Hobbs Act Robbery Not Lesser-Included Offense of Carjacking

US v. Whitley: Whitley and his girlfriend were involved with the robbery of a Peloton delivery truck, with Whitley climbing into the truck when it stopped at 7-Eleven and pointing a gun at the driver. As a result, Whitley and the girlfriend were charged and convicted both with carjacking and Hobbs Act robbery. The district court rejected Whitley’s argument that the robbery count was a lesser included offense of carjacking and, under Double Jeopardy principles, he could not be convicted of both. He received a sentence of 168 months (the girlfriend’s carjacking conviction was vacated via a post-verdict motion for acquittal – she got a sentence of time served plus supervised release).

On appeal, the Fourth Circuit affirmed Whitley’s convictions on both carjacking and robbery. At issue is whether the two offenses had the same elements under the Blockburger analysis. Whitley argued that they did, with carjacking having an additional intent requirement. The court disagreed, holding that they two offenses have different jurisdictional elements (which the Fourth Circuit has previously held is part of the Blockburger analysis). In essence, the court concluded that the jurisdictional element for carjacking is backward looking – had the vehicle in question moved across state lines in the past? – where the same element for Hobbs Act robbery was prospective – did the robbery obstruct, delay, or affect interstate commerce? That a carjacking may impact interstate commerce does not make the elements the same. The court also affirmed the sufficiency of the evidence underlying Whitley’s carjacking conviction, refusing to step into the debate of whether carjacking requires brandishing of a weapon “plus” something else, concluding that, in the light most favorable to the Government, the evidence demonstrated the necessary intent in this case.

Court Can Modify Announced Sentence During Same Sentencing Hearing

US v. Melvin: Melvin was sentenced to life in prison, plus 300 months, plus five years of supervised release in 1998. In 2020, the district court reduced his sentence under the First Step Act to 306 months and he was released from prison the next year. Melvin had mental health issues that manifested in accusations of state criminal law violations that led to him being charged with violating conditions of his supervised release.

The parties agreed to a sentence of time served and no further term of supervised release. The district court said it agreed, but Melvin asked to address the court. He then proceeded to launch into what his own brief calls a “stream-of-conscious outburst” and what the district court called “one of the worst outbursts it had never seen in an open courtroom” (that said, what’s quoted in the opinion is pretty much just griping about probation officers). The district court it would “withdraw its previous rulings” because Melvin was “a danger to the law and to law enforcement and to the probation” officers. After a five-hour recess, the district court ordered that Melvin was to remain on supervised release, although it also ordered him committed to a mental hospital.

On appeal, the Fourth Circuit affirmed Melvin’s sentence. All agreed that once a sentence was imposed the district court could not simply change its mind and alter the sentence – the main issue was when a sentence was “imposed.” Following other circuits, the court rejected Melvin’s argument that the sentence was imposed once the district court agreed to the parties’ recommendation. Instead, a sentence is not imposed until both a sentence has been “unequivocally announced” and there has been a “formal break” in proceedings that shows sentencing has concluded.

Cellphone Seizure Violated Fourth Amendment, But Error Was Harmless

US v. Horsley: Between 2016 and 2019, Horsley (and a pair of associates who eventually testified against him) was a drug “dealer and a mid-level distributor” in the Lynchburg, Virginia area. As part of the investigation of Horsley, police seized a pair of cell phones from his apartment at the time of his arrest and searched a Jaguar that allegedly belong to Horsley (in which was found cash and cellphones). Horsley unsuccessfully moved to suppress all that evidence and was convicted by a jury of conspiracy and possession with intent to distribute various controlled substances.

On appeal, the Fourth Circuit affirmed Horsley’s sentence. A primary contention from Horsley on appeal was that the cellphones seized at the time of his arrest, and specifically the one that contained evidence admitted at trial, was seized in violation of the Fourth Amendment. The court agreed, concluding that the seizure of that phone did not fall within the search incident to a lawful arrest doctrine. At the time of the seizure, Horsley was in handcuffs, on the other side of the bed from the table on which that phone rested, and was accompanied by numerous officers. Indeed, one agent testified that Horsley “could not have reached for the phones” because he was in handcuffs. The court rejected the Government’s reliance on its prior decision in Ferebee, which approved the seizure of a backpack following the defendant’s being placed in handcuffs. The court limited Ferebee, holding that it’s discussion of the search incident to a lawful arrest was dicta, as it had already held that the defendant there lacked standing to challenge the search in the first place. That said, the court concluded that the district court’s error in denying Horsley’s motion to suppress was harmless, given the strength of the uncontested evidence presented at trial. 

Ambiguous Record on Whether District Court Accepted Binding Plea Is Construed in Defendant’s Favor

US v. Dunlap: The Dunlaps, mother Vera and daughter Trecika, pleaded guilty to witness tampering after offering a bribe to a juror sitting on a drug case against Trecika’s brother (the juror called the FBI). The Government entered in a binding plea under Rule 11(c)(1)(C) for each with a 12-month-and-1-day sentence. At the plea hearings the district court never explicitly accepted or rejected the plea agreements, although a docket entry stated “Plea Agreement Accepted.” When the Dunlaps appeared for (separate) sentencings, the district court expressed concern about the agreed-to sentences (which the Government then decided had concerns, too) given the nature of the offenses. Ultimately, the court imposed sentences of 36 months in prison.

On appeal, the Fourth Circuit vacated both sentences. The Dunlaps argued that the record showed that the district court had constructively accepted their plea agreements, based largely on the docket entry notation, if it hadn’t done so explicitly. The Government argued there was no acceptance and the imposition of 36-month sentences was evidence they were rejected. The court concluded that the record was ambiguous as to whether the district court had actually accepted the plea agreements. In such situations, the court held that the benefit of the doubt goes to the defendant and the agreements are treated as accepted. As a result, the sentences were vacated and the cases remanded for the original agreed-upon sentences to be imposed.

