US v. Beckton: In this appeal, Reggie Andre Beckton challenged the district court’s rulings surrounding his representation at trial for two counts of bank robbery. Prior to trial, two public defenders withdrew from representing Mr. Beckton, and he attempted to have a third disqualified; the district court denied this attempt, so Mr. Beckton elected to proceed pro se, despite repeated warnings from the court that self-representation was not in his best interest. The district court permitted Mr. Beckton to have his court appointed counsel appear as standby; however, problems arose when Mr. Beckton decided to testify. The district court ordered Mr. Beckton to either permit his standby counsel to assume control of the case, or he could present his testimony by questioning himself. When Mr. Beckton opted to question himself, he testified in narrative form against the instructions of the district court. Consequently, the district court limited his testimony. Mr. Beckton repeated refused the assistance of counsel. The jury convicted Mr. Beckton on both counts.
In matters of trial management, according to the Fourth Circuit panel, district courts enjoy wide discretion, and so long as restrictions are not “arbitrary or disproportionate to the purposes they are designed to serve,” a district court will not abuse its discretion. The Fourth Circuit panel found the district court’s rationale “eminently reasonable” in preventing him from testifying in narrative form, and in requiring Mr. Beckton to adhere to substantive and procedural courtroom rules that all litigants must do, the district court was well within its discretion.
Wednesday, February 05, 2014
Restitution Order Reversed
US v. Freeman: Robert Freeman received a conviction for obstructing federal bankruptcy proceedings. As part of his sentence, he was ordered to pay restitution to four people that took out loans to support his ministry business. However, these four “purported victims” were not specifically victims of Mr. Freeman’s act of obstruction. These folks took out loans to support Mr. Freeman’s ministries, which he then used to finance luxury cars and a home, though these individuals did not have the resources to repay their debts.
The district court failed to cite a statutory basis for the restitution award, but noted that it would not impose a fine as part of Mr. Freeman’s sentence because it imposed the restitution. It actually imposed restitution as a condition of the defendant’s supervised release.
The Fourth Circuit reviews restitution awards for an abuse of discretion. The district court’s discretion to order restitution depends upon statutory, not inherent, authority. The Fourth Circuit picked out four possible statutory provisions which could have served the basis for the imposed restitution, including as a part of Mr. Freeman’s supervised release, under 18 U.S.C. sect. 3563(b). This statute, according to the Fourth Circuit, required that victims could be victims only of the offense of conviction. As these folks were not victims of Mr. Freeman’s obstruction of the bankruptcy proceedings, they were not victims who could receive restitution here. Accordingly, the Fourth Circuit panel reversed and remanded.
The district court failed to cite a statutory basis for the restitution award, but noted that it would not impose a fine as part of Mr. Freeman’s sentence because it imposed the restitution. It actually imposed restitution as a condition of the defendant’s supervised release.
The Fourth Circuit reviews restitution awards for an abuse of discretion. The district court’s discretion to order restitution depends upon statutory, not inherent, authority. The Fourth Circuit picked out four possible statutory provisions which could have served the basis for the imposed restitution, including as a part of Mr. Freeman’s supervised release, under 18 U.S.C. sect. 3563(b). This statute, according to the Fourth Circuit, required that victims could be victims only of the offense of conviction. As these folks were not victims of Mr. Freeman’s obstruction of the bankruptcy proceedings, they were not victims who could receive restitution here. Accordingly, the Fourth Circuit panel reversed and remanded.
STA Violation Cannot Be Reviewed for Plain Error
US v. Mosteller: Mosteller collected VA benefits as a surviving spouse and to pursue an education following the death of her first husband. She did not inform the VA when she remarried and did not maintain the educational status needed to continue to receive those benefits. She was originally charged with one count of theft of government funds - specifically, the surviving spouse benefits after she had remarried. However, at trial Government witnesses made reference to the education funds as well, causing Mosteller to move for a mistrial. The district court agreed to grant the mistrial, but only on the condition that Mosteller waive her rights under the Speedy Trial Act. She did, a mistrial was granted, and the Government obtained a superseding indictment with an additional charge of theft related to the education funds. A second trial was held beyond the STA's 70-day limit, but Mosteller did not object. She was convicted on both counts and sentenced to 15 month in prison.
On appeal, Mosteller filed a pro se supplemental brief (to an Anders brief by counsel) alleging that her STA rights had been violated by the district court conditioning the mistrial on her waiver of any STA claim. The Fourth Circuit agreed that the district court acted improperly by conditioning the mistrial on a STA waiver. However, because Mosteller did not object under the STA at the second trial, the STA's waiver provision prevented the court from actually reaching the issue, even under a plain error standard of review (as a Sixth Amendment speedy trial claim would have been).
On appeal, Mosteller filed a pro se supplemental brief (to an Anders brief by counsel) alleging that her STA rights had been violated by the district court conditioning the mistrial on her waiver of any STA claim. The Fourth Circuit agreed that the district court acted improperly by conditioning the mistrial on a STA waiver. However, because Mosteller did not object under the STA at the second trial, the STA's waiver provision prevented the court from actually reaching the issue, even under a plain error standard of review (as a Sixth Amendment speedy trial claim would have been).
Friday, January 31, 2014
Window tint: that old chestnut
US v. Green: Each of the fifty states has its own laws regarding the legally permissible amount of tint that may be present on car windows, and not surprisingly, the levels of acceptable tint can vary significantly when crossing state borders. Illegally tinted windows, or those which appear to violate local laws, can provide a sufficient basis for a traffic stop.
Virginia police stopped Herbert Green for the level of tint in his car windows, as well as a partially obscured license plate. Green did not argue prior to pleading guilty that the traffic stop was illegal at its inception. He did, however, file two motions to suppress, to contest the length of the traffic stop and the reliability of the drug-detecting dog that alerted to the vehicle. The district court denied both motions; Green entered a conditional guilty plea to preserve his right to appeal the denial of his two motions to suppress; and the Fourth Circuit affirmed.
