Thursday, April 01, 2021

NC PJC Disposition Counts for Criminal History Point

US v. Miller: Miller pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was the proper calculation of his criminal history score, particularly whether a criminal history point should be added for a prior North Carolina "prayer for judgment" (PJC) disposition, where Miller pleaded guilty to marijuana possession, but no sentence was ever imposed or judgment entered. The district court concluded that it did count and sentenced Miller to the top of the resulting Guideline range.


On appeal, the Fourth Circuit affirmed Miller's sentence. The Guidelines, the court noted, add a point (up to four points total) for any "prior sentence" of less than 60 days, with "prior sentence" being defined to include a "conviction for which the imposition . . . of sentence was totally suspended or stayed." While "diversionary" findings made "without a finding of guilt" are excluded, where there is an admission of guilt the point is awarded "even if a conviction is not formally entered." That is what happened to Miller, who pleaded guilty to the possession offense, but no judgment was entered. In the end, it didn't matter how North Carolina law treats a PJC disposition, only whether it came within the language of the Guideline, which it did.

Sentence Vacated Due to Ineffective Assistance of Counsel, Substantive Unreasonableness

US v. FreemanWhen she was a teenager, Freeman broke her tailbone, was prescribed opioids, and became addicted, In the intervening 16 years, she faked prescriptions to obtain an increasing number of pain pills, some of which she used herself and some of which she sold. Eventually, she was charged and pleaded guilty to possession with intent to distribute. She arrived at sentencing facing an advisory Guideline range of 210 to 240 months in prison. Although she had made some objections to the Guideline calculations (with regards to relevant conduct, an obstruction enhancement, and the lack of reduction for acceptance of responsibility), those objections were withdrawn by counsel (with Freeman's consent), who argued primarily for a variance or that Freeman be deferred into a drug court program. The district court eventually imposed a sentence of 210 months in prison.


A divided Fourth Circuit vacated Freeman's sentence on two grounds (after directly appellate counsel to brief them following an Anders brief). The first was that Freeman received ineffective assistance of counsel at sentencing based on the withdrawal of the objections to the Guideline calculations. All of them had potential merit and, if successful, could have dropped the advisory Guideline range down to 97 to 121 months. There was enough on the record showing counsel's confusion and apparent lack of grasp of those issues (counsel said in withdrawing the objections that they would not impact the sentence anyway) to demonstrate deficient performance and the potential change in the Guideline range showed prejudice. The second basis for vacating the sentence was that it was substantively unreasonable, even though it was presumptively reasonable. That was because the district court failed to consider sentencing disparities between Freeman and other opioid defendants (who, on average, received a sentence about half as long) and did not adequately address Freeman's history of addiction.


Judge Quattlebaum dissented. He noted that this was the first time the Fourth Circuit had ever found ineffective assistance in a direct appeal and argued that that issue should have been left for collateral attack, given that there was nothing in the record suggesting what strategic consideration (if any) trial counsel had for waiving the Guideline objections. As to the substantive reasonableness of the sentence, he notes that this is also the first time the Fourth Circuit has found a within-the-Guideline sentence to be substantively unreasonable. He argued that the disparity identified by the court is not a good comparison (not "apples to apples," in other words) and that the district court did consider Freeman's history of addiction.

No Reasonable Suspicion to Support Stop Where Police Lacked Evidence of Drug Trafficking

US v. DrakefordDrakeford was charged with drug and firearm offenses after a stop and patdown by officers in the parking lot of a car stereo store. They had come to be there because, months before, an informant had stated that a man matching Drakeford’s description and associated with a car registered to Drakeford was selling drugs. Police conducted surveillance at Drakeford’s home and that of his girlfriend for months without observing any obvious drug trafficking. This included on alleged sale of drugs, after which officers stopped and searched the “buyer’s” vehicle but found no drugs. At the car stereo store, officers saw Drakeford converse with another man in the parking lot and shake hands twice – the second of which was allegedly a hand-to-hand drug transaction. After Drakeford and the others went inside (followed by police, who didn’t do anything inside), they emerged and Drakeford was patted down, leading to the discovery of drugs. A search warrant was then executed at his girlfriend’s home, where more drugs and a firearm was found. Drakeford unsuccessfully moved to suppress that evidence and entered a conditional guilty plea.

On appeal, the Fourth Circuit reversed the denial of Drakeford’s motion to suppress. Examining the totality of the circumstances, the court concluded that the officers lacked reasonable suspicion to stop and patdown Drakeford. As to the informant, the court noted that they had provided no predictive information (not even Drakeford’s name) and that, although the informant could allegedly contact Drakeford, never used them to try and setup a controlled purchase of drugs. With regard to the second hand shake, the court pointed out that the only thing that made it suspicious was the officer’s conclusory testimony that it was – the officer was later forced to concede that he saw no drugs or money change hands. In addition, while he testified that drug transactions in this locale typically happen inside vehicles, the suspect handshake here took place outside, in a public place, and in front of security cameras. The court also noted that in months of surveilling Drakeford investigators had not developed any additional evidence of drug trafficking.


