Second 2255 Isn't "Second or Successive" After Prior Conviction Vacated

US v. Hariston: Hairston was convicted in 2003 of a drug conspiracy charge.  His sentence was based on a Criminal History Category IV, which was calculated including a prior North Carolina traffic offense that occurred during a time in which, Hairston claimed, he wasn't in North Carolina.    He subsequently filed a 2255 that was denied.  He also filed a motion in North Carolina court to have that conviction set aside.  That motion was granted, in 2011.  Shortly thereafter, Hairston filed a new 2255, seeking a resentencing based on a CHC III.  The district court dismissed the motion as an unauthorized second or successive motion.

On appeal, the Fourth Circuit reversed.  First, the court rejected the Government's argument that Hairston had waived his right to challenge the prior conviction via his plea agreement because, ironically, the Government had failed to raise that argument at the informal briefing stage.  In other words, the Government waived its waiver argument (ha!).  Next, the court concluded that Hairston's second 2255 was not "second or successive" because it was based on facts that weren't available to him when he filed his initial 2255.

Some Convictions Vacated, But Sentence Still Stands

US v. Barefoot: In 2002, Barefoot pleaded guilty to possessing a firearm while under a domestic violence protective order after he was found in possession of scores of guns and explosives and a pair of Kinestik "binary explosive cartridges" were found in his son's possession.  As part of the plea agreement, the Government agreed not to prosecute him for "conduct constituting the basis for the Indictment" or to use statements made during debriefing in future proceedings not involving "crimes of violence."  Barefoot gave a lengthy debriefing in which he (among other things) admitted obtaining the Kinestik charges and being involved with the murder of a fellow KKK member who was believed to be an informant.

After being finishing his sentence on the 2002 charge, Barefoot was charged in state court with involvement in the informant's murder.  He was also charged with a new six-count federal indictment with: (1) conspiracy to possess stolen firearms; (2) possession of stolen firearms; (3) solicitation to arson involving a local courthouse that also contained a VA office; (4) receiving explosives, that is the Kinestik charges; (5) improper storage of explosive materials (a misdemeanor); and (6) distributing explosive materials to a person under 21 years of age.  He went to trial and was convicted on all charges.  He was sentenced to 60 months on Count 1, a consecutive 120-month term on the other felony charges (to be run concurrently with each other), and a 12-month sentence on the misdemeanor, to run concurrently with the other imposed sentences.

Barefoot challenged his convictions and sentences on multiple grounds.  The Fourth Circuit reversed two of his convictions, but affirmed the others as well as his sentence.  First, it concluded that the district court did not abuse its discretion  by denying Barefoot's request that he represent himself at trial due to concerns about his ability to do so given previous concerns about his competency.  Second, it concluded that evidence about Barefoot's involvement with the informant's murder was admissible under FRE 404(b) to show the animosity between him and the sheriff whose office was in the courthouse that would have been bombed.  Third, the court found there was sufficient evidence to convict Barefoot on Counts 3 and 4.  On Counts 5 and 6, the court concluded that they were not "crimes of violence" and therefore the plea agreement immunized Barefoot from being subject to those charges.  Therefore, the court vacated those convictions.  However, the court concluded (after concluding that the district court correctly grouped the various offenses), that the vacation of those charges "had no material effect on his sentence" and therefore declined to order a remand for resentencing.

Robberies of Marijuana Dealers Trigger Hobbs Act Liability

US v. Taylor: Taylor was part of a group that planned to rob drug dealers.  The only problem (well, the first problem) is that the people they targeted for robberies didn't really have much to take.  During a first robbery, they made off with $40, some jewelry, two cell phones, and a joint.  During the second, they managed only a cell phone.  Both robberies involved pistol whipping, groping, and holding a six-year old at gunpoint.  Taylor was charged with two counts of robbery under the Hobbs Act and two counts of using a firearm in furtherance of a crime of violence.  After a first trial ended in a mistrial, the Government successfully precluded Taylor from offering evidence that the drugs involved in the robberies was marijuana that was grown in the same state, and thus did not affect interstate commerce.  Taylor was convicted on all counts, save one of the gun counts, and sentenced to 336 months in prison.

On appeal, Taylor argued that there was insufficient evidence that the robberies affected interstate commerce and that he should have been allowed to put on evidence of the marijuana's in-state origin.  The Fourth Circuit rejected both those arguments and affirmed.  First, it concluded that there was sufficient evidence that the targets of the robberies were drug dealers and that Taylor "depleted or attempted to deplete" their assets during the robberies.  In addition, the items taken during the robberies, while not of significant value, were enough "to meet the de minimis standard under the depletion-of-assets theory."  Second, it concluded that the district court did not abuse its discretion by limiting the evidence Taylor could present about the source of the marijuana.

185-month Sentence Affirmed for Fake CPA

US v. Weiss: Weiss ran a "professional employer organization" for ten years in North Carolina, providing "human resource functions, including payroll processing, for companies through employee leasing agreements."  During that time, he falsely held himself out to be a CPA.  Over that time, he pocketed funds from companies that should have been paid to the IRS, state tax authorities, and workers' compensation insurance companies.  All told, Weiss diverted to his own use nearly $5 million.  He also filed false personal income tax returns, underpaying more than $1 million in taxes.  He also used false tax returns to secure bank loans to finance the construction of a new home.  Finally, he filed false insurance claims for jewelry he had reported stolen, but were recovered in his home pursuant to a search by law enforcement.  For all his trouble, Weiss pleaded guilty to charges of wire fraud, money laundering, making false loan statements, and tax evasion.  He was sentenced to 185 months in prison.

Weiss challenged his sentence on appeal, arguing it was procedurally unreasonable for several reasons, all of which Fourth Circuit rejected.  First, the court upheld the imposition of a two-level enhancement for abuse of a position of trust, concluding that Weiss's holding himself out as a CPA, even if he was not acting as an accountant for his victims, nonetheless aided his scheme because it led the victims to reasonable believe he had a special skill that would aid his job performance.  Second, the court upheld the loss calculation, concluding that the district court correctly included the amount Weiss obtained by not accurately reporting his taxed with the loss amounts from the other schemes.  Finally, the court concluded that the failure of the district court to sua sponte appoint experts to assist in his defense at sentencing was, at the very least, not plain error, if it was error at all.

When a Burglary Is Not a Crime of Violence

US v. Martin: This is yet again another case that wades into the murky waters of figuring out whether a prior conviction is a "crime of violence" or not.  Martin pleaded guilty to being a felon in possession of a firearm, with two prior convictions.  One, everyone agreed, was a crime of violence and made his base offense level at least 20.  The Government argued that the other, a 2009 conviction in Maryland for fourth-degree burglary, was, too, and bumped Martin's base offense level to 24.  The district court agreed and sentenced Martin to the bottom of the resulting Guideline range.

On appeal, a divided Fourth Circuit reversed, concluding that the 2009 conviction was not a crime of violence.  The court first noted that the Maryland conviction did not have an element involving physical force.  It also concluded that it was not a "burglary of a dwelling," even though a dwelling was involved, because it did not match the generic elements of burglary set out by the Supreme Court because it did not require the intent to commit  a crime when making the unlawful entry.  Therefore, the court moved on to the inquiry of whether the 2009 conviction "otherwise involves conduct that presents a serious potential risk of physical injury to another."  Which is where it got complicated.

The court first looked to the Supreme Court's decision in Begay (2008), which emphasized the need to analyze the conviction in question to determine whether it was similar in kind as well as the degree of risk posed by the enumerated offenses.  However, it noted that the Supreme Court in Sykes (2011) emphasized the degree of risk analysis over all else.  Martin argued Begay's two-step analysis applied, while the Government argued that Sykes limited the two-step analysis to only crimes that were akin to strict liability offenses.  Noting that, while some Circuits have gone the route urged by the Government, the Fourth Circuit has continued to employ Begay will full force, the court proceeded to the two-step analysis.  Ultimately, it concluded that the 2009 conviction posed a similar degree of risk to generic burglary, but lacked the "purposeful" conduct of the enumerated offenses.  Therefore, the offence of fourth-degree burglary in Maryland is not a crime of violence for career offender purposes.

Judge Diaz concurred, explaining that if he was "writing on a cleaner slate," he would have ended the analysis after concluding that the 2009 offense posed a similar risk to generic burglary.  District Judge O'Grady dissented, arguing that the post-Sykes law in the Fourth Circuit is not so definitive and that only the degree of risk analysis is needed.  Nevertheless, he goes on to argue that even under the Begay two-step approach, the 2009 conviction is a crime of violence.

Notably, both Diaz and O'Grady point out that next term the Supreme Court will again return to this issue (in an ACCA case involving a sawed-off shotgun) and, perhaps, provide some more clarity in this area.

Courts Martial Are Convictions from "Any Court" for ACCA Purposes

US v. Grant: Grant was convicted of being a felon in possession of ammunition.  Based on two prior courts martial involving crimes of violence, he was designated as an armed career criminal and sentenced to 212 months imprisonment.

On appeal, Grant challenged his sentence, which the Fourth Circuit affirmed.  Using a 2005 Supreme Court decision that held foreign convictions don't constitute convictions from "any court," Grant argued that courts martial are sufficiently different from civilian courts that they should not be considered part of any court.  Relying largely on legislative history, the court concluded that whatever differences exist between the two doesn't override the reasons for enacting the ACCA in the first place.