On appeal, Green argued that the traffic stop was unreasonably long without justification by reasonable suspicion. Focusing on the second prong of inquiry under Terry (since the stop was considered legal at its inception), the scope component, the Fourth Circuit panel found the stop scope and duration was reasonable based on several “prompt” actions taken by the police to establish that the windows were, in fact, in violation of Virginia law.
Secondly, Green argued that the police dog’s field performance was so poor that his alert was insufficient probable cause to search the vehicle. Under totality of the circumstances review, the Fourth Circuit rejected Green’s second claim because the government was able to present sufficient evidence of the dog’s reliability in detecting drugs.
Virginia police stopped Herbert Green for the level of tint in his car windows, as well as a partially obscured license plate. Green did not argue prior to pleading guilty that the traffic stop was illegal at its inception. He did, however, file two motions to suppress, to contest the length of the traffic stop and the reliability of the drug-detecting dog that alerted to the vehicle. The district court denied both motions; Green entered a conditional guilty plea to preserve his right to appeal the denial of his two motions to suppress; and the Fourth Circuit affirmed.
On appeal, Green argued that the traffic stop was unreasonably long without justification by reasonable suspicion. Focusing on the second prong of inquiry under Terry (since the stop was considered legal at its inception), the scope component, the Fourth Circuit panel found the stop scope and duration was reasonable based on several “prompt” actions taken by the police to establish that the windows were, in fact, in violation of Virginia law.
Secondly, Green argued that the police dog’s field performance was so poor that his alert was insufficient probable cause to search the vehicle. Under totality of the circumstances review, the Fourth Circuit rejected Green’s second claim because the government was able to present sufficient evidence of the dog’s reliability in detecting drugs.
MD resisting arrest not crime of violence
*Reversal on Rehearing En Banc*
US v. Aparicio-Soria: Mr. Aparicio-Soria received a conviction for illegal reentry. He appealed his conviction, and he had a prior Maryland conviction for resisting arrest. The Fourth Circuit panel determined Mr. Aparicio-Soria’s prior offense contained the requisite element of physical force to qualify as a crime of violence for sentencing enhancement purposes (decided here, blogged here). The Fourth Circuit then granted Mr. Aparicio-Soria’s petition to rehear the case, and the Fourth Circuit reversed on rehearing en banc.
In the original appeal, the parties agreed that the district court’s application of the modified categorical approach was incorrect, but disagreement developed over the result reached with respect to the categorical approach. The split panel ultimately determined that the Maryland conviction for resisting arrest triggered the sentencing enhancement, because force meant “violent force,” and state courts required that force be “violent” and directed against another.
On rehearing, the Fourth Circuit found contrary precedent from Maryland’s highest court, through "simple legal research", that the degree of force required as an element of resisting arrest is “offensive physical contact,” and “crimes requiring offensive physical contact are not crimes of violence containing an element of violent force, as required under federal enhanced sentencing regimes.” Finally, the Fourth Circuit quoted the Supreme Court in Descamps, that “key” to the resolution here are “elements, not facts,” and violent force was “simply not an element of resisting arrest in Maryland.”
US v. Aparicio-Soria: Mr. Aparicio-Soria received a conviction for illegal reentry. He appealed his conviction, and he had a prior Maryland conviction for resisting arrest. The Fourth Circuit panel determined Mr. Aparicio-Soria’s prior offense contained the requisite element of physical force to qualify as a crime of violence for sentencing enhancement purposes (decided here, blogged here). The Fourth Circuit then granted Mr. Aparicio-Soria’s petition to rehear the case, and the Fourth Circuit reversed on rehearing en banc.
In the original appeal, the parties agreed that the district court’s application of the modified categorical approach was incorrect, but disagreement developed over the result reached with respect to the categorical approach. The split panel ultimately determined that the Maryland conviction for resisting arrest triggered the sentencing enhancement, because force meant “violent force,” and state courts required that force be “violent” and directed against another.
On rehearing, the Fourth Circuit found contrary precedent from Maryland’s highest court, through "simple legal research", that the degree of force required as an element of resisting arrest is “offensive physical contact,” and “crimes requiring offensive physical contact are not crimes of violence containing an element of violent force, as required under federal enhanced sentencing regimes.” Finally, the Fourth Circuit quoted the Supreme Court in Descamps, that “key” to the resolution here are “elements, not facts,” and violent force was “simply not an element of resisting arrest in Maryland.”
Plain error review does not alter life sentence
US v. Shepperson: Chinua Shepperson faced several capital-eligible charges including murder and racketeering activities. After a two-week trial, a jury found him guilty on all counts. Shepperson appealed, raising two claims of error: 1) the district court should have appointed him a second attorney, pursuant to 18 U.S.C. sect. 3005; and 2) the district court should have excluded a witness based on the government’s failure to disclose its witness list at least three days prior to trial, pursuant to 18 U.S.C. sect. 3432.
Unfortunately for Shepperson, both of his claims of error were subject to plain error review on appeal by the Fourth Circuit. First, the panel held that Shepperson was obligated to request additional counsel at the time of trial. Further, the district court was under no obligation to inform Shepperson prior to trial that he had the ability to request a second attorney, even if the district court was aware that Shepperson was not especially pleased with his attorney, or to appoint sua sponte another attorney for him. According to statute, a defendant must request a second attorney under 18 U.S.C. sect. 3005.
The Fourth Circuit also rejected Shepperson’s second claim under plain error review. Since the government proceeded against him without seeking the death penalty, 18 U.S.C. sect. 3432 was not applicable to his case. Shepperson received what the panel considered equivalent notice of the witnesses during trial, so no prejudice was suffered.
