Court Failed to Make Findings That Firearm Used In Homicide Was One Listed in Indictment

US v. Revels: Revels was convicted of being a felon in possession of a firearm following an altercation in which she shot and killed a man (for which he was convicted in state court for manslaughter). The indictment charged him with possession of two shotguns, although it appeared he used a pistol in the actual shooting. The district court imposed a cross reference based on the conclusion that Revels used or possessed a firearm “cited in the offense of conviction in connection with the commission of another offense.” It imposed the statutory maximum sentence of 120 months in prison.

On appeal (for the second time) the Fourth Circuit vacated Revels’ sentence, concluding that the district court had not made sufficient findings to impose the cross reference. Specifically, it failed to link the pistol used in the homicide to the firearms (i.e., shotguns) listed in the indictment. The record did not make the matter “so obvious” as to permit the Fourth Circuit to fill the gaps and resolve the issue itself.

Court Continues the Limitation of Campbell With Delaware Drug Offenses

US v. Starkey: Starkey was convicted of a “federal drug-trafficking crime” and sentenced to 300 months in prison as a career offender. A basis for the career offender designation was to prior Delaware convictions for delivery of controlled substances. The district court rejected Starkey’s argument that those convictions did not constitute “controlled substance offenses,” and thus career offender predicates, under Campbell.

On appeal, the Fourth Circuit affirmed Starkey’s sentence. In a brief five-page opinion, the court put the Delaware statute at issue in the same box as other drug offenses it had previously held were not controlled by Campbell, applying the logic of Groves and other cases. Thus Campbell (to the extent its relevant in light of recent Guideline amendments) remains limited to West Virginia drug offenses.

Virginia Use of a Firearm in Commission of a Felony – Robbery, Specifically – Is Not Crime of Violence

US v. Scott: Scott was convicted of being a felon in possession of a firearm. At sentencing, his base offense level was enhanced due to a prior conviction being classified as a “crime of violence.” That offense was a Virginia conviction for “Use of Firearm in Commission of a Felony,” with the particular felony at issue being robbery. Over Scott’s objection, the district court concluded that the offense required the use or threatened use of force and was, therefore, a crime of violence. Scott was sentenced to 33 months in prison, the bottom of the advisory Guideline range.

On appeal, a divided Fourth Circuit reversed the district court’s decision and vacated Scott’s sentence. At bottom, the court concluded that either the firearm offense itself or the underlying felony (the elements of which must be proven beyond a reasonable doubt) had to require the use or threatened use of force, but neither did in this case. The court primarily focused on the underlying robbery offense, relying on its prior decisions in White and Parham, that held that Virginia robbery is not a crime of violence because of the rare (if not unique) means of potentially committing it by threatening to allege someone of committing sodomy, to conclude that, categorically, there was no requirement of force or the threat of force.

Judge Niemeyer dissented, noting that this decision creates a split with the First Circuit on the issue using a “commonsense reading of the statute.”

Attempted Armed Bank Robbery Is Crime of Violence

US v. Straite: In 2009, Straite and some associates robbed a bank in North Carolina, then returned a few months later to try and rob it again (they were foiled when the bank manager saw them coming and locked them out). He was convicted of armed bank robbery, attempted armed bank robbery (under 18 U.S.C. § 2113(a) and (d)), and two counts of brandishing firearms in connection with those offenses. The district court denied his subsequent §2255 motion seeking to vacate one of the firearm offenses because attempted bank robbery did not qualify as a “crime of violence.”

The Fourth Circuit granted a certificate of appealability on that issue and ultimately affirmed the denial of Straite’s §2255 motion. The court noted that in 1984 it had held that the elements of an attempted bank robbery were only (1) intent to commit such a bank robbery and (2) a substantial step toward the crime – which would not include an element requiring the use or threatened use of force. But it concluded that holding “appears to be in tension with the statutory text” of §2113(a), which states that whoever “by force and violence, or by intimidation takes, or attempts to take, from the presence of another . . ..” The key phrase (“by force and violence, or by intimidation”), the court concluded, modifies both “takes” and “attempts to take,” thus requiring the use or threatened use of force. The court contrasted that to the Hobbs Act, which “very clearly distinguishes between actual robbery and attempt.” In the alternative, §2113(d), under which Straite was also convicted, requires assault with a deadly weapon, which satisfies the force required to make it a crime of violence.

Court Affirms Theft Convictions, While Reversing District Court’s Failure to Order Forfeiture

US v. Mhana: Mahana ran a business in which he “paid in cash and below market value for fraudulently obtained latest-generation . . . electronics, which he then shipped in bulk to buyers overseas.” As part of the scheme, he had the devices “unlocked” so they could be used on any mobile network. He was convicted, after a jury trial, of multiple counts of transporting stolen goods, conspiracy, and money laundering. Although the indictment included a forfeiture provision, and the district court entered a preliminary order of forfeiture (for approximately $3.6 million), the district court ultimately refused to order forfeiture at sentencing.

