Government Can’t Identify New Potential ACCA Predicate at Sentencing and Waited Too Long to Invoke Appeal Waiver

United States v. Melvin: Melvin pleaded guilty to being a felon in possession of a firearm. In the PSR, the probation officer identified four prior convictions that they considered Armed Career Criminal Act predicates, three of which Melvin objected to. The Government neither filed a sentencing memo or objected to the PSR. At sentencing, the district court agreed with Melvin as to two of the predicates, leaving only two ACCA predicates. The Government then identified another potential ACCA predicate and explained that it hadn’t objected to the PSR about it because it was unclear what the basis for Melvin’s objections were and “based on seeing that there were four predicates.” Over Melvin’s objection, the district court granted a continuance for the parties to brief whether the newly identified offense was an ACCA predicate. At a subsequent hearing it concluded that it was and sentenced Melvin to 188 months in prison.

A divided Fourth Circuit vacated Melvin’s sentence. First, the court concluded that the Government had waited too long to invoke the appeal waiver in seeking to dismiss Melvin’s appeal. In response to both Melvin’s original brief and a “supplemental Anders brief” the Government had filed motions for “summary disposition on the merits.” It was only after Melvin got new counsel and the court struck the initial briefs that the Government moved to dismiss. That was too late, as the Government was required to move to dismiss at the time it filed its original response to Melvin’s initial brief. Second, the court held that, under Hodge, the Government could not identify an additional ACCA predicate at sentencing. It distinguished prior precedent on the ground that here the Government waited until after the district court’s ruling to assert the additional predicate, whereas in the prior case the district court had not yet ruled.

Judge Agee concurred in the holding on the waiver, but dissented on the merits, arguing that the majority imposes to great a burden on the district court and was contrary to prior precedent.

Request to Proceed Pro Se at Sentencing Was Timely When Made After Trial

United States v. Jaqu: Jaqu was charged with various drug and gun offenses and went to trial, where he was represented by counsel. After he was convicted on all counts, he decided he wanted to proceed pro se. He formally notified the district court of this “five months after the verdict by long before sentencing,” around the same time the draft PSR came out. After holding a hearing, the district court denied the request, concluding it was untimely because it had not been made prior to trial and it was within the district court’s discretion whether to allow it. Jaqu was sentenced to 388 months in prison.

On appeal, the Fourth Circuit reversed the district court’s decision. The court held that because Jaqu’s request was only to represent himself at sentencing and that request came before sentencing it was not untimely. That it had been several months since the jury’s verdict was irrelevant. As a result, the district court had no discretion to deny Jaqu’s request, pending a full Faretta hearing on remand.

Conviction for Promotional Money Laundering Conspiracy Requires Proof of Agreement to Reinvest Funds

US v. Jones: Jones was involved in scheme where people would make straw purchases of firearms in West Virginia which he and others would resell in Pennsylvania. He was charged with (among other things) conspiracy to engage in promotional money laundering with others in Pennsylvania, but not with the straw purchasers in West Virginia. He was convicted on that count (and others) and sentenced to 300 months in prison.

On appeal, a divided Fourth Circuit vacated Jones’ conviction for conspiracy to commit promotional money laundering. Whereas regular money laundering is about “scrubbing” the taint of funds acquired from illegal activity, promotional money laundering is about using the proceeds of illegal activity to reinvest in that activity. Here, the court concluded, the Government had not shown that Jones and the Pennsylvania resellers he was alleged to have conspired with ever had such an agreement. That illicit funds were used to pay expenses of the scheme (and those in it) was not enough.

Judge Quattlebaum dissented as to the conviction, arguing that the majority “misapplies Supreme Court and Fourth Circuit precedent” in its opinion.

