Remand Required Where District Court Failed to Address Defendant’s Disparity-Based Variance Argument

US v. Shields: Shields was arrested in West Virginia on an outstanding warrant from Ohio and found to be in possession of a firearm. He pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government objected that the probation officer had failed to enhance Shields’ base offense level by four levels for a prior Ohio conviction that met the definition of “controlled substance offense.” Shields conceded that he was unaware of any caselaw supporting a contrary conclusion, but argued in the alternative for a variance sentence within the originally calculated Guideline range because had Shields sustained the same conviction across the river in West Virginia it would not have been a controlled substance offense under Campbell. The district court imposed a sentence of 51 months, the bottom of the Guideline range, without addressing Shields’ argument.

On appeal, the Fourth Circuit vacated Shields’ sentence and remanded for resentencing. The court noted that while the district court had addressed Shields’ prior conviction in the context of Guideline calculations, it did not go further and address Shields’ argument for a variance. That argument was not frivolous, as it was based on the need to avoid unwarranted disparities and that such disparities – produced when different states treat similar conduct different ways – “is the kind of disparity a district court could consider under §3553(a)(6).” The court also rejected the Government’s argument that any error was harmless.

NOTE: My office represented the defendant in this case.

17-Day Time-Served Sentence Substantively Unreasonable in Large ID Theft and Child Pornography Case

US v. Fitzgerald: Fitzpatrick created and ran an online marketplace that dealt with stolen identification information, to the point that “it became the largest English-language data-breach forum ever, featuring over 14 billion individual records.” Seizure of his devices led to the discovery of child pornography. Fitzpatrick eventually pleaded guilty to two counts related to trafficking in stolen identification information and possession of child pornography. After his guilty plea, while on bond, he violated numerous conditions of release by (among other things) using a VPN to connect with the internet and proclaim his continued innocence. Bond was revoked prior to sentencing. At sentencing, the district court imposed a term of time served (17 days) based on concerns about Fitzgerald’s age (21 years old) and mental health concerns (autism spectrum disorder), concluding that “this young man in general population I think would just be a disaster.”

On appeal, the Fourth Circuit vacated the sentence and remanded. The Government argued that the 17-day sentence was substantively unreasonable and the court agreed. It concluded that the district court had focused only on Fitzgerald’s age and mental health, without appropriate consideration of other sentencing factors, including deterrence and the seriousness of his offenses. In particular, the court rejected the district court’s reliance on non-record assertions that the Bureau of Prisons could not adequately treat Fitzgerald if sentenced to a term of incarceration.

Rejecting Plain Error Argument Where No Other Court Had Found Error

US v. Jackson: Jackson was an ear/nose/throat doctor in North Carolina who built a specialty performing ballon sinusplasty surgery (to treat chronic sinusitis). The procedure required a particular device that was “designed for single use and is labeled by the Food and Drug Administration as being approved only for single use.” Jackson and her staff used the devices repeatedly and created intense incentives for office staff to attract new patients/customers. Jackson was eventually charged with numerous offenses related to fraud, as well as “holding for resale adulterated medical devices” – the device used to perform the sinusplasty surgery. She was convicted on all charges and sentenced to 300 months in prison and $5.7 million dollars in restitution.

On appeal, the Fourth Circuit affirmed Jackson’s convictions and sentence. Of primary interest was Jackson’s challenge to her adulterated medical device count, on which Jackson made several arguments, most of which “are raised here for the first time on appeal.” Particularly, Jackson argued that, at most, she held the devices for use, but not for sale. Applying plain error because none of the argument presented below “challenge any aspect of the ‘held for sale’ element,” the court concluded that any error could not be plain. The only Circuit Court to have dealt with the issue rejected Jackson’s argument. Even if that decision was incorrect it means Jackson could not show an error that was “clear or obvious.” As the court noted, it had previously held that a district court does not plainly err when it follows the decision of another Circuit Court on an issue where the Fourth Circuit has not yet ruled.

