Tuesday, January 26, 2021

Box Checked On AO Form Not Sufficient Explanation for First Step Act Decision

US v. McDonaldThis appeal involves three cases where defendants sought relief under the First Step Act's retroactive application of the Fair Sentencing Act of 2010. In each case, the defendants were convicted of offenses with life maximum statutory sentences that, with the application of the Fair Sentencing Act, now have 40-year maximums. All defendants received original sentences that were below the new statutory maximum. The district court found them all eligible for relief, but provided limited reductions - reducing only the terms of supervised release for all defendants. For one defendant, who was already on supervised release, the court did not similarly reduce his supervised release term on another count of conviction, meaning he got no relief at all. In all three cases the only thing the district court did to explain its sentence was fill out an Administrative Office form, checking boxes that the motion was "granted" and the supervised release term revoked.

On appeal, the Fourth Circuit vacated all these sentences. The court adopted the presumption from retroactive Guideline cases that the district court considered all relevant factors in decided a motion seeking a reduced sentence. However, that presumption can be rebutted and is in cases like these where the defendants present sufficient evidence of post-sentencing rehabilitation. In such cases, the district court must provide an individualized explanation for its resolution of the defendant's motion to reduce his sentence. In these cases, "it is not at all clear that the district court considered or gave any weight to [the defendants] post-sentencing conduct."

Congrats to the defender office in NDWV on the wins!

SR Condition Limiting Employment No Good, Others Are Based On Facts of Case

US v. HamiltonHamilton pleaded guilty to possession of child pornography and was sentenced to 120 months in prison, followed by a lifetime term of supervised release. Hamilton had corresponded with an actual minor for nine months (during which explicit photos were shared) and then convinced her to come meet him, where he repeatedly raped her. As part of his sentence, the district court imposed several special conditions of supervised release to which Hamilton objected: (1) that he could not work at any job without prior approval of his probation officer; (2) that he could not access the internet except when approved in advance by the probation officer; and (3) that he must not go or remain at any place where he knows children are likely to be.

On appeal, the Fourth Circuit vacated the first special condition, while approving the other two. As to the employment condition, the court concluded that it was overbroad and lacked a sufficient nexus to the offense he committed. Greater specificity is required for occupation restrictions (which, the court implies, can be imposed on remand). The court also noted that the condition was problematic because it provided the probation officer with unlimited, and unguided, discretion in enforcing it. The other two conditions, by contrast, were sufficiently related to Hamilton's offense and were not overbroad. As to the internet condition, the court noted that Hamilton used the internet to commit his offense and had a history of violating court orders that suggested a need for strict rules. As to the location condition, the court noted "Hamilton's inability to stay away from places that he ought not be" and thus the condition is necessary to protect the public.

Congrats to the Defender office in NDWV on the (partial) win!

Court Affirms 30-Year Sentence for Exploitation of Minor

US v. LesterLester was living with his brother, his brother's fiancé, and her three-year-old daughter when his brother discovered that Lester was in possession of child pornography. Among the 22,000 files of child pornography were those that showed Lester sexually molesting the daughter in her sleep. Lester admitted that those images were his, but denied producing them or having touched the daughter. He pleaded guilty to sexual exploitation of a child. His Guideline range was 324 to 360 months in prison, based partly on a two-level enhancement because Lester was "a relative of the minor victim when the offense occurred as he was her step-uncle." Lester did not object to those calculations, but argued for a downward variance (supported by the brother and his fiancé). The district court ultimately imposed a sentence of 360 months.


On appeal, the Fourth Circuit affirmed Lester's sentence, rejecting several challenges. First, the court concluded that the district court had sufficiently explained the sentence imposed and adequately addressed Lester's arguments (or properly refused to do so). As to a arguments related to Lester's need to treatment, education, and rehab, the court held that because the district court has no authority to order the Bureau of Prisons to do anything specific in those areas, there was nothing to address. Similarly, while the district court is required to address the arguments of the parties, it was not required to address the request of Lester's brother and his fiancé regarding his sentence. Nonetheless, the district court's conclusion that their testimony "did not compel a shorter sentence is patently obvious." In addition, because Lester made no specific argument related to the correlation of his age and chance of recidivism the district court did not need to address it. Second, the court held that there was no plain error in the application of the two-level enhancement. The court rejected Lester's argument that the enhancement only applied to actual family members, noting that the Guideline Commentary makes clear the actual relationship between the defendant the victim is what mattered, not the "legal status." Finally, the court held that Lester's sentence was not substantively unreasonable.

