Friday, October 01, 2021

No IAC Where Illegal Reentry Defendant Couldn’t Show Removal Order Was Unfair

US v. Herrera-Pagoada: Herrera-Pagoada, a native of Honduras, has been caught illegally entering the United States multiple times. In 2010, during a deportation hearing, the immigration judge had informed Herrera-Pagoada that he might qualify for discretionary relief and avoid deportation, but Herrera-Pagoada said he just wanted to go “back to my home country.” The immigration judge ordered him removed, concluding he was not eligible for any other form of relief. In 2019, while serving a supervised release revocation sentence related to a 2016 illegal reentry conviction in North Carolina, Herrera-Pagoada filed a 2255 motion arguing he had received ineffective assistance of counsel because counsel in North Carolina has failed to get a recording of the 2010 deportation proceeding, which had allowed Herrera-Pagoada’s counsel in California to argue the immigration just had not explored another alternative to deportation, which led to the Government dropping the illegal reentry charge in California. The district court in North Carolina denied Herrera-Pagoada’s 2255 motion.

On appeal, the Fourth Circuit affirmed the dismissal, for several reasons. First, Herrera-Pagoada’s motion was procedurally barred because it was not timely filed and, because he had not raised the arguments as to the inadequacy of the deportation proceedings before, that claim was procedurally defaulted. Second, the court turned to whether an exception due to actual innocence applied to excuse the procedural issues. This turned on whether Herrera-Pagoada could satisfy the requirement in the illegal reentry statute for collaterally challenging deportation orders that the “entry of the order was fundamentally unfair.” The court concluded it was not and, therefore, Herrera-Pagoada could not succeed on the actual innocence argument. The court held that Herrera-Pagoada “had no due process right to be advised of discretionary relief.”

Order Vacating 924(c) Convictions Wasn’t Acquittal; Retrial Not Barred

US v. Johnson: In 2010, Johnson was charged with multiple counts of Hobbs Act robbery, Hobbs Act conspiracy, and two counts of brandishing a firearm under 18 USC 924(c). He agreed to plead guilty to the two 924(c) charges. In the indictment those charges referenced, as the relevant “crime of violence,” both specific robbery charges as well as the conspiracy charge. In the plea agreement, however, the only identified crime of violence was conspiracy. The statement of facts that was part of the plea agreement, however, referenced both the actual robberies and the conspiracy. The district court accepted the guilty plea and sentenced Johnson to 84 months on one 924(c) charge and a consecutive 300-month term on the second.

In 2016, Johnson filed a 2255 motion (based on the Supreme Court’s Johnson decision) arguing that conspiracy to commit Hobbs Act robbery was no longer a crime of violence. As it was the offense cited in the plea agreement, the 924(c) convictions were invalid. The district court granted the motion and vacated those convictions, rejecting the Government’s argument that they were still valid because they were also predicated on the robberies, not jut the conspiracy. The Government obtained an arrest warrant for Johnson on the two 924(c) charges, on the basis that it would reprosecute him with different predicate offenses. Johnson sought to dismiss the warrant, arguing that to do so would violate the Double Jeopardy clause. The district court concluded there was no Double Jeopardy issue, but dismissed the arrest warrant, while allowing Johnson’s continued detention on the other, previously dismissed, charges from the indictment.

Johnson filed an interlocutory appeal, in which the Fourth Circuit affirmed the district court’s conclusion that there was no Double Jeopardy issue with Johnson’s further prosecution. The court distinguished between an acquittal – “any ruling that the prosecution’s proof is insufficient” – and a procedural dismissal addressing “questions that are unrelated to factual guilt or innocence.” Only the first triggers Double Jeopardy protections and prevents further prosecution. The court held that the district court’s order was a procedural ruling, not an acquittal, rejecting Johnson’s argument that recent Supreme Court precedent defined “acquittal” broadly and should include order “premised on legal innocence” as well as factual.

Tuesday, September 07, 2021

Convictions, Death Penalty Affirmed for Charleston Church Shooter

 US v. Roof: In 2015 Roof went to a bible study meeting at a Emanuel African Methodist Episcopal Church in Charleston, SC. At the end of the meeting he pulled out a gun and started shooting, killing nine and wounding others. He was eventually charged with numerous federal offenses related to the shooting that made him eligible for the death penalty. After a jury trial where he was represented by counsel, Roof was convicted on all counts. After a sentencing phase where he represented himself, Roof was sentenced to death.

On appeal, a not-quite-Fourth Circuit panel affirmed Roof’s convictions and death sentence in a 149-page opinion.* In addition to numerous issues related specifically to the death penalty, the court also addressed issues related to Roof’s competency and ability to represent himself during the sentencing phase of proceedings. Overall, the court found no abuse of discretion in the district court’s decisions that Roof was competent (made both before trial and between the guilt and penalty phases) or that he was competent to represent himself during the sentencing phase. Threaded through both decisions was a conflict between Roof and counsel about presenting mental health evidence at sentencing, with Roof fearing that such an argument was overtake the political aspect of his actions.

* Because Judge Richardson was the United States Attorney in South Carolina when Roof was prosecuted, all the judges of the Fourth Circuit recused themselves and judges from the Eighth, Sixth, and Third Circuits heard the appeal.

Pension Can Be Seized to Satisfy Restitution Obligation, With Limitations

 US v. Frank: Over the course of a decade, Frank embezzled millions of dollars from his employer. He pleaded guilty to wire fraud and was sentenced to 78 months in prison and a restitution obligation of more than $19 million, of which the Government had recovered $7 million. To recover more, the Government sought access to Frank’s 401(k) retirement account, which totaled about half-a-million dollars. The district court granted the Government’s motion and ordered the disgorgement of the retirement funds to pay the restitution obligation.

On appeal, the Fourth Circuit affirmed the district court’s decision, but with some limitations. Primarily, the court rejected Frank’s argument that ERISA prohibited the Government from taking his retirement funds to pay restitution obligations. The court held that the ERISA “anti-alienation provision” that is designed to protect retirement benefits from third parties had to give way to the provision of the Mandatory Victims Restitution Act that courts “shall order” payment “notwithstanding any other provision of law.” However, that does not mean that the Government could access all the funds immediately. Rather, the regular tax collection provisions that would apply if Frank were to withdraw the funds himself applied to the Government’s withdrawal of the funds. In other words, the Government stood in the same position as Frank himself when it came to penalties and restrictions on accessing the 401(k) funds. The court remanded to the district court to consider how those provisions applied factually to Frank’s case.