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

Court Affirms RICO Convictions In Spite of Concerns Over Police Misconduct

US v. Banks: Banks and four codefendants were convicted after a joint trial for multiple offenses related to racketeering as part of the Murdaland Mafia Piru gang. The Fourth Circuit, for the most part, affirmed their convictions and sentences.

Of the man issues raised on appeal, three are worth highlighting. First, this case marks yet another chapter in the Fourth Circuit’s dealings with the corrupt Gun Trace Task Force of the Baltimore police department. In this case, one of those officers was involved in part of the investigation of the defendants, who moved for a new trial once the corruption was uncovered. The court affirmed the denial of the new trial motion, holding that the defendants could not show that any of the officer’s “criminal conduct” was material to their case. That he was corrupt was not enough, on its own, to warrant a new trial. Second, the court did vacate a felon-in-possession conviction for one defendant, Davis, due to a Rehaif error, as the prior conviction on which the Government relied was one that the state of conviction labelled a misdemeanor and for which Davis’ sentence had been suspended. He therefore met the plain error standard for relief. Finally, the defendants argued that the district court abused its discretion in admitting various “music videos, lyrics, and social media posts” of the defendants, arguing that they were irrelevant and unduly prejudicial. The court chastised the defendants for not specifically objecting to particular items, instead objecting with a “broad brush,” and proceeded the analyze the issue with similar generality, finding no abuse of discretion on the district court’s part.

Govt Doesn’t Forfeit Appeal Waiver Argument by Failing to Respond to Anders Brief

US v. Ashford: Ashford pleaded guilty to a drug offense pursuant to a plea agreement in which he waived his “right to contest either the conviction or the sentence in any direct appeal.” He was sentenced to 168 months. After sentence was imposed, the district court realized it hadn’t called on Ashford to allocute. Ashford spoke to the court, after which the district court said: “All right. Well, I believe I have announced my sentence.”

Ashford directed his attorney to appeal, which led to counsel filing an Anders brief raising only the possibility of ineffective assistance of counsel with regards to a Guideline enhancement. In response, the Government filed a letter stating that it didn’t intend to file a brief unless the court ordered it to do so. Ashford also filed a pro se brief, to which the Government didn’t respond. Months later, the Fourth Circuit sua sponte ordered briefing on whether Ashford had been denied his right to allocate. In its supplemental brief, the Government, for the first time, invoked the appeal waiver in the plea agreement.

The Fourth Circuit dismissed Ashford’s appeal. At issue was whether the Government was required to invoke the waiver in some fashion prior to its brief filed in response to the court’s supplemental briefing order. The court reiterated that the Government was not required to do so when the Anders brief was filed, as “we have consistently told the Government that it need not respond to Anders briefing unless we order otherwise.” In addition, the deadline for filing any brief by the Government under the initial briefing order had passed when Ashford filed his pro se brief (which did raise issues that implicated the waiver). The Government was not required to file a “rote response or letter reserving its right to assert an appeal waiver.”

Bribery-related Convictions for Long-Time Sheriff Affirmed

US v. McCabe: McCabe was elected Sherriff of the City of Norfolk in 1993 and served in that office until 2017. For most of that time, he engaged in a mutually beneficial relationship with suppliers of goods and services (food and medical care) to the jail he oversaw. In return for various financial rewards, McCabe would help his preferred providers bypass the open bidding process or help tailor the bidding process to benefit the suppliers. Eventually, McCabe was charged in a multi-count indictment, along with Boyle (who ran the medical provider) with numerous offenses, including conspiracy, honest services fraud, and extortion. McCabe went to trial first, was convicted, and sentenced to 144 months in prison.

On appeal, the Fourth Circuit affirmed McCabe’s conviction, rejecting several challenges. Primarily, McCabe argued that the district court erred by forcing him to go to trial first, instead of Boyle, arguing that this deprived him of the opportunity to use Boyle as a defense witness in his trial. The court disagreed, noting that nothing in the record suggested that even after a trial and conviction Boyle would have waived his Fifth Amendment rights and testified at McCabe’s trial. McCabe also challenged a district court ruling allowing two employees from testifying that McCabe’s “undersheriff” had told them that McCabe had requested that had directed provide confidential information about bids to the two providers. The court agreed with the district court that the statements were non-hearsay under Rule 801(d)(2)(D) because they were made within the scope of the undersheriff’s employment.  Finally, McCabe also challenged his jury instructions as running afoul of recent Supreme Court decisions narrowing the applicable fraud and bribery offenses. Finding first that McCabe had not properly objected to the instructions given, the court found no error in them, much less plain error.

Fourth Circuit Rejects Facial Challenge to § 922(g)(1)

US v. Canada: Canada was convicted by a jury of being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act in part due to a prior South Carolina domestic violence conviction that Fourth Circuit precedent at the time held was a “violent felony.”

On appeal, the Fourth Circuit affirmed Canada’s sentence, but vacated his sentence. As to his conviction, Canada argued that 18 U.S.C. § 922(g)(1) was facially unconstitutional under NY State Rifle & Pistol Ass’n, Inc. v. Bruen as a violation of the Second Amendment. The court quickly dispatched with that claim, holding (without any particular analysis) that the statute is facially valid, while leaving open the possibility that the statute could be challenged on an as-applied basis. This allowed the court to bypass fundamental questions about how Bruen applies, including the scope of “the people”  and whether history and tradition supports disarming felons (as well as bypassing some procedurally issues regarding the standard of review). As to Canada’s sentence, the court held that because his prior South Carolina offense could be committed recklessly (pursuant to a certified question to the state Supreme Court) it could no longer qualify as an ACCA predicate in the wake of the Supreme Court’s decision in Borden.