Unfortunately for Shepperson, both of his claims of error were subject to plain error review on appeal by the Fourth Circuit. First, the panel held that Shepperson was obligated to request additional counsel at the time of trial. Further, the district court was under no obligation to inform Shepperson prior to trial that he had the ability to request a second attorney, even if the district court was aware that Shepperson was not especially pleased with his attorney, or to appoint sua sponte another attorney for him. According to statute, a defendant must request a second attorney under 18 U.S.C. sect. 3005.
The Fourth Circuit also rejected Shepperson’s second claim under plain error review. Since the government proceeded against him without seeking the death penalty, 18 U.S.C. sect. 3432 was not applicable to his case. Shepperson received what the panel considered equivalent notice of the witnesses during trial, so no prejudice was suffered.
Thursday, January 02, 2014
No Fourth, Sixth Amendment Errors for Robbery (and Related) Conviction
US v. Dargan: Dargan was arrested for being involved in a three-man armed robbery (the other two had guns, Dargan had a knife) of a Maryland jewelry store. After his arrest, officers obtained a search warrant for his home authorizing the recovery of "indicia of occupancy." They recovered a receipt for a $461 belt, bought with cash the day after the robbery. He was charged with a Hobbs Act robbery and use and carrying of a firearm during a crime of violence. Dargan moved to suppress the receipt, but the district court concluded that although it did not fall within the boundaries of the warrant it was properly seized as being in plain view. At trial, the Government produced testimony from a witness who was in jail with one of Dargan's codefendants who allegedly confessed to robbing a jewelry store with two others, although he did not identify Dargan. Dargan was convicted and sentenced to 135 months in prison.
On appeal, Dargan challenged his conviction in two ways, both of which the Fourth Circuit rejected. First, Dargan argued that the receipt should have been suppressed because it was beyond the scope of those things authorized to be seized pursuant to the warrant, namely "indicia of occupancy." The court disagreed (with the district court as well as Dargan) and concluded that the receipt was the type of evidence that officers "could plausibly have thought that the occupant of the premises was also the purchaser." Second, he argued that the admission of the codefendant's statements to a cellmate were both inadmissible hearsay and violated the Confrontation Clause. On the hearsay argument, the court concluded that the statements fell within the hearsay exception for statements against interest, being made by an unavailable witness, being inculpatory, and having corroboration by other evidence. On the Confrontation Clause argument, the court concluded that the clause was not applicable because the codefendant's statements were "plainly nontestimonial" and thus not the kind it covered.
On appeal, Dargan challenged his conviction in two ways, both of which the Fourth Circuit rejected. First, Dargan argued that the receipt should have been suppressed because it was beyond the scope of those things authorized to be seized pursuant to the warrant, namely "indicia of occupancy." The court disagreed (with the district court as well as Dargan) and concluded that the receipt was the type of evidence that officers "could plausibly have thought that the occupant of the premises was also the purchaser." Second, he argued that the admission of the codefendant's statements to a cellmate were both inadmissible hearsay and violated the Confrontation Clause. On the hearsay argument, the court concluded that the statements fell within the hearsay exception for statements against interest, being made by an unavailable witness, being inculpatory, and having corroboration by other evidence. On the Confrontation Clause argument, the court concluded that the clause was not applicable because the codefendant's statements were "plainly nontestimonial" and thus not the kind it covered.
Management Enhancement Upheld for Ex-Cop In Pot Conspiracy
US v. Steffen: Sreffen was a South Carolina Highway Patrolman who was part of a "large-scale" conspiracy involving the cultivation and distribution of marijuana. He pleaded guilty to a conspiracy charge that carried a five-year mandatory minimum. At sentencing, a main issue was whether Steffen was a "manager of supervisor" of criminal activity, worth of a three-level Guideline enhancement. The district court concluded that he was, because he purchased the land on which the marijuana was grown, transported marijuana in his patrol car, and used the car to follow a coconspirator so he would not be pulled over. The district court imposed the mandatory minimum sentence, 60 months, which was also the bottom of the Guideline range.
On appeal, Steffen challenged the management/supervision enhancement, arguing that the evidence showed he only managed property, not other co-conspirators. The court disagreed, holding that the use of Steffen's patrol car to escort another co-defendant (so as to avoid being stopped) was a "management decision regarding the manner in which another participant in the conspiracy was to conduct the conspiracy's business." Similarly, the enhancement was applicable because Steffen transferred the energy bill at the location where the marijuana was grown to another co-defendant to avoid detection.
On appeal, Steffen challenged the management/supervision enhancement, arguing that the evidence showed he only managed property, not other co-conspirators. The court disagreed, holding that the use of Steffen's patrol car to escort another co-defendant (so as to avoid being stopped) was a "management decision regarding the manner in which another participant in the conspiracy was to conduct the conspiracy's business." Similarly, the enhancement was applicable because Steffen transferred the energy bill at the location where the marijuana was grown to another co-defendant to avoid detection.
Specifically Exempted Sentencing Factors for Supervise Release Aren't Off Limits for Revocation Sentence
US v. Webb: Webb was brought to court due to behavior that resulted in him facing new charges as well as allegations that he violated the conditions of his supervised release. As to the supervised release violation, the district court imposed a (upward variance?) sentence of 32 months in prison, to run consecutively to the 80-month sentence imposed for the new charge. In doing so, the district court explained that the supervised release sentence reflected "the seriousness of the violation," provided "just punishment," and promoted "respect for the conditions of supervision imposed by the court."
Webb appealed, arguing that the district court erred by relying on prohibited factors - namely the seriousness of the offense, promoting respect for the law, and providing just punishment - when it imposed the supervised release sentence. Engaging in plain error review, the Fourth Circuit disagreed and affirmed. Although 18 USC 3583(e) lists factors which a court must consider when imposing a supervised release sentence, it does not prohibit the court from considering other factors. In addition, those factors exempted in 3583(e) are "intertwined with the factors courts are expressly authorized to consider." Thus, the simple reference of the district court to those factors "without more" does not render the sentence unreasonable (much less plainly so).