Judge Wynn concurred in the decision, writing about the need for district courts to no be overly deferential to officers’ “training and experience” when evaluating reasonable suspicion “often at the expense of the robust judicial scrutiny that the Fourth Amendment demands.”

Congrats to the Defender office in Western North Carolina on the win!

Government Doesn’t Need to Prove Defendant Knew of Ongoing Federal Investigation in Obstruction Prosecution

US v. HasslerHassler was the head nurse at a local jail where two inmates were beaten. One inmate was not examined until several days later (after it became “common knowledge” that law enforcement were investigating the assaults) and found to need emergency care. Hassler wrote a report two days later stating that he had seen the second inmate’s injuries at the time of the assault, but that he had declined medical treatment. Under later questioning by an FBI agent, Hassler admitted he wrote the report “to cover [his] butt” and did not see the second inmate. However, he stated he wasn’t aware of any ongoing investigation at the time. Hassler was eventually convicted of obstruction of justice under 18 U.S.C. 1519 and sentenced to 12 months and 1 day in prison.


On appeal, the Fourth Circuit affirmed Hassler’s conviction. Hassler’s main argument was that under Rehaif the Government had to prove that he intended to impede an investigation that he knew or contemplated would become a federal investigation. Relying on the Supreme Court’s 2015 decision in Yates, the court held that 1519 covers attempts to impede any federal investigation, even one “not even on the verge of commencement.” The jurisdictional language in the statute is not subject to Rehaif because such requirements are subject to lower culpability requirements than other elements of the offense. The district court did not err in not instructing the jury otherwise. Similarly, the evidence was sufficient to sustain Hassler’s conviction.

Aiding and Abetting Crime of Violence is Crime of Violence Under 924(c)

US v. AliAli (and several others) was involved in a series of armed robberies in North Carolina for which he was convicted of being a felon in possession of a firearm, four counts of aiding and abetting Hobbs Act robbery, and four counts of carrying a firearm in connection with a crime of violence. Due primarily to the multiple firearm convictions, he was sentenced to 1195 months in prison.


On appeal, the Fourth Circuit affirmed Ali’s convictions and sentence. Of primary importance, the court rejected Ali’s argument that he had not engaged in a “crime of violence” under 18 U.S.C. 924(c) because the designated crime was aiding and abetting Hobbs Act robbery, rather than the robbery itself. The court concluded that, given that aiding and abetting is a theory of liability and not a stand-alone offense with its own elements, conviction for aiding and abetting here required proof of the elements of Hobbs Act robbery, which requires the use of violent force. Therefore, if the underlying crime is a crime of violence (as with Hobbs Act robbery), then aiding and abetting the commission of that crime is also a crime of violence. The court also held that the district court did not abuse its discretion in handling the issue of witness sequestration, where several of Ali’s coconspirators who were testifying against him were kept in a holding cell near each other before and after their testimony. The court also held there was no abuse of discretion for denying Ali’s motion for new trial due to newly discovered evidence, noting that the evidence was either not newly discovered or went only to impeachment and could not serve as the basis for a grant of a new trial.

US Had Jurisdiction to Convict Overseas Service Member of Online Sex Offense With Victim In Virginia

US v. HarrisHarris was in the Navy, stationed in Japan, when he began a “lengthy and coercive sexual relationship with a young girl in Virginia.” This continued for two years as Harris moved from station to station (including in the United States). As a result, he was charged and convicted at trial of coercing a minor into illegal sexual activity (among other offenses). After an unsuccessful direct appeal, Harris filed a 2255 motion arguing that the district court lacked jurisdiction over actions that happened outside of the United States. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Harris’ 2255 motion. At issue was the meaning of “within the special maritime and territorial jurisdiction of the United States,” particularly when applied to service members. In 1973, the court had held that the definition included “overseas United States facilities.” However, Congress later amended the definition to exclude “members of the Armed Services subject to  . . . the Uniform Code of Military Justice.” Ultimately, the court avoided resolving any conflict between prior precedent and the amended code language by holding that “the conduct charged in Count 14 that is relevant to [18 U.S.C.] 2422(b)’s focus occurred in the United States, not overseas.” The court noted that not only was the victim in Virginia, but that Harris was in the United States when he sent some of the messages to her.

Court Reverses Judgment of Acquittal and Grant of New Trial In Prosecution Involving Lobbying for Foreign Government

 US v. RafiekianRafiekian worked with Michael Flynn’s lobbying and consulting group. After a failed coup in Turkey, which Turkey’s leader blamed partly on a dissident cleric who resided in Pennsylvania, Rafiekian became involved in various activities related to pressuring the United States to extradite the cleric. This was done in concert with a Turkish businessman and involved a shell organization to do PR and lobby. Ultimately, Rafiekian never disclosed any of these contacts to the Government as required and was charged with conspiracy and acting as a foreign agent without notifying the Attorney General. After a jury trial where he was convicted on both counts, the district court granted a motion for a judgment of acquittal, concluding that there was insufficient evidence that Rafiekian had been operating “subject to the direction or control of that foreign government.” In the alternative, the court granted Rafiekian a new trial on several grounds.