Analogue substances conviction upheld

US v. McFadden:  Stephen McFadden received nine convictions in connection with his distribution of “bath salts,” in violation of the Controlled Substance Analogue Enforcement Act of 1986, 21 U.S.C. sect. 813.   On appeal, McFadden argued that the statute was unconstitutionally vague as applied to him, that the district court erred in some of its evidentiary decisions during trial, and that the government failed to prove that whatever substance McFadden distributed qualified as an analogue under the Act.  The Fourth Circuit affirmed, finding that included under the rubric of the Act were the bath salts that McFadden distributed.

McFadden’s void for vagueness constitutional challenge was rejected based on the Circuit’s holding in an earlier case, Klecker, which dealt with another designer drug, commonly known as “Foxy.”  In that case, the Fourth Circuit observed that the considerable similarities between Foxy and the Schedule 1 substance DET were sufficient to put a reasonable person on notice of the proscribed conduct, that is, Foxy was a DET analogue.  The Fourth Circuit panel applied the same reasoning to the instant case, finding that expert testimony supported the conclusion that the chemical structures of bath salts were sufficiently similar to the Schedule 1 substances 4-MEC, MDVP, and methylone, and a reasonable person in McFadden’s position would understand that his conduct was prohibited by the Act.  Further, the Fourth Circuit used Klecker as its basis for rejecting McFadden’s challenge to the district court’s refusal to give a specific knowledge instruction to the jury.

The Fourth Circuit also affirmed the district court’s decision to admit a bath salt user’s testimony to prove the effects of the designer substance, as there was sufficient evidence presented to prove that McFadden made the bath salts that he distributed.  The Fourth Circuit affirmed the admission into evidence of taped phone conversations between himself and Lois McDaniel, who had previously sold McFadden’s bath salts in her video rental store.  McDaniel agreed to cooperate with investigators, and worked as a confidential informant, and the Fourth Circuit rejected McFadden’s relevancy challenge to them.  Finally, McFadden’s sufficiency of the evidence and denial of his motion for acquittal arguments failed, because the panel found the government’s expert testimony about the chemical composition of the bath salts and their effects were sufficient evidence here.

Harmlessness no substitute for proper procedure

US v. Ferguson:  The district court found that Jori Ferguson violated his supervised release by possessing marijuana.   Ferguson appealed, alleging that in the absence of good cause for expert unavailability, it violated the Federal Rules of Criminal Procedure rules to admit a laboratory report without calling the expert who prepared the report to testify.

According to the Fourth Circuit, while revocation hearings are less formal than criminal trials, some due process rights apply!  Reiterating the circuit’s holding in Doswell, the Fourth Circuit held here that unless the government makes its showing of good cause for the unavailability of its relevant witness, hearsay evidence is not admissible at revocation hearings.  There is a balancing under Rule 32.1, with the releasee’s interests in confronting an adverse witness, against the government’s good cause for denying such confrontation.  Reliability is an important factor, but not a dispositive one.

And, “[f]inally, we emphasize our displeasure with the government’s barefaced failure to abide by our command in Doswell.  In may cases, a facially compelling harmlessness argument can be made because, as noted above, defendants who have been stripped of their confrontation rights will be hard-pressed to point to concrete symptoms of the constitutional harm that afflicts them.  We refuse to let the government take advantage of this reality, essentially ignoring our command in Doswell by using harmlessness as a substitute for proper procedure.”   Even while dissenting from the majority’s position that the error here was not harmless, Judge Keenan concurred that the “government must act diligently to ensure that revocation proceedings be conducted fairly in accordance with the plain requirements of the Federal Rule of Criminal Procedure 32.1(b)(2)(C).”

Decoding expert's testimony and substantial prejudice lead to new trial

US v. Garcia:  Danilo Garcia received five convictions for his alleged involvement in a narcotics trafficking ring that operated between New York City, Philadelphia and Baltimore.  One of three co-defendants out of a group of fourteen people indicted by a grand jury in Maryland, Garcia proceeded to a trial wherein the government presented the testimony of investigating agent/attorney as both a fact witness, based on her observations having listened to thousands of taped phone conversations, and as an expert “decoding” witness, who could testify as to coded meanings the co-conspirators alleged used in the course of the alleged drug trafficking.

On appeal, Garcia challenged the admission of the decoding expert agent’s testimony as well as the denial of his motion for judgment of acquittal for lack of sufficient evidence as to one of the substantive counts of conviction.  The Fourth Circuit reversed the convictions, holding that the admission of the decoding expert’s testimony resulted in substantial prejudice to the defendant because neither the district court’s cautionary instructions, nor the sporadic sustaining of defense counsel’s “early and often, always respectfully” objections, adequately mitigated the risks the testimony presented.

The Fourth Circuit stated that the while the district court manifested a “deep familiarity with this Circuit’s settled guideposts with regard to this type of testimony,” there were problems the district court identified early with respect to this agent’s testimony: the blurring of the distinctions between lay fact testimony (her personal knowledge) on one hand and her expert opinion testimony gained through training and experience on the other; and ensuring that the agent testified on the basis of her experience and expertise in coded language, and not what cooperators or witnesses told her.

The Fourth Circuit found no problem with the agent’s qualifications as an expert, which adhered to Circuit precedent; it did, however, find fault with the nature of her testimony, as well as how extensive and highly influential it was in the jury’s evaluation of the government’s case.  The jury instructions given did not mitigate the prejudice, as a jury might reasonably have assumed that all of the agent’s testimony was based on her decoding expertise, as evidenced by the multiple occasions the agent testified about information she gathered in the investigation - none of which had anything to do with her decoding expertise.  The Fourth Circuit found the agent’s testimony impermissibly exceeded the bounds of Federal Rule of Evidence 702, which contemplates expert evidence “will be ‘helpful to the jury,’ not merely helpful to the prosecutor as transmutations of simple fact testimony.”  The agent’s testimony lacked independent judgment, and the government failed to elicit proper foundations to demonstrate the agent’s claimed reliably-applied methodology.

Guilty Verdict Actually Requires Guilty Verdict

US Ramirez-Catillo: Ramirez-Catillo was serving a sentence at FCI Estill when officials recovered two potential weapons from his cell.  One, "[a] homemade shank," was found on Ramirez-Catillo's person, while the other, a "piece of metal, sharpened to a point on one end" was found in his locker, along with several pairs of shoes and other personal items.  He was charged with possession of "two homemade weapons" in prison.  At trial, he testified that he used the "shank" to repair shoes (and showed where such repairs had been done on shoes recovered from his cell) and that he had never seen the "piece of metal" prior to the search, but admitted that it could be used as a weapon. The verdict form asked the jury two questions, whether the shank was a weapon and whether the piece of metal had been possessed by Ramirez-Catillo (as he conceded possessing the shank and that the piece of metal was a weapon), but did not specifically include choices for "guilty" or "not guilty."  The jury answered "yes" to both questions.  The district court concluded that Ramirez-Catillo was "adjudicated guilty" and sentenced him to 33 months in prison.

On appeal, the Fourth Circuit reversed the conviction.  Applying plain error review, the court concluded that "we do not hesitate to conclude that Appellant's right to have a jury determine his guilt beyond a reasonable doubt was violated."  Rather than seeking a guilty/not guilty verdict, the district court put to the jury only questions to factual questions on disputed elements, but not all the elements of the offense.  At the court noted "the jury never actually returned a guilty verdict.  In fact, it was never given the opportunity to do so."  That error was plain, affected Ramirez-Catillo's substantial rights, and was the type of error of which the court would take notice.

Second Amendment Doesn't Protect Pot User's Possession of Firearms

US v. Carter: Carter was a user of marijuana.  Police arrived at his home, pursuant to a complaint about drug dealing.  Carter allowed them to enter and informed the officers he had two guns in the house.  There was no evidence of drug dealing.  Carter, nonetheless, was charged with being a drug user in possession of a firearm.  He moved to dismiss the charge, arguing that the statute violated his right to keep and bear arms under the Second Amendment.  He possessed the guns for his own protection, he argued (shortly after his arrest, Carter's neighbor was shot 8 times in a robbery).  The district court denied the motion, Carter entered a conditional guilty plea and was sentenced to probation.

In an initial appeal, the Fourth Circuit reversed the conviction and remanded to the district court.  Applying the two-step intermediate scrutiny analysis from Chester, the court concluded that while Carter's drug use took him outside the "core" of the Second Amendment right, the Government has not shown the right "fit" between the statute and its compelling interest in attacking gun violence.  The court remanded the case to the district court for further proceedings.

On remand, the parties submitted numerous studies addressing drugs and firearms.  Upon review of those submissions (and some the district court requested by put into the record at its request), the district court again denied Carter's motion to dismiss.  The district court concluded that the studies showed a link between gun use and drugs that made the statute an appropriate fit, noting it only had to be "reasonable," not "perfect."  Carter's term of probation - which he had already successfully completed - was reimposed.

Carter returned to the Fourth Circuit, which again affirmed the district court's denial of his motion to dismiss.  The court first rejected Carter's argument that the district court erred by relying on factors outside the record generated on remand - including "common sense" - that had been available to the court on the first appeal.  It then proceeded to examine the studies submitted on remand and concluded that the Government's studies showed a "strong link between drug use and violence" and dismissed Carter's argument that the studies were flawed, overbroad, and dealt with drugs aside from marijuana.  As a result, the court joined every other Circuit Court do address the issue and concluded that the drug-user-in-posession-of-a-firearm statute does not fun afoul of the Second Amendment.

DISCLAIMER: Your humble narrator was co-counsel for Carter on this case.

