Traffic Stop Wasn’t Unduly Prolonged to Allow for Dog Sniff

US v. Perez: Perez was pulled over due to issues with his registration tag (although police had information he was selling drugs, too). While investigating the state of the tag, an officer learned that Perez’s license “should not be good” and had another officer pursue why that was so. All the while, they were waiting for a drug sniffing dog to arrive. The dog arrived about 15 minutes into the stop, by which point Perez had gotten out of the car and it had been confirmed that his license was suspended due to a pair of prior DUI convictions. The dog alerted to the car and officers recovered methamphetamine and firearms. After unsuccessfully moving to suppress that evidence, Perez pleaded guilty to drug and firearm charges and was sentenced to 180 months in prison.

On appeal, the Fourth Circuit affirmed Perez’s conviction, upholding the denial of his motion to suppress. The court rejected Perez’s argument that the officers intentionally prolonged the stop to provide time for the drug dog arrive, abandoning the purpose of the initial traffic stop to pursue a criminal investigation. The court agreed with the Government that, in light of the multiple traffic issues being investigated (the tag, the status of Perez’s license) that the stop was not unreasonably lengthy. The court noted that at the time the dog arrived “not only had the officers not finished investigating the multiple infractions . . . they also hadn’t issued Perez citations for the infractions.” Also, given the nature of the infractions, Perez couldn’t drive the car away and a tow vehicle hadn’t arrived yet. “In sum,” the court concluded, “though the stop could have been shorter (and begun more efficiently), it wasn’t impermissibly prolonged.” 

Judge Motz concurred in the result, due to the fact that Perez “was not free to drive away after receiving the citations” and therefore “I cannot say that the officers prolonged the stop in violation of the Fourth Amendment.” She wrote separately “to emphasize that law enforcement officers may not deliberately draw out an investigation of a traffic stop to give a canine unit time to arrive and conduct a dog sniff.”

Denial of Compassionate Release Affirmed Where Sentence Was Partly for SR Revocation

US v. Hargrove: Hargrove was serving a 103-month sentence that was imposed in 2018 – 46 months for a substantive drug conviction and 57-months consecutive for a supervised release revocation – when he filed a compassionate release motion in July 2020. The motion was based on complications related to the COVID-19 pandemic, including that Hargrove suffered from asthma, high blood pressure, and obstructive sleep apnea, leading to the possibility of “severe complications” if he contracted COVID. He also argued that his disciplinary record and rehabilitative efforts while incarcerated supported a reduced sentence. The district court denied the motion, concluding that Hargrove’s medical conditions only “might” increase his COVID risk, which was not sufficient to establish “extraordinary and compelling reasons” for release and that the 3553(a) sentencing factors did not support release, regardless. 

The Fourth Circuit affirmed the district court’s denial on appeal. Hargrove argued that the district court abused its discretion by using a bright line rule that required the petitioner to be diagnosed with particular conditions listed by the CDC in its “highest tier” or COVID risk, regardless of “the conditions of the prison and risk of infection.” The court agreed that such a bright line rule would be inappropriate, but concluded that the district court did not apply it in this case, having concluded that Hargrove had shown a particular risk of contracting COVID at his facility, but not a “particularized susceptibility to the virus.” The court also rejected Hargrove’s argument that the district court erred by considering all the 3553(a) factors, even though his sentence was partially a supervised release revocation sentence, to which only some of those factors apply. The court concluded that when considering whether to reduce a sentence, rather than impose one, different factors applied. The court also concluded that the district court sufficiently considered Hargrove’s rehabilitative efforts.

Plain Error Review of Constructive Amendment Must Meet Fourth Olano Prong

US v. Banks: Banks was charged with possession with intent to distribute 50 or more grams of methamphetamine and using or carrying a firearm during that offense. However, when instructing the jury, the district court explained it could convict Banks on the drug count if he either possessed the drugs with intent to distribute them or actually distributed them. The verdict form, however, only mentioned possession with intent. Banks was convicted on both charges and sentenced him to 240 months in prison. 

