Courts Must Consider Knock-On Effects of Caused by Retroactive Guideline Amendments

US v. Barrett: Barrett was sentenced for drug offenses in 2019. At that time, her final offense level was 33 and Criminal History Category II. She was given two criminal history “status” points for being on probation when committing the instant offense, plus one point for a prior sentence. She received a sentence of 168 months, in the middle of the resulting Guideline range.

In 2023, when the amendment to the status points provision of the Guidelines was made retroactive, the probation office determined that Barrett was eligible for a reduced sentence, as without the two status points she was now in Criminal History Category I with a reduced Guideline range. The Government agreed. Barrett agreed that she was eligible, but argued that her new Guideline range was even lower because now that she only had one criminal history point she was eligible for a two-level offense level reduction under the “safety valve” provision. The district court disagreed and reduced her sentence to 150 months (the middle of the new Guideline range it calculated) rather than 120 months (the middle of the new range Barrett had calculated).

On appeal, the Fourth Circuit vacated the district court’s decision and remanded for additional proceedings. It rejected the Government’s argument that the only thing the district court could do with a retroactive Guideline amendment was look at that particular change in the Guideline calculus. In situations like this, where the retroactive Guideline change has knock-on effects to other calculations, those must be applied as well. The court remanded to allow the district court to make findings as to whether Barrett satisfied the other safety valve requirements.

Congrats to the Defender office in WDVA on the win!

Firearm Made In Same State of Prosecution But That Then Travelled Through Several States Triggers §922(g)(1) Liability

US v. Ervin: Ervin possessed a rifle in North Carolina while he was a convicted felon. On advice of counsel, he pleaded guilty without a plea agreement and he was sentenced to 188 months under the Armed Career Criminal Act. Prior to his plea, Ervin’s counsel had been provided with an ATF report showing that the rifle had been made outside North Carolina, but Ervin later learned that it had actually been made in North Carolina.

Ervin filed a §2255 motion to vacate his conviction, arguing he received ineffective assistance of counsel because his attorney failed to adequately investigate the firearm. In response, the Government provided another ATF report that showed that while the rifle was made in North Carolina, it had been “shipped to a wholesaler in Louisiana before returning to North Carolina” via a retail outlet in Georgia The district court concluded that was sufficient to meet the interstate commerce element of the offense and, therefore, there was no prejudice. The district court denied Ervin’s §2255 motion.

On appeal, the Fourth Circuit affirmed. The court agreed with the district court that even if Ervin’s lawyer should have investigated the origin of the firearm there was no prejudice because evidence showed that it had been possessed “in or affecting commerce” as §922(g)(1) requires. Such a conclusion was required by Supreme Court precedent regarding a prior version of the statute. The court also reached the same conclusion regarding the definition of “interstate or foreign commerce,” concluding that it did not alter the analysis.

Murder Cross Reference Properly Applied in Felon-in-Possession Case

US v. Ellis: Ellis, a previously convicted felon, had a “tumultuous” relationship with his “former fiancé,” who had unsuccessfully tried to extricate Ellis from the life of her and her son, Gross. As Gross left his mother’s South Carolina apartment to go get his car, Ellis confronted him at the bottom of a stairwell. After a brief, and escalating, conversation, Ellis “pulled out a gun and shot Gross once in the abdomen” from about ten feet away. Ellis said it was an accident. After his guilty plea to being a felon in possession of a firearm, the district court applied a Guideline cross reference for attempted murder and sentenced Ellis to 97 months, the top of the resulting Guideline range.

On appeal, the Fourth Circuit affirmed Ellis’ sentence. First, the court concluded that Ellis could not have raised a defense of intoxication for the cross reference. It could apply if Ellis had committed either federal or state attempted murder and in South Carolina and South Carolina only allowed intoxication as a defense if it was the result from a mental condition (which Ellis never asserted). Second, the court could not conclude that the district court clearly erred in crediting the testimony of Gross about the event, over Ellis’ “self-serving” statements, that the shooting was intentional.

