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 013 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.

Ruan Argument Sufficiently Available at Time of Plea That Failure to Raise It Procedurally Defaulted Claim

US v. Dimkpa: Dimkpa was a physician who, in 2019, pleaded guilty to six counts of unauthorized distribution of oxycodone (all counts involving the same patient who was addicted to opioids and was given prescriptions after having tested positive for heroin or cocaine). In doing so, he was informed that the law (at the time) required only proof that his practices were outside of the usual course of professional practice, not that he knew they were. He was sentenced to 46 months in prison.

Years later, following the Supreme Court’s 2022 decision in Ruan, Dimkpa filed a §2255 motion arguing that his plea was invalid because the district court failed to inform him that the Government would have to prove he knew his prescriptions were outside the usual course of professional practice. The Government argued that Dimkpa’s claim was procedurally defaulted and the district court agreed, denying the motion.

On appeal, the Fourth Circuit affirmed the denial of Dimkpa’s §2255 motion, agreeing with the district court that Dimkpa could not show cause for his procedural default. Specifically, although Ruan announced a new rule that overruled then-existing Fourth Circuit precedent, it was not the kind of new rule that excused Dimkpa’s earlier failure to object. That is because, while any Ruan-style argument would have been unsuccessful, it was nonetheless “available” to counsel. This was particularly true as the Supreme Court’s decision in Rehaif, on which Ruan was partly based, had come down month prior to Dimkpa’s sentencing.

Court Affirms Contempt Conviction of Mother Whose Son Did Not Report to Serve Revocation Sentence

US v. Jameson: Steven Jamerson was on supervised release in 2023 when he was charged with violating several conditions. After his arrest, the court released Steven on bond, with his mother, Connie Jameson, as a third-party custodian. Connie was present at the bond hearing, agreed to be her son’s custodian, and that she “became responsible for his compliance with various conditions of release.” She also agreed that failure to do so could leave her “subject . . . to adverse consequences.”

Steven’s term of supervised release was revoked and he was sentenced to four months in prison, plus another eight months of supervised release. Rather than being immediately detained, Steven was ordered to self-surrender when instructed by the US Marshals Service. He was told at the revocation hearing that he was “released under the same terms of bond that you had when you came here to today.” Connie was in the courtroom for that hearing.

Steven and Connie were made aware of his report date, but Steven did not report as directed (he was arrested about a month later). Connie “did not take any action to ensure that the self-surrender occurred” and told investigators that “her son was a ‘grown person’ who was ‘old enough to be . . . responsible for himself.’” On the Government’s motion, Connie was held in criminal contempt and sentenced to three days in jail (stayed during the pendency of her appeal).

On appeal, the Fourth Circuit affirmed Connie’s contempt conviction. The court rejected her argument that, as of the revocation, there was no longer a “valid court order in pace” that required her to act as Steven’s custodian, holding that the Bail Reform Act allowed courts to extend bond to person following revocation and provide for self-surrender. The court also held that the bond order itself was clear enough to support a conviction for criminal contempt.

Delay In Bringing Charges Didn’t Violate Due Process Without Proof of Government Bad Faith

US v. Minkkinen: Minkkinen and his codefendant, Sambasivam, were charged with numerous counts arising from allegations that they used proprietary accounting software to produce their own rival product (it’s more complicated than that, but that’s the gist). A whistleblower complaint started the investigations (criminal and internal) in 2016, but an indictment was not returned until August 2022. In the meantime, two key witnesses died and documents relevant to the case were destroyed by third parties. The defendants moved to dismiss, arguing that the delay in bringing the indictment violated their right to due process. The district court granted that motion.

On appeal, the Fourth Circuit reversed the denial of the motion to dismiss. In order to prevail on a due process claim for delay, defendants must show actual prejudice from the delay, then the court must balance “the prejudice of the defendant with the Government’s justification for delay.” Here, the court “accepted for the sake of argument” that the delay prejudiced the defendants. Nonetheless, their due process claim failed because the Government’s reasons for the delay were not rooted in bad faith or an attempt to disadvantage the defendants. The court agreed with the district court’s findings (which the defendants did not dispute) that “the Government’s delay was the product of a ‘prolonged investigation’ untainted by any ‘improper motive.’” But Supreme Court and Fourth Circuit precedent requires more, which the defendants could not show on this record.