On appeal, the Fourth Circuit affirmed Banks’ convictions. Banks’ main argument was that the district court’s instruction to the jury had constructively amended the charge against him, broadening the bases on which the jury could convict him. Conceding that review was for plain error, Banks argued that under the Fourth Circuit’s 1994 decision in Floresca such an error required vacation of his conviction regardless of the standard of review. The Government countered that Floresca was no longer good law in light of more recent Supreme Court decisions involving application of the Olano plain-error factors. The court agreed with the Government, concluding that although a constructive amendment was error, plain, and prejudicial, Banks still had to overcome the fourth prong, proving that not vacating his conviction would “affect the fairness, integrity, and public reputation of federal judicial proceedings.” He could not do so here, as “there was overwhelming and generally uncontroverted evidence that Banks possessed with intent to distribute over 50 grams of methamphetamine.”

Maryland Assault to Avoid Apprehension Conviction Not ACCA Predicate

US v. Proctor: In 2004, Proctor was convicted of possession with intent to distribute crack cocaine and being a felon in possession of a firearm. On the firearm charge he was sentenced under the Armed Career Criminal Act, partly due to a prior Maryland conviction for assault with intent to prevent lawful apprehension, which was deemed a “violent felony.” He was sentenced to concurrent sentences of 292 months in prison, reduced to 240 months in 2020 under the First Step Act. In the interim, Proctor filed a 2255 motion arguing that his Maryland conviction was no longer a violent felony because assault can be committed with “no more than de minimis touching of someone in order to prevent arrest.” The district court denied the motion, holding that actual prosecutions in Maryland “consistently involved the exercise of more than de minimis force” and that state courts had identified the offense as a “crime of violence.” 

On appeal, the Fourth Circuit reversed the district court’s denial of Proctor’s 2255 motion. The court agreed with Proctor that the least serious conduct that violated the statute involved simple battery, which the Fourth Circuit had “repeatedly held . . . in Maryland is not a violent felony.” The court rejected the Government’s argument that the state legislature did not intend to incorporate the common-law meaning of assault into the statute, noting it failed to point to any case giving assault or battery such an “elevated meaning.” In addition, state courts had held that “assault” in this context incorporated the common-law definition. Nor does the presence of an additional element – that the assault be committed with the intent to prevent lawful detention – change the ultimate conclusion. Finally, the court identified Maryland court decisions stating that Proctor’s offense could be committed with slight physical contact.

South Carolina Possession-With-Intent Convictions Not ACCA Predicates

US v. Hope: Hope pleaded guilty to being a felon in possession of a firearm. At sentencing, he faced enhanced penalties under the Armed Career Criminal Act due to three prior South Carolina convictions for possession of marijuana with intent to distribute in proximity of a school. Hope objected to their treatment as ACCA predicates. The district court overruled those objections and sentenced him to 180 months in prison, the minimum required by ACCA.

On appeal, a divided Fourth Circuit vacated Hope’s sentence. Part of the issue was the proper standard of review to apply. The Government argued that while Hope had objected to his ACCA status at sentencing, he did not specifically object on the grounds on which he now appealed and that review was for plain error. The court disagreed, concluding that Hope had raised the same argument below as before the Fourth Circuit, while noting that “counsel could have provided a better analysis to guide the district court.” Reviewing de novo, therefore, the court concluded that Hope’s prior South Carolina convictions were not “serious drug offenses” under ACCA because at the time of those convictions “marijuana” was defined by the state to include “all species or variety of the marijuana plant,” but since 2018 Congress has defined marijuana federally as excluding “plants or its parts with less than 0.3 percent THC as marijuana.” As such, because the South Carolina statute is indivisible as to drug type (although not as to conduct, as the Fourth Circuit previously held) and defined marijuana more broadly than federal law a violation of it could not be an ACCA predicate. Ultimately, the court concluded that even if plain error applied, the result would be the same – Hope’s sentence would be vacated. 