NOTE: It’s unclear to me whether Canada’s Second Amendment holding is still good after Rahimi, as the case was also a facial challenge and the Supreme Court resolved as such, instead of holding such challenges couldn’t be made.

Rogers/Singletary Error Really Requires Full Resentencing

US v. Mathis: In 2016, Mathis was convicted on numerous counts related to robbery and racketeering. In 2021, after a remand after one count was vacated on appeal, Mathis was sentenced to four concurrent life sentences (plus 48 years in prison) along with a term of supervised release. While recognizing that it was unlikely that any conditions of supervised release would ever come into effect, the district court imposed a condition requiring Mathis to submit “to warrantless search and seizure to ensure compliance with these conditions.” In the written judgment, however, that condition was expanded as to its scope and required him to notify third parties that their premises may be subject to search as well.

On appeal, the Fourth Circuit reluctantly vacated Mathis’ sentence and remanded for the third imposition of sentence in this case. There was no real disagreement among the parties that the written judgement expanded the condition applied at sentencing and therefore violated Rogers and Singletary. However, the parties did have different positions on a remedy. Mathis argued for the entire search condition to be struck, while the Government argued that the court should strike the portions of the condition in the written judgment that didn’t match the orally pronounced condition. Ultimately, the court concluded that Rogers and Singletary provided only one remedy in such situations – a complete resentencing (even in a case like this where supervised release conditions are mostly theoretical questions).

Fingerprint on Moveable Object Sufficient for Probable Cause

US v. Darosa: A metal and jewelry store in Charlotte was robbed at gunpoint. The owner of the shop said he’d seen a man “in a black mask and gloves at the door . . . writing in a small, black notebook.” In addition to taking some merchandise from the store, the robber also took the owner’s backpack, which contained a firearm. The notebook was left behind and seized at the scene. Police eventually got a warrant to search Darosa’s home, where they found incriminating evidence (including the stolen firearm). After unsuccessfully moving to suppress the evidence found during that search, Darosa was convicted at trial.

On appeal, the Fourth Circuit affirmed Darosa’s conviction. Specifically, with regard to the search warrant, the court found it was supported by probable cause. Darosa argued that the warrant was largely based on a fingerprint found on the notebook and that was insufficient, given the court’s prior decisions cautioning reliance on fingerprints on easily moveable objects. The court agreed that caution was appropriate, but noted that those cases involved sufficiency of the evidence at trial, and thus proof beyond a reasonable doubt, rather than the much lower burden of probable cause. Thus, it did not render the warrant insufficient. Even if it had, good faith would have saved its execution.

Guideline Commentary Applies to “Crime of Violence” Definition

US v. Campbell: While on supervised release in 2014 (following convictions for Hobbs Act robbery and using a firearm in connection with that offense), Campbell tried to rob someone during a drug deal and promptly shot the guy twice (once in each foot). Campbell’s term of supervised release was revoked, with the probation officer concluding this was a Grade A based on Campbell’s admission that he had engaged in attempted robbery which was a crime of violence. Campbell received a sentence of 28 months in prison (to run consecutively to a 120-month sentence on new charges).

On appeal, the Fourth Circuit affirmed Campbell’s sentence. He argued that, under an earlier Campbell decision, his attempted robbery conduct was not a “crime of violence” because it was attempt and inchoate offenses were only included in the definition of that term by the commentary. The court disagreed, distinguishing between the definition of “controlled substance offense” (at issue in the prior Campbell decision), with which the commentary was contradictory, and “crime of violence,” which at the time included a still-operative residual clause.* In the latter case, the commentary was consistent with the residual clause and therefore still applied.

* The clause was removed in 2016, making this case (which hung around a long time on appeal while other cases were decided) a kind of outlier in the modern Guideline landscape.

Period of Incompetency Excluded from Speedy Trial Act Calculations

US v. Minton: Minton was charged with being a felon in possession of a firearm “after an episode that started with him knocking on a stranger’s door to ask for a drink of water and ended with him pulling a gun.” Minton was charged on December 16, 2019, but found incompetent on June 11, 2020. After being transported for treatment, the district court held that Minton’s competency had been restored on September 27, 2021. Minton unsuccessfully moved to dismiss the indictment under the Speedy Trial Act and was ultimately convicted.

On appeal, the Fourth Circuit affirmed the denial of Minton’s motion to dismiss. The issue was a “pure question of law” – specifically, “how much of the 473-day period” between the incompetency/competency determinations “is included in the Speedy Trial Act calculation.” The court concluded that none of it was, based on the portion of the Act excluded any delay “resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial.” That provision is “absolute” and did not support Minton’s invocation of another provision that might exclude the 139-day period while he was waiting to be transported for treatment.

If It’s Error for Judge, Not Jury, to Determine Whether Prior Is “Serious Drug Felony” It Was Harmless

US v. Lee: Lee was charged with multiple drug and firearm charges, including a pair of drug charges with enhanced mandatory minimum penalties if he had a prior conviction for a “serious drug felony.” Pursuant to 21 U.S.C. §851, the Government filed an information seeking such enhancements based on a prior New York conviction. Both Lee and the Government took the position that the jury, not the district court, had to find the facts necessary to determine whether that offense was a “serious drug felony” (specifically whether Lee had served a term of more than 12 months in prison and whether he had been released within 15 years of the current offense), but the district court disagreed. It made the necessary findings, concluded that the prior offense was a serious drug felony, and sentenced Lee to 340 months in prison (include 280 months each on the two serious drug felony counts).

On appeal, the Fourth Circuit affirmed Lee’s sentence. Assuming, without deciding, that Lee and the Government were right that the jury should have found the necessary facts, the court concluded that any error was harmless. Both factual elements were “uncontested and supported by overwhelming evidence.” It also appears, from the brief opinion anyway, that the increased statutory penalties didn’t have any real impact on the eventual sentence imposed.

