Thursday, April 30, 2009

Plain Error Sinks Unknowing ACCA Plea

US v. Massenburg: Massenburg pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the probation officer concluded that he was an armed career criminal. At sentencing, Massenburg objected on Apprendi/Blakely grounds and also that the prior offenses were all part of the same course of conduct and should be counted as only one qualifying prior conviction. The district court disagreed and sentenced Massenburg to 210 months in prison.

On appeal, Massenburg raised a new argument - that he should be able to withdraw his guilty plea because he was not informed of the possibility of being sentenced as an armed career criminal. Although the court has found such a failure to require reversal in earlier cases, because Massenburg did not make an objection on the issue in the district court he was stuck with plain error review. Under that analysis, although there was error and it was plain, Massenburg could not show a "reasonable probability that, but for the error, he would not have entered the plea."

Limited Consent to Search Means Limited Consent

US v. Neely: Neely was pulled over late at night in Charlotte, NC, after leaving a parking lot in a high crime area without turning his lights on. After the officer received a valid license and registration, he gave Neely a verbal warning about the lights. He then asked, before returning the license and registration, whether Neely had any "guns, weapons, grenades, bazookas [in the vehicle]." Neely said he did not, but offered to let the officer search the trunk. After Neely searched (in vain) for the trunk release button, the officer ordered Neely out of the car. He complied, giving his keys to the officer, who then patted him down, and had him sit on the hood of the police car. Although the pat down didn't uncover anything, the officer started questioning Neely about why he was out so late at night. When backup arrived, the officer began to search the passenger compartment of the car, but not the trunk. In the passenger compartment, he found a gun. Neely was charged with being a felon in possession of a firearm. After a denial of his motion to suppress, Neely pleaded guilty to that offense.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. First, the court concluded that the officer's search exceeded the scope of Neely's consent to search the trunk. Specifically, it rejected the district court's conclusion that Neely's handing of keys, generally cooperative manner, and failure to object to the search of the passenger compartment broadened the scope of his consent to search the trunk. Second, the court concluded that the search was not a proper protective search because the officer could not have reasonably believed that Neely was dangerous when he began the search.

Congrats to the defender office in the WDNC on the win!

Tuesday, April 28, 2009

District Court Must Explain Why Sentence Is Appropriate to Specific Case

US v. Carter: Carter assisted some friends of his in their licensed firearm sales business. Unfortunately, they were selling short-barrelled rifles at gun shows, which led to an ATF investigation. As part of that investigation, Carter's home was searched and it was learned he was a convicted felon. Charged with multiple firearms offenses, Carter pleaded guilty to one count of being a felon in possession of a firearm. His Guideline range at sentencing was 36 to 46 months, although if his objections to the calculations were sustained, the range would have been 10 to 16 months and in a range that allowed probation. The district court overruled all the objections, but nonetheless varied from the Guidelines and imposed a sentence of probation. The Government appealed.

The Fourth Circuit vacated Carter's sentence and remanded for further proceedings. The court concluded that the district court had not sufficiently explained why the sentence it imposed was appropriate in Carter's case. Although the court made some statements, they did not apply to Carter's case specifically, such that they "could apply to any sentence, regardless of the offense, the defendant's personal background, or the defendant's criminal history." The court continued that "a talismanic recitation of the 3553(a) factors without application to the defendant being sentenced does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review." Finally, the court noted that while in pre-Booker times it could assume that the district court adopted Carter's arguments, the current sentencing scheme prohibits such a presumption. Thus, the sentence was procedurally unreasonable.

Use of Peer-to-Peer Network Triggers Child Porn Distribution Ehancement

US v. Layton: An informant told cops they say Layton looking at child porn on his computer. Cops went to investigate and questioned Layton, who gave a statement admitting to downloading porn, that there were a few thousand images on his computer, and that he used a peer-to-peer software called WinMX. He pleaded guilty to possession of child porn. At sentencing, he objected to enhancements based on the number of images, their type (i.e., masochistic), and that he "distributed" them via the WinMX software. Layton's arguments were based largely on factual issues that he alleged were left out of the investigators' report of the investigation. The district court rejected all Layton's arguments and sentenced him to 97 months, the bottom of the Guideline range.

