Tuesday, July 24, 2012

No plea agreement breach when government gets the statutory maximum wrong

US v. Davis:  The government indicted William Davis for unlawful possession of a firearm by a convicted felon under 18 U.S.C. sect. 922(g)(1). Davis had three prior state felony convictions. The government presented a plea agreement in which Davis was incorrectly advised that he faced a ten-year maximum sentence when in fact, he faced a fifteen-year mandatory minimum based on his criminal history. Davis entered the plea agreement; to make matters worse, the district court similarly misadvised Davis at the plea hearing about the actual extent of exposure to punishment he faced.

The probation officer who prepared the pre-sentence investigation report discovered the errors and concluded that Davis’ sentence should be fifteen years to life in prison. At sentencing, Davis objected on three grounds, none of which included a contention that the government breached his plea agreement or that he had been misadvised regarding the statutory maximum punishment. The district court overruled his objections and designated Davis an armed career criminal, and sentenced him to 180 months.

Nine months later, Davis filed a claim under 28 U.S.C. sect. 2255 to challenge his sentence, based in part on his counsel’s failure to file a direct appeal upon his request. Davis’ attorney had recently died, so the Court granted his petition and gave him 14 days to appeal his sentence. He raised two issues: the government breached the plea agreement and deprived him of the benefit of his bargain; and his qualification as an armed career criminal.

The Fourth Circuit found that Davis’ claim of breaching the plea agreement failed because he sought "the benefit of a promise that the government never made," as it did not promise a particular sentence and made only "non-binding" recommendations and "no representations" as to the final sentence. Also, the district court has no discretion to sentence an individual in contravention of a statute, so even if the government had breached an agreement with Davis, he would not have been entitled to "specific performance" of that promise.

There was an appeal waiver contained in Davis’ plea agreement, but the Fourth Circuit found that his waiver was invalid because he did not knowingly waive the right to appeal the sentence ultimately imposed. The Fourth Circuit did not agree with Davis that he did not qualify for an armed career criminal enhancement, and upheld his sentence against this claim of error.

Wednesday, July 18, 2012

Illegal re-entry & prior TX burglary conviction lead to enhanced sentence

US v. Bonilla:  Francisco Bonilla pleaded guilty to one count of illegal re-entry; the presentence report ordered in advance of the sentencing in his case included an enhancement based on his prior state conviction for burglary of a habitation in Texas. Bonilla objected to the application of this enhancement, arguing that this prior conviction did not qualify as a crime of violence as required in Taylor v. United States, 495 U.S. 575 (1990).

In Taylor, the Supreme Court set out to uniformly define "burglary" from the variety of definitions in different States’ criminal codes. The Fourth Circuit discusses Taylor at length as the backdrop for making its decision here, and the short version: if the state definition corresponds "substantially" to generic burglary, then the sentencing enhancement at stake here applies.

The Fifth Circuit has held that a burglary conviction under the same code section as Bonilla received is NOT a generic burglary under Taylor, because it does not contain an intent element to commit a felony, theft, or assault at the moment of entry. The Fourth Circuit respectfully states that this holding results from a "too rigid" reading of Taylor, and Bonilla’s guilty plea contained all the elements to satisfy Taylor’s description of generic burglary "notwithstanding that Bonilla might not have formulated his intent prior to the unlawful entry." The dissent’s well-reasoned view supports the opposite conclusion, based on the common law notion that intent must be contemporaneous with the other elements of the offense, in order for a burglary to satisfy Taylor.

Possession of weapon in prison - crime of violence?

US v. Mobley:  Mobley, imprisoned at FCI Butner, visited the infirmary for pain and numbness in his feet. Upon examination, a shank was discovered in the insole of Mobley’s right shoe. Despite Mobley’s attempt to hide it, the physical therapist turned the shank over to prison staff.

Mobley received a charge for possessing a prohibited object to which he pleaded guilty. The presentence report calculated Mobley’s base offense level and then applied the career offender enhancement, considering the possession of the shank to be a "crime of violence" for sentencing purposes. Application of this enhancement increased Mobley’s punishment from a range of 24-30 months, based upon his criminal history, to 37 to 46 months. Mobley objected to the application of this enhancement at sentencing; the district court decided that "there is no passive possession of a weapon in a prison setting,"and imposed a sentence of 37 months.

The Third Circuit has adopted the position that possession of a weapon, "even in a prison," is not the same in kind or in degree of risk as crimes of violence under the career offender sentencing enhancement. The Fifth, Eighth, and Tenth Circuits, however, have reached a different conclusion when faced with this issue, holding that possession of a weapon in prison "is similar in kind and degree of risk" to burglary, arson, or extortion, or any other enumerated crime of violence under this sentencing enhancement. The Fourth Circuit concurred with the latter group and affirmed Mobley's sentence, though Justice Wynn dissented, agreeing with the Third Circuit that possession of a weapon is "a far cry" from the conduct of enumerated crimes listed in U.S.S.G. sect. 4B1.2(a).