Webb appealed, arguing that the district court erred by relying on prohibited factors - namely the seriousness of the offense, promoting respect for the law, and providing just punishment - when it imposed the supervised release sentence. Engaging in plain error review, the Fourth Circuit disagreed and affirmed. Although 18 USC 3583(e) lists factors which a court must consider when imposing a supervised release sentence, it does not prohibit the court from considering other factors. In addition, those factors exempted in 3583(e) are "intertwined with the factors courts are expressly authorized to consider." Thus, the simple reference of the district court to those factors "without more" does not render the sentence unreasonable (much less plainly so).
NC Prior for Taking Indecent Liberties With a Minor Is "Crime of Violence" for Illegal Reentry Guidelines
US v. Perez-Perez: Perez-Perez, a Mexican citizen, was convicted in 2001 for taking indecent liberties with a minor in North Carolina. As a result, he was deported. He returned to the United States, was caught, and pleaded guilty to illegal reentry. At sentencing, the primary issue was whether his prior North Carolina conviction was a "crime of violence," triggering a 16-level increase under the applicable Guideline. The district court held that it did and sentenced Perez-Perez to the bottom of the resulting Guideline range, 46 months.
Perez-Perez challenged his sentence on appeal and the Fourth Circuit affirmed. Calling itself "constrained by our precedent" in US v. Diaz-Ibarra, the court concluded that Perez-Perez's North Carolina conviction was categorically a crime of violence when its elements were compared to the generic elements of a crime listed in the Guidelines as being a crime of violence, in this case sexual abuse of a minor. The elements of the North Carolina offense set forth by the state courts "correspond in substance" with the Fourth Circuit's prior description of sexual about of a minor in Diaz-Ibarra. That definition, the court noted has "extraordinary breadth."
Judge Davis wrote a concurring opinion, agreeing that the outcome was controlled by Diaz-Ibarra, but concluding that "the time has come to reconsider" that decision.
NOTE: This case was decided on December 18, 2013.
Perez-Perez challenged his sentence on appeal and the Fourth Circuit affirmed. Calling itself "constrained by our precedent" in US v. Diaz-Ibarra, the court concluded that Perez-Perez's North Carolina conviction was categorically a crime of violence when its elements were compared to the generic elements of a crime listed in the Guidelines as being a crime of violence, in this case sexual abuse of a minor. The elements of the North Carolina offense set forth by the state courts "correspond in substance" with the Fourth Circuit's prior description of sexual about of a minor in Diaz-Ibarra. That definition, the court noted has "extraordinary breadth."
Judge Davis wrote a concurring opinion, agreeing that the outcome was controlled by Diaz-Ibarra, but concluding that "the time has come to reconsider" that decision.
NOTE: This case was decided on December 18, 2013.
No Fifth Amendment Protection in Documents Required By Off-Shore Banking Regulations
US v. Under Seal: John and Jane Doe (Husband & wife? Brother & sister? Unrelated business partners given the same phony name? The opinion doesn't say) had Swiss bank accounts and were being investigated for hiding assets there to avoid the IRS. A grand jury subpoena was issued, directing the Does to turn over records about the accounts they were required to keep under Treasury regulations dealing with offshore banking. They sought to crush the subpoena, asserting a Fifth Amendment privilege against self incrimination. The district court denied that request and ordered the records disclosed and ordered the Does held in civil contempt (but stayed that part of the order).
On appeal, the Fourth Circuit affirmed the decision to require the records be disclosed. The court found that the "required records doctrine" applied and that the documents requested were not protected by privilege. The record keeping requirement was "essentially regulatory," the records were of a kind normally kept in the course of business, and contained "public aspects" that rendered them at least analogous to public records.
NOTE: This case was decided on December 13, 2013.
On appeal, the Fourth Circuit affirmed the decision to require the records be disclosed. The court found that the "required records doctrine" applied and that the documents requested were not protected by privilege. The record keeping requirement was "essentially regulatory," the records were of a kind normally kept in the course of business, and contained "public aspects" that rendered them at least analogous to public records.
NOTE: This case was decided on December 13, 2013.
Mid-Scheme Payouts Not Money Laundering
US v. Simmons: Simmons ran a Ponzi scheme from 2007 until 2009. By the end of things, although the statement for the fund he managed claimed assets of more than $292 million, there was actually only $523 in the bank. Simmons was charged with securities fraud, wire fraud, and two counts of money laundering. Rather than pinpointing specific acts of fraud, the indictment on the fraud counts charged a broad "scheme to defraud" covering the entire time of the scheme. Simmons was convicted on all counts and sentenced to 50 years in prison (a considerable variance from the 960-month sentence recommended by the Guidelines).
On appeal, Simmons challenged his two money laundering charges. Both charges involved transactions undertaken as part of the Ponzi scheme. Simmons argued that those transactions did not involved "proceeds" as defined by the statute (pursuant to a 2008 Supreme Court decision that has since been overruled by Congress, but was in effect at the time of Simmons's scheme), but rather the "essential expenses" of maintaining the scheme. In other words, his money laundering was part of the charged scheme to defraud and those charges must merge with the fraud charges. The Fourth Circuit agreed and reversed Simmons's money laundering convictions, 2-1. The court held that the ongoing success of the fraud scheme depended on the payments that were subject to the money laundering counts (among others). As a result, those counts were vacated, his sentence set aside, and the case returned to the district court for resentencing.
Judge Niemeyer dissented, arguing that the particular transactions at issue here, because they furthered the scheme by allowing Simmons to collect money from other victims, fell within the meaning of the statute.
