Tuesday, December 23, 2014

Simmons-Fueled Career Offender Error Cannot Be Vacated By 2255 Motion

US v. Whiteside: Whiteside was sentenced as a career offender based on a pair of North Carolina convictions.  After Simmons, those convictions are no longer felonies.  Whiteside filed a 2255 motion within a year after Simmons was decided seeking to vacate his sentence.  The district court denied the motion, for various reasons.  On appeal, a panel of the Fourth Circuit reversed, finding that Whiteside had not waived his right to file the motion, that it was timely because it was filed within a year of Simmons and, at any rate, equitable tolling applied.  The panel also concluded that Whiteside prevailed on the merits and ordered his sentence vacated.

The Government sought rehearing and the full Fourth Circuit reversed the panel, affirming the denial of Whiteside's motion.  In doing so, the en banc court (Judge Wilkinson writing the opinion) did not reach the merits, but concluded that Whiteside's motion was not timely filed.  Although it was filed within a year of Simmons, the court concluded that Simmons only stated new law, and would not constitute a new "fact" which restarted the one-year statute of limitations in 2255.  The court distinguished between a situation where a prior conviction itself was vacated - it's nonexistence is a "fact" - and a legal change that renders the still extant conviction different in kind.  The en banc court also concluded that equitable tolling did not apply, noting that although it might have been futile for Whiteside to file a 2255 on these grounds before Simmons, other defendants had done so (Simmons, for one).

Judge Gregory dissented, joined by Judge Davis, arguing that the majority had misconstrued its ability to act equitably (in light of recent Supreme Court precedent) and that it "is simply unjust to deny someone the opportunity to receive a properly calculated sentence."  He also argues that the majority places too much weight on concerns about finality, noting the recent waves of amendments to the Guidelines that have been made retroactive.  Judge Wynn also dissented, arguing (by quoting Judge Wilkinson from 2012) that the opinion would "drive citizens to rub[] their eyes and scratch[] their heads" and that if the "objectively reasonable person on the street" was asked whether a court could fix this mistake the "response would be 'Of course.  Why do you ask?'"

Friday, December 19, 2014

Court Affirms Denial of 2255 Motion With Selective Prosecution Claim

US v. Mason: Mason was driving a car in Georgia when it was stopped for having overly tinted windows.  The trooper also suspected that Mason and his passenger were up to something because he did not pull over immediately, there was a strong air freshener smell from the car, their stories about where they were going differed, and "there was no visible luggage."  The trooper requested back up and a drug dog, noting that "these guys are spooky, spooky."  He later said that he "felt like we were fixing to have a violent confrontation" because Mason and his passenger were "older black males that are not in good shape" and they were likely "ready to shoot it out."  Mason refused to consent to search.  The drug dog arrived (after Mason got a ticket for the tint), alerted and 10 kilograms of cocaine was found in the trunk.

Mason was charged in South Carolina was conspiracy to possess with intent to distribute more than five kilograms of cocaine.  After the district court denied his motion to suppress, he went to trial, where the passenger was the primary witness against him.  In addition, a recording of a conversation between Mason and the passenger in the back seat of the cop car was introduced.  During closing argument, the Government argued that in the conversation Mason didn't express much surprise at the cocaine being found in the trunk.  The jury convicted Mason and he was sentenced to life in prison.  His conviction and sentence were affirmed on appeal.  Mason filed a 2255 motion alleging that his trial and appellate attorney had been ineffective, which the district court denied.

On appeal, the Fourth Circuit affirmed the denial of Mason's 2255 motion.  The court rejected Mason's argument that counsel was ineffective for not pursuing a claim that he was subject to "racially selective law enforcement," calling such a claim "a long shot," particularly when compared to the Fourth Amendment argument that counsel did raise.  Mason could point to no Supreme Court or Fourth Circuit cases where such a claim had been successful.  Nor did the district court err by not holding an evidentiary hearing on the issue.  The court also rejected Mason's argument that trial counsel was ineffective for not properly challenging the Government's use of his post-arrest behavior during closing argument.  The recorded conversation was done after Miranda warnings were given, was not custodial, and had no police involvement at all.

Judge Gregory concurred and dissented, arguing that Mason's trial counsel was ineffective for not even investigating the potential equal protection claim, based on the testimony of the officer during the suppression hearing.