On appeal, the Fourth Circuit reversed the district court in both matters. As to the judgment of acquittal, the court concluded that the district court erred in identifying what the Government was required to prove with regard to acting as a foreign agent. It was enough, the court concluded, to show some degree of “direction” by the foreign government short of a direct employer/employee style relationship and sufficient evidence of that was presented here (it “lassoed enough stars to reveal a distinct constellation”). The court also held that the district court abused its discretion in ordering a new trial. Aside from issues related to the sufficiency of the evidence, the court held that there was no problem with the use of certain hearsay testimony (with appropriate limiting instructions from the district court) or with the lack of instruction related to Flynn’s role in the conspiracy, an issue which Rafiekian had not raised in the first place.

Remand Necessary to Determine Whether Counsel Made Strategic Decision Not to File Motion to Suppress

 US v. PressleyIn 2012 Pressley (and others) were under investigation for drug trafficking. Officers went to talk to Pressley and wound up interrogating him in one of their vehicles, causing him to make incriminating statements. Those statements played a large part in the Pressley’s eventual trial, where he was convicted on 13 counts related to drug trafficking. Pressley later filed a 2255 motion arguing that his trial counsel had been ineffective for failing to move to suppress the statements he made, claiming they were given without Miranda warnings. The district court denied Pressley’s motion without a hearing.

On appeal, the Fourth Circuit ordered the case remanded with instructions for the district court to hold an evidentiary hearing. Pressley’s version of events surrounding the statements, which must be accepted as true in the absence of an evidentiary hearing, showed that a motion to suppress would have had “some substance,” as it suggested the questioning was done in custody and thus Miranda warnings were required. However, the record did not show whether Pressley relayed those facts to his trial counsel or whether counsel made a strategic decision not to file a motion to suppress. As a result, the case had to return to the district court for an evidentiary hearing. However, the court did go ahead and hold Pressley was prejudiced by the use of his statements at trial (assuming they should have been suppressed in the first place).

Monday, March 01, 2021

Inert Explosive Is “Nonmailable Item” Triggering Criminal Liability

US v. YoungYoung was imprisoned for trying to kill his ex-wife and killing his ex-father-in-law. While incarcerated, Young used a contraband cell phone to run a drug conspiracy with the help of (among others) Volious. He also contacted whom he thought was a Russian bomb maker over the "dark web," who was actually an FBI agent, seeking a bomb to finish the job with his ex-wife. Young purchased what he thought was a bomb, which was delivered and prepared for shipping to the ex-wife's address, but it was, in fact, rendered inoperable by FBI agents and had only a small amount of explosives. Young and Volious were convicted of (among other things) aiding and abetting the mailing of a nonmailable item with intent to kill and were convicted.

On appeal, the Fourth Circuit affirmed their convictions. The primary issue was whether the inert bomb met the definition of a "nonmailable" item. Noting that the definition of nonmailable items included both "all explosives" and "other devices or compositions which may ignite or explode," the court held that the Government had only proceed under the "explosives" definition at trial. Applying the common meaning of "explosives," but excluding devices that would fall under the other relevant portion of the statute, the court concluded that an inert bomb met the definition of explosive and was nonmailable. The court rejected the defendants' argument that the small amount of explosives involved did not meet the statutory definition since there was no actual threat posed to anyone handling the package, relying on the fact that the statutory definition includes "all" explosives. The court also concluded that the evidence was sufficient to sustain their convictions. 

Lack of Explanation Precludes Review of Guideline Enhancement

US v. BurnleyBurnley pleaded guilty to a drug conspiracy. The charges arose from a traffic stop where Burnley, the driver, fled the scene, "rolling over" an officer's foot in the process (he was not injured). At sentencing, his sentenced was enhanced for reckless flight and for being a "manager or supervisor" of the drug conspiracy. He was sentenced to 264 months in prison, a significant downward variance from the applicable Guideline range.


On appeal, the Fourth Circuit affirmed the reckless flight enhancement, but vacated the manager or supervisor enhancement. On the reckless flight enhancement, the court agreed with Burnley that flight in a vehicle, standing alone, is not sufficient to trigger the enhancement. However, "there clearly was, in fact, something more here" and the "danger that Burley's flight created at that moment alone," when he ran over the officer's foot, was sufficient. On the leadership enhancement, the court did not conclude that it was not warrant, but did conclude that the district court had not sufficiently explained its basis for imposing the enhancement. In particular, the district court failed to consider the seven factors set forth in United States v. Cameron, 573 F.3d 179 (4th Cir. 2009), as required when deciding whether the enhancement applies. The explanation given by the district court was "insufficient to facilitate meaningful appellate review." Therefore, the court vacated Burnley's sentence and remanded for further proceedings.