Supervised Release Search Condition Did Not Allow Warrantless Search of Property Occupied by Non-Supervisee

US v. Perez: Perez was on supervised release, one of the conditions of which was the he submit himself or property to searches directed by a probation officer. He owned a home on Teal Drive, which he rented to his girlfriend, Coleman (signed lease and everything), as well as one on Lawndale Drive, where he lived. After his probation officer received information that Perez was dealing drugs, police officers (at the probation officer’s direction) executed searches at both homes – Perez was at Teal Drive, Coleman at Lawndale Drive – which uncovered not only evidence indicating Perez might be staying at Teal Drive, but also about $25,000 in cash there. The Government seized the cash, arguing it was drug proceeds. Perez and Coleman both unsuccessfully challenged the searches, with each claiming part of the money.

On appeal, the Fourth Circuit held that the search of Teal Drive violated Perez’s rights under the Fourth Amendment and could not support forfeiture. The court first held that the condition of Perez’s term of supervised release that allowed searches of his property did not extend to Teal Drive, where Coleman resided, likening the situation to one where one party consents to a search of a jointly shared residence while another objects (as Coleman did), while also noting that a landlord cannot given consent to search his tenant’s property. The court also held that the police lacked sufficient belief – defined as probable cause – that Perez actually lived at Teal Drive (evidence of such recovered at Lawndale Drive was discovered while the other search was ongoing).

No Error In Joinder of Witness Murder and Marijuana Conspiracy Counts

US v. Mosley: Mosley was “friends and drug-trafficking partners” with Carter and Hightower. After Hightower was indicted for healthcare fraud and extortion, he singled out the complaining witness as a woman named Edmonds. The three worked together (while Hightower was detained) to kill Edmonds, but instead succeeded in Carter shooting and killer her neighbor. Mosley was charged with numerous counts arising not just from the murder of Edmonds’ neighbor, but the marijuana operation. He was convicted on all counts (in a joint trial with Carter) and sentenced to life in prison.

On appeal, the Fourth Circuit affirmed Mosley’s convictions. Primarily, Mosley argued that the district court erred by not severing his trial from Carter’s (who was not part of this appeal) and the murder charges from the marijuana charges. The court concluded, reviewing de novo, that the charges were properly joined at the outset and that the district court did not abuse its discretion in denying motions to sever. The court concluded that the “allegations connect Carter and Mosley to the same conspiracy” and that the “underlying marijuana offenses are essential to establishing the connection between” the three men. Even if there was an error, it was harmless. The court also rejected Mosley’s argument that the district court erred by denying Carter’s motion to suppress, as Mosley had no standing in the places searched.

Excused Juror’s Statements Don’t Show Bias, But Government Failed to Prove Statutory Loss Amount

US v. Umeti: Umeti and two codefendants created a scheme by which they utilized phishing scams and malware to “deceive businesses into executing wire transfers” into accounts they controlled. As a result, they were charged with numerous offenses, including wire fraud and conspiring to cause intentional damage to a protected computer causing a loss of at least $5000. During voir dire at Umeti’s trial (one co-conspirator pleaded guilty, the other’s “charges remain pending”), a potential juror indicated he “worked in cybersecurity,” his company “might have done some of the remediation work,” and “I’ve heard of the defendants.” He was struck for cause, but Umeti expressed concern that the entire jury had heard the statements which indicated “he had firsthand knowledge that the defendants . . . were involved in fraud.” Umeti was convicted on all counts. The district court later denied amotion for new trial based on the excused juror’s statements. Umeti was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed most of Umeti’s convictions, but vacated the computer damage charge. As to the excused juror, the court concluded that the district court did not abuse its discretion in denying Umeti’s new trial motion. Umeti could not show that he was entitled to a rebuttable presumption of prejudice due to an extrinsic influence on the jury because the excused juror’s statements were only “innocuous interventions” and “nothing” in his statements “show any disposition toward Umeti’s guilt or innocence.” As to the computer damage conviction, however, the court held that the Government failed to prove at least $5000 in damages were incurred, which raised the statutory maximum on that count from one year to ten. While the Government presented witness testimony from the impacted companies about things they had to do because of the hacking, specific amounts of loss were never mentioned, so the jury could not conclude that any particular amount of damages were done.