Layton appealed his sentence, which the Fourth Circuit affirmed. After brushing aside Layton's fact-based claims on the number and types of images he possessed, the court moved on to the issue of whether his offense involved "distribution" of child porn via the file sharing WinMX software under USSG 2G2.2(b)(3). Noting that the other circuits have all concluded that use of peer-to-peer file sharing software constituted distribution, the Fourth Circuit agreed. The court concluded that "[w]hen knowingly using a file-sharing program that allows others to access child pornography files," the enhancement is appropriate. Finally, the court concluded that Layton's sentence was procedurally and substantively reasonable (without reference to the presumption of reasonableness, oddly).

Thursday, April 02, 2009

Defendant "Found" By ICE Detainer After State Arrest

US v. Sosa-Carabantes: Sosa-Carabantes was arrested on state charges in North Carolina after illegally reentering the United States. While in state custody, ICE placed a detainer on him via a local officer who had been certified to screen state arrestees for immigration violations. Sosa-Carabantes eventually was convicted and sentenced on the state charge. He was then indicted for illegal reentry in federal court, to which he pleaded guilty. At sentencing, the parties disagreed on whether Sosa-Carabantes's state conviction should figure in the calculation of his criminal history score under the Guidelines. Sosa-Carabantes argued that because he was "found" by ICE prior to the state sentence being imposed, it should not be counted. The district court disagreed and sentenced Sosa-Carabantes to 46 months in prison.

On appeal, the Fourth Circuit vacated Sosa-Carabantes's sentence. The court concluded that the crucial issue was ICE found Sosa-Carabantes. It noted that on the day Sosa-Carabantes was arrested, ICE lodged a detainer with the local authorities that identified him by name, birth date, place of birth, and A-file number. Thus, he was "found" at that point. The court turned away the Government's argument that Sosa-Carabantes could not be found before a full investigation had been completed.

Congrats to the Defender office in WDNC for the win!

Notice Required For Trespass Conviction

US v. Madrigal-Valadez: Madrigal-Valadez was convicted after a bench trial of entering a military installation, Fort Lee in Virginia, for a purpose prohibited by law. That purpose, allegedly, was being an alien in the United States illegally. The conviction arose from an incident in which Madrigal-Valadez drove a soldier back to Fort Lee. When his vehicle was stopped to be checked out prior to entry, Madrigal-Valadez could not present the proper identification needed to satisfy Fort Lee's entry requirements. He was arrested at that time.

On appeal, the Fourth Circuit reversed Madrigal-Valadez's conviction. Addressing an issue not before resolved in this circuit, the court concluded, in line with several other circuits, that before a person can be convicted of this trespass offense he must be provided notice that entry onto the military property is prohibited. Although there was a sign on the road to the gate that provided some notice (albeit in English, which Madrigal-Valadez didn't speak), it was not sufficient because once someone turned onto that road they were already on the base. Thus, Madrigal-Valadez's conviction could not stand. The court also rejected the district court's conclusion that Madrigal-Valadez's illegal immigration status could constitute a "purpose prohibited by law" for which he entered the base.

Congrats to the Defender office in the EDVa on the win!

Court Affirms Conviction, Death Sentence, Arising from Multi-State Spree

US v. Basham: Basham, along with a co-defendant, escaped from jail in Kentucky and embarked on a multi-state crime spree that stretched from Indiana to South Carolina. Along the way, the two kidnapped one man in Kentucky, who managed to escape, and two women in West Virginia and South Carolina, who were never seen again. Basham was finally apprehended in Kentucky. He was indicted in South Carolina for carjacking that resulted in death and kidnapping that resulted in death, along with other charges. After a jury trial, he was convicted of those offenses and sentenced to death.

On appeal, Basham raised six challenges to his conviction and sentence, all of which the Fourth Circuit rejected. Each involves a detailed set of facts that cannot be reported here.