On appeal, the Fourth Circuit affirmed Mhana’s convictions, but remanded with instructions for the district court to enter a proper forfeiture order. The court rejected several evidentiary arguments from Mhana. Primarily, Mhana argued that several spreadsheets compiling wireless user data, produced by wireless providers, were not “business records” because they were prepared in anticipation of litigation. The court held that in such situations the business record is the underlying data itself and later-compiled spreadsheets were admissible so long as the data they reflected were generated in the regular course of business. The court also rejected Mhana’s challenge to summary exhibits introduced by the Government which presented only selected data points for a series of transactions, rather than every data point available for those transactions. As to forfeiture, the court that under the applicable statute the court “shall” order forfeiture which “does not convey discretion.” The district court’s concerns of “double payment” of forfeiture and restitution didn’t matter.

Court Affirms – and then Doesn’t – Denial of Guideline-Modified Reduced Sentence on §3553(a) Factors

US v. Davis: In 2021, Davis pleaded guilty to being a felon in possession of ammunition, following his (unsuccessfully resisted) arrest and the recovery of a “privately made firearm” and fentanyl. In 2022 he was sentenced to 70 months, within a Guideline range that was boosted by a Criminal History Category calculation that included “status points” because Davis was on probation at the time of the offense.

In 2024, following retroactive Guideline amendments that limited the application of status points, Davis sought a reduced sentence under 18 U.S.C. § 3582(c)(2). He argued that he was “focused on his rehabilitation” while incarcerated, including pursuing a GED and working as an orderly, as well as completing several courses, but provided no documentation supporting those arguments. The Government argued against a reduction, noting that Davis had received several write ups, including one for threatening officials with bodily harm during an incident in which he was “placed . . . in four-point restraints” and “began yelling loudly in an angry voice” that he would call associates in Richmond “on your and your kids and they’re gonna’ kill you!” The district court (same judge from sentencing) found Davis was eligible for a reduced sentence, but found the relevant §3553(a) factors weight against a reduction.

On appeal, the Fourth Circuit affirmed the denial of Davis’ motion for a reduced sentence. The court found no abuse of discretion, as the district court followed the proper two-step process (determining eligibility then weighing §3533(a) factors) and provided a sufficient explanation for its decision. The court noted that the same judge who sentenced Davis ruled on his reduction motion (and the short time between sentencing and the motion), which meant a less detailed explanation was required. The court also rejected Davis’ argument that, given the reduced Guideline range, his sentence was now an upward variance without proper explanation, holding that “the district court here did not impose a sentence at all” and that the denial of a reduction does not undermine the lawfulness of the initial sentence.

NOTE: Nearly a month after this opinion came out, the court released a second one, stating that while the appeal was pending, Davis completed his term of imprisonment. As a result, “this case became moot and we lacked jurisdiction to opine on the merits.” The court thus vacated the original opinion and dismissed the appeal. I’m leaving the original decision information up for the sake of posterity/curiosity.

Court Sustains Conviction for Possession of Silences Based on Possession of Modifiable “Solvent Traps”

US v. Speed: Speed, a former software engineer and January 6 participant, began “panic buying” more than $40,000 worth of firearms and “related products.” Some of those were “solvent traps,” which can be used to catch solvents used during the firearm cleaning process. They can also be modified to function as silencers. Solvent traps typically cost under $20 and are made of plastic – the ones Speed cost up to $330 and were made of titanium (and weren’t apparently very well suited to work as actual solvent traps). In 2022, an FBI agent met with Speed, who admitted he was “prepping for possible civil unrest” and explained how to convert the traps to silencers. The FBI seized the traps, although they found none of the implements necessary to convert them into silencers. Speed was convicted of possession of three unregistered silencers and sentenced to 36 months in prison.

On appeal, the Fourth Circuit affirmed Speed’s convictions. Speed’s primary argument was that the solvent traps did not meet the legal definition of a silencer (which expressed itself in several issues related to his trial). The court disagreed, holding that the statutory definition of silencer did not require the device to be operable. In addition, there was sufficient evidence to support a jury’s conclusion that Speed knew how the traps could be modified to operate as silencers. Speed’s other overarching argument was that his conviction violated the Second Amendment. The court disagreed, holding that even if silencers were covered by the Second Amendment, “regulating arms through shall-issue licensing regimes is presumptively constitutional in the Fourth Circuit.”