Judge Thacker dissented, arguing that plain error review applied and that while the ACCA designation was erroneous, it was not plain. Hope had argued in the district court that he had “pled to a duplicitous indictment in state court” that had “charged him with multiple offenses in a single count,” not that the prior convictions weren’t ACCA predicates. As a result, Hope “raises an entirely new claim in this appeal.” On the merits, Judge Thacker argued that the statute was divisible as to drug type, but that the result was the same – Hope’s prior convictions were not ACCA predicates. However, the error was not plain, as up until this case the Fourth Circuit had not decided whether the federal statute to be compared with the state statute was the one in effect at the time the prior convictions occurred or the time of the federal sentencing. As the “law on these key issues in this case was thus far from settled” at the time of sentencing, “it cannot be said that the district court plainly erred.”

Congrats to the Defender office in Maryland on the win!

Hobbs Act Robbery Conviction Based on Pinkerton Liability Still Crime of Violence

US v. Gillespie: Gillespie and others conceived a plan to rob drug dealers. During one robbery, a victim was “struck with the butt of a pistol,” but could not identify the assailant. Other trial testimony was clear that some of the robbers had firearms, but was split on whether Gillespie himself possessed one. Gillespie went to trial on charges of Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, and using a firearm in connection with a crime of violence under 18 U.S.C. §924(c). The Government’s position was that either Gillespie actually possessed a firearm or, under Pinkerton liability, he was vicariously liable for the possession/use of a firearm by one of his coconspirators. The jury convicted Gillespie on all counts, with the jury rejecting the actual possession theory and convicting on the §924(c) charge on Pinkerton liability.

After trial, Gillespie moved for an acquittal on the §924(c) charge, arguing that the jury had been improperly instructed that conspiracy to commit Hobbs Act robbery was a crime of violence. The district court denied the motion. While it recognized that the jury instruction on conspiracy was incorrect, it held that Gillespie could not demonstrate the prejudice required by plain error review because the firearm conviction “rested explicitly on the Pinkerton theory.” Gillespie was then sentenced to 265 motions in prison, as compared to sentences of 235, 192, 110, and 70 months for the other members of the conspiracy (most of whom had pleaded guilty). 

On appeal, the Fourth Circuit affirmed Gillespie’s convictions and sentence. The court concluded that “Gillespie’s argument confuses Hobbs Act conspiracy as a standalone §924(c) . . . and vicarious liability for a co-conspirator’s act of carrying a gun during a crime of violence under Pinkerton – which remains a valid theory of §924(c) liability.” The former was the result of Supreme Court decisions regarding the definition of “crime of violence” and vagueness issues, which were not present for the later. Pinkerton liability, the court explained, is “merely another form of vicarious liability, akin to aiding and abetting” and “has never depended on the categorization of Hobbs Act conspiracy as a crime of violence.” The special verdict form, the court noted, “made clear that the conviction was based on Pinkerton liability, not Hobbs Act conspiracy as a stand-alone predicate offense” and the jury was not instructed that Hobbs Act conspiracy was relevant to the Pinkerton liability argument. In addition, the court rejected Gillespie’s challenge to his sentence, based on its disparity with those imposed on his codefendants, as “individuals who opt to go to trial are not similarly situated to those who plead guilty and cooperate with the government.”

Conviction For Unlawful Transfer of Firearms Requires Delivery to Another Person

US v. Duroseau: Duroseau was a native of Haiti who came to the United States, became and US citizen and a Marine. After a tour in Afghanistan (from which he returned with PTSD and a "possible traumatic brain injury"), Duroseau conceived of a scheme whereby he would take weapons to Haiti and train authorities there to help them deal with increased violence. After having his girlfriend (a Marine reservist) fake travel orders for him, Duruseau boarded a plane in North Carolina with eight firearms and ammunition, all of which were declared. He was arrested when he landed in Haiti. He was charged with (among other things) of the unlicensed transfer of firearms to another unlicensed person, specifically the Haitian Army. He was convicted on that charge (and others not relevant to the appeal) and sentenced to 63 months in prison.

On appeal, the Fourth Circuit vacated the unlawful transfer of firearms conviction. Before reaching that substantive conclusion, the court rejected the Government's argument that Duroseau's argument was not property preserved, because his motion for acquittal before the district court had not specifically raised the same argument as he made on appeal. The court disagreed, concluding that the motion, combined with the district court's handling of questions from the jury on the issue, properly preserved it. On the substance of the issue, Duroseau argued that a conviction for unlawful transfer of firearms only covers a completed transfer - that is, when the firearms are delivered to the other unlicensed person. The court agreed, noting that the statute did not include attempt and that its plain language required a transfer to another person.

