Thursday, December 12, 2013

Court Joins Other Circuits - No General FSA Retroactivity

US v. Black: In 2006 Black was sentenced to a mandatory minimum term of 120 months on a conviction involving crack cocaine. In the wake of the Fair Sentencing Act of 2010, Black filed a motion under 18 USC 3582 arguing that his Guideline range had been reduced and that the FSA applied retroactively and dropped the applicable mandatory minimum sentence to 60 months. The district court denied his motion, relying on prior Fourth Circuit law that the FSA was not retroactive.

On appeal the Fourth Circuit affirmed. In the wake of the Supreme Court's decision in Dorsey, which held that the FSA applied to anyone sentenced after its enactment, the court concluded that the FSA was not further retroactive to defendants like Black who had already been sentenced. It rejected Black's argument that the analysis of Dorsey, if not its specific holding, required the FSA be applied retroactively because a 3582 proceeding was a "sentencing proceeding" and that occurred after the FSA was passed. The court noted that the FSA was not, by it's plain language, retroactive; that such a holding was contrary to Fourth Circuit precedent; that Dorsey dealt with a problem not present in 3582 proceedings; and that 3582 proceedings are not "sentencing proceedings."

Judge King concurred, noting that Black's argument might be successful but for prior Fourth Circuit precedent and calling for "congressional and executive action" to remedy the remaining disparity created by the FSA's lack of retroactivity.

Wednesday, December 04, 2013

NC Mitigated Range Sentence Doesn't Avoid ACCA

US v. Kerr: This is yet another case dealing with the meaning of prior North Carolina convictions in federal court.  Kerr was convicted of being a felon in possession of a firearm and sentenced as an armed career criminal based on three 2008 NC convictions for breaking and entering.  For those convictions (apparently all sentenced at the same time) under NC's Byzantine sentencing scheme, Kerr faced a "presumptive minimum term" of 9-11 months and a "presumptive maximum sentence" of 14 months.  However, the sentencing judge found that the mitigating factors outweigh the aggravating ones and departed to the "mitigated range" of 8-10 months, with a possible maximum of 11 months.

Kerr objected to the ACCA designation at his original sentencing, arguing that he did not face more than a year for any of those convictions and thus they were not qualifying "violent felonies."  The district court disagreed.  The Fourth Circuit held his appeal in abeyance while it worked out the Simmons situation, after which it remanded for resentencing.  On remand Kerr added an argument that none of those priors were qualifying felonies for the possession statute in the first place.  The district court disagreed and reimposed the ACCA sentence.

On his second appeal, the Fourth Circuit affirmed Kerr's conviction and sentence, 2-1.  Applying Simmons and its progeny, the court concluded that Kerr's prior convictions carried a potential maximum term of 14 months, and thus were felonies.  The sentencing court's mitigation finding did not require it to impose a sentence in the mitigated range and, even if it did, that didn't change the maximum he faced upon conviction.  Because the maximum Kerr faced was over 12 months, the convictions were felonies for purposes of both his conviction and ACCA sentence.

Judge David dissented, arguing that the majority was returning to the days of "hypothetical" sentences that has been rejected by Simmons and the Supreme Court precedent on which it relied.  He argues that the hypothetical use of prosecutorial discretion to enhance a sentence (rejected by SCOTUS) is no different than the hypothetical possibility that the judge could have imposed a higher sentence in these cases.

Consent Not Valid In Bus Shelter Encounter

US v. Robertson: Robertson was sitting in a bus shelter in Durham, NC, along with several other people, when police approached.  They were responding to reports of three man chasing another who was carrying a gun.  While other officers approached three men who matched the description of the chasers, another officer approached Robertson, who was sitting with his back to the shelter's back wall and was therefore "blocked on three sides."  The officer asked Robertson if he had anything illegal.  Robertson did not answer.  The officer "waved [him] forward" and asked for consent to search.  Robertson said nothing, but stood up, turned around, and raised his hands.  A search uncovered a firearm.  Robertson was charged with being a felon in possession and was convicted after the district court denied his motion to suppress, finding that Robertson consented to the search.

On appeal, the Fourth Circuit reversed, 2-1.  Making it very clear that its holding was based only on the officer's testimony (credited by the district court) and not Robertson's (discredited), the court concluded that Robertson's silent actions were a "begrudging submission to a command."  It noted the presence of multiple police officers and squad cars on the scene, that other officers were "handling" others at the bus shelter, and that the officer's questioning of Robertson was immediately accusatory.  As a result, the district court concluded that the Government had not met its burden of showing consent was given.

District Judge Wilson dissented, not based on a disagreement with the majority's view of the facts, but on the ground that it was not sufficiently deferential to the district court's contrary conclusion.  That conclusion was not clearly erroneous, even if the facts are susceptible to both interpretations.

Monday, December 02, 2013

Indivisible common law crime calls for categorical approach to determine whether it's a crime of violence

US v. Montes-Flores:  Fabian Montes-Flores pleaded guilty to illegal re-entry. At his sentencing, the district court imposed a sixteen-level enhancement for a prior South Carolina conviction for assault and battery of a high and aggravated nature ("ABHAN"), which conviction his pre-sentence report classified as a "crime of violence" under the illegal re-entry guideline. Unfortunately for Montes-Flores, the district court concurred with the PSR classification, a decision it reached after employing a modified categorical approach to determine whether the earlier conviction qualified for the sentencing enhancement. The district court sentenced Montes-Flores at the bottom of the guidelines range it calculated for him, 46 months.

On appeal, Montes-Flores argued that his prior conviction should not be considered a "crime of violence" for sentencing purposes, and the district court should have used the categorical approach to determine the status of his prior conviction for ABHAN. The Fourth Circuit agreed with Montes-Flores, holding that divisible statutes, with some categories of crimes that constitute crimes of violence and some that do not, call for the district court to use a modified categorical approach. Divisible criminal statutes include multiple, alternative versions of the crime. ABHAN, here, according to the Fourth Circuit, is not divisible, so the district court applied the modified categorical approach in error; South Carolina’s ABHAN is not categorically a "crime of violence" because it can be committed without violent physical force. The Fourth Circuit also determined that this error was not harmless, since the district court made no indication that it desired to vary upwards in sentencing Montes-Flores. The Fourth Circuit reversed and remanded for re-sentencing.