Congrats to the Defender office in Western North Carolina on the win!
NOTE: This case was decided on December 10, 2013.
On appeal, Simmons challenged his two money laundering charges. Both charges involved transactions undertaken as part of the Ponzi scheme. Simmons argued that those transactions did not involved "proceeds" as defined by the statute (pursuant to a 2008 Supreme Court decision that has since been overruled by Congress, but was in effect at the time of Simmons's scheme), but rather the "essential expenses" of maintaining the scheme. In other words, his money laundering was part of the charged scheme to defraud and those charges must merge with the fraud charges. The Fourth Circuit agreed and reversed Simmons's money laundering convictions, 2-1. The court held that the ongoing success of the fraud scheme depended on the payments that were subject to the money laundering counts (among others). As a result, those counts were vacated, his sentence set aside, and the case returned to the district court for resentencing.
Judge Niemeyer dissented, arguing that the particular transactions at issue here, because they furthered the scheme by allowing Simmons to collect money from other victims, fell within the meaning of the statute.
Congrats to the Defender office in Western North Carolina on the win!
NOTE: This case was decided on December 10, 2013.
Thursday, December 12, 2013
Court Joins Other Circuits - No General FSA Retroactivity
US v. Black: In 2006 Black was sentenced to a mandatory minimum term of 120 months on a conviction involving crack cocaine. In the wake of the Fair Sentencing Act of 2010, Black filed a motion under 18 USC 3582 arguing that his Guideline range had been reduced and that the FSA applied retroactively and dropped the applicable mandatory minimum sentence to 60 months. The district court denied his motion, relying on prior Fourth Circuit law that the FSA was not retroactive.
On appeal the Fourth Circuit affirmed. In the wake of the Supreme Court's decision in Dorsey, which held that the FSA applied to anyone sentenced after its enactment, the court concluded that the FSA was not further retroactive to defendants like Black who had already been sentenced. It rejected Black's argument that the analysis of Dorsey, if not its specific holding, required the FSA be applied retroactively because a 3582 proceeding was a "sentencing proceeding" and that occurred after the FSA was passed. The court noted that the FSA was not, by it's plain language, retroactive; that such a holding was contrary to Fourth Circuit precedent; that Dorsey dealt with a problem not present in 3582 proceedings; and that 3582 proceedings are not "sentencing proceedings."
Judge King concurred, noting that Black's argument might be successful but for prior Fourth Circuit precedent and calling for "congressional and executive action" to remedy the remaining disparity created by the FSA's lack of retroactivity.
On appeal the Fourth Circuit affirmed. In the wake of the Supreme Court's decision in Dorsey, which held that the FSA applied to anyone sentenced after its enactment, the court concluded that the FSA was not further retroactive to defendants like Black who had already been sentenced. It rejected Black's argument that the analysis of Dorsey, if not its specific holding, required the FSA be applied retroactively because a 3582 proceeding was a "sentencing proceeding" and that occurred after the FSA was passed. The court noted that the FSA was not, by it's plain language, retroactive; that such a holding was contrary to Fourth Circuit precedent; that Dorsey dealt with a problem not present in 3582 proceedings; and that 3582 proceedings are not "sentencing proceedings."
Judge King concurred, noting that Black's argument might be successful but for prior Fourth Circuit precedent and calling for "congressional and executive action" to remedy the remaining disparity created by the FSA's lack of retroactivity.
Wednesday, December 04, 2013
NC Mitigated Range Sentence Doesn't Avoid ACCA
US v. Kerr: This is yet another case dealing with the meaning of prior North Carolina convictions in federal court. Kerr was convicted of being a felon in possession of a firearm and sentenced as an armed career criminal based on three 2008 NC convictions for breaking and entering. For those convictions (apparently all sentenced at the same time) under NC's Byzantine sentencing scheme, Kerr faced a "presumptive minimum term" of 9-11 months and a "presumptive maximum sentence" of 14 months. However, the sentencing judge found that the mitigating factors outweigh the aggravating ones and departed to the "mitigated range" of 8-10 months, with a possible maximum of 11 months.
Kerr objected to the ACCA designation at his original sentencing, arguing that he did not face more than a year for any of those convictions and thus they were not qualifying "violent felonies." The district court disagreed. The Fourth Circuit held his appeal in abeyance while it worked out the Simmons situation, after which it remanded for resentencing. On remand Kerr added an argument that none of those priors were qualifying felonies for the possession statute in the first place. The district court disagreed and reimposed the ACCA sentence.
On his second appeal, the Fourth Circuit affirmed Kerr's conviction and sentence, 2-1. Applying Simmons and its progeny, the court concluded that Kerr's prior convictions carried a potential maximum term of 14 months, and thus were felonies. The sentencing court's mitigation finding did not require it to impose a sentence in the mitigated range and, even if it did, that didn't change the maximum he faced upon conviction. Because the maximum Kerr faced was over 12 months, the convictions were felonies for purposes of both his conviction and ACCA sentence.
Judge David dissented, arguing that the majority was returning to the days of "hypothetical" sentences that has been rejected by Simmons and the Supreme Court precedent on which it relied. He argues that the hypothetical use of prosecutorial discretion to enhance a sentence (rejected by SCOTUS) is no different than the hypothetical possibility that the judge could have imposed a higher sentence in these cases.
Kerr objected to the ACCA designation at his original sentencing, arguing that he did not face more than a year for any of those convictions and thus they were not qualifying "violent felonies." The district court disagreed. The Fourth Circuit held his appeal in abeyance while it worked out the Simmons situation, after which it remanded for resentencing. On remand Kerr added an argument that none of those priors were qualifying felonies for the possession statute in the first place. The district court disagreed and reimposed the ACCA sentence.
