Wednesday, February 23, 2011

Harp Still Controls Analysis of NC Priors

US v. Simmons: Simmons pleaded guilty to three drug charges after the Government filed an information under 21 USC 851 to enhance his sentence based on a prior conviction. The prior at issue is a 1996 North Carolina conviction for possession with intent. Under North Carolina law, which ties statutory sentencing maximums to criminal history, Simmons could not have been sentenced to a term of more than 12 months in prison for that offense, as needed to trigger the 851 provisions. However, someone with the worst possible criminal history could have received such a sentence. Under Fourth Circuit law at the time of his sentencing, the conviction therefore triggered the provisions of 851.

After Simmons's sentence was affirmed on appeal, the Supreme Court GVR'd in light of Carachuri-Rosendo v. Holder. On remand, the Fourth Circuit held that Carachuri-Rosendo did not undermine the earlier circuit precedent and again affirmed the sentence. Specifically, the court rejected Simmons's argument that Carachuri-Rosendo required the court to abandon its "hypothetic defendant" analysis when examining prior convictions. The court held that the difference in statutory language between the immigration laws at issue in Carachuri-Rosendo and 851 showed the rule of Carachuri-Rosendo could not be imported into the 851 context. Carachuri-Rosendo was simply "inapplicable to our present inquiry." The court also rejected Simmons's argument with regards to whether his prior conviction was obtained in violation of his right to counsel.

UPDATE: See here, reversed en banc.

Harmless Error Analysis for Guideline Miscalculation

US v. Savillon-Matute: Savillon-Matute pleaded guilty to illegal reentry. Prior to sentencing, the probation officer recommended an 8-level enhancement because Savillon-Matute's prior Maryland conviction for second-degree assault was an "aggravated felony." The Government objected, arguing that a 16-level enhancement was applicable because that prior offense was a "crime of violence" because the victim was seven years old and force was involved. Savillon-Matute argued that neither enhancement applied. At sentencing, the district court agreed with Savillon-Matute that his Maryland conviction was not a crime of violence, but took judicial notice that the charging documents made the age of the victim and use of force clear. The 8-level enhancement was applied. However, Savillon-Matute was sentenced to 36 months in prison, twice the top of the advisory Guideline range.

On appeal, Savillon-Matute argued that his sentence was unreasonable because the district court incorrectly calculated the advisory Guideline range by using documents outside the scope of those allowed by Shepard to determine the victim's age and use of force. The Fourth Circuit affirmed the sentence, refusing to "wad[e] into the morass of how to apply Shepard in the particular circumstances of this case" because any error in calculating the Guidelines was harmless. Adopting the logic of an 11th Circuit case, the court held that "it would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm." Looking to the statements of the district court in this case, the court concluded that the same sentence would have been applied regardless of the Guideline calculation.

No Suppression Required for ECPA Violation

US v. Clenney: Clenney pleaded guilty to being a felon in possession of a firearm. The firearm was discovered during a search of his home subsequent to his arrest on state extortion charges. The extortion investigation led officers to Clenney's home. Clenney sought to suppress the gun (and his statement admitting it was his), but the district court denied his motion. He preserved the issue for appeal.

On appeal, Clenney offered two arguments as to why the evidence against him should be suppressed, both of which the Fourth Circuit rejected. First, Clenney argued that the evidence should have been suppressed under Franks due to inaccurate information presented in the applications for the warrants as well as information intentionally left out in order to mislead the issuing judge. The court disagreed, noting that the assertions that Clenney claimed were inaccurate were actually accurate and that the information withheld from the magistrate was not material and would not have changed the probable cause determination.

Second, Clenney argued that information obtained from his cell phone during the search was obtained in violation of the Electronic Communications Privacy Act and Virginia law. The court held that, although the information retrieved from Clenney's phone was covered by those provisions, he had failed to prove it was obtained without following the procedures set forth for obtaining them. In addition, the court held that suppression was not available as a remedy for such a violation because neither of the statutes provided for suppression.

Finally, the court briefly turned away arguments that Clenney's Miranda waiver was not valid and that he was not promptly presented to a magistrate following his arrest.

District Court Must Allow Defendant to Withdraw Plea When It Overrides Mandatory Provision

US v. Lewis: Lewis entered into an agreement with the Government to plead guilty to one count of witness tampering (another of those counts and a felon in possession charge would be dropped). Part of the plea agreement stated that the "parties agree that this sentence of imprisonment shall be served concurrent with the state sentence [Lewis] is currently serving . . .." At the plea hearing, the district court explained that it was not bound by any "recommendations" in the plea agreement and that Lewis might be sentenced more severely than the agreement contemplated. Although the district court explained that some agreements could be withdrawn from if the district court did not accept it, this was not one of those agreements. At sentencing, the district court imposed a sentence of 46 months, to be served consecutively to the undercharged state sentence "over the defendant's objection."

On appeal, Lewis argued (first in a pro se brief filed as part of the Anders process and then by subsequent counsel) that the plea agreement with regards to the concurrent/consecutive sentence issue had been breached. The Fourth Circuit agreed. The primary issue, the court said, was whether the plea agreement provision about the concurrent/consecutive sentencing issue made the plea a "binding" one under Rule 11(c)(1)(C). If so, then Lewis should have been allowed to withdraw the plea if the district court would not accept it. If not, Lewis was stuck. The court "readily rejected" the Government's argument (which it also called "nearly frivolous") that the agreement was not meant to be an 11(c)(1)(C) agreement, noting that the concurrent/consecutive sentence provision was phrased in mandatory terms, where other provisions were not. Furthermore, the district court's "conditional approval" at the plea hearing strongly suggested it was that type of plea. Therefore, when the district court did finally reject the agreement, by sentencing Lewis to a consecutive term, it erred by not allowing him to withdraw from the agreement. Because the error was not harmless, the court vacated Lewis's sentence and remanded the case for further proceedings.

Resisting Arrest Is Crime of Violence Under ACCA

US v. Jenkins: Jenkins was convicted of drug distribution and being a felon in possession of a firearm, then sentenced as a career offender. One of his two prior qualifying offenses, according to the district court, was a 1998 conviction for the "Maryland common law offense of resisting arrest." In making that conclusion, the district court relied on a 2009 unpublished Fourth Circuit case, Mullen, which held that resisting arrest was a crime of violence under the Guidelines.

On appeal, Jenkins challenged his designation as a career offender, arguing that the older Fourth Circuit case upon which Mullen was based had been undermined by recent Supreme Court decisions dealing with "violent felonies" under the ACCA - Begay and Chambers. The Fourth Circuit disagreed, holding that resisting arrest is a crime of violence, even in light of Begay and Chambers, because it produces great risk of harm to others and can only be committed intentionally or purposely.