Tuesday, July 17, 2012

Special Conditions on Supervised Release Reversed

US v. Worley:  Appellant David Worley received a 100-month sentence for his convictions for methamphetamine offenses. He challenged the length of the sentence as well as the special conditions imposed on his supervised release, arguing that the district court abused its discretion in imposing the conditions. The Fourth Circuit disagreed with respect to the 100 months of incarceration (within his advisory guidelines range), but it agreed that several of the special conditions should be reversed.

Worley’s presentence report recommended fifteen special conditions in this case, based upon two twelve-year-old state convictions for carnal knowledge of a child (committed when Worley was twenty-one).  In particular, three of the special conditions prohibited Worley from having unsupervised contact with children, residing with minor children without permission from a probation officer, and forming a romantic relationship with anyone who has physical custody of a child. In the intervening twelve years, Worley had started a family with three young children, and maintained his relationship with his family and girlfriend.  Worley did not explicitly object to the district court’s imposition of the special conditions at sentencing. 

The Fourth Circuit stated that it did not need to determine whether to use plain error review of the special conditions, or the more deferential standard, an abuse of discretion: the imposition of these three restrictive special conditions on Worley’s supervised release was plain error, and did not further the defendant’s rehabilitation. "Conditions that interfere with a defendant’s constitutional liberties, such as raising his child or associating with a loved one, must be adequately explained or else their imposition undermines the fairness and integrity of our judicial proceedings." The Fourth Circuit noted that, "[g]iven the severity of these restrictions in hindering Worley’s familial relations weighed against the lack of evidence that Worley currently poses a threat to children, the district court erred in imposing the conditions and this error requires a complete reversal with no remand." 

With respect to the remaining special conditions on Worley’s supervised release, the Fourth Circuit remanded them to the district court, as "they impose restrictions that do well beyond Worley’s state sex offender registration requirements," but they did not infringe on his relationship with his children and girlfriend. In imposing these conditions, the district court had only relied on Worley’s prior state sex offense convictions, and the record according to the Fourth Circuit, did not support the conclusion that Worley’s current behavior and character required them.

Mandatory Restitution statute interpreted

US v. Burgess:  The Fourth Circuit affirmed Burgess's two convictions and 292-month sentence for receipt and possession of materials depicting minors engaged in sexually explicit conduct, but it vacated the restitutionary award to the victim, "Vicky," for a calculation of the amount of loss proximately caused by Burgess.

At the sentencing hearing, the government submitted a request pursuant to the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. sect. 2259, for "Vicky," the victim portrayed in the materials seized from the appellant's residence.  The government argued that Burgess should be held "jointly and severally liable with all other defendants [for] the full amount of Vicky's losses."  The district court based its restitution award on the government's memorandum and calculation of loss. 

The appeal presented the question of whether a victim's losses attributable to a defendant under this restitution statute are limited to losses proximately caused by the defendant, or whether the plain language of the statute imposes no such limitation (as "Vicky" argued as amicus curiae).  Other circuits that have considered this issue have determined that a proximate cause limitation is applicable to this statute based upon a variety of rationales; though most them, like the Fourth Circuit here, examined the issue by using tort law principles in the construction of the criminal statute to resolve any ambiguity. 

The Fourth Circuit concluded that nothing in the text or structure of this statute indicated that Congress intended to "negate the ordinary requirement of proximate causation for an award of compensatory damages," and found that this statute "invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused," and not for those injuries inflicted by others at different times.

The dissent argues that the majority's opinion in premature, in that the district court below did not make factual findings with respect to proximate cause.  Additionally, he does not believe that district courts will be able to "meaningfully say precisely x amount of Vicky's psychological injuries were caused by Burgess's watching the video, that y amount was caused by Defendant #2's watching the same video, and so on."  Further, the dissent argues that the question of whether "a defendant proximately caused some injury is entirely separate from the question of how those proximately caused losses should be allocated among several offenders." 

Monday, July 02, 2012

Fraud Convictions for Manufactured Regulatory Approval Upheld

US v. Wynn: Wynn was an engineer with a firm responsible for a project extending the runway of a regional airport in South Carolina.  In order to embark on the project, the airport needed the plans drawn up by Wynn to be approved by regulators.  Wynn never got such approval, but when asked if the approval had been given, fabricated an appropriate stamp from the regulators and sent it to the airport by mail and later the regulators as an attachment to an email.  As a result, Wynn was charged and convicted for mail fraud and wire fraud.  He was sentenced to 12 months and one day in prison and ordered to pay restitution of $118,000.

On appeal, Wynn challenged both his conviction and sentence, both of which the court upheld.  As to his convictions, Wynn argued that the district court improperly instructed the jury by allowing a conviction without the Government proving that he intended to harm the airport (or the county that ran it) and that the evidence was insufficient to prove that element.  The court disagreed, holding that the instructions correctly told the jury it needed to find an intent to defraud on Wynn's part, not simply a falsehood in his dealings with the airport.  The court also rejected Wynn's argument that providing the falsely approved version of the plan to was not material or reasonably relied upon.  As to his sentence, Wynn argued that the loss calculation by the district court greatly overestimated the actual loss, because it included fees paid by the county to Wynn's firm that were unrelated to the fraud.  The court disagreed, holding that it was not clear error for the district court to concluded that the other fees would not have been paid to Wynn's firm had the county paying them been aware of his fraud.