Court Affirms Denial of Motion to Suppress Following Franks Hearing

US v. PulleyAlthough Pulley was ultimately charged with possession with intent to distribute hydrocodone (and pleaded guilty to that offense), he came to the attention of law enforcement while they investigated a series of pharmacy robberies. An informant had identified another man, Blunt, as one of the men involved in the robbery. The informant also identified the other person as Blunt's cousin called "Cuz." Blunt and Pulley weren't related, but "grew up together and were like family." Blunt was arrested and managed to hide a "distinctive, purple gun" (which matched the caliber used in the last robbery) in his cell, denying any knowledge of it when it was found (despite video evidence to the contrary). Blunt was also overheard in a jail call telling a friend he "threw out some clothes that were going to be important and that he needed those items retrieved and set aside." 

Blunt eventually began cooperating with police, naming Pulley as his accomplice and explaining that he could take police to the location where Pulley had discarded the clothes worn in the last robbery. The investigating officer was told that Pulley had been in jail when the first two robberies took place and began to have "serious doubts about the information's accuracy," but "nevertheless believed Pulley was involved in the robberies." Thus, a search warrant was obtained based on an affidavit that stated that Blunt "had provided information found to be credible by detectives" and did not mention that Blunt disposed of the clothing, that Pulley was in jail during two of the robberies, or that Blunt had smuggled the distinctive gun into the jail. As a result of the warrant, Pulley was charged with a drug offense and pleaded guilty after his motion to suppress was denied following a two-day Franks hearing.


On appeal, a divided Fourth Circuit affirmed the denial of Pulley's motion to suppress. Noting that Pulley "does not challenge the district court's finding that they affiant neither made false statements nor omitted information from her affidavit with the intent to mislead the state magistrate who issued the search warrants," the court went on to conclude that he did not meet his burden of provide that the falsehoods and omitted information were made with reckless disregard of whether it would make the affidavit misleading. In doing so, the court noted that "[r]eckless disregard is a subjective inquiry; it is not negligence nor even gross negligence." The court also made clear that it reviews the district court's conclusions on recklessness for clear error. The court also observed that "the affiant did not aver the suspect was credible in all matters."


Judge Keenan dissented, arguing that the record showed the recklessness required by the court and that the district court had failed to address all the alleged omissions.

Full Period of Sentence Served Partly Out of Custody Determined Application of Illegal Reentry Enhancement

US v. Velasquez-CanalesVelasquez-Canales pleaded guilty to illegal reentry. At sentencing, his Guideline range was enhanced for having a prior felony conviction with a sentence exceeding 13 months. Velasquez-Canales had argued it did not apply because for the relevant conviction, from North Carolina, although the sentence was 6 to 17 months, the last nine months were served on "post-release supervision" and therefore it did not meet the 13-month threshold. The district court disagreed and sentenced Velasquez-Canales to 36 months in prison, near the top of the applicable Guideline range.

The Fourth Circuit affirmed the sentence.  The court noted that the term "sentence imposed" in the illegal reentry Guideline has the same meaning as "sentence of imprisonment" in the general criminal history Guideline and that it is defined as the "maximum sentence imposed," regardless of whether it any part of it was suspended. Relying on prior precedent, the court rejected Velasquez-Canales's argument that the post-release supervision portion of his prior sentence was equivalent to supervised release and concluded it was part of the term of imprisonment.

ACCA Challenge Falls Outside Appeal Waiver; Virginia Robbery May Be ACCA Predicate

US v. WhiteWhite pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was whether he qualified for sentencing under the Armed Career Criminal Act. The district court concluded that he did, based on a prior Virginia conviction for robbery. White had argued that robbery in Virginia was not a "violent felony" because it could be committed "by means of threatening to accuse the victim of having committed sodomy."

On appeal, the Fourth Circuit certified the question of whether robbery in Virginia could be committed that way to the Virginia Supreme Court. White's argument was based on a 1890 state supreme court case in which, nonetheless, the defendant "presented a firearm and struck the victim." Finding "no controlling Virginia precedent to guide our decision," the court certified the question. In doing so, however, the court made to holdings relevant to ACCA issues regardless of how the certified question is answered. First, the court held that the Supreme Court's decision in Stokeling abrogated the Fourth Circuit's decision in Winston that Virginia's common-law based robbery offense did not have an element of violent force. That's why it was necessary to determine the certified question in the first place. Second, the court rejected the Government's attempt to dismiss the appeal altogether because White had waived his right to appeal in his plea agreement. The agreement contained an exception for appealing a sentence "in excess of the statutory maximum," which his ACCA sentence would be if he did not qualify for ACCA sentencing. Note that, regardless of the language in a plea agreement, a defendant can never waive his right not to be sentenced above the applicable statutory maximum, so the holding here really applies to any case where there's an appellate waiver.

