Monday, September 30, 2019

Deferred Judgment Not “Conviction” for Felon-in-Possession Charge

US v. Smith: Smith possessed firearms and was charged with being a felon in possession of them. The basis for the charge was a prior North Carolina prosecution for larceny by an employee, which was resolved under the “conditional discharge” provision of state law. That proves that the court does not enter a judgment of guilt and deferred further proceedings while the defendant is placed on probation. If the probation conditions are fulfilled, no final judgment is filed and the original plea is withdrawn. Smith possessed the firearms while he was still on probation. After his motion to dismiss the felon-in-possession charge was denied, he entered a conditional guilty plea.

The Fourth Circuit reversed the district court’s denial of Smith’s motion to dismiss and vacated his conviction. The court noted that to be guilty of being a felon-in-possession of a firearm the possession of the firearm must have occurred after the person was “convicted.” In this case, Smith was never actually convicted under North Carolina law because the judgment was never entered in his state case. As such, when Smith possessed the firearms, he was not a felon.

Responding to Shooting, Stopping Without Reasonable Suspicion OK Under Fourth Amendment

US v. Curry: One night four Richmond police officers were patrolling a neighborhood that “had been the site of frequent gun violence,” including six shootings (two murders) in the past six months. They heard what sounded like a “half dozen gunshots coming from the direction of a street called Walcott Place.” They arrived at Walcott Place about 35 second later, where they spotted several people, including Curry, walking away from the scene. The officers approached these men, shining flashlights at them and demanding that they lift their shirts so the officers could check for weapons. All but Curry complied. When he didn’t, officers tried to pat him down anyway, resulting in a “brief struggle,” after which Curry was handcuffed. Officers “then recovered a silver revolver from the ground near Curry.” After being charged with being a felon in possession of a firearm, Curry successfully moved to suppress the firearm. The district court concluded that the officers lacked particularized reasonable suspicion to stop anyone, Curry included, and that the exigencies of the situation did not override that.

A divided Fourth Circuit reversed the district court. The court noted that “special governmental needs, beyond the normal need for law enforcement” can justify a search or seizure even “without suspicion of criminal activity.” Such circumstances are “limited” and have to “go beyond ordinary crime control” such as “thwart]ing] an imminent terrorist attack and catch[ing] a dangerous criminal.” That being said, the special need “can overlap with the interest in crime control, and it usually does.” What’s important is whether the primary objective is crime control or something else. In this case, the officers responding quickly to a nearby shooting provided the special need, “the prospect that a single, active shooter might continue to threaten the safety of the public.” Thus, the “immediate purpose of the stop and flashlight search was the need to protect the public and the officers from these dangers.” Therefore, the initial stop of the group was appropriate, even if officers had no idea which of them (if any) was the shooter. In addition, “the intrusion here was minimal in both time and scope.” Because the district court concluded that this initial stop was invalid, the court remanded to the district court to determine whether by the time Curry was actually patted down there was reasonable suspicion to believe he was armed.

Judge Floyd dissented, suggesting that the majority wasn’t engaging fully with the facts, which showed that the officers did not have a description of the scene of the shooting, did not have any description of the shooter, and that they “did not stop everyone close to the scene, akin to a checkpoint,” as well as “not seiz[ing] the people closest to the reported location of those shots.” He also argued that the majority conflated the special needs and exigent circumstances doctrines, which are “separate doctrines of Fourth Amendment jurisprudence animated by very different concerns and applied in different contexts.” Judge Floyd concluded that the stop here did not fall within either doctrine and would have affirmed the district court’s granting of Curry’s motion to suppress.

NOTE: On November 18, 2019, the Fourth Circuit granted Currys motion to rehear the case en banc. Therefore, this opinion has been withdrawn. The en banc court issued its opinion on July 15, 2020 and is discussed here

Monday, September 16, 2019

Predicate conspiracy to possess cocaine under § 846 does not support enhancement under 2K2.1(a)(4)(A)

US v. Norman:  Thomas Norman received charges for being a felon in possession of a firearm, possessing heroin and cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime.  Police had an outstanding warrant for his arrest for violating the terms of his supervised release; when police pulled over Norman’s vehicle to arrest him pursuant to the warrant, they found a large amount of cash and a cell phone in Norman’s pockets.  Norman’s passenger, however, had a baggie in her hair containing cocaine residue; the police searched the vehicle and found further incriminating items. 

