US v. Johnson: Johnson was driving through a part of Baltimore in which officers "often stops motorists . . . for minor offenses in the hope that these encounters will lead them to information about more serious crimes." Johnson was pulled over due to a "bent and illegible temporary registration tag." Further investigation uncovered marijuana, which led to Johnson being arrested. While being transported to the police station Johnson said "I can help you out, I don't want to go back to jail, I've got information for you," to which one of the officers responded, "what do you mean?" Johnson explained that he could "get you a gun," meaning lead them to a gun in his own home which, as a convicted felon, he could not possess. That led to a consensual search of Johnson's home, the recovery of a firearm, and Johnson's conviction for being a felon in possession thereof.
On appeal, Johnson challenged the district court's denial of his motion to suppress evidence recovered from the traffic stop, as well as his statements to the officers in response to the "what do you mean?" question. The Fourth Circuit affirmed Johnson's conviction and sentence. With regard to the stop, the court rejected Johnson's argument that the district court clearly erred by crediting the officers' testimony - that the tag was bent and unreadable - over his own - that it was fine. It further held that even if the intent of the officers was investigation beyond the traffic violation itself, that didn't undermine the stop as it was based on probable cause of a violation. With regard to the statements made in response to "what do you mean?", the court held that because Johnson was offering information to try and help himself the question was not "interrogation" as would have required Miranda warnings to be given. Presumably, when someone in custody offers to "help" the cops, it means something other than "help convict me of a serious federal felony."
Thursday, October 31, 2013
Gigatribe Use Doesn't Automatically Lead to Distribution In Expectation of Receipt
US v. McManus: McManus possessed child pornography on his computer, on which he had installed the file-sharing software Gigatribe. An FBI agent downloaded some of the child pornography files in McManus's shared folder using that software, although it's not clear precisely how he did it. McManus pleaded guilty to possession of child pornography. At sentencing, his offence level was enhanced five levels for "distribution . . . for the receipt, or expectation of receipt, of a thing of value." The Guideline range was well above the 120-month statutory maximum and the district court varied down to impose a sentence of 72 months in prison.
McManus challenged his sentence on appeal and the Fourth Circuit agreed, vacating it for being procedurally erroneous. McManus argued that his use of the Gigatribe software supported a mere two-level enhancement for simple distribution, not the five-level enhancement. The court agreed, refusing to adopt the Government's position that the simple use of a limited-access program like Gigatribe (unlike a program that allows anyone access at anytime) implied a quid-pro-quo in the user's decision to allow someone else access to his files. It would create a per se rule that is inappropriate when dealing with an enhancement so closely tied to the defendant's state of mind. Other courts have reached the same conclusion. As the error in calculating McManus's Guideline range wasn't harmless, the court vacated and remanded for resentencing.
McManus challenged his sentence on appeal and the Fourth Circuit agreed, vacating it for being procedurally erroneous. McManus argued that his use of the Gigatribe software supported a mere two-level enhancement for simple distribution, not the five-level enhancement. The court agreed, refusing to adopt the Government's position that the simple use of a limited-access program like Gigatribe (unlike a program that allows anyone access at anytime) implied a quid-pro-quo in the user's decision to allow someone else access to his files. It would create a per se rule that is inappropriate when dealing with an enhancement so closely tied to the defendant's state of mind. Other courts have reached the same conclusion. As the error in calculating McManus's Guideline range wasn't harmless, the court vacated and remanded for resentencing.
3-Hour Interrogation During SWAT-style Execution of Search Warrant Was "Custodial," Required Miranda Warnings
US v. Hashime: Investigators who had obtained child pornography via Email eventually tracked the address to the Hashime home, where the 19-year old lived with his parents. Investigators obtained a search warrant and went to execute it:
Hashime was charged with just about every child porn charge (production, receipt, possession, etc.). The district court denied his motion to suppress the statements made during the interrogation, finding he was not in custody and therefore no Miranda warnings were needed. In making that decision, it relied heavily on Hashime's demeanor as recorded during the interrogation, which displayed "no kind of hesitation, no nervousness." Hashime pleaded guilty to receipt and possession charges and went to a bench trial on the production and distribution charges, of which he was convicted. At sentencing, the district court rejected Hashime's argument to set aside the mandatory minimums involved on Eighth Amendment grounds, but called the Government's requested 30-year sentence "way more than would be appropriate." Hashime was sentenced to the mandatory minimum term of 15 years in prison, plus a 20-year term of supervised release.
On appeal, Hashime challenged both his conviction and sentence. The Fourth Circuit reversed his conviction, holding that the district court should have granted his motion to suppress his statements made during the interrogation. Noting that the only issue was whether Hashime was in custody, the court concluded that an objective analysis of the situation showed that a reasonable person in his situation would have understood he was in custody. The court rejected the Government's argument that officer statements that Hashime wasn't under arrest and that they were only executing a search warrant "wholly ignores the larger setting." It also rejected the Government's reliance on the fact that the questioning happened in Hashime's home. Finally, the court rejected the district court's reliance on Hashime's demeanor during the interrogation. Thus, the Miranda warnings were given too late and the error in not suppressing Hashime's statements was not harmless.
Given the resolution of the Miranda issue, the court didn't technically reach Hashime's Eighth Amendment issue. However, it did opine that:
Shortly after 9:00 AM on May 18, 2012, a team of 15-30 state and federal law-enforcement agents equipped with a battering ram descended on Hashime’s home. Hashime, at the time a 19-year-old community-college student, lived with his parents in suburban northern Virginia. The agents banged on the entrance, yelling “Open the door.”Hashime was taken to the basement and interrogated for three hours in a storage area, with Miranda warnings only given about two hours into the process. His mother was told he was under arrest, was denied the ability to obtain a lawyer for him, and could not speak or contact him during the questioning. The interrogation, during which Hashime made several inculpatory statements, was secretly recorded by the cops. Although they told Hashime he wasn't under arrest one officer explained that he "need[ed] to know the truth . . . even if you're afraid, I don't care if you say I don't want to answer that or I'm afraid to answer it."