No Error in Precluding Cross-Examination About Decades-Old Drug Conviction

US v. Jones: In 2020 police in North Carolina were investigating Jones and his relationship to a particular drug stash house which he visited frequently. Evidence showed that he worked with others to bring marijuana from California to North Carolina for resale, along with other drugs. After a traffic stop of one of his associates, Jones was arrested at the stash house along with drugs, paraphernalia, and two guns. He was convicted at trial of various drug and firearms offenses and sentenced to 480 months in prison.

On appeal, the Fourth Circuit affirmed Jones’ convictions and sentence. His primary argument as to his convictions was that he should have been allowed to cross-examine his associate about his prior drug convictions from the 1990s. Jones argued that they were relevant because the associate was the only cooperator testifying and had “previous experience with federal sentencing” that “motivated him to do so.” The court disagreed, noting that the jury had already heard the witness was “testifying pursuant to a plea agreement in order to get a reduced sentence” and had testified to selling drugs before meeting Jones. The court also rejected Jones’ argument that the evidence was insufficient to connect him to the firearms at issue. As to sentencing, the court found no clear error in the imposition of enhancements for obstruction (based on jail calls directing people what to do with large sums of cash) and his leadership role.

Court Affirms Hate Crime Murder

US v. Ritter: Ritter would return to his rural, South Carolina hometown during the summers, when he engaged in a sexual relationship with a trans woman, Dime. While Dime was open about their relationship, Rigger tried to keep it a secret. Dime was killed, found in a car along the side of a rural road. She had earlier been pulled over for speeding and Ritter was in the passenger’s seat. Sometime later, Ritter appeared at his uncle’s house nearby asking for a ride. He also asked friends to help dispose of a gun and burn his clothes. He was eventually charged with killing Dime because of her gender identity and related charges. He was convicted at trial and sentenced to life in prison.

The Fourth Circuit affirmed Ritter’s convictions. Ritter argued that he should receive a new trial due to bias of a juror – a trans woman who talked to the media after the trial, but who stated that her identity didn’t have any impact on her decision and she “followed the evidence of the law and the judge’s instructions.” The court found no “manifest error” in the district court’s conclusion that the juror did not violate her oath of impartiality. Ritter also argued that he should have gotten a mistrial after a Government witness testified that someone else had heard that Ritter killed Dime. The court held that the district court’s curative instruction, coupled with the witness’ impeachment on that statement (including by the Government) cured any potential prejudice. Finally, the court held there was sufficient evidence to support Ritter’s conviction for killing Dime, concluding that Ritter’s desire to hide their relationship was due to Dime’s trans identity and therefore her “gender identity.”

Court Vacates Aggravated ID Theft Count for Because Use of ID Wasn’t “Crux” of Related Offense

 US v. McDonald: McDonald was the executive director of a local economic development authority in Virginia who was charged with 34 counts of fraud and identity theft related to her time there. At trial she argued the development authority had “entered into a secret settlement agreement” with her to resolve a sexual assault and harassment claim and “authorized her various frauds as a way to pay” her an agreed sum. She was convicted on all counts but one.

On appeal, the Fourth Circuit affirmed McDonald’s conviction, except for the aggravated identity theft count. On that count, the issue was whether the identity theft was the “crux” of the specifically identified fraud offense in the indictment. The court held it was not, that the use of someone else’s identity “was an element of her broader scheme to profit from fraudulent behaviors, but it was ancillary to the particular wire fraud charged.” Otherwise, the court found no abuse of discretion in the denial of McDonald’s request for mistrial due to the various delays (COVID and other health related issues, primarily) during the course of her trial.