Partial, Temporary Closure of Courtroom Not Structural Error

US v. Ellis: Ellis was part of a drug trafficking operation in North Carolina which included the alleged murder of an informant. Ellis was charged federal with drug and other offenses, with the murder being prosecuted in state court. On the first day of his trial, another cooperating witness, Russell, testified against Ellis. That night, a US Marshal reported to the district court that people seated in the gallery during Russell’s testimony appeared to be attempting to intimidate him (they “clicked their teeth excessively in ways that could be perceived as disagreement with the testimony being elicited”). The next morning, the Government and Russell’s counsel explained that they thought something was wrong with Russell during his testimony. Ultimately, and after an objection from Ellis, the district court closed the courtroom for the rest of Russell’s testimony (about an hour), except for members of Eillis’ family, who were allowed to remain. Ellis was convicted and sentenced to 480 months in prison.

On appeal, a divided Fourth Circuit affirmed Ellis’ convictions. While the court recognized that an erroneous complete closure of a courtroom was a structural error, the same didn’t apply to partial closures. Furthermore, partial closures did not require the same level of justification. Here, given the limited nature of the closure, both temporally and in terms of who was allowed to stay in the courtroom, the court found no error. While the district court did not make specific findings justifying its decision, the basis for it was apparent from the record.

Judge Richardson dissented, arguing that the closure was both error and structural.

Jury Instructions in Doctor Drug Dealing Case Didn’t Violate Ruan

US v. Ball: Ball was a doctor who, for seventeen years “practiced medicine from her home” and was charged with 20 counts of distribution of controlled substances and one count of conspiracy. At trial, the parties submitted a joint instruction that the Government was required to prove Ball “knew she was acting outside the ‘course of her professional practice.’” The district court removed “her” from the instruction, concluding that “the use of the possessive pronoun could get the jury hung up on this issue of idiosyncratic practice.” Ball was convicted on every count, save one of the distribution charges.

On appeal, the Fourth Circuit affirmed Ball’s convictions. Ball argued that the district court’s alteration of the jury instructions violated the Supreme Court’s decision in Ruan because “so long as she was acting in the usual course of her own professional practice – one that doled out generous quantities of opioids – she could not be found guilty.” The court disagreed, holding that “Ruan did not make the authorization wholly subjective and that the Government “must prove that the physician knew the prescription fell outside those objective bounds of medical practice or that he intended that result.” The instructions given “tracked the correct standard” and they were “not a model of clarity.”

Defendant Competent to Stand Trial Is Competent to Proceed Pro Se

US v. Snyder: Snyder was “a prominent Maryland attorney” for “nearly fifty years.” While representing kidney transplant patients in a suit against a Maryland hospital, he “developed a scheme in which he threatened to run a targeted advertising campaign against” the hospital “unless it agreed to pay him, personally, $25 million.” He would be a “consultant” to the hospital and, therefore, conflicted out of any future litigation against them. He represented himself at trial, in spite of several medical issues (a Parkinson’s diagnosis, a fall in the bathroom during a recess, etc.), refusing to do otherwise after questioned on multiple occasions. He was convicted of attempted extortion and other charges at trial. 

On appeal, the Fourth Circuit affirmed Snyder’s convictions, rejecting several of his challenges. First, the court held that there was no error in the district court not sua sponte revoking Synder’s right to represent himself. When Snyder’s counsel at oral argument conceded “that he was competent to stand trial at every stage of the proceedings against him” that was “fatal to his appeal of this issue,” as the court had previously held that “a defendant who is competent to stand trial is necessarily competent to waive his right to counsel.” And while the district court could have revoked Snyder’s right to proceed pro se it was not required to do so. Second, the court held there was no error in not giving a jury instruction that Snyder relied on the advice of counsel in proposing the consultancy because he had not shared the entire scheme with the attorney he consulted. Third, the court found no abuse of discretion in how the district court limited one witness’ testimony, given the non-disclosure agreement she signed related to her case against the hospital. Finally, the court held there was no error in the district court not conducting voir dire with the jury about whether they saw any news coverage of Snyder’s mid-trial contempt proceeding, given already given instructions about avoiding media coverage of the case.