After being let in by Hashime’s aunt, the officers streamed into the house with their guns drawn. An officer entered Hashime’s bedroom and pointed a gun at him. Hashime was in bed, naked and asleep, having gone to bed at 5 AM that morning. The officer ordered Hashime to 'Get up. . . . Get out of bed,' and instructed Hashime to show his hands. After Hashime put on boxer shorts, the officer held Hashime by the arm, issuing orders to him, and marched him out to the front lawn, where officers were corralling the other members of his family. Despite the chilly weather, the Hashime family members were kept outside, several of them dressed only in their nightclothes.
Hashime was charged with just about every child porn charge (production, receipt, possession, etc.). The district court denied his motion to suppress the statements made during the interrogation, finding he was not in custody and therefore no Miranda warnings were needed. In making that decision, it relied heavily on Hashime's demeanor as recorded during the interrogation, which displayed "no kind of hesitation, no nervousness." Hashime pleaded guilty to receipt and possession charges and went to a bench trial on the production and distribution charges, of which he was convicted. At sentencing, the district court rejected Hashime's argument to set aside the mandatory minimums involved on Eighth Amendment grounds, but called the Government's requested 30-year sentence "way more than would be appropriate." Hashime was sentenced to the mandatory minimum term of 15 years in prison, plus a 20-year term of supervised release.
On appeal, Hashime challenged both his conviction and sentence. The Fourth Circuit reversed his conviction, holding that the district court should have granted his motion to suppress his statements made during the interrogation. Noting that the only issue was whether Hashime was in custody, the court concluded that an objective analysis of the situation showed that a reasonable person in his situation would have understood he was in custody. The court rejected the Government's argument that officer statements that Hashime wasn't under arrest and that they were only executing a search warrant "wholly ignores the larger setting." It also rejected the Government's reliance on the fact that the questioning happened in Hashime's home. Finally, the court rejected the district court's reliance on Hashime's demeanor during the interrogation. Thus, the Miranda warnings were given too late and the error in not suppressing Hashime's statements was not harmless.
Given the resolution of the Miranda issue, the court didn't technically reach Hashime's Eighth Amendment issue. However, it did opine that:
It suffices to note that, in line with our own review of the custody issue and the district court’s comments at sentencing, this was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant’s conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.Judge King concurred, noting that the district court's conclusion that proportionatily review under the Eighth Amendment isn't available to sentences less than life in prison is an incorrect conclusion, based on Fourth Circuit precedent.
Thursday, October 03, 2013
Maryland Second-Degree Assault Conviction Doesn't Trigger ACCA
US v. Royal: Royal was pulled over in Baltimore and found to be in possession of a loaded antique pistol. He was charged with being a felon in possession of ammunition. The pistol itself was old enough that it didn't meet the definition of "firearm" set out in 18 USC 921. He went to trial, at which an ATF agent testified about the antiqueness of the pistol, but did not go into detail about the ammunition. Royal sought a judgment of acquittal, arguing that the Government failed to prove the ammo met the statutory definition of "ammunition," which is "designed for use in any firearm" (as defined by the statute, of course). It was denied and Royal was convicted. He was sentenced to 180 months in prison under ACCA based on a prior Maryland conviction for second-degree assault.
On appeal, the Fourth Circuit affirmed Royal's conviction, but vacated his sentence and remanded for resentencing. As to the conviction, the court first held that there was no error in denying Royal's motion for a judgment of acquittal because the issue of whether the ammo was "antique" (in the sense that it was designed exclusively for a weapon too old to be a "firearm") was an affirmative defense that Royal did not raise. The evidence presented by the Government was sufficient to support the conviction. The court also turned down a plain-error challenge to the jury instructions related to that issue.
As to the sentence, the case had been held in abeyance pending the Supreme Court's decision last term in Deschamps. In light of that decision, the court concluded that the Maryland second-degree assault statute is a "facially indivisible statute" and rejected the Government's argument that state court decisions had converted it into a divisible statute (assuming, without deciding, that such an analysis was appropriate in the first place). As a result the correct analysis was the regular categorical approach, not the modified categorical approach (as utilized by the district court). Based on that analysis, because the statute allows conviction based on "any unlawful touching," whether violent or not, Royal's prior conviction was not a "violent felony" for ACCA.
Congrats to the Defender office in Maryland on the win!
On appeal, the Fourth Circuit affirmed Royal's conviction, but vacated his sentence and remanded for resentencing. As to the conviction, the court first held that there was no error in denying Royal's motion for a judgment of acquittal because the issue of whether the ammo was "antique" (in the sense that it was designed exclusively for a weapon too old to be a "firearm") was an affirmative defense that Royal did not raise. The evidence presented by the Government was sufficient to support the conviction. The court also turned down a plain-error challenge to the jury instructions related to that issue.
As to the sentence, the case had been held in abeyance pending the Supreme Court's decision last term in Deschamps. In light of that decision, the court concluded that the Maryland second-degree assault statute is a "facially indivisible statute" and rejected the Government's argument that state court decisions had converted it into a divisible statute (assuming, without deciding, that such an analysis was appropriate in the first place). As a result the correct analysis was the regular categorical approach, not the modified categorical approach (as utilized by the district court). Based on that analysis, because the statute allows conviction based on "any unlawful touching," whether violent or not, Royal's prior conviction was not a "violent felony" for ACCA.
Congrats to the Defender office in Maryland on the win!
Thursday, September 12, 2013
Government Discovery Abuses Earn Censure
US v. Bartko: Gregory Barkto received several convictions in the Eastern District of North Carolina in connection with his participation in a securities fraud scheme. In this appeal, Bartko challenges the denial of two of his four motions for a new trial for Brady or Giglio violations, the district court’s decision to consider an ex parte sealed document, the district court’s decision not to instruct the jury on accomplice/informant testimony and multiple conspiracies, and the district court’s application of several sentencing enhancements based on the amount of loss at stake, the number of victims, and Bartko’s status as a registered broker/dealer at the time of the offenses.
While the Fourth Circuit affirmed Bartko’s convictions and his 272-month sentence, its opinion takes a turn against the government in its discussion of the motions for a new trial, dissecting the discovery practices of the Eastern District of North Carolina’s United States Attorney’s Office, focusing its scrutiny on their repeated "mistakes" in this and other cases. Here, the Fourth Circuit reviewed three alleged constitutional violations - two examples of withholding discoverable evidence, and one instance of leaving uncorrected a witness’s false testimony.
