Appeal Waiver Means Just What It Says

US v. McGrath: McGrath pleaded guilty to enticement of a minor – which carries a statutory maximum of life – and possession of child pornography – which carries a statutory maximum of ten years. This was pursuant to a plea agreement in which McGrath waived his right to appeal “whatever sentence is imposed . . . for any reason” so long as the sentence did not exceed “any sentence within the advisory guidelines range resulting from an offense level of 43” – in other words, any sentence greater than life in prison. McGrath was ultimately sentenced to 264 months on the enticement charge and a concurrent 120-month term on the child pornography charge.

On appeal. McGrath challenged his sentence as procedurally unreasonable because the district court did not adequately explain the sentence imposed and made several religious references at sentencing when comparing McGrath’s conduct to murder. The Government invoked the appeal waiver and moved to dismiss the appeal. The Fourth Circuit granted the motion, noting that McGrath did not challenge the validity of the waiver itself and that the issues raised “fall squarely within the waiver’s scope.”

Immigration Court Regulations Not Vague

US v. Moriello: Moriello is an immigration attorney who had appeared at a hearing in immigration court in Charlotte, NC. With the permission of the immigration judge, Moriello was allowed to remain in the courtroom to observe other proceedings (normally they are closed). A sign outside the courtroom told visitors they could not use electronic devices, aside from "attorneys and other representatives" for "clear and immediate business purposes only." Moriello used her device, anyway, prompting one of the bailiffs (who are contractors, not federal employees) to ask her to turn it off. She refused, after which point the judge took notice. The judge stopped the hearing to direct bailiffs to tell Moriello to stop using her phone. After two further refusals she "became argumentative," the hearing was suspended and Federal Protective Services officers were called, who eventually wrote Moriello a citation for violating the electronic device regulation. Moriello was then charged in a two-count information with failing to comply with the lawful direction of an authorized individual while on property under the authority of the General Services Administration and impeding and disrupting the performance of official duties.  Moriello was eventually convicted at a bench trial and fined $2500.

On appeal, the Fourth Circuit affirmed Moriello's convictions, rejecting several arguments as to the legitimacy of the regulations. First, the court concluded that the regulations were not unconstitutionally vague. Second, the court found that the regulations did not violate the non-delegation doctrine. Third, the court rejected the argument that, under the Tenth Amendment, the "regulations interfere with [Moriello's] rights as a private citizen to disregard unwarranted exercise or authority." Fourth, the court found that the magistrate judge and district court properly interpreted the regulations. Finally, the court found that the evidence was sufficient to support Moriello's convictions.

Cops With Arrest Warrant Need Probable Cause of Residence and Presence

US v. Brinkley: Police officers had a warrant for Brinkley's arrest in Charlotte, NC. In looking for where he might be found, officer found one address where there was a water bill in his name and a second address where some earlier legal documents had been sent to him. The same database that provided that information, however, showed numerous other addresses with which Brinkley was associated. Research on social media led officers to believe Brinkley was dating Chisolm, who was also associated with the second address. Therefore, officers concluded that is where Brinkley was living, although one officer later admitted that it was "common" for people like Brinkley "to have more than one place where they will stay the night." 

Officers went to that address, allegedly to surveil it to see if Brinkley came or went, but eventually went and knocked on the door. Chisolm answered the door. Behind her in the apartment was another woman who was folding laundry. Chisolm denied that Brinkley was there, but both women were nervous and officers hear sounds of movement in a back room. Five officers entered the apartment and found Brinkley in the back, executing the arrest warrant and eventually locating drugs and firearms. Brinkley unsuccessfully moved to suppress the evidence found after the arrest and entered a conditional guilty plea to being a felon in possession of a firearm. 

On appeal, a divided Fourth Circuit reversed the district court and held that it should have granted the motion to suppress. At issue, primarily, was the standard to apply when officers entered a home to execute a valid arrest warrant. That analysis requires two steps: is there reason to believe that (1) the location is the defendant's residence and (2) that he will be home at the time the officers enter. Courts are split as to whether "reason to believe" means officers must have reasonable suspicion or probable cause on those issues. The court concluded that probable cause was required and that the officers in this case did not have sufficient evidence to support it. 