Manual Search of Cell Phone at Border Is “Routine,” Does Not Require Particularized Suspicion

US v. Cardozo: Cardozo arrived at Dulles International Airport and, while going through customs, unlocked his phone at the request of customs inspectors. One of the inspectors took the phone and searched it manual for about two minutes, discovering images of child sexual abuse material. The inspectors had no particular reason to examine Cardozo’s phone. After he was charged with multiple offenses related to CSAM, Cardozo moved to suppress the images found on his phone. The district court denied the motion, Cardozo entered a conditional guilty plea, and was eventually sentenced to 18 years in prison.

On appeal, the Fourth Circuit affirmed the denial of Cardozo’s motion to suppress. The issue for the court was whether the manual search of Cardozo’s phone was “routine” and, thus, allowed at the border without any level of particularized suspicion. The court had previously held that forensic phone searches were not routine and required particularized suspicion and had blessed the manual search of a laptop at the border (albeit in a First Amendment challenge, not a Fourth Amendment one). The court found numerous reasons to distinguish the forensic search from a manual one – including the length of such a search and the kind of information that can be discovered – and concluded that it made such searches routine. As a result, inspectors did not need any reason to look at Cardozo’s phone.

Affirming Sentence Over Pro Se Objections Made During Sentencing Hearing

US v. Wable: Wable was on supervised release when his probation officer discovered an assault rifle in the trailer where he was living. Faced with revocation, Wable coerced another man into coming to court and claiming the gun, but the scheme fell apart during his testimony and Wable was returned to prison. When his revocation sentence was just about over, the Government indicted him for being a felon in possession of a firearm and witness tampering. After being convicted at trial, Wable was sentenced to 180 months in prison.

On appeal, the Fourth Circuit affirmed Wable’s sentence, based on two issues that were raised pro se by Wable at sentencing (while he was represented by counsel). The first was whether a 2006 West Virginia conviction designated “cultivating marijuana” in the PSR was a “controlled substance offense” that enhanced his based offense level on the firearm offense. Wable argued there was no such offense and that, based on admittedly contradictory state records provided on appeal, was a generic attempt offense rather than a drug offense. Applying plain error review (the pro se  objection was on a different basis), the court concluded that “had Wable objected to the classification of his conviction at sentencing, then the state records’ lack of clarity would weigh in his favor,” but was insufficient to show an error, much less a plain one.  Second, Wable had argued that the district court failed to adequately consider a pro se argument he made for a lesser sentence based on a “chemical assault” by guards at the regional jail one night during his trial. The court found no “abuse of discretion,” pointing out that the “district court noted repeatedly that it had taken into account all of Wable’s submissions.”

NOTE: I represented Wable in this appeal.

Affirming Denial of Coram Nobis Relief for Untimely Filing of Petition

US v. Giannone: In 2007, Giannone was convicted at trial of wire fraud and aggravated identity theft for his role in an online community to traded in stolen personal identification information. At issue at trial was whether the Government could link Giannone to the screen names used to setup the transactions. While in prison, Giannone made Freedom of Information Act requests to the Secret Service seeking records related to his case. In 2015, after his release from prison, he received “1000 pages of records.” In 2024, he filed a petition for a writ of coram nobis seeking to reverse his convictions, arguing that the Government had withheld exculpatory evidence at trial. The district court denied the petition as untimely. while also holding that the alleged errors were not “of the most fundamental character” as required for coram nobis relief.

On appeal, the Fourth Circuit affirmed the denial of coram nobis relief. Of the four requirements for coram nobis, all agreed that Giannone met two – there was no other remedy available and he suffered adverse consequences from the conviction. At issue was whether the petition was timely and the nature of the alleged error. The court agreed that the petition was not timely, holding there was no legitimate reason not to file the petition earlier. Recognizing “the effort required to sort through pages of governmental documents,” that did not “justify the eight-year delay” in this case. The court also held that the errors Giannone identified were not of the “most fundamental character,” as while the withheld evidence was favorable to Giannone it was not material, “given the evidence the Government put forth indicating that Giannone was the individual responsible for engaging in the relevant activities.”