Conviction for Engaging in a Child Exploitation Enterprise Can Be Based on Aggregation of Three Other Individuals Involved

US v. Kuehner: Kuehner (and others) was charged with knowingly engaging in a child exploitation enterprise, based on conduct online where he had “encouraged and pressured minors to post child sexual abuse material.” At trial, Kuehner argued that someone was impersonating him in these matters, but the court disagreed and found him guilty. He was sentenced to 20 years in prison and a 20-year term of supervised release.

On appeal, the Fourth Circuit affirmed Kuehner’s conviction. His primary argument on appeal focused on the requirement that to prove a child exploitation exercise the statute required that a defendant commits certain acts “in concert with three or more other persons.” Kuehner argued that each offense (of which there must be at least three) each required the participation of three or more other persons. The court disagreed, holding (in accordance with other Circuit Courts to consider the issue) that the three or more persons requirement can be satisfied in the aggregate.

Maryland Robbery Remains Violent Felony Under ACCA

US v. Shanton: After committing a pair of bank robberies in 2007, Shanton pleaded guilty to (among other things) two counts of being a felon in possession of a firearm. At sentencing, he was sentenced under the Armed Career Criminal Act on those two counts and received a total sentence of 608 months in prison. In an already pending §2255 motion, Shanton argued (after the Supreme Court’s decision in Johnson) that two of his prior convictions, for robbery in Maryland, no longer qualified as “violent felonies.” The district court disagreed and dismissed the §2255 motion.

On appeal, the Fourth Circuit affirmed the denial of Shanton’s §2255 motion. The court noted that in 2019 it had held that Maryland robbery still qualified as a violent felony after Johnson. Shanton argued that the Supreme Court’s decision in Borden rendered that decision inapplicable because robbery in Maryland could be committed with a mens rea or recklessness and thus not qualify as a violent felony. The court disagreed, holding that the mens rea of common-law robbery applies not only to the larceny element of the offense but to the use of force (or threat thereof) itself.

First-Time-On-Appeal Challenge to Factual Basis of Guilty Plea Rejected

US v. Pittman: In 2020 Pittman pleaded guilty to an information to aiding and abetting the malicious damage by fire of the Market House, a historic building in Fayetteville, North Carolina. Prior to sentencing, Pittman filed a motion to dismiss that count, arguing that 18 U.S.C. §844(f) required a nexus between federal financial assistance and the property damaged and that the information itself was invalid for failing to allege such nexus. Pittman did not move to withdraw his guilty plea. The motion to dismiss was denied and Pittman was sentenced to 60 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Pittman’s motion to dismiss, upholding his conviction and sentence. The court rejected Pittman’s argument, based on the Supreme Court’s decision in Class, that his guilty plea did not waive his challenge to the scope of the statute, holding that Pittman’s unconditional guilty plea “necessarily admitted that his conduct violated the statute.” While the unconditional guilty plea also arguably waived Pittman’s as-applied constitutional challenge to the statute, the court held that it “need not resolve that issue” because Pittman could not meet the requirements of plain error review. Specifically, any error that might have occurred was not plain.

Court Affirms Enhancement for Permanent Scarring, Vacates for Vulnerable Victim

US v. Thuy Luong: Luong, a native of Vietnam who became a United States citizen and was fluent in both English and Vietnamese, ran a nail salon in North Carolina. She hired Victim (it’s the only way she’s identified in the opinion), also a native of Vietnam who was not particularly fluent in English, to work at the salon, then subjected her to various forms of intimidation, extortion, and physical abuse. As a result, Luong was convicted at trial of forced labor. At sentencing, the district court imposed an enhancement for vulnerable victim and for permanent scarring, based on injuries Victim suffered at Luong’s hands. Luong was sentenced to 180 months in prison.

On appeal, the Fourth Circuit vacated Luong’s sentence. The court concluded that the district court had erred in imposing the vulnerable victim enhancement, holding that the findings the district court made were not sufficiently specific to Victim. Instead, the district appeared to believe it sufficient that Victim was part of a “susceptible class” (an immigrant with limited English fluency) without “any particularized facts about the impact of that culture on the Victim.” Nor was there sufficient evidence in the PSR to show what “made the victim unusually vulnerable and why.” However, the court also concluded that the enhancement for permanent scarring was appropriately applied, finding the district court’s findings – based on Government assertions made a year prior to sentencing – were sufficient. The court remanded the case for resentencing.