Court Vacates Upward Departure Based on Dissimilar Conduct

US v. Nixon: Nixon pleaded guilty to being a felon in possession of a firearm. While awaiting sentencing he “committed several acts of violence, including multiple stabbings” in custody. Nixon’s attorney procured an evaluation from a psychiatrist who detailed Nixon’s mental health issues and how they helped explain his conduct while in custody. The Government sought an upward departure from the 41-51 month Guideline range to the statutory maximum of 120 months to account for his “criminal history,” which included the incidents that occurred prior to sentencing. The district court granted the motion, jumping directly from a Criminal History Category III to VI and an elevated offense level to produce a Guideline range of 100-120 months, then imposed a sentence of 114 months. In doing so, the district court rejected Nixon’s expert opinion, concluding “I don’t need to hear from her. I read her report. I don’t find it credible.”

On appeal, a divided Fourth Circuit vacated Nixon’s sentence, for multiple reasons. First, the court concluded that the district court erred by relying on Nixon’s conduct while awaiting sentencing as a basis for the departure, as it was not based on “prior similar adult criminal conduct” to either conduct at issue in his offense or conviction or criminal history. The court stressed that the Government could have prosecuted Nixon separately for that conduct but, having decided not to, could not use the same conduct to enhance Nixon’s sentence. Second, the district court procedurally erred in its departure, failing to do the step-by-step analysis required, going up one Criminal History Category at a time (although it recognized such a requirement was necessary). Finally, the court held that the district court erred by disregarding Nixon’s expert report given that it was uncontested by the Government, leading to a clearly erroneous finding that Nixon’s conduct was not impacted by it.

Judge Harris, dissented, arguing that the limitation in the Guidelines related to the departure was not so narrow, that the district court both recognized the need for a step-by-step process and said it did so, and there was no clear error in the treatment of the expert report. Finally, Judge Harris argued that any error was harmless, as the district court said it would impose the same sentence regardless of the departure.

Court Vacates Supervised Release Revocation Based on Unconfronted Hearsay

US v. Wheeler: Wheeler was on supervised release when he had an altercation in a hotel lobby with Mobley, who accused Wheeler of assaulting and strangling her. After his probation officer sought a modification as a  result, the district court “ordered the probation officer to initiate supervised release revocation proceedings instead.” Mobley did not appear for the revocation hearing after failed attempts by the probation officer to contact her and successfully serve a subpoena on her. Over Wheeler’s objection, the district court proceeded with the revocation hearing, with the Government presenting several witnesses, including some who repeated Mobley’s allegations as related to them. Wheeler’s term of supervised release was revoked and he was sentenced to six months in prison and additional supervised release, but was released on bond because, the district court found, “this was a close case” and Wheeler “should have an opportunity for his cause to be heard” on appeal.

On appeal a divided Fourth Circuit reversed the revocation of his term of supervised release. Central to the appeal was whether the district court erred by considering Mobley’s hearsay statements after her failure to appear to testify. The court concluded that it had because it did not properly apply the balancing test required for determining whether such testimony is admissible. The district court is required to balance “the defendant’s interest in confrontation against the Government’s good cause,” which did not occur here. The court also noted that the burden is on the Government to show good cause to admit evidence, not on the defendant to show the evidence is inadmissible. The court also included that the Government did not provide a sufficient explanation for its failure to secure Mobley’s presence and that neither error was harmless.

Judge King’s dissent reads, in its entirety: “Because I am fully satisfied that the very able presiding judge did not abuse his broad discretion in making the challenged evidentiary ruling, I would affirm the judgment of the district court. As a result, I respectfully dissent.”

Congrats to the Defender office in WDNC on the win!

