US v. Hernandez: Hernandez pleaded guilty to a drug conspiracy and was sentenced to a term of 262 months, at the bottom of the advisory Guidelines. That was the sentence Hernandez argued should be imposed. Nonetheless, he appealed to the Fourth Circuit, arguing that the sentence was procedurally unreasonable because the district court failed to provide a specific rationale for the sentence.
The Fourth Circuit affirmed, applying plain error review. The court explained that when a sentence is within the advisory Guideline range, as this one was, that "the explanation need not be elaborate or lengthy." While conceding that the district court "in this case might have said more," the failure to do so - given Hernandez's lack of objection to the Guideline calculations and a request to impose a sentence at the bottom of the Guideline range - was not error. Furthermore, even if some error was committed (and it was plain), Hernandez could not show prejudice since he received the sentence he requested.
Wednesday, April 28, 2010
Escape Not Per Se "Violent Felony" Under ACCA
US v. Bethea: Bethea pleaded guilty to being a felon in possession of a firearm and was sentenced to 180 months in prison under the ACCA. The third qualifying predicate offense was Bethea's prior conviction in South Carolina for escape, which the district court concluded was a "violent felony" under the ACCA.
On appeal, the Fourth Circuit answered two questions: (1) was the South Carolina crime of escape categorically a "violent felony"?; and (2) if not, does Bethea's conviction specifically "involve[] the type of violent conduct contemplated by the ACCA"?. The answer, to both questions, was "no."
As to the first question, the court applied the Supreme Court's recent decision in Chambers v. US and concluded that the South Carolina escape statute, which that state's supreme court has given a "broad scope," encompasses both conduct that might meet the definition of violent felony (i.e., escape from a secure facility) as well as conduct that would not (i.e., failure to report at the end of a furlough) and therefore a violation of the statute was not, per se, a violent felony.
As to the second question, the only documents available to determine whether Bethea's conviction was based on conduct that would constitute a violent felony were inconclusive, simply stating that he "escaped." Because of the scope of the South Carolina statute, the court could not assume that "escape" had its common meaning, an unlawful departure from secure custody.
The court vacated Bethea's sentence and remanded the case for him to be resentenced without the ACCA enhancement.
Congrats to the FPD office in South Carolina on the win!
On appeal, the Fourth Circuit answered two questions: (1) was the South Carolina crime of escape categorically a "violent felony"?; and (2) if not, does Bethea's conviction specifically "involve[] the type of violent conduct contemplated by the ACCA"?. The answer, to both questions, was "no."
As to the first question, the court applied the Supreme Court's recent decision in Chambers v. US and concluded that the South Carolina escape statute, which that state's supreme court has given a "broad scope," encompasses both conduct that might meet the definition of violent felony (i.e., escape from a secure facility) as well as conduct that would not (i.e., failure to report at the end of a furlough) and therefore a violation of the statute was not, per se, a violent felony.
As to the second question, the only documents available to determine whether Bethea's conviction was based on conduct that would constitute a violent felony were inconclusive, simply stating that he "escaped." Because of the scope of the South Carolina statute, the court could not assume that "escape" had its common meaning, an unlawful departure from secure custody.
The court vacated Bethea's sentence and remanded the case for him to be resentenced without the ACCA enhancement.
Congrats to the FPD office in South Carolina on the win!
Guilty Plea Waives Ability to Appeal Forced Medication
US v. Bowles: Bowles was charged with multiple drug and firearm charges. After he requested a psychiatric evaluation, Bowles was diagnosed with multiple mental disorders and determined to be incompetent to stand trial. He was committed for the purpose of restoring his competency. After four years, the Government sought to have Bowles forcibly medicated. The district court so ordered. Bowles did not seek an interlocutory appeal of the medication order. The medication restored Bowles's competency, after which he pleaded guilty to being a felon in possession of a firearm. Bowles was sentenced to 188 months in prison.
Bowles appealed, seeking to challenge the district court's order that he be forcibly medicated to restore competency. The Fourth Circuit dismissed the appeal, holding that the issue had been waived by Bowles's guilty plea. A plea deprives the defendant of the ability to seek review on any non-jurisdictional ground, aside from the voluntariness of the plea itself. The proper means to challenge an order to forcibly medicate a defendant is via an interlocutory appeal.
Bowles appealed, seeking to challenge the district court's order that he be forcibly medicated to restore competency. The Fourth Circuit dismissed the appeal, holding that the issue had been waived by Bowles's guilty plea. A plea deprives the defendant of the ability to seek review on any non-jurisdictional ground, aside from the voluntariness of the plea itself. The proper means to challenge an order to forcibly medicate a defendant is via an interlocutory appeal.
Monday, April 12, 2010
Rule 41 Does Not Apply to State Officer On State/Federal Task Force
US v. Claridy: Claridy pleaded guilty to drug and gun charges based on evidence seized from his home pursuant to a search warrant. In the district court, he sought to suppress that evidence (and a subsequent statement) because a "federally deputized Baltimore City police officer" who was part of a joint task force obtained the warrant from a state judge without first trying to obtain one from a federal magistrate judge, in violation of Rule 41(b) of the Rules of Criminal Procedure. The district court denied the motion, holding that even if Rule 41(b) was implicated in this situation it was not intentionally violated so as to require suppression of the evidence.
