Tuesday, April 29, 2014

Court Splits On Assumed Harmless Error Analysis For Within Guideline Sentences

US v. Gomez-Jimenez: This is a consolidated appeal involving two codefendants, Gomez-Jimenez and Juarez-Gomez (there was a third defendant, Pedro, who didn't appeal).  Investigators used a CI to make several controlled purchases of cocaine from Juarez-Gomez.  After the final buy, Juarez-Gomez was arrested and officers went to search a mobile home, where Gomez-Jimenez and a minor were located, along with drugs, cash, and a firearm.  All three defendants were charged with conspiracy to distribute and possession with intent, with Juarez-Gomez additionally being charged with four counts of distribution and being an illegal alien in possession of a firearm.  Gomez-Jimenez pleaded guilty to both counts.  The district court imposed a sentence of 180 months in prison, noting that even if it had calculated the Guidelines incorrectly, it would impose the same sentence.  Juarez-Gomez went to trial and was convicted on all counts, aside from the firearm count.  He was sentenced to 390 months in prison, with the district court again noting it would have imposed the same sentence regardless of the Guideline calculations.

The Fourth Circuit affirmed all sentences and convictions, but not unanimously.  Juarez-Gomez challenged conspiracy and possession with intent convictions, which the court concluded were supported by sufficient evidence.  As to sentencing, Juarez-Gomez argued that the district court erred by enhancing his sentence for use of a minor to commit or avoid detection or apprehension for the offense.  Recognizing that the enhancement only applies where there is evidence "beyond the minor's mere presence," the court concluded that the district court did not clearly err in applying the enhancement because there was sufficient evidence that the minor was involved with the offense.  Gomez-Jimenez argued that the district court erred by enhancing his sentence for possession of a firearm because he did not possess a firearm during any drug transaction.  The court disagreed, noting that three guns were found in the trailer (along with Gomez-Jimenez) and there was ample evidence to support the enhancement.  Both defendants challenged another enhancement, but the court declined to address them on the merits and proceeded to an assumed harmless error analysis.  The court concluded that the district court had expressly stated it would have applied the same sentences regardless of any Guideline calculation error and the resulting sentences were substantively reasonable.

Judge Gregory concurred with regards to Juarez-Gomez's convictions and Gomez-Jimenez's firearm enhancement, but dissented with regards to everything else.  First, he argued that the definition of "use" in the Guidelines with regard to a minor is "elastic," but did not stretch so far as to include the conduct in this case.  Second, he argued that the district court's announcement that it would have imposed the same sentences regardless of the Guidelines calculations was not sufficient for the court to be "clear" such would have happened, as the sentences then imposed would have been large upward variances that the district court did not justify.

Court Affirms Death Sentence In Double Murder; No Right of Confrontation At Capital Sentencing

US v. Umana: Umana shot and killed two men in a North Carolina restaurant after a dispute over music and because one of the victims disrespected MS-13, the gang to which Umana belonged.  He was convicted on multiple counts arising from the murders which carried the potential maximum sentence of death.  During trial, Umana tired to smuggle a blade into the courtroom and threatened a witness after he testified.  After hearing evidence about Umana's lengthy history with MS-13 (which continued after his arrest), including participation in other murders, the jury sentenced him to death.

The Fourth Circuit affirmed Umana's convictions and sentence.  On the convictions, it first concluded that venue was proper in the Western District of NC, even though the shootings took place in the Middle District, because the racketeering operation of which the murders were a part took place in both districts.  Second, the court rejected (under a plain error analysis) Umana's argument that the murder in aid of racketeering charges fell outside the scope of Congress's authority under the Commerce Clause.  Third, the court rejected Umana's argument that two jurors, who expressed some equivocation as to their ability to fairly consider the case, should have been excused for cause.

