded to the district court for further proceedings.

Sentenced Imposed Without Guideline Affirmed as Not "Plainly Unreasonable"

US v. Finley: Finley was convicted under the Assimilative Crimes Act of 3rd offense DUI and driving on a revoked license on a military base. At sentencing, Finley argued that the district court should consider what the state (Virginia) sentencing guidelines for the offenses would be - 90 days to six months in jail (or 7-10 months, as conceded on appeal). The district court "could care less what the guidelines [were] in the state system" and imposed a sentence of 27 months in prison.

Affirming, the Fourth Circuit first addressed the proper standard of review in a case like this one where there is no applicable Guideline. Applying the holding in US v. Crudup, the court concluded that such sentences are reviewed to determine if they are "plainly unreasonable." In such cases, step one is regular Booker/Gall reasonableness review, followed by a second step of determining whether any unreasonableness is "plain."

Utilizing that standard, the court concluded that Finley's sentence was not unreasonable, much less plainly so. First, the court concluded that the district court did, in fact, consider the Virginia sentencing guidelines, but rejected them as not providing adequate deterrence to Finley. Second, the court concluded that Finley's sentence was substantively reasonable and supported by the district court's findings below.

Prior Offenses Stacked in Applying 2L1.2 Enhancement

US v. Martinez-Varela: Martinez-Varela pleaded guilty to illegal reentry following an aggravated felony. He had three prior convictions for distribution of drugs, all of which occurred and were sentenced on the same day. Each carried a 6-8 month sentence, but two were made consecutive, for a total sentence of 12-16 months. At sentencing, his Guideline range was enhanced 16 levels under USSG 2L1.2(b)(1)(A) because the "sentence imposed" for the prior offenses was greater than 13 months. Aggregating the sentences imposed for the three offenses, the district court concluded that the 13-month threshold was passed and a 16-level increase was appropriate.

On appeal, the Fourth Circuit affirmed, holding that while the specific Guideline section cited in 2L1.2 as being used to determine prior sentences does not answer the question, a related section does provide support for the aggregation approach.

Estoppel Not a Bar to False Statements Convictions

US v. Benkahla: This case is a third one dealing with terrorism related charges arising out of an Islamic center in Falls Church, Virginia (see the prior Chandia and Khan decisions for more detail). Benkahla was initially charged and acquitted in a bench trial of supplying services to the Taliban and using a firearm in connection therewith in 2004, after being arrested in Saudi Arabia in 2003 (related to the recent Abu Ali decision). The basis for the court's acquittal was the Government failed to prove that the training camp Benkahla attended was in Afghanistan. Undaunted, the Government convened a grand jury to investigate charges of providing material support to terrorist organizations and subpoenaed Benkahla to testify multiple times, during which he denied any involvement. in 2006, the Government indicted Benkahla for making false statements to the grand jury, obstruction of justice, and making false statements to the FBI. After a jury convicted on those charges, the district court at sentencing applying the terrorism Guideline, but eventually imposing a variance sentence of 121 months in prison.

On appeal, Benkahla raised several issues, all of which the Fourth Circuit rejected. First, he argued that the Government was collaterally estopped from prosecuting him for false statements after his acquittal on related charges. While recognizing the "tension" inherent in such situations, the Court ultimately found it not to be problematic, focusing on the district court's narrow ground for acquittal in the first trial. Second, he argued that evidence presented at his trial on the nature of radical Islam, jihad, and terrorism was unduly prejudicial. The court concluded otherwise, noting its relevance to the elements of the offenses with which he was charged and noting that the jury acquitted Benkahla on some charges, thus showing it was not unduly swayed by prejudice. Finally, the court rejected Benkahla's argument about the proper application of the terrorism Guideline, specifically rejecting a Sixth Amendment-based Booker argument, noting that "the point is thus that the Guidelines must be advisory, not that judges may find no facts."

Omissions from Warrant and Date Error Don't Require Suppression

US v. Gary: Gary was convicted (of what the opinion doesn't say) based at least partly on information developed during a search of a home in Richmond, based on an anonymous tip. The tipster alleged that "Melvin" was selling heroin out of the home. A police officer investigated, rummaging through the trash in the alley behind the home, discovering items with heroin residue, packaging materials, and discarded mail indicating that the trash came from the target address. He applied for a search warrant, in which he failed to disclose that there were multiple trash cans in the alley, only one of which was marked as belonging to the target address, and indicated that the investigation took place a year before it actually did. The district court denied Gary's motion to suppress the evidence.