Judge Richardson dissented, arguing that reasonable suspicion was the proper standard but that, even under the higher standard of probable cause, the officers acted appropriately in this case.

Routine Aerial Surveillance Program Does Not Violate Fourth Amendment

Leaders of a Beautiful Struggle v. Baltimore Police Department: This civil case challenged the constitutionality of the Aerial Investigative Research program run by the Baltimore police. The program involves aircraft flying over the city during daytime hours collecting data on the movements of people below. They cover 90% of the city, but operate at a level of resolution that "reduces each individual no the ground to a pixelated dot," unable to identify particular individuals or vehicles. The data is analyzed at a central control room in the wake of particular incidents - shootings, robberies, etc. - to search for suspects and witnesses (using additional information gathering techniques). Leaders, among others, challenged this program as a violation of the Fourth Amendment. The district court denied their request for a preliminary injunction, finding that the program did not violate the Fourth Amendment.

A divided Fourth Amendment affirmed the denial of the injunction, concluding that the plaintiffs failed to make a "clear showing" needed for such relief. The court concluded that the surveillance program did not violate any reasonable expectation of privacy as the program was "short-term surveillance of an individual's public movements." It did not matter that the data harvested by the program could provide police leads to use to track down people using more traditional methods (which the plaintiffs did not challenge). The court distinguished the data at issue here from cell-tower information in the Supreme Court's decision in Carpenter, noting that whereas cell-tower information can track a particular individual over days (or more), the surveillance program could only track movements in public for 12 hours "at most." The court did make clear that its decision "should not be interpreted as endorsing all forms of aerial surveillance." The court also held that the program "seeks to meet a serious law enforcement need without unduly burdening constitutional rights." The court also concluded that the program did not violate Leaders' First Amendment right to free association.

Judge Gregory dissented, arguing that the majority's reading of the program was too narrow and "accepting" of the defendants' promises on the limitations of the program and that Carpenter is "not only relevant to this case. It controls the outcome."

Attempted Hobbs Act Robbery Not “Crime of Violence”

US v. Taylor: In 2003, Taylor was involved in an unsuccessful robbery of a drug dealer. For his troubles, Taylor was charged with (among other things) using a firearm in connection with a “crime of violence,” namely attempted Hobbs Act robbery and conspiracy to commit Hobbs Act Robbery. He pleaded guilty to the firearm charger and the conspiracy charge and was sentenced to 360 months in prison. In the wake of the Supreme Court’s 2015 decision in Johnson, Taylor got permission to file a second 2255 motion, arguing that his firearm conviction had to be reversed because the residual clause of the “crime of violence” definition was unconstitutional and his Hobbs Act offenses did not otherwise qualify. While the Fourth Circuit had already determined that the residual clause was unconstitutional and conspiracy to commit Hobbs Act robbery was no longer a crime of violence, the district court denied Taylor’s motion, holding that attempted Hobbs Act robbery still was.

The Fourth Circuit reversed the district court’s decision and concluded that attempted Hobbs Act robbery was not a crime of violence. Applying the categorical approach, the court explained that Hobbs Act robbery itself required, at the least, the threatened use of physical force and was still a crime of violence. Attempt, however, “does not invariably require the use, attempted use, or threatened use of physical force,” with the court noting that the “substantial step need not be violent.” The court recognized that other Circuit have come to the opposite conclusion, because they “adopt the same flawed premise that the Government recites here: that an attempt to commit a ‘crime of violence’ necessarily constitutes an attempt to use physical force.” “This,” the court concludes, “is simply not so.” In particular, the court distinguished between attempt offenses that require only the attempted threat of force, versus those that require attempted force itself.

Congrats to the Defender office in the Eastern District of Virginia on the win!