Court Affirms Convictions, Sentences, Versus Various Challenges

US v. Williams: A marijuana supplier disappeared and suspicion fell on Scott Williams and his son, Taeyan, who “operated a large-scale enterprise selling drugs to college students” supplied by the missing supplier. His body was never found, but a search of Scott’s home uncovered a large amount of cash, firearms, sizable amounts of multiple kinds of drugs, and “a drug ledger found under the mattress in Scott’s room.” The Williams’ were charged with numerous counts, including conspiracy to distribute drugs and kidnapping resulting in death. A jury found them guilty of some drug counts (but acquitted on the kidnapping, among others) and Scott guilty of possession with intent to distribute methamphetamine and conspiracy to destroy evidence. Scott was sentenced to a term 276 months in prison, Taeyan to 150 months.

On appeal, the Fourth Circuit affirmed the Williams’ convictions and sentences. Taeyan’s only argument was that there was insufficient evidence that he possessed with intent to distribute the marijuana and cocaine found in Scott’s home. The court disagreed, noting the difficult standard of review (“it is not enough for Taeyan to assert a non-frivolous argument” or show “there is some evidence that supports his position”), and pointing to evidence of his constructive possession of the drugs, noting that whether Taeyan lived there or not (he claimed he did not) was not determinative.

As to his conviction, Scott argued that the evidence found in his home should have been suppressed because the search warrant was executed without knocking. Recognizing this was not a basis for suppression under Hudson v. Michigan, Scott relied on 18 U.S.C. § 3109 as the basis for exclusion. The court did not decide the issue, concluding instead that the police had exigent circumstances that justified the no-knock search in the first place. As to his term of imprisonment, the court refused to decide that Scott was eligible for a two-point reduction under the “zero point” amendment to the Guidelines, leaving it for Scott to pursue via a § 3582(c)(2) motion. Finally, the court concluded that a condition of supervised release requiring Scott take part in mental health treatment, which left to the probation officer the nature and location of such treatment, was not an improper delegation of judicial authority.

No Error Where District Court Asked Questions During Allocution, Wouldn’t Let Defendant Read Letter to His Mother

US v. Jennings: Jennings pleaded guilty to being a felon in possession of a firearm after police arrived at a party responding to a noise complaint and heard shots fired (recovered casings matched the gun Jennings had in his possession). At sentencing, Jennings allocated by speaking “at length about how alcoholism had impacted his life and contributed to his criminality,” after which he “read a poem he had written to the court,” as well as a “prepared speech wherein he thanked his defense attorney and again explained how alcohol contributed to his criminal history.”

The district court interrupted Jennings twice to ask clarifying questions. When Jennings said he “don’t hurt or bother or disrespect random people,” the district court interjected “you shot somebody . . . What does it mean you don’t bother random people?” Then, during Jennings’ poem, the district court stopped him to ask, after one particular line, “Wait a minute. Did you just say emotion, clothes, weather, money?” The district court asked more questions, after which Jennings “asked to read a letter he had written to his mother.” The district court declined (“you’ll see your mother”) and imposed a statutory maximum sentence of 120 months in prison.

On appeal, the Fourth Circuit affirmed Jennings’ sentence. It rejected the argument that the district court’s questioning, and refusal to let Jennings read the letter to his mother, was an abuse of discretion that restricted the right to allocution. The court concluded that the district court’s questions did not “terminate” the allocution and that the district court asked “clarifying questions” and “allowed [Jennings] to continue speaking after these questions and did not cut him off.” As for the letter, it was “not addressed the court” and did not include anything that Jennings had not already said.

Extensive Upward Variance Justified by Nature of Offense, Prior Criminal History

US v. Davis: Police tried to stop Davis for driving while using a “handheld device,” but he didn’t stop and eventually crashed. While being transported following his arrest, Davis “repeatedly complained about his handcuffs” and “continued to move around in the back seat.” After repeated inquiries whether he had anything dangerous on him he admitted to being in possession of a firearm (which officers then recovered). Davis pleaded guilty to being a felon in possession of a firearm.