From Judge Floyd:
[O]ur confidence in the jury’s conviction of Bartko was not undermined by the government’s misconduct in this case. And such is the result in many cases. Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices "harmless" as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. "No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it." United States v. Lee, 106 U.S. 196, 220 (1882). The law of this country promises defendants due process, U.S. Const. amend. V, and the professional code to which attorneys are subject mandates candor to the court, see Model Rules of Prof’l Conduct R. 3.3., and fairness to opposing parties, see id. R. 3.4. Yet, the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable. Something must be done...
What we know is that we are repeatedly confronted with charges of discovery abuse by this office. What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable. Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop.
Some of the other examples cited by the Fourth Circuit of discovery abuses include the sending of over 1,000 pages of discovery to a defendant in the week prior to trial, despite a court order to provide the discovery at least 14 days prior to trial, and in that same case, sending a fax to defense counsel without confirmation on the Saturday before trial started the following Monday; failing to disclose to a sexual predator that a victim would testify at the commitment hearing; and, failing to disclose potentially exculpatory grand jury testimony in a felon in possession case, despite requests for the production.
Finally, to ensure that these problems are addressed, the Fourth Circuit sent a copy to the Attorney General as well as the DOJ’s Office of Professional Responsibility. This may not be much consolation to Bartko, however, whose convictions and sentence were undisturbed.
NOTE: This case was decided on August 23, 2013.
While the Fourth Circuit affirmed Bartko’s convictions and his 272-month sentence, its opinion takes a turn against the government in its discussion of the motions for a new trial, dissecting the discovery practices of the Eastern District of North Carolina’s United States Attorney’s Office, focusing its scrutiny on their repeated "mistakes" in this and other cases. Here, the Fourth Circuit reviewed three alleged constitutional violations - two examples of withholding discoverable evidence, and one instance of leaving uncorrected a witness’s false testimony.
From Judge Floyd:
What we know is that we are repeatedly confronted with charges of discovery abuse by this office. What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable. Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop.
Some of the other examples cited by the Fourth Circuit of discovery abuses include the sending of over 1,000 pages of discovery to a defendant in the week prior to trial, despite a court order to provide the discovery at least 14 days prior to trial, and in that same case, sending a fax to defense counsel without confirmation on the Saturday before trial started the following Monday; failing to disclose to a sexual predator that a victim would testify at the commitment hearing; and, failing to disclose potentially exculpatory grand jury testimony in a felon in possession case, despite requests for the production.
Finally, to ensure that these problems are addressed, the Fourth Circuit sent a copy to the Attorney General as well as the DOJ’s Office of Professional Responsibility. This may not be much consolation to Bartko, however, whose convictions and sentence were undisturbed.
NOTE: This case was decided on August 23, 2013.
Tuesday, August 27, 2013
Apartment Curtilage Doesn't Include Common Areas Right Behind Building
US v. Jackson: Jackson lived in his girlfriend's apartment in Richmond. Police received a tip from a CI that he was selling drugs. They went to the apartment and, at four in the morning, pulled two bags of trash out of the can that was placed out behind the apartment. Based on the evidence in those bags the officers got a warrant, searched the apartment, and recovered guns, drugs, money and other evidence of drug distribution.
Jackson moved to suppress the evidence found in the apartment, arguing that the trash pull was unconstitutional. Although the morning the officers searched the trash was trash day, the can had not been rolled out to the side street (accessed from a common sidewalk behind the building) for collection. Instead, it was "sitting partially" in the back yard and "partially on the common sidewalk." The officers testified that they did not step onto the patio to grab the trash bags. The district court denied the motion, concluding that Jackson had no expectation of privacy in the trash can, that it was not within the curtilage of the apartment (aka on the patio), and that it was located in a common area. Jackson entered a conditional guilty plea and was sentenced to 137 months in prison.
Jackson appealed and the Fourth Circuit affirmed, 2-1. First, the court rejected Jackson's contention that the district court clearly erred by concluding that the trash can was not on the patio, but rather in the common area, when the trash pull took place, noting that the testimony of the officers was not directly contradicted by other evidence. Second, the court concluded that the location of the can was not within the curtilage of the apartment. Applying the Supreme Court's recent decision in Jardines, the court concluded that the curtilage extended to the edge of the back patio, but no further. Finally, the court concluded that the Supreme Court's decision that a person lacked a reasonable expectation of privacy in trash left on the curb for pickup applied here and Jackson lacked such an expectation, even though the trash can was not out at the curb as needed for pickup.
Judge Thacker dissented. Taking the facts as found by the district court, she argued that "I cannot subscribe to a version of the Fourth Amendment that permits agents of the state to conduct a warrantless search of a citizen's trashcan where the receptacle is located directly behind their home and not otherwise abandoned or left for collection along a public thoroughfare." She also attaches several photographic exhibits from the joint appendix to provide a better idea of the layout of the area.
Jackson moved to suppress the evidence found in the apartment, arguing that the trash pull was unconstitutional. Although the morning the officers searched the trash was trash day, the can had not been rolled out to the side street (accessed from a common sidewalk behind the building) for collection. Instead, it was "sitting partially" in the back yard and "partially on the common sidewalk." The officers testified that they did not step onto the patio to grab the trash bags. The district court denied the motion, concluding that Jackson had no expectation of privacy in the trash can, that it was not within the curtilage of the apartment (aka on the patio), and that it was located in a common area. Jackson entered a conditional guilty plea and was sentenced to 137 months in prison.
Jackson appealed and the Fourth Circuit affirmed, 2-1. First, the court rejected Jackson's contention that the district court clearly erred by concluding that the trash can was not on the patio, but rather in the common area, when the trash pull took place, noting that the testimony of the officers was not directly contradicted by other evidence. Second, the court concluded that the location of the can was not within the curtilage of the apartment. Applying the Supreme Court's recent decision in Jardines, the court concluded that the curtilage extended to the edge of the back patio, but no further. Finally, the court concluded that the Supreme Court's decision that a person lacked a reasonable expectation of privacy in trash left on the curb for pickup applied here and Jackson lacked such an expectation, even though the trash can was not out at the curb as needed for pickup.