District Court "Repeated and Direct" Urging that Defendant Accept Plea Bargain Is Plain Error

US v. Sanya: Sanya ran a credit card fraud scheme, to which he pleaded guilty in federal court July 2012.  He was released on bond pending sentencing.  Six weeks later he was arrested after having restarted the fraud scheme.  He was charged in federal court again, this time with multiple charges including access device fraud and aggravated identity theft.  The Government quickly offered a plea bargain that would allow the sentencings for the original conviction and the new charges to take place at the same time.  Sanya rejected the offer initially, but after the district court opined at a detention hearing about the benefits of doing so, Sanya changed his mind.  After entering a guilty plea, he was sentenced to a total (on both convictions) of 212 months in prison.

On appeal, the Fourth Circuit vacated his second set of convictions because of the district court's insertion of itself into plea negotiations.  Applying plain error review, the court found that the district court erred (as the Government conceded) and that the error was plain (as the Government did not).  As to whether the error affected Sanya's substantial rights, the court concluded that the record showed a "reasonable probability that, but for the error, he would not have entered the plea," including his initial refusal of the offer, the breadth of the district court's commentary, and the swiftness with which Sanya changed his mind (he signed a plea agreement five days after the hearing).  The court distinguished the Government's reliance on cases taken from other jurisdictions, raised mostly in a series of five Rule 28(j) letters filed in three weeks ("perhaps a record," the court notes).  Finally, the court concluded that the error was of the kind that it should notice, observing that the district court's comments were "repeated and direct" and that its "exhortations saturated the hearing."

Thursday, December 18, 2014

Labyrinthine sex offender registration requirements confound another defendant

US v. Collins - In this appeal, Dwaine Collins challenged his failure to register conviction on the grounds that the government failed to prove that he knew he had an obligation to register.

Collins, an illiterate man, committed the offense that triggered his 10-year registration obligation in 1998 in North Carolina.  After his release from prison, Collins relocated to Ohio where he registered.  In 2002, Collins failed to register, and moved to Parkersburg, WV.  Nine years later, he was arrested in Ohio for an attempted theft, and he received a state failure to register charge dating back to 2002.  A state court judge in Ohio had suggested to Collins in his state court proceeding that the time period for registration could have expired.  After serving a state sentence in Ohio, Collins returned to WV, where he did not register.  Approximately a year and a half later, he received the instant federal indictment for failing to register under SORNA.

The district court determined that Collins knowingly failed to register, finding ample evidence of Collins’ knowing avoidance of his obligation to register.  It held that the knowledge element of the SORNA offense was satisfied as long as Collins knew that he had to register under some scheme, federal or state, but not SORNA specifically.  The district court also determined that the state court judge was merely advising Collins, not giving him a binding legal opinion on Collins’ registration requirements going forward.  The Fourth Circuit affirmed the district court’s findings.

Collins also appealed the reasonableness of his sentence.  He received a sentence of 30 months’ imprisonment, to be followed by a term of supervised release of 10 years.   Pursuant to the Sentencing Commission’s recent clarifying amendment that the supervised release term associated with a SORNA offense is not a “sex offense,” the Fourth Circuit vacated the supervised release portion of Collins’ sentence and remanded for further proceedings.

Appellant liable as both principal and accessory after the fact

US v. White - In this case, Appellant White received three 78-month concurrent terms of imprisonment for his part(s) in the intentional burning of a two-unit apartment building he owned.  He received convictions for conspiracy to commit arson and mail fraud, aiding and abetting arson, and accessory after the fact to arson.  White made two sufficiency of the evidence challenges: 1) that the government failed to establish the interstate commerce nexus required to sustain the arson convictions of counts 1 and 2; and 2) that the evidence did not establish that he assisted an uncharged co-conspirator in evading apprehension and punishment for the accessory-after-the-fact conviction.  White further challenged his sentence, that the court should not have considered the two-unit apartment house a “dwelling”, which increased his base offense level.    The Fourth Circuit affirmed, 2-1, with a dissent from Justice Wynn, finding that, as a matter of law, a person should not be held criminal liable as both a principal and an accessory after the fact to him or herself, and the defendant’s conviction for being an accessory after the fact constitutes clear legal error.