Probable Cause Supported Arrest, In Spite of Misidentification

US v. Mayberry: Davis was the passenger in a car that was pulled over for speeding. He told officers that he was headed to a hotel to meet a man he knew as “Red” to purchase four pounds of methamphetamine. Officers showed Davis a picture of another man, Phillips, who he identified as Red. Using Davis’ cell phone, officers texted with Red, who was on his way to the hotel. Shortly thereafter, a pickup truck entered the parking lot and Davis got a text from Red saying that he had arrived.

The driver of the truck – Mayberry, not Phillips – got out (with a young child) carrying a red, white, and blue bag and entered the side door of the hotel. Officers intercepted Mayberry on the second floor, without the bag. The bag was found behind a door in the stairwell Mayberry had used. It was found to contain about 4.4 pounds of methamphetamine. After a motion to suppress was denied, Mayberry pleaded guilty to drug and firearm charges and was sentenced to 414 months in prison.

The Fourth Circuit affirmed Mayberry’s conviction and sentence. The district court rejected two arguments with regard to the motion to suppress. First, the court concluded that Mayberry’s statements made after his arrest should not have been suppressed because the police had probable cause to make the arrest. It specifically rejected Mayberry’s reliance on the fact that Davis identified someone else as Red, pointing to the accuracy of the other information Davis provided that was “supported independently by the officers’ real-time observations of Mayberry” after they started texting with Red. Second, the court agreed with the district court that Mayberry had abandoned the bag with the methamphetamine in it and therefore could not challenge its search.

Court Erred By Not Determining Scope of Jointly Undertaken Conduct

 US v. Bright: Bright was involved with others in the sale of drugs, largely using two middlemen to meet with the CI to whom Bright would eventually sell drugs. Along with seven others, Bright was indicted for conspiracy to possess with intent to possess multiple types of drugs, although Bright’s conduct was limited to fentanyl. Bright pleaded guilty. At sentencing, the district court imposed a three-level enhancement for aggravating role in the conspiracy, concluding that “the criminal activity involved five or more participants.” Bright argued only a two-level enhancement should apply since his conduct only involved supervising two others. The district court imposed a sentence of 97 months, the top of the resulting Guideline range.

On appeal, the Fourth Circuit vacated Bright’s sentence. Relying on last year’s decision in Evans, the court concluded that the district court had made the same error here, in that it failed to first determine Bright’s specific role in the conspiracy before determining the extent of the activity that he supervised. Nor did the district court make a determination that that conduct was “otherwise extensive,” as the enhancement required.

District Court Adequately Addressed Duress Argument at Sentencing

US v. Gaspar: Gaspar and a codefendant were charged with conspiracy to distribute methamphetamine after, among other things, a traffic stop (from which Gaspar fled) the led to the recovery of drugs, cash, and a firearm and the search of Gaspar’s home (from which he did not flee) that recovered more of the same. Gaspar pleaded guilty and faced an advisory Guideline range of 324 to 405 months in prison, although the probation officer recommended a downward variance to 210 months. Gaspar argued for a variance down to 120 months (the mandatory minimum) arguing that he was acting under duress during the conspiracy. The district court rejected Gaspar’s request (as well as the Government’s request for a 210-month sentence) and imposed a sentence of 188 months in prison.

On appeal, the Fourth Circuit affirmed Gaspar’s sentence. Gaspar argued that the district court did not sufficiently address his duress argument. The court disagreed, noting that it was addressed specifically during a bench conference and had been raised and argued about by the parties in pre-sentencing memoranda and at sentencing.

Court Rejects As-Applied Challenge to §922(g)(1) – Bruen Changed Nothing

US v. Hunt: On the heels of Canada redux, the Fourth Circuit proceeded to address the question of as-applied challenges to the felon-in-possession statute, §922(g)(1). All the opinion tells us of Hunt is that his §922(g)(1) charge was based on a 2017 West Virginia conviction for breaking and entering.