Denying Collateral Challenge of Removal Where for Failure to Exhaust Administrative Remedies

US v. Gil: Gil came to the United States unlawfully, from El Salvador, in 1989. Upon completing a state prison sentence for several offenses (including attempted murder), Gil began removal proceedings, in which he sought asylum on the basis that he feared MS-13 members would kill him if he was returned to El Salvador. The immigration judge rejected that argument and ordered Gil removed. Gil’s counsel filed an untimely notice of appeal, resulting in the dismissal of his appeal.

Gil was found in the United States again and charged with illegal reentry. He moved to dismiss the charge, arguing that his removal order was unlawful because he was denied effective assistance of counsel with regards to the appeal of that order. The district court denied the motion and Gil was sentenced to 36 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Gil’s motion to dismiss. The court held that in order to successfully file such a motion in an illegal reentry case the defendant must have exhausted his administrative remedies during his immigration proceedings. Here, that meant making complaints of ineffective assistance of counsel to the immigration court. Because he failed to do so, Gil could not challenge his removal order in his illegal reentry prosecution.

Extension of Traffic Stop Based on Smell of Marijuana Didn’t Violate Fourth Amendment

US v. Carson: The manager of an apartment complex reported to Asheville police that a “group of young men” had been selling drugs in the parking lot. Officers conducted surveillance and “observed activity that was consistent with the property manager’s report” centered around a particular vehicle driven by Washington (who didn’t have a valid driver’s license). Weeks later, officers began following the vehicle (as Washington was driving), which “picked up speed and began driving in a more aggressive manner,” which led to a traffic stop. Carson was a passenger who was eventually ordered out of the car and frisked, uncovering a firearm. He was charged with being a felon in possession of a firearm and, after a motion to suppress was denied, entered a conditional guilty plea and was sentenced to 24 months in prison. 

On appeal, the Fourth Circuit affirmed the denial of Carson’s motion to suppress. Carson’s argument was that the officers conducting the traffic stop had unlawfully extended it under Rodriguez, turning it into criminal drug investigation without reasonable suspicion. However, the court relied on the finding of the district court that one of the officers smelled marijuana coming from the vehicle early in the stop and that nothing that could be construed as beyond the scope of a routine stop had occurred at that point. As a result, officers had the probable cause necessary to extend the stop.

Judge Berner concurred in the result, questioning whether the presumption flowing from an officer smelling marijuana (which is theoretically rebuttable) should be reexamined in light of the current legal status of marijuana.

Driver in Parked Car Was Seized by Police Cars Parked in Street; Police Lacked Reasonable Suspicion

US v. Williams: Williams and two others were in a parked white Mercedes in an apartment complex, with the parking spaces running perpendicular to the road that ran into the complex. Police received an anonymous 911 call (the details of which they received only through CAD reports) that identified the car and location and alleged that drugs were being sold, while also giving the call “normal” priority and noting there was no allegation that weapons had been seen. Police responded in two marked cars, although without lights or sirens running. One parked on the roadway in front of the Mercedes and the officers approached the car. The officers smelled marijuana and Williams, in the driver’s seat of the Mercedes, confirmed they had been smoking. Officers searched the car, finding firearm, which Williams admitted was his. Williams unsuccessfully moved to suppress the gun an was convicted of being a felon in possession of a firearm at a bench trial.

 On appeal, a divided Fourth Circuit reversed the denial of Williams’ motion to suppress. First, the court concluded that there had been a seizure when the police arrived and parked in such a way as to limit Williams’ ability to leave. While it was theoretically possible for Williams to pull out and drive away (and the officers testified they would have let him), it was impractical, given the spatial relationship of the vehicles. As a result, a reasonable person in Williams’ position would not have felt free to leave. Second, the court held that the officers lacked reasonable suspicion to make the seizure based on the 911 call. The anonymous call did not provide the kind of predictive details that indicated its reliability and the court rejected the Government’s reliance on Navarette, distinguishing it on numerous grounds. As a result, the motion to suppress should have been granted.

