Monday, September 16, 2019

Predicate conspiracy to possess cocaine under § 846 does not support enhancement under 2K2.1(a)(4)(A)

US v. Norman:  Thomas Norman received charges for being a felon in possession of a firearm, possessing heroin and cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime.  Police had an outstanding warrant for his arrest for violating the terms of his supervised release; when police pulled over Norman’s vehicle to arrest him pursuant to the warrant, they found a large amount of cash and a cell phone in Norman’s pockets.  Norman’s passenger, however, had a baggie in her hair containing cocaine residue; the police searched the vehicle and found further incriminating items. 

Norman moved to suppress and the district court denied the motion.  Norman was convicted after a bench trial.  On the basis of a prior conspiracy to possess cocaine and cocaine base with intent to distribute charge, Norman’s sentence was enhanced 6 levels under 2K2.1(a)(4)(A).  Norman objected to the conviction, but not the sentence. 

The government maintained that the warrantless search of Norman’s vehicle was valid as a search incident to arrest of the passenger.  The Fourth Circuit held that Normal offered no rebuttal to this argument, and that it agreed with the government.  Norman’s challenge to his conviction failed. 
Norman’s challenge to the six-level enhancement applied to his sentence was a winner, but because Norman did not object to his sentence, the Fourth Circuit reviewed for plain error and found that while an error had been made in applying the enhancement, the error was not plain, so it would not reverse. 

Here, the Fourth Circuit took the opportunity to clarify that Norman’s conspiracy to possession cocaine and cocaine base in violation of 21 USC § 846 is broader than the definition of the generic crime of conspiracy, so his conspiracy conviction does not qualify as a “controlled substance offense” under the Guidelines. Unfortunately, though, some earlier case law muddied the waters a bit, making the assumption that this conspiracy offense was a “controlled substance offense” sufficiently so murky, that it was not plainly an error for the district court to apply the enhancement, so the Fourth Circuit allowed the sentence to remain. 

Folks from Detroit are permitted to visit WV

US v. McCall:  In this appeal, Willie McCall appealed his sentence for distributing 1.2 grams of methamphetamine, on the grounds that the district court used improper bases to determine his sentence.  The district court varied upwards at sentencing, based upon McCall’s criminal history, as well as his out-of-state residence.  McCall hails from Detroit. 

McCall’s guidelines range was 30-37 months, and the district court imposed a sentence of 10 years, reasoning that the interstate aspect of McCall’s crime made it more serious.  McCall objected that, although he is from Detroit, nothing in the record reflected that the drugs involved in this case came from Detroit.  Without some support for the proposition that McCall bought his drugs in Detroit and brought them to West Virginia to sell at a profit, the Fourth Circuit found that the district court erred in relying upon it.   The Fourth Circuit notes that it held in 1977 that a court may not enhance a sentence based upon bias against out-of-state defendants.

While the interstate nature of criminal conduct may be a factor at sentencing, if it revealed something about the scope, organization, or dangerousness of the crime, but the mere fact of a defendant’s out of state residence alone failed to establish here that McCall had imported the drugs to West Virginia to sell.  McCall’s status as an outsider is not a valid basis for enhancing his sentence.

924(c) conviction vacated

US v. Walker:  In this appeal, the Fourth Circuit heard a challenge to a 924(c) conviction the defendant received in connection with a kidnapping conviction, for brandishing a firearm during and in relation to a crime of violence.  Walker challenged the validity of his firearms conviction, as contrary to Johnson.  The Fourth Circuit vacated the conviction and remanded for further proceedings.

As Walker raised this issue for the first time on appeal, the Fourth Circuit reviewed for plain error.  Luckily for Walker, the Supreme Court had recently considered this issue, and the Fourth Circuit placed this case in abeyance while the Supreme Court resolved the issue, to wit, whether § 924(c)(3)(B) was unconstitutionally vague.  The Supreme Court in Davis determined that the residual clause here was similarly unconstitutionally vague.