Claridy raised the same issue on appeal, which the Fourth Circuit rejected. The court began by noting that it had never clarified the application of Rule 41 to joint state/federal investigations, as opposed to purely federal ones. The trigger for Rule 41 to control is not whether the "investigation" is a federal one, but rather whether the "proceeding" was federal, as the rule applies only to "proceedings." A proceeding does not become federal, however, simply because federal officers are involved in the investigation. Nothing in the text of the Rule, moreover, suggests that joint state/federal task forces are limited to utilizing only federal resources. In this case, the application for a search warrant by a state police officer from a state judge alleging violations of state law was not a federal "proceeding" to which Rule 41 applied. Alternately, even if the Rule applied and was violated, suppression would not be appropriate, as the violation was "nonconstitutional and nonprejudicial."
Chief Judge Traxler concurred, emphasizing the fact that the facts upon which the warrant was based came from state officers.
Claridy raised the same issue on appeal, which the Fourth Circuit rejected. The court began by noting that it had never clarified the application of Rule 41 to joint state/federal investigations, as opposed to purely federal ones. The trigger for Rule 41 to control is not whether the "investigation" is a federal one, but rather whether the "proceeding" was federal, as the rule applies only to "proceedings." A proceeding does not become federal, however, simply because federal officers are involved in the investigation. Nothing in the text of the Rule, moreover, suggests that joint state/federal task forces are limited to utilizing only federal resources. In this case, the application for a search warrant by a state police officer from a state judge alleging violations of state law was not a federal "proceeding" to which Rule 41 applied. Alternately, even if the Rule applied and was violated, suppression would not be appropriate, as the violation was "nonconstitutional and nonprejudicial."
Chief Judge Traxler concurred, emphasizing the fact that the facts upon which the warrant was based came from state officers.
RICO, VICAR Convictions Affirmed
US v. Ayala: Ayala and his codefendant, Velasquez, were charged with racketeering and violent crimes in aid of racketeering (VICAR) - assault with a dangerous weapon for both defendants, conspiracy to commit murder only for Ayala. Both were also charged with using a firearm in connection with a crime of violence, although based on different incidents. A jury convicted them on all counts. Ayala was sentenced to 420 months in prison, Velasquez to 444 months in prison.
Both Ayala and Velasquez raised numerous issues in the Fourth Circuit, which affirmed their convictions and sentences. First, Ayala argued that his VICAR conviction for conspiracy to commit murder violated Double Jeopardy because it was part of the same course of conduct as the larger RICO conspiracy. Applying the Blockburger test, the court disagreed, holding that the two conspiracies were separate offenses. Second, Ayala argued that his 924(c) conviction was improper as the RICO conspiracy was not a "crime of violence," as argued by the Government at trial. The court disagreed, noting that "[t]o determine whether the objectives of this conspiracy were violent crimes . . . is intrinsic to the indictment itself" which set forth a pattern of violent racketeering activities including murder, kidnapping, and robbery. Third, the court rejected various arguments Ayala made with regards to evidentiary issues, including the admission of another conspirators statements, evidence of Ayala's guilty plea in state court, and statements made by Ayala (and others) before a state grand jury. Velasquez raised one argument, that the district court erred by limiting his cross examination of the victims of two gang rapes (the crime of violence for his 924(c) charge). The court rejected that argument, concluding that the record demonstrated "an entirely different story." Finally, both defendants argued that the district court erred by allowing the testimony of three expert witnesses who relied, in part, on statements from unnamed declarents in forming their opinions. The court rejected that argument, holding that such testimony does not violate the Confrontation Clause.
Both Ayala and Velasquez raised numerous issues in the Fourth Circuit, which affirmed their convictions and sentences. First, Ayala argued that his VICAR conviction for conspiracy to commit murder violated Double Jeopardy because it was part of the same course of conduct as the larger RICO conspiracy. Applying the Blockburger test, the court disagreed, holding that the two conspiracies were separate offenses. Second, Ayala argued that his 924(c) conviction was improper as the RICO conspiracy was not a "crime of violence," as argued by the Government at trial. The court disagreed, noting that "[t]o determine whether the objectives of this conspiracy were violent crimes . . . is intrinsic to the indictment itself" which set forth a pattern of violent racketeering activities including murder, kidnapping, and robbery. Third, the court rejected various arguments Ayala made with regards to evidentiary issues, including the admission of another conspirators statements, evidence of Ayala's guilty plea in state court, and statements made by Ayala (and others) before a state grand jury. Velasquez raised one argument, that the district court erred by limiting his cross examination of the victims of two gang rapes (the crime of violence for his 924(c) charge). The court rejected that argument, concluding that the record demonstrated "an entirely different story." Finally, both defendants argued that the district court erred by allowing the testimony of three expert witnesses who relied, in part, on statements from unnamed declarents in forming their opinions. The court rejected that argument, holding that such testimony does not violate the Confrontation Clause.
Court Affirms Conspiracy, Money Laundering Convictions
US v. Green: Green and his codefendant, Boyd, were tried together and convicted of a drug conspiracy. Boyd, in addition, was convicted of money laundering. The charges arose from a "family-based, years long" conspiracy to bring drugs from South Florida to the Tidewater area of Virginia. The case against Green and Boyd was made largely on the testimony of other members of the conspiracy who had already pleaded guilty.