FACE Act Charge Limited to Six-Month Potential Sentence Did Not Require Jury Trial

US v. Lefemine: Lefemine planned to protest abortion by blockading the entry to a local Planned Parenthood clinic – he gave police advanced warning (and was arrested without incident). After he did so, he was charged with a violation of the Freedom of Access to Clinic Entrances Act (“FACE Act”). The Act allows both for a maximum term of imprisonment of one year and a limitation of the maximum sentence to six months for “an offense involving exclusively a nonviolent physical obstruction.” The indictment against Lefemine cited to the one-year penalty provision, but the Government “subsequently filed an amended penalty sheet” invoking the six-month limit. The Government also was able to amend the indictment to change the relevant statutory citations. The district court refused Lefemine’s request for a jury trial, convicted him after a bench trial, and sentenced him to 60 days in prison.

On appeal, the Fourth Circuit affirmed Lefemine’s conviction, concluding that he was not entitled to a jury trial. Noting that the Supreme Court has held that an offense with a six-month or less statutory maximum is “presumptively petty” and therefore not entitled to a jury trial, the court held that the Government’s amendment to the indictment (to which Lefemine did not object) controlled. Nor did the potential $10,000 fine for a FACE Act offense mean that it could not be a petty offense.

Bag Stashed Outside on Property Where Defendant Might Have Had Expectation of Privacy Was Abandoned

US v. Lodge: Lodge was the subject of a traffic stop, from which he fled toward a nearby trailer, carrying a backpack. Lodge went to the front door, knocked, and attempted to place the backpack inside when someone answered the door, but the “resident quickly shot the door,” preventing him from doing so. Lodge ran to the rear of the property and was eventually apprehended, without the backpack. Officers searched the back yard and found the backpack next to a shed. Lodge admitted the backpack was his. It contained various types of drugs.

After being charged with drug offenses arising from that night, Lodge moved to suppress, arguing that the warrantless search violated the Fourth Amendment. The Government countered that Lodge had abandoned the backpack and, thus, could not challenge its search. The district court agreed with the Government.

On appeal, a divided Fourth Circuit affirmed the denial of Lodge’s motion to suppress. While the court concluded that the district court had erred in its basis for denying the motion (it failed to “meaningfully engage” with the issue that Lodge disposed of the backpack on private property in which he might have a legitimate interest), it sill reached the correct result. That is because the facts found in the district court – particularly that the resident of the trailer rebuked Lodge’s attempt to put the backpack inside – still showed that the backpack was abandoned and Lodge had relinquished any privacy interest in it (“the door being shut in Lodge’s face so too shut the door on his Fourth Amendment claim”).

Judge Gregory dissented. While he agreed “with much of the majority’s reasoning,” he “part[ed] ways on the remedy,” arguing that in light of the district court’s incorrect framework for its legal analysis vacation “for a proper abandonment analysis” was necessary.

Juror Lie About Being Subject of Prior Federal Ivestigation Did Not Demonstrate Bias

US v. Williamson: Williamson went to trial in the Southern District of West Virginia for drug and firearms charges. During voir dire, an eventually-seated juror explained that he had once been a police chief and, overall, a police officer for more than three decades. When the entire panel was asked if any of them had “ever been involved with any conflict, controversy, or litigation with any department or agency of the United States,” all answered “no.” Williamson was convicted on all counts and sentenced to 240 months in prison.

While his case was pending on appeal, Williamson learned that the juror had been part of “Team Mingo,” a group of Mingo County officials who were involved in various forms of corruption, including with drugs. While the juror was never charged as part of the Government’s investigation into Team Mingo, he was questioned and given a target letter. On remand, when asked why he didn’t explain all this during voir dire, the juror claimed that it had been long enough ago and hadn’t resulted in anything that he simply forgot. Williamson argued he was entitled to a new trial because the juror had lied to avoid disclosing an embarrassing part of his past. The district court agreed that the juror had lied, but concluded he had not been biased and denied the motion for a new trial.

On appeal, the Fourth Circuit affirmed the denial of Williamson’s motion for a new trial. Extending the required deference to the district court’s factual findings (including on the juror’s credibility regarding any bias), the court concluded there was no abuse of discretion in denying a new trial. Particularly, the court noted that the juror did not suggest he was biased either way due to his experience and that the district court’s factual finding on that matter was not clearly erroneous. Ultimately, the court concluded there had been no actual, implied, or inferred bias on the juror’s part.