Movant Couldn't Show 924(c) Conviction Was Based Solely On Conspiracy Predicates

US v. Said: Said was part of a group of pirates who intended to attack a commercial vessel in the Gulf of Aden but mistakenly attacked a US Navy vessel. For this he was convicted of multiple offenses (more details here, although afterward Said's sentence was reduced to 396 months), including use and possession of a firearm in connection with crimes of violence. in the wake of the Supreme Court's decision in Davis, Said filed a 2255 motion seeking vacation of the firearm convictions because one of the predicate offenses on which they were based was conspiracy. The district court granted the motion and vacated multiple convictions. 

On appeal by the Government, the Fourth Circuit reversed. Recognizing the parties’ agreement that the original jury instructions erroneously allowed the jury to conclude that the conspiracy offenses were proper predicates, the court nonetheless noted that the convictions would stand “so long as the jury also relied on a valid predicate.” Because the verdict form in this case didn’t specify which predicate(s) the jury relied upon, the issue was whether “Said is entitled to habeas relief because the jury may have relied soley on one or more of the invalid predicates.” The court concluded he was not, relying on the strict harmless error analysis that applies in habeas proceedings when reviewing erroneous jury instructions. Ultimately, the court concluded that Said was required to prove that the jury relied on the invalid predicates and it was not enough to show that it was impossible to know upon which predicates they relied. Because Said could not meet that burden, his convictions remained valid.

Guideline Enhancement Based On Promotion of Terrorism Doesn't Require Terrorism Conviction

US v. Hasson: Hasson was charged with being an unlawful user of controlled substances in possession of a firearm (among other things) after arriving for work in possession of firearms, ammunition, and Tramadol. More Tramadol was found in his desk and a search of his home uncovered 15 firearms, ammunition, and two unregistered silencers (one of which was disassembled). The Government also uncovered considerable statements Hasson had made in a draft email and prior letter to the founder of a white supremacist organization suggesting he was planning some sort of violent act. He also “compiled the manifestos of mass murders and terrorist” and his “internet search history showed a similar preoccupation with violence, white nationalism, and anti-government views.” After unsuccessfully moving to dismiss the firearm charge, he pleaded guilty to all the charged offenses and was sentenced to 160 months in prison after a the application of a Guideline enhancement for committing an offense “intended to promote, a federal crime of terrorism.” 

On appeal, the Fourth Circuit affirmed Hasson’s convictions and sentence. The court rejected Hasson’s argument that the drug user in possession of a firearm statute was “unconstitutionally vague on its face” by noting that he did “not dispute the district court’s holding that his conduct ‘falls squarely within the confines’” of the statute, an “abandonment” That “dooms Hasson’s vagueness challenge.” As to Hasson’s sentence, the court held that the Guideline enhancement for promoting a federal crime of terrorism did not require a conviction for such an offense, rejecting Hasson’s argument that a Congressional directive to the Sentencing Commission restricted the enhancement in such a manner. The court also concluded that the district court did not disregard without consideration Hasson’s expert’s testimony that he did not present a risk of violence.

Search of Bag No Longer In Defendant's Possession Violated Fourth Amendment

US v. Buster: Officers responded to a report of “a domestica assault where a firearm was discharged in the air” when they spotted Buster, who they believed matched the description of the suspect. Buster did not stop when the officers asked to “talk” and eventually “took off running but tripped and fell almost immediately.” Buster had a bag strapped around his waist which was underneath him, in a location where the officers thought he might be trying to conceal it but also where the strap was choking him. Officers cut the strap and took possession of the bag, which felt “hard to the touch” and was therefore suspected of containing a weapon. An officer opened the bag and found a gun and ammunition. Officers also asked Buster numerous questions without Miranda warnings. Buster filed a motion to suppress, which the district court granted with respects to his eventual post-Miranda statements (the Government agreed not to use the pre-Miranda statements), but denied with respect to the gun and the ammunition. Buster entered into a plea agreement which “preserve[d]” his “right to appeal the denial of his motion to suppress,” pleaded guilty to being a felon in possession of a firearm, and was sentenced to 51 months in prison. 