On the sentence, the court first held that the use of a statement Umana gave to California investigators after his arrest about his activities there did not violate the Fifth Amendment, as he was given Miranda warnings, he explained them, and was otherwise willing to talk.  It did not matter that the investigators told him the statement would not be used in this case and he had "nothing to lose" by talking to them.  Next, the court concluded that the testimony of officers about their interviews with other witnesses was properly admitted, as it was not hearsay and did not implicate the Confrontation Clause, which does not apply during sentencing proceedings.  Nor did the district court err by admitting those statements, even though they contained comments from the investigators that appeared to vouch for their credibility.  Third, the court held that the district court did not err by precluding Umana from introducing evidence of murders committed by his coconspirators, in order to show "his own violent proclivities were not unique, but rather were a 'product of social conformity.'"  Finally, the court rejected Umana's claim that statements by the prosecution during closing arguments were improper and prejudicial.

Judge Gregory dissented, arguing that the Confrontation Clause does apply to capital sentencing, although it does not in non-capital sentencing proceedings.

NOTE: The court denied Umana's request to reconsider its decision en banc.  The request did, however, provoke substantive opinions from Judge Wilkinson (not in favor of rehearing) and Judge Gregory (in favor), which can be found here.

Child Porn Distribution Is Relevant Conduct of Possession Offense

US v. McVey: McVey was convicted of possession of child pornography based on a DVD he received from an undercover police officer.  During a statement to police after his arrest, McVey admitted that he had uploaded child pornography to the Internet five or six times over the course of ten years.  In addition, investigators found a tip report of McVey uploading child pornography 30 months prior to his arrest.  At sentencing, the district court concluded that the uploading constituted relevant conduct, and therefore triggered the Guideline distribution enhancement. McVey was sentenced to a term just below the resulting Guideline range.

On appeal, the Fourth Circuit affirmed the district court's relevant conduct determination.  The court first concluded that the proper standard of review was clear error, rather than de novo, because the issue was ultimately about the weighing of evidence, not the legal analysis used to determine whether something was relevant conduct.  The court then went on to conclude that the district court did not clearly err in finding that McVey's distribution constituted relevant conduct.  Particularly, the court relied on McVey's statement that he had distributed child pornography several times over the past ten years and the similarity of his offense of conviction (possession) with the prior conduct (distribution).  The court noted that "[p]ossession is a necessary prerequisite for distribution."

Court Affirms Pro Se Drug Conviction

US v. Galloway: Galloway was implicated as part of a drug investigation that began in San Diego, but eventually reached Galloway in Baltimore.  He was convicted of conspiracy to distribute heroin, based largely on evidence gained from wiretaps of his cell phones, as well as the expert testimony of two investigators (one from San Diego, the other from Baltimore) about the nature of the drug operation.  Galloway represented himself at trial, after firing two prior attorneys.  He was sentenced to 292 months in prison.

On appeal, the Fourth Circuit affirmed Galloway's conviction (he did not challenge his sentence).  The court first rejected Galloway's claim of ineffective assistance of counsel (of his initial, retained counsel, fired well before trial), holding that he could not conclusively prove either ineffectiveness or prejudice, noting that Galloway's second counsel had an opportunity to make up for any errors of the first and that, ultimately, Galloway represented himself at trial.  Next, the court concluded that the district court had not abused its discretion by limiting Galloway's review of discovery and other documents, limiting his access to the lockup in the courthouse, rather than allowing him to retain documents at the jail.  Third, the court affirmed the district court's decision that there was sufficient evidence to justify one of the wiretaps at issue.  Finally, the court concluded that the district court had not plainly erred by allowing the investigators to testify as experts.

No Problem With 120-Year Sentence for Child Porn Producer

US v. Cobler: Cobler sexually abused a four-year-old boy (at a time when he was "afflicted by a serious communicable disease"), which he documented on video and in pictures.  He also admitted to downloading and sharing child pornography over a peer-to-peer network on the Internet.  Cobler pleaded guilty to multiple child pornography offenses, including three production counts, and was sentenced to 120 years in prison.

The Fourth Circuit affirmed Cobler's sentence.  He argued first that it violated the Eighth Amendment's ban on cruel and unusual punishment.  The court reaffirmed its position that an "extensive proportionality" analysis is available only in cases of actual life terms in prison or de facto life terms.  It then concluded, as the first step of that analysis, that Cobler's sentence was not "grossly disproportionate to his crimes."  Calling his conduct "shocking and vile," the court concluded it was "at least as grave" as the cases in which the Supreme Court had upheld life sentences.  The court also found Cobler's sentence to be reasonable, concluding that he had not rebutted the presumption of reasonableness for his within-the-Guidelines sentence.