Before addressing Hunt’s Second Amendment issue, the court first addressed the proper standard of review, given that Hunt had not challenged §922(g)(1) in the district court (Hunt’s plea came before Bruen). Hunt, relying on the Supreme Court’s decision in Class, argued that de novo review was proper, while the Government argued review was only for plain error. Ultimately, the court determined “the prudent course is to assume – solely for the sake of argument – that the plain-error standard does not apply here” and reviewed Hunt’s arguments de novo.

As to the merits, the court rejected Hunt’s as-applied challenge to §922(g)(1) on two alternate bases. First, the court concluded that post-Heller holdings of the Fourth Circuit foreclosed such challenges and nothing in Bruen or Rahimi changed that. This was backed up not only by Canada but by the court’s recent en banc decision in Bianchi. Second, the court concluded that “even if we were deciding this case unconstrained by this Court’s pre-Bruen precedent, Hunt’s challenge would still fail” because felons do not fall within the “people” protected by the Second Amendment. Even if they did, the court concluded that the challenge would fail under Bruen’s historical analysis as there were several examples of relevant “analogues” in the historical record to support disarming felons.

Rahimi Doesn’t Change Canada - §922(g)(1) Not Subject to Facial Attack

US v. Canada: Recall back in June in this case that the Fourth Circuit held that the felon in possession of a firearm prohibition, §922(g)(1), was no subject to facial challenge under the Second Amendment. Canada sought review from the Supreme Court, which granted certiorari under Rahimi and remanded to the Fourth Circuit for further proceedings. The court stated that it “carefully reviewed Rahimi and our previous decision in this case and conclude they are fully consistent.” As a result, the court “re-adopt[ed] and re-issue[d] our previous decision in this case as modified” to discuss Rahimi. The end result is the same - §922(g)(1) is not subject to facial attach under the Second Amendment.

“Reasonable Belief” to Support Gant-Based Search Incident to Lawful Arrest Is Lower Standard than Probable Cause

US v. Turner: Turner was the suspect in the theft of a firearm from his brother and a state warrant for his arrest was issued. The next night, a person alleged that Turner carjacked them using a gun that matched the description of the one stolen from Turner’s brother. Before an additional arrest warrant could be obtained, police responded to a shots fired call at a local convenience store. The officer who had obtained the arrest warrant approached Turner, who was sitting in his car, and arrested him. When that officer went back to the car after securing Turner in his cruiser, another officer was searching the car and found the stolen firearm.

Charged with possession of the firearm (as a felon and because it was stolen), Turner moved to suppress it as the product of an unlawful search of the car. The district court denied the motion, concluding that under Arizona v. Gant the search was proper incident to a lawful arrest because it was reasonable to believe that the car contained evidence of the crime of arrest – namely, the theft of the firearm. Turner entered a conditional guilty plea and was sentenced to 57 months in prison.

On appeal, the Fourth Circuit affirmed Turner’s conviction, although it did vacate his sentence. The court rejected Turner’s argument that the district court erred in concluding that the search-incident-to-a-lawful-arrest doctrine applied. Evaluating Gant, the court concluded that the “reasonable belief” the Supreme Court said is required to search a vehicle after an arrest is a lower standard than probable cause. To hold otherwise would essentially gut Gant (since probable cause allows a search pursuant to the automobile exception anyway). The court did not specify whether “reasonable belief” is the same as “reasonable suspicion” because here the difference did not matter as there was a clear link between the offense of arrest (theft of the firearm) and evidence that might be found in the car where Turner was when he was arrested. As to the sentence, the court agreed with the parties that a prior conviction had been improperly included in the criminal history category and required vacation of the sentence, even applying plain error review.