No Reasonable Suspicion to Turn Interaction With Motorist Tending to Broken Vehicle Into Investigative Stop

Wingate v. FulfordThis civil case arises from a situation where the check engine light in Wingate’s car came on while driving late at night. He pulled over in front of a car dealership, opened the hood, and started to work on his car. A police officer saw the disabled vehicle and pulled in behind. After asking Wingate what was happening, he repeatedly demanded that Wingate produce identification. A second officer arrived and explained that there had been a series of catalytic converter thefts in the area and that Wingate’s situation was “kind of weird.” When Wingate persisted in not providing identification, he was arrested under a local ordinance that makes it a crime to refuse to provide identification to an officer “if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.” A search of Wingate’s care did not uncover anything that might be related to catalytic converter thefts.

All criminal charges against Wingate were dropped. He then sued the arresting officers under 18 USC 1983, arguing that his Fourth Amendment rights had been violated. The district court granted the officers’’ motion for summary judgment.


On appeal, the Fourth Circuit reversed the district court’s decision. The court noted that the officer’s initial engagement with Wingate “did not trigger the Fourth Amendment’s protection,” but that when he told Wingate “he was not free to leave until he identified himself,” that “unambiguous restraint on Mr. Wingate’s liberty” transformed the situation into an investigatory stop. Evaluating the circumstances of the incident individually and as a whole, the court concluded that there officers lacked reasonable suspicion “indicating the criminal activity was afoot.” The court also held that Wingate’s arrest violated the Fourth Amendment and that the local ordinance requiring drivers to provide identification is “unconstitutional when applied outside the context of a valid investigatory stop.” That is because “a valid investigatory stop, supported by Terry-level suspicion, is a constitutional prerequisite to enforcing stop and identify statutes.” Nor, the court held, were the officers entitled to qualified immunity on the initial detention, although they were on the arrest, given that no court had struck down such a statute previously.


Judge Richardson wrote a brief, concurring opinion, emphasizing that “we address only this case and not the constitutionality of applying an ordinance like this one outside the context of investigatory stops,” noting that it could apply in other contexts, such as sobriety checkpoints or border crossings.

Monday, February 01, 2021

SC Carjacking Is Violent Felony Under ACCA

 US v Croft: Croft pleaded guilty to being a felon in possession of a firearm in 2010. He was sentenced to 188 months under the Armed Career Criminal Act. One of the prior predicate offenses relied upon by the district court was a 2003 conviction in South Carolina for carjacking. In the wake of the Supreme Court’s 2015 decision in Johnson, Croft filed a 2255 motion arguing that he no longer qualified for sentencing under ACCA because his prior carjacking conviction was not a violent felony. The district court disagreed and denied his motion.

On appeal, the Fourth Circuit affirmed. The court noted that the South Carolina offense requires that the defendant act “by force and violence or by intimidation.” The issue, therefore, was what “intimidation” meant and whether it encompassed something beyond the threat of violent force. Although the South Carolina courts have not directly defined intimidation, the court held that it did not include such thing as threatening a victim with economic ruin and was restricted to threats of violence against that person. As a result, it met the definition of violent felony under ACCA.

No Franks Hearing Over Informant Credibility Issues

US v. Haas: Haas had several liaisons with a woman named "Sarah" via the website Backpage. During one of these, he told Sarah that he was interested in "younger women" and then later asked if she was interested in "what he was talking about last time." Sarah said she was, but, unbeknownst to Haas, she was working with law enforcement. Haas then showed her "probably like 1500" child pornography images on his laptop. As part of the ensuing investigation, the FBI got pictures of Haas and his home and verified his phone number. After further communication with Haas, during which he responded positively to Sarah's story that she had a friend in Baltimore who had children she would bring to Haas to create child pornography, Haas agreed to meet Sarah and give her $100 to give to her friend. 

On her way to the meeting, Sarah was pulled over for traffic violations by local police, whom she gave a false name (she did manage to get the $100 from Haas). A week later, she told the FBI agent working with her about the traffic stop, her using a false name, and her wish to "resolve the false-identity issue." The agent reached out to local police and Sarah was eventually arrested and charged with lying to police. Later, Sarah made a pair of recorded phone calls with Haas in which he discussed the plan with the friend from Baltimore. The agent obtained two search warrants - one for Haas' home and vehicle, one for his work truck and the laptop found in it - and did not mention in either application Sarah's arrest or lying to police. Myers unsuccessfully sought to suppress the fruits of both searches, seeking a Franks hearing based on the omissions from the warrant applications, and ultimately received a life sentence.