Victims of Hobbs Act Conspiracy Can Also Be Part of It

US v. Ocasio: Ocasio was a Baltimore police officer who was part of a scheme to direct business to a local car repair shop, in return for kickbacks.  He was originally charged, along with several other officers and the owner/operators of the shop, with conspiracy to violate the Hobbs Act.  Each of the other defendants pleaded guilty, while a superseding indictment charged Ocasio and a different officer with the same conspiracy, along with substantive Hobbs Act extortion violations.  Ocasio was convicted at trial on all counts (his codefendant pleaded guilty after the Government rested its case).  He was sentenced to 18 months in prison and ordered to pay restitution of $1500 to the police department and $1870 to Geico, based on a fraudulent insurance claim made regarding Ocasio's wife's car at the repair shop.

On appeal, Ocasio challenged both his convictions and his restitution order.  The Fourth Circuit affirmed the conviction, rejecting Ocasio's argument that the conspiracy conviction was "fatally flawed."  He argued that one cannot be convicted (under federal law) of conspiring with the victims of the scheme (in this case, the shop and its owner/operators).  Relying on prior circuit precedent, the court distinguished between a conspirator/victim whose conduct consisted of "mere acquiescence" to the scheme and one who was an active participant.  In other words, an active participant can be both a conspirator and a victim of the scheme.  As a result, it affirmed the conspiracy conviction based on the active roles of the victims.  The court rejected a competing Seventh Circuit reading of the statute favorable to Ocasio, holding it was precluded by circuit precedent.  As to restitution, the court concluded that Geico was not a victim of Ocasio's offenses of conviction and, therefore, vacated the restitution order.

Court Splits On Assumed Harmless Error Analysis For Within Guideline Sentences

US v. Gomez-Jimenez: This is a consolidated appeal involving two codefendants, Gomez-Jimenez and Juarez-Gomez (there was a third defendant, Pedro, who didn't appeal).  Investigators used a CI to make several controlled purchases of cocaine from Juarez-Gomez.  After the final buy, Juarez-Gomez was arrested and officers went to search a mobile home, where Gomez-Jimenez and a minor were located, along with drugs, cash, and a firearm.  All three defendants were charged with conspiracy to distribute and possession with intent, with Juarez-Gomez additionally being charged with four counts of distribution and being an illegal alien in possession of a firearm.  Gomez-Jimenez pleaded guilty to both counts.  The district court imposed a sentence of 180 months in prison, noting that even if it had calculated the Guidelines incorrectly, it would impose the same sentence.  Juarez-Gomez went to trial and was convicted on all counts, aside from the firearm count.  He was sentenced to 390 months in prison, with the district court again noting it would have imposed the same sentence regardless of the Guideline calculations.

The Fourth Circuit affirmed all sentences and convictions, but not unanimously.  Juarez-Gomez challenged conspiracy and possession with intent convictions, which the court concluded were supported by sufficient evidence.  As to sentencing, Juarez-Gomez argued that the district court erred by enhancing his sentence for use of a minor to commit or avoid detection or apprehension for the offense.  Recognizing that the enhancement only applies where there is evidence "beyond the minor's mere presence," the court concluded that the district court did not clearly err in applying the enhancement because there was sufficient evidence that the minor was involved with the offense.  Gomez-Jimenez argued that the district court erred by enhancing his sentence for possession of a firearm because he did not possess a firearm during any drug transaction.  The court disagreed, noting that three guns were found in the trailer (along with Gomez-Jimenez) and there was ample evidence to support the enhancement.  Both defendants challenged another enhancement, but the court declined to address them on the merits and proceeded to an assumed harmless error analysis.  The court concluded that the district court had expressly stated it would have applied the same sentences regardless of any Guideline calculation error and the resulting sentences were substantively reasonable.

Judge Gregory concurred with regards to Juarez-Gomez's convictions and Gomez-Jimenez's firearm enhancement, but dissented with regards to everything else.  First, he argued that the definition of "use" in the Guidelines with regard to a minor is "elastic," but did not stretch so far as to include the conduct in this case.  Second, he argued that the district court's announcement that it would have imposed the same sentences regardless of the Guidelines calculations was not sufficient for the court to be "clear" such would have happened, as the sentences then imposed would have been large upward variances that the district court did not justify.

Court Affirms Death Sentence In Double Murder; No Right of Confrontation At Capital Sentencing

US v. Umana: Umana shot and killed two men in a North Carolina restaurant after a dispute over music and because one of the victims disrespected MS-13, the gang to which Umana belonged.  He was convicted on multiple counts arising from the murders which carried the potential maximum sentence of death.  During trial, Umana tired to smuggle a blade into the courtroom and threatened a witness after he testified.  After hearing evidence about Umana's lengthy history with MS-13 (which continued after his arrest), including participation in other murders, the jury sentenced him to death.

The Fourth Circuit affirmed Umana's convictions and sentence.  On the convictions, it first concluded that venue was proper in the Western District of NC, even though the shootings took place in the Middle District, because the racketeering operation of which the murders were a part took place in both districts.  Second, the court rejected (under a plain error analysis) Umana's argument that the murder in aid of racketeering charges fell outside the scope of Congress's authority under the Commerce Clause.  Third, the court rejected Umana's argument that two jurors, who expressed some equivocation as to their ability to fairly consider the case, should have been excused for cause.

On the sentence, the court first held that the use of a statement Umana gave to California investigators after his arrest about his activities there did not violate the Fifth Amendment, as he was given Miranda warnings, he explained them, and was otherwise willing to talk.  It did not matter that the investigators told him the statement would not be used in this case and he had "nothing to lose" by talking to them.  Next, the court concluded that the testimony of officers about their interviews with other witnesses was properly admitted, as it was not hearsay and did not implicate the Confrontation Clause, which does not apply during sentencing proceedings.  Nor did the district court err by admitting those statements, even though they contained comments from the investigators that appeared to vouch for their credibility.  Third, the court held that the district court did not err by precluding Umana from introducing evidence of murders committed by his coconspirators, in order to show "his own violent proclivities were not unique, but rather were a 'product of social conformity.'"  Finally, the court rejected Umana's claim that statements by the prosecution during closing arguments were improper and prejudicial.

Judge Gregory dissented, arguing that the Confrontation Clause does apply to capital sentencing, although it does not in non-capital sentencing proceedings.

NOTE: The court denied Umana's request to reconsider its decision en banc.  The request did, however, provoke substantive opinions from Judge Wilkinson (not in favor of rehearing) and Judge Gregory (in favor), which can be found here.

Child Porn Distribution Is Relevant Conduct of Possession Offense

US v. McVey: McVey was convicted of possession of child pornography based on a DVD he received from an undercover police officer.  During a statement to police after his arrest, McVey admitted that he had uploaded child pornography to the Internet five or six times over the course of ten years.  In addition, investigators found a tip report of McVey uploading child pornography 30 months prior to his arrest.  At sentencing, the district court concluded that the uploading constituted relevant conduct, and therefore triggered the Guideline distribution enhancement. McVey was sentenced to a term just below the resulting Guideline range.

On appeal, the Fourth Circuit affirmed the district court's relevant conduct determination.  The court first concluded that the proper standard of review was clear error, rather than de novo, because the issue was ultimately about the weighing of evidence, not the legal analysis used to determine whether something was relevant conduct.  The court then went on to conclude that the district court did not clearly err in finding that McVey's distribution constituted relevant conduct.  Particularly, the court relied on McVey's statement that he had distributed child pornography several times over the past ten years and the similarity of his offense of conviction (possession) with the prior conduct (distribution).  The court noted that "[p]ossession is a necessary prerequisite for distribution."

Court Affirms Pro Se Drug Conviction

US v. Galloway: Galloway was implicated as part of a drug investigation that began in San Diego, but eventually reached Galloway in Baltimore.  He was convicted of conspiracy to distribute heroin, based largely on evidence gained from wiretaps of his cell phones, as well as the expert testimony of two investigators (one from San Diego, the other from Baltimore) about the nature of the drug operation.  Galloway represented himself at trial, after firing two prior attorneys.  He was sentenced to 292 months in prison.

On appeal, the Fourth Circuit affirmed Galloway's conviction (he did not challenge his sentence).  The court first rejected Galloway's claim of ineffective assistance of counsel (of his initial, retained counsel, fired well before trial), holding that he could not conclusively prove either ineffectiveness or prejudice, noting that Galloway's second counsel had an opportunity to make up for any errors of the first and that, ultimately, Galloway represented himself at trial.  Next, the court concluded that the district court had not abused its discretion by limiting Galloway's review of discovery and other documents, limiting his access to the lockup in the courthouse, rather than allowing him to retain documents at the jail.  Third, the court affirmed the district court's decision that there was sufficient evidence to justify one of the wiretaps at issue.  Finally, the court concluded that the district court had not plainly erred by allowing the investigators to testify as experts.

No Problem With 120-Year Sentence for Child Porn Producer

US v. Cobler: Cobler sexually abused a four-year-old boy (at a time when he was "afflicted by a serious communicable disease"), which he documented on video and in pictures.  He also admitted to downloading and sharing child pornography over a peer-to-peer network on the Internet.  Cobler pleaded guilty to multiple child pornography offenses, including three production counts, and was sentenced to 120 years in prison.

The Fourth Circuit affirmed Cobler's sentence.  He argued first that it violated the Eighth Amendment's ban on cruel and unusual punishment.  The court reaffirmed its position that an "extensive proportionality" analysis is available only in cases of actual life terms in prison or de facto life terms.  It then concluded, as the first step of that analysis, that Cobler's sentence was not "grossly disproportionate to his crimes."  Calling his conduct "shocking and vile," the court concluded it was "at least as grave" as the cases in which the Supreme Court had upheld life sentences.  The court also found Cobler's sentence to be reasonable, concluding that he had not rebutted the presumption of reasonableness for his within-the-Guidelines sentence.