Appeal Wavier Covers ACCA Sentence Based on Allegedly Incorrect ACCA Designation

US v. Lubkin: Lubkin, who was a convicted felon, was found in a stolen car with a gun. He was charged with carjacking, discharging a firearm during a crime of violence, and being a felon in possession of a firearm. He pleaded guilty to the felon-in-possession, pursuant to a plea agreement in which the Government agreed to dismiss the other charges. In the agreement it provided for the possibility that Lubkin might qualify for an enhanced sentence under the Armed Career Criminal Act and that he waived his right to appeal “the sentence.” At sentencing, the district court, over Lubkin’s objection, concluded that ACCA applied and sentenced him to 180 months in prison.

Lubkin sought to appeal the district court’s decision, but the Fourth Circuit ultimately dismissed the appeal pursuant to the appeal waiver provision of the plea agreement. Contending that the waiver did not cover his appeal, Lubkin argued (1) the district court’s ACCA designation was erroneous, meaning (2) his sentence is above the applicable statutory maximum of 120 months, and therefore (3) his sentence is “illegal” and not covered by the waiver. The court disagreed, essentially concluding that if it didn’t do so it would create a loophole that would always allow appeals in such cases. Ultimately the question is not what the proper statutory maximum should have been, but what it actually was.

Consecutive Sentences Hadn’t Been Served So As to Create Double Jeopardy Problem at Resentencing

US v. Bullis: In 1996, Bullis was convicted for six separate offenses after mailing pipe bombs to his wife’s office (one went off, injuring her, the other was intercepted). Of the six offenses, two were for use of a “firearm” during crimes of violence under §924(c). At sentencing, the district court imposed a 235-month sentence on the other four counts to run concurrently with each other, then imposed a 360-month consecutive sentence on one §924(c) offense and a life sentence on the other, to also run consecutively to the other four. In the wake of the Supreme Court’s decision in Johnson (and its progeny), Bullis filed a §2255 motion that resulted in the two §924(c) counts being vacated.

At the time of resentencing, Bullis had served 331 months in prison. The district court imposed concurrent sentences of 240 months on three counts, but a sentence of 450 months on the other, leaving Bullis approximately 119 months to serve. The district court also attempted to impose conditions of supervised release by referencing “standard” conditions adopted in the district.

On appeal, the Fourth Circuit vacated Bullis’ sentence due to error in imposing conditions of supervised release, but approved of the term of imprisonment imposed at resentencing. Bullis’ primary argument was that the new sentence violated Double Jeopardy because he was resentenced on counts for which his sentence was already complete. The court disagreed, distinguishing between situations where multiple sentences are imposed to run concurrently with each other and those where consecutive sentences are imposed. In the former, each sentence imposed stands on its own, but in the latter the sentences running consecutive to each other form unified “packages.” In Bullis’ case there were two “packages” consisting of each §924(c) offense plus the other terms to which they were ordered to run consecutively. Analyzed that way, Bullis had not fully served either sentence package. Nonetheless, the court had to vacate the sentence due to yet another Rogers error in the imposition of conditions of supervised release.

Evidence of Domestic Abuse Inadmissible Without Pursuing Duress Defense

US v. Nsahlai: Nsahlai’s husband (an “international businessman”) had two businesses incorporated in Virginia which had no employees. Nonetheless, the businesses applied for PPP loans to cover payroll costs, using fraudulent payroll data generated by Nsahlai. She was charged with conspiracy to commit bank fraud and related offenses and went to trial. Prior to trial, the district court granted a Government motion to exclude portions of a recording in which Nsahlai and her sister discussed abuse (violence and threats) Nsahlai suffered at the hands of her husband. Nsahlai stated that she was not pursuing a duress defense, but that she intended to argue that “the overall circumstances of [her abusive] relationship” explained why she engaged in the charged conduct, attacking the mens rea elements of the offenses. The district court clarified that if Nsahlai testified she could go into the abuse somewhat. Nsahlai did not testify and was convicted of all counts at trial.