The Fourth Circuit affirmed Haas' conviction, but did vacate his sentence. On the Franks issue, the court held that Haas had not made a sufficient showing to warrant a hearing. Particularly with regard to the omission from the warrant application of Sarah's false statements, the court distinguished this case from its holding in Lull, noting that the informant's lie in that case was to the agent seeking the warrant, not other officers, that there was no evidence Sarah provided false information to the agent in this case, and that her misconduct did not lead the FBI to stop using her as an informant. The court also noted that nothing about Sarah's "unrelated criminal history so undermined her credibility" that it implicated the agent in omitting that information from the warrant application. As to Haas’ sentence, the court concluded that the district court had improperly applied a two-level enhancement because the offense involved a minor under 12 years of age. There was no actual minor involved, and the USSG 2G2.1(b)(1) only allows for fictitious minors to trigger the enhancement if the part is played by a “law enforcement” officer – otherwise, the enhancement only applies when an actual minor is involved. Since Sarah was not a law enforcement officer, the enhancement did not apply in this case.

Probable Cause to Arrest Where Multiple Passengers Disclaim Drugs In Car

 US v. Myers: Myers was the only passenger in a vehicle that was stopped for speeding and due to an overly aggressive window tint. In truth, the car (and Myers) was followed because an officer surveilling a bus stop that was a known locus for drug trafficking saw him get into the car and, based on the car’s travel thereafter, suspected he was involved with drugs. A search of the car uncovered drugs, a firearm, and cell phones. The driver admitted that the gun and phones were his, but both he and Myers disclaimed ownership of the drugs. Both were arrested and Myers was eventually convicted of drug conspiracy and sentenced to 75 months in prison.

On appeal, the Fourth Circuit affirmed. Myers argued that his arrest violated the Fourth Amendment because the officer lacked probable cause. The court relied on the Supreme Court's decision in Pringle, where the court held that when the occupants of a vehicle disclaim ownership in contraband found in the vehicle an officer can conclude that they are working in concert and has probable cause to arrest any (or all) of them. The court rejected Myers' attempt to distinguish Pringle on the grounds that the driver in this case claimed ownership of some of the things in the car and, therefore, it was more likely that the drugs belonged to him, rather than Myers.

Tuesday, January 26, 2021

Box Checked On AO Form Not Sufficient Explanation for First Step Act Decision

US v. McDonaldThis appeal involves three cases where defendants sought relief under the First Step Act's retroactive application of the Fair Sentencing Act of 2010. In each case, the defendants were convicted of offenses with life maximum statutory sentences that, with the application of the Fair Sentencing Act, now have 40-year maximums. All defendants received original sentences that were below the new statutory maximum. The district court found them all eligible for relief, but provided limited reductions - reducing only the terms of supervised release for all defendants. For one defendant, who was already on supervised release, the court did not similarly reduce his supervised release term on another count of conviction, meaning he got no relief at all. In all three cases the only thing the district court did to explain its sentence was fill out an Administrative Office form, checking boxes that the motion was "granted" and the supervised release term revoked.

On appeal, the Fourth Circuit vacated all these sentences. The court adopted the presumption from retroactive Guideline cases that the district court considered all relevant factors in decided a motion seeking a reduced sentence. However, that presumption can be rebutted and is in cases like these where the defendants present sufficient evidence of post-sentencing rehabilitation. In such cases, the district court must provide an individualized explanation for its resolution of the defendant's motion to reduce his sentence. In these cases, "it is not at all clear that the district court considered or gave any weight to [the defendants] post-sentencing conduct."

Congrats to the defender office in NDWV on the wins!

SR Condition Limiting Employment No Good, Others Are Based On Facts of Case

US v. HamiltonHamilton pleaded guilty to possession of child pornography and was sentenced to 120 months in prison, followed by a lifetime term of supervised release. Hamilton had corresponded with an actual minor for nine months (during which explicit photos were shared) and then convinced her to come meet him, where he repeatedly raped her. As part of his sentence, the district court imposed several special conditions of supervised release to which Hamilton objected: (1) that he could not work at any job without prior approval of his probation officer; (2) that he could not access the internet except when approved in advance by the probation officer; and (3) that he must not go or remain at any place where he knows children are likely to be.

On appeal, the Fourth Circuit vacated the first special condition, while approving the other two. As to the employment condition, the court concluded that it was overbroad and lacked a sufficient nexus to the offense he committed. Greater specificity is required for occupation restrictions (which, the court implies, can be imposed on remand). The court also noted that the condition was problematic because it provided the probation officer with unlimited, and unguided, discretion in enforcing it. The other two conditions, by contrast, were sufficiently related to Hamilton's offense and were not overbroad. As to the internet condition, the court noted that Hamilton used the internet to commit his offense and had a history of violating court orders that suggested a need for strict rules. As to the location condition, the court noted "Hamilton's inability to stay away from places that he ought not be" and thus the condition is necessary to protect the public.

Congrats to the Defender office in NDWV on the (partial) win!

