Tuesday, January 20, 2009

Court Sidesteps Guideline Ex Post Facto Issue

US v. Myers: Myers pleaded guilty to being a felon in possession of a firearm. The firearm at issue was one that had been listed in 18 USC 921(a)(30) as part of the assault weapons ban that lapsed in 2004. Applying the 2006 version of the Sentencing Guidelines (which were in effect at sentencing), the district court enhanced Myers's sentence six levels because the firearm was capable of accepting a large capacity magazine. Myers objected, arguing that the 2005 version of the Guidelines, in effect at the time of the offense, should be used. That version of the Guidelines did not have the large magazine enhancement, but applied a six-level enhancement if the firearm was listed in 921(a)(30). Since that section had lapsed before he committed the offense, Myers argued that the 2005 enhancement was no longer in effect and ex post facto prohibitions applied to prevent his sentence from being enhanced. The district court disagreed.

As did the Fourth Circuit. The court noted that Myers's ex post facto argument only made sense if the lapsing of the assault weapons ban automatically invalidated the 2005 Guideline enhancement provision. But that was not the case, as the Sentencing Commission has the authority to enhance sentences for conduct that is not criminal. Furthermore, the language of the 2005 enhancement only required that a particular weapon be listed in 921(a)(30), not that it be illegal to possess under the assault weapons ban.

In a footnote, the court explained that its resolution of the issue on that ground made it unnecessary to address the Government's argument about the scope of ex post facto protections in a post-Booker world (a topic on which some other courts have split).

Failure to Impose Fine Not Clear Error

US v. Fields: In 2006, Fields was initially sentenced to a term of 12 months in prison (following a conviction for making a false loan application) and a $2000 fine, in spite of the district court concluding that Fields did not have the ability to pay a fine. He appealed and the Fourth Circuit vacated the sentence and remanded for resentencing.

At resentencing, the district court imposed the same 12-month sentence and made the same finding about Fields's ability to pay a fine. However, the district court did not reimpose the $2000 fine. Four days later, the district court sua sponte convened a new sentencing hearing and imposed a $2000 fine. Over Fields's objection, the district court explained that it knew "exactly what [it] had in mind" and that it "intended to impose a fine" at resentencing. The district court cited Rule 35(a) of the Rules of Criminal Procedure as the basis for fixing its "clear error."

Fields appealed the imposition of the fine. The Fourth Circuit vacated the sentence and remanded with specific instructions to impose the first sentence imposed at resentencing - without the fine. The court explained that the "clear error" conceived by Rule 35(a) is a narrow class and, at the least, requires some act that would be reversible error on appeal. No such error occurred at the resentencing hearing when the district court failed to impose a fine. However, the court recognized that had the district court made clear its intent to impose the fine at the resentencing hearing, the failure to do so might have fallen into the Rule 35(a) exception.

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

Court OKs Warrantless Cell Phone Search, Auto Inventory Search

US v. Murphy: Murphy was convicted of conspiracy to distribute narcotics. The evidence against him consisted largely of items found following a traffic stop of a car in which Murphy (and two others) were riding. Murphy sought to have two pieces of evidence suppressed - information taken from his cell phone and more than $14,000 in cash recovered from a bag in the car's trunk. The district court denied Murphy's motion to suppress.

On appeal, the Fourth Circuit affirmed the district court and Murphy's conviction. As for the cell phone, the court first concluded that it was lawfully seized from Murphy during a search incident to a lawful arrest. Second, the court concluded that due to the potential loss of information from the cell phone, its contents could be viewed by the officers without waiting for a warrant to be obtained to search its contents. As for the currency, the court rejected Murphy's argument that the search of the vehicle was not a proper inventory stop.

Tuesday, January 13, 2009

Appeal Waiver Precludes Booker Relief

US v. Linder: A cautionary tale on the long arm of appeal waivers. Linder pleaded guilty to a drug charge with a plea agreement that included a waiver of any appellate rights. The guilty plea was entered before Blakely, but sentencing was delayed until the Fourth had incorrectly concluded that Blakely didn't apply to the Guidelines. Consistent with the Fourth's decision in Hammoud, the district court rejected Linder's Sixth Amendment objections to the Guidelines calculations and imposed a sentence of 262 months and announced an alternative sentence of only 120 months.

Linder appealed, seeking relief under Booker, but the Fourth rejected his arguments due to the appellate waiver. Linder then filed a motion under 28 USC 2255 (that right had not been waived), asking the district court to impose the alternate sentence. The district court denied to do so, concluding that Booker did not apply to Linder's case.