The PSR initially calculated Davis’ advisory Guideline range to be 57 to 71 months, largely due to prior convictions that were deemed “controlled substance offenses.”  Davis objected, arguing under Campbell that his prior offenses were not controlled substance offenses. The probation officer agreed and revised the advisory Guideline range to 21 to 27 months. At sentencing, the Government argued for a variance up to the 120-month statutory maximum based on Davis’ extensive criminal history, his conduct in fleeing and attempting to access the concealed firearm, and the fact that he would have been exposed to sentencing under the Armed Career Criminal Act had the Government charged it in the indictment. Davis argued for a sentence at the bottom of the Guideline range. The district court did vary upward, but not to the extent requested by the Government, imposing a sentence of 72 months in prison.

On appeal, the Fourth Circuit affirmed Davis’ sentence. Davis argued that his sentence was both procedurally and substantively unreasonable, largely because the district court did not adequately address mitigating arguments related to his traumatic upbringing and the limited nature of his current conduct (simple possession of a firearm for no “nefarious purpose”). The court disagreed, concluding that the district court adequately addressed those arguments but either rejected them (the nature of the offense) or found they were outweighed by other factors. On Davis’ argument about his upbringing, which was based around adverse childhood experiences (“ACEs”), the court criticized Davis for not making the ACE argument more specific to his prior conduct.

“Standard” Conditions of Probation Affirmed After Procedural, Substantive Challenges

US v. Notgrass: Rhonda Notgrass and her husband, Robert, pleaded guilty to misdemeanor fraud after fraudulently obtaining unemployment payments during the COVID lockdown. They pled pursuant to a plea agreement in which they waived their right to appeal their “sentence of imprisonment, fine or term of supervised release” or the “manner in which the sentence was determined.” They were sentenced to 60 months probation, which included numerous conditions, to which they objected to three: (1) that they not leave the district without permissions, (2) that they not possess dangerous weapons (although Rhonda was allowed to possess pepper spray or mace), and (3) that if unemployed they register with Work Force West Virginia (by the time of sentencing, they had relocated to Missouri). Robert additionally objected to a condition mandating participation in mental health treatment if ordered by his probation officer. The district court imposed all of them, largely on the basis that they were “appropriate.”

On appeal, the Fourth Circuit affirmed the imposition of the conditions of probation. First, the court denied the Government’s motion to dismiss the appeal under the appeal waiver from the plea agreement. That, the court held, was explicitly limited by its plain language to sentences of imprisonment and supervised release and made no mention of probation (or conditions thereof). The court then turned to the procedural reasonableness of the contested conditions, concluding that the explanation provided by the district court was adequate. Although none of the conditions were mandatory under the statute, the first two were “standard” conditions set forth in the Guidelines and thus required little explanation from the district court when imposed. The other conditions were more specifically related to the convictions and Robert’s history and characteristics, and thus adequately explained. For largely the same reasons (i.e., they were “standard” conditions and connected to the offenses and history) the court also found that the conditions were substantively reasonable.

NOTE: I was counsel for Rhonda Notgrass in this appeal.

Virginia Robbery Is Not “Crime of Violence” Under Either Elements of Generic Definition of “Robbery”

US v. Parham: Parham pleaded guilty to being a felon in possession of a firearm. In the PSR, his base offense level was enhanced due to a prior conviction for a “crime of violence” – convictions in Virginia for robbery and using a firearm during a robbery, treated as a single prior under the Guidelines. Parham objected, arguing that Virginia robbery was not a crime of violence under White due to the ability to commit the offense by “threatening to accuse the victim of engaging in sodomy.” The Government countered that White was limited to Armed Career Criminal Act situations because the enumerated offense of “robbery” in the Guidelines included the Virginia offense. In the alternative, the firearm offense was a crime of violence, too, leading to the same Guideline calculation. The district court agreed with the Government on the robbery conviction and ultimately imposed a sentence of 84 months in prison, in the middle of the resulting Guideline range.