Court Affirms 30-Year Sentence for Exploitation of Minor

US v. LesterLester was living with his brother, his brother's fiancé, and her three-year-old daughter when his brother discovered that Lester was in possession of child pornography. Among the 22,000 files of child pornography were those that showed Lester sexually molesting the daughter in her sleep. Lester admitted that those images were his, but denied producing them or having touched the daughter. He pleaded guilty to sexual exploitation of a child. His Guideline range was 324 to 360 months in prison, based partly on a two-level enhancement because Lester was "a relative of the minor victim when the offense occurred as he was her step-uncle." Lester did not object to those calculations, but argued for a downward variance (supported by the brother and his fiancé). The district court ultimately imposed a sentence of 360 months.


On appeal, the Fourth Circuit affirmed Lester's sentence, rejecting several challenges. First, the court concluded that the district court had sufficiently explained the sentence imposed and adequately addressed Lester's arguments (or properly refused to do so). As to a arguments related to Lester's need to treatment, education, and rehab, the court held that because the district court has no authority to order the Bureau of Prisons to do anything specific in those areas, there was nothing to address. Similarly, while the district court is required to address the arguments of the parties, it was not required to address the request of Lester's brother and his fiancé regarding his sentence. Nonetheless, the district court's conclusion that their testimony "did not compel a shorter sentence is patently obvious." In addition, because Lester made no specific argument related to the correlation of his age and chance of recidivism the district court did not need to address it. Second, the court held that there was no plain error in the application of the two-level enhancement. The court rejected Lester's argument that the enhancement only applied to actual family members, noting that the Guideline Commentary makes clear the actual relationship between the defendant the victim is what mattered, not the "legal status." Finally, the court held that Lester's sentence was not substantively unreasonable.

Thursday, January 14, 2021

Right to Appeal SR Conditions Imposed Only In Written Order Can’t Be Waived

US v. SingletarySingletary pleaded guilty to Hobbs Act Robbery. As part of a plea agreement, he agreed to waive his right to appeal the sentence that was "imposed." He was sentenced to 13 years in prison and a 5-year term of supervised release. Two conditions of that release were imposed in the written judgment, but not at Singletary's actual sentencing hearing.

The Fourth Circuit vacated Singletary's judgment and remanded for resentencing under its recent decision in Rogers, in which it held that such special conditions imposed in that manner are invalid since they needed to be imposed in the defendant's presence (mandatory conditions inherent in supervised release do not). The real issue was whether the Government's motion to dismiss should have been granted because of Singletary's waiver of his appellate rights. The court held that it should not be, because the issue raised was outside the scope of the waiver, noting that "the heart of a Rogers claim is that discretionary conditions appearing for the first time in a written judgment in fact have not been 'imposed' on the defendant." Because the waiver did not apply, the court did not address whether the fact that the Government filed its motion to dismiss months too late required it to deny the Government's request.

Congrats to the Defender office in Eastern North Carolina on the win!

SR Restrictions Restricting Internet Use, Access to Legal Pornography, Not Appropriate

US v. EllisIn 2013, Ellis was convicted of failing to register as a sex offender. Over the ensuing years, he had multiple revocations of his term of supervised release for violating various conditions. Among the conditions violated were failing to participate in sex offender treatment and lying about "daily pornography use and using devices to access the internet that are not approved." His latest revocation, the subject of this appeal, included failing to participate in sex offender and other mental health treatment. At that revocation, the Government argued that the district court should impose conditions of supervised release prohibiting Ellis from accessing pornography, both legal and illegal, or entering "any location where such materials can be accessed, obtained, or viewed" as well as a complete ban on Internet access. 

On appeal, the Fourth Circuit vacated those two conditions of supervised release. As to the pornography condition, the court held that under recent precedent the district court had not sufficiently explained why a prohibition on Ellis accessing legal sexual material was required. The court noted that there was no evidence presented linking Ellis' access to (legal) pornography to his violation conduct or chance of rehabilitation. Unsupported assertions from the Government was not enough. In addition, the condition was overbroad, as it would have prevented Ellis from going to many places (like libraries) where he might not access anything sexual, but they were nevertheless on the premises. The court also noted that the law does not allow the district court to impose a condition of supervised release as a "stick" to encourage a supervisee's good behavior. As to the internet condition, many of the same concerns applied, including that in the modern era a complete ban was impractical, particularly in case where the internet was not involved in Ellis' offense. The court ordered a remand "for the entry of a modified judgment striking those conditions of supervised release."


Judge Quattlebaum concurred in the result, and agreed that the conditions were a greater restriction on liberty than necessary, but took issue with the court's conclusion that they were not reasonably related to Ellis' history and treatment.

Congrats to the Defender office in Western North Carolina on the win!

VA Burglary, Attempted Rape Convictions Not ACCA Predicates

US v. Al-MuwwakkilIn 2001, Al-Muwwakkil was convicted of being a felon in possession of a firearm and sentenced under the Armed Career Criminal Act. After the Supreme Court's 2015 decision in Johnson, Al-Muwwakkil filed a 2255 motion arguing that he no longer qualified for such sentencing. The district court denied the motion, holding that Al-Muwwakkil still had enough ACCA predicates to trigger the enhanced sentence.