Court Remands As-Applied §922(g)(9) Challenge for Factual Development, Application of New Post-Bruen Law

US v. Jacobs: Jacobs allegedly (that’s important!) fired a gun during a domestic dispute. Police responding to the report recovered a pistol and a rifle. Jacobs admitted to possessing the firearms and that he was felon who knew he could not possess him. He was ultimately charged both with being a felon in possession of a firearm, under §922(g)(1), and possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, under §922(g)(9). Jacobs successfully argued that both were unconstitutional under the Second Amendment as applied to Jacobs.

On an appeal by the Government, the Fourth Circuit reversed the district court’s decision and remanded for additional proceedings. As to the §922(g)(1) count, all agreed that, by the time of appeal, both facial and as-applied challenges were not available. As to the §922(g)(9) count, while facial challenges are no longer available, the Court has yet to address whether as-applied challenges are. The Court refused to apply the §922(g)(1) precedent on as-applied challenges to §922(g)(9), leaving open the possibility of a successful challenge. However, the Court noted the numerous factual issues that needed to be resolved and that the district court’s initial decision lacked the benefit of the Fourth Circuit’s post-Bruen cases. Therefore, the Fourth Circuit remanded for further proceedings on that count.

Misclassification of Defendant as Career Offender Harmless When District Court Would Impose Same Sentence Regardless

US v. Cox: Cox pleaded guilty to multiple drug charges. In the PSR, the probation officer identified two of his prior convictions as “controlled substance offenses,” making him a career offender. One of them was a 2009 drug conviction from Florida that applied not only to distribution and possession with intent to distribute but to purchasing drugs. The district court overruled Cox’s objection and imposed a sentence of 120 months – a “compromise” between the Government’s request for a bottom of the career offender Guideline sentence (151 months) and Cox’s argument for a nearly top-of-the-unenhanced Guideline sentence (104 months). The district court said it would impose the same sentence “in the event I am wrong” about the career offender determination because the un-enhanced Guideline would understate Cox’s history of recidivism.

On appeal, the Fourth Circuit affirmed Cox’s sentence. Although “there can be little doubt that the probation officer and the district court erred in their Guidelines calculations” (and the Government didn’t argue otherwise), the error was harmless. “The district court left no room for doubt as to what it would do upon any remand” and imposed the same 120-month sentence. Further that sentence was not substantively unreasonable.

No Due Process Violation in Shifting State Prosecution Theories

Richardson v. Frame: Richardson was involved in altercation with Cool, to whom he sold a batch of low-quality cocaine. Richardson beat up Cool and, according to her, took about $100 in cash she had in her apartment. Richardson was charged in West Virginia state court with assault and robbery (among other things). The robbery was charged under the portion of the West Virginia statute that requires the threatened use of force involving a weapon, rather than the portion that involved the actual use of force.

At trial, the Government pivoted and presented a case that turned entirely on the actual use of force. Richardson’s counsel did not object. Richardson was convicted of robbery and sentenced to 100 years in prison. On direct appeal the state supreme court found no fatal variance in Richardson’s trial and, in state habeas proceedings, rejected his argument that he’d received ineffective assistance of counsel. Richardson filed a §2254 petition, which the magistrate recommended granting, only to have the district court sustain the state’s objections and deny.

On appeal, the Fourth Circuit affirmed the denial of Richardson’s §2254 petition. Ultimately, the question came down to whether Richardson was prejudiced by the state’s change of theory at trial. The court held he was not, both because he was already on notice that actual violence was at issue (due to the assault charge) and because trial counsel’s defense strategy was that no money had been taken (and thus no robbery), rather than anything to do with the nature of the charged robbery. Given the required AEDPA deference, the court affirmed.

NOTE: I was counsel for Richardson in this case. 