Filing of Information Sufficient to Satisfy Statute of Limitations

US v. Briscoe: In May 2015, Briscoe was involved in a drug trafficking operation when one of his sources was arrested. He learned that his other source was told to sell Briscoe 80 grams of narcotics to raise money for bail. Rather than purchase the drugs, Briscoe stole them, shooting and killing his other source and her 7-year-old son. On May 26, 2020, Briscoe was charged via information with a last alleged date of conduct (possession with intent to distribute) of May 27, 2015. An indictment was filed on July 1 (two superseding indictments were filed later). After his motion to dismiss for violation of the statute of limitations was denied, Briscoe was convicted at trial of six counts, including two counts of using a firearm to cause murder and one count of killing a witness. He was sentenced to life in prison.

On appeal, the Fourth Circuit affirmed Briscoe’s convictions, rejecting several arguments. Of particular interest, the court concluded that there was no violation of the statute of limitations. All agreed that the indictment ultimately returned related back to the originally filed information, but Briscoe argued that because he did not consent to being charged by information that it did not “institute” proceedings as required. The court disagreed, joining several other circuits, in holding that an information does institute proceedings. The court also rejected Briscoe’s argument that police use of a cell site simulator violated the Fourth Amendment because the Maryland state law procedure used by the officer required the finding of probable cause by a detached judicial officer.

Remand Require for Consideration of Whether Change in Law Was “Extraordinary and Compelling” Reason for Compassionate Release

US v. Davis: In January 2013, Davis pleaded guilty to conspiracy to possess heroin with the intent to distribute it, was found to be career offenders, and ultimately sentenced to 210 months in prison (about the middle of the Guideline range). In 2021, he filed a motion for compassionate release, on two grounds: (1) that he was uniquely susceptible to COVID-19 and (2) that under US v. Norman he would no longer be considered a career offender. The district court denied the motion, finding that Davis was not particularly susceptible to COVID-19 and that the proper vehicle for addressing his career offender status was a §2255 motion. At any rate, the district court concluded, the relevant sentencing factors would not support a reduced sentence.

On appeal, a divided Fourth Circuit partially affirmed and partially vacated the district court’s ruling. As to the COVID-19 holding, the court affirmed, concluding that Davis’ argument was “unpersuasive” because he could not show that his risk of contracting the disease, or suffering a fatal case of it, was higher outside of prison than inside. As to the career offender argument, the court concluded that the district court erred in viewing Davis’ argument as an attack on his original sentence. Rather, the court concluded that after the Supreme Court’s decision in Concepcion that “changes in law are fair game in compassionate release motions.” Thus, the case had to be remanded for the district court to consider the impact of the changed law and whether it was an extraordinary and compelling reason for a reduction.

Judge Rushing dissented and would have affirmed the district court’s decision, concluding that the district court’s consideration of the required sentencing factors demonstrated that it had considered all of Davis’ arguments and had a reasoned basis for rejecting his request.

Court Affirms Convictions, Sentences in Multi-Defendant Drug Racketeering Case

 US v. Hunt: Hunt and several codefendants were part of the “36th Street Bang Squad” in Virginia. They were charged with numerous counts related to drug trafficking, associated violence, and the use of firearms in connection to both. After a five-week trial, during which “the Government marshalled a mountain of evidence to support these charges,” the defendants were convicted “on most of the counts alleged in the indictment.” The defendants received sentences of between 180 months and life in prison.

On appeal, the Fourth Circuit affirmed the defendants’ convictions and sentence, rejecting numerous arguments. Of particular interest, the court provided additional analysis of the status of attempt offenses as “crimes of violence” after the Supreme Court’s decision in Taylor. As it did recently in US v. Lassiter, the court held that attempting to commit an offense that requires the actual use of force if completed is a crime of violence. The court also rejected the argument that three of the Government’s expert witnesses should have been excluded because their field of expertise – ballistics – is “categorically unreliable,” agreeing with the district court that such concerns went to the weight of the evidence, not its admissibility.

Abandonment of Bag Extinguishes Fourth Amendment Claim

US v. Frazer: The day after a shooting in Silver Spring, Maryland, a police officer saw two men – Frazer and Moore – walking through the area, each with “small black bags strapped across their bodies.” The officer thought that was suspicious, because the bags were useful for carrying firearms and easily disposable, but didn’t make contact with the men. Two weeks later, in the same area, the officer saw Frazer and Moore again, both with bags. After calling for backup, the officer decided to stop them for a “pedestrian violation” (they were walking down the middle of a road/apartment parking lot rather than on the sidewalks) – admittedly a pretext. When uniformed officers arrived, Frazer and Moore fled “through the apartment complex.”

Officers found Frazer and Moore in an open stairwell of one of the buildings and yelled for them to stop. Neither did, and instead “responded by climbing over the second-story railing of the stairwell.” Moore managed to escape (briefly), but Frazer, “who was hanging on to the second-story railing,” climbed back to the stairs and started walking down after the officer threatened to taze him. When ordered to drop the bag, Frazer “turned and walked away” to “the second-story railing where he had been dangling, took off his black bag, and threw it at least 40 feet away.” Frazer was arrested, the bag was seized, and a firearm recovered, along with some marijuana. He was charged with several firearm and drug offenses, and, after unsuccessfully moving to suppress the evidence found at the time of his arrest, was convicted of drug conspiracy, possession with intent, and being a felon in possession of a firearm.

On appeal, the Fourth Circuit affirmed the district court’s denial of Frazer’s motion to suppress. As to the stop itself, the court concluded that “Frazer’s headlong flight and noncompliance” with the officer’s commands “establish the necessary reasonable suspicion” to support the stop. The court noted that Frazer and Moore fled “while others in the community did not flee” and rejected Frazer’s argument that, as a Black man, he might have justification to run from police as being “without evidentiary support.” That is regardless of whether the “pedestrian violation” would have supported a stop in the first place. As to the search of Frazer’s bag itself, the court concluded that he “voluntarily abandoned the bag and that he lacks and Fourth Amendment standing to challenge the search.”