Judge Thacker dissented. Taking the facts as found by the district court, she argued that "I cannot subscribe to a version of the Fourth Amendment that permits agents of the state to conduct a warrantless search of a citizen's trashcan where the receptacle is located directly behind their home and not otherwise abandoned or left for collection along a public thoroughfare." She also attaches several photographic exhibits from the joint appendix to provide a better idea of the layout of the area.
Maryland Offense of "Causing Abuse to a Child" Is Not "Crime of Violence"
US v. Carbrera-Umanzor: This is another case tacking the issue of whether a prior conviction is a "crime of violence," this time for purposes of the illegal reentry Guideline and its accompanying 16-level enhancement. The district court concluded that Carbrera-Umanzor's prior Maryland conviction for "causing abuse to a child" qualified as a crime of violence. It did so after concluding that the "modified categorical" approach applied, because the Maryland statute could be committed in some ways that would constitute a crime of violence. The district court then concluded "without considering the elements of the state crime" that having sex with an 11-year old (as Carbrera-Umanzor, who was 19 at the time, was accused of doing) was a forcible sex offense and a crime of violence. As a result, the enhancement applied on Carbrera-Umanzor was sentenced to 41 months in prison.
The Fourth Circuit reversed and vacated Carbrera-Umanzor's sentence. Noting that the district court sentencing occurred before both the Fourth Circuit's recent decision in Gomez and the Supreme Court's decision in Deschamps, the court first found that the Maryland statute is not divisible, for categorical analysis purposes. It is "generally divisible" - it can be committed in different ways - but the modified categorical approach applies "only if at least one of the categories into which the state may be divided constitutes, by its elements, a crime of violence." Those elements, the court held, "simply do not line up with the elements of any of the potentially applicable crimes of violence" set forth in the Guideline. The court then went on to conclude that the Maryland statute did not, categorically, set forth a crime violence.
Congrats to the Defender office in DMD on the win!
The Fourth Circuit reversed and vacated Carbrera-Umanzor's sentence. Noting that the district court sentencing occurred before both the Fourth Circuit's recent decision in Gomez and the Supreme Court's decision in Deschamps, the court first found that the Maryland statute is not divisible, for categorical analysis purposes. It is "generally divisible" - it can be committed in different ways - but the modified categorical approach applies "only if at least one of the categories into which the state may be divided constitutes, by its elements, a crime of violence." Those elements, the court held, "simply do not line up with the elements of any of the potentially applicable crimes of violence" set forth in the Guideline. The court then went on to conclude that the Maryland statute did not, categorically, set forth a crime violence.
Congrats to the Defender office in DMD on the win!
Simmons Is Retroactive (Even If It's Impetus Isn't)
Miller v. US: This is another case involving the fallout from the Fourth Circuit's 2011 decision in Simmons in which it reversed course on the proper analysis for prior convictions from North Carolina.
Miller was convicted in 2008 of being a felon in possession of a firearm. At the time, his prior North Carolina convictions counted as felonies, even though under state law he could only have received a maximum sentence of eight months in prison for each. After Simmons, those priors no longer qualified as felonies. Miller filed a 2255 motion to vacate his conviction as a result. In spite of the Government's position that Miller's conviction should be vacated (even waiving any reliance on the 1-year statute of limitations for 2255 filings), the district court denied Miller's motion, holding that Simmons did not have retroactive effect, based on earlier Fourth Circuit precedent holding that the Supreme Court immigration decision that led to Simmons was not retroactive.
On appeal, the Fourth Circuit reversed. Applying the Teague retroactivity analysis, the court concluded that Simmons announced a new substantive rule that was retroactive, even though the Supreme Court case that led to that decision announced a new procedural, rather than substantive, rule (and therefore is not retroactive). The court distinguished its earlier case, upon which the district court relied, by noting that the dispositive issue in that case was whether the 2255 motion was timely filed, which involved deciding the retroactivity of the Supreme Court immigration case, but not Simmons.
Congrats to the Defender office in WNC on the win!
Miller was convicted in 2008 of being a felon in possession of a firearm. At the time, his prior North Carolina convictions counted as felonies, even though under state law he could only have received a maximum sentence of eight months in prison for each. After Simmons, those priors no longer qualified as felonies. Miller filed a 2255 motion to vacate his conviction as a result. In spite of the Government's position that Miller's conviction should be vacated (even waiving any reliance on the 1-year statute of limitations for 2255 filings), the district court denied Miller's motion, holding that Simmons did not have retroactive effect, based on earlier Fourth Circuit precedent holding that the Supreme Court immigration decision that led to Simmons was not retroactive.
On appeal, the Fourth Circuit reversed. Applying the Teague retroactivity analysis, the court concluded that Simmons announced a new substantive rule that was retroactive, even though the Supreme Court case that led to that decision announced a new procedural, rather than substantive, rule (and therefore is not retroactive). The court distinguished its earlier case, upon which the district court relied, by noting that the dispositive issue in that case was whether the 2255 motion was timely filed, which involved deciding the retroactivity of the Supreme Court immigration case, but not Simmons.
Congrats to the Defender office in WNC on the win!
Thursday, August 15, 2013
Assault & Battery of Police Officer Not "Crime of Violence"
US v. Carthorne: Carthorne was convicted on drug and gun charges. In the PSR, the probation officer concluded that Carthorne was a career offender, based in part on a prior Virginia conviction for assault and battery of a police officer - he walked up to a cop and spat in his face. That increased his Guideline range from 181-211 months to 322 to 387 months in prison. There were no objections to the PSR and Carthorne was sentenced to a term or 300 months in prison.
On appeal, Carthorne challenged his classification as a career offender, arguing it was plain error. The Fourth Circuit agreed (unanimously) that he was right, but also agreed (2-1) that the error wasn't "plain" and thus affirmed his sentence. In 2010, the court held that a conviction under the general Virginia assault and battery statute does not constitute a "crime of violence" for career offender purposes and it rejected the Government's argument that the involvement of an officer changed the result. It rejected the Government characterisation of such situations as "powder kegs" because the officer is armed and required to respond to the provocation. However, because other circuits had reached differing conclusions with similar statutes and there was no direct Fourth Circuit opinion on point, the court found the error wasn't plain and affirmed the sentence.
