Wednesday, November 25, 2009

Items Not Specifically Mentioned in Search Warrant Still Within Its Scope

US v. Phillips: Phillips was charged with and convicted of numerous fraud counts related to the fraudulent use of credit cards and businesses called Phydea (and it's associated website, and Phydea Equity Fund. After an investigation, postal inspectors executed a search warrant at Phillips's home, which specifically authorized the seizure of documents related to and generally items "relating to fraudulent conduct and financial crimes." Among the items seized, after consultation with the US Attorney's office, were documents related to the Phydea Equity Fund. Prior to trial, Phillips moved to suppress the evidence seized because the material exceeded the scope of the seizure authorized by the search warrant. The district court denied the motion, Phillips was convicted at trial, and sentenced to a 121-month term of imprisonment.

Phillips appealed on the issue of the scope of the search and seizure, but the Fourth Circuit affirmed the district court's decision and Phillips's convictions. The court concluded that the items seized fell "comfortably within the warrant's scope," which the court described as "broad and permissive." The court rejected Phillips's reading that would "require us to hold that an item reasonably encompassed by the terms of the warrant somehow falls outside its scope because the item is probative of charges other than those initial charges set forth by the warrant." Given the intermingling of Phillips's frauds and the links between him, Phydea, and Phydea Equity Fund, the officers executing the search warrant were reasonable in seizing items related to all of them.

Court Can't Consult Statement from Related Case to Determine ACCA Applicability

US v. Harcum: Harcum pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was whether Harcum was an Armed Career Criminal, with particular focus on a prior Maryland conviction for second degree assault and whether it was a "crime of violence" under the ACCA.

Harcum was originally charged with assault in the District Court of Maryland in Baltimore City with a supporting Statement of Charges that alleged Harcum punched the victim in the face (sending said victim through a glass window). However, he was not convicted on that charge in that court. Instead, an information was filed in the Circuit Court for Baltimore City, alleging the same offense, on the same day, against the same victim as the District Court charge. However, unlike the District Court charge, the Circuit Court charge did not have an equivalent to the Statement of Charges laying out the offense conduct. Harcum pleaded guilty to second-degree assault based on the information in the Circuit Court.

The issue, both in the district court and in the Fourth Circuit, was whether the district court could look to the Statement of Charges filed in the District Court to determine whether the conviction sustained in the Circuit Court was a crime of violence (the Fourth has previously held that a conviction under the Maryland statute is not per se a crime of violence). The district court concluded that it could and, based on what it found there, concluded that Harcum's conviction was for a crime of violence and sentenced him as an Armed Career Criminal.

The Fourth Circuit disagreed and vacated Harcum's sentence, holding that nothing in the Circuit Court information incorporated the District Court Statement of Charges, either directly or implicitly.

Congrats to the defender office in Maryland on the win!

Tuesday, November 10, 2009

16-Level Enhancement Requires Actual Trafficking in Prior Offense

US v. Maroquin-Bran: Maroquin-Bran was deported following a 1989 conviction in California for "the crime of SALE OR TRANSPORTATION OF MARIJUANA" (yelling in original statute). He reentered the country illegally in 2002 and was charged with illegal reentry in 2007. After pleading guilty, the main issue at sentencing was whether Maroquin-Bran's prior conviction was a "drug trafficking conviction" that triggered the 16-level enhancement under USSG 2K1.2(b)(1)(A). The district court concluded that it was and sentenced to Maroquin-Bran to 57 months in prison, the bottom of the resulting Guideline range.

On appeal, the Fourth Circuit reversed and vacated for further proceedings. Following in the footsteps of every other circuit to resolve the issue, the court held that in order for the enhancement to apply, the specific offense that the defendant was convicted of committing must be a "drug trafficking offense." It is not enough that the statute under which the conviction was obtained includes both trafficking and non-trafficking offenses. In other words, if the same statute addresses possession and distribution, the enhancement only applies if the prior conviction was actually for distribution, not possession. Because the district court was without that guidance initially, the court remanded the case for a determination of whether Maroquin-Bran's actual conviction was a drug trafficking conviction.

Congrats to the EDNC defender office on the win!

Monday, November 09, 2009

Consideration of Uncharged Conduct at Sentecing OK

US v. Grubbs: Grubbs pleaded guilty to six counts of transporting a minor with intent to engage in sexual activity and six counts of travelling interstate to engage in sexual activity with a minor. Those charges involved two victims. In the PSR, the probation officer set forth allegations from nine other victims of similar conduct by Grubbs in the past.

At sentencing, the district court "expressed its concern" that the Guideline range of 151-188 months was not sufficient to fully account for Grubbs's conduct, as it was based only on the counts in the indictment and did not take into account the additional allegations in the PSR. Over Grubbs's objection, the district court concluded that the uncharged conduct was reliable enough to be used at sentencing and departed upwards both as to offense level and criminal history category, raising the Guideline range to 210-262 months. Grubbs received a 240-month sentence.

On appeal, the Fourth Circuit affirmed Grubbs's sentence. Grubbs's primary arguments on appeal related to the use of uncharged conduct to enhance his sentence.

First, he argued that the sentence violated his Sixth Amendment rights under Booker because the 240-month sentence is unreasonable if based only on the offenses of conviction. In other words, only by using uncharged conduct could the sentence be reasonable (this is essentially the argument from Scalia's dissent in Rita). The court rejected that argument as "nullified by clear Supreme Court and Fourth Circuit precedent" allowing the use of uncharged and acquitted conduct at sentencing. Booker, the court held, did not change that precedent.

Second, Grubbs argued that the sentence violated his Fifth Amendment due process rights because it was based on conduct not proven by clear and convincing evidence. Applying plain error (Grubbs did not specifically object to the use of a preponderance standard), the court concluded there was no error, "plain or otherwise," In doing so, the court concluded that whatever viability the potential exception to the general preponderance standard at sentencing suggested in McMillan v. Pennsylvania - where the enhancement is the "tail that wags the dog of the substantive offense" - has been "nullified" in light of Booker. Adopting a Sixth Circuit formulation, the court explains that challenges to large sentencing enhancements are properly dealt with in terms of Booker reasonableness review, not due process.

The court also rejected Grubbs's argument that the Guidelines had been improperly calculated.