On appeal, the Fourth Circuit vacated Parham’s sentence. The court held that Virginia robbery does not match the generic definition of robbery in the Guidelines for the same reason that it does not meet the elements test – because it covers a broader amount of conduct than generic robbery. Specifically, it can be committed by threatening to accuse the victim of engaging in sodomy. With the robbery conviction addressed, the court concluded it could not address the firearm offense because the record did not show that the district court had made a ruling as to its status as a crime of violence. Parham’s case was remanded for further proceedings.

Congrats to the Defender Office in Eastern Virginia on the win!

First Step Act Credit Exclusion for Offense Where Death Resulted Requires Conviction

Valladares v. Ray: In 2020, Valladares sold fentanyl and related substances to a friend who, after using them, died “from mixed drug intoxication.” Although he was initially charged with a count of distribution of a controlled substance causing death, Valladares eventually pleaded guilty to an information charging him with one count of simple distribution and two counts of possession with intent to distribute. The plea agreement stated that Valladares admitted that “he distributed controlled substances to the victim, and that the death of the victim resulted.” The death played a role in the Guideline calculations and Valladares was sentenced to three concurrent sentences of 144 months in prison.

In prison, Valladares sought to earn time credits under the First Step Act by participating in various programs. The Bureau of Prisons, however, concluded that Valladares was not eligible for such credit because the FSA excludes certain prisoners from its benefits, including those convicted of drug distribution “for which death . . . resulted from the use of such substance.” After unsuccessfully challenging the BOP conclusion administratively, Valladares filed a §2241 habeas corpus action, arguing the exclusion did not apply to him. The district court denied the motion.

The Fourth Circuit reversed. The primary issue was whether the “death resulting” exclusion could be based on underlying facts of the inmates case or whether it was required to be an element of the offence for which the inmate was convicted. Examining the plain meaning of the statute, the court concluded that a categorical approach applied and, therefore, if the offense of conviction did not have a death resulting element the inmate was not excluded from receiving FSA credit. Valladares, in spite of his initial charge and facts relevant to his sentencing, was not convicted of an offense that had a death resulting element, so he could receive credit.

Congrats to the FPD Office in Maryland on the win!

No Clear Error Imposing Leadership Enhancement for Defendant Who Was Middleman in Large Drug Conspiracy

US v. Pilego-Pineda: Pilego-Pineda “coordinated logistics for several muti-kilogram methamphetamine deliveries” as part of a long-term investigation of a large drug conspiracy. Working from Atlanta, Pilego-Pineda served as the middle-man for the transaction, coordinating deliveries and approving transactions with potential buyers (some of whom, naturally, were undercover officers of confidential informants). He pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine mixture and money laundering. At sentencing, he was assessed a three-level organizer for being a manager or supervisor of criminal activity involving more than five participants. Facing an advisory Guideline range of 360 months to life in prison, Pilego-Pineda was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed Pilego-Pineda’s sentence. The court found no clear error in the district court’s conclusion regarding Pilego-Pineda’s role in the offense, noting that “the organization vested Pilego-Pineda with significant authority” that included “whether to trust particular buyers and whether to arrange recurring deals involving large quantities of methamphetamine.” He “served as the organization’s primary contact in Atlanta” and “had a high degree of participating in organizing the offense.”

Court Grants Second 2255 Permission to Pursue Counterman Claim

In re: Rendelman: In 1986, Rendelman was serving a state sentence when he was raped in prison. Over the next 15 years he wrote numerous letters to various officials involved in his case or the judicial system, some of which resulted in a federal sentence (during which he was raped four more times). In 2005, Rendelman was arrested on an outstanding state warrant (based on an old letter), started writing letters again, and was charged with six counts of mailing threatening communications. Proceeding pro se, Rendelman wanted to argue that his letters were not true threat, but “protests.” The district court disagreed, applying an objective reasonable person standard for the relevant jury instructions. Rendelman was convicted and sentenced to 15 years in prison.