On his second appeal, the Fourth Circuit affirmed Kerr's conviction and sentence, 2-1. Applying Simmons and its progeny, the court concluded that Kerr's prior convictions carried a potential maximum term of 14 months, and thus were felonies. The sentencing court's mitigation finding did not require it to impose a sentence in the mitigated range and, even if it did, that didn't change the maximum he faced upon conviction. Because the maximum Kerr faced was over 12 months, the convictions were felonies for purposes of both his conviction and ACCA sentence.
Judge David dissented, arguing that the majority was returning to the days of "hypothetical" sentences that has been rejected by Simmons and the Supreme Court precedent on which it relied. He argues that the hypothetical use of prosecutorial discretion to enhance a sentence (rejected by SCOTUS) is no different than the hypothetical possibility that the judge could have imposed a higher sentence in these cases.
Consent Not Valid In Bus Shelter Encounter
US v. Robertson: Robertson was sitting in a bus shelter in Durham, NC, along with several other people, when police approached. They were responding to reports of three man chasing another who was carrying a gun. While other officers approached three men who matched the description of the chasers, another officer approached Robertson, who was sitting with his back to the shelter's back wall and was therefore "blocked on three sides." The officer asked Robertson if he had anything illegal. Robertson did not answer. The officer "waved [him] forward" and asked for consent to search. Robertson said nothing, but stood up, turned around, and raised his hands. A search uncovered a firearm. Robertson was charged with being a felon in possession and was convicted after the district court denied his motion to suppress, finding that Robertson consented to the search.
On appeal, the Fourth Circuit reversed, 2-1. Making it very clear that its holding was based only on the officer's testimony (credited by the district court) and not Robertson's (discredited), the court concluded that Robertson's silent actions were a "begrudging submission to a command." It noted the presence of multiple police officers and squad cars on the scene, that other officers were "handling" others at the bus shelter, and that the officer's questioning of Robertson was immediately accusatory. As a result, the district court concluded that the Government had not met its burden of showing consent was given.
District Judge Wilson dissented, not based on a disagreement with the majority's view of the facts, but on the ground that it was not sufficiently deferential to the district court's contrary conclusion. That conclusion was not clearly erroneous, even if the facts are susceptible to both interpretations.
On appeal, the Fourth Circuit reversed, 2-1. Making it very clear that its holding was based only on the officer's testimony (credited by the district court) and not Robertson's (discredited), the court concluded that Robertson's silent actions were a "begrudging submission to a command." It noted the presence of multiple police officers and squad cars on the scene, that other officers were "handling" others at the bus shelter, and that the officer's questioning of Robertson was immediately accusatory. As a result, the district court concluded that the Government had not met its burden of showing consent was given.
District Judge Wilson dissented, not based on a disagreement with the majority's view of the facts, but on the ground that it was not sufficiently deferential to the district court's contrary conclusion. That conclusion was not clearly erroneous, even if the facts are susceptible to both interpretations.
Monday, December 02, 2013
Indivisible common law crime calls for categorical approach to determine whether it's a crime of violence
US v. Montes-Flores: Fabian Montes-Flores pleaded guilty to illegal re-entry. At his sentencing, the district court imposed a sixteen-level enhancement for a prior South Carolina conviction for assault and battery of a high and aggravated nature ("ABHAN"), which conviction his pre-sentence report classified as a "crime of violence" under the illegal re-entry guideline. Unfortunately for Montes-Flores, the district court concurred with the PSR classification, a decision it reached after employing a modified categorical approach to determine whether the earlier conviction qualified for the sentencing enhancement. The district court sentenced Montes-Flores at the bottom of the guidelines range it calculated for him, 46 months.
On appeal, Montes-Flores argued that his prior conviction should not be considered a "crime of violence" for sentencing purposes, and the district court should have used the categorical approach to determine the status of his prior conviction for ABHAN. The Fourth Circuit agreed with Montes-Flores, holding that divisible statutes, with some categories of crimes that constitute crimes of violence and some that do not, call for the district court to use a modified categorical approach. Divisible criminal statutes include multiple, alternative versions of the crime. ABHAN, here, according to the Fourth Circuit, is not divisible, so the district court applied the modified categorical approach in error; South Carolina’s ABHAN is not categorically a "crime of violence" because it can be committed without violent physical force. The Fourth Circuit also determined that this error was not harmless, since the district court made no indication that it desired to vary upwards in sentencing Montes-Flores. The Fourth Circuit reversed and remanded for re-sentencing.
On appeal, Montes-Flores argued that his prior conviction should not be considered a "crime of violence" for sentencing purposes, and the district court should have used the categorical approach to determine the status of his prior conviction for ABHAN. The Fourth Circuit agreed with Montes-Flores, holding that divisible statutes, with some categories of crimes that constitute crimes of violence and some that do not, call for the district court to use a modified categorical approach. Divisible criminal statutes include multiple, alternative versions of the crime. ABHAN, here, according to the Fourth Circuit, is not divisible, so the district court applied the modified categorical approach in error; South Carolina’s ABHAN is not categorically a "crime of violence" because it can be committed without violent physical force. The Fourth Circuit also determined that this error was not harmless, since the district court made no indication that it desired to vary upwards in sentencing Montes-Flores. The Fourth Circuit reversed and remanded for re-sentencing.
Thursday, November 21, 2013
The khat is out of the bag
US v. Ali, and 12 others: Khat is a flowering plant native to the Horn of Africa and the Arabian Peninsula, and in these areas where it is legal, khat chewing has long been a social custom, dating back thousands of years. Here, though, it’s a Schedule I drug when fresh, and slightly less potent when stale (then, Schedule IV), and so, it’s illegal to traffic in it.