Simmons-Fueled Miscalculation of Career Offender Status Can Be Reviewed In 2255 Proceeding

Whiteside v. US: This is yet another in the line of cases arising from the Fourth Circuit's sea change on how it views North Carolina's sentencing scheme in Simmons.  Whiteside was classified as a career offender before Simmons based on a pair of North Carolina convictions.  Within a year of Simmons being decided, but more than a year after his case had become "final," Whiteside filed a 2255 motion seeking to vacate his sentence.  The district court dismissed the motion, concluding that it was untimely, that Whiteside had waived his right to file it due to a waiver in his plea agreement, and that, at any rate, he had no right to relief because his sentence was within the correct statutory range.

A deeply divided Fourth Circuit reversed.  Judge Gregory, for the majority, first concluded that Whiteside had not waived his right to file the 2255 motion, noting that there was conflicting language in the agreement and, when construed against the Government, Whiteside's challenge to his career offender status was not waived.

Second, the court concluded that although Whiteside's motion was filed outside the usual one-year window, it was filed within one year of the decision in Simmons and equitable tolling applied because extraordinary circumstances (of which Whiteside had no control) prevented him from filing the motion earlier.  Those circumstances, the court candidly acknowledges, included its own incorrect decisions about the North Carolina scheme before it reversed course in Simmons.  Specifically, had Whiteside filed a 2255 motion within one year of his case becoming final, it would have been futile under then binding Fourth Circuit law.  The court labelled the Government's argument that he should have filed one anyway as "having an air of absurdity about it."

Finally, turning to the merits, the court concluded that Whiteside could challenge his sentence collaterally due to "an incorrect application of the career offender enhancement."  It distinguished this from the "ordinary misapplication" of the Guidelines, which is not a "miscarriage of justice" and not subject to collateral attack.  In response to the dissent, it points out that the "career offender enhancement is plainly not a run-of-the-mill guideline."  In doing so, the court noted that other circuits have not reached the same conclusion, except for the Eleventh Circuit, in a panel decision that's already been vacated pending an en banc rehearing.  Nonetheless, relying on recent Supreme Court decisions emphasizing the key role of the Guidelines in a post-Booker world, the court held that an erroneous career offender designation meets the high standard required for 2255 relief.  It rejected the Government's argument that the sentence was "lawful" because it was within the applicable statutory range, aside from any Guideline issues.  Whiteside's sentence was vacated and remanded for further proceedings.

Judge Wilkinson wrote a lengthy dissent, in which he argued that the court's decision was a "dramatic expansion of federal collateral review" that "makes a shambles of the retroactivity doctrines that have long safeguarded the basic finality of criminal convictions."  He argued that Whiteside's sentence was not improper when it was applied and that no change in the law sense makes it the kind of violation (a due process violation, specifically) that is reviewable in a 2255 proceeding.  He also argued that there was no miscarriage of justice in Whiteside's sentence, noting how divided the court was when Simmons itself was decided.  To conclude otherwise was to "adopt a naively Whig history of law as an unbroken march toward progress and enlightenment." (To which the majority responds that the dissent is "rank with the fearful mistrust of individualized decision-making inherent to traditional conservatism.").  He also argued that Whiteside's motion was untimely and that futility was not a valid reason for not filing a 2255 before Simmons was decided.  Wilkinson concluded that "I view this decision as wholly wrong and deeply damaging to our criminal-justice system."

Senior Judge Davis concurred, noting that the majority opinion "fully responds to the dissent's overwrought and formalistic protestations that our judgment here presages an end to law as we know it." He called the dissent "hopelessly pleased with itself . . . as it prostrates itself at the altar of finality."  He also took the dissent and the Government to task for putting control of whether such cases would be reviewed in the hands of the Department of Justice (which, the opinion shows, had frequently not invoked waivers in similar cases), rather than the courts.

Congrats to the Defender office in the Western District of NC on the win!

NOTE: On June 6, 2014, the Government filed a petition for rehearing en banc in this case.  Rehearing was granted and, on December 19, 2014, the en banc court reversed and affirmed the denial of Whiteside's 2255 motion.

Defendant appeals conviction; government cross-appeals forfeiture request rejection

US v. Blackman:  Khalil Blackman received two convictions after a bench trial for his part as the fence in an armed robbery conspiracy.  The other conspirators took pleas and agreed to cooperate with the Government.  He was convicted of conspiracy to commit robbery, and using or carrying a firearm during and in relation to a crime of violence.  At sentencing, the district court imposed a restitution award of the value of the stolen goods (imposed jointly and severally with co-conspirators), but rejected the Government’s request for forfeiture in the same amount.  On appeal, Blackman challenged the sufficiency of the evidence; the Government cross-claimed, arguing the district court erred in denying its forfeiture request.

On appeal, Blackman argued that the evidence was insufficient to support his conviction, especially his conviction for carrying a firearm during a crime of violence, as he did not personally participate in the armed robberies; also, that the district court erred in basing its judgment on Pinkerton when the indictment did not mention that case.  The Fourth Circuit panel cited to an earlier case, U.S. v. Ashley, in which it held that it is not necessary for an indictment to mention Pinkerton in order for that case to serve as the basis for a conviction. Further, “when one reaps the benefits of a collective criminal enterprise, one should be prepared to accept collective consequences.”

With respect to the government’s cross-claim, the panel reversed the district court’s forfeiture ruling as unsupported by any legal authority.  According to statute, when the necessary prerequisites are met, forfeiture must be imposed; it is not a matter for judicial discretion.  Here, the necessary predicates had been met, and the Fourth Circuit determined that the district court erred when it decided to not order forfeiture.  The panel remanded this portion of the case back to the district court for the imposition of a forfeiture money judgment in the amount of the stolen goods.

Supervised release does not begin during civil detention under Adam Walsh Act

US v. Neuhauser:  The issue in this case reached the Fourth Circuit following Neuhauser’s appeal of the district court’s decision to deny his motion to terminate his supervised release.  In 1999, he had been imprisoned for child sex offenses, a sentence which included three years of supervised release.   Prior to his release from prison, the government certified him as “sexually dangerous,” under the Adam Walsh Act, preventing his release from incarceration for the next four-and-a-half years.  At that time, the district court determined that Neuhauser did not meet the criteria for further civil commitment, so he was released from prison.

Upon his release from civil detention, Neuhauser moved to terminate his supervised release, arguing that the term imposed had started upon the end of his criminal sentence while he was still in jail on a civil commitment.  Further, he argued that civil confinement does not constitute imprisonment.  The district court disagreed, reasoning that “release from imprisonment” occurs only when a person is freed from confinement; and that Neuhauser’s supervised release started when his civil detention ceased.  Neuhauser timely appealed.

The Fourth Circuit panel started with the statute governing release from prison, 18 U.S.C. § 3624(e), in which it states, the “term of supervised release commences on the day the person is released from imprisonment.” The panel found Neuhauser’s definition of imprisonment did not jive with the broad definition of “imprisonment” it read in the statutory language.  Moreover, the panel found related Supreme Court analysis which rejected Neuhauser’s argument, holding that supervised release has no statutory function until confinement ends.  Additionally, other courts considering this precise issue have recently held that supervised release does not begin until an individual detained pursuant to the Adam Walsh Act is released from confinement (Eighth Circuit and District of Maryland).  The Fourth Circuit affirmed the denial of Neuhauser’s motion to terminate his supervised release.

NCIC report & other government corroboration establish the fact of an old conviction by a preponderance of the evidence, yet Sixth Amendment claim carries some force

US v. McDowell:  Ernest McDowell pleaded guilty to possession with intent to distribute heroin and being a felon in possession of a firearm.  At sentencing, the probation officer recommended McDowell be sentenced as an armed career criminal, based upon three prior convictions that allegedly met the definition of “violent felony,” except that one of these convictions, a 1971 NY conviction for second degree assault, lacked a formal judgment documenting it.  The government, in order to establish the existence of this conviction, relied on an NCIC report for its proof but failed to incorporate it into the record.  The district court sentenced McDowell as an armed career criminal, and he appealed.

In the first appeal, the Fourth Circuit found error by the district court by basing its sentence on the NCIC without making the report part of the record.  On remand, McDowell renewed his argument that the NCIC was “inherently unreliable” as a means of proving the existence of this conviction (which he never conceded) for ACCA purposes.  The district court entered the NCIC into the record, in addition to some other corroborative information the government located, i.e., NY Dept. of Corrections info and fingerprint analysis results that indicated the 1971 conviction was McDowell’s.  The district court sentenced McDowell again as an armed career criminal, but imposed a shorter sentence than the first one imposed, on account of McDowell’s “good behavior in the interim.”

On this appeal, McDowell raises a procedural and constitutional challenge to his sentence, arguing that the NCIC report cannot establish the fact of the 1971 conviction by a preponderance of the evidence, and that his Sixth Amendment rights have been violated because he has a right to have a jury find each element of his offense beyond a reasonable doubt.  The constitutional question provided McDowell more traction, as the Fourth Circuit panel finds the Supreme Court’s Sixth Amendment exception at play here (normally, “any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime” that a jury must find beyond a reasonable doubt,” Shepard v. United States) “incompatible with constitutional principles that are by now well settled.” Yet, the panel affirmed McDowell’s sentence based on the current state of the law.