Thursday, January 14, 2021

Right to Appeal SR Conditions Imposed Only In Written Order Can’t Be Waived

US v. SingletarySingletary pleaded guilty to Hobbs Act Robbery. As part of a plea agreement, he agreed to waive his right to appeal the sentence that was "imposed." He was sentenced to 13 years in prison and a 5-year term of supervised release. Two conditions of that release were imposed in the written judgment, but not at Singletary's actual sentencing hearing.

The Fourth Circuit vacated Singletary's judgment and remanded for resentencing under its recent decision in Rogers, in which it held that such special conditions imposed in that manner are invalid since they needed to be imposed in the defendant's presence (mandatory conditions inherent in supervised release do not). The real issue was whether the Government's motion to dismiss should have been granted because of Singletary's waiver of his appellate rights. The court held that it should not be, because the issue raised was outside the scope of the waiver, noting that "the heart of a Rogers claim is that discretionary conditions appearing for the first time in a written judgment in fact have not been 'imposed' on the defendant." Because the waiver did not apply, the court did not address whether the fact that the Government filed its motion to dismiss months too late required it to deny the Government's request.

Congrats to the Defender office in Eastern North Carolina on the win!

SR Restrictions Restricting Internet Use, Access to Legal Pornography, Not Appropriate

US v. EllisIn 2013, Ellis was convicted of failing to register as a sex offender. Over the ensuing years, he had multiple revocations of his term of supervised release for violating various conditions. Among the conditions violated were failing to participate in sex offender treatment and lying about "daily pornography use and using devices to access the internet that are not approved." His latest revocation, the subject of this appeal, included failing to participate in sex offender and other mental health treatment. At that revocation, the Government argued that the district court should impose conditions of supervised release prohibiting Ellis from accessing pornography, both legal and illegal, or entering "any location where such materials can be accessed, obtained, or viewed" as well as a complete ban on Internet access. 

On appeal, the Fourth Circuit vacated those two conditions of supervised release. As to the pornography condition, the court held that under recent precedent the district court had not sufficiently explained why a prohibition on Ellis accessing legal sexual material was required. The court noted that there was no evidence presented linking Ellis' access to (legal) pornography to his violation conduct or chance of rehabilitation. Unsupported assertions from the Government was not enough. In addition, the condition was overbroad, as it would have prevented Ellis from going to many places (like libraries) where he might not access anything sexual, but they were nevertheless on the premises. The court also noted that the law does not allow the district court to impose a condition of supervised release as a "stick" to encourage a supervisee's good behavior. As to the internet condition, many of the same concerns applied, including that in the modern era a complete ban was impractical, particularly in case where the internet was not involved in Ellis' offense. The court ordered a remand "for the entry of a modified judgment striking those conditions of supervised release."


Judge Quattlebaum concurred in the result, and agreed that the conditions were a greater restriction on liberty than necessary, but took issue with the court's conclusion that they were not reasonably related to Ellis' history and treatment.

Congrats to the Defender office in Western North Carolina on the win!

VA Burglary, Attempted Rape Convictions Not ACCA Predicates

US v. Al-MuwwakkilIn 2001, Al-Muwwakkil was convicted of being a felon in possession of a firearm and sentenced under the Armed Career Criminal Act. After the Supreme Court's 2015 decision in Johnson, Al-Muwwakkil filed a 2255 motion arguing that he no longer qualified for such sentencing. The district court denied the motion, holding that Al-Muwwakkil still had enough ACCA predicates to trigger the enhanced sentence.

On appeal, the Fourth Circuit reversed. Al-Muwwakkil agreed that his two prior convictions for maiming in Virginia (all the priors discussed here were from Virginia) were ACCA priors, but argued that three others - burglary, attempted rape, and use of a firearm during an abduction did not. The court worked through each prior and agreed. As to attempted rape, the court concluded that the relevant statute was not divisible and could be committed in ways that did not require the use of violent force (including where the victim was an inmate or pupil). Applying the categorical approach, it could not be considered a violent felony. As to burglary, the court noted that under a recent immigration decision, the relevant statute was no divisible, either to the location involved (which extended beyond the "building or structure" in the generic definition of burglary) or the means of entry. Therefore, it could only qualify as a violent felony if it required the use of violent force. Because it did not, this version of burglary is not a violent felony, either. Finally, as to the abduction conviction, the court concluded that because that prior conviction had not been identified as an ACCA predicate in the original PSR, under binding precedent, the Government could not rely on it now.