Conviction for Advocating Participation in Jihad Following 9/11 Violates First Amendment

US v. Al-Timimi: Al-Timimi helped found a mosque in Virginia and was “viewed as a respected elder and a person knowledgeable about Islam.” Prior to the 9/11 attacks, a group of men at the mosque began planning to wage jihad overseas. Al-Timimi was not part of the group and when asked if he approved “didn’t endorse or reject the idea.” Later, he did “chastise them for making their training efforts too obvious” and encouraged them to “be more discreet.” After 9/11, Al-Timimi met with others (including some of the would-be jihadists) and told them (among other things) that they must “leave the United States” and “join the mujahadeen,” that it was “obligatory on all Muslims to go and defend Afghanistan,” and that “it doesn’t matter if we fight the Indians or the Russians or the Americans, that this is all legitimate jihad.” He also encouraged men to “go to Pakistan” and join and train with a particular terrorist group.

In 2004, Al-Timimi was charged with ten counts related to inducing or soliciting others to (among other things) use firearms, levy war against the United States, and aid the Taliban. All the counts were based on speech Al-Timimi had made. He was convicted on all counts and sentenced to a total of 360 months in prison. Twice Al-Timimi appealed, only to have the case remanded for additional proceedings, one of which resulted in several counts being vacated on Johnson/Davis grounds. In 2020, Al-Timimi was released to home confinement due to the Covid-19 pandemic.

On the third go around, the Fourth Circuit vacated Al-Timimi’s remaining convictions, concluding that they violated the First Amendment. The primary argument was whether his speech constituted incitement to imminent lawless action or rose to the level of facilitation or solicitation of unlawful conduct. The Court concluded it was not, applying the Brandenberg standard, which requires that the “advocated-for lawless action must be happening quite soon.” What Al-Timimi urged was “neither sufficiently imminent nor sufficiently definite to lose First Amendment protection,” with the court noting that he “specified no time from in which these actions should be completed and no details as to how they should be carried out.” His “exhortations were vague and general.” Al-Timimi’s speech “was not participation but merely encouragement,” which was not sufficient to support aiding and abetting convictions. Nor did he encourage, “with the requite intent, a specific unlawful act.”

Divided Court Concludes False Documents Submitted During Immigration Process Were “Required” and Covered by Statute

US v. Aborisade: Aborisade, who was not a lawyer, ran a “legal center” where he primarily helped clients file “various immigration petitions,” including those under the Violence Against Women Act’s “self-petitions” system for abused spouses. For those petitions, Aborisade used prior psychological evaluations and modified them for use by other applicants, as well as fabricating lease documents. His clients ultimately submitted the false documents as part of their petitions. Aborisade was ultimately convicted at trial of numerous counts, primarily of vias fraud and aggravated identity theft  and sentenced to 57 months in prison.

On appeal, a divided Fourth Circuit affirmed Aborisade’s convictions. The primary issue was whether the false documents at issue were “required” to be part of the applications at issue, as the statute required. The Court concluded that they were, holding that while those types of documents were not specifically required, some evidence was required to prove eligibility under VAWA and since those documents were that evidence it was “required.” The court also rejected Aborisade’s argument that he could not be convicted under the statute because he did not personally present the petitions (with the false documents) to immigration authorities.

Judge Heytens dissented, arguing that the statute does not require the submission of “any one document or type of document” and that the necessary proof could come from other sources, such as witnesses. Therefore, the documents at issue were not “required” under the statute.

No Sixth Amendment Speedy Trial Violation in Delay Between Defendant’s Travel to Pakistan and Prosecution on Terrorism Charges

US v. Chaudhry: In 2009, Chaudhry (a native of Pakistan who came to the United States as a child) and four others intended to go to Afghanistan to fight against US and allied forces. Before leaving, they created a “final message” video laying out their reason for waging jihad in this way. They left for Pakistan (from which they would cross into Afghanistan) where they were arrested. Questioned by the FBI two days later, Chaudhry adopted everything said in the video and explained that they “came for the sake of Islam to work with the Muslims.” A complaint was filed in the Eastern District of Virginia charging Chaudhry with providing material support to terrorists, but he was also charged, convicted, and sentenced in Pakistan. Charges in the US lingered until that sentence was completed. Chaudhry was extradited December 2023 and arraigned on an indictment a week later. After Chaudhry unsuccessfully sought to dismiss the indictment as untimely, he pleaded guilty and was sentenced to time served, to be followed by 20 years of supervised release.