Bags Taken During Arrest Would Have Been Subject to Multiple Inventory Searches

US v. Allen: Raleigh, North Carolina, police officers were searching a car when Allen rode through the scene on a bicycle, during which he “rode around the officers and patrol cars and also weaved in and out of the crime scene” for 10 to 20 minutes. Naturally, this got him arrested, which Allen vigorously resisted. Once he was handcuffed (but still struggling), an officer searched a pair of “cross body bags” that had been removed from him during the arrest. Inside were two firearms, drugs, and related items. Allen moved to suppress that evidence, arguing that the warrantless search of the bags was not proper under the search incident to arrest doctrine. The Government argued that it was, but that even if it wasn’t the bags would have been searched pursuant to local police department or jail inventory search policies. The district court granted the motion, holding that the initial search was improper and declining to apply the inventory search doctrine.

The Government took an interlocutory appeal and the Fourth Circuit reversed. Focusing on the inventory search argument (the Government preserved the search incident to arrest argument for potential Supreme Court review), the court rejected all the reasons the district court gave for not applying it here. First, the court rejected the district court’s flat out disapproval of the inventory search doctrine (calling it “one of my favorite cliches” which was “going nowhere”), noting that as lower courts they were bound by the Supreme Court’s pronouncements. Second, the court held that the district court erred by requiring the Government to provide a written policy from the local jail, reiterating that written policies are no required so long as there is evidence of regular procedures. Finally, the court “fail[ed] to understand the observation that the policies here lacked ‘enough regularity,’” noting that they both applied to every person arrested and all property in their possession.

 

Vacating Supervised Release Sentence for Failure to Address Sentencing Argument

US v. Mills:  Mills was serving a term of supervised release when he had an incident with this “then-ex-girlfriend” in which she alleged he “strangled and assaulted her.” Along with a petition to revoke his term of supervised release, Mills was also charged with state charges arising from the same incident. As a result, the revocation proceedings lingered for months. Ultimately, Mills was acquitted in state court, but his supervised release was revoked and he was sentenced to 24 months in prison with no further term of supervised release.

On appeal, the Fourth Circuit vacated Mills’ revocation sentence. First, the court affirmed the revocation itself, rejecting Mills’ argument that the district court had failed to properly consider the discrepancies between the ex-girlfriend’s revocation hearing testimony and state trial testimony. Such questions of credibility are, essentially, unreviewable on appeal. Second, however, the court concluded that the district court failed to adequately consider Mills’ argument for a lesser sentence – that during the lengthy period while his revocation was pending he had no issues on bond and committed no additional offenses. Such an argument was not frivolous and the court concluded that the “record does not reflect that the district court adequately considered or addressed that argument.”

Congrats to the Defender office in  ED VA on the win!

Officer Unlawfully Extended Stop By Questioning Car Occupants About Firearms

US v. Martin: Martin was a passenger in a car driven by Jarvis in a national forest in West Virginia. They first encountered a forest ranger when they had pulled over to look for mushrooms. After checking to see if they were lost or otherwise needed help, the ranger went on his way. About 45 minutes later, he encountered them again when he came across their vehicle parked on a one-lane bridge. Jarvis moved the car and the ranger pulled in just ahead of them.

When he approached Jarvis (both she and Martin had gotten out of the car), the ranger asked first asked for Jarvis’ license and whether there were any firearms in the car. Jarvis said there was. In spite of that, the ranger allowed Jarvis to get back in the car, twice, to get additional documentation. He found a gun under the driver’s seat and examined the serial number, but otherwise left it alone. He asked Jarvis if there was anything else in the car and she admitted there was another firearm under the passenger’s seat. The ranger eventually learned that Martin had a prior felony conviction. He arrested Martin, then took him to his nearby family picnic where the ranger informed Martin’s mother of the firearm and released Martin. Martin pleaded guilty to being a felon in possession of a firearm after the district court denied his motion to suppress.

On appeal, a divided Fourth Circuit reversed the denial of Martin’s motion to suppress. The ranger “exceeded the scope of the seizure by immediately engaging in a criminal investigation unrelated to the traffic violation warranting the stop” when he “immediately asked about the presence of firearms.” While such inquiries “would have been lawful if they were conducted during the course of a diligently conducted stop . . . that is not the case here” where the ranger “abandoned the stop from the very beginning.” It distinguished the court’s earlier decision in Buzzard, noting that the officer there was “mid-stop when he began questioning about the presence of firearms,” whereas the ranger “led the stop with that question.” Nor did the ranger ever return to the initial purpose of the stop, instead digressing into an investigation of firearms and potential ginseng poaching.

Judge King dissented, arguing that, as in Buzzard, the totality of the circumstances here justified the ranger’s questions about firearms.

NOTE: I was counsel for Martin on this case, along with my colleague Lex Coleman who did the oral argument.