Boyd and Green both appealed their convictions, which the Fourth Circuit affirmed. Both of them argued that the district court erred by denying their motions for judgments of acquittal. The court disagreed, holding that there was sufficient evidence to support their various convictions. Boyd raised several addition arguments seeking the reversal of his convictions. First, she argued that the district court should have suppressed $54,000 in cash recovered at Boyd's home during his arrest. The court concluded that the money was discovered in plain view during a lawful protective sweep. Second, Boyd argued that the Government violated Batson by striking all teachers from the jury panel as a proxy for excluding women. The court disagreed, holding that it would not extend Batson beyond strikes that are "intentionally invidiously discriminatory" to those merely "having a discriminatory effect." Third, Boyd argued that the district court erred by not giving her proffered "theory of defense" instruction to the jury. The court disagreed, holding that the essential points of that instruction were covered in other parts of the jury charge. Finally, Boyd argued that the prosecution improperly commented on her counsel's behavior during closing argument. The court disagreed.
Judge Gregory dissented from the court's conclusion that the evidence was sufficient to sustain Boyd's money laundering conviction.
Boyd and Green both appealed their convictions, which the Fourth Circuit affirmed. Both of them argued that the district court erred by denying their motions for judgments of acquittal. The court disagreed, holding that there was sufficient evidence to support their various convictions. Boyd raised several addition arguments seeking the reversal of his convictions. First, she argued that the district court should have suppressed $54,000 in cash recovered at Boyd's home during his arrest. The court concluded that the money was discovered in plain view during a lawful protective sweep. Second, Boyd argued that the Government violated Batson by striking all teachers from the jury panel as a proxy for excluding women. The court disagreed, holding that it would not extend Batson beyond strikes that are "intentionally invidiously discriminatory" to those merely "having a discriminatory effect." Third, Boyd argued that the district court erred by not giving her proffered "theory of defense" instruction to the jury. The court disagreed, holding that the essential points of that instruction were covered in other parts of the jury charge. Finally, Boyd argued that the prosecution improperly commented on her counsel's behavior during closing argument. The court disagreed.
Judge Gregory dissented from the court's conclusion that the evidence was sufficient to sustain Boyd's money laundering conviction.
Friday, April 02, 2010
Hand-to-Hand Activity Leads to Reasonable Suspicion, Arrest
US v. Johnson: Johnson was observed on a sidewalk in Baltimore in a neighborhood known for drug activity. An officer saw him make "quick hand-to-hand contact with three different men," which the officer interpreted as being drug transactions. The officer then saw Johnson, with two other men in tow, head for a restaurant, which aroused suspicion because "local dealers sometimes conduct their business in legitimate shops in order to elude police cameras." Officers followed Johnson and another man (the third one kept walking up the street) into the restaurant, identified themselves, and asked Johnson to show his hands. Johnson threw a single heroin gelcap of the restaurant counter. "A struggle ensued," after which Johnson was arrested. Reviewing surveillance videos, officers discovered a car in which they suspected Johnson was storing drugs, which they confirmed when they saw more gelcaps in plain view. A search of the car turned up drugs and a firearm. Johnson pleaded guilty to drug and gun charges after unsuccessfully moving to suppress the evidence discovered as a result of his detention and search of his car.
On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court concluded that it was reasonable, based on his experience, for the officer to infer that Johnson's behavior on the sidewalk was related to drug transactions. It rejected Johnson's contention that the officer's experience, regardless of its depth, could transform his outwardly legal behavior into something suspicious. The court also criticized Johnson for disregarding the factual findings of the district court, noting that "[d]istrict courts offer an unbiased forum to test the conclusions of police, and they possess a perspective that appellate forums cannot match." Second, the court held that Johnson was properly seized by an officer in possession of reasonable suspicion when he threw away the gelcap in the restaurant. Third, the court held that the money recovered from Johnson was found during a search incident to a lawful arrest, for which the officers had probable cause once they saw the gelcap. Finally, the court held that there was probable cause to search Johnson's car.
On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court concluded that it was reasonable, based on his experience, for the officer to infer that Johnson's behavior on the sidewalk was related to drug transactions. It rejected Johnson's contention that the officer's experience, regardless of its depth, could transform his outwardly legal behavior into something suspicious. The court also criticized Johnson for disregarding the factual findings of the district court, noting that "[d]istrict courts offer an unbiased forum to test the conclusions of police, and they possess a perspective that appellate forums cannot match." Second, the court held that Johnson was properly seized by an officer in possession of reasonable suspicion when he threw away the gelcap in the restaurant. Third, the court held that the money recovered from Johnson was found during a search incident to a lawful arrest, for which the officers had probable cause once they saw the gelcap. Finally, the court held that there was probable cause to search Johnson's car.
Uninvited Guest Supports Reckless Endangerment Enhancement
US v. Carter: Carter was spotted engaging in what cops suspected was a drug deal. The followed him to a nearby convenience store and tried to apprehend him. Carter slipped their grasp and ran away, tossing aside a baggie of crack along the way. A 911 call alerted officers that Carter had run into a home, to which the officers responded. The person who lived their was waiting for them outside. The officers went inside and found Carter, who was arrested without incident. At sentencing, after a conviction for possession of crack with intent to distribute, the district court enhanced Carter's offense level for reckless endangerment, on the basis of his flight into someone's home.
