Tuesday, September 01, 2020

Cannot Challenge Legality of SR Condition Collaterally Without Changed Circumstances

US v. McLeod: McLeod pleaded guilty to aggravated identity theft and interstate travel for purposes of prostitution in 2013. At his guilty plea hearing, the Government mentioned that the prostitution charge may require McLeod to register as a sex offender, but the district court did not elaborate. Recognizing the mistake at sentencing, the district court gave McLeod the chance to withdraw his guilty plea. McLeod declined and was sentenced to 70 months in prison, plus a term of supervised release which required, as a condition, that he register as a sex offender.

After his term of imprisonment was complete, McLeod moved the district court to eliminate the registration requirement, arguing that neither of his offenses of conviction required registration under SORNA. The district court denied the motion on the merits, admitting that while the prostitution count did not require registration, the identity theft count did because it was a “specified offense against a minor.”

The Fourth Circuit dismissed McLeod’s appeal. The Government initially sought dismissal under the appeal waiver provision of McLeod’s plea agreement. Likening McLeod’s argument to one where the district court imposed restitution in a case where it lacked the authority to do so, the court concluded that McLeod’s argument was essentially that he was sentenced above the statutory maximum for his offenses, an issue which cannot be waived in a plea agreement. However, the court dismissed on another ground – that the supervised release statute did not provide a means for McLeod to file the motion in the first place. While the statute does provide the district court flexibility to modify conditions of supervised release after they’re imposed, and the defendant to seek such modification, it does not allow for a challenge to the legality of the condition if the basis for the alleged illegality was present at sentencing. In other words, a condition imposed at sentencing cannot be modified collaterally unless changed law or circumstances are present. A straight up challenge to the legality of a condition must be made on direct appeal (or a 2255 proceeding).

Judge Agee concurred in the judgment, agreeing with the resolution of the plea agreement issue, but arguing that even changed circumstances would not provide a basis for a collateral challenge to a condition of supervised release.

Parts of Anti-Riot Act Unconstitutional, but Severable; Convictions Affirmed

US v. Miselis: Miselis and his codefendant were part of a “local white supremacist group” in California dedicated to going to political rallies “at which its members engaged in violate attacks on counter-protestors.” As particularly relevant to this case. The defendants took part in a pair of violent confrontations in California before travelling to Charlottesville, VA for the “notorious ‘United the Right’ rally” in 2017, where the also engaged in violence. As a result, they were charged with conspiring to violate the Anti-Riot Act as well as travelling in interstate commerce to violate the Anti-Riot Act. After a motion to dismiss the indictment was denied, the defendants entered conditional guilty pleas to the conspiracy count and were sentenced to 27 and 37 months in prison.

The Fourth Circuit affirmed their convictions on appeal, but in doing do struck down large parts of the Anti-Riot Act as unconstitutional under the First Amendment. The problem, as the court noted late in its opinion, is the problematic parts of the Act – those addressing promoting or encouraging violent acts or similar advocacy – may have passed constitutional muster when the Act was enacted in 1968, but in the wake of the Supreme Court’s decision in Brandenburg (1969) and the refinement of First Amendment law, those portions no longer survived. However, the court concluded that the Act was severable and the problematic portions could be struck, leaving the Act focused only on actual acts and advocacy that fell within the bounds of Brandenburg. As a result, the defendants convictions were affirmed because the conduct to which they admitted in their guilty pleas fell clearly within the bounds of the parts of the Act that survived.

Rehaif Error in Indictment, Jury Instructions Is Plain Error Requiring Reversal

US v. Medley: Medley was convicted at trial in 2017 with being a felon in possession of a firearm. While his appeal was pending, the Supreme Court decided Rehaif, which held that to prove that offense the Government must show not only that the defendant was of a certain restricted status, but that the defendant was aware of that fact. In supplemental briefing, Medley argued that after Rehaif his conviction had to be reversed because the status knowledge element was neither pled in the indictment or part of the jury’s instructions, leading to a conviction on insufficient evidence.

A divided Fourth Circuit agreed and reversed Medley’s conviction, applying plain error review. There was no dispute that there was Rehaif error and that error was plain. The dispute was over whether that error impacted Medley’s substantial rights and whether the court should notice it and reverse his conviction. Examining each error individually, the court concluded that each of them impacted Medley’s substantial rights, as did the weight of the errors together. As to whether to notice the error, the court concluded that regardless of whether they individually required notice, the combined errors were “sufficient to undermine confidence in the outcome of the proceedings.”

Judge Quattlebaum dissented, arguing that if “ever there was a case in which errors likely had no effect on the outcome of the proceedings, and the proceedings led to a fair and reliable determination of guilt, this is it,” noting that (among other things) Medley “remained on parole” at the time of his offense.

Congrats to the Defender office in Maryland on the win!