The Fourth Circuit affirmed, unanimously, in an opinion written by ex-Justice O'Connor. The court rejected Gary's argument that under Franks the information left out of the warrant application required suppression. The court concluded that the information left out of the warrant would not have changed whether probable cause was present. The court also rejected Gary's argument that, notwithstanding the omissions, the warrant application was not sufficient to justify a search because of the discrepancy in dates between the actual investigation and what was written on the application. Noting that the discrepancy wasn't even mentioned until the district court noticed it at the suppression hearing, it was clearly a typo and not destructive to probable cause. Even if it was, the Leon good-faith shield saved the search.

Big Terrorism Case Leads to Split on Sentencing Review

US v. Abu Ali: Ali is a US citizen, born in Virginia, who eventually travelled to Saudi Arabia, where he became involved with an Al-Qaeda cell. After a bombing in Riyadh (in which Ali was not involved), Saudi authorities cracked down. Investigation of Ali and others led to indictment in the US against Ali for various terrorism and related charges, in addition to conspiracy to assassinate the President. He was convicted by a jury of all charges. In a lengthy opinion, the Fourth Circuit unanimously affirms the conviction, rejecting numerous challenges that are most likely to occur only in similar transnational terrorism cases.

The real action, from the more mundane perspective, involves sentencing. Ali's Guideline range called for a mandatory life sentence. At sentencing, the district court varied down to 360 months, based on both the particular facts of Ali's offense and background (he never actually perpetrated any violent acts, no violence in his past, etc.) as well as comparison with what the district court thought were two similar cases - those of John Walker Lindh and Tim McVeigh/Terry Nichols. Noting that Lindh only got 20 years and Nichols got life where his offense involved actual killing, the district court concluded that a variance to 360 months was necessary.

On appeal, the Fourth Circuit vacated the sentence, 2-1. The majority heavily dissected the district court's comparison between Ali's case and Lindh/Nichols and concluded that it gave too much weight to those comparisons, which were flawed to begin with. The majority did not state categorically that a 360-month sentence would always be unreasonable, but vacated and remanded for further proceedings. Judge Motz dissented on the sentencing issue, arguing that the majority's review ignored Gall and failed to provide the proper level of deference to the district court's sentence, concluding that it was a reasonable sentence, if not ,perhaps, the most reasonable.

Court Upholds 316% Upward Variance

US v. Evans: Evans committed a series of fraud and identity theft offenses, starting when he bought some personal information of Wachovia Bank account holders from a friend who worked at the bank. Eventually, he passed $13,600 in bad checks on the accounts of two individuals. Based on that loss, Evans's advisory Guideline range at sentencing was 24-30 months. In addition, the Government moved for a downward departure for Evans's substantial assistance in going after the friend who sold him the information. The district court saw things quite differently, concluding that the Guidelines grossly understated Evans's criminal history and the seriousness of his offense. It imposed a sentence of 125 months in prison.

On appeal, Evans argued that his sentence was unreasonable. After holding the case in abeyance pending the outcome of Gall, the Fourth Circuit affirmed the sentence. The court reviewed the record and concluded that the district court "carefully and thoroughly applied the prescribed sentencing factors" when imposing sentence. Affirmance was necessary, given "the requisite deference we must accord to the considered judgment of the district court." The court then specifically rejected Evans's argument that the Guidelines prohibited a departure on the grounds relied upon by the district court (the district court cited some Guideline provisions during the sentencing), concluding that if the sentence is reasonable and the district court was applying the 3553(a) factors the Guideline analysis was irrelevant. The court also rejected Evans's argument that the scope of the variance was too great. Judge Gregory concurred in the judgment, but wrote separately to "encourage a more tempered overall approach to the substantive reasonableness analysis."

Court Affirms Kidnapping/Murder Conviction

US v. Lentz: Lentz was charged with kidnapping resulting in death stemming from the disappearance of his wife. The Govt theorized that Lentz lured his wife from her home in Virginia to his home in Maryland, where he then killed her.After trial, the district court granted Lentz's motion for a judgment of acquittal on the ground that the Govt failed to prove that Lentz "held" his wife for any period of time before killing her. The district court also granted Lentz's motion for a new trial due to two of the victim's dayplanners that had not been admitted into evidence popping up in the jury room. The district court went so far as to find that an AUSA had intentionally slipped the dayplanners, which contained notes from the victim detailing her abusive relationship with her husband, into the jury room to taint the jury. The Fourth Circuit affirmed the new trial motion and remanded for a new trial.

