Thursday, February 28, 2019

Quick Hits - Adam Walsh Act, 3582 Appeals, Access Devices

These cases don’t require a lot of discussion, but folks ought to be aware of them:

  • US v. Charboneau: In this Adam Walsh Act case the Fourth Circuit held that a diagnosis of “paraphilic disorder” is not required in order to commit someone under the Act as a sexually dangerous person.
  • US v. Martin: In this pair of consolidated cases, the Fourth Circuit held that in denying a defendant a reduced sentence under 18 USC 3582, the district court must provide an explanation sufficient enough for the court of appeals to substantively review the decision (just like any other sentencing).
  • US v. Carver: The issue in this case is whether the $500-per-device loss measurement in access device cases requires working access devices. The Fourth Circuit concluded that it does not, creating a circuit split with the Ninth Circuit.

Court Applies Precedent in Rule 11 Plain Error Case, Calls for Revision

US v. Lockhart: Lockhart was charged with being a felon in possession of a firearm and pleaded guilty. During the Rule 11 colloquy, the magistrate judge informed Lockhart that the maximum sentence he faced was ten years in prison. There was no mention of a possible 15-year mandatory minimum sentence under the Armed Career Criminal Act. Sure enough, Lockhart qualified for sentencing under ACCA. Although the probation officer took note of the oversight in the PSR and Lockhart objected to the ACCA classification, he did not object to the failure to be informed of the ACCA statutory changes during his plea or seek to withdraw his plea. After being sentenced to the required 15-year term, Lockhart’s counsel explained that he “went over [ACCA] beforehand” and Lockhart was “fully aware of that.”

On appeal, Lockhart argued, under plain error, that the magistrate judge had erred by failing to advise him of the ACCA impact on his sentencing exposure. The Fourth Circuit panel very reluctantly affirmed Lockhart’s sentence. Writing for the panel, Judge Keenan held that their hands were tied by the court’s 2009 decision in Massenburg. Applying an earlier Supreme Court decision that requires a person to show there was a “reasonable probability” that he would have not pleaded guilty but for the error, Massenburg requires that such a showing “must appear affirmatively on the record.” Judge Keenan points out that this essentially requires a defendant to prove plain error by using the very record evidence that is absence because of the error. Nonetheless, because Massenburg is controlling, Lockhart loses on the third plain-error prong.

Chief Judge Gregory and Judge Floyd both concurred, arguing that Massenburg needs to be revisited.

UPDATE: The court granted rehearing en banc in this case and vacated Lockhart's plea.

Violation of Military Law Not Basis for Fourth Amendment Suppression

US v. Seerden: Seerden was in the Navy, stationed in California, but at a training in Virginia, when he was accused of sexual assault. As part of that investigation, military investigators wanted to search his phone and could do so with the permission of “commanding officer,” but were unclear whether that was the commander in California or Virginia. After consulting with JAG authorities, permission was obtained from Seerden’s commander in California. While doing an initial scan of the phone a technician saw what he thought might be child pornography. A civilian search warrant was obtained and there was, indeed, child pornography on Seerden’s phone. The district court denied Seerden’s motion to suppress, holding that while the initial search was illegal, the second was saved by good faith. Seerden pleaded guilty to production of child pornography and was sentenced to 324 months in prison.

On appeal the Fourth Circuit affirmed the district court’s denial of the motion to suppress, but on different grounds. The district court had concluded that the initial search violated military law because investigators had sought permission to search from the wrong commander – it should have come from the one in Virginia. The Fourth Circuit disagreed with that conclusion because, ultimately, the only law that matters is the Fourth Amendment and whether the search was reasonable and a violation of military law does not make the search unreasonable. Even the violation of military law controlled, the evidence from the first search would still have been admissible under the good faith exception, given how unclear the military law issue was.