Cannot Use Compassionate Release Proceeding to Collaterally Attack Conviction

US v. Ferguson: In 2004, Ferguson was convicted on multiple drug offenses and sentenced to 765 months in prison. His convictions and sentence were affirmed on direct appeal and in two 2255 proceedings, although he did receive a reduction of his sentence to 622 months due to retroactive Guideline amendments. In 2020, Ferguson submitted a request to the warden of his institution for compassionate release due to the COVID pandemic and his increased risk of death from the disease. The warden denied the request, so Fergusson filed a compassionate release motion in district court. In addition to the COVID argument, Ferguson also raised several additional arguments challenging his sentence and convictions, including ineffective of counsel claims. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Ferguson’s motion for compassionate release. Before reaching the merits of Ferguson’s motion, the court dealt with two procedural issues. First, the court joined several other courts of appeals in concluding that it had jurisdiction under 28 USC 1291 to review the denial of Ferguson’s motion. Second, the court concluded that the compassionate release statute had no requirement that a defendant exhaust his remedies within the Bureau of Prisons with regard to every issue raised in a compassionate release motion. It is enough to request compassionate release on some ground. As to the merits, however, court concluded that compassionate release proceedings could not be used to collaterally attack a defendant’s conviction or sentence. That is because 2255 is the “exclusive remedy” for such matters. It distinguished cases like McCoy that were partially based on changed, non-retroactive law that led to reduced sentences on the basis that those defendants were not seeking the invalidation of their convictions.

Video Proves No Reasonable Suspicion to Extend Traffic Stop

US v. Miller: Miller was a passenger in a car stopped by a Morgantown, West Virginia, police officer around midnight. After the driver came to a stop (17 seconds after the officer turned on his lights), the officer approached the driver and asked for documentation. A brief conversation ensued while the driver looked for her license, which prompted the driver to complain about her renewal ordeal earlier that day at the DMV. The officer returned to his car and printed out a warning for the driver. At the same time, he told a backup officer who arrived that he was “suspicious of the vehicle’s occupants because [the driver] was shaking and tapping on the car door.” He gave the driver the warning ticket, ordered her and Miller out of the car, and ran a drug-sniffing dog around the car. The dog alerted and the subsequent search led to the discovery of firearms in Miller’s backpack. Miller unsuccessfully moved to suppress the firearms, with the district court crediting the officer’s observations that the driver was nervous.

On appeal, the Fourth Circuit reversed the denial of Miller’s motion to suppress. Working through the officer’s body camera footage that was introduced during the hearing on the motion to suppress, the court concluded that the district court clearly erred in crediting the officer’s testimony on several key points. That included his contention that the driver did not pull over quickly enough, was nervous based on her conversation about the DMV, and drummed her fingers. The court recognized that “just as officers are not required to complete a traffic stop as quickly as humanly possible, drivers should not be required to pull over as quickly as humanly possible . . . as long as the time it took to stop was reasonable.” As for nervousness, while the officer testified that the driver’s hands were shaking, the video did not show that. In addition, “tapping one’s fingers may just as likely be a sign of annoyance, impatience, or even boredom – any of which can be expected when a person id stopped by a police officer and is awaiting the result of a license check.” 

Congrats to the Defender office in NDWV on the win!

Civil Commitment Court Must Consider SR Conditions to Which Defendant Is Subject

US v. Williams: Williams was convicted in 2017 in Oregon of assault and sentenced to four years in prison. In addition, the district court imposed conditions of supervised release requiring Williams take any mental health medications and participate in mental health treatment programs. While incarcerated, Williams had issues with taking his medication, leading to his transfer to FCI Butner in North Carolina “to assess whether he could be safely released.” The Government requested civil commitment, based on a psychologist’s conclusion that Williams would be a danger if released because he would not take medication as required. The district court granted the motion, commenting on the arguments of the parties (without ruling one way or the other) on whether it could or should consider the imposed supervised conditions as part of its commitment decision.

On appeal, the Fourth Circuit reversed the district court’s decision and remanded for further procedures. The court concluded that the civil commitment statute required a court to determine whether release of the defendant “would create” a risk of danger to others, which “does not permit – much less instruct – a commitment court to pretend that the person will not be subject to terms of supervision . . . and conduct a thought experiment about whether the same person would likely endanger others if not so constrained.” That does not mean that anyone on supervised release would be excluded from civil commitment, but it is an issue the district court must deal with.

Judge Richardson dissented, arguing that he and the majority “part ways” on the issue of whether the district court “show[ed] enough of its work.”

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

Arson of US Property Not a Crime of Violence

US v. Davis: In 1993, Davis twice paid someone to attempt to burn down someone’s home. That home was rented in part using funding from the US Department of Housing and Urban Development. As a result, Davis was convicted of arson and, as relevant here, use of a destructive device (a Molotov cocktail in the second attempt) in furtherance of a crime of violence – arson under 18 USC 844(f). He was sentenced to a total of 480 months in prison. After Johnson, Davis filed a 2255 motion arguing that his destructive device conviction was no longer valid because the arson was not a “crime of violence.” The district court denied the motion.

On appeal, the Fourth Circuit reversed. Noting that the Government had waived any argument as to the timeliness of Davis’ motion, the court went on to conclude that, categorically, an arson conviction under 844(f) is not a crime of violence. That is because the applicable definition of “crime of violence” requires the use of physical force against the “property of another,” but 844(f) allows for conviction if someone burns down their own property. The court pointed to a Seventh Circuit decision affirming a conviction under 844(f) where the defendant burned down his own building where he had operated a business that had received federal funds. The court rejected the Government’s argument that 844(f) only applied to property of another because it was limited to property owned, possessed, used by, or leased to the United States.