After the Supreme Court’s decision in Counterman, Rendelman sought permission from the Fourth Circuit to file a second or successive §2255 petition challenging his conviction, arguing that under Counterman the Government would be required to prove that he acted with intent or at least recklessly in making actual threats. The court agreed and granted permission, rejecting (again) the Government’s argument that Rendelman was required to show a chance of succeeding on the merits. All that was necessary, the court held, was for him to show a new rule of constitutional law that was made retroactive and was “previously unavailable” to the petitioner.

Guilty Plea Involuntary Due to Government Misconduct Related to Potential Suppression Motion

US v. Garrett: Investigators in North Carolina used a pair of CIs to purchase methamphetamine from a person they thought was McDuffie, but was actually Garrett. Throughout the investigation, investigators called the target of search warrants McDuffie, rather than Garret (even after they knew about the mistake) and consistently avoided disclosing that they used two different CIs (with different backgrounds and credibility issues) during the operation. Garrett and a co-defendant, Cole-Evans, were eventually indicted for gun and drug charges.

Garrett initially moved to suppress evidence discovered during the investigation, relying on the identify confusion between himself and McDuffie. In response, the Government relied on an argument that (as with investigators) collapsed the two CIs into one. Cole-Evans did the same. After briefing on the motions was complete, the Government disclosed 775 pages of information that detailed the flaws in the investigation. Garrett decided to withdraw his motion to suppress rather than risk losing acceptance of responsibility and pleaded guilty to three counts in the indictment. He was sentenced to 240 months in prison. Cole-Evans, however, requested reconsideration of his motion to suppress – after Garrett had been sentenced – based on the multiple-CI details contained in the post-briefing disclosure. The district court granted the motion to reconsider and set a hearing, but before it could take place the Government dismissed the case against Cole-Evans with prejudice.

On appeal, a divided Fourth Circuit agreed with Garrett that his guilty plea was not made knowingly and involuntarily because of the investigator and Government misconduct the preceded it. Applying plain error review, the court concluded that Garrett could show that some “egregiously impermissible” conduct that pre-dated his guilty plea influenced his decision to enter the plea. It recognized that “preventing defendants from challenging pleas based on subsequently discovered misconduct could encourage officers to engage in or conceal misconduct to elicit guilty pleas.” That misconduct resulted in “critical deficiencies which occurred during the initial investigation and pre-plea phase” in the “bedrock of the prosecution’s case.” Nonetheless, the court made clear that “here, it is the newly discovered information that acts as the basis of the involuntary plea.” This was “a rare and extraordinary situation where the prosecution’s actions during the pre-plea process evidence a lack of candor that deprived Garrett of due process.”

Judge Quattlebaum dissented, arguing that because Garrett had the relevant information (from the 775-page data dump) for weeks prior to his guilty plea he could not meet the standard needed to vacate a guilty plea.

NC Special Probation Sentence Aggregates for Guideline Considerations

US v. Edwards: Edwards pled guilty from escaping from a halfway house in North Carolina. In the PSR, the probation officer calculated his criminal history score by including, counting for three points, a prior state sentence for fleeing to elude, for which he had been placed on “special probation” with a credit for 53 days already served and a 12-month sentence suspended; but that probation was revoked, triggering the 12-month sentence. Edwards objected, arguing that the original 53-day term and later 12-month term could not be aggregated to produce a sentence of longer than 12 months that counted for criminal history points. The district court disagreed and imposed a bottom-of-the-Guideline sentence of 24 months (making it clear it would have imposed the same sentence regardless).

On appeal, the Fourth Circuit affirmed Edwards’ sentence. Noting that the North Carolina courts had not directly addressed the issue of how the two periods of incarceration interacted with one another, the court looked to the plain language of the statute and concluded that it was appropriate to aggregate them. That it, the statute authorized both “active” and a “suspended” terms of imprisonment and did not suggest they should not be considered in the aggregate.

