Monday, March 01, 2021

Inert Explosive Is “Nonmailable Item” Triggering Criminal Liability

US v. YoungYoung was imprisoned for trying to kill his ex-wife and killing his ex-father-in-law. While incarcerated, Young used a contraband cell phone to run a drug conspiracy with the help of (among others) Volious. He also contacted whom he thought was a Russian bomb maker over the "dark web," who was actually an FBI agent, seeking a bomb to finish the job with his ex-wife. Young purchased what he thought was a bomb, which was delivered and prepared for shipping to the ex-wife's address, but it was, in fact, rendered inoperable by FBI agents and had only a small amount of explosives. Young and Volious were convicted of (among other things) aiding and abetting the mailing of a nonmailable item with intent to kill and were convicted.

On appeal, the Fourth Circuit affirmed their convictions. The primary issue was whether the inert bomb met the definition of a "nonmailable" item. Noting that the definition of nonmailable items included both "all explosives" and "other devices or compositions which may ignite or explode," the court held that the Government had only proceed under the "explosives" definition at trial. Applying the common meaning of "explosives," but excluding devices that would fall under the other relevant portion of the statute, the court concluded that an inert bomb met the definition of explosive and was nonmailable. The court rejected the defendants' argument that the small amount of explosives involved did not meet the statutory definition since there was no actual threat posed to anyone handling the package, relying on the fact that the statutory definition includes "all" explosives. The court also concluded that the evidence was sufficient to sustain their convictions. 

Lack of Explanation Precludes Review of Guideline Enhancement

US v. BurnleyBurnley pleaded guilty to a drug conspiracy. The charges arose from a traffic stop where Burnley, the driver, fled the scene, "rolling over" an officer's foot in the process (he was not injured). At sentencing, his sentenced was enhanced for reckless flight and for being a "manager or supervisor" of the drug conspiracy. He was sentenced to 264 months in prison, a significant downward variance from the applicable Guideline range.


On appeal, the Fourth Circuit affirmed the reckless flight enhancement, but vacated the manager or supervisor enhancement. On the reckless flight enhancement, the court agreed with Burnley that flight in a vehicle, standing alone, is not sufficient to trigger the enhancement. However, "there clearly was, in fact, something more here" and the "danger that Burley's flight created at that moment alone," when he ran over the officer's foot, was sufficient. On the leadership enhancement, the court did not conclude that it was not warrant, but did conclude that the district court had not sufficiently explained its basis for imposing the enhancement. In particular, the district court failed to consider the seven factors set forth in United States v. Cameron, 573 F.3d 179 (4th Cir. 2009), as required when deciding whether the enhancement applies. The explanation given by the district court was "insufficient to facilitate meaningful appellate review." Therefore, the court vacated Burnley's sentence and remanded for further proceedings.

Court Affirms Denial of Motion to Suppress Following Franks Hearing

US v. PulleyAlthough Pulley was ultimately charged with possession with intent to distribute hydrocodone (and pleaded guilty to that offense), he came to the attention of law enforcement while they investigated a series of pharmacy robberies. An informant had identified another man, Blunt, as one of the men involved in the robbery. The informant also identified the other person as Blunt's cousin called "Cuz." Blunt and Pulley weren't related, but "grew up together and were like family." Blunt was arrested and managed to hide a "distinctive, purple gun" (which matched the caliber used in the last robbery) in his cell, denying any knowledge of it when it was found (despite video evidence to the contrary). Blunt was also overheard in a jail call telling a friend he "threw out some clothes that were going to be important and that he needed those items retrieved and set aside." 

Blunt eventually began cooperating with police, naming Pulley as his accomplice and explaining that he could take police to the location where Pulley had discarded the clothes worn in the last robbery. The investigating officer was told that Pulley had been in jail when the first two robberies took place and began to have "serious doubts about the information's accuracy," but "nevertheless believed Pulley was involved in the robberies." Thus, a search warrant was obtained based on an affidavit that stated that Blunt "had provided information found to be credible by detectives" and did not mention that Blunt disposed of the clothing, that Pulley was in jail during two of the robberies, or that Blunt had smuggled the distinctive gun into the jail. As a result of the warrant, Pulley was charged with a drug offense and pleaded guilty after his motion to suppress was denied following a two-day Franks hearing.


On appeal, a divided Fourth Circuit affirmed the denial of Pulley's motion to suppress. Noting that Pulley "does not challenge the district court's finding that they affiant neither made false statements nor omitted information from her affidavit with the intent to mislead the state magistrate who issued the search warrants," the court went on to conclude that he did not meet his burden of provide that the falsehoods and omitted information were made with reckless disregard of whether it would make the affidavit misleading. In doing so, the court noted that "[r]eckless disregard is a subjective inquiry; it is not negligence nor even gross negligence." The court also made clear that it reviews the district court's conclusions on recklessness for clear error. The court also observed that "the affiant did not aver the suspect was credible in all matters."