No Evidence of Lack of Permit Means Stop Violates Fourth Amendment

 

US v. Feliciana: Feliciana was driving a bakery delivery truck down the George Washington Memorial Parkway (in Virginia, but a federal enclave) when he was pulled over by a Park Police officer. His offense? The officer knew that commercial vehicles requires a permit to operate on the parkway and Feliciana’s truck appeared to be one. Once stopped, the officer found marijuana on Feliciana, who was charged with possession and operating a vehicle without a permit. The district court denied Feliciana’s motion to suppress and he entered a conditional guilty plea (to the marijuana charge, only).

The Fourth Circuit reversed the district court’s denial of the motion to suppress. The court noted that the “entire factual basis . . . offered for conducting the traffic stop was that he saw a vehicle requiring a permit on the Parkway,” but that was “wholly innocent.” It rejected the Government’s argument that such permits are rarely issued, raising an inference of a violation, by noting that “we find no evidence in the record to support” that claim. Without more, the Government failed to “articulate some particularlized and objective basis for suspecting illegality.” The court also rejected the Government’s argument that the regulation requiring permits is structured in such a way as to allow “discretionary spot checks” on vehicles on the Parkway. Finally, the court held that the stop was not made pursuant to any administrative scheme that would avoid Fourth Amendment issues.

Congrats to the Defender office in the Eastern District of VA on the win! 

Court Affirms Juvenile Life Sentence After Resentencing

 

US v. McCain: McCain, who was then 17 years old, shot a pair of what he believed were cooperators in the investigation of the drug operation of which McCain was a part. One of them died, the other lived “but with permanent and disabling injuries” (McCain ran out of bullets, so he ran off and returned with a knife, only to find a crowd gathered at the shooting site). McCain was transferred to adult status and pleaded guilty to witness tampering by murder, witness tampering by attempted murder, and using a firearm in connection with a drug trafficking crime and a crime of violence. The district court imposed a mandatory sentence of life on the murder charge (after McCain, while awaiting sentencing, sent letters threatening to kill several people, including the attempted murder victim).

In 2016, McCain filed a 2255 motion to vacate his sentence on the basis of intervening Supreme Court law that had held that mandatory life sentences for juveniles violated the Eighth Amendment. The Government agreed and McCain was resentenced. The district court imposed another life sentence, concluding that McCain’s record in prison (which included a sexual assault of another inmate when he was moved back to the district court for resentence) showed that this was “one of those uncommon cases where sentencing a juvenile to the hardest possible penalty [was] appropriate.”

The Fourth Circuit affirmed McCain’s new life sentence. First, the court rejected McCain’s argument that because the only authorized sentences for the murder conviction were life in prison or death, the district court could not actually sentence him at all and should have sua sponte vacated the conviction. Applying plain error, the court concluded there was no prejudice (even if there was error) because McCain’s other counts of conviction (and the accompanying Guideline ranges) would still have allowed for the life sentence. Second, the court concluded that “the sentencing hearing easily satisfied our requirements for procedural reasonableness” and the relevant Supreme Court cases and that the district court appropriately considered McCain’s juvenile status at the time of the offense, not just his post-arrest record. The court also concluded that there was no procedural error in the district court’s rejection of McCain’s request for a “de facto parole” setup where the court would regularly revisit his sentence, noting that there is no law authorizing such a scheme. Finally, the court held that McCain’s life sentence was substantively reasonable.

Cannot Challenge Legality of SR Condition Collaterally Without Changed Circumstances

US v. McLeod: McLeod pleaded guilty to aggravated identity theft and interstate travel for purposes of prostitution in 2013. At his guilty plea hearing, the Government mentioned that the prostitution charge may require McLeod to register as a sex offender, but the district court did not elaborate. Recognizing the mistake at sentencing, the district court gave McLeod the chance to withdraw his guilty plea. McLeod declined and was sentenced to 70 months in prison, plus a term of supervised release which required, as a condition, that he register as a sex offender.

After his term of imprisonment was complete, McLeod moved the district court to eliminate the registration requirement, arguing that neither of his offenses of conviction required registration under SORNA. The district court denied the motion on the merits, admitting that while the prostitution count did not require registration, the identity theft count did because it was a “specified offense against a minor.”