Illegal Reentry Prosecution Doesn’t Violate Due Process

US v. Sanchez-Garcia: This was a consolidated appeal for six defendants charged in the Middle District of North Carolina with illegal reentry. All filed motions to dismiss arguing that the illegal reentry statute, 18 U.S.C. §1326, was unconstitutional under the Due Process Clause due to the racially discriminatory purpose for its initial enactment. After hearing from expert witnesses on the matter, the district court denied the various motions to dismiss.

On appeal, the Fourth Circuit joined several other circuits in rejecting the Due Process claim. In doing so the court rejected the defendants’ argument that any racially discriminatory motive involved in passage of the 1929 predecessor to §1326 tainted the enactment of the modern statute in 1952. Specifically, the court concluded that the 1952 act was not simply a recodification of the original 1929 statute.

Sentence Package Doctrine Can Apply to Allow Reduction of Otherwise Non-Covered First Step Act Offenses

US v. Richardson: In 1996, Richardson was convicted of multiple counts related to drug trafficking, including one count of engaging in a Continuing Criminal Enterprise (“CCE”) and one count of distribution of crack cocaine. He was sentenced to concurrent life terms on both, along with statutory maximum terms of years on other counts. In 2019, he filed for relief under the First Step Act, arguing that it reduced his previous life Guideline “range” to 360 months to life. The district court concluded that Richardson was eligible for relief on the crack count, but exercised its discretion to deny relief.

On appeal, the Fourth Circuit remanded in light of it’s decision in Collington, which (at the time) required a reduction under the First Step Act if the defendant’s current sentence was higher than the newly applicable statutory maximum. The district court concluded that Richardson was not eligible for a reduced sentence on the CCE count because that was not a covered offense (based on intervening Fourth Circuit law), but reiterated its conclusion that he was eligible on the crack charge, reducing that sentence to 480 months, the new statutory maximum.

On appeal, for the second time, the Fourth Circuit vacated and remanded, for the second time. Since the last remand the court had held that Covington was no longer good law in light of the Supreme Court’s decision in Concepcion, meaning that the district court could have completely refused to reduce Richardson’s sentence. However, the district court also could have employed the “sentencing package doctrine” and exercised its discretion to reduce the sentence on the CCE count as well, if it was related to the crack count that was the First Step Act covered offense. The court rejected the Government’s arguments that the doctrine shouldn’t apply, concluding that it was ultimately up to the district court, in the first instance, to determine its applicability.

Intentional Murder Is VICAR “Crime of Violence”

US v. Tipton: In 1992, Tipton and Roane were convicted of multiple offenses related to a “rampage of . . . racketeering activity” that included several “firearm-related murders.” Among the offenses they were convicted of were charges for using a firearm in relation to a “crime of violence” or “drug trafficking crime.” In total, 13 of 24 charges against Tipton and 9 of the 11 charges against Roane were identified as predicate offenses for the firearm offenses. In the wake of the Supreme Court’s decisions in Davis and Borden, Tipton and Roane received permission to file successive §2255 motions challenging the firearm convictions, which the district court denied.

On appeal, the Fourth Circuit affirmed the denial of Tipton and Roane’s §2255 motions. Ultimately, the issue came down to whether murder committed in aid of racketeering (“VICAR murder”) remained a crime of violence, as “it is the only predicate offense underlying each and every one of the” firearm charges. The court concluded that it was. After first holding that the record showed that the VICAR offense at issue was murder itself, rather than conspiracy, the court went on to conclude that the elements of the offense require that there must be an “intentional murder” and, therefore, the use of violent force. Therefore, it is a crime of violence. Finally, the court concluded that Tipton and Roane could not show that there was a “more than a reasonable probability” that their firearm conviction “rested solely on some other, invalid predicate offense.”

Local Sheriff (and Deputies) Were “Agents” for Purposes of Federal Program Theft

US v. Underwood: Underwood was a sheriff in rural South Carolina who, along with a pair of deputies, perpetrated a scheme that saw them do private work while on the public payroll (to build Underwood a barn-sized man cave), skim additional compensation from a privately-funded drunk driving checkpoint program, and violate the civil rights of a resident who was arrested after filming the department’s response to an accident that took place in front of his home. For all this, the defendants were charged, and convicted at trial, of various offenses, and sentenced to terms of imprisonment of between 24 and 46 months.

On appeal, the Fourth Circuit affirmed all the defendants’ convictions and sentences. Among the issues raised by all defendants was whether the Government had presented evidence sufficient to prove they had committed federal-program theft (under 18 U.S.C. § 666(a)(1)(A)). They argued that there was insufficient evidence that they were “agents” of the particular county they worked for and whether that county had received more than $10,000 in federal benefits the preceding year. As to the first issue, the court concluded that the sheriff and his deputies were agents of the county, even though they were technically employees of the state of South Carolina, rather than the particular county that they served. That was because the definition of “agent” for the federal statute was broader than the concept of “employee” in state law and there was sufficient evidence that Underwood and the others were “authorized to act” on behalf of the county. As to the second issue, the court held federal grant money to the county (totaling $370,000) had enabled the county to purchase items, not simply be reimbursed for prior purchases. The court also rejected the defendants’ other challenges to their conviction and sentences.

Attempt to Commit Offense That Requires Actual Use of Force is 924(c) “Crime of Violence”

US v. Lassiter: In 2015, Lassiter was involved in an armed robbery in which a person was shot (Lassiter was a lookout and fired at witnesses while escaping, but did not hit anyone). As a result, he stood convicted (after a direct appeal) on five counts, including two counts each of attempted murder in aid of racketeering activity (“VICAR attempted murder) and discharge of a firearm in connection with a crime of violence – that being the VICAR attempted murder. On remand, Lassiter was sentenced to 300 months in prison.