Judge Keenan dissented, arguing that the record showed the recklessness required by the court and that the district court had failed to address all the alleged omissions.

Full Period of Sentence Served Partly Out of Custody Determined Application of Illegal Reentry Enhancement

US v. Velasquez-CanalesVelasquez-Canales pleaded guilty to illegal reentry. At sentencing, his Guideline range was enhanced for having a prior felony conviction with a sentence exceeding 13 months. Velasquez-Canales had argued it did not apply because for the relevant conviction, from North Carolina, although the sentence was 6 to 17 months, the last nine months were served on "post-release supervision" and therefore it did not meet the 13-month threshold. The district court disagreed and sentenced Velasquez-Canales to 36 months in prison, near the top of the applicable Guideline range.

The Fourth Circuit affirmed the sentence.  The court noted that the term "sentence imposed" in the illegal reentry Guideline has the same meaning as "sentence of imprisonment" in the general criminal history Guideline and that it is defined as the "maximum sentence imposed," regardless of whether it any part of it was suspended. Relying on prior precedent, the court rejected Velasquez-Canales's argument that the post-release supervision portion of his prior sentence was equivalent to supervised release and concluded it was part of the term of imprisonment.

ACCA Challenge Falls Outside Appeal Waiver; Virginia Robbery May Be ACCA Predicate

US v. WhiteWhite pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was whether he qualified for sentencing under the Armed Career Criminal Act. The district court concluded that he did, based on a prior Virginia conviction for robbery. White had argued that robbery in Virginia was not a "violent felony" because it could be committed "by means of threatening to accuse the victim of having committed sodomy."


On appeal, the Fourth Circuit certified the question of whether robbery in Virginia could be committed that way to the Virginia Supreme Court. White's argument was based on a 1890 state supreme court case in which, nonetheless, the defendant "presented a firearm and struck the victim." Finding "no controlling Virginia precedent to guide our decision," the court certified the question. In doing so, however, the court made to holdings relevant to ACCA issues regardless of how the certified question is answered. First, the court held that the Supreme Court's decision in Stokeling abrogated the Fourth Circuit's decision in Winston that Virginia's common-law based robbery offense did not have an element of violent force. That's why it was necessary to determine the certified question in the first place. Second, the court rejected the Government's attempt to dismiss the appeal altogether because White had waived his right to appeal in his plea agreement. The agreement contained an exception for appealing a sentence "in excess of the statutory maximum," which his ACCA sentence would be if he did not qualify for ACCA sentencing. Note that, regardless of the language in a plea agreement, a defendant can never waive his right not to be sentenced above the applicable statutory maximum, so the holding here really applies to any case where there's an appellate waiver. 


UPDATE: The Virginia Supreme Court has answered the court's question, concluding that the force element of robbery can be committed by threatening to accuse another person of sodomy - so it appears a robbery conviction from Virginia will not qualify as a violent felony.

No Reasonable Suspicion to Turn Interaction With Motorist Tending to Broken Vehicle Into Investigative Stop

Wingate v. FulfordThis civil case arises from a situation where the check engine light in Wingate’s car came on while driving late at night. He pulled over in front of a car dealership, opened the hood, and started to work on his car. A police officer saw the disabled vehicle and pulled in behind. After asking Wingate what was happening, he repeatedly demanded that Wingate produce identification. A second officer arrived and explained that there had been a series of catalytic converter thefts in the area and that Wingate’s situation was “kind of weird.” When Wingate persisted in not providing identification, he was arrested under a local ordinance that makes it a crime to refuse to provide identification to an officer “if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.” A search of Wingate’s care did not uncover anything that might be related to catalytic converter thefts.

All criminal charges against Wingate were dropped. He then sued the arresting officers under 18 USC 1983, arguing that his Fourth Amendment rights had been violated. The district court granted the officers’’ motion for summary judgment.


On appeal, the Fourth Circuit reversed the district court’s decision. The court noted that the officer’s initial engagement with Wingate “did not trigger the Fourth Amendment’s protection,” but that when he told Wingate “he was not free to leave until he identified himself,” that “unambiguous restraint on Mr. Wingate’s liberty” transformed the situation into an investigatory stop. Evaluating the circumstances of the incident individually and as a whole, the court concluded that there officers lacked reasonable suspicion “indicating the criminal activity was afoot.” The court also held that Wingate’s arrest violated the Fourth Amendment and that the local ordinance requiring drivers to provide identification is “unconstitutional when applied outside the context of a valid investigatory stop.” That is because “a valid investigatory stop, supported by Terry-level suspicion, is a constitutional prerequisite to enforcing stop and identify statutes.” Nor, the court held, were the officers entitled to qualified immunity on the initial detention, although they were on the arrest, given that no court had struck down such a statute previously.


Judge Richardson wrote a brief, concurring opinion, emphasizing that “we address only this case and not the constitutionality of applying an ordinance like this one outside the context of investigatory stops,” noting that it could apply in other contexts, such as sobriety checkpoints or border crossings.