Judge Davis wrote an interesting opinion concurring and dissenting in parts. He agreed that Carthorne's prior was not a crime of violence, but disagreed about whether the error of finding otherwise was "plain." After evaluating prior Fourth Circuit cases on plain error, career offenders, and the 2010 case, he concluded that, even without a direct published holding on point from the Fourth. He also took the majority to task for taking the rare path of finding error and deeming it not plain, rather than assuming error and "plainness" and resolving the appeal on the issues of prejudice or whether this was the type of error of which the court should take notice. Of course, he also notes that "the government has not remotely suggested" that it could meet those challenges. He then winds up with a powerful conclusion:
On appeal, Carthorne challenged his classification as a career offender, arguing it was plain error. The Fourth Circuit agreed (unanimously) that he was right, but also agreed (2-1) that the error wasn't "plain" and thus affirmed his sentence. In 2010, the court held that a conviction under the general Virginia assault and battery statute does not constitute a "crime of violence" for career offender purposes and it rejected the Government's argument that the involvement of an officer changed the result. It rejected the Government characterisation of such situations as "powder kegs" because the officer is armed and required to respond to the provocation. However, because other circuits had reached differing conclusions with similar statutes and there was no direct Fourth Circuit opinion on point, the court found the error wasn't plain and affirmed the sentence.
Judge Davis wrote an interesting opinion concurring and dissenting in parts. He agreed that Carthorne's prior was not a crime of violence, but disagreed about whether the error of finding otherwise was "plain." After evaluating prior Fourth Circuit cases on plain error, career offenders, and the 2010 case, he concluded that, even without a direct published holding on point from the Fourth. He also took the majority to task for taking the rare path of finding error and deeming it not plain, rather than assuming error and "plainness" and resolving the appeal on the issues of prejudice or whether this was the type of error of which the court should take notice. Of course, he also notes that "the government has not remotely suggested" that it could meet those challenges. He then winds up with a powerful conclusion:
For years now, all over the civilized world, judges, legal experts, social scientists, lawyers, and international human rights and social justice communities have been baffled by the 'prison-industrial complex' that the United States has come to maintain. If they want answers to the 'how' and the 'why' we are so devoted to incarcerating so many for so long, they need only examine this case. Here, a 26-year-old drug-addicted confessed drug dealer, abandoned by his family at a very young age and in and out of juvenile court starting at age 12, has more than fourteen years added to the top of his advisory sentencing guidelines range (387 months rather than 211 months), because, as a misguided and foolish teenager, he spit on a police officer. His potential sentence thus 'anchored' and 'framed' at the high end, between 17 and 32 years, Carthorne may or may not feel fortunate to have received 'only' 25 years (300 months) in prison. I do not believe he is 'fortunate' at all.Citation and footnote omitted
Tuesday, July 23, 2013
Mandate Doesn't Prevent Renewed Departure Request At Resentencing
US v. Alston: Alston was convicted of possession with intent to distribute more than 5 grams of crack and maintaining a dwelling used to sell drugs. The Government filed an 851 information based on Alston's prior convictions, producing a 10-years mandatory minimum sentence. Alston's Guideline range was 120 to 150 months in prison. He was sentenced to 150 months, after the district court rejected a Government motion for an upward departure due to Alston's criminal history. The Fourth Circuit vacated the sentence in light of Simmons and remanded. At resentencing, Alston's Guideline range was 70 to 87 months. Second time around the district court granted the Government's motion and departed upward, imposing a 120-month sentence.
The Fourth Circuit affirmed Alston's second sentence. It rejected Alston's argument that the mandate of the first appeal prohibited the Government from renewing its departure request (it did not cross appeal the initial denial), noting that the sentence was vacated and remanded for resentencing de novo. Given the "much altered Guidelines range landscape" at resentencing, and its duty to follow 3553(a), the district court was free to consider the Government's request. The court also found the district court's failure to retroactively apply the Fair Sentencing Act harmless and that Alston's sentence was substantively reasonable.
The Fourth Circuit affirmed Alston's second sentence. It rejected Alston's argument that the mandate of the first appeal prohibited the Government from renewing its departure request (it did not cross appeal the initial denial), noting that the sentence was vacated and remanded for resentencing de novo. Given the "much altered Guidelines range landscape" at resentencing, and its duty to follow 3553(a), the district court was free to consider the Government's request. The court also found the district court's failure to retroactively apply the Fair Sentencing Act harmless and that Alston's sentence was substantively reasonable.
NC "Consolidated Sentence" Only Counts As Single Prior
US v. Davis: Davis robbed a Wendy's in North Carolina and was convicted of a Hobbs Act robbery and firearm charges. The PSR recommended that Davis was a career offender based on multiple prior North Carolina convictions for burglary. Davis objected, arguing that the priors were a "consolidated sentence" that counted as only one prior offense. The district court disagreed, noting that the priors were separated by an intervening arrest. It sentenced Davis to 276 months, within the career offender Guideline range.
On appeal, the Fourth Circuit vacated Davis's sentence. The court noted that, for Guideline purposes, the operative prior event is the sentence, not convictions, and that a single sentence only counts once, regardless of how many convictions underlie that sentence. In Davis's case, his prior convictions were consolidated under a specific North Carolina statutory provision that allows for the entry of a single judgment for consolidated offenses. Thus, he "came to federal court with one consolidated sentence." It noted that the North Carolina provision is a substantive one that affects the defendant's rights, not merely a procedural means for efficiently imposing multiples sentences in a single proceeding.
Congrats to the Defender office in WDNC on the win!
NOTE: This case was decided on June 24, 2013.
On appeal, the Fourth Circuit vacated Davis's sentence. The court noted that, for Guideline purposes, the operative prior event is the sentence, not convictions, and that a single sentence only counts once, regardless of how many convictions underlie that sentence. In Davis's case, his prior convictions were consolidated under a specific North Carolina statutory provision that allows for the entry of a single judgment for consolidated offenses. Thus, he "came to federal court with one consolidated sentence." It noted that the North Carolina provision is a substantive one that affects the defendant's rights, not merely a procedural means for efficiently imposing multiples sentences in a single proceeding.
Congrats to the Defender office in WDNC on the win!
NOTE: This case was decided on June 24, 2013.