On appeal, the Fourth Circuit affirmed Nsahlai’s convictions. Nsahlai’s primary argument was that the district court erred by excluding the recording (the court noted that while Nsahlai referred to other evidence of abuse that might have been introduced there was no proffer of what that was). The court found that there was no abuse of discretion in the district court’s ruling, concluding that the recording (which took place after the conduct at issue in the indictment) was “vague” and referred to “events that occurred at an unknown point in time and without context” and thus was not relevant. That was because the court rejected Nsahlai’s argument that the abuse had anything to do with the mens rea elements of the offense, given the lack of duress defense. Even if it was relevant, the court held it would have been properly excluded under Rule 403 as unduly prejudicial and, additionally, harmless given the weight of evidence against Nsahlai.

Shorter Term of Imprisonment With Significantly Longer Term of Supervised Release Is Presumptively Vindictive

US v. Chang: Chang and Campbell were convicted of conspiracy to distribute cocaine. Campbell was sentenced to 72 months in prison, plus a four-year term of supervised release. Chang, sentenced later, received the same sentence. His sentence was vacated, however, because the district court had erred in concluding he wasn’t eligible for safety valve relief. At resentencing, the district court focused on what it called Chang’s “leap into a criminal lifestyle” and ultimately imposed a 69-month term of imprisonment – a slight reduction from the original, but above the now applicable 37-46 month Guideline range – and a ten-year term of supervised release.

On appeal, the Fourth Circuit vacated Chang’s sentence and remanded for another resentencing. Chang’s primary argument was that his sentence was vindictive and he was punished as the result of his successful initial appeal. The court agreed that Chang’s sentence was “harsher than his first,” even though it involved a lesser term of imprisonment. While “courts cannot weigh terms of incarceration and supervised release with any mathematical certainty,” with the supervised release term more than doubled this was not a particularly close case. The court then went on to conclude that the district court did not adequately explain its harsher sentence, noting that what the district court did rely on imposing the second sentence was information available to it during the initial sentencing. In other words, there was not new information upon which the district court could base a decision to impose a harsher sentence. Chang’s sentence had to be vacated, even under plain error review (as Change did not object to the harsher sentence when imposed).

Dismissal of Emotionally Fragile Juror Ex Parte Required Reversal of Convictions

US v. Laffitte: Laffitte was charged and stood trial for conspiracy and related fraud counts. During jury deliberation, several notes were received from the jury. Two were from Juror 93, who first explained that they needed medication from home and then that they were “feeling pressured to change my vote.”  The district court stated that it intended to utilize an alternate rather than delay deliberations (Laffitte suggested sending the jury home to start again the next morning). Two additional notes emerged, one from most of the jurors that another juror’s “prior court experience” was influencing their “ability to discuss the trial in a group setting.” The final note, from Juror 88, asked for an alternate because “I am experiencing anxiety and [am] unable to clearly make my decision.”

The district court, “with the consent of the parties” decided to question Juror 88 alone with a court reporter to “create a record.” The district court also said “I’m going to take action.” It then performed an in camera interview with Juror 88, in which they said they could not “perform your duties as a juror.” Therefore, the district court told Juror 88 “I’m going to honor your request and replace you then” and did so without seeking further input from the parties. Lafitte objected to the removal of Juror 88 but “not to the juror that was replaced for medication,” Juror 93. After additional instructions, the jury deliberated for less than an hour before convicting Laffitte on all counts.

On appeal, the Fourth Circuit reversed Laffitte’s convictions, ultimately concluding that the district court should have granted Laffitte’s motion for a new trial. While concluding that the district court did not err by refusing to consider an affidavits from Jurors 88 and 93 under Rule of Evidence 606(b)(1), the court did conclude that the district did err in removing Juror 88 (the court held Laffitte had waived his argument as to Juror 93), for two reasons. First, the dismissal of Juror 88 violated Laffitte’s Sixth Amendment right to an impartial jury because Juror 88’s note and colloquy with the district court showed that the distress they felt was due to their position on Laffitte’s guilt or innocence during deliberations. Second, the dismissal violated Laffitte’s right to be present during a critical stage of his trial, as the decision was made by the district court without input from Laffitte (or the Government, for that matter).