Offenses Committed With “Extreme” Recklessness Are Still 924(c) Crimes of Violence

US v. Manley: In 2009, Manley, who was part of a "street gang" in Newport News, pleaded guilty to (among other things) a pair of offenses under 924(c) for user of a firearm during a crime of violence and during a crime of violence causing death. In both instances the predicate crime of violence were violent crimes in aid of racketeering activity (VICAR), assault and murder. In the wake of the Supreme Court's decision in Davis, Manley filed a 2255 motion arguing that his two 924(c) convictions should be vacated because those predicates no longer could be classified as "crimes of violence." The district court disagreed and denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Manley's 2255 motion. In both cases the court held that the relevant predicates were the Virginia versions and that those offenses could be committed with a sufficient mens rea to satisfy the Supreme Court's even more recent decision in Borden. In particular, the court noted that Borden, which held that reckless offenses could not be crimes of violence, explicitly left for later consideration whether the same conclusion was required for offenses committed with "extreme" recklessness. The court concluded that such offenses remain crimes of violence. In addition, the relevant Virginia assault offense had been defined by the state supreme court to require "the specific intent to cause severe and permanent injury."

Judge Niemeyer, in a part of the opinion joined by none of the other members of the panel, provided an alternate basis for concluding that the predicates were crimes of violence, that they were required to be undertaken "for a racketeering-related pecuniary purpose or with the purpose of improving his position in a racketeering enterprise," which therefore requires intentional conduct.

Speedy Trial Act Dismissal Required Where District Court Based Continuance On “Trial Preparation" Needs

US v. Velasquez: Velasquez was charged in a five-count drug indictment. At his arraignment he pleaded guilty to three of the counts, not guilty to the other two. There was some discussion of setting a trial date at the hearing, but nothing was resolved. In a post-hearing order, the court directed counsel to work with chambers on a trial date and that "speedy trial computation excluded by the court." Three months passed before the court set a trial date, excluding the delay under the "ends of justice." Velasquez, after securing new counsel, moved to dismiss the two remaining counts under the Speedy Trial Act. The district court denied the motion, explaining that the delays were necessary "for trial preparation." Velasquez was convicted at trial and sentenced to a total of 264 months in prison.

On appeal, the Fourth Circuit reversed the district court's denial of the Speedy Trial Act motion. The court noted that while trial prep needs can be a basis for an "ends-of-justice" continuance there was no evidence here that either party needed or requested additional time.  As a result, the court could not conclude that the initial arraignment order excluded time for that reason. In addition, the district court "had the opportunity to offer more clarity at the motion-to-dismiss hearing, but it gave none." As a result, the district court erred in denying the motion to dismiss. In addition, the court held that Velasquez was no estopped from raising the issue because he consented to initial representations from the Government about when it could go to trial.

CCE Drug-Related Murder Is Not “Covered Offenses” Under First Step Act

US v. Roane: In early 1992, Roane and his codefendant Tipton were "involved in several brutal murders and maimings within the Richmond area" while part of a drug-trafficking conspiracy. As a result, both ended up convicted of (among other things) substantive drug offenses and of capital murder in furtherance of a Continuing Criminal Enterprise, under 21 USC 848(e), and were sentenced to death. Both then filed for relief under the First Step Act, motions which the district court denied. The court concluded that the CCE convictions were not "covered offenses" for First Step Act purposes and declined to exercise its discretion to impose new sentences on the substantive drug counts.\

On appeal, the Fourth Circuit affirmed the denial of First Step Act Relief. Recall that earlier this year the court had held that CCE offenses sustained under 848(a) and (c) were not covered offenses. The court reached the same conclusion as to 848(e), rejecting the defendants attempts to link that offense to the substantive drug offenses (that were covered offenses). The 848(e) convictions were for separate substantive offenses, not merely penalty provisions, and the statutory range for them was not changed by the First Step Act. To hold otherwise would create "a stark circuit split." As to the substantive drug offenses, the court found no "procedural or substantive flaw" with the district court's denial of relief.

First Step Act Denials Reviewed for Unreasonableness, Too

US v. Swain: In 2008, Swain pleaded guilty to conspiracy to possess with intent to distribute more than 50 grams of crack cocaine and sentenced to 324 months in prison, the bottom of the applicable Guideline range. In 2019, he moved for a reduced sentence under the First Step Act, arguing that his Guideline range had dropped to 210 to 262 months (probation calculated it as 262 to 327 months. The district court concluded Swain was eligible for a reduction, but exercised its discretion not to give one after “completely review[ing] the entire record, the parties’ arguments, the new advisory guideline range [Swain’s, the court assumed], and all relevant factors under 18 USC 3553(a).”

On appeal, the Fourth Circuit vacated the district court’s decision. To start, the court had to determine the proper standard of review, with Swain arguing it was for reasonableness and the Government arguing it was for abuse of discretion. The Government’s argument attempted to limit the court’s decision in Collington to similar factual scenarios, where the un-reduced sentence was greater than the newly applicable statutory maximum. The court disagreed, concluding that “substantive reasonableness review applies to all section 404 proceedings.” Applying that standard, the court noted that “here, the district court did not explicitly acknowledge it was effectively retaining a variant sentence, let alone why it believed such a large upward variance was warranted.” The exercise of discretion to deny relief under the First Step Act “must be reviewed in light of the First Step Act’s remedial purpose.” Because the district court “relied largely on the same factual basis to deny [Swain]’s motion for a reduced sentence as it did to impose its initial bottom-of-the-Guidelines sentence,” its decision was substantively unreasonable.

Congrats to the Defender officer in EDNC on the win!