At a second trial, Lentz was again convicted, partly due to evidence of a murder for hire plot he hatched from jail against witnesses from the first trial and some of the AUSAs. Unfortunately, Lentz discussed the plot with a cellmate who turned informant. Even more unfortunately, Lentz discussed the plot with his attorney in phone calls from the jail that were recorded. Lentz moved to exclude evidence from both sources, with only partial success. While some of the informant's testimony was excluded because it came after a meeting with investigators that essentially turned him into a Government agent, testimony about earlier conversations with Lentz and the attorney phone calls were admitted.

Lentz raised several unsuccessful issues on appeal. First, he argued that the district court constructively amended the indictment by instructing the jury that, for purposes of the kidnapping statute, the District of Columbia was a "state." The Fourth Circuit rejected the argument that the district court's instruction amended the indictment, which alleged travel from Virginia to Maryland, holding that the indictment never required proof of travel directly from Virginia to Maryland, only that they be the starting and ending points. Second, Lentz argued that the district court erred by allowing any evidence of the murder-for-hire plot into evidence. As to the informant's testimony, the Fourth held that the statements from Lentz made prior to the informant becoming a de facto Government agent were not acquired in violation of the Sixth Amendment. As to the phone calls with his lawyer, the Fourth held that the calls fell clearly into the crime-fraud exception to the attorney-client privilege. The Fourth also rejected Lentz's argument that the statements were unduly prejudicial and that, in their redacted form as presented at trial, they violated the rule of completeness found in FRE 106. Third, the Fourth rejected Lentz's argument that hearsay statements made by his wife about the OJ Simpson case (i.e., that Lentz told her "if OJ can do it and get away with it, so can I") were admissible under the "forfeiture by wrongdoing" exception in FRE 804.

Court Upholds Terry Patdown in High-Crime Area

US v. Black: Black was walking home in a "high crime" area of Richmond when he passed a marked police car. An officer in the car engaged Black in conversation and became suspicious that Black might have a weapon in his pocket. When asked, Black took his left hand out of his coat pocket, but only after being asked twice. At that point, the officer saw a bulge that he suspected was a firearm. Asked what he had in his pocked, Black said it was just money and an ID. Black then put his hand back in his pocket. At that point, the officer said, "take your hand out of your pocket, I don't want to have to shoot you." Another officer then patted down Black and identified the bulge as a firearm. After being hand cuffed, Black admitted that he did not have a permit to carry the weapon and was a convicted felon.

Black was charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the officers did not have reasonable suspicion to seize and pat him down. The district court denied the motion. On appeal, the Fourth Circuit affirmed. On appeal (at least), everyone agreed that the encounter between Black and the officers was consensual and did not implicate the Fourth Amendment until the officer said. "I don't want to have to shoot you." Based on the totality of circumstances up to that point, the Fourth Circuit held that there was reasonable suspicion to believe Black possessed a weapon.

Judge Gregory dissented, writing that he "cannot accept that Fourth Amendment protections are suspended or reduced in so-called 'high-crime' neighborhoods.'" For Judge Gregory, the seizure took place when Black was first asked to remove his hand from his pocket.

Court Upholds Defendant-Initiated Post-IA Questioning Without Counsel

US v. Cain: Cain was arrested as part of a DEA sting. After his arrest, he told the DEA agents that he wanted to cooperate with them. The next day, Cain made an initial appearance, at which time he was determined to be eligible for court appointed counsel, although no specific attorney was appointed at that time. After the initial appearance, Cain again told the agents that he wanted to cooperate. They were unable to talk with Cain at that time.

The next day, Cain was returned to the courthouse for a meeting with the DEA agents and an AUSA. By this point, the CJA panel had been informed of its appointment to represent Cain, but it's not clear when a specific attorney was appointed. The interview went ahead, after Cain had been advised of his Miranda rights. Based in part of what was said during that interview, Cain was charged with multiple drug distribution counts. Cain filed a motion to suppress his interview statements, arguing that his Sixth Amendment rights were violated because the agents/AUSA did not attempt to contact his CJA attorney. The district court granted the motion.

On appeal, the Fourth Circuit reversed. Noting that Cain's Sixth Amendment rights had attached, the court nonetheless held that the record showed Cain's repeated attempts to initiate contact with the DEA agents. Furthermore, Cain was advise of his Miranda rights three separate times, including right before the interview. In such circumstances, his Sixth Amendment rights were not violated. The Fourth also rejected the district court's alternate holding that the statements should be excluded under the court's supervisory power because the Government violated the court's CJA plan.