Restitution Order affirmed

US v. Abdelbary:  In this appeal, the Fourth Circuit considers the propriety of an order requiring a defendant to pay attorneys’ fees incurred by a creditor in a bankruptcy proceeding as a part of restitution; the Fourth Circuit approved and affirmed.

Youssef Abdelbary received convictions in connection with a fraudulent bankruptcy filing. As part of his sentence, the district court imposed a restitution award to his creditor, Jordan Oil, for its attorneys’ fees. On his first appeal, the Fourth Circuit remanded because the district court failed to designate the statutory basis for the restitution, and overlooked the predicate factual findings required by the appropriate act, here, the Victim and Witness Protection Act ("VWPA") or the Mandatory Victim Restitution Act ("MVRA"). On remand, the parties agreed that the MVRA governed the issue. The district court again imposed a restitution award, finding as a factual matter that the attorneys’ fees for Jordan Oil were incurred as a result of the bankruptcy fraud; Abdelbary countered that attorneys’ fees should never be included as compensable costs as part of restitution under the MVRA, or in the alternative, that Jordan Oil was not a victim of Abdelbary’s bankruptcy offense.

In order to reach its decision, the Fourth Circuit discussed the background of both the VWPA and the MVRA, showing how particular types of losses could be included in restitution for certain types of crimes, including those involving damage to or loss or destruction of property, crimes involving bodily injury, and pertinently, for certain categories of offenses "that directly and proximately caused a victim to suffer either a physical or a pecuniary loss." The district court in this case found that Jordan Oil was a "victim" of Abdelbary’s offense because his attempt to discharge his debts to that company (via fraudulent bankruptcy filings) directly and proximately caused Jordan Oil to shell out cash for attorneys’ fees in order to protect its interests against Abdelbary’s fraud.

In dissent, Justice Diaz argues that the finding that all of Jordan Oil’s attorneys’ fees were directly and proximately caused by Abdelbary’s fraudulent bankruptcy, and that such a conclusion takes too broad a view of Abdelbary’s criminal conduct. He posits that Abdelbary may well have been able to file for bankruptcy without making any fraudulent representations, which would have dragged Jordan Oil into court, incurring attorneys’ fees all the while; the government failed to show, he states, that even if the defendant had been utterly truthful, that Jordan Oil would not have suffered the same harm.

Cross-reference's "purpose" requirement construed broadly

US v. Cox:  In this appeal, the Fourth Circuit considered a challenge to the application of a sentencing guideline cross-reference, which application resulted in a 13-level increase to the defendant’s sentence. The sentencing guideline in play was U.S.S.G. § 2G2.2, governing possession of material depicting the sexual exploitation of a minor.

Mr. Cox pleaded guilty to faking his death which caused to Coast Guard to search for him off the Carolinas when he was hiding out in Florida; and also to his knowing possession of material containing images of child pornography. Mr. Cox had in his possession multiple polaroid images he had taken while he sexually abused his minor niece. At sentencing, the district court determined that Mr. Cox was responsible for causing a minor to engage in sexually explicit conduct "for the purpose of" producing a visual depiction of that conduct.

On appeal, Mr. Cox claimed that the district court improperly applied the cross-reference found in the sentencing guideline that pertains to the possession of material depicting the sexual exploitation of a minor. The cross-reference applies when the offense conduct involved causing a minor to pose for the purpose of producing a visual depiction of the criminal conduct. Mr. Cox argued that there was insufficient evidence to support a finding that he acted for the purpose of producing a visual depiction, though he did not dispute that he caused the victim to engage in sexually explicit conduct, nor that he took pictures; rather, he contended that taking the pictures was not a "central component" of the criminal activity.

The Fourth Circuit agreed with the Ninth and Seventh Circuits on this issue, that producing the depiction need not be the defendant’s sole or primary purpose. The cross-reference’s "purpose" requirement "is satisfied anytime one of the defendant’s purposes was to produce a visual depiction" of the criminal conduct. The Fourth Circuit affirmed the application of the cross-reference.

Knowledge of Minor's Age Not Necessary For Sex Trafficking Conviction

US v. Washington: In 2012 Washington met RC, a teenage runaway, in Maryland.  Although she was actually 14 years old, she told Washington she was 19.  He became her pimp, taking her to various states and advertising her availability on the internet.  Washington was arrested as part of a sting operation in Richmond.  He was charged with interstate transportation of a minor to engage in prostitution.  He was found guilty at trial, after the district court instructed the jury that the Government did not need to prove that he had any knowledge of MC's actual age.  At sentencing, the district court imposed a sentence of 240 months in prison, well above the top of the advisory Guideline range

Washington appealed, challenging his conviction and sentence, both of which the Fourth Circuit affirmed.  On the conviction, the court rejected Washington's argument that the district court erred by instructing the jury that he did not have to know MC was a minor in order to convict him.  The court concluded that its prior decision rejecting that argument had not been undermined by a more recent Supreme Court decision (involving identity theft) that expanded the reach of "knowingly" in a criminal statute, a conclusion reached by other Circuits.  As for the sentence, the court concluded that the district court properly considered the Guidelines, the 3553(a) factors, and that the variance itself and its extent were reasonable.

Acquiescence to Sentencing Going Forward Where Relevant Conduct Disputed Leads to Waiver of Appellate Review

US v. Robinson: Robinson pleaded guilty to conspiring to distribute 50 grams or more of crack cocaine, along with several substantive counts of distribution.  In the PSR, the probation officer attributed 1.43 kilograms of crack as relevant conduct to Robinson, based on the testimony of a source named Battle.  Robinson objected to that calculation, arguing that Battle was unreliable based on inconsistencies in prior statements and that he lied about buying PCP cigarettes from Robinson during a period where Robinson was living in another state.  Robinson also objected to the calculation of his criminal history.

At sentencing, the Government did not produce Battle to testify, but argued that it was not unusual for sources to give multiple statements that differed from one another and that the PCP issue was irrelevant because it was not part of the relevant conduct calculation.  The Government also argued that there were three other witnesses, whose statements "did not 'make their way' to the probation office," who could provide testimony that would result in a higher relevant conduct determination than the 1.43 kg amount.  The district court presented Robinson with two alternatives.  First, it would conclude the sentencing that day "with what's here and now, and I'll make the decisions that I need to make by a preponderance of the evidence."  Second, it would continue the hearing, "unwind the whole thing," and get a revised PSR that would include the Government's new witnesses.  Robinson chose to go ahead, after again asserting that Battle was not credible.  The district court overruled Robinson's objection as to relevant conduct (criminal history, too) and imposed a sentence of 140 months in prison.

Robinson appealed, challenging both the relevant conduct and criminal history calculations.  The Fourth Circuit affirmed his sentence, 2-1.  On the relevant conduct issue, the court concluded that Robinson had waived his right to challenge the calculation by electing to go forward with sentencing, stating that he "Was agreeing that his drug quantity would be calculated on the basis of the PSR, which relied on Battle's statement."  As to criminal history, the court concluded that a possession of marijuana charge that occurred during the time of the conspiracy charged in the indictment was not relevant conduct and, therefore, counted as both a prior sentence and triggered the two-point enhancement for committing the offense while under a sentence of probation.

Judge Diaz dissented.  He argued that Robinson's choice to proceed with sentencing was done after the district court said it would make findings "by a preponderance of the evidence" and therefore he did not waive his challenge to the relevant conduct calculation.  In conclusion, wrote:

The majority declares that Robinson made a considered decision and should have to live with the consequences. But that rationale upends the equities--and, indeed, facts--of the case before us. It is not Robinson who seeks a mulligan, but the government. 

When Robinson objected to the PSR--before the hearing--the government was put on notice that its “evidence” was suspect. Yet it did not produce Battle. Nor did it produce the probation officer who interviewed Battle. And it had never even submitted the other witnesses’ statements to the probation officer in the first place. Despite its lack of preparation, the government was presented--as the majority sees it--with a win-win scenario: either it would have a second chance to do the job right (securing an even longer sentence), or it would get a pass on the evidentiary standard. “In this case, the district court did not ensure--as it was obligated to--that the Government carried its burden of proof.” [US v.] Lawrence, 47 F.3d [1559] at 1568 [(11th Cir. 1995)]. 

Thus, I would vacate and remand with instructions that the district court resentence Robinson on the record--but without crediting Battle’s statements as to drug weight. Any other result would grant the government the very benefit--a second chance to present evidence--that it does not merit.

Evidence of “Gray Market” Excluded

US v. Zayyad:  Awni Zayyad received several felony convictions in connection with his sales of counterfeit prescription drugs (more specifically, erectile dysfunctions drugs that looked like Viagra and Cialis).  On appeal, Mr. Zayyad mounts two related evidentiary challenges, that the district court erred in excluding evidence of the “gray market” for prescription pills, and that the Government did not establish that he knew the pills he peddled were fakes.

At Mr. Zayyad’s first trial, which ended in a deadlock, the district court permitted Mr. Zayyad to suggest through cross-examination of Government witnesses from pharmaceutical companies, that he believed he obtained the drugs from the “gray market,” inferring that the pills were real; the trial ended in with a mistrial.  The Government filed a superseding indictment, and moved to exclude and evidence of the “gray market,” as it would only be relevant if the defendant testified about his state of mind, i.e., that he believed the pills he sold were genuine.  The district court granted the motion under F.R.E. 401 and 403, holding that there was no evidence that showed Mr. Zayyad had any genuine pills, and that confusion of the issue, misleading the jury, and wasting time would overwhelm the probative value of the evidence; Mr. Zayyad did not take the stand.  The jury convicted Mr. Zayyad after the second trial.