On appeal, the Fourth Circuit affirmed Chaudhry’s conviction. Noting that his speedy trial challenge was made under the Sixth Amendment, not the Speedy Trial Act, the court concluded that the relevant factors did not fall in his favor. While the delay in him facing charges in the US did work in Chaudhry’s favor, the other factors did not. Particularly, the Government had made conscientious attempts to bring Chaudhry back to the US for years and Chaudhry did not assert any kind of speedy trial right until months after he was returned to the US.

Police Lacked Reasonable Suspicion to Extend Traffic Stop Based on Observations of Conversations With Others

US v. Hawkins: Police were surveilling a car in a high crime area. They knew the driver, Jonhson, was on supervised release following a drug conviction, but knew nothing about the passenger, Williams. Police followed the car to an apartment complex (know from prior drug investigations) where another man, Byrd (also known from prior drug investigations) approached the car, reached inside, and talked with the occupants. After Byrd walked away, Hawkins approached and got in the back seat.

Police initiated a traffic stop after the car drove away. The officer got slightly different answers about who Byrd was (Williams said he was asking for a cigarette, Johnson said they talked about a job) and summoned a K9 unit. The drug dog alerted and, while the officers did not find any drugs, they did find a firearm in Hawkins’ waistband pursuant to a patdown. Hawkins was charged with possession of a firearm after sustained a conviction for a misdemeanor crime of violence and unsuccessfully sought to suppress the firearm.

On appeal, the Fourth Circuit reversed the district court’s denial of Hawkins’ motion to suppress, concluding that the officer lacked reasonable suspicion to extend the traffic stop. It rejected the Government’s reliance on four factors – the “locations involved,” Johnson’s prior drug conviction, the interaction with Byrd, and the differing stories about Byrd. The court found that none of them, separately or taken together, created reasonable suspicion. The court rejected the Government’s position that the officer’s had witnessed a drug deal between Byrd and the others in the car, noting that they officers did not see anything exchanged between them or Byrd walking away with anything. The court also found that the stories about Byrd’s interaction were not so different as to be suspicious.

Congrats to the Defender office in NDWV on the win! 

Affirming Denial of Compassionate Release Based on Disparity Between Sentence and What Would Be Imposed Today

US v. Washington: In 2020, Washington was convicted on two drugs charges and sentenced as a career offender, ultimately receiving a downward variance sentence of 96 months in prison. In 2022, he filed a motion for compassionate release arguing that, if sentenced then, he would no longer be a career offender and would face a Guideline range of only 24 to 30 months in prison. the district court agreed that was a “compelling and extraordinary” basis for a reduced sentence, but ultimately denied Washington’s request after reviewing the §3553(a) factors.

A divided Fourth Circuit affirmed the denial of Washington’s compassionate release motion. The court rejected Washington’s arguments that the district court did not adequately consider the sentencing disparity and focused unduly on his criminal history (while also being “too dismissive of his rehabilitative efforts”). In doing so, the court noted that the district court in these cases is not required to engage with the defendant’s arguments with the same detail as in an original sentencing. Ultimately, the record showed that the district court “engaged with Washington’s arguments, articulated what factors it found important or unimportant to its decision, and stated the grounds for denying the requested relief.” That was enough.

Judge Berner dissented, arguing that once a district court finds extraordinary and compelling reasons exist to support a reduction it must “then assess the impact of that finding in relation to the relevant” §3553(a) factors.

Rejecting First Amendment Facial Challenge to Statute Criminalizing Teaching How to Make Explosives While Knowing Person Intends to Commit Crime of Violence

US v. Arthur: Arthur ran a business in which he trained “the average person to defend themselves” against “a tyrannical government,” producing literature noting that some of the tactics he taught “are wartime tactics” and “may be highly illegal.” In 2020, one of Arthur’s customers had “a fatal incident,” leading the FBI to send an undercover customer to Arthur. The undercover, who told Arthur that “the ATF’s been to my house” are “probably coming back” and “I want to be ready,” got in-person training from Arthur on “how to fortify his residence.” This included using attack dogs and an electrified fence to create a “fatal funnel” for approaching agents, at whom the undercover could “start lobbing . . . grenades on them with his freaking shotgun.” Arthur also said it “wouldn’t be a bad idea” to put explosive devices “right up around the doors,” noting that he kept one on his front porch.