On appeal, the Fourth Circuit affirmed the enhancement. First, the court concluded that the district court did not clearly err in deciding that the apartment into which Carter fled was occupied when he did so, based on second-hand hearsay testimony from an officer involved in the case, dismissing a brief handwritten statement of the apartment dweller as "illegible." Second, the court concluded that, regardless of whether the apartment was occupied or not, running into someone else's home uninvited creates a "substantial risk of serious bodily injury or death" so as to trigger the enhancement.
On appeal, the Fourth Circuit affirmed the enhancement. First, the court concluded that the district court did not clearly err in deciding that the apartment into which Carter fled was occupied when he did so, based on second-hand hearsay testimony from an officer involved in the case, dismissing a brief handwritten statement of the apartment dweller as "illegible." Second, the court concluded that, regardless of whether the apartment was occupied or not, running into someone else's home uninvited creates a "substantial risk of serious bodily injury or death" so as to trigger the enhancement.
Wednesday, March 31, 2010
Contempt Conviction For Tardiness Reversed
In re: Gates: Gates, a defense attorney, was late for a very important date - his client's guilty plea hearing. The hearing had been moved up a day on the calendar, leading to some confusion on Gates's part as to when it was supposed to take place. When Gates arrived at the hearing 15 minutes late, the district court did not accept his explanation and, referencing "your appearance on other occasions," found Gates in contempt and ordered him to pay a fine of $250.
Gates appealed on two grounds, both of which the Fourth Circuit accepted in reversing his contempt conviction. First, Gates argued that his contemptuous behavior (if it was so) took place outside of court and was thus indirect contempt, rather than direct. As a result, the district court could not summarily find him in contempt without notice and an opportunity to defend himself. The Fourth Circuit agreed, applying plain error, noting that absence from court was not the contemptuous behavior at issue, but rather the reason for the absence was key. Because that behavior does not occur in court, it is only indirect. Second, Gates argued that the court should not merely remand for further proceedings, as the record was bereft of any evidence of criminal intent to be contemptuous. The Fourth Circuit agreed and reversed his conviction.
Gates appealed on two grounds, both of which the Fourth Circuit accepted in reversing his contempt conviction. First, Gates argued that his contemptuous behavior (if it was so) took place outside of court and was thus indirect contempt, rather than direct. As a result, the district court could not summarily find him in contempt without notice and an opportunity to defend himself. The Fourth Circuit agreed, applying plain error, noting that absence from court was not the contemptuous behavior at issue, but rather the reason for the absence was key. Because that behavior does not occur in court, it is only indirect. Second, Gates argued that the court should not merely remand for further proceedings, as the record was bereft of any evidence of criminal intent to be contemptuous. The Fourth Circuit agreed and reversed his conviction.
Generalized Findings Not Enough to Support Enhancements, Restitution
US v. Llamas: Llamas was involved in a telephone "sweepstakes" scam run out of Costa Rica. Initially recruited into the operation to serve as one of the telemarketers contacting "winners," he eventually became a "room boss" and "office manager" at the call center in Costa Rica. Shortly before the whole operation came unravelled (a caller called a "judicial officer" - oops!), Llamas left the operation. Llamas pled guilty, without a plea agreement, to 63 charges stemming from the scheme, including conspiracy, mail fraud, and money laundering. He was sentenced to 132 months in prison and ordered to pay restitution of more than $4 million.
On appeal, Llamas challenged both the calculation of his advisory Guideline range and his order of restitution. His first Guideline argument was that the district court erred by increasing his offense level because of the vulnerable nature of the victims of the scheme. The Fourth Circuit agreed, holding that the district court made only generalized findings that Llamas should have known about the particular characteristics of two victims who testified at sentencing. Those general findings were not sufficient to support the enhancement. Llamas's second Guideline argument was that he was not a manager or supervisor of the scheme and should not have received an enhancement as such. The Fourth Circuit disagreed, holding that the evidence supported that he had a supervisory role. As to restitution, Llamas argued that the district court erred by holding him jointly and severably liable for all of the scheme's $4-plus million dollar loss. The Fourth Circuit agreed, noting that the district court included losses not just from the call center where Llamas worked, but all other similar centers in Costa Rica. Llamas's sentence was thus vacated and his case remanded for further proceedings.
Congrats to the FPD office in Western NC on the win!
On appeal, Llamas challenged both the calculation of his advisory Guideline range and his order of restitution. His first Guideline argument was that the district court erred by increasing his offense level because of the vulnerable nature of the victims of the scheme. The Fourth Circuit agreed, holding that the district court made only generalized findings that Llamas should have known about the particular characteristics of two victims who testified at sentencing. Those general findings were not sufficient to support the enhancement. Llamas's second Guideline argument was that he was not a manager or supervisor of the scheme and should not have received an enhancement as such. The Fourth Circuit disagreed, holding that the evidence supported that he had a supervisory role. As to restitution, Llamas argued that the district court erred by holding him jointly and severably liable for all of the scheme's $4-plus million dollar loss. The Fourth Circuit agreed, noting that the district court included losses not just from the call center where Llamas worked, but all other similar centers in Costa Rica. Llamas's sentence was thus vacated and his case remanded for further proceedings.
Congrats to the FPD office in Western NC on the win!
Court OK's Death Penalty With Non-Violent Priors
US v. Caro: Caro was convicted of drug offenses and given a 30 year sentence. In prison he became a leader in the Texas Syndicate. After being transferred to USP Lee, he was involved with the murder of another inmate and fellow Syndicate member, for which Caro pleaded guilty to conspiracy to commit homicide, received an addition 27-year sentence, and was transferred to SHU. Weeks later, Caro strangled his cell mate in SHU, not for any reason relating to the Syndicate, but because his cell mate "called me mother fucker, that whore, that's why I fucked him up." Caro was charged with first-degree murder and the Government filed a notice that it would seek the death penalty. Caro was convicted and sentenced to death.
