Tuesday, January 29, 2019

Entry Consensual, Questioning Not Custodial, After Threat to Knock Down Door

USv. Azua-Rinconada: Azua-Rinconada was at his home when Homeland Security agents doing “knock and talks” in his neighborhood. The agents knocked on his door, demanded that he open the door, said they were from “Publisher’s Clearinghouse,” and then eventually said (in Spanish) “open the door or we’re going to knock it down.” Azua-Rinconada’s pregnant fiancĂ©, Powell, opened the door at Azua-Rinconada’s direction. Powell said she opened the door “with consent” and “found the officers to be ‘professional’” once they came in. Once they were inside, one talked with Azua-Rinconada and eventually convinced him to fill out a questionnaire that raised questions about his immigration status. A warrant check showed that there were two warrants for deportation. Azua-Rinconada was arrested and convicted of illegal reentry.

On appeal, Azua-Rinconada argued that his right were violated both by the agents’ entry and by the questioning that lead to the discovery of his immigration status. As to the entry, he argued it was not consensual, relying on the threat to knock down the door. The Fourth Circuit disagreed, finding that the totality of the circumstances, including Powell’s testimony and body cam footage, showed that the entry was consensual. Similarly, the court rejected Azua-Rinconada’s argument that his statement was given without Miranda warnings because he was in custody, finding that the questioning did not happen in a custodial setting.

Judge Keenan concurred, writing separately to highlight that this “opinion should not be construed as deviating from this Circuit’s well-established precedent that a defendant’s alleged consent to a search of his property ordinarily will be deemed invalid when that consent was obtained through an ‘officer’s misstatement of his or her authority.’” This case “presents a rare
exception to this general principle.”

Government Bound By Promises In Plea Agreement In Face of Changed Facts

USv. Edgell: Edgell pleaded guilty to being a drug user in possession of a firearm and distributing methamphetamine. As part of a plea agreement, the parties stipulated that the conduct involved “less than five (5) grams of substances containing a detectable amount of methamphetamine.” The advisory Guideline range contemplated by the parties was 10 to 16 months in prison and the Government agreed to argue for the “lowest end of the applicable guideline range.” Prior to sentencing, however, the Government received lab tests showing that the methamphetamine involved was actually pure and provided that information to the probation officer and the court. As a result, Edgell’s Guideline range went up to 30 to 37 months. At sentencing the Government argued for a 30-month sentence, which the district court imposed.

On appeal, the Fourth Circuit vacated Edgell’s sentence based on the Government’s breach of the plea agreement. Edgell argued there were two breaches. The first was when the Government provided the lab results to the probation officer and district court. The court found this was not a breach, as the Government always has a duty to assure that the district court has the fullest, accurate information at sentencing and, at any rate, the specific language of the plea agreement allowed such disclosures. However, the court agreed with Edgell’s second alleged breach, holding that the Government was required to adhere to its promise to argue for no greater than a 10-month sentence based on the stipulation to which it agreed. The court ordered the case remanded to the district court for resentencing before a different judge.

Congrats to the Defender office in NDWV on the win!

No Change In Applying Categorical Approach to 924(c)

USv. Simms: Simms was convicted of Hobbs Act robbery and a 924(c) gun charge with the robbery as the underlying “crime of violence.” Simms and a confederate snuck into a McDonald’s (through the drive-through window), robbed the store of $1100, and both brandished and struck someone with the gun. Simms pleaded guilty to both counts, but argued at sentencing that the 924(c) conviction was unconstitutional under Johnson. The district court disagreed and imposed a cumulative sentence of 199 months in prison.

Simms appealed, reiterating his argument that under Johnson, and later Dimaya, the residual clause of 924(c) was unconstitutionally vague. The Fourth Circuit decided that the case presented an issue of “exceptional importance and recurring nature,” so it took the case en banc. The court reversed Simms’ conviction on the 924(c) count, 8-7. There was no real dispute that after Dimaya, applying the categorical approach, the residual clause was vague. The issue, rather, was whether the categorical approach had to be used in 924(c) cases.

Writing for the majority, Judge Motz held that the categorical approach was required. That was due both to the plain language of the statute, as well as the case law that had consistently interpreted it over the years. The court noted that, although it didn’t prevent it from reaching the merits of the case, the Government’s about-face on whether the categorical approach was required did play into its ultimate analysis. The court rejected the Government’s attempt to use the doctrine of constitutional avoidance to reach a different conclusion, holding that it would lead to rewriting the plain language of the statute. The court also noted that upon remand the district court could still impose a 199-month sentence and take the use of the firearm into account. In a concurrence, Judge Wynn pointed out that the Government’s avoidance argument, if successful, would mark the first time the doctrine was used to broaden a criminal statute, not narrow it.

The main dissent was written by Judge Niemeyer, who argued that the Supreme Court had been clear that when residual clauses are deployed to charged conduct that they are not vague. The real issue in a 924(c) conviction is not the generic nature of the alleged crime of violence – here, Hobbs Act robbery – but the nature of the particular crime with which the defendant was charged. In light of that, it’s clear (given the use of the gun to threaten and beat victims) Simms’ 924(c) conviction was still good. Judge Wilkinson dissented separately (he joined the main one as well) to take the majority to task for engaging in part of a long process on the part of appellate courts of refashioning classic factual determinations into legal ones. Along the way, that shifts the ultimate decision-making ability from the lower court/jury to the appellate courts, who otherwise would only review for clear error or abuse of discretion.

Congrats to the Defender office in Western NC on the amicus win!