In upholding the conviction for accessory after the fact, the Fourth Circuit discussed the government’s case, that it presented evidence of White’s false and misleading statement to an insurance representative to help an unnamed co-conspirator to avoid apprehension, which satisfying the elements of the crime.  It based its decision on a 1999 case from the 5th Circuit, which, according to Justice Wynn, “failed to acknowledge, let alone analyze, the conundrum of allowing a principal to be convicted of acting as an accessory after the fact to himself.”

(Decided November 17, 2014).

Change in law after sentencing would likely have resulted in lesser sentence

US v. Archie - In this appeal, the Fourth Circuit reviewed two sentencing issues: 1) whether the district court sentenced the defendant in violation of the 6th Amendment as set forth in Alleyne; and 2) whether the district court relied incorrectly on insufficient evidence in enhancing the defendant’s sentence under ACCA.  The Fourth Circuit affirmed.

Appellant Sherwin Archie pleaded guilty to charges arising from his part in the armed robbery of a Family Dollar store.  In anticipation of sentencing, the Probation Officer drafted a PSR, designating Archie an armed career criminal, based on three prior felony convictions: 1977 3rd degree robbery conviction from New York; 1983 attempted burglary conviction from New York; and a 1994 conviction from North Carolina for assault.  There was also evidence that Archie “brandished” a weapon in the armed robbery, and the district court made a judicial finding of brandishing, which raised the statutory minimum for Archie’s sentence.

Archie’s main issue on appeal is whether he waived the right to argue that his sentence was improperly enhanced by the district court’s determination that he brandished a weapon during the armed robbery, with the appellate waiver in his plea agreement.  Archie’s sentencing occurred just prior to the publication of the Supreme Court’s case Alleyne, which held that because mandatory minimum sentences increase the penalty for crimes, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to a jury.  

The Fourth Circuit found that, at the time of Archie’s sentencing, that the district court correctly applied the law that judicial factfinding that increases a mandatory minimum was permissible under the 6th Amendment.  Even though Alleyne soon overruled this position, the post-sentencing change in the law did not invalidate Archie’s appeal waiver, according to the Fourth Circuit.  The panel determined that Archie assumed the risk that the law under which he was sentenced could change later on, and that Archie’s appeal issue was buyer’s remorse.  Further, the Fourth Circuit has invalidated some appellate waivers in the past, but it chose not to do so here because the sentencing court did not violate “a fundamental constitutional or statutory right that was firmly established at the time of sentencing.”  

Next, Archie argued that there was insufficient evidence to prove the existence of the 1977 3rd degree robbery conviction, as the court had relied upon computerized records to establish the fact of this conviction.  Of the four records the district court considered, one of the records had an inconsistent date.  The district court disagreed and determined that the records provided established by a preponderance the conviction.  On appeal, the Fourth Circuit determined that it had previously considered the issue of what records a district court may consider in determining the fact of a prior conviction and that certified computer printouts, such as the ones submitted here by the Government, were sufficient to prove the fact of a prior conviction.

(Decided November 17, 2014).

960-month sentence survives 8th Amendment challenge

US v. Dowell - In this appeal, the Fourth Circuit considered the propriety of a 960-month sentence, and whether the sentence violates the 8th Amendment’s prohibition against cruel and unusual punishment on the grounds that the sentence was disproportionate to the severity of his crimes, and secondly, whether the district court correctly applied an enhancement for a “vulnerable victim” here.

The Fourth Circuit recently rejected a similar as-applied 8th Amendment challenge in Cobler, where it had upheld a 1440-month sentence on a child porn offender whose appeal argument was indistinguishable from Dowell’s here.  Cobler had, in fact, been convicted of fewer counts than Dowell.  In Cobler, the Fourth Circuit determined that Cobler’s “shocking and vile conduct...failed to substantiate the threshold inference of gross disproportionality” and that Cobler’s crimes were “at least as grave” as possession of 672 grams of cocaine, which the Supreme Court had considered sufficiently egregious to justify a similar sentence (see Harmelin v. Michigan).   The Fourth Circuit decided not to change that course in this case.  Moreover, the 960-month sentence imposed was within the guidelines range of life imprisonment.