One Cannot Consent to the Use of One's Identity for an Unlawful Act
US v. Otuya: Otuya was involved in a scheme to defraud Bank of America using stolen "convenience checks" and the bank accounts of willing college student accomplices. For his trouble he was convicted at trial of fraud and aggravated identity theft. Among the evidence admitted at trial were items recovered from a backpack in Otuya's possession when he was arrested, including a Bank of America account profile and the ID of another Bank of America customer. Otuya was sentenced to 72 months on the fraud charges, plus a consecutive 24-month term for the identity theft.
On appeal, Otuya challenged his convictions and sentences, all of which the Fourth Circuit affirmed. As to his convictions, Otuya first argued that the evidence seized from the backpack was improperly admitted because it was offered to prove his poor character. The court disagreed, agreeing with the district court that the evidence was intrinsic to the crimes charged and not "prior bad act" evidence at all and, even if it was, it was offered for reasons other than proof of character. Second, Otuya argued that his identity theft conviction could not stand because his use of another's ID was not done "without lawful authority" because it was done with the consent of the other person (one of the college students). The court disagreed, holding that "one does not have 'lawful authority' to consent to the commission of an unlawful act." As to his sentence, Otuya argued that an enhancement for more than 50 victims did not apply because those "victims" - individual account holders with Bank of America - were made whole by the bank and sustained no actual losses. Noting a circuit split on the issue, the court dodged the issue and noted an alternate definition of "victim" that included those who had their mail stolen and clearly numbered more than 50. The court also affirmed the district court's loss calculation and its imposition of a 3-level enhancement for Otuya being a manager of the operation.
NOTE: This case was decided on June 19, 2013.
On appeal, Otuya challenged his convictions and sentences, all of which the Fourth Circuit affirmed. As to his convictions, Otuya first argued that the evidence seized from the backpack was improperly admitted because it was offered to prove his poor character. The court disagreed, agreeing with the district court that the evidence was intrinsic to the crimes charged and not "prior bad act" evidence at all and, even if it was, it was offered for reasons other than proof of character. Second, Otuya argued that his identity theft conviction could not stand because his use of another's ID was not done "without lawful authority" because it was done with the consent of the other person (one of the college students). The court disagreed, holding that "one does not have 'lawful authority' to consent to the commission of an unlawful act." As to his sentence, Otuya argued that an enhancement for more than 50 victims did not apply because those "victims" - individual account holders with Bank of America - were made whole by the bank and sustained no actual losses. Noting a circuit split on the issue, the court dodged the issue and noted an alternate definition of "victim" that included those who had their mail stolen and clearly numbered more than 50. The court also affirmed the district court's loss calculation and its imposition of a 3-level enhancement for Otuya being a manager of the operation.
NOTE: This case was decided on June 19, 2013.
Gant Has No Application Where PC Exists to Search Car Anyway
US v. Baker: Baker was driving a car in which Brown was a passenger. The car was pulled over and Baker was arrested on an "outstanding federal arrest warrant." With Baker secure, the officer "turned his attention to Brown" who was eventually searched. The search uncovered a gun, drugs, cash, and a small set of digital scales. After Brown, too, was arrested, the officer search the car and recovered more drugs and another gun. Baker was convicted at trial of various gun and drug offenses. He later filed a 2255 motion alleging ineffective assistance of counsel due to his attorney's failure to argue that the search of the car was unconstitutional under Arizona v. Gant, which was decided while his direct appeal was pending. The district court denied Baker's motion.
On appeal, the Fourth Circuit granted Baker's request for a certificate of appealability, but ultimately agreed with the district court that the 2255 motion should be denied. The court noted that, whatever change in the law Gant wrought, it did not change the basic principle that a vehicle can be searched without a warrant so long as probable cause exists. The court concluded that, once the evidence was recovered from Brown, there was probable cause to support a search of the car. Since Gant wasn't applicable to the situation, Baker's counsel did not render ineffective assistance of counsel by failing to raise it on appeal.
NOTE: This case was decided on June 13, 2013.
On appeal, the Fourth Circuit granted Baker's request for a certificate of appealability, but ultimately agreed with the district court that the 2255 motion should be denied. The court noted that, whatever change in the law Gant wrought, it did not change the basic principle that a vehicle can be searched without a warrant so long as probable cause exists. The court concluded that, once the evidence was recovered from Brown, there was probable cause to support a search of the car. Since Gant wasn't applicable to the situation, Baker's counsel did not render ineffective assistance of counsel by failing to raise it on appeal.
NOTE: This case was decided on June 13, 2013.
Monday, July 15, 2013
Speed Trial Act Requires Motion Prior to Trial
US v. Cherry: Cherry was charged with gun and drug charges arising from an attempted traffic stop and chase. He was arrested on state charges in March 2010, indicted on federal charges in July, then released to the federal detainer in April 2011. He was tried in September 2011 and was convicted. After the jury's verdict, but prior to the jurors being polled, the district court explained that they were not allowed to hear everything, including information about Cherry's prior criminal history.
On appeal, Cherry argued that his convictions should be reversed, for two reasons. The Fourth Circuit rejected them both and affirmed his convictions. First, Cherry argued that his prosecution violated the Speedy Trial Act. The facts of that claim aren't developed in the opinion because the court concluded that Cherry waived his right to raise that issue by failing to raise it prior to trial. Second, Cherry argued that the district court's remarks to the jury about Cherry's criminal history prior to polling them was error. Reviewing for plain error, the court held that there was error and it was plain, but that Cherry could not demonstrate prejudice because "the evidence against him was overwhelming" and the circumstances indicated that the remarks did not impact the verdict.
NOTE: This case was decided on June 13, 2013
On appeal, Cherry argued that his convictions should be reversed, for two reasons. The Fourth Circuit rejected them both and affirmed his convictions. First, Cherry argued that his prosecution violated the Speedy Trial Act. The facts of that claim aren't developed in the opinion because the court concluded that Cherry waived his right to raise that issue by failing to raise it prior to trial. Second, Cherry argued that the district court's remarks to the jury about Cherry's criminal history prior to polling them was error. Reviewing for plain error, the court held that there was error and it was plain, but that Cherry could not demonstrate prejudice because "the evidence against him was overwhelming" and the circumstances indicated that the remarks did not impact the verdict.