Arthur was arrested and charged with multiple offenses, including under 18 U.S.C. §842(p)(2)(B), which prohibits a person from “teaching or demonstrating to any person” how to make or use explosives “knowing that such person intends to use” that information for, or in furtherance of, a crime of violence. He moved to dismiss that count as being facially overbroad under the First Amendment. The district court denied the motion and Arthur was convicted at trial on all counts. He was sentenced to 300 months in prison, based partly on the application of a terrorism enhancement under the Guidelines (although well below what the Guidelines recommended).

A divided Fourth Circuit affirmed Arthur’s convictions and sentence. Noting that Arthur’s challenge was a facial one, the court noted that the issue was whether §842(p)(2)(B) covered a substantial amount of protected speech. The court, however, concluded that it “is not at all clear” that it prohibits any protected speech. That is because the speech involved falls into the category of speech integral to criminal conduct which is not covered by the First Amendment. In particular, the court pointed to the statute’s requirement that any violation involve knowing that the recipient of the information is going to use it in relation to a crime of violence. Thus, the speech covered by the statute is a “far cry” from the kind of abstract advocacy of violence that is protected by the Fourth Amendment. The court also concluded that the terrorism enhancement applied as the undercover agent’s purported crime was one of terrorism and Arthur’s conduct involved, or was intended to promote, it.

Judge Gregory dissented, noting “concerns about the wide range of speech encompassed by the statutory language as well as the novelty of criminalizing speech when the speaker lacked specific in tend to commit a crime.”

Omissions from Warrant that Addressed Informant’s Credibility Did Not Require Suppression

US v. Glass: An officer obtained a search warrant for Glass’ home and electronic devices, based on the allegation of his ex-wife that she had seen “a massive amount of child porn saved on his phone.” The searches uncovered child sexual abuse material. Charged with multiple counts of receiving and possessing CSAM, Glass moved to suppress, arguing that the officer had failed to inform the magistrate judge of his ex-wife’s prior allegations against him (none of which resulted in any charge or arrest) and other details that might impact her credibility. The district court denied the motion and Glass went to trial and was convicted on all counts. He was sentenced to 15 years in prison.

On appeal, the Fourth Circuit affirmed the district court’s denial of Glass’ motion to suppress, concluding that he could not “satisfy his heavy burden” in challenging the sufficiency of the warrant application. The court held that the ex-wife’s allegations were “detailed and specific” with regards to the CSAM. The prior investigations, rather than undermining her credibility, bolstered it because “her report concerned a suspect who was likely involved in similar offenses in the past.” That the prior investigations “did not churn up concrete evidence” that led to charges did not mean those allegations had been fabricated. “Probable cause does not dissipate simply because a witness’s previous, similar reports against the defendant went without criminal consequences.” Nor were the other omitted facts (including any specific reference that the informant was Glass’ ex-wife) sufficient to defeat probable cause.

Court Lacks Jurisdiction to Consider Subsequent Untimely Filed §2255 Motion

US v. Robinson: In 2002, Robinson was convicted of drug charges as well as a pair of §924(c) firearms charges, resulting in a total sentence or 960 months. He filed numerous motions after his case became final, including an approved second-or-successive §2255 motion. In 2019, the district court reduced his sentence under the First Step Act to 601 months in prison. In 2022, Robinson filed another §2255 motion, this time without permission from the Fourth Circuit, arguing that he could not be convicted on both §924(c) offenses. The district court denied Robinson’s motion (1) because Robinson did not have permission to file another successive §2255 motion the court lacked “jurisdiction” and (2) even if it did, the motion was untimely.

The Fourth Circuit granted a certificate of appealability only on the first issue – whether the First Step Act reduction order was a new judgment from which Robinson could file a §2255 motion without permission. In his opening brief, Robinson sought to expand the certificate of appealability to cover the timeliness issue as well, but the Fourth Circuit denied the motion.