Single-Count Conspiracy Conviction Supports Sentencing for Multiple Counts

US v. Mitchell: In 2021, Mitchell (and codefendants) was charged in an eight-count indictment with conspiracy to commit Hobbs Act robbery and seven substantive robbery counts. Mitchell pleaded guilty to the conspiracy count and one substantive count. In the PSR, the probation officer identified five robberies (or attempted robberies) in which Mitchel was involved (not all of which were substantive counts from the indictment). Applying USSG § 1B1.2(d), the probation officer treated Mitchell as if he had four separate convictions which, because they did not group, led to a four-level multi-count increase in his offense level. The district court adopted those calculations and imposed a sentence of 108 months, below the 120-150 month Guideline range.

On appeal, the Fourth Circuit affirmed Mitchell’s sentence. Before reaching the merits, the court returned to the question of Guideline commentary and the Supreme Court’s decision in Kisor, concluding that under Campbell that Kisor applies to questions of Guideline commentary interpretation (as opposed to the later-decided Moses which concluded it did not). That done, the court § 1b1.2(d) applies to robberies, “even if those underlying robberies would constitute violations of the same statute.” The court did not need to reach the issue of how to determine which other robberies are counted as Mitchell never contested that he committed the four robberies at issue.

Michigan Robbery by Confinement Requires Use of Force, Is “Serious Violent Felony”

US v. Lightfoot: In 2000, Lightfoot was convicted of bank robbery and a firearm offense after having been previously convicted of the same offense in Virginia and Michigan state courts. As a result, Lightfoot was sentenced to a mandatory life term under the “three strikes” provision of 18 U.S.C. § 3559(c), plus a consecutive life sentence for the firearm offense. After Johnson was decided in 2015, Lightfoot filed a §2255 motion arguing that the Michigan bank robbery conviction was no longer a “serious violent felony” under either the enumerated offense clause or force clause. The district court disagreed and denied the motion.

On appeal, a divided Fourth Circuit affirmed the denial of Lightfoot’s §2255 motion. The court first concluded that the Michigan robbery statute was divisible and that Lightfoot had been convicted of the version of the offense known as “assaultive bank robbery.” The court then concluded that the offense fell under the enumerated offense clause because it shared the “essence of robbery in the federal statutes.” It rejected Lightfoot’s argument that because the offense could be committed by “confinement” it was not sufficiently similar to federal bank robbery, concluding that Michigan law showed that “confinement requires force or intimidation, just like all the other assaultive acts listed in the robbery statute.” The court noted that Lightfoot “has not identified any case where confinement without force or fear was the basis of an assaultive bank robbery conviction” under Michigan law.

 Judge Benjamin dissented, arguing that Michigan assaultive bank robbery “in its lease culpable form, can be accomplished without the use or threat of physical force.”

Completed Carjacking Remains Crime of Violence

US v. Fulks: Fulks and his codefendant, Basham, escaped from prison together and went on a multi-state crime spree that resulted in a kidnapping, rape, and murder in West Virginia (which is not the subject of this appeal) and a similar kidnapping, rape, and murder in South Carolina (which is the subject of this appeal). They were both charged with numerous offenses, including kidnapping, carjacking, and use of a firearm in connection with a crime of violence and conspiracy to use a firearm during a crime of violence. Fulks pleaded guilty to all counts, while Basham was convicted at trial on all counts. Both were sentenced to death (plus 744 months in prison). They challenged, via a second or successive §2255 motion, whether their firearm convictions were invalid after Johnson and its progeny because the alleged crimes of violence in which the firearms were used no longer qualified as such. The district court denied their motions.

On appeal, the Fourth Circuit affirmed the denial of Fulks’ and Basham’s §2255 motions. The parties agreed that, under Fourth Circuit precedent, kidnapping could no longer serve as a predicate crime of violence. Fulks and Basham argued the carjacking statute was indivisible and that because attempted carjacking could not be a crime of violence (as the Supreme Court held that attempted Hobbs Act robbery was not) then carjacking categorically was not a crime of violence. The court disagreed on both fronts. First, the court concluded that the carjacking statute was divisible between completed and attempt offenses. Second, the court held that it was clear that what Fulks and Basham were convicted of was completed carjacking, not attempt. Third, the court held that because completed carjacking requires the use or threatened use of force it was a crime of violence that could sustain Fulks’ and Basham’s convictions. Finally, the court held that the record was clear that their convictions were based on both a valid (carjacking) and invalid (kidnapping) predicate and therefore could not be vacated.