Wednesday, April 09, 2014

Simmons-Fueled Miscalculation of Career Offender Status Can Be Reviewed In 2255 Proceeding

Whiteside v. US: This is yet another in the line of cases arising from the Fourth Circuit's sea change on how it views North Carolina's sentencing scheme in Simmons.  Whiteside was classified as a career offender before Simmons based on a pair of North Carolina convictions.  Within a year of Simmons being decided, but more than a year after his case had become "final," Whiteside filed a 2255 motion seeking to vacate his sentence.  The district court dismissed the motion, concluding that it was untimely, that Whiteside had waived his right to file it due to a waiver in his plea agreement, and that, at any rate, he had no right to relief because his sentence was within the correct statutory range.

A deeply divided Fourth Circuit reversed.  Judge Gregory, for the majority, first concluded that Whiteside had not waived his right to file the 2255 motion, noting that there was conflicting language in the agreement and, when construed against the Government, Whiteside's challenge to his career offender status was not waived.

Second, the court concluded that although Whiteside's motion was filed outside the usual one-year window, it was filed within one year of the decision in Simmons and equitable tolling applied because extraordinary circumstances (of which Whiteside had no control) prevented him from filing the motion earlier.  Those circumstances, the court candidly acknowledges, included its own incorrect decisions about the North Carolina scheme before it reversed course in Simmons.  Specifically, had Whiteside filed a 2255 motion within one year of his case becoming final, it would have been futile under then binding Fourth Circuit law.  The court labelled the Government's argument that he should have filed one anyway as "having an air of absurdity about it."

Finally, turning to the merits, the court concluded that Whiteside could challenge his sentence collaterally due to "an incorrect application of the career offender enhancement."  It distinguished this from the "ordinary misapplication" of the Guidelines, which is not a "miscarriage of justice" and not subject to collateral attack.  In response to the dissent, it points out that the "career offender enhancement is plainly not a run-of-the-mill guideline."  In doing so, the court noted that other circuits have not reached the same conclusion, except for the Eleventh Circuit, in a panel decision that's already been vacated pending an en banc rehearing.  Nonetheless, relying on recent Supreme Court decisions emphasizing the key role of the Guidelines in a post-Booker world, the court held that an erroneous career offender designation meets the high standard required for 2255 relief.  It rejected the Government's argument that the sentence was "lawful" because it was within the applicable statutory range, aside from any Guideline issues.  Whiteside's sentence was vacated and remanded for further proceedings.

Judge Wilkinson wrote a lengthy dissent, in which he argued that the court's decision was a "dramatic expansion of federal collateral review" that "makes a shambles of the retroactivity doctrines that have long safeguarded the basic finality of criminal convictions."  He argued that Whiteside's sentence was not improper when it was applied and that no change in the law sense makes it the kind of violation (a due process violation, specifically) that is reviewable in a 2255 proceeding.  He also argued that there was no miscarriage of justice in Whiteside's sentence, noting how divided the court was when Simmons itself was decided.  To conclude otherwise was to "adopt a naively Whig history of law as an unbroken march toward progress and enlightenment." (To which the majority responds that the dissent is "rank with the fearful mistrust of individualized decision-making inherent to traditional conservatism.").  He also argued that Whiteside's motion was untimely and that futility was not a valid reason for not filing a 2255 before Simmons was decided.  Wilkinson concluded that "I view this decision as wholly wrong and deeply damaging to our criminal-justice system."

Senior Judge Davis concurred, noting that the majority opinion "fully responds to the dissent's overwrought and formalistic protestations that our judgment here presages an end to law as we know it." He called the dissent "hopelessly pleased with itself . . . as it prostrates itself at the altar of finality."  He also took the dissent and the Government to task for putting control of whether such cases would be reviewed in the hands of the Department of Justice (which, the opinion shows, had frequently not invoked waivers in similar cases), rather than the courts.

Congrats to the Defender office in the Western District of NC on the win!

NOTE: On June 6, 2014, the Government filed a petition for rehearing en banc in this case.  Rehearing was granted and, on December 19, 2014, the en banc court reversed and affirmed the denial of Whiteside's 2255 motion.