Judge Rushing dissented, arguing that the district court’s conclusion that no seizure had taken place was “well-supported.”

Congrats to the Defender office in WDNC on the win! 

Conviction for Civil Rights Violation Resulting In Bodily Injury Requires Proximate Cause

US v. Covington: Covington, a Bureau of Prisons official, and Farley, a BoP nurse, were both involved with an inmate, WW, who experienced a “medical crisis” (mental and physical) that lasted for more than a day and resulted in his death. Covington failed to seek medical attention for WW and Farley, after examining him, failed to call a doctor or have him taken to a hospital. Both were charged with depriving WW of his Eighth Amendment rights in a manner causing bodily injury or death and making false statements during the investigation of WW’s death. Covington was convicted on the civil rights charges (for causing injury, but not death), while Farley was acquitted, and both were convicted of making false statements. At sentencing, Farley’s Guideline range was enhanced based on events that occurred on the night WW died, which was two years before the false statement for which she was convicted.

On appeal, the Fourth Circuit vacated Covington’s civil rights conviction and Farley’s sentence. As to Covington, the primary issue was whether the Government was required to prove that Covington’s neglect was only a “but for” cause of WW’s injuries or that it was the “proximate cause” of such injuries. The court first concluded that the statute under which Covington was charged required a proximate cause standard, relying largely on law interpreting the statute covering conspiracies to deprive a person of their civil rights. That determined, the court held that the evidence was sufficient to sustain Covington’s conviction, but that the error in not instructing the jury on the proximate cause standard required a vacation of the conviction, noting the different standards of evaluating evidence in those two analyses. As to Farley, the court concluded that the district court erred in determining that the events of the night of WW’s death were relevant conduct for Farley’s offense of conviction. As such, it was required to vacate her sentence and remand.

Court Affirms Denial of Compassionate Release for Kidney Failure Inmate

US v. Holley: In 2020 Holley was sentenced to 127 months in prison following a drug conviction. At the time he argued that the district court should consider his “poor physical condition,” which included kidney disease. In 2023, Holley sought compassionate release (first from the Bureau of Prisons, then from the district court) on the basis that he now suffered from “end-stage renal disease” requiring dialysis and, ultimately, a kidney transplant the he could not get while incarcerated. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Holley’s compassionate release motion. The court held that Holley’s kidney failure was not a “terminal illness,” at least not categorically, and that the records provided by Holley showed he was not on an “end-of-life trajectory” and was “responding well to treatment.” It also affirmed the district court’s finding that the BoP was providing Holley with proper care, noting that nothing in the record showed Holley could not be considered for a transplant while incarcerated.

Court Affirms Sexual Abuse Convictions and Sentence for Former Teacher

US v. Brendann: Brendann was a teacher/advisor at an all-boys prep school (middle school), who engaged in a range of inappropriate behavior with students, up to and including sexual abuse and blackmail. He was convicted, after a trial, of child exploitation, possessing child sexual abuse material, and cyberstalking. He was sentenced to 35 years in prison, with an applicable Guideline “range” of life.

On appeal, the Fourth Circuit affirmed Brendann’s convictions and sentence, rejecting various challenges. First, the court held there was no abuse of discretion in the district court not holding a full competency hearing after Brendann reported suicidal thoughts on the first day of trial. The court noted that such thoughts are not, standing alone, enough to trigger competency concerns and that the other factors (including counsel’s statement that there was no other basis to question Brendann’s competency). Second, the court found no error in the denial of a motion to suppress evidence obtained from Brendann’s iPhone, concluding that there was neither interrogation nor coercion involved. Third, the court found that the Government had not withheld Jenks material for a witness who could not recall whether officers took notes of a statement he made, much less approved them as an accurate record of the conversation. Finally, the court found no error in sentencing, concluding that the district court properly considered (without giving much weight to) family and victim testimony.