Caro raised several objections to his conviction and sentence on appeal, all of which the Fourth Circuit rejected. First, Caro argued that voir dire was flawed because the district court, in finding "death qualified" jurors, did not adequately explain the offense at issue in the trial or that information of Caro's background could be considered as mitigating evidence. Second, Caro argued that the district court erred, both under Brady and the Rules of Criminal Procedure, in denying his request for BoP records relating to its ability to sufficiently handle Caro in the ADMAX facility at Florence, as relevant to the question of future dangerousness. Third, Caro challenged the constitutionality of the two factors - related to his prior drug convictions - that made him eligible for the death penalty because they were not "rationally related to the question of who should live or die." Fourth, Caro argued that the Government's argument during closing that only a death sentence could "control" him, based on his past history, was improper (which the Fourth called "troubling" but not the cause of such prejudice to warrant reversal). Fifth, Caro argued that the Government's reference to his not showing any remorse was an improper comment on his exercise of his Fifth Amendment right to remain silent. Sixth, Caro argued that the district court erred by refusing to give his proposed jury instruction on mercy. Seventh, Caro argued that the district court erred by admitting evidence relating to the victim and Caro's offer to plead guilty. Finally, Caro argued that there was cumulative error.
Judge Gregory dissented, arguing that the prior convictions which made Caro eligible for a death sentence "distinguished] those who live from those who die in a wholly arbitrary and capricious way." In affirming Caro's sentence, the majority had approved of the imposition of death upon someone who had "only been convicted of relatively minor, nonviolent drug offenses."
Caro raised several objections to his conviction and sentence on appeal, all of which the Fourth Circuit rejected. First, Caro argued that voir dire was flawed because the district court, in finding "death qualified" jurors, did not adequately explain the offense at issue in the trial or that information of Caro's background could be considered as mitigating evidence. Second, Caro argued that the district court erred, both under Brady and the Rules of Criminal Procedure, in denying his request for BoP records relating to its ability to sufficiently handle Caro in the ADMAX facility at Florence, as relevant to the question of future dangerousness. Third, Caro challenged the constitutionality of the two factors - related to his prior drug convictions - that made him eligible for the death penalty because they were not "rationally related to the question of who should live or die." Fourth, Caro argued that the Government's argument during closing that only a death sentence could "control" him, based on his past history, was improper (which the Fourth called "troubling" but not the cause of such prejudice to warrant reversal). Fifth, Caro argued that the Government's reference to his not showing any remorse was an improper comment on his exercise of his Fifth Amendment right to remain silent. Sixth, Caro argued that the district court erred by refusing to give his proposed jury instruction on mercy. Seventh, Caro argued that the district court erred by admitting evidence relating to the victim and Caro's offer to plead guilty. Finally, Caro argued that there was cumulative error.
Judge Gregory dissented, arguing that the prior convictions which made Caro eligible for a death sentence "distinguished] those who live from those who die in a wholly arbitrary and capricious way." In affirming Caro's sentence, the majority had approved of the imposition of death upon someone who had "only been convicted of relatively minor, nonviolent drug offenses."
Penalty at Time of Sentence Controls for ACCA
US v. McNeill: McNeill was convicted of being a felony in possession of a firearm and possession of crack with intent to distribute. As sentencing he was deemed an armed career criminal and given a sentence of 300 months in prison. On appeal, he argued that his prior North Carolina drug convictions were not "serious drug offense" as defined by the ACCA because the current statutory maximum penalty for those offenses was ten years in prison. At the time the sentences were imposed, the statutory maximum was 25 years. The Fourth Circuit concluded, based on the specific language of the North Carolina statutes at issue, that the "statutory maximum" that controlled for ACCA purposes was the one in effect at the time of the original sentence, not the current federal offense. In that case, the priors at issue, with maximum sentences of 25 years, qualified as serious drug offenses under the ACCA.
Monday, March 08, 2010
Court Clarifies Review of Sentences for Improper Guideline Influence
US v. Mendoza-Mendoza: Mendoza-Mendoza was convicted of illegal reentry (he had previously been deported to his native land of Mexico). At sentencing, he argued for a sentence below the advisory Guideline range. The district court concluded that it was "obligated" to impose a sentence within the Guideline range unless "a reason for a departure from those Guidelines, or a variance based on 18 USC 3553" was present. It then sentenced Mendoza-Mendoza to 46 months in prison, the Guideline minimum. In doing so, the district court rejected the Government's argument that Mendoza-Mendoza was a danger to others, but concluded that "I cannot see any reason for a variance."
Mendoza-Mendoza appealed, arguing that his sentence was procedurally unreasonable. The Fourth Circuit agreed and vacated his sentence, remanding the case for further proceedings. At issue was whether the district court utilized what the court called the "Rita presumption" - i.e., that the Guideline range was presumptively reasonable. In reviewing the record, the court warned against "[a]ppellate flyspecking for Rita presumptions." Nonetheless, in this case Mendoza-Mendoza's reading of the district court's reasoning - that it was bound by the Guidelines - was at least as plausible as the contrary reading. Thus, vacation was required. Judge Davis concurred in the result, but wrote (and quoted at length from the transcript) to explain why it was not clear to him that procedural error had occurred.