On appeal, a divided Fourth Circuit reversed the district court’s denial of the motion to suppress with regard to the firearm and ammunition. First, the court rejected the Government’s argument that the conditional plea agreement did not adequately preserve the issue. The Government relied on a prior Fourth Circuit decision, Bundy, which held that if a conditional plea attempted to preserve an issue that was not “case dispositive” that it tainted the entire plea, such that it deprived the court of appeals of the ability to review other, case dispositive, issues. The Government argued that the pre-Miranda statements Buster made would not have been case dispositive. The court disagreed, concluding that while the defendant in Bundy sought to appeal several issues, here Buster sought only to appeal “the denial of a single motion requesting a single form of relief (suppression).” Second, on the merits, the court concluded that the district court erred by denying the motion to suppress the firearm as “the sole theory the government has pressed in support of that result does not apply here.” That theory, of a protective search under Terry, did not apply because by the time the officer opened the bag “Buster was handcuffed on the ground and had no access to it.” It could not, therefore, present any “credible threat to the officers’ safety” at the time.  As for the officer’s feeling of the bag and suspicion it might contain a weapon, “that fact alone could not generate reasonable suspicion that Buster  was ‘presently dangerous’ after he was already restrained and no longer had access to the bag.” 

Judge Richardson dissented, arguing that “Bundy’s rule is textually baseless, pragmatically unjustified, and entirely binding on this panel” and “would fully support abandoning Bundy through the proper channel – an en banc hearing.” While not specifically reaching the merits, in a footnote he noted a prior Fourth Circuit decision with similar facts and a different result, and highlighted the “majority’s comment that the government might have succeeded if it sought to justify the search on another theory; the government should now be on notice that it needs to put forth all the alternative theories that justify a search.”

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

Exigent Circumstances Allow for Warrantless Cell Phone Tracking

US v. Hobbs: Hobbs’ ex-girlfriend, Foreman, called police to report that Hobbs had come to her home, brandished a firearm, used it to break a window, then “forcibly entered the home and removed a television.” ON the way out he “threatened to kill Foreman, her daughter, and other family members, and stated that if she contacted the police, he also would kill any responding officers.” Foreman told police that she had seen Hobbs with other guns in the past and that he was “obsessed with firearms.” Police also learned that Hobbs had a “violent criminal history, including convictions for robbery and attempted murder.” With that information, officers made a warrantless request to Hobbs’ mobile phone provider to access pings from his phone as well as call logs, in order to locate Hobbs. About six hours later, officers were able to make a traffic stop, arrest Hobbs, and recover a firearm from next to the car. After unsuccessfully moving to suppress the firearm, Hobbs was convicted at trial of being a felon in possession of a firearm. 

On appeal, the Fourth Circuit affirmed the denial of Hobbs’ motion to suppress. Hobbs argued that the exigent circumstances to the warrant requirement did not apply because “officers lacked information that he would flee from the police” and that neither the officers nor Foreman and her family were facing “imminent harm . . . because Hobbs had obtained the television he was seeking.” The court disagreed, concluding that exigent circumstances applied. It noted that while a warrant could have been obtained in six hours, providers typically took days to respond to them. In addition, the intrusion on Hobbs’ privacy was limited given the small period of time for which they were seeking information. Furthermore, officers behaved like they considered Hobbs to be dangerous, taking Foreman to the police station to keep her safe.

Virginia Common Law Robbery Not "Violent Felony" Under ACCA

US v. White: Back in March of last year, the Fourth Circuit certified a question to the Virginia Supreme Court - can common law robbery be committed by threatening to accuse the victim of having committed sodomy (as well threatening the use of force)? At the time the court held that if it did, it would not qualify as a "violent felony" under the Armed Career Criminal Act. In November, the Virginia Supreme Court answered  the question in the affirmative, tracking that element of the offense way back into the common law of pre-Revolution England. With that decided, in this final opinion the Fourth Circuit follows through on its initial observation and concludes that White was improperly sentenced under ACCA due to the classification of his robbery conviction as a violent felony.