No Plain Error Where Court Cites Need for Continued Psychiatric Medication as Basis for Sentence

US v. Melaku: In 2010, Melaku went on a spree in which he “fired multiple rounds . . . at various military-related sites” in DC’s Virginia suburbs (he was arrested at Arlington National Cemetery in possession of, among other things, “ammonium nitrate that he intended to leave or use on veterans’ grave markers”). He pleaded guilty to three charges, including a §924(c) count, in a binding plea agreement with a sentence of 25 years. After a competency hearing showed that Melaku was schizophrenic, but competent, the district court imposed that sentence.

After Davis, the Fourth Circuit vacated the §924(c) conviction and remanded for resentencing. After hearing further testimony on Melaku’s mental health and his treatment regimen, the district court ultimately imposed a sentence of 240 months in prison. In doing so, the district court stressed that it was “very important that you stay adherent to your medication regimen.” Melaku did not object.

On appeal, the Fourth Circuit affirmed Melaku’s sentence. Primarily, the court held that Melaku failed to show that any potential Tapia error was “plain.” That was because there was no clear guidance on whether concerns about maintaining a treatment regiment for a chronic condition was “rehabilitation,” nor could Melaku clearly show an error in that being part of the district court’s considerations, along with the need to protect the public. The court concluded that “forfeiture has consequences” and suggested the result might have been different absent plain error review.

Combined Incarceration and Home Confinement Terms Can’t Exceed Statutory Maximum

US v. Watson: Watson was sentenced in 2018 to a term of imprisonment and supervised release. If he violated his conditions of supervised release, he faced a statutory maximum term of imprisonment of 48 months. He did violate, “almost immediately upon leaving prison,” leading to the revocation of his term of supervised release. The district court imposed a sentence of 41 months in prison, followed by a lifetime of supervised release, to include as a condition that he serve home detention of approximately 21 months.

On appeal, the Fourth Circuit vacated Watson’s sentence. It agreed with Watson that the combined terms of imprisonment and home detention imposed by the district court exceeded the 48-month statutory maximum. They must be considered separate, as home detention is considered an “alternative” to incarceration. The court also rejected the Government’s argument that even if that was the case that home detention time didn’t not count as 1-to-1 equivalent to incarceration.

Congrats to the Defender office in South Carolina on the win! 

North Carolina 2d-Degree Murder Is “Violent Felony”

US v. Goode: Goode pleaded guilty to (among other things) being a felon in possession of a firearm, pursuant to a plea agreement with a broad appeal waiver. The probation officer identified three prior convictions in North Carolina that they argued qualified as “violent felonies,” including 2d-degree murder, triggering the Armed Career Criminal Act. Goode initially objected to the ACCA designation, but later withdrew them. The district court imposed a sentence of 360 months in prison.

On appeal, Goode’s argued that his firearm conviction violated the Second Amendment and that his prior murder conviction was not a violent felony. The Government moved to dismiss the Second Amendment argument under the appeal waiver, but moved for a “summary affirmance” on the ACCA issue, arguing that Goode couldn’t not show plain error. After the motion to dismiss the Second Amendment issue was granted, the Government filed a second motion to dismiss as to the ACCA claim.

The Fourth Circuit affirmed Goode’s sentence. First, it held that the Government had forfeited its right to seek dismissal of the ACCA claim because its response to Goode’s opening brief was to address it on the merits, rather than seeking dismissal. While subsequent Fourth Circuit law made it clear that the waiver would apply in such situations, that argument was there for the Government to make in this case, as well. Second, however, the court concluded that there was no error in the ACCA designation, plain or otherwise. Not only did 2d-degree murder in North Carolina require the use of force (even if by selling someone drugs upon which they overdosed), it required a mens rea more strict that recklessness.

 

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.”