ICE Enforcement of Deportation Warrant Is Not “Proceeding” Obstructed by Subject’s Escape

US v. Zeledon Hernandez: Zeledon came to the United States, unlawfully, in 2016 from El Salvador, fleeing gang violence. Having made a credible claim for asylum, he was released on bond and given a date for a future hearing. He did not appear for that hearing in 2019, leading to the issuance of a warrant of removal. That warrant was not executed until 2023, when Zeledon was arrested for DUI in Virginia. Convinced he’d be killed in El Salvador, Zeledon escaped prior to his deportation, only to be caught a few days later.

The Government initially charged Zeledon in a complaint with escape and acting to prevent his departure following a final order of removal. When it indicted him, however, it charged him with escape and corruptly obstructing a “pending proceeding,” rather that preventing his departure. The district court denied Zeledon’s motion to dismiss the obstruction charge, concluding that there was still a “pending proceeding” when he escaped, but acquitted him of the escape itself because it did not fit the bounds of the statute.

A divided Fourth Circuit reversed the denial of Zeledon’s motion to dismiss the obstruction count. At issue is whether the ICE enforcement of the removal order constituted a “pending proceeding.” The court held that it did not, noting that both the plain meaning of “proceeding” and the statutory context involved showed that the proceeding ended with the issuance of the order of removal in 2019. It rejected the Government’s argument that the ICE enforcement of the order itself was a “proceeding” under the statute. The court did note that Zeledon’s conduct would have been covered by the “acting to prevent his departure” charge from the original complaint.

Judge Wilkinson dissented, adopting the Government’s position that there was still a pending proceeding in the form of ICE enforcement.

Court Affirms Conviction Related to Distribution of Ginsburg Medical Information

US v. Russell: In 2019, images appeared on social media that appeared to show then-Justice Ginsburg was receiving treatment for cancer at GW University Hospital (which spiraled into conspiracy theories that she was already dead and that fact was being covered up). Investigation by the hospital led to Russell, who worked for a organ-donation non-profit and had access to the hospital’s records. The FBI interviewed Russell, with his boss present, and he agreed to turn over his home computer hard drive for examination. The drive he did turn over, however, was a secondary one that had recently been formatted. Russell was convicted, by a jury, of destroying and altering medical records and obtaining individually identifiable health information (he was acquitted of disposing of such information) and sentenced to 24 months in prison.

On appeal, the Fourth Circuit affirmed Russell’s convictions. First, the court concluded that there was no error in denying Russell’s motion to suppress his statement (and the evidence discovered as a result) because it was inherently coercive. While the presence of a person’s employer could be a factor that might lead to a coercive environment, nothing in the record showed such an environment resulted. Second, the court held that there was no error in limiting Russell’s cross-examination of one of those agents in an attempt to show bias, noting that the district court identified other ways to address the issue which counsel did not attempt. Finally, the court held that the type of information in the images at issue did constituted “individually identifiable health information” covered by the statute, as it included Ginsburg’s name, where she was being treated (including arrival & departure dates) and services provided.

Violation of Supervised Release Condition Prohibiting Drug Use Was Grade C Violation

US v. Jones: Jones was convicted of robbery and firearms offenses in 2014 and started serving a term of supervised release in 2024. Later that year, he was arrested on a revocation petition that alleged (among other things) that he been charged with felony possession of counterfeit instruments in state court and had repeatedly tested positive for using various drugs. A probation report calculated the advisory Guideline range as 8 to 14 months, using a Grace B violation as the most severe violation. At the revocation hearing, however, the violation based on the state felony was dismissed, while Jones admitted to the others. The district court nonetheless applied the same Guideline range and ultimately revoked Jones’ term of supervised release and imposed a sentence of 19 months in prison.

On appeal, the Fourth Circuit vacated Jones’ sentence. The court agreed with Jones (applying plain error), that the district court erred by concluding that Jones had committed a Grade B violation and calculating the Guidelines accordingly. The court rejected the Government’s argument that illegal drug use – a felony – “can be inferred” from the failed drug tests, holding that while such an inference might be made, the district court did not do so in this case.

No Error in Failure to Sever Main Fraud Counts from Related PPP Fraud Count

US v. Lawrence: Lawrence had a business that processed business payroll and distributed it to employees in the form of “a debit-like card” that could be either spent or cashed out. Unfortunately, Lawrence siphoned off funds for his personal use in options trading, which didn’t work out. After his company went out of business, he sought a PPP loan based on assertions that he still had payroll responsibilities to meet. For all this, Lawrence was charged with ten counts of wire and mail fraud for the payroll card scheme, plus one count of wire fraud for the PPP loan. He was tried, and convicted, on all counts together and sentenced to 87 months in prison.