First, Basham argued that the district court should have granted his motion for a new trial when it came to light that the jury foreperson had contacted various local news outlets during the trial. Relying on the evidence developed during countless hearings on the matter, the court concluded that the district court had not abused its discretion in concluding that the Government had rebutted the presumption that the juror's actions were prejudicial.

Second, Basham argued that the district court erred by removing his initially appointed counsel because they might have to be witnesses during trial (due to their role in some searches for the victim's body once Basham was arrested). The court concluded that the district court did not abuse its discretion, even though it later ruled that the testimony of those counsel was not admissible at trial.

Third, Basham argued that the district court erred by allowing the Government to introduce certain "bad act" evidence during the guilt phase. The court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.

Fourth, Basham argued that the district court erred by admitting certain evidence at the penalty phase. As with the trial evidence, the court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.

Fifth, Basham argued that the district court erred by not including the "catch all" mitigator on the verdict form for the penalty phase. The court concluded that, in light of the instructions informing the jury of its ability to rely on any mitigating factor, that the absence of the catch all from the form was not error.

Finally, the court concluded that Basham's sentence was not imposed "under the influence of passion, prejudice, or any other arbitrary factor."

New DNA Evidence Allows Plea Withdrawal

US v. Thompson-Riviere: Thompson-Riviere pleaded guilty to being an alien who illegally reentered under 8 USC 1326(b)(4) after being deported to his native Panama. He was born in the Canal Zone in 1965. After entering the plea, however, he learned from a newly discovered relative that his actual father was an American citizen. If that was the case, Thompson-Riviere would also be an American citizen and, thus, could not be an "alien" under 1326 (b)(4) and could not be guilty of the offense. He sought to withdraw his plea, but the district court refused to allow him to do so. Thompson-Riviere was sentenced to 87 months in prison.

On appeal, the Fourth Circuit reversed and remanded for further proceedings. The focus of the court's analysis was one of six factors to be considered when a defendant seeks to withdraw his guilty plea, "whether the defendant has credibly asserted legal innocence." The court concluded that the district court abused its discretion in concluding such an assertion had not been made. After a careful analysis of the relevant statutes and a Second Circuit case that dealt with the same language, the court concluded that Thompson-Riviere's evidence, if believed, would render him not guilty of the offense.

Congrats to the Defender office in the EDVa on the win!

Search, Conviction Upheld, Sentence Vacated in Drugs/Guns Case

US v. Perry: Perry was convicted on drug and gun charges following both a search of his home and a series of controlled buys. Perry unsuccessfully sought to suppress marijuana and firearms found during the search as well as incriminating statements made that day. He was convicted (but not on all counts) after a jury trial and sentenced to 230 months in prison.

On appeal, Perry made several attacks on his conviction, all of which the Fourth Circuit turned away. First, Perry argued that the marijuana and firearms found during the search of his home should have been suppressed because those objects were not specified as the targets of the warrant and the warrant was not supported by probable cause. The court concluded that there was sufficient probable cause to justify the search and that the warrant covered both "other controlled substances" and "firearms and weapons," thus the seizure was within its scope.

Second, Perry argued that statements he made while the search was ongoing should have been suppressed. Specifically, he argued that he was seized by police and not properly Mirandized when they came to his place of employment and drove him back to the house. The court affirmed the district court and concluded that it had not abused its discretion in concluding that Perry was not seized at that point and thus no Miranda warnings were needed. Third, Perry argued that there was not sufficient evidence to support a conviction under 924(c) based on firearms found in his home. The court disagreed, noting the proximity of the firearms to the marijuana in the house as well as concluding that the guns were part of Perry's plan to "protect his business dealings" along with the video surveillance system used at the house.

Finally, the court rejected Perry's arguments that the 924(c) conviction amounted to an impermissible amendment of the indictment and that the jury instructions on that count were flawed.

As to Perry's sentence, the court turned away Perry's argument that the district court erred by using acquitted conduct as a basis for determining his Guideline range. However, the court did remand Perry's sentence for reconsideration in light of Kimbrough, given that Perry unsuccessfully argued for a variance from the crack-related Guideline range based on the inequities inherent in the 100-to-1 powder/crack ratio.