Seventeen Somali and Yemeni nationals were indicted for their participation in a khat ring, receiving charges for conspiracy; many of them also received conspiracy to commit money laundering convictions as well. Four of them pleaded guilty and testified at trial for the government, including ring leader Yonis Ishak; the remaining thirteen went to trial and were convicted of almost all the charges against them. All thirteen joined the appeal, arguing primarily that the evidence against them was insufficient to prove that they knew the powerful stimulant in khat, called cathinone, was a controlled substance and that khat contained cathonine. They challenged the jury instruction on scienter and willful blindness. The money laundering defendants challenged whether the indictment provided sufficient information to identify financial transactions involved. Finally, they challenged the district court’s exclusion of their expert witness, and the denial of one defendant’s motion for a severance.
The main focus of the appeal is the sufficiency of the evidence challenge, whether the evidence was sufficient to prove that the defendants knew that khat contained a controlled substance. The panel acknowledged the lack of direct evidence, but found that all the defendant conducted themselves in a way that indicated they circumstantially knew that khat contained a controlled substance. The conspirators’ phone calls, the disguised packages, secret circumstances of deliveries of khat, how the money was hidden, etc., were all discussed by the government’s witnesses. Additionally, the conspiracy ring leader turned on everyone involved, such that it became “almost impossible to conclude that any defendant did not know of at least some illegal aspects of the enterprise.” The panel found support from numerous other courts in similar khat cases, and affirmed the convictions.
Seventeen Somali and Yemeni nationals were indicted for their participation in a khat ring, receiving charges for conspiracy; many of them also received conspiracy to commit money laundering convictions as well. Four of them pleaded guilty and testified at trial for the government, including ring leader Yonis Ishak; the remaining thirteen went to trial and were convicted of almost all the charges against them. All thirteen joined the appeal, arguing primarily that the evidence against them was insufficient to prove that they knew the powerful stimulant in khat, called cathinone, was a controlled substance and that khat contained cathonine. They challenged the jury instruction on scienter and willful blindness. The money laundering defendants challenged whether the indictment provided sufficient information to identify financial transactions involved. Finally, they challenged the district court’s exclusion of their expert witness, and the denial of one defendant’s motion for a severance.
The main focus of the appeal is the sufficiency of the evidence challenge, whether the evidence was sufficient to prove that the defendants knew that khat contained a controlled substance. The panel acknowledged the lack of direct evidence, but found that all the defendant conducted themselves in a way that indicated they circumstantially knew that khat contained a controlled substance. The conspirators’ phone calls, the disguised packages, secret circumstances of deliveries of khat, how the money was hidden, etc., were all discussed by the government’s witnesses. Additionally, the conspiracy ring leader turned on everyone involved, such that it became “almost impossible to conclude that any defendant did not know of at least some illegal aspects of the enterprise.” The panel found support from numerous other courts in similar khat cases, and affirmed the convictions.
Expansion of "relevant conduct" in McGee
US v. McGee: Randall McGee pleaded guilty to possession with intent to distribute oxycodone and received a sentence of 55 months. At sentencing, the district court increased Mr. McGee’s sentencing range to include as “relevant conduct” a seizure of cash that occurred two weeks prior to his arrest in this case. Mr. McGee had previously been stopped by police at the Charleston, West Virginia bus station, where he was discovered to be in possession of nearly $6k in cash. Though Mr. McGee was not arrested as a result of his bus station encounter with police, the police determined that Mr. McGee “did not have a reasonable explanation for his possession of the cash” when they asked where the unemployed Mr. McGee got the money.
Approximately two weeks later, Mr. McGee sat in the passenger seat of a rental car stopped by Charleston police for an allegedly malfunctioning middle brake light. Police search Mr. McGee, who reportedly appeared nervous and had shaky hands. The police discovered a bag in his shorts containing nearly 400 pills. Mr. McGee moved to suppress the drugs seized during the traffic stop in two separate hearings: the first questioning the probable cause to believe a traffic violation occurred; and the second, for newly obtained evidence. An investigation into the condition of the rental car tended to show that all the brake lights were operational and there was no record of any repairs after the traffic stop to the vehicle. The district court held that while a serious factual issue was raised, it was ultimately not sufficient to overcome the police officer’s “unwavering” testimony that the light was non-operational.
On appeal, Mr. McGee challenged the procedural reasonableness of his sentence, specifically the inclusion in his offense conduct the earlier incident at the bus station, arguing that there was no evidence to connect the funds to the traffic stop in the instant case. Also, Mr. McGee challenged the denial of his motion to suppress. Last, Mr. McGee challenged the lack of individualized assessment in his sentence, that he was wrongly placed by the court in a class of individuals, i.e., drug dealers from Detroit, and sentenced him on that basis.
The panel found that “although McGee’s evidence that the brake light was not inoperative is significant, it is nonetheless circumstantial,” and the defense failed to show that the district court erred in its denial of the motion to suppress. The panel also held that the incidents of seizure here, the cash and later, the pills, were “more likely than not” part of the “same course of conduct” for sentencing enhancement purposes. Finally, while some of the district court’s comments on Mr. McGee’s sentence “evince a perilously close flirtation” with error, the panel concluded that the district court did not abuse its discretion.
Approximately two weeks later, Mr. McGee sat in the passenger seat of a rental car stopped by Charleston police for an allegedly malfunctioning middle brake light. Police search Mr. McGee, who reportedly appeared nervous and had shaky hands. The police discovered a bag in his shorts containing nearly 400 pills. Mr. McGee moved to suppress the drugs seized during the traffic stop in two separate hearings: the first questioning the probable cause to believe a traffic violation occurred; and the second, for newly obtained evidence. An investigation into the condition of the rental car tended to show that all the brake lights were operational and there was no record of any repairs after the traffic stop to the vehicle. The district court held that while a serious factual issue was raised, it was ultimately not sufficient to overcome the police officer’s “unwavering” testimony that the light was non-operational.