On appeal, the Fourth Circuit affirmed Lassiter’s convictions and vacated his sentence. Lassiter’s main challenge was that his firearm convictions were no longer valid because VICAR attempted murder was no longer a “crime of violence,” but he had not raised that issue either in his initial appeal or upon remand to the district court. Lassiter argued that the mandate of the prior appeal did not prevent him raising the issue because the “controlling legal authority has changed dramatically,” based on the Supreme Court’s decision in Taylor, which held that attempted Hobbs Act robbery is not a crime of violence because it can be committed without the use or threatened use of violent force. VICAR attempted murder, the court held, could be committed in such fashion, because the substantive offense (murder under Virginia law) required the actual of force the attempt to commit that offense involved the attempted use of force. Specifically, the court rejected Lassiter’s argument that Taylor applied to any attempted offense that might be a crime of violence, limiting it to attempted Hobbs Act robbery. The court did vacate Lassiter’s sentence due to a Rogers error in the imposition of conditions of supervised release.

FRE 414 Doesn’t Limit Admissible Evidence to Incidents Involving Minors Under 14 Years Old

US v. Hoover: Hoover was arrested on state charges relating to taking indecent liberties with a minor. Further investigation uncovered videos of child pornography, which led to the identification of two minor boys, one 17 the other 12, who Hoover had recoded performing sexual acts. Hoover was charged with two counts of production of child pornography (one for each victim) and one count of possession. He was convicted after a one-day trial and sentenced to 840 months in prison.

On appeal, the Fourth Circuit affirmed Hoover’s conviction and sentence. Hoover’s primary arguments involved a pair of evidentiary issues. The first was that the district court had erred by allowing the introduction of evidence related to Internet search terms that suggested Hoover had a sexual interest in young boys. Applying plain error, the court agreed with the district court that the evidence was intrinsic to the charged offense, particularly since they were found on the same device used to produce the videos at issue. The second was whether the 17-year-old victim’s testimony should have been admitted under Rule 414 of the Rules of Evidence, which defines “child” as apply only to those under 14 years of age. The court held there was no error, distinguishing between “minor” and “child molestation,” which is defined to include acts that involve any person under 18 years of age.

Government Failure to Turn Over Witness’s Changed Statement Was Not Material for Brady Purposes

US v. George: George was the passenger in a white SUV driven by his cousin, Frazier, that was stopped after police got information about a convenience store theft after which the four perpetrators left in a white SUV. A loaded magazine was found under a seat cover on George’s seat and a firearm was recovered from between his seat and the door. George was charged with being a felon in possession of a firearm and ammunition. Frazier, in statements provided in discovery, said the other two passengers were “Kate” and an unnamed man, who had both been dropped off prior to the stop. Prior to trial, Frazier changed his story and told investigators that the other two passengers were his and George’s cousins.

George learned of the change in Frazier’s testimony when he testified at trial (during which he also said he’d seen George with a firearm and that George had a reputation for carrying firearms). After Frazier was vigorously cross examined about his changed story, George called the investigating officer to testify (he had not testified during the Government’s case) and learned about Frazier’s later statement that had not been disclosed in discovery. The jury, utilizing a special verdict form, specifically convicted George of both being a felon in possession of a firearm and ammunition. The district court denied George’s post-trial motion for a mistrial and dismissal under Brady. He was sentenced to 33 months in prison.

On appeal, the Fourth Circuit affirmed George’s conviction and sentence. The court rejected the Government’s argument that Frazier’s later statement had not actually been withheld because George learned about it at trial. Instead, the court focused on whether the statement was material to the defense, ultimately concluding that it was not. The court noted that when the withheld information is useful for impeachment purposes its materiality can turn on whether the witness in question was effectively cross examined at trial, which is what happened here – “because the jury knew about the inconsistent statement and Frazier was impeached by it, we find it difficult to imagine how an earlier disclosure would have materially altered the course of the trial.”  The court also noted that even if the statement was material to the issue of George’s possession of the firearm, it was not to the issue of his possession of the ammunition, given that he was sitting on it.

NC Attempted Robbery with a Firearm is ACCA “Violent Felony”

US v. Hamilton: Hamilton pleaded guilty to a drug charge and being a felon in possession of a firearm. The probation officers identified three prior convictions that would qualify him for sentencing under the Armed Career Criminal Act. Hamilton objected, arguing that his North Carolina conviction for attempted robbery with a handgun was not a “violent felony” as defined by ACCA. The district court disagreed and imposed the mandatory minimum ACCA sentence of 180 months in prison.

On appeal, the Fourth Circuit affirmed Hamilton’s sentence. Hamilton’s primary argument was that while completed armed robbery required the use of force, attempted armed robbery required proof only of intent to commit the offense and an overt act in furtherance of that intent. The court disagreed, holding that the language of the particular statute in North Carolina “did not create an inchoate attempt offense” but rather includes “robbery cases where the defendant attempted but did not succeed in taking personal property,” a conclusion supported by state supreme court decisions. By contrast, Hamilton’s reading “is entirely untethered from the language of” the statute.

Defendant “Resided” in West Virginia So As to Require SORNA Registration

US v. Kokinda: Due to a pair of state convictions in the 2000s, Kokinda was required to register as a sex offender. He effectively disappeared, and ceased registering. He resurfaced in Elkins, West Virginia, in September 2019, where he was charged with sexual abuse in the third degree after grabbing the buttocks of a girl while pushing her on a swing in a public park. In addition, images of child pornography were found on his phone. Kokinda was charged with failing to register under SORNA. He went to trial, where the Government produced evidence that Kokinda had been in the Elkins area for about a month, staying at various campsites. Kokinda’s defense was that while he had offenses that would require him to register with SORNA, he never “resided” in West Virginia and triggered the registration requirement. He was convicted and sentenced to 63 months in prison, the top of an advisory Guideline range enhanced for committing a sex offense against a minor while failing to register.