En Banc Court on Direct Appeal Vacates Sentence for Ineffective Assistance

US v. Freeman: As set out in more detail here, Freeman was sentenced to 210 months in prison after pleading guilty to possession with intent to distribute prescription painkillers. At sentencing, her attorney made some ill-advised decisions regarding Guideline objects in a fruitless pursuit to get Freeman into a diversionary program. A panel of the Fourth Circuit vacated the sentence on two grounds: (1) that Freeman's counsel had been ineffective and clearly so based on the record as it existed, given that it included counsel's reasoning for the decisions he made; and (2) that the sentence was substantively unreasonable.

The Government sought and received an en banc rehearing, with the same ultimate result on somewhat narrower grounds, with a 8-5 vote. The same judges from the panel wrote the opinions - Chief Judge Gregory for the majority, Judge Quattlebaum for the dissent. The en banc court again concluded that Freeman's trial counsel had been ineffective, but did not reach the issue of whether the sentence was ultimately substantively unreasonable. The dissent again argued that the record was not sufficient to determine ineffective assistance of counsel on appeal (as it almost never is).

Stinson Controls Impact of Guideline Commentary, Resolves Relevant Conduct Issue

US v. Moses: Moses was convicted on two counts related to drug trafficking in 2018. He also had two prior conviction for drug distribution, which appeared to make him a career offender. Moses objected to that classification, however, arguing that one of the prior convictions, a 2013 conviction from North Carolina, was relevant conduct and therefore was not "conduct not part of the instant offense," as required to be a career offender predicate. Applying Guideline commentary, the district court rejected Moses' argument because he had been convicted and sentenced on the prior offense "well before he committed the instant offenses," and found him to be a career offender. He was sentenced to a downward variance sentence of 120 months in prison.

On appeal, the Fourth Circuit affirmed Moses' sentence. Moses argued that under the Supreme Court's recent decision in Kisor there was no deference due the Guideline commentary unless the Guideline itself was "genuinely ambiguous" and the commentary came "within that the zone of ambiguity." This provided less deference to the commentary than Stinson, which requires disregarding the commentary only if it "violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of" the Guideline in question. Given the unique nature of the Guidelines, the court concluded that Kisor did not narrow the holding of Stinson and that here, because the commentary did not violate the Constitution or a statute or contradict the Guideline itself, it was binding. The court also concluded that Moses' sentence was substantively reasonable.

Judge King dissented in part and concurred in part, noting that the court's analysis was at odds with its recent decision in Campbell and that he was "entirely persuaded of the correctness of the analysis set forth by Judge Motz" in Campbell. Nonetheless, Judge King "agree[d] with the result reached by the panel majority." Note, however, that the opinion in Moses does not purport to overrule or disagree with the holding in Campbell and, to the extent that there is a conflict Campbell, as the earlier decided case, controls.

Length of Sentence Unaffected by Concurrent Nature

US v. Skaggs: Skaggs was convicted of possessing and conspiring to possess meth with the intent to distribute it. The normal statutory sentence of 10 years to life was increased to 15 years due to what the Government labeled a "serious drug felony," a prior conviction for drug distribution in Virginia that resulted in a 26-month sentence. Skaggs objected, arguing that the 26-month sentence was one of six concurrent 26-month sentences imposed at the same time and that the sentence length had to be equally divided among those sentences. As a result, no individual sentence was longer than 12 months, the threshold for a serious drug felony. The district court disagreed and a sentenced Skaggs to serve the mandatory minimum term of 180 months in prison.

On appeal, the Fourth Circuit affirmed Skaggs' sentence. It concluded that "Skaggs' novel theory cannot be reconciled with fundamental tenets of sentencing law, under which concurrent sentences remain separate and distinct terms of imprisonment even though they are served simultaneously." Skaggs was sentenced not to a single 26-month term spread across multiple counts, but to multiple 26-month sentences. The court reserved for another time how the actual time served by a defendant might affect the analysis (if, say a 13-month sentence led, after good-time credits, to only 11 months being served), as "Skaggs is not such a defendant."