Ultimately, the Fourth Circuit dismissed Robinson’s appeal for lack of jurisdiction. That was because given the narrow scope of the certificate of appealability the court could not reach the district court’s ruling on timeliness and therefore even if Robinson prevailed on the first issue the court could not provide any relief on the second. It rejected Robinson’s argument that the district court’s timeliness ruling was a nullity because it came after the district court concluded it lacked jurisdiction. The court concluded that the second-or-successive requirements in §2255 and §2244 were not actually jurisdictional (the district court used the term too loosely), but claims processing rules, which meant it had the authority to rule on the timeliness issue (which the Fourth Circuit had already declined to review).

Court Affirms Convictions and Sentences for Trio Charged With Smuggling Arms Into Cameroon

US v. Nji: Nji and his two codefendants were part of the “Peanut Project,” a “group dedicated to sending weapons and ammunition to Anglophone fighters in Cameroon who were battling the Francophone government’s forces.” To that end, another project member named St. Michel (who had served in the US military) set up a “lab” where project members would “clean, prime, and refurbish ammunition” and “assemble firearms” that were then smuggled out of the United States. The operation came to the attention of US officials when a shipping container bound for Nigeria was opened revealing more than 35,000 rounds of ammunition and 39 firearms, none of which had serial numbers (9 were “privately manufactured,” while the others had been obliterated in the lab). The defendants went to trial and were convicted of conspiracy, smuggling, and transportation of firearms with obliterated serial numbers. All were sentenced to 63 months in prison.

On appeal, the Fourth Circuit affirmed the convictions and sentences of Nji and his codefendants. Of particular interest, the Court rejected two of the defendants’ arguments related to evidentiary rulings at trial. First, the court found no abuse of discretion in the district court’s exclusion of their proposed expert witness, who would testify about the conflict in Cameroon, and “avoiding a distracting, collateral mini-trial about the nature and merits of the conflict.” Second, the court also found no abuse of discretion in the district court’s ruling excluding a pretrial statement of a coconspirator regarding St. Michel’s alleged assurance that there was “no need for concern” with the operation. The court concluded that the witness could still assert his Fifth Amendment privilege (he’d yet to be sentenced) and that the pretrial statement was not admissible under FRE 807 because it lacked guarantees of truthfulness (including that it contradicted the declarant’s statements made under oath during his guilty plea). Finally, the court rejected the defendants’ asserted Rogers error, holding that where the supervised release conditions at issue were fully set forth in the PSR and summarized by the district court at sentencing they were sufficiently “imposed.”

Court Affirms Naturalization Fraud Conviction

US v. Palmer: Palmer, a native of Jamaica, sought citizenship in 2011. As part of that process he was asked (in print and in person) whether he had “ever committed a crime or offense for which you were not arrested.” Palmer answered “no” and became a citizen. But in 2013, Palmer pleaded guilty to a statutory rape in North Carolina that occurred in 2008 – prior to his naturalization process. As a result, he was charged with naturalization fraud in 2021. After unsuccessfully moving to dismiss for preindictment delay and to exclude the evidence of his state conviction at trial, Palmer was convicted and sentenced to six months in prison (to be served concurrently with his state sentence) as well as have his citizenship revoked.

On appeal, the Fourth Circuit affirmed Palmer’s conviction. The court affirmed the denial of the motion to dismiss concluding that Palmer could not demonstrate any prejudice due to the delay. The potential testimony regarding his “cognitive challenges” from his mother – who passed away prior to the federal charges – was not sufficiently specific. The court also noted that there were other sources of similar testimony (friends, coworkers, other family members) and that the “jury hear no shortage of evidence about Palmer’s” challenges. The court affirmed the introduction of evidence relating to Palmer’s prior conviction as well, noting that a state conviction could only be challenged collaterally in such situations due to the complete denial of counsel, not (as Palmer argued) due to ineffective assistance. Finally, the court concluded that the district court did err in limiting the testimony of Palmer’s expert witness regarding his mental capacity, but concluded that any error was harmless.