On appeal, the Fourth Circuit affirmed his convictions. Primarily, the court addressed Lawrence’s argument that the district court should have severed his PPP loan count from the other fraud counts. The court disagreed, holding that while “the schemes themselves were distinct . . . they overlapped in material ways,” including proof and witnesses, and “the paycard fraud precipitated his PPP fraud.” Properly joined initially, there was no abuse of discretion in the district court’s failing to sever them prior to trial.

Complete Prohibition on Pornography Sufficient Individualized for Supervised Release Condition

US v. Castellano: Castellano served a 144-month sentence for transporting child sexual abuse material, after which he has had numerous revocations of his term of supervised release. At one point, one of the conditions of supervised release prohibited him from possessing any pornographic material at all (not just CSAM), but the Fourth Circuit vacated that condition as not being based on sufficiently individualized factors. Ultimately, he agreed to a condition that prohibited him from using a phone or computer to view any pornography, but it did not prevent him from possessing in in written or offline form.

As part of a fifth revocation proceeding (including violations of the agreed-to condition), the Government asked the district court to impose a complete ban on Castellano’s access to pornography of any kind. In support, the Government presented testimony from Castellano’s sex offender treatment provider recommending the condition – but also admitting that she recommended such a restriction for anyone convicted of involvement with CSAM. The district court imposed the condition.

On appeal, the Fourth Circuit affirmed the imposition of the complete prohibition on possessing pornography. Unlike when a similar condition was imposed earlier, this time it was based on Castellano’s particular history and characteristics, notably is multiple prior failures to comply with supervised release terms. The court rejected Castellano’s argument that the treatment provider’s blanket policy of such prohibitions in these cases showed that such individualized determination had not been made.

Divided Court Confronts Rogers Error Yet Again

US v. Tostado: Tostado was convicted (of what we don’t learn) and sentenced (to a term of imprisonment we never learn) after entering a plea agreement in which she agreed to “abide and be bound by the supervised release condition of warrantless searches . . . regardless of whether” that condition was “orally pronounced by the court at sentencing so long as” it was included in the written judgment. At sentencing, the district court’s explanation of the sentence was that a probation officer could search without suspicion “sometimes, for a safety issue, for example,” but the written judgment allowed for a search by “any probation officer in the lawful discharge of the officer’s supervision functions.”

On appeal, a divided Fourth Circuit vacated Tostado’s sentence and remanded for resentencing. All agreed that the search condition as explained at sentencing conflicted with the one in the written judgment (by expanding when an officer could search without suspicion), but the Government argued that it was not a “material” difference and therefore did not fall afoul of Rogers. The court disagreed (“we can imagine few more obviously material issues than when someone . . . is subject to searches the Fourth Amendment would otherwise forbid”) and proceeded to reject several other Government arguments as precluded by prior precedent. It also rejected the Government’s argument that any error was harmless (even assuming Rogers error could be harmless) due to the plea agreement provision, noting that it’s the district court, not the parties, that imposes conditions and that Rogers conditions are not “included in the judgement.” The court concluded by resolving an as-yet open question, that defendants do have standing to appeal judgments based on Rogers errors alone.

Judge Rushing dissented, arguing that the written judgement did not conflict with the orally pronounced condition, only clarified the district court’s intent and by looking to what Tostado agreed to in the plea agreement. More broadly, however, Rushing argued that “our Rogers jurisprudence becomes less coherent with each decision we render” and that “[a]t some point, we have to fix this mess.”

Juror’s Statements that He Knew Defendant’s Family and Was Worried if Defendant Wasn’t Convicted Did Not Warrant §2254 Relief

Daugherty v. Dingess: Daugherty was charged in West Virginia court with 16 counts related to four incidents in which he allegedly sexually abused his son. He went to trial on 12 counts (four were dropped prior to trial) and was acquitted on the eight substantive counts of sexual assault and abuse, but was convicted of four counts of sexual abuse by a parent or guardian.

After trial, it was discovered that a juror had said, during deliberations, that he knew Daugherty and his family and that he feared what might happen to he and his family should Daugherty by acquitted (a fear he said his fellow jurors should share). The trial court denied a motion for new trial, concluding that the juror’s statements weren’t extrinsic to the deliberations and not a Sixth Amendment violation. The WV Supreme Court agreed. Daugherty sought relief under §2254 in federal court, but the district court denied the petition, concluding that the WV Supreme Court had not unreasonably applied Supreme Court precedent to the issue.

On appeal, the Fourth Circuit affirmed the denial of Daugherty’s §2254 petition. The court noted that Daugherty’s argument was that the lower courts had erred by considering the juror’s two statements in isolation, rather than as a whole that gave them a certain meaning (i.e., that the juror had outside information based on his knowledge of Daugherty’s family and it informed his fears), but ultimately concluded that it did not need to decide that issue. Rather, regardless of how the statements were considered, they did not meet the Supreme Court’s standard for improper extrinsic influence on jury deliberations. The court concluded that the juror’s statements came from his own mental processes and could not be considered equivalent to information originating from “non-jury figures.”