The Fourth Circuit found that the application of the “vulnerable victim” enhancement here was in error, but it was a harmless one.  The district court applied the enhancement relying solely on age-related factors, which was an error.  However, the application of the enhancement here did not affect Dowell’s ultimate sentence, so the Fourth Circuit found the error was harmless.

(Decided November 13, 2014).

Illegal reentry sentence enhancement affirmed

US v. Avila  - In this appeal, the Fourth Circuit considered two procedural challenges the appellant made after his sentencing for illegal reentry.  First, he argued that the 8-level sentencing enhancement he received for having a prior conviction for 1st degree burglary in California was incorrect; and second, he argued that the district court’s explanation for his sentence was insufficient.  The Fourth Circuit affirmed.

Avila argued that the California 1st degree burglary should not qualify as an aggravated felony for the 8-level enhancement because it is not a crime of violence under Descamps’ analysis.  The Fourth Circuit found that under ACCA, this offense may not qualify as a predicate offense; however, for the enhancement here under a different statutory scheme than ACCA (to wit, 18 U.S.C. § 16), it does qualify as the definition of crime of violence in this context is more general.  Further, other courts have come to the conclusion that 1st degree burglary in California is a crime of violence, as it requires entry into an inhabited dwelling, and it presents a substantial risk of force with or without unlawful entry.

With regard to Avila’s second appeal issue, the Fourth Circuit found that the district court sufficiently explained its reasons for his sentence, by considering his history and characteristics, and that the safety of the public was the “driving reason” for the sentence it chose.

(Decided November 4, 2014).

Friday, December 05, 2014

Life Plus 60-Month Sentence Substantively Unreasonable

US v. Howard: Howard sold PCP in North Carolina, as evidenced by a string of controlled buys made from him by police.  He was charged, tried, and convicted of conspiracy to distribute, substantive distribution (nine counts), and possession of  a firearm in furtherance of drug trafficking.  All while on supervised release for a prior federal conviction.  In the PSR, Howard's advisory Guideline range was calculated as 78 to 97 months, although he faced a mandatory minimum 120-month sentence due to his prior conviction.

But Howard's sentence only rose from there.  First, the district court attributed more PCP to Howard, bumping his Guideline range up to 120 to 121 months.  Next, the Government requested a variance based on the Guidelines' undrerepresentation of Howard's criminal history, up to a Criminal History Category VI, bumping the range to 140 to 175 months.  The district court, "not satisfied," decided sua sponte that Howard was a de facto career offender and, after applying that Guideline, bumped Howard's range up to 420 months to life.  The district court sentenced Howard to life in prison on the drug counts, followed by a consecutive 60-month sentence on the gun count.  He also received a consecutive 60-month sentence following the revocation of his supervised release.

Howard appealed, challenging the substantive reasonableness of his sentence when requested to do so by the court.*  The Fourth Circuit found that Howard's sentence - life plus 60 months - was substantively unreasonable.  The "extent of the upward departure is unwarranted and amounts to an abuse of discretion" and "is not justified by consideration of the 3553(a) factors as articulated by the district court."  Specifically, the district court "abused its discretion by focusing too heavily on Howard's juvenile criminal history."  That history showed that "most of his serious criminal convictions occurred when he was eighteen years old or younger."  Looking to the Supreme Court's recent cases dealing with juvenile death penalties, the court noted that "in the sentencing context, the diminished culpability of juvenile offenders, given their lack of maturity, vulnerability to social pressures, and malleable identities."  The district court failed to address those issues.  The court also rejected the district court's conclusion that Howard's chance of recidivism was "[a]bsolutely 100 percent" by looking to his age, the age at which he might be released, and noting that recidivism declines as a person ages.  Finally, the court noted that the sentence imposed by the district court was well above what the Government recommended.  While not controlling, the experience of AUSAs can help achieve one of the key goals of the Sentencing Reform Act - avoiding unwanted disparities.

The court vacated Howard's sentence and remanded for further proceedings.  In doing so, it pointed out that it "goes without saying, then, that our holding is limited to the facts of this case."

* Although he initially appealed the supervised release sentence as well, Howard withdrew that issue and that appeal was dismissed.  Howard also challenged the sufficiency of the evidence supporting his convictions, an argument the court rejected.