So, it was an error to find Walker guilty under the residual clause.  Further, the force clause does not apply because the supposed “crime of violence” here, the kidnapping, clearly did not categorically qualify as a crime of violence under the force clause. 

"woe until all users of the Internet" CP search warrant affirmed

USv. Bosyk:  In this appeal, the Fourth Circuit considered whether probable cause to support a search warrant for a residence existed, after an IP address, associated with the defendant’s home, accessed a link on a dark web forum that contained child pornography.  That “single click” was enough, according to the majority, to search the defendant’s home.  The dissent here stated the holding, “diminishes the constitutional rights of those who use the internet.”

The Fourth Circuit upheld the lower court’s decision here to deny Bosyk’s motion to suppress, affirming his five-year prison sentence.  Investigators executed the search warrant here four days after the “single click” and recovered devices containing thousands of images of child pornography, including the linked video described in the search warrant. 

Wednesday, July 31, 2019

2255 Relief for ACCA Sentence Based on Old GA Burglary, NC Drug Charges

US v. Cornette: Cornette was convicted of being a felon in possession of a firearm and sentenced under the provisions of the Armed Career Criminal Act. Among the prior convictions that provided a basis for his ACCA designation was a 1976 conviction in Georgia for burglary and a 1986 North Carolina conviction for possession with intent to deliver a controlled substance. Cornette was sentenced to 220 months. After Johnson, he filed a 2255 motion arguing that those two prior convictions no longer served as ACCA predicates. The district court denied the motion.

On appeal the Fourth Circuit reversed the denial of Cornette’s 2255 motion. To begin, it rejected the Government’s arguments on a pair of procedural issues. First, the court rejected the Government’s argument that Cornette couldn’t prove his ACCA designation came about because of the application of the now-unconstitutional residual clause, restating a holding from a prior case that if there’s any doubt as to whether the residual clause applied the benefit of the doubt went to the defendant. Second, the court held that the waiver Cornette agreed to as part of his guilty plea did not preclude his 2255 challenge because if he no longer qualified under ACCA the district court lacked the authority to impose a sentence greater than 120 months. Then the court examined each of the two priors and agreed with Cornette that they no longer qualified as ACCA predicates. As to the Georgia burglary, the court held that the statute was not divisible and was broader than the generic definition of burglary (even after Stitt), based largely on the fact that the Georgia Supreme Court didn’t narrow the definition of offense until just after Cornette was convicted. As to the North Carolina drug offense, the court held that under Simmons Cornette was not subject to a potential sentence of greater than 10 years in prison and therefore it could not be an ACCA predicate.

Congrats to the Defender office in WD NC on the win!

No Right to Jury Trial in VA Juvenile and Domestic Relations Court, So Nothing to Waive

US v. Locke: Locke was charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence (“MCDV”). There was no dispute that he possessed a gun or that he did so after having been convicted in Virginia of assault and battery against a household member. However, Locke argued that conviction could not count as a MCDV because of a provision that exempted convictions where the defendant had been “entitled to a jury trial” and did not “knowingly and intelligently waive” that right. Locke argued that he made no such waiver. The district court rejected Locke’s argument and he was convicted at trial.

A divided Fourth Circuit affirmed Locke’s conviction. The court explained that in the Virginia Juvenile and Domestic Relations Court (“JDR”) where Locke was prosecuted he did not have a right to a trial by jury. Since there was no such right, there was nothing for Locke to waive and he couldn’t take advantage of the exemption to the MCDV definition. While Locke would have had such a right had he taken an appeal from his conviction to the circuit court, since he did not he never had such a right. The court went on to hold, applying the “presumption of regularity” of guilty pleas that Locke could not demonstrate any infirmity in his state conviction anyway.

Judge Berger (sitting by designation from SDWV) dissented. She argued that Virginia generally provided a right to a jury trial for persons like Locke who were charged with a Class A misdemeanor and that state courts had upheld the JDR system against constitutionally challenges only because the appeal to the circuit court maintained the defendant’s right to trial. Thus, Locke did have a right to a jury trial that he never waived.