On appeal, the Fourth Circuit panel noted that Mr. Zayyad had the option of testifying, and he could have introduced evidence of a “gray market” but he chose not to take the stand to justify his actions.  The panel stated that it considered the district court’s order as an appropriate limit on Mr. Zayyad’s right to cross-examine, since the ruling did not interfere with the right of the defendant to elect not to testify at trial.  Further, the panel determined that it was unlikely that Mr. Zayyad preserved his appeal issues because he failed to raise an argument that the contested evidence went to show his knowledge that the pills were "gray market" items.

Nolo contendere plea “without adjudication” held a SORNA predicate

US v. Bridges:  In this appeal, the Fourth Circuit addressed the issue of whether a nolo contendere plea in the State of Florida to an attempted sexual battery charge, counts as a predicate offense under SORNA, and held that it does.

William Bridges entered a plea in 1999 to a charge of attempted sexual battery upon a child under 16 with adjudication of guilt withheld.  As a result of this judgment, Mr. Bridges was required to register as a sex offender under Florida law, and he was placed on probation for a year.  At some point, he failed to report to his probation officer, and the state revoked his probation; he served just over two months for the revocation.
In 2010, Mr. Bridges moved to Virginia and registered there as a sex offender.  In 2011, he moved to Michigan without updating his registration with a new address. Mr. Bridges did not register as a sex offender with his new address.  Mr. Bridges received an indictment in 2012 for traveling in interstate commerce without updating his sex offender registration.  He moved to dismiss the indictment, arguing that his nolo contendere plea without adjudication meant that he had not actually been “convicted” of a sex offense for the purposes of SORNA.  The district court disagreed; Mr. Bridges entered a conditional guilty plea in order to challenge the denial of his motion to dismiss.

The Fourth Circuit panel discussed how Congress left the statutory term “convicted” undefined in SORNA, so that the Attorney General could issue guidelines and regulations for the interpretation and implementation of SORNA, which guidelines have the force and effect of law.  Here, the panel cites that so long as “the sex offender is nevertheless required to serve what amounts to a criminal sentence for the offense,” he is “‘convicted’ of a sex offense and falls within the ambit of SORNA’s registration requirements.”  The panel pointed to his two-year probation term pursuant to his plea, and the fact that Mr. Bridges served three days in jail for the plea, as penal consequences.

Additionally, the Fourth Circuit determined that “without adjudication” does not work to exempt Mr. Bridges from registering as a sex offender.  It reached this conclusion after reviewing decisions from the Eleventh and Eighth Circuits, which held that Floridian nolo contendere pleas with adjudication withheld do constitute “convictions” under federal law.

What is "willful" violation of AECA?

US v. Bishop:  Brian Bishop received a conviction for attempting to export small-arms ammunition to Amman, Jordan without a license in violation of the Arms Export Control Act, “AECA,” which the Fourth Circuit panel affirmed.

On appeal, Mr. Bishop raised the issue of whether the AECA requires specific intent.  The Fourth Circuit panel  discussed the difference between specific and general intent, which distinction “has been the source of a good deal of confusion,” quoting the Supreme Court in United States v. Bailey, 444 U.S. 394, 403 (1980).  Further, the panel states that “although courts often use the language of general and specific intent, scienter, and the related concept of mens rea interchangeably, [citation omitted] none of these terms by itself adequately defines willfulness under the AECA.”

The panel looked to the Supreme Court’s statutory interpretation in Bryan v. United States, 524 U.S. 184 (1998) for guidance.  In that case, the Supreme Court interpreted the Firearm Owners’ Protection Act, holding that “to establish a ‘willful’ violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful,” and rejecting the argument that the Government had to prove that a defendant knew of a federal licensing requirement.  The Fourth Circuit panel found a link between FOPA and AECA’s language and structure, stating “that Congress struck a balance between punishing those who intentionally violate the law and ensnaring individuals who make honest mistakes,” and noting that exporting ammunition to Jordan would strike someone of ordinary intelligence as potentially unlawful.  The Fourth Circuit found support from three other Circuits which squarely addressed the issue here.

With respect to the sufficiency of the evidence argument, the Fourth Circuit considered the evidence in the light most favorable to the prosecution: that Mr. Bishop had been trained in the rules and regulations surrounding the State Department’s transportation policies, he had received an email from that he could not transport ammunition and he was told explicitly that he could not keep firearms in Jordan.  Further, Mr. Bishop engaged in “numerous” acts of deception that indicated his awareness of wrongdoing.

"Closely related" law provides reasonable suspicion

US v. Williams:  Leconie Williams, IV, received two firearms charges after police stopped his vehicle for violating the section of Maryland’s traffic code that prohibits leaving a vehicle in the street in a manner that obstructs traffic.  Mr. Williams filed a motion to suppress the evidence discovered as a result of the stop, arguing that police lacked probable cause.  The district court denied the motion because it found that the police had reasonable suspicion that Mr. Williams violated a different, but closely related, section of the Maryland traffic code.  The government moved to exclude evidence of earlier alleged police misconduct by the officers involved in this case.

After an initial mistrial in which Mr. Williams was acquitted of one count and the jury could not reach a decision on the second count, a second jury found Mr. Williams guilty on one count.  On appeal, Mr. Williams challenged the district court’s decision to deny his motion to suppress, as well as the decision to exclude evidence of earlier alleged incidents of police misconduct.

The Fourth Circuit panel determined that the Maryland traffic code section listed on the citation given to Mr. Williams could not be the basis for conducting the stop of Mr. Williams’ car.  It upheld the district court’s decision to deny the motion to suppress because “the conduct that [the officer] McCann set forth as the basis for the stop was plainly illegal under Maryland law, albeit in a different section than the one in the traffic citation.” Further, the panel stated that Mr. Williams failed to show that the district court clearly erred in finding that he had stopped his vehicle in the middle of the road, conduct which violates some provision of the Maryland traffic code, just not the one the police cited.

With regard to the evidence of earlier incidents of alleged police misconduct by the officers involved in this case, Mr. Williams wanted to admit evidence of misconduct from three civil suits containing allegations of misdeeds by the police officers who arrested him; the government moved to exclude this evidence.  Unfortunately for Mr. Williams, it appears the age of the evidence, dating back more than ten years, gave the district court an easy reason to find little probative value in this evidence and exclude it.  The Fourth Circuit did not find the exclusion “irrational.”

Rights to Counsel and Self-Representation Mutually Exclusive

US v. Beckton:  In this appeal, Reggie Andre Beckton challenged the district court’s rulings surrounding his representation at trial for two counts of bank robbery.  Prior to trial, two public defenders withdrew from representing Mr. Beckton, and he attempted to have a third disqualified; the district court denied this attempt, so Mr. Beckton elected to proceed pro se, despite repeated warnings from the court that self-representation was not in his best interest.  The district court permitted Mr. Beckton to have his court appointed counsel appear as standby; however, problems arose when Mr. Beckton decided to testify.  The district court ordered Mr. Beckton to either permit his standby counsel to assume control of the case, or he could present his testimony by questioning himself.  When Mr. Beckton opted to question himself, he testified in narrative form against the instructions of the district court.  Consequently, the district court limited his testimony.  Mr. Beckton repeated refused the assistance of counsel.  The jury convicted Mr. Beckton on both counts.

In matters of trial management, according to the Fourth Circuit panel, district courts enjoy wide discretion, and so long as restrictions are not “arbitrary or disproportionate to the purposes they are designed to serve,” a district court will not abuse its discretion.  The Fourth Circuit panel found the district court’s rationale “eminently reasonable” in preventing him from testifying in narrative form, and in requiring Mr. Beckton to adhere to substantive and procedural courtroom rules that all litigants must do, the district court was well within its discretion.

Restitution Order Reversed

US v. Freeman:  Robert Freeman received a conviction for obstructing federal bankruptcy proceedings.  As part of his sentence, he was ordered to pay restitution to four people that took out loans to support his ministry business.  However, these four “purported victims” were not specifically victims of Mr. Freeman’s act of obstruction. These folks took out loans to support Mr. Freeman’s ministries, which he then used to finance luxury cars and a home, though these individuals did not have the resources to repay their debts.  

The district court failed to cite a statutory basis for the restitution award, but noted that it would not impose a fine as part of Mr. Freeman’s sentence because it imposed the restitution.  It actually imposed restitution as a condition of the defendant’s supervised release.

The Fourth Circuit reviews restitution awards for an abuse of discretion.  The district court’s discretion to order restitution depends upon statutory, not inherent, authority.  The Fourth Circuit picked out four possible statutory provisions which could have served the basis for the imposed restitution, including as a part of Mr. Freeman’s supervised release, under 18 U.S.C. sect. 3563(b).  This statute, according to the Fourth Circuit, required that victims could be victims only of the offense of conviction.   As these folks were not victims of Mr. Freeman’s obstruction of the bankruptcy proceedings, they were not victims who could receive restitution here.  Accordingly, the Fourth Circuit panel reversed and remanded.

