Wednesday, March 31, 2010

Contempt Conviction For Tardiness Reversed

In re: Gates: Gates, a defense attorney, was late for a very important date - his client's guilty plea hearing. The hearing had been moved up a day on the calendar, leading to some confusion on Gates's part as to when it was supposed to take place. When Gates arrived at the hearing 15 minutes late, the district court did not accept his explanation and, referencing "your appearance on other occasions," found Gates in contempt and ordered him to pay a fine of $250.

Gates appealed on two grounds, both of which the Fourth Circuit accepted in reversing his contempt conviction. First, Gates argued that his contemptuous behavior (if it was so) took place outside of court and was thus indirect contempt, rather than direct. As a result, the district court could not summarily find him in contempt without notice and an opportunity to defend himself. The Fourth Circuit agreed, applying plain error, noting that absence from court was not the contemptuous behavior at issue, but rather the reason for the absence was key. Because that behavior does not occur in court, it is only indirect. Second, Gates argued that the court should not merely remand for further proceedings, as the record was bereft of any evidence of criminal intent to be contemptuous. The Fourth Circuit agreed and reversed his conviction.

Generalized Findings Not Enough to Support Enhancements, Restitution

US v. Llamas: Llamas was involved in a telephone "sweepstakes" scam run out of Costa Rica. Initially recruited into the operation to serve as one of the telemarketers contacting "winners," he eventually became a "room boss" and "office manager" at the call center in Costa Rica. Shortly before the whole operation came unravelled (a caller called a "judicial officer" - oops!), Llamas left the operation. Llamas pled guilty, without a plea agreement, to 63 charges stemming from the scheme, including conspiracy, mail fraud, and money laundering. He was sentenced to 132 months in prison and ordered to pay restitution of more than $4 million.

On appeal, Llamas challenged both the calculation of his advisory Guideline range and his order of restitution. His first Guideline argument was that the district court erred by increasing his offense level because of the vulnerable nature of the victims of the scheme. The Fourth Circuit agreed, holding that the district court made only generalized findings that Llamas should have known about the particular characteristics of two victims who testified at sentencing. Those general findings were not sufficient to support the enhancement. Llamas's second Guideline argument was that he was not a manager or supervisor of the scheme and should not have received an enhancement as such. The Fourth Circuit disagreed, holding that the evidence supported that he had a supervisory role. As to restitution, Llamas argued that the district court erred by holding him jointly and severably liable for all of the scheme's $4-plus million dollar loss. The Fourth Circuit agreed, noting that the district court included losses not just from the call center where Llamas worked, but all other similar centers in Costa Rica. Llamas's sentence was thus vacated and his case remanded for further proceedings.

Congrats to the FPD office in Western NC on the win!

Court OK's Death Penalty With Non-Violent Priors

US v. Caro: Caro was convicted of drug offenses and given a 30 year sentence. In prison he became a leader in the Texas Syndicate. After being transferred to USP Lee, he was involved with the murder of another inmate and fellow Syndicate member, for which Caro pleaded guilty to conspiracy to commit homicide, received an addition 27-year sentence, and was transferred to SHU. Weeks later, Caro strangled his cell mate in SHU, not for any reason relating to the Syndicate, but because his cell mate "called me mother fucker, that whore, that's why I fucked him up." Caro was charged with first-degree murder and the Government filed a notice that it would seek the death penalty. Caro was convicted and sentenced to death.

Caro raised several objections to his conviction and sentence on appeal, all of which the Fourth Circuit rejected. First, Caro argued that voir dire was flawed because the district court, in finding "death qualified" jurors, did not adequately explain the offense at issue in the trial or that information of Caro's background could be considered as mitigating evidence. Second, Caro argued that the district court erred, both under Brady and the Rules of Criminal Procedure, in denying his request for BoP records relating to its ability to sufficiently handle Caro in the ADMAX facility at Florence, as relevant to the question of future dangerousness. Third, Caro challenged the constitutionality of the two factors - related to his prior drug convictions - that made him eligible for the death penalty because they were not "rationally related to the question of who should live or die." Fourth, Caro argued that the Government's argument during closing that only a death sentence could "control" him, based on his past history, was improper (which the Fourth called "troubling" but not the cause of such prejudice to warrant reversal). Fifth, Caro argued that the Government's reference to his not showing any remorse was an improper comment on his exercise of his Fifth Amendment right to remain silent. Sixth, Caro argued that the district court erred by refusing to give his proposed jury instruction on mercy. Seventh, Caro argued that the district court erred by admitting evidence relating to the victim and Caro's offer to plead guilty. Finally, Caro argued that there was cumulative error.

Judge Gregory dissented, arguing that the prior convictions which made Caro eligible for a death sentence "distinguished] those who live from those who die in a wholly arbitrary and capricious way." In affirming Caro's sentence, the majority had approved of the imposition of death upon someone who had "only been convicted of relatively minor, nonviolent drug offenses."