On appeal, Mr. McGee challenged the procedural reasonableness of his sentence, specifically the inclusion in his offense conduct the earlier incident at the bus station, arguing that there was no evidence to connect the funds to the traffic stop in the instant case. Also, Mr. McGee challenged the denial of his motion to suppress. Last, Mr. McGee challenged the lack of individualized assessment in his sentence, that he was wrongly placed by the court in a class of individuals, i.e., drug dealers from Detroit, and sentenced him on that basis.
The panel found that “although McGee’s evidence that the brake light was not inoperative is significant, it is nonetheless circumstantial,” and the defense failed to show that the district court erred in its denial of the motion to suppress. The panel also held that the incidents of seizure here, the cash and later, the pills, were “more likely than not” part of the “same course of conduct” for sentencing enhancement purposes. Finally, while some of the district court’s comments on Mr. McGee’s sentence “evince a perilously close flirtation” with error, the panel concluded that the district court did not abuse its discretion.
Friday, November 15, 2013
Sentencing enhancements not punishment for priors
US v. Hunter: As a juvenile, Appellant Jimmy Hunter received four convictions, all of which are considered violent felonies for ACCA purposes. He also received a fifth felony conviction as an adult, which may or may not be a predicate ACCA offense. In February 2011, Mr. Hunter sold a gun and ammunition to a CI working for the ATF; he received a felon in possession charge to which he pleaded guilty. At the time of his sentencing, the district court determined that Mr. Hunter’s juvenile and adult priors formed the basis for an ACCA enhancement, and sentenced Mr. Hunter to seventeen years’ imprisonment.
On appeal, Mr. Hunter challenged the application of his juvenile offenses as bases for an ACCA enhancement, arguing that this application violated the Eighth Amendment’s prohibition against excessive sanctions pursuant to Miller v. Alabama. In that case, the Supreme Court outlawed life without parole for juvenile offenders, highlighting proportionality concerns for young offenders, i.e., juveniles’ diminished capacity and increased capacity for reform.
The Fourth Circuit did not find any assistance for Mr. Hunter under Miller as he challenged the sentence he received for criminal conduct he committed as an adult, unlike the defendants in Miller who were punished as adolescents for criminal activity they committed as juveniles. Two other Circuits, the Tenth and Eleventh, which considered similar challenges to sentences from adult defendants who received enhancements based on juvenile convictions, determined that nothing in Miller suggests that an adult defendant with juvenile priors should not receive a mandatory life sentence as an adult after committing crime as an adult.
The Fourth Circuit held here that "sentencing enhancements do not themselves constitute punishment for the prior criminal convictions that trigger them," echoing the Supreme Court’s 2008 holding in United States v. Rodriguez, where the Court determined that the defendant’s enhanced sentence was "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one." Mr. Hunter's sentence was affirmed.
On appeal, Mr. Hunter challenged the application of his juvenile offenses as bases for an ACCA enhancement, arguing that this application violated the Eighth Amendment’s prohibition against excessive sanctions pursuant to Miller v. Alabama. In that case, the Supreme Court outlawed life without parole for juvenile offenders, highlighting proportionality concerns for young offenders, i.e., juveniles’ diminished capacity and increased capacity for reform.
The Fourth Circuit did not find any assistance for Mr. Hunter under Miller as he challenged the sentence he received for criminal conduct he committed as an adult, unlike the defendants in Miller who were punished as adolescents for criminal activity they committed as juveniles. Two other Circuits, the Tenth and Eleventh, which considered similar challenges to sentences from adult defendants who received enhancements based on juvenile convictions, determined that nothing in Miller suggests that an adult defendant with juvenile priors should not receive a mandatory life sentence as an adult after committing crime as an adult.
The Fourth Circuit held here that "sentencing enhancements do not themselves constitute punishment for the prior criminal convictions that trigger them," echoing the Supreme Court’s 2008 holding in United States v. Rodriguez, where the Court determined that the defendant’s enhanced sentence was "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one." Mr. Hunter's sentence was affirmed.
Friday, November 08, 2013
Phoned-in drug relevant conduct sufficiently reliable
US v. Crawford: In the indictment against him, Kendrick Crawford received six charges of distributing 38.3 grams of crack. At the time of sentencing, however, Crawford’s PSR calculation for drug relevant conduct grew to a whopping 408.1 grams of crack, arising from the statements of three individuals who reportedly purchased nearly 370 grams of crack from Crawford over a period of several years. Two of the three individuals who provided statements were paid informants, former addicts “working off” their own crack charges, and they provided the information for Crawford’s drug relevant conduct over the telephone to an ATF agent on the case. The district court found the information provided was sufficiently reliable to serve as the basis for Crawford’s drug quantity and sentenced him according to the PSR calculation.
On appeal, Crawford contended that his sentence was procedurally unreasonable because the information provided by the call-in witnesses to the ATF agent was multiple hearsay and unreliable.
The Fourth Circuit determined that the district court did not err in relying on the information phoned in by these two witnesses because while the testimony was multiple hearsay and the witnesses were drug addicts who were looking to reduce their own sentences for crack offenses, they provided reliable information in this and in several other federal and state cases, and at least one of the individuals participated in a controlled purchase under the case agent’s surveillance. The Fourth Circuit affirmed Crawford's sentence.
On appeal, Crawford contended that his sentence was procedurally unreasonable because the information provided by the call-in witnesses to the ATF agent was multiple hearsay and unreliable.
The Fourth Circuit determined that the district court did not err in relying on the information phoned in by these two witnesses because while the testimony was multiple hearsay and the witnesses were drug addicts who were looking to reduce their own sentences for crack offenses, they provided reliable information in this and in several other federal and state cases, and at least one of the individuals participated in a controlled purchase under the case agent’s surveillance. The Fourth Circuit affirmed Crawford's sentence.
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