STA Violation Cannot Be Reviewed for Plain Error

US v. Mosteller: Mosteller collected VA benefits as a surviving spouse and to pursue an education following the death of her first husband.  She did not inform the VA when she remarried and did not maintain the educational status needed to continue to receive those benefits.  She was originally charged with one count of theft of government funds - specifically, the surviving spouse benefits after she had remarried.  However, at trial Government witnesses made reference to the education funds as well, causing Mosteller to move for a mistrial.  The district court agreed to grant the mistrial, but only on the condition that Mosteller waive her rights under the Speedy Trial Act.  She did, a mistrial was granted, and the Government obtained a superseding indictment with an additional charge of theft related to the education funds.  A second trial was held beyond the STA's 70-day limit, but Mosteller did not object.  She was convicted on both counts and sentenced to 15 month in prison.

On appeal, Mosteller filed a pro se supplemental brief (to an Anders brief by counsel) alleging that her STA rights had been violated by the district court conditioning the mistrial on her waiver of any STA claim.  The Fourth Circuit agreed that the district court acted improperly by conditioning the mistrial on a STA waiver.  However, because Mosteller did not object under the STA at the second trial, the STA's waiver provision prevented the court from actually reaching the issue, even under a plain error standard of review (as a Sixth Amendment speedy trial claim would have been).

Window tint: that old chestnut

US v. Green:  Each of the fifty states has its own laws regarding the legally permissible amount of tint that may be present on car windows, and not surprisingly, the levels of acceptable tint can vary significantly when crossing state borders.  Illegally tinted windows, or those which appear to violate local laws, can provide a sufficient basis for a traffic stop.

Virginia police stopped Herbert Green for the level of tint in his car windows, as well as a partially obscured license plate.  Green did not argue prior to pleading guilty that the traffic stop was illegal at its inception.  He did, however, file two motions to suppress, to contest the length of the traffic stop and the reliability of the drug-detecting dog that alerted to the vehicle.  The district court denied both motions; Green entered a conditional guilty plea to preserve his right to appeal the denial of his two motions to suppress; and the Fourth Circuit affirmed.

On appeal, Green argued that the traffic stop was unreasonably long without justification by reasonable suspicion.  Focusing on the second prong of inquiry under Terry (since the stop was considered legal at its inception), the scope component, the Fourth Circuit panel found the stop scope and duration was reasonable based on several “prompt” actions taken by the police to establish that the windows were, in fact, in violation of Virginia law.  

Secondly, Green argued that the police dog’s field performance was so poor that his alert was insufficient probable cause to search the vehicle.  Under totality of the circumstances review, the Fourth Circuit rejected Green’s second claim because the government was able to present sufficient evidence of the dog’s reliability in detecting drugs.

MD resisting arrest not crime of violence

*Reversal on Rehearing En Banc*

US v. Aparicio-Soria:  Mr. Aparicio-Soria received a conviction for illegal reentry.  He appealed his conviction, and he had a prior Maryland conviction for resisting arrest.  The Fourth Circuit panel determined Mr. Aparicio-Soria’s prior offense contained the requisite element of physical force to qualify as a crime of violence for sentencing enhancement purposes (decided here, blogged here).  The Fourth Circuit then granted Mr. Aparicio-Soria’s petition to rehear the case, and the Fourth Circuit reversed on rehearing en banc.

In the original appeal, the parties agreed that the district court’s application of the modified categorical approach was incorrect, but disagreement developed over the result reached with respect to the categorical approach.   The split panel ultimately determined that the Maryland conviction for resisting arrest triggered the sentencing enhancement, because force meant “violent force,” and state courts required that force be “violent” and directed against another.

On rehearing, the Fourth Circuit found contrary precedent from Maryland’s highest court, through "simple legal research", that the degree of force required as an element of resisting arrest is “offensive physical contact,” and “crimes requiring offensive physical contact are not crimes of violence containing an element of violent force, as required under federal enhanced sentencing regimes.”  Finally, the Fourth Circuit quoted the Supreme Court in Descamps, that “key” to the resolution here are “elements, not facts,” and violent force was “simply not an element of resisting arrest in Maryland.”

Plain error review does not alter life sentence

US v. Shepperson:  Chinua Shepperson faced several capital-eligible charges including murder and racketeering activities.  After a two-week trial, a jury found him guilty on all counts.  Shepperson appealed, raising two claims of error: 1) the district court should have appointed him a second attorney, pursuant to 18 U.S.C. sect. 3005; and 2) the district court should have excluded a witness based on the government’s failure to disclose its witness list at least three days prior to trial, pursuant to 18 U.S.C. sect. 3432.

Unfortunately for Shepperson, both of his claims of error were subject to plain error review on appeal by the Fourth Circuit.  First, the panel held that Shepperson was obligated to request additional counsel at the time of trial.  Further, the district court was under no obligation to inform Shepperson prior to trial that he had the ability to request a second attorney, even if the district court was aware that Shepperson was not especially pleased with his attorney, or to appoint sua sponte another attorney for him.  According to statute, a defendant must request a second attorney under 18 U.S.C. sect. 3005.

The Fourth Circuit also rejected Shepperson’s second claim under plain error review.  Since the government proceeded against him without seeking the death penalty, 18 U.S.C. sect. 3432 was not applicable to his case. Shepperson received what the panel considered equivalent notice of the witnesses during trial, so no prejudice was suffered.

No Fourth, Sixth Amendment Errors for Robbery (and Related) Conviction

US v. Dargan: Dargan was arrested for being involved in a three-man armed robbery (the other two had guns, Dargan had a knife) of a Maryland jewelry store.  After his arrest, officers obtained a search warrant for his home authorizing the recovery of "indicia of occupancy."  They recovered a receipt for a $461 belt, bought with cash the day after the robbery.  He was charged with a Hobbs Act robbery and use and carrying of a firearm during a crime of violence.  Dargan moved to suppress the receipt, but the district court concluded that although it did not fall within the boundaries of the warrant it was properly seized as being in plain view.  At trial, the Government produced testimony from a witness who was in jail with one of Dargan's codefendants who allegedly confessed to robbing a jewelry store with two others, although he did not identify Dargan.  Dargan was convicted and sentenced to 135 months in prison.

On appeal, Dargan challenged his conviction in two ways, both of which the Fourth Circuit rejected.  First, Dargan argued that the receipt should have been suppressed because it was beyond the scope of those things authorized to be seized pursuant to the warrant, namely "indicia of occupancy."  The court disagreed (with the district court as well as Dargan) and concluded that the receipt was the type of evidence that officers "could plausibly have thought that the occupant of the premises was also the purchaser."  Second, he argued that the admission of the codefendant's statements to a cellmate were both inadmissible hearsay and violated the Confrontation Clause.  On the hearsay argument, the court concluded that the statements fell within the hearsay exception for statements against interest, being made by an unavailable witness, being inculpatory, and having corroboration by other evidence.  On the Confrontation Clause argument, the court concluded that the clause was not applicable because the codefendant's statements were "plainly nontestimonial" and thus not the kind it covered.

Management Enhancement Upheld for Ex-Cop In Pot Conspiracy

US v. Steffen: Sreffen was a South Carolina Highway Patrolman who was part of a "large-scale" conspiracy involving the cultivation and distribution of marijuana.  He pleaded guilty to a conspiracy charge that carried a five-year mandatory minimum.  At sentencing, a main issue was whether Steffen was a "manager of supervisor" of criminal activity, worth of a three-level Guideline enhancement.  The district court concluded that he was, because he purchased the land on which the marijuana was grown, transported marijuana in his patrol car, and used the car to follow a coconspirator so he would not be pulled over.  The district court imposed the mandatory minimum sentence, 60 months, which was also the bottom of the Guideline range.

On appeal, Steffen challenged the management/supervision enhancement, arguing that the evidence showed he only managed property, not other co-conspirators.  The court disagreed, holding that the use of Steffen's patrol car to escort another co-defendant (so as to avoid being stopped) was a "management decision regarding the manner in which another participant in the conspiracy was to conduct the conspiracy's business."  Similarly, the enhancement was applicable because Steffen transferred the energy bill at the location where the marijuana was grown to another co-defendant to avoid detection.

Specifically Exempted Sentencing Factors for Supervise Release Aren't Off Limits for Revocation Sentence

US v. Webb: Webb was brought to court due to behavior that resulted in him facing new charges as well as allegations that he violated the conditions of his supervised release.  As to the supervised release violation, the district court imposed a (upward variance?) sentence of 32 months in prison, to run consecutively to the 80-month sentence imposed for the new charge.  In doing so, the district court explained that the supervised release sentence reflected "the seriousness of the violation," provided "just punishment," and promoted "respect for the conditions of supervision imposed by the court."

Webb appealed, arguing that the district court erred by relying on prohibited factors - namely the seriousness of the offense, promoting respect for the law, and providing just punishment - when it imposed the supervised release sentence.  Engaging in plain error review, the Fourth Circuit disagreed and affirmed.  Although 18 USC 3583(e) lists factors which a court must consider when imposing a supervised release sentence, it does not prohibit the court from considering other factors.  In addition, those factors exempted in 3583(e) are "intertwined with the factors courts are expressly authorized to consider."  Thus, the simple reference of the district court to those factors "without more" does not render the sentence unreasonable (much less plainly so).

NC Prior for Taking Indecent Liberties With a Minor Is "Crime of Violence" for Illegal Reentry Guidelines

US v. Perez-Perez: Perez-Perez, a Mexican citizen, was convicted in 2001 for taking indecent liberties with a minor in North Carolina.  As a result, he was deported.  He returned to the United States, was caught, and pleaded guilty to illegal reentry.  At sentencing, the primary issue was whether his prior North Carolina conviction was a "crime of violence," triggering a 16-level increase under the applicable Guideline.  The district court held that it did and sentenced Perez-Perez to the bottom of the resulting Guideline range, 46 months.