Congrats to the FPD office in the EDNC on the win!
Mendoza-Mendoza appealed, arguing that his sentence was procedurally unreasonable. The Fourth Circuit agreed and vacated his sentence, remanding the case for further proceedings. At issue was whether the district court utilized what the court called the "Rita presumption" - i.e., that the Guideline range was presumptively reasonable. In reviewing the record, the court warned against "[a]ppellate flyspecking for Rita presumptions." Nonetheless, in this case Mendoza-Mendoza's reading of the district court's reasoning - that it was bound by the Guidelines - was at least as plausible as the contrary reading. Thus, vacation was required. Judge Davis concurred in the result, but wrote (and quoted at length from the transcript) to explain why it was not clear to him that procedural error had occurred.
Congrats to the FPD office in the EDNC on the win!
Blue Lights. Again.
US v. Rivers: It's another blue light special in the Fourth Circuit. South Carolina has a felony offense of "failure to stop for a blue light" (i.e., not pulling over when the cops signal). In a case decided pre-Begay, the Fourth concluded that convictions for failure to stop for a blue light were "violent felon[ies]" under the Armed Career Criminal Act. In Roseboro, decided in the wake of Begay, the court concluded that convictions for failure to stop for a blue light would only be a violent felony in limited circumstances.
In this case, decided in the wake of the Supreme Court's decision in Chambers, the court finally resolved that "under no circumstances is a violation of South Carolina's blue light statute a violent felony under the ACCA." Specifically, the court held that the South Carolina statute applied to only one type of behavior and was thus not subject to the "modified" categorical approach as it did earlier in Roseboro.
Congrats to the FPD office in South Carolina on the win!
In this case, decided in the wake of the Supreme Court's decision in Chambers, the court finally resolved that "under no circumstances is a violation of South Carolina's blue light statute a violent felony under the ACCA." Specifically, the court held that the South Carolina statute applied to only one type of behavior and was thus not subject to the "modified" categorical approach as it did earlier in Roseboro.
Congrats to the FPD office in South Carolina on the win!
Court Affirms Conviction, 30-year Sentence
US v. Rooks: Rooks was a passenger in a car driven by his brother. They were pulled over because of a cracked windshield. During the stop, the officer detected the aroma of marijuana coming from the car, as well as noticed a cigarette but and plastic bag on the center console. After getting permission from the driver to search that part of the car, the officer confirmed that the cigarette contained marijuana and the bag had marijuana residue. After another officer arrived for backup, the driver was ordered out of the car and detained. When the officer tried to do the same with Rooks, Rooks fled. During the flight, Rooks threw away a plastic bag containing crack cocaine, which the officer recovered. Rooks was apprehended and made some incriminating statements to the officer. Rooks was charged with possession with intent to distribute crack. He unsuccessfully moved to suppress both the drugs and his statements. He also unsuccessfully sought to keep the Government from introducing three prior drug convictions at trial. Rooks was convicted and sentenced to 360 months in prison as a career offender.
On appeal, Rooks raised issues related to both his conviction and sentence, all of which the Fourth Circuit rejected. First, the court rejected Rooks's argument that the seizure of the drugs he threw away during flight violated the Fourth Amendment because the officer who ordered Rooks out of the car to perform a pat down search had reasonable suspicion to believe he was armed and dangerous. Second, the court rejected Rooks's argument that the Government should not have been able to present evidence of his prior convictions, holding that the evidence was relevant to Rooks's "familiarity with the drug distribution business" and therefore his intent to distribute the drugs. Finally, the court rejected Rooks's argument that his prior federal convictions and a state conviction based on the same conduct were part of a "single common scheme or plan" for purposes of determining whether he was a career offender.
On appeal, Rooks raised issues related to both his conviction and sentence, all of which the Fourth Circuit rejected. First, the court rejected Rooks's argument that the seizure of the drugs he threw away during flight violated the Fourth Amendment because the officer who ordered Rooks out of the car to perform a pat down search had reasonable suspicion to believe he was armed and dangerous. Second, the court rejected Rooks's argument that the Government should not have been able to present evidence of his prior convictions, holding that the evidence was relevant to Rooks's "familiarity with the drug distribution business" and therefore his intent to distribute the drugs. Finally, the court rejected Rooks's argument that his prior federal convictions and a state conviction based on the same conduct were part of a "single common scheme or plan" for purposes of determining whether he was a career offender.
Wednesday, February 24, 2010
Court Vacates SR Sentence for Procedural Unreasonableness
US v. Thompson: This appeal arises from a supervised release revocation. While Thompson was on supervision, a petition was filed seeking revocation based on two counts of battery on/obstruction of a police officer and possession of methamphetamine. At the revocation hearing, Thompson conceded that the Government could prove the violations by a preponderance of the evidence. The agreed to advisory Guideline range was 12 to 18 months. Thompson argued for a sentence of six months, followed by more supervised release, based on his history of employment, family obligations, and that these were his first violations while on supervised release. The Government pointed out that the incident underlying the petition involved two police officers and happened at 2:00 in the morning, but did not request a specific sentence. The district court imposed a sentence of 18 months, without explanation. Only when the issue of self reporting arose did the district court explain that while Thompson was not a flight right, he was a danger to the community.