Inidividual Liability Still Jury Found After Booker

US v. Brooks: Brooks and several codefendants, including Mathis, were charged with several drug counts, including conspiracy to distribute more than 500 grams of cocaine and 50 grams of crack. On appeal, Mathis and another codefendant argued that their convictions violated US v. Collins, 415 F.3d 304 (4th Cir. 2005), which required the jury to determine the amount of drugs attributable to each member of a conspiracy before a mandatory minimum could be triggered.

Proceeding only on Mathis's claim (because the other codefendant admitted at oral argument that he was responsible for more than 50 grams of crack), the Fourth Circuit concluded that Collins had been violated and returned Mathis's case to the district court. Of particular importance, the court rejected the Government's argument that Booker effectively overruled Collins, noting that Collins dealt with mandatory statutory sentencing ranges, not advisory Guideline ranges. The court then quickly rejected challenges by other codefendants to their convictions and sentences. Judge Niemeyer dissented from the Collins holding, arguing that the majority's position was incompatible with that case as well as Booker.

Retail Value of Bootlegs Based on Value of Legit Copies

US v. Armstead: Armstead was charged with and convicted of distribution of bootlegged DVDs (100 on one occasion, 200 on another) with "a total retail value of more than $2500." The only issue below and in the Fourth Circuit was how to make a proper measure of "retail value." Armstead argued that it should be the value of bootleg DVDs on the black market, which would be the price paid in the transactions, $500 and $1000, respectively. The Government argued that it should be the value of legitimate copies of what is on the DVDs, which would make each transaction worth well over the $2500 threshold.

The district court and the Fourth Circuit agreed with the Government, holding that "retail value" comes from taking the highest of the "face value," "par value," or "market value" in the retail context. Applying that definition, the evidence was sufficient to sustain Armstead's conviction.

Defendant Entitled to Franks Hearing Due to Omitted Facts

US v. Tate: Tate was charged with being a felon in possession of a firearm. The gun came to light during a search of Tate's home based on a warrant obtained by a Baltimore police officer. As basis for obtaining the warrant, the officer told the state judge that he had searched through two of Tate's trash bags that were "easily accessible from the rear yard of" Tate's home and discovered marijuana residue. Prior to trial, Tate sought a Franks hearing, arguing that the officer omitted a material fact from the warrant application - that the trash bags were only "easily accessible" because the officer hopped fence (with a locked gate) and took the bags off the home's back porch. The bags had not been placed in the nearby alley, as they would be on trash pick up day. The district court denied Tate's request for a Franks hearing, holding that the officer's application was "literally true."

On appeal, the Fourth Circuit reversed and held that Tate was entitled to a Franks hearing. The court held that Tate "clearly described the nature of [the officer's] omissions; he gave reasons for why he considered the omissions deliberately deceptive and material; and he proffered evidence in support of his position . . .." The court noted that the Government's argument, which "essentially parrot[ed]" the district court's, that the statement in the application was literally true fails to deal with the nature of the omitted facts. Finally, the court held that if Tate's factual assertions are true the officer illegally searched Tate's garbage and therefore lacked probable cause to obtain the warrant.

Right to Counsel on Underlying Charges Not Violated by Witness Tampering Investigation

US v. Mir: Mir was an immigration lawyer who assisted employers in completing the necessary paperwork to sponsor aliens for work in the United States and to allow alien workers to become permanent US residents. The Government began an investigation of Mir and his law firm on suspicion that some of the forms he completed contained false information. During the investigation, Mir sent a letter to the Government stating that he was represented by counsel. Eventually, a grand jury indicted Mir and his law firm for conspiracy to commit labor certification fraud, fraud, and racketeering. After the indictment, investigators suspected that Mir was tampering with witnesses. The Government used two aliens as CIs, sending them to Mir's office to record conversations with him. Based on those recordings, a witness tampering charge was added to the indictment. Mir unsuccessfully moved to suppress those recordings as a violation of his right to counsel or, alternately, sever the witness tampering charge from the rest of the indictment. Mir was convicted of fraud, but acquitted of conspiracy and witness tampering.

