Friday, December 22, 2017

Defendant Who Fails on Plain Error Appellate Review Can Prevail on Ineffective Assistance of Counsel for Failure to Raise Issue

US v. Carthorne: In 2010 Carthorne pleaded guilty to drug and gun charges and was determined, in the PSR, to be a career offender based on a Virginia conviction for assault and battery against a police officer. Trial counsel didn't object to the classification of that offense as a crime of violence or Carthorne's designation as a career offender. He explained at sentencing that he had "labored over that case long" and asked "providence for a lucky break," but conceded that he couldn't find anything to support an argument that Carthorne wasn't a career offender. Counsel admitted "I'm not a good lawyer" and went on to argue for a variance based on the facts of the actual prior offense - Carthorne spit at a cop. The district court varied slightly and imposed a sentence of 300 months, 89 months higher than the top of the non-enhanced Guideline range.

Carthorne appealed his career offender designation, but was stuck with plain error review. The Fourth Circuit affirmed, finding that the Virginia prior was not a crime of violence, and thus there was an error, but that the error was not plain because existing precedent didn't require that result. Carthorne then filed a 2255 motion alleging that his trial counsel had been ineffective for failing to object to the career offender designation on the ground that his prior conviction wasn't a crime of violence. The district court denied the motion. While Carthorne could easily show prejudice - had he been on de novo review on appeal he would have prevailed - the court concluded that he could not show that his counsel's performance had been deficient "essentially for the same reasons that the Fourth Circuit found not plain (i.e., obvious) error on direct appeal."

On appeal the Fourth Circuit reversed the denial of Carthorne's 2255 motion. The court concluded that the plain error standard and the Strickland ineffective assistance standard are fundamentally different and based in different sources - Federal rules and the Sixth Amendment, respectively. Therefore, they serve "different, yet complementary, purposes" and involve different variants of prejudice. While plain error looks only to settled law, effective assistance of counsel frequently requires "that counsel raise material issues even in the absence of decisive precedent." At the time of Carthorne's original sentencing although there was no precedent directly on point there were cases that "strongly suggested at the time that [the offense] did not qualify as a crime of violence." The sentencing transcript showed that counsel didn't really understand the crime of violence analysis and there was no strategic reason for failing to make an objection to the career offender determination. Therefore, Carthorne had demonstrated deficient performance of counsel, as well as prejudice, and was entitled to be resentenced.

Court Can Sua Sponte Dismiss Untimely Appeals, But Should Do So Sparingly

US v. Oliver: Oliver pleaded guilty to drug charges in 2011. The next year he filed a timely 2255 motion challenging his sentence. The district court ultimately denied the motion in 2015. Three months later, Oliver filed a pro se notice of appeal - from the 2011 original judgment in his case. Counsel was appointed, who filed an Anders brief. The Government didn't file a response brief and Oliver did not file a pro se brief.

There was no doubt that Oliver's notice of appeal was filed years after the 14-day deadline in the Rules of Appellate Procedure. This does not deprive the Fourth Circuit of jurisdiction, because the deadline is merely a claims processing rule, but would generally result in dismissal if the Government asked for it. Since the Government did not, the issue was whether the court could dismiss the appeal sua sponte. The court concluded that it could, given "the potential consequences of adjudicating untimely criminal appeals," including situations - like this one - where the defendant has already unsuccessfully sought collateral review. Having said that, the importance of preserving the adversary system "and its benefits weigh heavily against" invoking that authority. This case, however, was one in which that authority could be exercised, particularly because Oliver had already sought collateral review of his conviction. In doing so he relied upon the finality of his conviction and could not later go back and seek to undermine it. The court dismissed Oliver's appeal.

Wednesday, December 20, 2017

Court Allows Serial Revocation, Sentencing, of Supervised Release Violations

US v. Harris: Harris was serving a term of supervised release when he was subject to a traffic stop that uncovered guns and drugs. He was arrested and a petition to revoke was filed alleging that he had violated the law by possessing those items. Addenda were filed with additional allegations (after the Government learned that Harris was part of a state murder investigation), including failing to notify his probation officer after contact with law enforcement and new state criminal charges. At a revocation hearing the district court concluded Harris had violated by failing to report, revoked Harris, and sentenced him to a month in prison, followed by 40 more months of supervised release. The other allegations were held in abeyance pending the outcome of proceedings in state court. While in prison, Harris was indicted federally for being a felon in possession of a firearm during the traffic stop. The Government filed another addendum based on that indictment and sought to dismiss the remaining allegations. The district court granted that motion, then revoked Harris a second time, imposing a 36-month term of imprisonment and a further 24-month term of supervised release.

On appeal, the Fourth Circuit affirmed Harris's revocations and sentences. The court noted that it "it well-established that a revocation does not end a term of supervised release" and that "[a]fter revocation, the defendant continues to serve his term of supervised release, but does so in prison." Previously, the court had held that "the district court's jurisdiction over the supervised release continues past revocation" and "the district court's supervisory authority continues as well." As a result, it does not matter that the second revocation was based on an allegation that was made after the first revocation, but involving conduct that occurred before the first revocation. Furthermore, the court found that the combined sentences imposed for Harris's revocations did not exceed the statutory maximum because those limits apply to every revocation and do not aggregate. Thus, with regard to the total new supervised release terms imposed - 64 months, beyond the 60-month statutory maximum - the court held that 18 USC 3583(e)(3) "does not require the district court to credit time previously served on post-release supervision" and so the "district court could sentence Harris up to 60 months of supervised release upon his second revocation without giving credit for any of the time that he had already served." The same is true for the terms of imprisonment. The court also rejected Harris's argument that the second revocation was "additional punishment for his already-revoked, original term" because that "theory would convert per-revocation maximums into per-term of supervised release maximums" which is "contrary to Congress's intent to create a per-revocation maximum."