Thompson appealed his sentence, arguing that the district court failed to adequately explain its reasons for imposing the 18-month sentence. The Fourth Circuit agreed, 2-1, and vacated the sentence. First, the court held that, in light of its recent decision in Lynn, Thompson had preserved the issue for appeal and a plainly unreasonable standard of review applied. Second, the court went on to conclude that the sentence was procedurally unreasonable because the district court, while required to make a statement of reasons for the sentence imposed, "provided no such statement here." It rejected the Government's argument that the reasoning behind the sentence was apparent from the context of the case. Third, the court concluded that the sentence was "plainly" unreasonable because the requirement that a district court provide an explanation for its sentence is "settled." Finally, the court noted that the err was not harmless and that the Government did not argue otherwise.
Judge Niemeyer dissented, arguing that the court did not afford the proper deference to the district court and that the basis for the sentence was clear from the context of the case.
Congrats to the SDWV Defender office on the win!
Thompson appealed his sentence, arguing that the district court failed to adequately explain its reasons for imposing the 18-month sentence. The Fourth Circuit agreed, 2-1, and vacated the sentence. First, the court held that, in light of its recent decision in Lynn, Thompson had preserved the issue for appeal and a plainly unreasonable standard of review applied. Second, the court went on to conclude that the sentence was procedurally unreasonable because the district court, while required to make a statement of reasons for the sentence imposed, "provided no such statement here." It rejected the Government's argument that the reasoning behind the sentence was apparent from the context of the case. Third, the court concluded that the sentence was "plainly" unreasonable because the requirement that a district court provide an explanation for its sentence is "settled." Finally, the court noted that the err was not harmless and that the Government did not argue otherwise.
Judge Niemeyer dissented, arguing that the court did not afford the proper deference to the district court and that the basis for the sentence was clear from the context of the case.
Congrats to the SDWV Defender office on the win!
Thursday, February 18, 2010
Initial Career Offender Designation Does Not Always Preclude Future Reduction of Sentence
US v. Munn: In 2001, Munn was convicted of distributing more than 50 grams of crack cocaine. Although the Guidelines classified him as a career offender, the district court concluded that designation overstated Munn's criminal history and departed downwards due to that fact (Munn received an additional downward departure for substantial assistance). When the revised crack Guidelines were made retroactive, Munn filed for a reduction in his sentence under 18 USC 3582(c)(2). The district court denied the motion, concluding that because Munn was a career offender the amendments to the crack Guidelines did not change his sentencing range and he therefore was not eligible for a reduced sentence.
A divided Fourth Circuit reversed the district court on appeal. Although defendants sentenced as career offenders are not eligible for a reduction, the circumstances of this case did not fall under the prescription. Noting a split in the circuits on this issue, the court concluded that defendants designated as career offenders are still eligible for a reduced sentence when (1) the district court departs because that status overrepresents the defendant's criminal history, and (2) the extent of the departure is tied to the crack-based Guideline calculations applicable without the career offender enhancement. In doing so, the court rejected the Government's attempt to define what happened to Munn in 2001 based on Guideline definitions of "departures" that were amended afterwards. Judge Duncan dissented, arguing that the applicable "sentencing range" which must change for a defendant to be eligible for a reduced sentence is the one calculated prior to any departure, i.e., the career offender based range.
A divided Fourth Circuit reversed the district court on appeal. Although defendants sentenced as career offenders are not eligible for a reduction, the circumstances of this case did not fall under the prescription. Noting a split in the circuits on this issue, the court concluded that defendants designated as career offenders are still eligible for a reduced sentence when (1) the district court departs because that status overrepresents the defendant's criminal history, and (2) the extent of the departure is tied to the crack-based Guideline calculations applicable without the career offender enhancement. In doing so, the court rejected the Government's attempt to define what happened to Munn in 2001 based on Guideline definitions of "departures" that were amended afterwards. Judge Duncan dissented, arguing that the applicable "sentencing range" which must change for a defendant to be eligible for a reduced sentence is the one calculated prior to any departure, i.e., the career offender based range.
Defendant Eligible for Reduced Sentence After Prior Rule 35 Reduction
US v. Stewart: Stewart was convicted back in 2002 of conspiracy to distribute crack cocaine and sentenced to 235 months in prison. A Rule 35 motion filed afterward reduced his sentence to 187 months. When the revised crack Guidelines were made retroactive, Stewart filed for a reduction in his sentence under 18 USC 3582(c)(2). The new Guidelines reduced his sentencing range to 188 to 235 months. The district court declined to reduce Stewarts sentence any further because the 187-month sentence "remains appropriate."
Stewart appealed and the Fourth Circuit reversed the district court. Interpreting USSG 1B1.10, which applies to such proceedings, the court held that the "original sentence" to which it refers is the sentence being served at the time the defendant seeks a reduction, not necessarily the first sentence imposed. Thus, Stewart's 187-month sentence was the "original" sentence and he was eligible for a further reduction from that sentence (although the district court was not required to grant it). The court did not reach the issue of whether Stewart was entitled to a reduction, but returned the case to the district court.
Stewart appealed and the Fourth Circuit reversed the district court. Interpreting USSG 1B1.10, which applies to such proceedings, the court held that the "original sentence" to which it refers is the sentence being served at the time the defendant seeks a reduction, not necessarily the first sentence imposed. Thus, Stewart's 187-month sentence was the "original" sentence and he was eligible for a further reduction from that sentence (although the district court was not required to grant it). The court did not reach the issue of whether Stewart was entitled to a reduction, but returned the case to the district court.