NOTE: I was counsel for Daugherty in this appeal.

Whether Magazine was “Large Capacity” Was Ambiguous and Allowed Consideration of Guideline Commentary

US v. Holman: Holman was in a car accident, at the scene of which officer recovered a handgun (that had been reported stolen), with a magazine inserted, along with an additional magazine that matched the one in the firearm. Holman pleaded guilty to being a felon in possession of a firearm. In the PSR, the probation officer noted that the two magazines “contained a total of 32 rounds of ammunition” and, on that basis, recommended an enhancement for possession of a firearm with a “large capacity” magazine. The district court imposed the enhancement and sentenced Holman to 66 months in prison.

On appeal, the Fourth Circuit affirmed Holman’s sentence. Applying plain error review, and noting that Holman had not objected to the description of the magazines in the PSR, the court held there was no error in applying the enhancement in this case. The court concluded that “large capacity” is an ambiguous term and allowed resort to the Guideline commentary, which reasonably defined it as capable of accepting more than 15 rounds. The court also concluded that the firearm here was “quite obviously capable of accepting both his magazines,” given that they were the same and one was in the gun when it was recovered. The court went on to hold that any error could not have been plain, have affected Holman’s substantial rights, or been the type of error which the court should notice.

“Minor” In Enticement Guideline Is Vague Term Properly Defined in Commentary to Include Fictitious Minors

US v. Hodges: Hodges met a woman named “Alice” online, who had two daughter, aged 11 and 13, to whom he expressed his desire to engage in “family sexual relations.” After lots of talk back and forth, Hodges flew from his home in Montana to West Virginia to meet Alice and her children. Only Alice was a police officer and the children were fictional. Hodges was arrested at the airport and eventually pleaded guilty to two counts of enticement. His advisory Guideline range was enhanced based on the use of a computer involving a “minor” and because one “minor” was under 12 years of age. Hodges was sentenced to 324 months in prison, the bottom of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed Hodges’ sentence. His argument (on plain error review) was that the term “minor” was not so ambiguous as to allow resort to the Guideline commentary that define the term to involve fictitious minors (so long as they are portrayed by law enforcement). The court disagreed, finding no error, much less a plain one, in resorting to the commentary, concluding that the term “minor” was ambiguous (at least as to whether it included fictitious minors). To hold otherwise would be contrary to caselaw that allowed convictions for enticement in cases without a real minor and decisions of other circuits on this particular point.

NOTE: I was counsel for Hodges in this appeal.

Revocation of Supervised Release for Violating Rogers Conditions Required Remand

US v. McLaurin: In 2013, McClaurin was sentenced to 120 months in prison, plus five years of supervised release, following a guilty plea to possession with intent to distribute more than 5kg of cocaine. At sentencing, the district court imposed four special conditions of supervised release. In the written judgement, the district court imposed more than a dozen other “standard” conditions, including ones that required McLaurin to notify his probation officer of a chance in residence or employment and submit to visits from his probation officer. McLaurin did not appeal his sentence.

He was released from prison in 2022. In 2024, he was alleged to have violated several conditions of his term of supervised release, including failing to appear for home visits and not provide notice of a chance of address. He admitted to those violations (all others were dismissed) and he was sentenced to 90 days in prison, followed by 42 more months of supervised release. McLaurin did not object to the revocation or sentence.

On appeal, a divided Fourth Circuit vacated the revocation order and remanded for additional proceedings. The conditions to which McLaurin admitted were imposed in violation of Rogers and, thus, nullities. The court rejected several procedural arguments from the Government as to why McLaurin could not challenge his revocation, regardless. First, the court rejected McLaurin’s argument that a waiver provision in his plea agreement covered the appeal, holding that a Rogers claim is “distinct from a challenge to imposed sentences” because such conditions “were never properly imposed.” In other words, “McLaurin is not appealing his sentence or its related conditions” but “the 2024 revocation . . . based on invalid a null conditions.” Second, the court held the appeal was not untimely. Given that Rogers was handed down after McLaurin’s original sentence had become final, this revocation was the first “procedurally appropriate mechanism” for him to challenge it. Finally, the court rejected the Government’s reliance on cases holding that a defendant cannot challenge the substance of a condition in revocation proceedings, noting that none of them involved Rogers errors. Ultimately, the court concluded that prejudicial plain error had occurred that should be noticed and ordered that the case be remanded for resentencing.