On appeal, the Fourth Circuit affirmed the district court, though on different reasoning. The court concluded that Booker did apply to Linder's case, because it was not "final" until after Booker was decided. The appeal waiver provisions of the plea did not change the fact that Linder's appeal was pending when the Supreme Court acted. Nonetheless, applying Shea v. Louisiana, 470 US 51 (1985), the court concluded that the appeal waiver provision that required denying the direct appeal continued to foreclose relief. In other words, because the issue was properly dealt with on direct appeal, it could not be raised again in the 2255 proceeding.

Monday, January 12, 2009

No Fourth Amendment Protection from Video Surveillance in Open Fields

US v. Vankesteren: Fourth Amendment cases come with the oddest sets of facts. Vankesteren was charged and convicted of taking or possessing a migratory bird without a permit. Part of the evidence against him came from surveillance cameras set up to record action on Vankesteren's land where a trap was set. Vankesteren sought to have that evidence suppressed, arguing that it violated his expectation of privacy in his property. The district court disagreed and Vankesteren was sentenced to a fine of $500.

On appeal, the Fourth Circuit affirmed the conviction and the district court's decision not to suppress the video evidence. The court concluded that the trap at issue was located in an "open field," as it was outside the curtilage of Vankesteren's home, although it was on Vankesteren's property. Thus, Vankesteren lacked a reasonable expectation of privacy and could not invoke the protections of the Fourth Amendment. The court also rejected Vankesteren's argument that a higher standard of scrutiny should apply in cases where hidden video surveillance is used.

Convictions (on Fourth Attempt) Don't Violate Double Jeopardy

US v. Hall: Hall and his codefendant, Handy, were repeatedly prosecuted by the Government for their roles in a complex drug trafficking scheme. Twice they were tried in the District of Columbia, but the jury either acquitted or hung on the charges and mistrials were declared. The prosecution shifted to Maryland, where the defendants were tried twice. The first trial resulted in a mistrial after another hung jury. A second trial, at which the defendants were pro se, they were convicted on multiple counts, including conspiracy, use of a communications facility during a drug trafficking crime, and possession with intent to distribute.

On appeal, the defendants raised numerous procedural challenges to their conviction, all of which were rejected by the Fourth Circuit. First, the court concluded that the defendants were not subject to double jeopardy during the repeated prosecutions because the offenses of which they were ultimately convicted were not the same as the charges of which they were acquitted during the trials in DC. The court also concluded that there was no other double jeopardy violation in the multiple retrials. The court also turned away a collateral estoppel challenge to the conspiracy conviction, concluding that no facts essential to that conviction were previously resolved in the defendants' favor during the DC proceedings. Finally, the court concluded that there was no improper delay between the charging and conviction of the defendants.

Post-Sentence Confinement Statute Struck Down

US v. Comstock: This was a challenge to 18 USC 4248, a portion of the Adam Walsh Act that allows the Government to commit someone indefinitely who is a "sexually dangerous" person prior to the expiration of a federal criminal sentence. Comstock and the other defendants in this consolidated case had all been detained past the end of their criminal sentence under the law. The district court concluded that the law exceeded Congress's authority and intruded on powers reserved to the states.

On a Government appeal, the Fourth Circuit (as the first Circuit Court to deal with the issue) unanimously agreed with the district court and struck down the law. Relying on the Supreme Court's decisions in Lopez and Morrison, the court concluded that Congress's authority under the Commerce Clause did not extend so far as to reach the civil incarceration of people with no connection to interstate commerce. "Morrison," the court stated, "forecloses any such argument." The court also turned away the Government's argument that the Necessary and Proper Clause gave Congress the authority to enact the law as part of its general ability to maintain a criminal justice and penal system.

Congrats to the FPD office in Raleigh for the win!

Thursday, January 08, 2009

Begay Trumps James

US v. Roseboro: Remember US v. James from 2003, in which the Fourth concluded that a conviction in South Carolina for "failing to stop for a blue light" was a "violent felony" under the ACCA? In this case, the court jettisons James in the wake of the Supreme Court's Begay decision and comes to the opposite conclusion. Roseboro had three prior convictions under the South Carolina statute, which (under James) made him an Armed Career Criminal and increased his Guideline range from 84 to 105 months up to 262 to 327 months.