Unrequested Variance to Probation Vacated
US v. Morace: Morace pleaded guilty to one count of possessing child pornography, after an investigation showed that he was sharing child porn files across an Internet peer-to-peer network. The parties agreed that the advisory Guideline range was 41 to 51 months and, at sentencing, further agreed that a sentence of 41 months in prison was appropriate. Without explanation, the district court continued the hearing. When the hearing resumed two months later, the district court varied from the Guidelines and imposed a sentence of five years probation. The Government objected and appealed.
On appeal, the Fourth Circuit vacated Morace's sentence. Although the Government conceded that some variance might be warranted in this case, and that a variance to probation could be appropriate in some child porn cases, it nonetheless argued that the variance in this case was too great. Morace, the court concluded, was a "mine-run" defendant, as demonstrated by his agreement that a 41-month sentence was appropriate and the district court's "commonplace reasons" for imposing a sentence of probation. Without request, the district court had "imposed the most extreme downward variance possible." Thus, the court vacated Morace's sentence and remanded for further proceedings, without concluding that a new sentence of probation would necessarily be unreasonable.
On appeal, the Fourth Circuit vacated Morace's sentence. Although the Government conceded that some variance might be warranted in this case, and that a variance to probation could be appropriate in some child porn cases, it nonetheless argued that the variance in this case was too great. Morace, the court concluded, was a "mine-run" defendant, as demonstrated by his agreement that a 41-month sentence was appropriate and the district court's "commonplace reasons" for imposing a sentence of probation. Without request, the district court had "imposed the most extreme downward variance possible." Thus, the court vacated Morace's sentence and remanded for further proceedings, without concluding that a new sentence of probation would necessarily be unreasonable.
Conviction Affirmed, Sentence Vacated, In Crack Possession Case
US v. Herder: Herder was confronted in a parking lot by an officer who had followed his vehicle from a "park and ride" commuter lot known for drug activity. Herder's driving was suspicious because it was "overcautious" - "keeping under the speed limit and signalling well in advance of turns." Herder consented to a search of his car, which uncovered 21 bags of crack cocaine and some marijuana in false bottom containers. Herder was in possession of more than $1000 in cash. He was charged with possession of marijuana and more than five grams of crack, both with intent to distribute. He was convicted on both counts, although the jury found only 3.8 grams of crack were involved, at trial and sentenced to 41 months prison and the forfeiture of the cash in his possession at the time of his arrest.
On appeal, Herder challenged his convictions, sentence, and order of forfeiture. The Fourth Circuit affirmed his convictions and order of forfeiture, while vacating the sentence. As to the convictions, Herder made two arguments. First, he argued that the evidence was not sufficient to establish that he knowingly possessed the drugs found in his car. At trial, Herder presented testimony from his fiance that the car was used to make deliveries for their T-shirt business and, as a result, collects a lot of "junk" and that he had made such a delivery shortly before the search. The court rejected that argument, calling the evidence "more than ample" to sustain the convictions. Second, Herder argued that the district court erred by failing to give his requested instruction with regards to possession, particularly that the presence of drugs in a car driven by the defendant was not alone sufficient to establish possession. The court concluded that the district court's charge to the jury "substantially covered" Herder's request.
As to his sentence, Herder argued it was procedurally unreasonable because the district court did not understand its ability to vary from the Guidelines at sentencing. The court agreed that the district court held that mistaken belief and, further, had imposed sentence before Herder had a chance to argue the matter. Finally, as to the forfeiture, the court formally adopted the "substantial connection" standard test to determine whether property is subject to forfeiture and concluded that the evidence was sufficient to demonstrate that connection in this case.
Judge Niemeyer dissented on the sentencing issue, arguing that the record did not show that the district court failed to consider or did not know it had the authority to deviate from the Guideline range.
Congrats to the EDVA Defender office on the win!
On appeal, Herder challenged his convictions, sentence, and order of forfeiture. The Fourth Circuit affirmed his convictions and order of forfeiture, while vacating the sentence. As to the convictions, Herder made two arguments. First, he argued that the evidence was not sufficient to establish that he knowingly possessed the drugs found in his car. At trial, Herder presented testimony from his fiance that the car was used to make deliveries for their T-shirt business and, as a result, collects a lot of "junk" and that he had made such a delivery shortly before the search. The court rejected that argument, calling the evidence "more than ample" to sustain the convictions. Second, Herder argued that the district court erred by failing to give his requested instruction with regards to possession, particularly that the presence of drugs in a car driven by the defendant was not alone sufficient to establish possession. The court concluded that the district court's charge to the jury "substantially covered" Herder's request.
As to his sentence, Herder argued it was procedurally unreasonable because the district court did not understand its ability to vary from the Guidelines at sentencing. The court agreed that the district court held that mistaken belief and, further, had imposed sentence before Herder had a chance to argue the matter. Finally, as to the forfeiture, the court formally adopted the "substantial connection" standard test to determine whether property is subject to forfeiture and concluded that the evidence was sufficient to demonstrate that connection in this case.
Judge Niemeyer dissented on the sentencing issue, arguing that the record did not show that the district court failed to consider or did not know it had the authority to deviate from the Guideline range.
Congrats to the EDVA Defender office on the win!
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