On appeal, the Fourth Circuit reversed. Al-Muwwakkil agreed that his two prior convictions for maiming in Virginia (all the priors discussed here were from Virginia) were ACCA priors, but argued that three others - burglary, attempted rape, and use of a firearm during an abduction did not. The court worked through each prior and agreed. As to attempted rape, the court concluded that the relevant statute was not divisible and could be committed in ways that did not require the use of violent force (including where the victim was an inmate or pupil). Applying the categorical approach, it could not be considered a violent felony. As to burglary, the court noted that under a recent immigration decision, the relevant statute was no divisible, either to the location involved (which extended beyond the "building or structure" in the generic definition of burglary) or the means of entry. Therefore, it could only qualify as a violent felony if it required the use of violent force. Because it did not, this version of burglary is not a violent felony, either. Finally, as to the abduction conviction, the court concluded that because that prior conviction had not been identified as an ACCA predicate in the original PSR, under binding precedent, the Government could not rely on it now.

Wednesday, December 23, 2020

Twitter Use During Trial Not Enough for Hearing on Juror Bias

US v. Loughry: Loughry was the Chief Justice of the West Virginia Supreme Court of Appeals when reporting emerged about wasteful spending by the justices. As a result of the ensuing investigation, Loughry was charged federally with 25 counts of fraud and "related claims" while being subject to impeachment proceedings in the state legislature. Loughry went to trial and, during voir dire, a juror ("Juror A") answered that she did not have any knowledge "of this case" or the "facts of this case," was familiar with the impeachment proceedings, and said she could set that aside and base her verdict only on evidence presented in court. Loughry was convicted on eight counts of fraud and two counts of making false statements. 


After trial, someone stopped Loughry's lawyer on the street and told him that he should investigate Juror A, particularly her Twitter account. Counsel learned that Juror A had liked or retweeted several tweets about the WVSCA scandal the summer before the trial. In addition, Juror A had liked a tweet on the day the Government began to present its case and both retweeted someone else and posted her own message later in the trial. All those tweets had to do with football, but counsel learned that among those that Juror A followed on Twitter were local reporters who had reported on the scandal and the trial, though there was no evidence that Juror A liked or retweeted any of their stuff during the trial. Loughry filed a motion for a new trial or an evidentiary hearing, which the district court denied.


A divided Fourth Circuit affirmed the denial of Loughry's motion for an evidentiary hearing (the only issue raised on appeal). First, the court concluded that Juror A's use of Twitter during the trial did not constitute misconduct. The court rejected the argument that the nature of social media made any potential juror contact with it during trial raises a presumption of prejudice. Thus, the court held, Loughry could not show "a credible allegation that an unauthorized contact was made" with a juror. As the court pointed out, the jury instructions about social media only prohibited jurors from consuming social media related to the case itself, not in general. Second, the court concluded that Juror A had not falsely answered any voir dire questions in light of having liked and retweeted material about the WVSCA scandal because that was not part of the "this case," noting that she had affirmatively answered that she had knowledge of the impeachment proceedings. Finally, the court held there was no error in failing to hold an evidentiary hearing on the issue of Juror A's actual bias against Loughry because there was no evidence to support it.


Judge Diaz dissented in part, arguing that Loughry was entitled to a hearing "to ascertain the full extent of Juror A's Twitter activity during the trial," noting that her activity on the two days during trial "indicates that she likely scrolled through her Twitter feed passively on at least some of the days when she didn't affirmatively interact with other accounts."

UPDATE: The Fourth Circuit has granted rehearing en banc in this case.

Making CP Must Be The Purpose of Enticement, Not Merely A Purpose

US v. McCauley: McCauley was in North Carolina when he began an online relationship with what turned out to be a 13-year-old girl. After weeks of talk online, she convinced McCauley to come pick her up from her home in West Virginia. McCauley did so and, after returning to North Carolina, introduced the girl to his mother and coworkers. McCauley and the girl had sex several times. During one session, McCauley recorded 19 seconds worth of them having sex on his iPhone. He never showed the video to anyone else, but did mention making it to a friend. Investigators tracked down the girl and eventually McCauley was charged with enticing a minor to engage in sexually explicit conduct "for the purpose of producing [a] visual depiction of such conduct." He was convicted at trial and sentenced to the 15-year mandatory minimum sentence.


On appeal, the Fourth Circuit reversed McCauley's conviction. At issue was the district court's jury instructions (given initially and then after a question from the jury) that the Government had to prove that the production of CP was a purpose of McCauley's engaging in sexual conduct, with said purpose being able to arise at any point during the sexual conduct. Relying on the text of the statute, the court concluded that the instructions lowered the burden of proof and what the Government must prove is that the production of CP was the purpose of engaging in sexual activity. Such purpose could not be "merely one in ten [purposes]" as the Government argued to the jury, In reaching that conclusion, the court took note of the severe mandatory minimum sentence that results from the conduct. The error in the instructions serious prejudiced McCauley's case and required reversal of his conviction.