Perez-Perez challenged his sentence on appeal and the Fourth Circuit affirmed.  Calling itself "constrained by our precedent" in US v. Diaz-Ibarra, the court concluded that Perez-Perez's North Carolina conviction was categorically a crime of violence when its elements were compared to the generic elements of a crime listed in the Guidelines as being a crime of violence, in this case sexual abuse of a minor.  The elements of the North Carolina offense set forth by the state courts "correspond in substance" with the Fourth Circuit's prior description of sexual about of a minor in Diaz-Ibarra.  That definition, the court noted has "extraordinary breadth."

Judge Davis wrote a concurring opinion, agreeing that the outcome was controlled by Diaz-Ibarra, but concluding that "the time has come to reconsider" that decision.

NOTE: This case was decided on December 18, 2013.

No Fifth Amendment Protection in Documents Required By Off-Shore Banking Regulations

US v. Under Seal: John and Jane Doe (Husband & wife? Brother & sister? Unrelated business partners given the same phony name?  The opinion doesn't say) had Swiss bank accounts and were being investigated for hiding assets there to avoid the IRS.  A grand jury subpoena was issued, directing the Does to turn over records about the accounts they were required to keep under Treasury regulations dealing with offshore banking.  They sought to crush the subpoena, asserting a Fifth Amendment privilege against self incrimination.  The district court denied that request and ordered the records disclosed and ordered the Does held in civil contempt (but stayed that part of the order).

On appeal, the Fourth Circuit affirmed the decision to require the records be disclosed.  The court found that the "required records doctrine" applied and that the documents requested were not protected by privilege.  The record keeping requirement was "essentially regulatory," the records were of a kind normally kept in the course of business, and contained "public aspects" that rendered them at least analogous to public records.

NOTE: This case was decided on December 13, 2013.

Mid-Scheme Payouts Not Money Laundering

US v. Simmons: Simmons ran a Ponzi scheme from 2007 until 2009.  By the end of things, although the statement for the fund he managed claimed assets of more than $292 million, there was actually only $523 in the bank.  Simmons was charged with securities fraud, wire fraud, and two counts of money laundering.  Rather than pinpointing specific acts of fraud, the indictment on the fraud counts charged a broad "scheme to defraud" covering the entire time of the scheme.  Simmons was convicted on all counts and sentenced to 50 years in prison (a considerable variance from the 960-month sentence recommended by the Guidelines).

On appeal, Simmons challenged his two money laundering charges.  Both charges involved transactions undertaken as part of the Ponzi scheme.  Simmons argued that those transactions did not involved "proceeds" as defined by the statute (pursuant to a 2008 Supreme Court decision that has since been overruled by Congress, but was in effect at the time of Simmons's scheme), but rather the "essential expenses" of maintaining the scheme.  In other words, his money laundering was part of the charged scheme to defraud and those charges must merge with the fraud charges.  The Fourth Circuit agreed and reversed Simmons's money laundering convictions, 2-1.  The court held that the ongoing success of the fraud scheme depended on the payments that were subject to the money laundering counts (among others).  As a result, those counts were vacated, his sentence set aside, and the case returned to the district court for resentencing.

Judge Niemeyer dissented, arguing that the particular transactions at issue here, because they furthered the scheme by allowing Simmons to collect money from other victims, fell within the meaning of the statute.

Congrats to the Defender office in Western North Carolina on the win!

NOTE: This case was decided on December 10, 2013.

Court Joins Other Circuits - No General FSA Retroactivity

US v. Black: In 2006 Black was sentenced to a mandatory minimum term of 120 months on a conviction involving crack cocaine. In the wake of the Fair Sentencing Act of 2010, Black filed a motion under 18 USC 3582 arguing that his Guideline range had been reduced and that the FSA applied retroactively and dropped the applicable mandatory minimum sentence to 60 months. The district court denied his motion, relying on prior Fourth Circuit law that the FSA was not retroactive.

On appeal the Fourth Circuit affirmed. In the wake of the Supreme Court's decision in Dorsey, which held that the FSA applied to anyone sentenced after its enactment, the court concluded that the FSA was not further retroactive to defendants like Black who had already been sentenced. It rejected Black's argument that the analysis of Dorsey, if not its specific holding, required the FSA be applied retroactively because a 3582 proceeding was a "sentencing proceeding" and that occurred after the FSA was passed. The court noted that the FSA was not, by it's plain language, retroactive; that such a holding was contrary to Fourth Circuit precedent; that Dorsey dealt with a problem not present in 3582 proceedings; and that 3582 proceedings are not "sentencing proceedings."

Judge King concurred, noting that Black's argument might be successful but for prior Fourth Circuit precedent and calling for "congressional and executive action" to remedy the remaining disparity created by the FSA's lack of retroactivity.

NC Mitigated Range Sentence Doesn't Avoid ACCA

US v. Kerr: This is yet another case dealing with the meaning of prior North Carolina convictions in federal court.  Kerr was convicted of being a felon in possession of a firearm and sentenced as an armed career criminal based on three 2008 NC convictions for breaking and entering.  For those convictions (apparently all sentenced at the same time) under NC's Byzantine sentencing scheme, Kerr faced a "presumptive minimum term" of 9-11 months and a "presumptive maximum sentence" of 14 months.  However, the sentencing judge found that the mitigating factors outweigh the aggravating ones and departed to the "mitigated range" of 8-10 months, with a possible maximum of 11 months.

Kerr objected to the ACCA designation at his original sentencing, arguing that he did not face more than a year for any of those convictions and thus they were not qualifying "violent felonies."  The district court disagreed.  The Fourth Circuit held his appeal in abeyance while it worked out the Simmons situation, after which it remanded for resentencing.  On remand Kerr added an argument that none of those priors were qualifying felonies for the possession statute in the first place.  The district court disagreed and reimposed the ACCA sentence.

On his second appeal, the Fourth Circuit affirmed Kerr's conviction and sentence, 2-1.  Applying Simmons and its progeny, the court concluded that Kerr's prior convictions carried a potential maximum term of 14 months, and thus were felonies.  The sentencing court's mitigation finding did not require it to impose a sentence in the mitigated range and, even if it did, that didn't change the maximum he faced upon conviction.  Because the maximum Kerr faced was over 12 months, the convictions were felonies for purposes of both his conviction and ACCA sentence.

Judge David dissented, arguing that the majority was returning to the days of "hypothetical" sentences that has been rejected by Simmons and the Supreme Court precedent on which it relied.  He argues that the hypothetical use of prosecutorial discretion to enhance a sentence (rejected by SCOTUS) is no different than the hypothetical possibility that the judge could have imposed a higher sentence in these cases.

Consent Not Valid In Bus Shelter Encounter

US v. Robertson: Robertson was sitting in a bus shelter in Durham, NC, along with several other people, when police approached.  They were responding to reports of three man chasing another who was carrying a gun.  While other officers approached three men who matched the description of the chasers, another officer approached Robertson, who was sitting with his back to the shelter's back wall and was therefore "blocked on three sides."  The officer asked Robertson if he had anything illegal.  Robertson did not answer.  The officer "waved [him] forward" and asked for consent to search.  Robertson said nothing, but stood up, turned around, and raised his hands.  A search uncovered a firearm.  Robertson was charged with being a felon in possession and was convicted after the district court denied his motion to suppress, finding that Robertson consented to the search.

On appeal, the Fourth Circuit reversed, 2-1.  Making it very clear that its holding was based only on the officer's testimony (credited by the district court) and not Robertson's (discredited), the court concluded that Robertson's silent actions were a "begrudging submission to a command."  It noted the presence of multiple police officers and squad cars on the scene, that other officers were "handling" others at the bus shelter, and that the officer's questioning of Robertson was immediately accusatory.  As a result, the district court concluded that the Government had not met its burden of showing consent was given.

District Judge Wilson dissented, not based on a disagreement with the majority's view of the facts, but on the ground that it was not sufficiently deferential to the district court's contrary conclusion.  That conclusion was not clearly erroneous, even if the facts are susceptible to both interpretations.

Indivisible common law crime calls for categorical approach to determine whether it's a crime of violence

US v. Montes-Flores:  Fabian Montes-Flores pleaded guilty to illegal re-entry. At his sentencing, the district court imposed a sixteen-level enhancement for a prior South Carolina conviction for assault and battery of a high and aggravated nature ("ABHAN"), which conviction his pre-sentence report classified as a "crime of violence" under the illegal re-entry guideline. Unfortunately for Montes-Flores, the district court concurred with the PSR classification, a decision it reached after employing a modified categorical approach to determine whether the earlier conviction qualified for the sentencing enhancement. The district court sentenced Montes-Flores at the bottom of the guidelines range it calculated for him, 46 months.

On appeal, Montes-Flores argued that his prior conviction should not be considered a "crime of violence" for sentencing purposes, and the district court should have used the categorical approach to determine the status of his prior conviction for ABHAN. The Fourth Circuit agreed with Montes-Flores, holding that divisible statutes, with some categories of crimes that constitute crimes of violence and some that do not, call for the district court to use a modified categorical approach. Divisible criminal statutes include multiple, alternative versions of the crime. ABHAN, here, according to the Fourth Circuit, is not divisible, so the district court applied the modified categorical approach in error; South Carolina’s ABHAN is not categorically a "crime of violence" because it can be committed without violent physical force. The Fourth Circuit also determined that this error was not harmless, since the district court made no indication that it desired to vary upwards in sentencing Montes-Flores. The Fourth Circuit reversed and remanded for re-sentencing.