NOTE: This case was decided on June 13, 2013
Immigrant On Overstayed Visa Is "Unlawful" for Firearm Possession Statute
US v. Sabahi: Sabahi came to the United States from Yemen pursuant to a visa in 1997. The visa expired in 1998, but Sabahi remained. He eventually registered with program called NSEERS (a "War on Terror-related program pursuant to which non-immigrant men of certain ages and from certain countries were fingerprinted, photographed, and interviewed"). He was placed in removal proceedings. However, in 2003 he marred a US citizen and filed an application to "legalize his presence in the United States." While this was going on, in 2007, Sabahi possessed multiple firearms. For that, he was charged with being "illegally or unlawfully present in the United States" while in possession of a firearm. He moved to dismiss the charges, arguing that either his NSEERS registration or pending alteration proceeding meant he was not in the country "illegally or unlawfully." The district court denied the motion and Sabahi was convicted following a jury trial.
The Fourth Circuit affirmed Sabahi's conviction. The court agreed with the district court that neither Sabahi's NSEERS registration nor the adjustment proceedings took him outside the language of the statute. As for the NSEERS registration, the court concluded that Sabahi's registration did not place him in the equivalent of "parole" status with regards to immigration. As to the adjustment proceedings, the court concluded that until Sabahi's status was actually changed, those proceedings made no difference to the criminal charge.
NOTE: This case was decided on June 12, 2013.
The Fourth Circuit affirmed Sabahi's conviction. The court agreed with the district court that neither Sabahi's NSEERS registration nor the adjustment proceedings took him outside the language of the statute. As for the NSEERS registration, the court concluded that Sabahi's registration did not place him in the equivalent of "parole" status with regards to immigration. As to the adjustment proceedings, the court concluded that until Sabahi's status was actually changed, those proceedings made no difference to the criminal charge.
NOTE: This case was decided on June 12, 2013.
Remand Required for Consideration of Alternatives to Forced Medication
US v. Chatmon: Chatmon was charged with conspiracy to distribute more than 280 grams of crack cocaine and 100 grams of heroin, a charge that carried a maximum penalty of life in prison. He was determined to be incompetent due to schizophrenia and sent to FMC Butner to be "restored." The report from Butner was that Chatmon could be restored to competency by the use of antipsychotic medication. However, Chatmon would not agree to take medication. Based on those findings, the Government moved to forcibly medicate Chatmon. The district court granted the motion, finding Chatmon's offense to be "one of the most serious offenses that can be committed" and that forced medication was needed "because there is no less intrusive means shown to be available."
Chatmon appealed the district court's order and the Fourth Circuit reversed. The court began by rejecting Chatmon's argument that his offense wasn't a "serious crime" that leads to the important Government interest in forcing medication. It concluded that the question of a crime's severity is determined solely by the maximum potential punishment the defendant faces if convicted of it. By that metric, his offense is, indeed, a serious crime. However, the court agreed with Chatmon that the district court clearly erred by not considering alternatives to medication that may produce similar results, as it mentioned such considerations only in summary fashion. That's particularly true where the defendant, as Chatmon did here, offers potential alternatives.
NOTE: This case was decided on June 10, 2013.
Chatmon appealed the district court's order and the Fourth Circuit reversed. The court began by rejecting Chatmon's argument that his offense wasn't a "serious crime" that leads to the important Government interest in forcing medication. It concluded that the question of a crime's severity is determined solely by the maximum potential punishment the defendant faces if convicted of it. By that metric, his offense is, indeed, a serious crime. However, the court agreed with Chatmon that the district court clearly erred by not considering alternatives to medication that may produce similar results, as it mentioned such considerations only in summary fashion. That's particularly true where the defendant, as Chatmon did here, offers potential alternatives.
NOTE: This case was decided on June 10, 2013.
Altered, But Legible, Serial Numbers Still Lead to Enhancement
US v. Harris: Harris was arrested after threatening a woman with a gun. The serial number of said firearm was described as having been "altered" with "numerous deep gouges and scratches across" it. "However," the police report continued, "the numbers are still legible." Harris pleaded guilty to being a felon in possession of a firearm. At sentencing, the district court imposed a 4-level Guideline enhancement for possession of a firearm with an "altered or obliterated serial number," concluding (after an examination of the gun itself) that the damage was not accidental and interfered with the ability to read the number, even if it could be done. Harris was sentenced to 105 months in prison.
On appeal, Harris argued that the district court erred by imposing the enhancement when the serial number was still legible. The Fourth Circuit disagreed and affirmed the sentence. The court noted that Harris's argument, that "altered" means changed so as to make the number illegible was "rational," it didn't take into account the fact that something can be altered if it is less legible than intended, rather than completely illegible. Serial numbers altered in such a way interfere with the regulatory scheme (and the purpose therefore) requiring serial numbers in the first place.
NOTE: This case was decided on June 26, 2013.
On appeal, Harris argued that the district court erred by imposing the enhancement when the serial number was still legible. The Fourth Circuit disagreed and affirmed the sentence. The court noted that Harris's argument, that "altered" means changed so as to make the number illegible was "rational," it didn't take into account the fact that something can be altered if it is less legible than intended, rather than completely illegible. Serial numbers altered in such a way interfere with the regulatory scheme (and the purpose therefore) requiring serial numbers in the first place.
NOTE: This case was decided on June 26, 2013.
Thursday, July 11, 2013
Shooting Is Relevant Conduct for Felon in Possession Conviction
US v. Ashford: Ashford was a felon. He possessed a firearm. He shot someone else three times, as part of an argument that escalated out of control. At sentencing, the district court applied a Guideline cross reference to attempted second-degree murder, producing a Guideline range of 110-120 months in prison (the statutory maximum). He was sentenced to 120 months.
On appeal, Ashford challenged his sentence on both legal and factual grounds. The Fourth Circuit turned away both challenges and affirmed his sentence. First, Ashford argued that the shooting wasn't relevant conduct for his offense of conviction. Looking to USSG 1B1.3(a), he argued that all four subsections were conditions that must be met before something qualified as relevant conduct. The court disagreed, finding subsections (3) and (4) to be linked, but only to each other and not to the other two subsections, which were also not linked to each other. Specifically, conduct must satisfy either subsection (1) or (2) to be classified as relevant conduct. Unlike US v. Horton, 693 F.3d 463 (4th Cir. 2012), the shooting here clearly occurred "during the commission" of the offense of conviction and qualified as relevant conduct under 1B1.3(a)(1). Second, Ashford argued that the facts did not support a cross reference to attempted second-degree murder, but at most attempted voluntary manslaughter. The court had "no trouble affirming" the sentence on the facts in the record.