On appeal, the Fourth Circuit affirmed. Mir raised his Sixth Amendment argument, which was rejected by the court. The Fourth Circuit held that Mir's invocation of his right to counsel on the conspiracy and fraud charges did not apply to the separate offense of witness tampering. Although the two sets of offenses have "a point of factual overlap," they are still separate offenses. In addition, the Fourth Circuit held that the district court did not abuse its discretion in not severing the witness tampering charge from the others, noting that it "would have made little sense."

Magistrate Judges May Accept Guilty Pleas

US v. Benton: Benton was charged with conspiracy to distribute drugs. He reached a plea agreement with the Government, which included a provision allowing a magistrate judge to perform the Rule 11 plea hearing. That hearing took place and the magistrate judge accepted Benton's plea. Months later, Benton complained that his attorney had been ineffective by failing to adequately explain the elements of the offense to him. As a result, new counsel was appointed. After new counsel was appointed, Benton filed a motion to withdraw his guilty plea alleging that there was an inadequate factual basis, the terms were unconscionable, the Government had breached by failing to file a motion for substantial assistance, and ineffective assistance of counsel. The district court denied the motion. Benton reiterated his motion at sentencing, but it was again denied. He was sentenced to 262 months in prison.

On appeal, Benton made three arguments, all of which the Fourth Circuit rejected. First, he argued that he had the right to withdraw his plea for "any reason or no reason" because the magistrate judge lacked the authority to accept the plea. Because Benton did not make the argument to the district court, the Fourth reviewed it for plain error. The Fourth found there not to be error at all, concluding that magistrate judges can accept guilty pleas, so long as the district court can review that acceptance de novo. The court noted that a "fair and just reason" for withdrawing a plea (as required once it has been accepted) would be a defective plea proceeding before a magistrate judge. Second, he argued that his plea was not knowing and voluntary because the magistrate judge failed to adequately explain the elements of the offense and incorrectly stated the maximum term of supervised release he faced. Finally, Benton renewed his argument that his original counsel was ineffective.

Court Affirms Second-Chance Variance

US v. Curry: Curry sold gold coins on eBay. Problem was, he "sold" coins which he never had in his possession. When the deals began to fall apart and jilted buyers complained, the FBI came calling. Curry was charged and convicted by a jury of multiple counts of mail fraud, wire fraud, and unlawful monetary transactions. At sentencing, Curry's Guideline range came out to be 41 to 51 months. However, the district court imposed a sentence of 12 months on each count (served concurrently), along with 12 months of home confinement, following Curry's argument for a Booker variance. The Government appealed the sentence and the Fourth Circuit vacated and remanded for resentencing.

On remand (pre-Gall), the district court varied again, but only down to 36 months. In doing so, it indicated that any greater variance would only result in another reversal from the Fourth. At a post-sentencing bond hearing, the court said if it were not "laboring under the Fourth Circuit's constraints I would have done something considerably different." Not surprisingly, Curry appealed. Equally unsurprisingly, the Fourth Circuit affirmed the sentence. Noting that it could only pass judgment on the sentence actually given ("That the district court judge expressed frustration with the law does not make the law any less binding"), the court concluded that the 36-month sentence imposed by the district court was reasonable.

Cocaine Purchase for Personal Use Triggers 843(b) Liability

US v. Abuelhawa: A was charged and convicted of using a communication facility to facilitate a crime, the distribution of cocaine, in violation of 21 USC 843(b). The conviction was based on a two groups of phone calls between Abuelhawa and Said, from whom Abuelhawa purchased cocaine. After he was arrested, Abuelhawa gave a statement in which he explained that Said was his dealer. Abuelhawa was sentenced to 24 months in prison.

On appeal, Abuelhawa unsuccessfully made two arguments. First, he argued that a conviction under 843(b) couldn't be sustained if the crime that was facilitated was the simple distribution of drugs for personal use. Noting that the circuits are split on this issue, the Fourth Circuit focused in on what it meant to "facilitate" a crime, giving that word its plain meaning. The court also noted that the statute prohibits the use of the communication facility to commit a felony, but doe not identify whose felony it must facilitate. As a result, the court concluded that Abuelhawa's use of the phone facilitated Said's distribution of cocaine to him, as it made the distribution easier. That Abuelhawa's simple possession of cocaine is not a felony is "simply irrelevant." Second, Abuelhawa argued that the evidence was insufficient to sustain his conviction because any actual distribution of cocaine as a result of the two sets of phone calls. After reviewing the evidence, the Fourth Circuit rejected that argument and affirmed Abuelhawa's conviction.