Monday, December 23, 2019

Maryland robbery is ACCA Predicate; Possession With Intent Is “Controlled Substance Offense”

US v. Johnson: Johnson was convicted of being a felon in possession of a firearm. At sentencing, the Government argued that he qualified for a 15-year mandatory minimum sentence under the Armed Career Criminal Act because of a prior conviction in Maryland for robbery. The district court disagreed. It also disagreed with the Government that Johnson’s prior conviction (also in Maryland) for possession with intent to distribute was a “controlled substance offense” under the Sentencing Guidelines. Johnson was sentenced to 51 months in prison, the bottom of the advisory Guideline range calculated by the district court.

The Fourth Circuit vacated the sentence, finding that the district court had erred with regard to both conclusions. As to the robbery conviction, the court noted that Maryland robbery can be committed by either the threat of violence or the actual use of violence in the taking of property from another. The court concluded that both of those versions of the offense met the “violent force” requirement of ACCA. The threat of violence, under state law, requires a threat of bodily harm, which is sufficient to meet the standard. Using actual force requires enough to overcome the will of the victim, but has to be more than the force necessary to take the property. That, too, met the ACCA standard, according to the court. As to the possession with intent conviction, the court rejected Johnson’s argument that under Maryland law the offense could be committed by merely offering drugs to another person, without any intent to distribute, finding that position unsupported in Maryland statutory and case law.

Court Affirms IADA Dismissal Without Prejudice; Other Related Issues

US v. Peterson: Peterson and his codefendant, Bun, were inmates in a South Carolina prison when they were charged federally with running a methamphetamine distributing ring while incarcerated. They were brought to federal court but Peterson, in violation of the Interstate Agreement on Detainers Act (“IADA”) was sent back to state prison in violation of the Act’s “anti-shuttling” provision. The district court dismissed the indictment without prejudice as to both defendants, but a new indictment was obtained (and a subsequent superseding indictment) and both defendants were eventually convicted after a jury trial and sentenced to lengthy terms of imprisonment (to be served consecutively to their lengthy state terms of imprisonment).

The Fourth Circuit affirmed the convictions, focusing on the arguments related to the IADA and similar issues arising under the Speedy Trial Act (“STA”). First, the defendants argued that the district court should have dismissed the initial indictment with prejudice rather than without (a similar state violation under the IADA would require dismissal with prejudice). Reviewing for abuse of discretion, the court looked at the three factors the IADA lays out for making that determination and found that they all cut against the defendants. First, all parties agreed that the seriousness of the charged offenses weighed in favor of dismissal without prejudice. Second, the court concluded that the “surrounding facts and circumstances” weighed in favor of dismissal without prejudice because although the US Marshals in South Carolina have a history of violating IADA in this particular case the moving of Peterson was done at his request so that he could be closer to counsel. Finally, the court concluded that the “administration of justice” weighed in favor of dismissal without prejudice because although the defendants were already serving long state prison sentences (in Bun’s case, a life sentence) the federal government has a “weighty interest” in seeking convictions for offenses committed against the United States. The court next held that the defendants’ speedy trial rights under IADA were not violated because those provisions should be construed as closely as possible to match the STA and the delays here were excusable under the STA. Finally, the court held that the superseding indictment was not untimely filed under the STA because the indictment returned after the dismissal of the initial indictment was done within the 30-day limit set forth in the STA.

Untimely Appeal Dismissed, Even Though District Court Failed to Inform Defendant

US v. Marsh: Marsh pleaded guilty to various fraud and related charges pursuant to a plea agreement that include a broad waiver of his appellate rights. He was sentenced to 78 months in prison (the bottom of the applicable Guideline range) and three years of supervised release. At no time during the sentencing hearing did the district court inform Marsh of his right to appeal and the deadline for filing a notice of appeal, as required by Rule 32(j) of the Rules of Criminal Procedure. Marsh eventually filed a notice of appeal months after his judgment was entered.

A divided Fourth Circuit dismissed the appeal because it was not timely filed. However, the court did first reject the Government’s argument that there was no Rule 32(j) violation because Marsh had waived his right to appeal, noting that even the broadest of waivers cannot cover every possible appellate issue. The court then turned to the issue of whether “a district court’s error in failing to inform a defendant at sentencing of a right to appeal can excuse a defendant’s late filing of a notice of appeal.” While noting that the appeal deadline in Rule 4(b) of the Rules of Appellate Procedure was a “nonjurisdictional claim-processing rule,” the court concluded that it must still be “strictly applied” if one of the parties properly raises. Therefore, the court could neither excuse the late filing nor could the deadline be equitably tolled. Marsh’s avenue for relief would be a 2255 motion where the error would not be the denial of a meritorious appeal, but of the appeal process itself.

Chief Judge Gregory dissented, arguing that he doubted that “the drafters of the relevant procedural rules at play in this case intended them to be read in a way that is more forgiving to judges than criminal defendants” and would remand the case to the district court for factual development as to whether equitable doctrines applied.