NOTE: This case was decided on June 20, 2013.
On appeal, Ashford challenged his sentence on both legal and factual grounds. The Fourth Circuit turned away both challenges and affirmed his sentence. First, Ashford argued that the shooting wasn't relevant conduct for his offense of conviction. Looking to USSG 1B1.3(a), he argued that all four subsections were conditions that must be met before something qualified as relevant conduct. The court disagreed, finding subsections (3) and (4) to be linked, but only to each other and not to the other two subsections, which were also not linked to each other. Specifically, conduct must satisfy either subsection (1) or (2) to be classified as relevant conduct. Unlike US v. Horton, 693 F.3d 463 (4th Cir. 2012), the shooting here clearly occurred "during the commission" of the offense of conviction and qualified as relevant conduct under 1B1.3(a)(1). Second, Ashford argued that the facts did not support a cross reference to attempted second-degree murder, but at most attempted voluntary manslaughter. The court had "no trouble affirming" the sentence on the facts in the record.
NOTE: This case was decided on June 20, 2013.
Wednesday, July 10, 2013
No "Standing" to Assert Fourth Amendment Protection in Vehicle on Common Carrier
US v. Castellanos: A Ford Explorer was taken off a car carrier in Texas, inspected (with the consent of the carrier's driver) and found to contain $3 million worth of cocaine in the gas tank. Castellanos arrived (from North Carolina) to pick up the Explorer (for which he had the title), which he was allegedly in the process of purchasing from Castaneda (who may or may not exist). Castellanos was charged with conspiracy to possess with intent to distribute cocaine in North Carolina. He moved to suppress the drugs found in the Explorer, but the district court concluded that he had no reasonable expectation of privacy in the Explorer, which had been "given over to a common carrier with addresses which were ascertained to be false." Notably, Castellanos did not introduce the title into evidence during the suppression hearing. He entered a conditional guilty plea and was sentenced to 120 months in prison.
On appeal, the Fourth Circuit affirmed the district court, 2-1. The court agreed with the Government that Csatellanos failed to show any ownership or possessory interest in the Explorer that would allow him to assert any Fourth Amendment rights. The burden of showing "standing" to assert a Fourth Amendment claim rests with the person asserting it. Although Castellanos told the officer in Texas that he owned the Explorer he did not introduce any evidence to support that claim at the suppression hearing. Similarly, he offered no evidence that he possessed the Explorer with permission from the actual owner (whether that be Castaneda or someone else).
Judge Davis dissented, arguing that the record showed that Castaneda was actually an alias for Castellanos and showed he had an interest in the Explore that would allow him to make a Fourth Amendment claim. He also argued that neither the district court nor the Government "called on" Castellanos to prove "standing."
NOTE: This case was decided on May 29, 2013.
On appeal, the Fourth Circuit affirmed the district court, 2-1. The court agreed with the Government that Csatellanos failed to show any ownership or possessory interest in the Explorer that would allow him to assert any Fourth Amendment rights. The burden of showing "standing" to assert a Fourth Amendment claim rests with the person asserting it. Although Castellanos told the officer in Texas that he owned the Explorer he did not introduce any evidence to support that claim at the suppression hearing. Similarly, he offered no evidence that he possessed the Explorer with permission from the actual owner (whether that be Castaneda or someone else).
Judge Davis dissented, arguing that the record showed that Castaneda was actually an alias for Castellanos and showed he had an interest in the Explore that would allow him to make a Fourth Amendment claim. He also argued that neither the district court nor the Government "called on" Castellanos to prove "standing."
NOTE: This case was decided on May 29, 2013.
Restitution Payment Change Without Consideration of Ability to Pay Equals Abuse of Discretion
US v. Grant: Grant pleaded guilty to theft of government property in Florida. She was sentenced to probation and to pay restitution of $250 per month. That amount was later reduced to $125. Her probation was then transferred to Virginia. Grant's probation officer, upon learning that Grant had received tax refund checks the prior two years, moved the district court to add a condition to Grant's probation that she apply "moneys received from income tax refunds" or other "unexpected financial gains" to her outstanding restitution balance. This was to take into account her "receipt of an annual windfall." The district court agreed and imposed the condition.
On appeal, the Fourth Circuit reversed. The court began by noting that there had been no material change since Grant's sentencing in Florida, as the PSR accurately recounted her regular receipt of tax refunds for several years. It also hinted that the Government's argument that the district court's ability to modify conditions of probation (and supervised release) allowed for a modification of restitution amounts, but did not decide that issue. Instead, it assumed that the district court could have modified Grant's probation conditions, but that doing so in this case was an abuse of discretion. While the MVRA requires the total amount of restitution to be awarded without reference to the defendant's ability to pay it, the rate at which she must pay the restitution is tied to her ability to do so. Because the district court did not consider Grant's ability to pay the increased restitution rate before modifying her conditions, it abused its discretion.
Congrats to the Defender office in EDVA on the win!
NOTE: This case was decided on May 9, 2013
On appeal, the Fourth Circuit reversed. The court began by noting that there had been no material change since Grant's sentencing in Florida, as the PSR accurately recounted her regular receipt of tax refunds for several years. It also hinted that the Government's argument that the district court's ability to modify conditions of probation (and supervised release) allowed for a modification of restitution amounts, but did not decide that issue. Instead, it assumed that the district court could have modified Grant's probation conditions, but that doing so in this case was an abuse of discretion. While the MVRA requires the total amount of restitution to be awarded without reference to the defendant's ability to pay it, the rate at which she must pay the restitution is tied to her ability to do so. Because the district court did not consider Grant's ability to pay the increased restitution rate before modifying her conditions, it abused its discretion.
Congrats to the Defender office in EDVA on the win!
NOTE: This case was decided on May 9, 2013
Subscribe to:
Posts (Atom)