Examining Begay, the Fourth Circuit concluded that it was "markedly different" from the analysis in James and the court was bound to apply the Supreme Court's analysis. Doing so, the court noted that the South Carolina statute allows convictions both for intentional and unintentional violations of the statute and therefore does not involve the "purposeful, violent, and aggressive conduct" which triggers "violent felony" status. Noting that other circuits had come to the same conclusion, the court concluded that "when a statute does not require deliberate or purposeful conduct, a conviction under such a statute will not be considered a violent felony . . .."

Judge Niemeyer dissented, on two grounds. First, he argued that Begay did not, in fact, overrule James, due to the differences between the state statutes at issue in the two cases. Second, he argued that, even applying the Begay analysis, the South Carolina offense is still a violent felony for ACCA purposes.

Congrats to the Federal Defenders of Western NC for the win!

No Variances in 3582(c)(2) Proceedings

US v. Dunphy: Dunphy pleaded guilty to possession with intent to distribute in 2003 and was sentenced to 135 months in prison, the bottom of the Guideline range. After the 2007 crack amendments to the Guidelines were made retroactive, she sought a reduction in her sentence under 18 USC 3582(c)(2). The bottom of the new Guideline range was 108 months, but Dunphy argued for a larger reduction, arguing that the district court was not limited to imposing a sentence somewhere within the new Guideline range. The district court disagreed and imposed a sentence of 108 months.

On appeal, the Fourth Circuit affirmed the sentence, concluding that the district court's authority was limited to imposing a new sentence within the newly calculated Guideline range. It rejected both of the arguments Dunphy presented arguing otherwise.

First, it rejected Dunphy's argument that under Booker, the district court must treat the Guidelines as advisory, not mandatory, in sentence reduction cases. The court noted that Booker's excision of specific parts of the sentencing statutes did not impact 3582(c)(2) and that the Guidelines were already advisory in such cases (due to the fact that a court was not required to reduce a sentence at all).

Second, it rejected Dunphy's argument that a full consideration of the 3553(a) factors was not possible with the limitations in a system in which the district court could not impose a sentence below the Guideline range.

Request for Money + Metion of Gun = Bank Robbery

US v. Ketchum: Ketchum walked into a North Carolina bank and handed a teller a note which read "[t]hese people are making me do this." He then told the teller that "[t]hey are forcing me and have a gun. Please don't call the cops. I must have at least $500." The teller gave Ketchum $1686 and he left the bank, only to be arrested shortly thereafter. He was charged with one count each of bank robbery and bank larceny. The parties agreed on the factual basis for a guilty plea, but not which charge it proved. The district court concluded that Ketchum's statement to the teller constituted "intimidation" under 18 USC 2113(a) and found him guilty of bank robbery.

On appeal, Ketchum argued that there was not sufficient evidence to sustain a conviction for bank robbery because there was no evidence of intimidation. Specifically, he argued that the statement "[t]hey are forcing me and have a gun" indicated that Ketchum himself, if anyone, was at risk, not the teller. The Fourth Circuit disagreed and upheld the conviction. The court concluded that the combination of a demand for money (which, the court notes "alone may be sufficient") and the mention of a gun was sufficient to prove intimidation.

Recommended Sentence in Plea Agreement Doesn't Prevent Reduction

US v. Dews: This is the first of two recent cases dealing with issues arising from the retroactive application of the amended crack Guidelines.

In this case (actually a pair of consolidated cases), the defendants both pleaded guilty via a plea agreement under FRCrP 11(e)(1)(C). The plea agreement included a recommendation that 168 months in prison, the bottom of the Guideline range, was the appropriate sentence in each case. When the Guidelines were amended and made retroactive, both defendants moved the court to reduce their sentences based on the newly calculated (and lower) Guideline range. The district court declined to do so, concluding that because the plea agreements called for a specific sentence, that sentence was not "based on" the Guidelines.

On appeal, the Fourth Circuit rejected that argument and ruled in favor of the defendants. The court concluded that the Guidelines played a substantial role in fashioning the sentences and that neither Rule 11 nor the plea agreements themselves precluded a reduction. Judge Agee dissented and agreed with the district court that the sentences were based on the plea agreement, not the Guidelines.

Congrats to the Maryland FPD office on the win!

UPDATE: The Government sought rehearing in this case, which the court granted, thus vacating this opinion per Local Rule 35(c). However, the case was dismissed as moot before the rehearing took place.