The Fourth Circuit dismissed McLeod’s appeal. The Government initially sought dismissal under the appeal waiver provision of McLeod’s plea agreement. Likening McLeod’s argument to one where the district court imposed restitution in a case where it lacked the authority to do so, the court concluded that McLeod’s argument was essentially that he was sentenced above the statutory maximum for his offenses, an issue which cannot be waived in a plea agreement. However, the court dismissed on another ground – that the supervised release statute did not provide a means for McLeod to file the motion in the first place. While the statute does provide the district court flexibility to modify conditions of supervised release after they’re imposed, and the defendant to seek such modification, it does not allow for a challenge to the legality of the condition if the basis for the alleged illegality was present at sentencing. In other words, a condition imposed at sentencing cannot be modified collaterally unless changed law or circumstances are present. A straight up challenge to the legality of a condition must be made on direct appeal (or a 2255 proceeding).

Judge Agee concurred in the judgment, agreeing with the resolution of the plea agreement issue, but arguing that even changed circumstances would not provide a basis for a collateral challenge to a condition of supervised release.

Parts of Anti-Riot Act Unconstitutional, but Severable; Convictions Affirmed

US v. Miselis: Miselis and his codefendant were part of a “local white supremacist group” in California dedicated to going to political rallies “at which its members engaged in violate attacks on counter-protestors.” As particularly relevant to this case. The defendants took part in a pair of violent confrontations in California before travelling to Charlottesville, VA for the “notorious ‘United the Right’ rally” in 2017, where the also engaged in violence. As a result, they were charged with conspiring to violate the Anti-Riot Act as well as travelling in interstate commerce to violate the Anti-Riot Act. After a motion to dismiss the indictment was denied, the defendants entered conditional guilty pleas to the conspiracy count and were sentenced to 27 and 37 months in prison.

The Fourth Circuit affirmed their convictions on appeal, but in doing do struck down large parts of the Anti-Riot Act as unconstitutional under the First Amendment. The problem, as the court noted late in its opinion, is the problematic parts of the Act – those addressing promoting or encouraging violent acts or similar advocacy – may have passed constitutional muster when the Act was enacted in 1968, but in the wake of the Supreme Court’s decision in Brandenburg (1969) and the refinement of First Amendment law, those portions no longer survived. However, the court concluded that the Act was severable and the problematic portions could be struck, leaving the Act focused only on actual acts and advocacy that fell within the bounds of Brandenburg. As a result, the defendants convictions were affirmed because the conduct to which they admitted in their guilty pleas fell clearly within the bounds of the parts of the Act that survived.

Rehaif Error in Indictment, Jury Instructions Is Plain Error Requiring Reversal

US v. Medley: Medley was convicted at trial in 2017 with being a felon in possession of a firearm. While his appeal was pending, the Supreme Court decided Rehaif, which held that to prove that offense the Government must show not only that the defendant was of a certain restricted status, but that the defendant was aware of that fact. In supplemental briefing, Medley argued that after Rehaif his conviction had to be reversed because the status knowledge element was neither pled in the indictment or part of the jury’s instructions, leading to a conviction on insufficient evidence.

A divided Fourth Circuit agreed and reversed Medley’s conviction, applying plain error review. There was no dispute that there was Rehaif error and that error was plain. The dispute was over whether that error impacted Medley’s substantial rights and whether the court should notice it and reverse his conviction. Examining each error individually, the court concluded that each of them impacted Medley’s substantial rights, as did the weight of the errors together. As to whether to notice the error, the court concluded that regardless of whether they individually required notice, the combined errors were “sufficient to undermine confidence in the outcome of the proceedings.”

Judge Quattlebaum dissented, arguing that if “ever there was a case in which errors likely had no effect on the outcome of the proceedings, and the proceedings led to a fair and reliable determination of guilt, this is it,” noting that (among other things) Medley “remained on parole” at the time of his offense.

Congrats to the Defender office in Maryland on the win!