Use of Peer-to-Peer Software Constitutes Distribution for CP Cases

US v. Stitz: Stitz entered into a plea agreement with the Government to plead guilty to distribution of child pornography. He agreed to a stipulation which set forth that the FBI had used the ARES peer-to-peer file sharing network to download images of child pornography from Stitz's computer (three times). The stipulation also set forth that Stitz told the FBI that he knew "his computer was sharing child pornography files on the ARES network." At sentencing, Stitz argued that he did not intend to distribute any images and his distribution was "passive." In light of that, and other sentencing factors, the district court varied and imposed a sentence or 121 months in prison.

On appeal, the Fourth Circuit affirmed Stitz's conviction. In spite of the plea agreement and stipulation, Stitz argued that there was no factual basis to support a plea of guilty to distribution of child pornography. Reviewing for plain error, the court found not error in the district court accepting Stitz's guilty plea, plain or otherwise. The court noted that the only mens rea requirement for distribution of child pornography is that it was done knowingly, not with bad or evil intent. The record contained multiple instances where Stitz admitted that he knew the files on his computer were being shared with others. The court went on to conclude that the use of a peer-to-peer file sharing system constitutes distribution of child pornography, so long as files are actually available to others. The court had already reached the same conclusion with regard to distribution under the Guidelines and every other Circuit that has decided the issue has reached the same conclusion.

Friday, December 08, 2017

Forcing Minor to Masturbate to Collect Evidence Violates Fourth Amendment

Sims v. Labowitz: This is a 1983 civil rights case arising from a state child pornography investigation in Virginia. 17-year old Sims got in trouble for sending a video of his erect penis to his 15-year old girlfriend. While investigating that an officer, Abbott (who died before the suit - Labowitz his the administrator of his estate), with the aid of a prosecutor, obtained a search warrant allowing him to take pictures of Sims's penis, including while erect. Abbot snatched up Sims, took him to a juvenile detention center and, in a room with two other officers, took pictures. During the process he instructed Sims to "use his hand to manipulate his penis" in order to get a picture of it while erect. Sims couldn't meet the challenge. Undeterred, Abbot got a second warrant and told Sims's attorney that if Sims couldn't perform again he would be "taken to a hospital to give him a an erection-producing injection." The second warrant was never executed and the more-senior prosecutor agreed not to use any of the pics taken pursuant to the first warrant. Sims was basically given a pretrial diversion, with the charges dismissed if he performed well on probation. Once his probation term was over (and the charges gone), Sims sued on two grounds: (1) that the execution of the warrant violated his Fourth Amendment rights, and (2) that under 18 USC 2255(a)(1) he was a victim of the production of child pornography. The district court dismissed the case.

On appeal the Fourth Circuit reversed the dismissal, 2-1, on the Fourth Amendment issue. First, the court found that Abbot's search did violate Sims's Fourth Amendment rights. Walking through a four-step analysis, the court concluded that both the scope of the intrusion and the manner in which the search was convicted were unreasonable, noting that sexually suggestive searches are "terrifying, demeaning, and humiliating." Furthermore, the place where the search was conducted contributed to the violation. Finally, the court held that there was no legitimate evidentiary purpose behind the warrant (so far as I can tell there's nothing suggesting that someone - the victim, presumably - was going to identify Sims based on some particular characteristic of his anatomy). In fact, the court concluded that it "cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others." Second, the court concluded that Abbot was not entitled to qualified immunity because a reasonable officer in his position would have known such a search was unreasonable, even in light of the warrant authorizing it. The court affirmed the dismissal of the production of CP count (because Abbot wasn't doing what he did for "lascivious" reasons) and remanded the case to the district court for further proceedings on the 1983 claim.

Judge King dissented on the Fourth Amendment issue, arguing that there was no violation and, even if there was, Abbot was entitled to qualified immunity.

North Carolina Robbery Matches "Generic" Robbery Listed In Guidelines

US v. Gattis: Gattis was convicted of being a felon in possession of a firearm. Of the many Guideline calculation issues in his case the primary one was whether his prior conviction for robbery in North Carolina was a "crime of violence" that would drive up his base offense level. Gattis was sentenced under the current/post-Johnson Guidelines, so to qualify as a crime of violence it either had to involve as an element the use of force or match one of the offenses specifically set forth in the Guidelines - which now includes robbery. The district court concluded it did qualify as a crime of violence and sentenced Gattis accordingly.

On appeal, the Fourth Circuit affirmed. The court recognized that, based on Gardner, robbery in North Carolina does not require the use of "violent force" and could not qualify as crime of violence under the force clause. Therefore, the court dove into, for the first time so far as I can tell, defining what "generic" robbery under the Guideline meant. The court ultimately rejected the Model Penal Code formulation in favor of the one used by Professor LeFave. This is because the MPC version - which requires "serious bodily injury" (or the threat thereof) has "not been widely adopted" in the states. Instead, relying on LeFave, the court concluded that "generic robbery is defined as the 'misappropriation of property under circumstances involving [immediate] danger to the person.'" The court went on to concluded that "immediate danger" is "categorically satisfied by the taking of property 'from a person or a person's presence by means of force or putting in fear.'" It distinguishes robbery from larceny from the person as occurring "only when the offender takes property by using force or by threatening immediate physical harm." Such a threat "may be express or implicit but it must be sufficient to include the victim to part company with the property." Applying this definition, North Carolina robbery was a "clean match" where "North Carolina common law robbery is thus subsumed within - and is a categorical match with - generic robbery." The amount of force necessary to match the generic offense is less than needed under the force clause.