Affirming Sentence for Defendant Convicted of Role in Sweepstakes Fraud Scheme

US v. Lawson: Lawson was part of a “telemarketing sweepstakes scheme,” run out of Jamaica in which callers to primarily elderly people (70% of the 179 victims were over age 65) would claim they had won a prize, but could only collect after paying fees and other assorted costs. Lawson (and his mother) were in South Carolina where they collected various forms of payment from the various victims. Lawson pleaded guilty to numerous counts, including conspiracy and fraud. At sentencing the district court applied enhancements based on a total loss of $720,000 and because the offense involved vulnerable victims. It denied Lawson a reduction for a minor role. Ultimately, Lawson was sentenced to 78 months in prison, the top of the applicable Guideline range.

On appeal, the Fourth Circuit affirmed Lawson’s sentence. In doing so, the court expanded on the nature of review for clear error, centering the district court’s better institutional tools for making factual determinations (“district courts simply have a better yardstick than we do”). Lawson could not show clear error in the calculation of his Guideline range. As to the vulnerable victim enhancement, the court concluded that while it cannot be based solely on the age of victims, age is nonetheless a proper factor to consider when determining whether victims are particularly vulnerable in any particular case. As to the minor role enhancement, the court held that Lawson’s critical role in the scheme was a legitimate factor in determining whether to grant the reduction, as was a record that showed Lawson was, at least, an “average” participant in the scheme. Finally, as to the loss calculation, the court rejected Lawson’s argument that actual and intended loss were “categorically different and mutually exclusive” and concluded that the district court did not err by considering both.

No Plain Error for Illegal Reentry Sentence

US v. Dominguez: Dominguez was “a citizen of Mexico” with “a lengthy record or deportations from and subsequent reentries into the United States.” At least some of those deportations came after convictions for crimes, including possession with intent to distribute drugs in Arizona. In 2022, Dominguez was arrested in North Carolina and pleaded guilty to drug trafficking and resisting arrest in state court and was then charged with illegal reentry following conviction for an aggravated felony (the Arizona conviction). After pleading guilty, he was sentenced to 48 months in prison, an upward variance from the advisory Guideline range of 30 to 37 months.

On appeal, the Fourth Circuit affirmed Dominguez’s conviction & sentence. Reviewing for plain error, the court found no issue with the classification of Dominguez’s Arizona conviction as an aggravated felony. The court sidestepped the merits of the issue, concluding Dominguez could not show any error impacted his substantial rights because the aggravated felony classification only increases the statutory maximum for the offense and his sentence was below the otherwise-applicable maximum. The court also rejected a challenge to the calculation of the advisory Guideline range, concluding that Dominguez had failed to show how his resisting conviction was part of trying to avoid detection for the illegal reentry offense, and thus is could enhance both his offense level and criminal history. Nor was his sentence substantively unreasonable. As to his conviction, the court concluded that Dominguez had waived the ability to make that argument due to his guilty plea.

South Carolina Drug Convictions Remain “Controlled Substance Offenses”

US v. Jackson: In 2021, Jackson pleaded guilty to being a felon in possession of a firearm. He objected to his base offense level being enhanced due to two prior South Carolina convictions for distribution of crack cocaine, arguing under Campbell that they did not meet the definition of “controlled substance offense.” The district court disagreed and imposed a sentence of 115 months, in the middle of the applicable advisory Guideline range.

Jackson took an appeal, arguing both the Campbell issue and that the district court had not adequately explained the basis for the sentence it imposed. The Fourth Circuit vacated the sentence, in an unpublished decision that concluded Campbell did apply to the South Carolina offenses. Prior to Jackson’s resentencing, however, the Fourth Circuit decided Groves and Davis, which severely limited the impact of Campbell. Davis, in particular, addressed the same South Carolina offenses at issue in Jackson’s case, concluded that they did, in fact, qualify as controlled substance offenses. Jackson was again sentenced to 115 months in prison.