Norman moved to suppress and the district court denied the motion.  Norman was convicted after a bench trial.  On the basis of a prior conspiracy to possess cocaine and cocaine base with intent to distribute charge, Norman’s sentence was enhanced 6 levels under 2K2.1(a)(4)(A).  Norman objected to the conviction, but not the sentence. 

The government maintained that the warrantless search of Norman’s vehicle was valid as a search incident to arrest of the passenger.  The Fourth Circuit held that Normal offered no rebuttal to this argument, and that it agreed with the government.  Norman’s challenge to his conviction failed. 
Norman’s challenge to the six-level enhancement applied to his sentence was a winner, but because Norman did not object to his sentence, the Fourth Circuit reviewed for plain error and found that while an error had been made in applying the enhancement, the error was not plain, so it would not reverse. 

Here, the Fourth Circuit took the opportunity to clarify that Norman’s conspiracy to possession cocaine and cocaine base in violation of 21 USC § 846 is broader than the definition of the generic crime of conspiracy, so his conspiracy conviction does not qualify as a “controlled substance offense” under the Guidelines. Unfortunately, though, some earlier case law muddied the waters a bit, making the assumption that this conspiracy offense was a “controlled substance offense” sufficiently so murky, that it was not plainly an error for the district court to apply the enhancement, so the Fourth Circuit allowed the sentence to remain. 

Folks from Detroit are permitted to visit WV

US v. McCall:  In this appeal, Willie McCall appealed his sentence for distributing 1.2 grams of methamphetamine, on the grounds that the district court used improper bases to determine his sentence.  The district court varied upwards at sentencing, based upon McCall’s criminal history, as well as his out-of-state residence.  McCall hails from Detroit. 

McCall’s guidelines range was 30-37 months, and the district court imposed a sentence of 10 years, reasoning that the interstate aspect of McCall’s crime made it more serious.  McCall objected that, although he is from Detroit, nothing in the record reflected that the drugs involved in this case came from Detroit.  Without some support for the proposition that McCall bought his drugs in Detroit and brought them to West Virginia to sell at a profit, the Fourth Circuit found that the district court erred in relying upon it.   The Fourth Circuit notes that it held in 1977 that a court may not enhance a sentence based upon bias against out-of-state defendants.

While the interstate nature of criminal conduct may be a factor at sentencing, if it revealed something about the scope, organization, or dangerousness of the crime, but the mere fact of a defendant’s out of state residence alone failed to establish here that McCall had imported the drugs to West Virginia to sell.  McCall’s status as an outsider is not a valid basis for enhancing his sentence.

924(c) conviction vacated

US v. Walker:  In this appeal, the Fourth Circuit heard a challenge to a 924(c) conviction the defendant received in connection with a kidnapping conviction, for brandishing a firearm during and in relation to a crime of violence.  Walker challenged the validity of his firearms conviction, as contrary to Johnson.  The Fourth Circuit vacated the conviction and remanded for further proceedings.

As Walker raised this issue for the first time on appeal, the Fourth Circuit reviewed for plain error.  Luckily for Walker, the Supreme Court had recently considered this issue, and the Fourth Circuit placed this case in abeyance while the Supreme Court resolved the issue, to wit, whether § 924(c)(3)(B) was unconstitutionally vague.  The Supreme Court in Davis determined that the residual clause here was similarly unconstitutionally vague.

So, it was an error to find Walker guilty under the residual clause.  Further, the force clause does not apply because the supposed “crime of violence” here, the kidnapping, clearly did not categorically qualify as a crime of violence under the force clause. 

"woe until all users of the Internet" CP search warrant affirmed

USv. Bosyk:  In this appeal, the Fourth Circuit considered whether probable cause to support a search warrant for a residence existed, after an IP address, associated with the defendant’s home, accessed a link on a dark web forum that contained child pornography.  That “single click” was enough, according to the majority, to search the defendant’s home.  The dissent here stated the holding, “diminishes the constitutional rights of those who use the internet.”

The Fourth Circuit upheld the lower court’s decision here to deny Bosyk’s motion to suppress, affirming his five-year prison sentence.  Investigators executed the search warrant here four days after the “single click” and recovered devices containing thousands of images of child pornography, including the linked video described in the search warrant.