No Breach of Plea Agreement by Government Arguing for Upward Variance on Remand

US v. Johnson: In 2018, Johnson was charged with a drug conspiracy count and possession with intent count and entered into a plea agreement with the Government to plead guilty to the possession-with-intent count. The parties stipulated to the relevant conduct and that Johnson was entitled to a reduction for acceptance of responsibility. Johnson agreed to waive his right to appeal “from a sentence in excess of the applicable Guideline range that is established at sentencing,” while the Government reserved the ability to “make a sentence recommendation” and present additional evidence to respond to arguments made by Johnson. The probation officer concluded that Johnson was a career offender and calculated his Guideline range accordingly. At sentencing, the district court varied down from the career offender Guideline range and imposed a sentence of 128 months in prison.

Johnson appealed, initially arguing that one of his prior conviction upon which the career offender designation was based had been modified in state court “such that it no longer qualified as a felony.” The Fourth Circuit granted a motion to remand the case for resentencing. The probation officer recalculated the Guideline range as 57 to 71 months in prison. The Government filed a motion for an upward departure or variance, arguing the court should reimpose the original 128-month sentence. The district court imposed a sentence of 120 months.

The Fourth Circuit affirmed Johnson’s 120-month sentence. Johnson argued that by arguing for the upward departure/variance the Government had breached the plea agreement. The court disagreed, noting first that Johnson had not made that argument in the district court, so it was reviewing for plain error. Regardless, the court rejected Johnson’s argument that “reading the agreement as a whole, the Guidelines Stipulation must be interpreted to limit the Government’s sentencing recommendation rights,” holding that no such agreed-to-limit was present in the agreement. In addition, the reservation of the ability to “make a sentence recommendation” was broad, “but that doesn’t make it ambiguous or vague.”

COVID-required Courtroom Limitation and Testimony of Witnesses by Video Deposition Did Not Violate Constitution

US v. Smith: Smith and his codefendant, Alcorn, were charged with multiple counts relating to schemes to defraud in 2019. Their cases lingered during the lockdown period of the COVID lockdown, finally proceeding to trial in November 2021. That trial took place across multiple courtrooms, due to social distancing requirements, with spectators relegated to a second courtroom to watch via a video feed. Smith and Alcorn objected, arguing that because the public could not see the jury (although they could see the other participants in the trial) violated their right to a public trial under the Sixth Amendment. They also objected, initially to the taking of video depositions of three elderly victim witnesses from California (during which counsel was able to cross-examine them) who could not travel to Virginia for the trial, then to the admission of those depositions at trial. The district court rejected those arguments. Smith and Alcorn were convicted on all counts and sentenced to 156 and 185 months in prison, respectively.

A divided Fourth Circuit affirmed Smith and Alcorn’s convictions, but vacated Alcorn’s sentence. As to the convictions, the court first rejected the argument that Smith and Alcorn’s Sixth Amendment rights were violated. While not specifically holding, but certainly implying, that the COVID protocols did not result in a courtroom that was closed to the public, the court ultimately concluded that, even if it was a partial closure, that the district court did not abuse its discretion. In doing so, the court downplayed the importance of spectators being able to see jurors when they could see all the other participants in the trial. The court also found no abuse of discretion in the district court’s ruling regarding the video depositions, given the health care concerns of the witnesses. As to Alcorn’s sentence, the court concluded that the district court committed Rogers err by imposing terms of supervised release pursuant to a standing order that did not exist in that district.

Judge Agee concurred in the result, but wrote separately to reiterate his argument that the current remedy for a Rogers error (full resentencing) is not required and should be reconsidered.

Judge Heytens dissented, arguing that the district court did not make sufficient findings necessary to partially close the courtroom during trial, specifically whether there were “reasonable alternatives” and whether the restrictions were “no broader than necessary” to serve the stated public health purposes.