On appeal, the Fourth Circuit affirmed Kokinda’s conviction and sentence. As to his conviction, Kokinda’s main argument was that the district court had erred in instructing the jury on the definition of “resides” and “habitually lives,” particularly in taking the definition of the latter term from the SORNA guidelines promulgated by the Attorney General. The court rejected that argument, holding that the guidelines are part of a civil regulatory scheme and entitled to Chevron deference in defining the ambiguous term “habitually lives.” The court also held that there was no conflict with the Supreme Court’s decision in Nichols. As to Kokinda’s sentence, the court found no clear error in the district court’s determination that he had committed a sex offense against a minor, either by grabbing her buttocks or by possessing child pornography.

Judges Express Concern Over Johnson VICAR Analysis

 US v. Kinard: Last year, in United States v. Thomas, the Fourth Circuit held that assault with a deadly weapon under the violent crimes in aid of racketeering statute (VICAR) was a crime of violence. In doing so, the court held that because the federal VICAR offense itself had, as an element, a requirement that the offense was done for purposes related to the racketeering enterprise that it required a “deliberate choice” that satisfied the mens rea requirement for the crime of violence analysis, even when the underlying state offense could be committed recklessly.

Kinard raised the same issue with a related state offense and the Fourth Circuit affirmed his conviction, based on Thomas.

Judge Keenan, joined by Judge Heytens, concurred in the result, agreeing that the panel was bound by Thomas, “which issued after briefing and argument in this case.” Regardless, she had “concerns with the resulting analysis,” arguing that looking to the mens rea of the racketeering element of the offense is incorrect and out of step with the approaches of other circuits. As she explained, “the mens rea required under the force clause thus differs from the mens rea required under the purpose element in that the latter does not require a showing that the defendant knowingly directed force at a target,” as required by the Supreme Court’s decision in Borden.

Court Approves Broad Search Warrants for Facebook Data

US v. Zelaya-Veliz: Zelaya-Veliz, along with five codefendants, were involved in a conspiracy to traffic minor girls for prostitution in and around Virginia and Maryland. As part of the investigation into their operation (after one of the girls managed to escape), authorities sought a series of search warrants – four in total – for Facebook data related to Zelaya-Veliz and his codefendants, other coconspirators, and the trafficked victims. Two of the four warrants had no temporal limitation to the data that Facebook was required to disclose and all allowed authorities to search a wide swath of information, although they allowed only for a seizure of information related to specific federal crimes under investigation. Motions to suppress the information from those warrants were denied. Zelaya-Veliz and his codefendants were convicted of conspiracy and substantive sex trafficking counts at trial and sentenced to between 180 and 300 months in prison.

On appeal, the Fourth Circuit affirmed the defendants’ convictions. Their primary argument was that the district court erred by denying their motions to suppress the evidence from the Facebook warrants (which the court notes was substantial and critical to the Government’s case at trial). Initially, the court concluded that the defendants could challenge all the warrants other than the first, noting that none of their data or accounts were involved with the first warrant. In doing so, the court made clear that Facebook (or other social media) account holders have Fourth Amendment standing to challenge searches of those accounts. Turning to the merits of the defendants’ challenges, the court first held that there was sufficient probable cause for issuance of the warrants. Next, the court held that they were sufficiently limited both temporally (for two of the remaining warrants) and in terms of their scope (for all of them). As to the latter, the court held that the two-step process employe here – where investigators were allowed to search essentially all of a Facebook account but only seize that evidence related to specific federal crimes – resulted in a sufficiently particularized warrant. As to the former, for the warrant that had no temporal limitations at all, the court held that was problematic, but that ultimately the search was saved by good faith.

Defendant Cannot Take Interlocutory Appeal from Denial of Motion for Resentencing Without His Presence

US v. Castellon: In 2022, the Fourth Circuit vacated Castellon’s conviction under 18 U.S.C. § 924(c) and remanded for resentencing. On remand the parties agreed to the newly calculated Guideline range, that 210 months was the appropriate sentence, and that a resentencing hearing was not required. The district court “rejected the parties’ claim that Castellon could be resentenced in absentia, concluding that the only situation covered by the “voluntarily absent” language in Rule 43(c)(1)(B) of the Rules of Criminal Procedure was when the defendant fled proceedings and refused to submit themselves to the court. While noting that Castellon had “asserted valid reasons for sentencing in absentia, he hadn’t provided the court authority to do so.”

Castellon sought an interlocutory appeal to the Fourth Circuit to resolve the issue. While recognizing that the court’s “precedent appears to support their position” that a defendant can waive their presence at sentencing, the court held that it lacked jurisdiction over an interlocutory appeal on the matter. The court held that it did not fall under the collateral order doctrine because Castellon failed to identify “an important right implicated by the orders denying him the opportunity to be resentenced in absentia.” Castellon’s interest did not rise to the level of other issues that defendants can raise in an interlocutory appeal (such as double jeopardy claims), with the court concluding that “the district court’s error in interpreting a rule governing sentencing procedure isn’t compelling enough to warrant interlocutory appeal.”

North Carolina Assault by Strangulation Remains Crime of Violence

US v. Robinson: In 2022, in Rice, the Fourth Circuit held that a conviction in North Carolina for assault by strangulation is a “crime of violence” under the Sentencing Guidelines. As I wrote at the time:

Rice argued that the assault conviction was not a crime of violence because it the only intent required to sustain a conviction was culpable negligence. Had his prior offense been “run of the mill assault . . . he would have a point.” The complicating factor here was strangulation, which by its nature involves conduct that “could not be accomplished absent an intentional, knowing or purposeful state of mind.” This was true “even if not expressly stated” in North Carolina law. In addition, no “ordinary person would say that a person could strangle another without a purposeful, knowing or intentional state of mind.” Nor could Rice point to any cases sustaining convictions for strangulation that did not involve purposeful conduct.