On appeal for a second time, the Fourth Circuit again vacated Jackson’s sentence, but only after concluding that the Guideline calculations were correct. The court concluded that the mandate rule did not prevent the district court at resentencing to implementing the holding of the original appeal as to Campbell, as Groves and Davis (both published). Specifically, Davis is not in conflict with Campbell (in which case Campbell would control) because the court in Davis considered Campbell and concluded it did not apply to the South Carolina offenses. However, the court did conclude that the district court, once again, failed to adequately explain the sentence it imposed and vacated the sentence and remanded on that basis.

Indictment for “Felonious” Rather Than “Forcible” Assault Not Defective

US v. Johnson: Johnson was in a car with fellow gang members who thought they wound up in pursuit of a car full of rival gang members – at whom Johnson shot eight times (nobody was hit or hurt). Turns out the car was actually driven by FBI agents. Johnson was charged with a discharging a firearm in connection with a crime of violence and assaulting federal officers in an indictment that charged they had been “feloniously” assaulted rather than “forcibly” assaulted, as 18 U.S.C. §111 states. Johnson was convicted at trial and sentenced to 198 months in prison.

On appeal, the Fourth Circuit affirmed his convictions and sentence. In particular, the court rejected Johnson’s challenge to the indictment. Johnson argued that the indictment was defective because, rather than use the “forcibly” language of the statute, it used the term “feloniously.” Applying plain error, court found there was no error because the indictment adequately put Johnson on notice of the charge against him, the district court instructed the jury properly (i.e., it used “forcibly” language), and the jury’s verdict on the firearm charge, which included a finding “that Johnson fired eight shots . . . inherently included a finding that Johnson assaulted the officers with force.” The Government conceded that there was error and it was plain, but argued Johnson’s substantial rights had not been violated, with which the court also agreed.

Defendant Sufficiently Alleged Facts to Require Hearing on §2255 Motion

US v. McNeil: In 2018, police, after observing a car stop in front of McNeil’s house, pulled the car over (“for an unspecified ‘regulatory violation’”) and “recovered a small bag of marijuana.” Police went back to McNeil’s home, knocked, and spoke to two “juvenile subjects” who said McNeil was not home. Officers then walked into the backyard to a “small shed” where they found McNeil and smelled marijuana. A search of the she uncovered money and firearms. McNeil pleaded guilty to drug and firearm charges and was sentenced to 114 months.

McNeil filed a §2255 motion arguing that he had received ineffective assistance of counsel because his trial counsel had failed to file a motion to suppress the evidence found in the shed and failed to engage in any plea negotiations with the Government. Without a hearing, the district court denied the motion, concluding that any motion to suppress would have been “frivolous” and that McNeil had affirmed he was happy with the performance of counsel during his Rule 11 hearing.

The Fourth Circuit reversed and remanded the case for an evidentiary hearing. On each basis that the district court denied relief the court concluded that the record was insufficient to determine whether McNeil’s claims had merit. Taking the facts set forth by McNeil in his motion as true, the court indicated that a motion to suppress may have had some merit, but that further factual development (including whether McNeil told counsel about relevant facts and whether counsel made a reasoned decision not to file such a motion) was required and the district court should have held a hearing. As to the plea negotiations, the court noted that portions of McNeil’s Rule 11 hearing involved multiple defendants answering questions at the same time and the record did not clearly demonstrate that McNeil expressed satisfaction with his counsel’s performance.

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

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

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

NOTE: My office represented the defendant in this case.

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

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

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

Rejecting Plain Error Argument Where No Other Court Had Found Error

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

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

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

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

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

Maryland Robbery Remains Violent Felony Under ACCA

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

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

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

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

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

Court Affirms Enhancement for Permanent Scarring, Vacates for Vulnerable Victim

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

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

Probable Cause Supported Arrest, In Spite of Misidentification

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

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

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

Court Erred By Not Determining Scope of Jointly Undertaken Conduct

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

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

District Court Adequately Addressed Duress Argument at Sentencing

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

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

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

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

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

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

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

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

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

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

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

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