Monday, April 27, 2020

Court Must Apply Retroactive Law to Career Offender Designation in 1SA Proceeding

US v. Chambers: In 2005 Chambers was convicted as a career offender to 262 months in prison after being convicted of a crack conspiracy. Two of his prior predicate convictions were for North Carolina drug offenses for which, because of the state’s then-existing guideline scheme, he did not actually face a maximum sentence of more than one year. Under Fourth Circuit law at the time, however, they counted as predicates. More recently, Chambers filed for relief under the First Step Act’s retroactive application of the Fair Sentencing Act and argued that the district court should correct the original career offender designation in light of Simmons. The district court declined to do so and did not reduce Chambers’ sentence.

A divided Fourth Circuit reversed the district court. The court rejected the Government’s position that the 1SA only allowed the district court to make “statutory Fair Sentencing Act adjustments and preclude[d] it from correcting Guideline errors,” noting that Section 404(b) of the 1SA uses the term “impose” a sentence, rather than “modify” or “reduce.” When imposing a sentence “a court does not simply adjust the statutory minimums; it must also recalculate the Guideline range.” Unlike the language of 18 U.S.C. 3582(c)(2), there are no limitations on doing do under 3582(c)(1), the mechanism for applying the 1SA. Of particular import in this case was that the change in the law that occurred in Simmons had been made retroactive, so that the career offender designation was “as wrong today as it was in 2005.” The court also explained (in noting Government concessions) that the usual 3553(a) factors apply in 1SA proceedings and that courts may consider a defendant’s post-sentencing conduct in determining whether and to what extent to reduce a sentence.

Judge Rushing dissented, arguing that Guideline calculations are not part of what is “expressly permitted” by the 1SA and noted that the court, while making Simmons retroactive the context of challenges to a felon-in-possession conviction, reached the opposite conclusion with regard to Guideline calculations in 2255 proceedings.

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

Abandonment, Search Pursuant to Arrest Save Gun Conviction

US v. Ferebee: Ferebee was at the home of a friend who was on probation when officers arrived to perform a warrantless search. Ferebee was sitting on a sofa, smoking marijuana, against which a black backpack was resting. He stood up, “picked up the backpack with his left hand, and held it out as another officer” patted him down (finding nothing). When asked if there were any weapons in the bag, Ferebee “stated that the bag was not actually his.” Ferebee was arrested for marijuana possession and taken outside while another officer searched the backpack, in which they found a gun. Ferebee later gave a statement where he said that the backpack, and the gun, were his. He unsuccessfully moved to suppress the gun, then entered a conditional guilty plea to one count of being a felon in possession of a firearm.

A divided Fourth Circuit affirmed the dismissal of Ferebee’s motion to suppress. First, the court agreed with the district court that Ferebee had no “standing” to challenge the search of the bag because he said that it wasn’t his. Specifically, the court rejected Ferebee’s attempt to utilize the collective knowledge doctrine, holding that it did not matter that the officer who searched the bag was not the one to whom Ferebee said the bag was not his. That is because the issue of abandonment of property “focuses solely on the intent of the defendant,” while “the collective-knowledge doctrine focuses solely on the knowledge of the police officers.” Here the “abandonment was complete when Ferebee told [the first officer[ that the backpack was not his.” The court also held that the district court’s conclusion that Ferebee had abandoned the backpack was not clearly erroneous. Second, the court held that even if Ferebee had standing the search was proper as done incident to a lawful arrest. Even though Ferebee was handcuffed and outside the house when the backpack was searched inside, the court concluded that there was “no impediment to Ferebee’s movement beyond the handcuffs” and it was “clear from the video” that he was “only a few feet outside the house and thus could reach the other officers and the backpack within seconds.”

Judge Floyd dissented, arguing that Ferebee did not abandon the bag and that the search-incident-to-arrest exception did not apply. In particular, he argued that while the facts surrounding the abandonment question were reviewed for clear error, “whether those findings amount abandonment as a matter of law” should be reviewed de novo.

District Court Sufficiently Explained Upward Variance

US v. Nance: Nance was at the scene when police responded to a noise complaint, then fled when they announced they were going to apply for warrants to search the home. Officers eventually found multiple types of drugs in Nance’s car. He was arrested later that day on state charges and released. Two days later, Nance was arrested after police responded to a domestic dispute call and this time was found to be in possession of a handgun as well as drugs. He was arrested on state charges and released. Nance eventually pleaded guilty to one count of possession with intent and one count of possessing a firearm in connection with a drug trafficking offense. His advisory Guideline range was 21 to 27 months on the drug count, plus a 60-month consecutive term on the gun count. The district court imposed a total sentence of 123 months in prison – 63 months on the drug count and the mandatory 60 months on the gun count.

The Fourth Circuit affirmed Nance’s sentence. Nance argued that the sentence was both procedurally and substantively reasonable. As to procedural reasonableness, the court rejected Nance’s argument that the district court did not sufficiently explain the sentence it imposed, particularly the upward variance/departure on the drug count. It did so because the district court “conducted a thorough sentencing hearing, engaging defense counsel’s arguments, explaining where it found them wanting, and recessing so that additional relevant information could be considered.” The district court also “imposed a sentence individualized to Nance, taking into account” his history and characteristics. As to substantive reasonableness, the court concluded that the district court did not put undue weight on Nance’s older criminal history (including juvenile convictions) that involved violent offenses. It also noted that the sentence imposed, while an upward variance, was well below the sentence requested by the Government.