Judge Niemeyer dissented, arguing that McLaurin was procedurally barred from raising the issue at this point, adding to the points addressed by the majority that McLaurin had invited error by admitting to violating the challenged conditions in exchange for other allegations being dismissed.

Congrats to the Defender office in Maryland on the win! 

Defendant Had Reasonable Expectation of Privacy in Google Drive Files, But Fourth Circuit Violation Was Too Attenuated

US v. Lowers: A Google Drive user uploaded 156 files to their account. Google’s hashtag-based algorithm flagged them all as child sexual abuse material (“CSAM”) and a Google employee reviewed 31 of them and confirmed that. All 156 files were reported to NCMEC, where an employee reviewed the same 31 files. Eventually , local law enforcement in Virginia got the tip and reviewed at least three other files, finding that the were CSAM.

A warrant based on that information led to a home family in Virginia and eventually their son, Lowers, in North Carolina. Lowers agreed to an interview with authorities and consented to a search of his phone (which revealed additional CSAM files. While Lowers was doing a second interview, authorities executed a warrant (based on “the entire investigation up to that point”) at his home, turning up hundreds of images and dozens of videos of CSAM. Lowers, after being charged with transporting and possessing CSAM, moved to suppress, arguing that the warrantless search of his Google Drive files violated the Fourth Amendment. The district court disagreed, finding Lowers had no expectation of privacy in those files and, even if there was a Fourth Amendment violation, the exclusionary rule should not apply.

On appeal, a divided Fourth Circuit ultimately affirmed the denial of Lowers’ motion to suppress, but on narrower grounds that the district court. Initially, the court held that Lowers did have a reasonable expectation of privacy in his Google Drive files. The court rejected the district court’s conclusions that because the files were CSAM and contraband (so identified by Google’s algorithm) Lowers could have no expectation of privacy in them, as well as the district court’s conclusion that Google’s terms of use would render any expectation unreasonable. That made law enforcement’s search of the additional files (beyond the 31 viewed by a Google employee) a Fourth Amendment violation not covered by the private search exception. Ultimately, however, the court concluded that the exclusionary rule should not apply because the violation was too attenuated from the evidence ultimately seized from Lowers’ home, given the passage of time and his consent to a search of his phone that revealed additional CSAM.

Judge King concurred in the judgment in a one-page opinion arguing that the private search doctrine should have been applied.

Defendant Who Previously Showed Prejudice in IAC Claim Fails to Show Deficient Performance on Remand

US v. Murillo: Carillo Murrillo (who goes by Carillo) pled guilty, pursuant to a plea agreement, to a cocaine conspiracy offense in 2016. An issue running through the plea negotiations was the immigration impact any conviction would have on Carillo – he refused, for instance, to agree not to contest his removal as part of the plea agreement. The district accepted his guilty plea “after confirming that Carillo understood he may be deported.” He was sentenced to 24 months in prison and (months later) learned he would be deported after serving his sentence.

Carillo filed a §2255 motion, arguing he received ineffective assistance of counsel because his attorney had not told him he would be subject to mandatory deportation as a result of his conviction. Without holding a hearing, the district court denied the motion, holding that Carillo could not show the required prejudice. The Fourth Circuit reversed on appeal, holding that Carillo had shown prejudice – noting that, without a hearing a factual findings, it was required to take Carillo’s assertions as true – and remanding for a hearing on whether counsel had rendered deficient performance.

On remand, Carillo argued that counsel had failed to advise him that, as a result of his plea, “he would be subject to ‘mandatory discrimination’ or ‘presumptively mandatory deportation’ . . . and would be statutorily ineligible for the discretionary relief of cancellation of removal.” The Government countered that it was enough that counsel informed Carillo he was “deportable,” relying on the fact that changed circumstances either in his home country (such as the outbreak of civil war) or in the executive (ultimately responsible for the deportation decision) made it impossible for defense counsel to say, with certainty, a person would absolutely be deported. The district court agreed and, again, denied Carillo’s §2255 motion.

On appeal, a divided Fourth Circuit affirmed the denial of Carillo’s §2255 motion. Noting that Carillo did not take issue with any factual findings made by the district court, the Fourth Circuit first rejected his argument that its initial holding that he had demonstrated prejudice “necessarily proved” deficient performance. The court held that it could assume deficient performance to address prejudice, which is what it did. The court then distinguished this case from prior precedent where counsel’s advice on deportation had been clearly incorrect, which was not the case here. Ultimately, the court held that counsel had performed her job properly by informing Carillo that a conviction would make him “deportable” and nothing more certain was required.

Judge Thacker dissented, arguing that prior precedent, from the Fourth Circuit and Supreme Court, compelled a finding of deficient performance.