Provisions of 21 USC 841 Control Maximum Supervised Release Terms for Drug Offenses

US v. Perez: Perez was serving a term of supervised release following his conviction for possession with intent to distribute marijuana. Upon revocation, the district court sentenced him to a term of imprisonment followed by a further 36-month term of supervised release. There was some dispute over whether that term exceeded the applicable statutory maximum. After an Anders brief and remand to the district court, the court again imposed the same sentence. 

On appeal, the Fourth Circuit affirmed the district court’s new term of supervised release. At issue was the intersection of 21 U.S.C. 841, which sets out supervised release terms for drug offenses, and the general supervised release statute, 18 U.S.C. 3583. The former provide minimum terms of supervised release for drug offenses, but list no maximum – making the maximum authorized term life. The later restricts supervised release maximums based on the classification of the original offense. Prior to 2002, the Fourth Circuit had held that, in at least some instances, the 3583 maximums controlled over the 841 provisions. A Congressional amendment to 841, however, stated that those provisions applied “notwithstanding section 3583 of title 18.” As a result of the amendment, the court concluded that the provisions of 841 controlled and Perez could have received up to a lifetime of supervised release. Therefore, his 36-month term was not problematic.

Youthful Offender Sentence Counts for Guidelines If Imposed In Adult Court

US v. Sitton: Sitton pleaded guilty to being a felon in possession of a firearm. The probation officer recommended an increased base offense level due to a prior conviction for assault and battery in South Carolina for which Sitton was sentenced pursuant to the state’s Youthful Offender Act (“YOA”). Without objection, the district court adopted the recommendation and sentenced Sitton accordingly. 

On appeal, the Fourth Circuit affirmed the district court’s sentence, applying plain error review but concluded there was no error in the first place. Noting that the Guideline enhancement applies only based on a prior “adult conviction,” the court looked to a South Carolina supreme court decision which distinguished between a YOA sentence imposed in a “general sessions court” (i.e., regular adult court) and one arising from a case “handled as a juvenile adjudication in family court.” The former was an adult conviction, the later a juvenile conviction. Because Sitton’s sentence was imposed in the general sessions court it was an adult conviction and the Guideline enhancement was properly applied.

Attempt to Distribute Controlled Substance Not a “Controlled Substance Offense”

US v. Campbell: Campbell was convicted by a jury of possession with intent to distribute drugs. At sentencing, the main issue was whether he was a career offender. Campbell argued that one of his two identified prior “controlled substance offenses” – a West Virginia conviction for delivery of crack – did not meet the definition. That was because the WV statute at issue made it a crime to “deliver” a controlled substance, which the statute then defined to include (among other things) “attempted transfer from one person to another.” The district court rejected Campbell’s argument, concluded he was a career offender, and sentenced him to 180 months in prison. 

On appeal, the Fourth Circuit vacated Campbell’s sentence. Joining several other circuits, the court concluded that the Guideline itself that defined “controlled substance offense” does not include attempts, which are only included as part of the definition in related commentary. However, commentary that is contrary to the Guideline itself cannot control. Here, the commentary expanded the definition of “controlled substance offense” to include attempts. As a result, attempts to commit controlled substance offenses do not count as career offender predicates.

Congrats to the Defender office in the Northern District of WV on the win!

Late-Filed Memorandum Explaining Compassionate Release Denial Considered on Appeal

US v. Jenkins: In 2017, Jenkins was sentenced to 120 months in prison after pleading guilty to drug and firearm offenses. In 2020, he filed a pro se motion for compassionate release, arguing that his medical conditions placed him at an elevated risk of serious illness or death from COVID. His motion argued the relevant 3553(a) factors, but did not provide any evidence of post-sentencing mitigation. The district court denied Jenkins’ motion, using a form order that noted the motion had been “DENIED after complete review of the motion on the merits” and that a “separate memorandum accompanies this order.” However, no memorandum was filed until 20 days later, after Jenkins had filed a timely notice of appeal. The memorandum set forth conclusions that Jenkins had exhausted his administrative remedies and that he had presented “extraordinary and compelling reasons” for release, but ultimately concluding that the applicable 3553(a) factors weighed against a reduction. 