Citizens United Doesn't Undermine Corporate Contribution Prohibition

Danielczyk: Danielczyk and Biagi were officers at Galen Capital who arranged for others to make contributions to Hillary Clinton's presidential campaign in 2008 and be reimbursed by Galen.  As a result, they were indicted on multiple counts, including one (Count Four) that charged them with causing contributions of corporate money to a candidate for federal office (in excess of $25,000) and conspiring to do so.  They moved to dismiss Count Four, arguing that the statute was unconstitutional in the wake of the Supreme Court's decision in Citizens United.  The district court agreed, holding that the statute at issue in Citizens United, as it reads now, treats corporate and individual contributions differently.

The Government appealed and the Fourth Circuit reversed the district court.  The Court relied on a pre-Citizens United decision by the Supreme Court that upheld the statute at issue against an earlier First Amendment challenge.  It rejected Danielczyk and Biagi's argument that the prior decision was no longer valid in light of Citizens United and that, at any rate, it was limited to nonprofit corporations (the party at issue in that case), rather than for-profit corporations.  It reversed the district court and remanded the case for further proceedings.

Religious Tax Evasion Convictions, Sentences, Upheld

US v. Jinwright: Anthony Jinwright became the senior pastor at a North Carolina church in 1981.  By the time his wife (and codefendant) Harriet joined him as a pastor in 2000, he was making a six figure income, not to mention a luscious benefits package.  Between 2001 and 2007, Anthony earned a total of $3.9 million in wages and benefits, while Harriet made nearly $1 million.  Unfortunately, not all of that income was reported to the IRS, which estimated that they underpaid by more than $650,000 in that time.  Both Jinwrights were convicted of conspiracy to defraud the Government and tax evasion, with Anthony convicted of several additional counts of tax evasion and filing false tax returns.  Anthony was sentenced to 105 months in prison, Harriet to 80 months.

The Jinwrights challenged both their convictions and sentences on appeal, all of which were affirmed.  As to the convictions, they raised three arguments.  First, they argued that the district court erred by giving a willful blindness instruction, both because the evidence did not support it and the legal standard presented in it was incorrect.  The court disagreed, holding that the evidence supported the instruction and that it properly warned the jury that it could not convict if the Jinwrights were simply reckless or foolish in overlooking what was happening.  Second, the Jinwrights argued that a jury instruction on the tax treatments of payments from employer to employee directed the jury to find particular facts, namely that the Jinrights received payments that they were required to report as income.  The court disagreed.  Third, they argued that the district court improperly limited their cross examination of three witnesses who believe that payments from the church to the Jinwrights were gifts.  The court found the limitation was a reasonable precaution to prevent jury confusion.

As to sentencing, Harried challenged her tax loss calculation, arguing that included funds from a year for which the jury acquitted her of evasion.  The court disagreed, noting that the use of acquitted conduct at sentencing is permissible and concluding that the district court's findings were sufficiently explained.  Both Jinwrights challenged the amount of restitution they were ordered to pay, arguing that it included sums  based on losses that occurred prior to the conduct for which they were convicted.  The court concluded that the district court could order restitution based on losses caused by the acts in the conspiracy, even if the defendant was not convicted for each of the acts.  Finally, the Jinwrights both argued that the district court erred in imposing two Guideline enhancements.  One was for the use of sophisticated means, which the court held was justified based on the Jinwrights use of multiple organizations and "a variety of sophisticated techniques" laid out in the PSR.  The other was for abuse of a position of trust, which the court affirmed on the basis of "the wide range of conduct in the record," including having access to church finances.

Virginia Prior Triggers Child Porn Enhancement

US v. Colson: Colson pleaded guilty to multiple counts of receiving movies depicting child pornography.  He was sentenced to a 15-year mandatory minimum term under 18 USC 2252A(a)(2) based on a prior Virginia conviction for the "production, publication, sale, or possession, etc. of obscene items involving children."  Colson argued that, when analyzed under the categorical approach, such a conviction does not qualify for the enhancement because it could have been committed in ways that "relates to the sexual abuse of a minor," as required for the enhancement to apply.

On appeal, Colson renewed his argument, which the Fourth Circuit rejected.  Applying a purely categorical approach and reviewing the Virginia statute in force at the time of Colson's prior conviction (in 1984 - all the records had since been destroyed), the court first concluded that the Virginia statute did not, as Colson claimed, cover "innocuous depictions of nudity" because it punished only the "lewd" exhibition of nudity, not simply the nudity.  In addition, the court concluded that the enhancement applies not only if the prior conviction at issue is for "sexual abuse" or "abusive sexual conduct involving a minor," but whether it is related to those two offenses.  The Virginia statute at issue here categorically "relates to" those offenses.