Penalty at Time of Sentence Controls for ACCA

US v. McNeill: McNeill was convicted of being a felony in possession of a firearm and possession of crack with intent to distribute. As sentencing he was deemed an armed career criminal and given a sentence of 300 months in prison. On appeal, he argued that his prior North Carolina drug convictions were not "serious drug offense" as defined by the ACCA because the current statutory maximum penalty for those offenses was ten years in prison. At the time the sentences were imposed, the statutory maximum was 25 years. The Fourth Circuit concluded, based on the specific language of the North Carolina statutes at issue, that the "statutory maximum" that controlled for ACCA purposes was the one in effect at the time of the original sentence, not the current federal offense. In that case, the priors at issue, with maximum sentences of 25 years, qualified as serious drug offenses under the ACCA.

Monday, March 08, 2010

Court Clarifies Review of Sentences for Improper Guideline Influence

US v. Mendoza-Mendoza: Mendoza-Mendoza was convicted of illegal reentry (he had previously been deported to his native land of Mexico). At sentencing, he argued for a sentence below the advisory Guideline range. The district court concluded that it was "obligated" to impose a sentence within the Guideline range unless "a reason for a departure from those Guidelines, or a variance based on 18 USC 3553" was present. It then sentenced Mendoza-Mendoza to 46 months in prison, the Guideline minimum. In doing so, the district court rejected the Government's argument that Mendoza-Mendoza was a danger to others, but concluded that "I cannot see any reason for a variance."

Mendoza-Mendoza appealed, arguing that his sentence was procedurally unreasonable. The Fourth Circuit agreed and vacated his sentence, remanding the case for further proceedings. At issue was whether the district court utilized what the court called the "Rita presumption" - i.e., that the Guideline range was presumptively reasonable. In reviewing the record, the court warned against "[a]ppellate flyspecking for Rita presumptions." Nonetheless, in this case Mendoza-Mendoza's reading of the district court's reasoning - that it was bound by the Guidelines - was at least as plausible as the contrary reading. Thus, vacation was required. Judge Davis concurred in the result, but wrote (and quoted at length from the transcript) to explain why it was not clear to him that procedural error had occurred.

Congrats to the FPD office in the EDNC on the win!

Blue Lights. Again.

US v. Rivers: It's another blue light special in the Fourth Circuit. South Carolina has a felony offense of "failure to stop for a blue light" (i.e., not pulling over when the cops signal). In a case decided pre-Begay, the Fourth concluded that convictions for failure to stop for a blue light were "violent felon[ies]" under the Armed Career Criminal Act. In Roseboro, decided in the wake of Begay, the court concluded that convictions for failure to stop for a blue light would only be a violent felony in limited circumstances.

In this case, decided in the wake of the Supreme Court's decision in Chambers, the court finally resolved that "under no circumstances is a violation of South Carolina's blue light statute a violent felony under the ACCA." Specifically, the court held that the South Carolina statute applied to only one type of behavior and was thus not subject to the "modified" categorical approach as it did earlier in Roseboro.

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

Court Affirms Conviction, 30-year Sentence

US v. Rooks: Rooks was a passenger in a car driven by his brother. They were pulled over because of a cracked windshield. During the stop, the officer detected the aroma of marijuana coming from the car, as well as noticed a cigarette but and plastic bag on the center console. After getting permission from the driver to search that part of the car, the officer confirmed that the cigarette contained marijuana and the bag had marijuana residue. After another officer arrived for backup, the driver was ordered out of the car and detained. When the officer tried to do the same with Rooks, Rooks fled. During the flight, Rooks threw away a plastic bag containing crack cocaine, which the officer recovered. Rooks was apprehended and made some incriminating statements to the officer. Rooks was charged with possession with intent to distribute crack. He unsuccessfully moved to suppress both the drugs and his statements. He also unsuccessfully sought to keep the Government from introducing three prior drug convictions at trial. Rooks was convicted and sentenced to 360 months in prison as a career offender.

On appeal, Rooks raised issues related to both his conviction and sentence, all of which the Fourth Circuit rejected. First, the court rejected Rooks's argument that the seizure of the drugs he threw away during flight violated the Fourth Amendment because the officer who ordered Rooks out of the car to perform a pat down search had reasonable suspicion to believe he was armed and dangerous. Second, the court rejected Rooks's argument that the Government should not have been able to present evidence of his prior convictions, holding that the evidence was relevant to Rooks's "familiarity with the drug distribution business" and therefore his intent to distribute the drugs. Finally, the court rejected Rooks's argument that his prior federal convictions and a state conviction based on the same conduct were part of a "single common scheme or plan" for purposes of determining whether he was a career offender.