On appeal, the Fourth Circuit affirmed the denial of Jenkins’ motion. First, the court rejected Jenkins’ argument that it should not consider the late-filed memorandum. The court concluded that the late filing was a clerical error and that it was in the record by the time Jenkins filed his brief and, therefore, could be considered when judging the denial of the compassionate release motion. Judging the reasons set forth in the memorandum sufficient, the court then concluded that the district court did not abuse its discretion in denying the motion.

Upward Variance Where Death Occurred After Drug Distribution Is Reasonable

US v. McKinnie: McKinnie sold Nelson “‘China White,’ a potent narcotic containing fentanyl” twice within the span of a few days. The day after the second sale, Nelson died of “acute intoxication of alprazolam, heroin, and fentanyl.” McKinnie pleaded guilty to distribution of fentanyl, but a count charging distribution resulting in death was dismissed as part of a plea agreement. Due to the small amount of drugs involved, McKinnie’s advisory Guideline range was 21 to 27 months. There was no Guideline enhancement related to Nelson’s death. Pursuant to a Government request for an upward variance, the district court sentenced McKinnie to 120 months in prison, concluding that he “absolutely manifested a complete disregard for human life” and had a “callous” disregard of the risk of distributing fentanyl. The court also pointed to McKinnie’s “extensive criminal history along with his failure to respond to leniency shown for previous convictions.” 

On appeal, the Fourth Circuit affirmed McKinnie’s sentence. Primarily, McKinnie argued that the district court procedurally erred by considering his role in Nelson’s death where he was neither convicted of a death-resulting count nor subject to a Guideline enhancement based on Nelson’s death and the district court did not make a but-for finding that his fentanyl was the cause of Nelson’s death. The court disagreed, concluding that “evidence of causation, even if it does not meet the but-for standard, is clearly relevant to the circumstances and seriousness of an offense and may thus be properly considered under the 3553(a) variance analysis.” That said, the court also concluded that such a but-for finding was made, even if the district court did not use the “magic words.” The court ultimately concluded that the district court satisfactorily explained its reasons for imposing the 120-month sentence and that the sentence was substantively reasonable.

No Expectation of Privacy In Car By Passenger Who Recently Exited It

US v. Smith: Smith was a passenger in a car into which a person whom police knew was a felon was also a passenger. Police followed the car (driven by a third person) and ran the license plate number, accidentally transcribing two of the numbers and getting a result showing the plate belonged to another car. The car pulled into a gas station, where police also pulled in and began to confront the known felon. Smith had already gone into the convenience store at the station, in line to check out. Police placed him in handcuffs because “of a fictitious tag,” which prompted Smith to say the car was not his. A search of the car uncovered drugs and guns. When Smith was arrested and told he was being charged with trafficking, prompting Smith to ask about the weight of heroin seized and that it should only be 3.5 grams, not 4.5 as claimed by the police (it was actually 3.32 grams). 

Smith was charged with drug and firearm offenses and moved to suppress the evidence found in the car. The district court denied the motion, concluding both that the stop was lawful and that Smith had no standing to challenge the stop. Smith went to trial and was convicted on all counts. He was sentenced to 138 months in prison.

On appeal, the Fourth Circuit affirmed Smith’s conviction. As to the stop and search of the car, the court agreed with the district court that Smith lacked standing to challenge the stop and search. As to the search, Smith disclaimed ownership in the car and merely being a passenger does not confer a legitimate expectation of privacy to challenge the search. Nor did Smith claim ownership of the drugs and firearms found in the court, although he did claim a cell phone found in the center console. While a “fact to be considered,” it was not enough to support standing, particularly as Smith was not in the car at the time. As to the stop itself, Smith also lacked standing because he was not in the car when it was actually seized. The court also concluded that the district court did not err in not giving a jury instruction on the lesser-included offense of simple possession. Expert testimony at trial was that there the amount of heroin involved “between eleven and thirty-two doses,” and, when coupled with his behavior (taking that amount into a nightclub, asking the police about weight), supported the district court’s decision not to give a simple possession instruction. The court also concluded that the evidence was sufficient to support Smith’s convictions. 

Judge Wynn dissented on the jury instruction issue, arguing that “our precedent requires that a jury decide whether Smith was guilty of the lesser or greater offense.”