Robinson, like Rice, was convicted of being a felon in possession of a firearm and had his base offense level increased because of a prior conviction for assault by strangulation. He argued that after the Supreme Court’s decision in US v. Taylor (decided shortly after Rice), the Fourth Circuit’s precedent was no longer valid and his prior conviction was not a crime of violence. Specifically, Robinson argued that Rice relied on “a survey of the conduct in published state cases” and Rice’s “failure to identify a single case where the conduct described was negligent or reckless,” a methodology that “cannot be squared” with Taylor.

In affirming the outcome of Rice, the Fourth Circuit did not fundamentally disagree with Robinson on the holding of Taylor, but ultimately concluded that Rice would have reached the same conclusion even without considering such survey data. The court noted that in Rice it had “found that North Carolina law suggests that assault by strangulation requires intentional conduct” and that it “independently interpreted the text of the North Carolina statute . . . and concluded that a person cannot commit the act of strangling without knowing or intending it.” The survey analysis “in Rice was only added to the opinion to provide additional confirmation for our holding.”

No Fourth Amendment Violation In Traffic Stop, Seizure of Occupants and Search

US v. Perry: Perry was in a SUV driven by his girlfriend, McCarr, which police observed in “an area well-known for gang activity and violent crimes.” The SUV lacked the necessary front license plate, leading officers to follow. The SUV “tried to flee” from the officers, running two stop signs. They found the SUV in a nearby parking lot, where they saw McCarr get out of the driver’s side door and Perry briefly “lean towards the ground, the floorboard” from the passenger’s seat “before jumping over the center console” to exit the SUV.

Perry and McCarr were both handcuffed. A patdown of Perry uncovered a blue bandana which, along with intelligence that Perry had gang connections, made officers conclude he was affiliated with the Crips. McCarr gave permission to search the car, which uncovered a revolver “protruding from a purse on the passenger’s-side floorboard.” McCarr said the gun belonged to Perry. A second gun was found on the passenger’s-side floorboard, which turned out to be stolen (and also belonged to Perry, according to McCarr). Perry was charged with being a felon in possession of a firearm, multiple counts of witness tampering (based on attempts to keep McCarr from testifying against him), and possession of marijuana. He was convicted at trial on all counts after unsuccessfully moving to suppress the evidence found during the traffic stop. He was sentenced to 210 months in prison.

On appeal, the Fourth Circuit affirmed Perry’s convictions and sentence. Perry’s primary argument was that “he was unconstitutionally seized for much of the” traffic stop. The court disagreed. The SUV was seized when police found it in the parking lot and activated their blue lights, at which point they had “both probable cause of observed traffic violations and reasonable suspicion of other criminal activity.” The court rejected Perry’s argument that the investigation during the stop went beyond the basis for it (running the stop signs), concluding that “this ignores important evidence that drove the mission of the seizure,” which included investigation of other criminal activity. The court also found no violation in either the length of the stop or Perry’s detention during it, based on the observations of the officers.

Ruan Requires Vacation of Doctor’s Drug Convictions

US v. Smithers: Smithers was a rural Virginia doctor who was eventually charged (after a couple of superseding indictments) with hundreds of counts of unlawful dispensing and distribution of controlled substances. Witnesses at trial testified that many of Smithers’ patients did not pay for their own prescriptions, some failed drug tests and other controls meant to root out abuse, and Smithers sent some prescriptions through the mail without seeing patients in the office. An expert witness testified that Smithers’ practices were outside the scope of professional practice and not for legitimate medical purposes. Smithers was convicted on all counts and sentenced to 480 months in prison.

In his appeal, Smithers challenged (among other things) the jury instructions given during his trial. His case was initially put in abeyance pending the outcome of the Supreme Court’s decision in Ruan, which addressed the mens rea which the Government was required to prove in order secure a conviction in cases like this one. In light of Ruan, and after supplemental briefing, the Fourth Circuit vacated Smithers’ convictions.

First, the court concluded that Smithers had properly raised the issue below and, even if he had not, he was not precluded from presenting it in supplemental briefing as “it would have been futile for him to argue for a subjective standard” in his opening brief. Second, the court turned to the instructions given at trial. At issue was the definition of “unauthorized” prescribing, which was defined as either “without a legitimate medical purpose or beyond the bounds of medical practice.” The court held that the instruction “misstated the law post-Ruan” and that the error was not corrected by any other jury instructions that had been given. Nor was the error harmless.

District Court Must Advise Defendant of “Effect of Supervised Release” During Rule 11 Colloquy

US v. King: King pleaded guilty to having possessed a firearm as a felon. At the plea colloquy, “the court did not advise King of the effect of supervised release or that a violation of the terms of supervised release could result in a total maximum term of imprisonment in excess of the statutory maximum for the offense.” King did not object or otherwise try to withdraw his plea. He was sentenced to 110 in prison, followed by a three-year term of supervised release.

On appeal, King’s counsel initially filed an Anders brief, but the Fourth Circuit ordered the parties to address the issue of the district court’s failure with regard to the effect of supervised release and whether that required vacating King’s guilty plea. The court held that the district court had erred, but that King suffered no prejudice and thus could not satisfy the needs of plain error review. Looking at the history of Rule 11, the court noted that prior Fourth Circuit precedent specifically required that defendants be notified of the impact of supervised release and revocations and that the require had, for a time, been within the rule itself. The specific reference in Rule 11 was removed in 2002, but the court concluded that since those amendments were not intended to be substantive that it did not change the requirements of prior precedent. King’s substantial rights had not been violated because he could not show that, had he been properly informed during the Rule 11 colloquy, that he would have decided not to plead guilty.