Thursday, April 01, 2021

NC PJC Disposition Counts for Criminal History Point

US v. Miller: Miller pleaded guilty to being a felon in possession of a firearm. At sentencing, the main issue was the proper calculation of his criminal history score, particularly whether a criminal history point should be added for a prior North Carolina "prayer for judgment" (PJC) disposition, where Miller pleaded guilty to marijuana possession, but no sentence was ever imposed or judgment entered. The district court concluded that it did count and sentenced Miller to the top of the resulting Guideline range.

On appeal, the Fourth Circuit affirmed Miller's sentence. The Guidelines, the court noted, add a point (up to four points total) for any "prior sentence" of less than 60 days, with "prior sentence" being defined to include a "conviction for which the imposition . . . of sentence was totally suspended or stayed." While "diversionary" findings made "without a finding of guilt" are excluded, where there is an admission of guilt the point is awarded "even if a conviction is not formally entered." That is what happened to Miller, who pleaded guilty to the possession offense, but no judgment was entered. In the end, it didn't matter how North Carolina law treats a PJC disposition, only whether it came within the language of the Guideline, which it did.


Sentence Vacated Due to Ineffective Assistance of Counsel, Substantive Unreasonableness

US v. FreemanWhen she was a teenager, Freeman broke her tailbone, was prescribed opioids, and became addicted, In the intervening 16 years, she faked prescriptions to obtain an increasing number of pain pills, some of which she used herself and some of which she sold. Eventually, she was charged and pleaded guilty to possession with intent to distribute. She arrived at sentencing facing an advisory Guideline range of 210 to 240 months in prison. Although she had made some objections to the Guideline calculations (with regards to relevant conduct, an obstruction enhancement, and the lack of reduction for acceptance of responsibility), those objections were withdrawn by counsel (with Freeman's consent), who argued primarily for a variance or that Freeman be deferred into a drug court program. The district court eventually imposed a sentence of 210 months in prison.  

A divided Fourth Circuit vacated Freeman's sentence on two grounds (after directly appellate counsel to brief them following an Anders brief). The first was that Freeman received ineffective assistance of counsel at sentencing based on the withdrawal of the objections to the Guideline calculations. All of them had potential merit and, if successful, could have dropped the advisory Guideline range down to 97 to 121 months. There was enough on the record showing counsel's confusion and apparent lack of grasp of those issues (counsel said in withdrawing the objections that they would not impact the sentence anyway) to demonstrate deficient performance and the potential change in the Guideline range showed prejudice. The second basis for vacating the sentence was that it was substantively unreasonable, even though it was presumptively reasonable. That was because the district court failed to consider sentencing disparities between Freeman and other opioid defendants (who, on average, received a sentence about half as long) and did not adequately address Freeman's history of addiction.

Judge Quattlebaum dissented. He noted that this was the first time the Fourth Circuit had ever found ineffective assistance in a direct appeal and argued that that issue should have been left for collateral attack, given that there was nothing in the record suggesting what strategic consideration (if any) trial counsel had for waiving the Guideline objections. As to the substantive reasonableness of the sentence, he notes that this is also the first time the Fourth Circuit has found a within-the-Guideline sentence to be substantively unreasonable. He argued that the disparity identified by the court is not a good comparison (not "apples to apples," in other words) and that the district court did consider Freeman's history of addiction.

UPDATE: Per Sentencing Law & Policy, the court has decided to rehear this case en banc, without any apparent request from the Government. As a result, this opinion has been withdrawn pending the outcome of the en banc proceedings.

No Reasonable Suspicion to Support Stop Where Police Lacked Evidence of Drug Trafficking

US v. DrakefordDrakeford was charged with drug and firearm offenses after a stop and patdown by officers in the parking lot of a car stereo store. They had come to be there because, months before, an informant had stated that a man matching Drakeford’s description and associated with a car registered to Drakeford was selling drugs. Police conducted surveillance at Drakeford’s home and that of his girlfriend for months without observing any obvious drug trafficking. This included on alleged sale of drugs, after which officers stopped and searched the “buyer’s” vehicle but found no drugs. At the car stereo store, officers saw Drakeford converse with another man in the parking lot and shake hands twice – the second of which was allegedly a hand-to-hand drug transaction. After Drakeford and the others went inside (followed by police, who didn’t do anything inside), they emerged and Drakeford was patted down, leading to the discovery of drugs. A search warrant was then executed at his girlfriend’s home, where more drugs and a firearm was found. Drakeford unsuccessfully moved to suppress that evidence and entered a conditional guilty plea.

On appeal, the Fourth Circuit reversed the denial of Drakeford’s motion to suppress. Examining the totality of the circumstances, the court concluded that the officers lacked reasonable suspicion to stop and patdown Drakeford. As to the informant, the court noted that they had provided no predictive information (not even Drakeford’s name) and that, although the informant could allegedly contact Drakeford, never used them to try and setup a controlled purchase of drugs. With regard to the second hand shake, the court pointed out that the only thing that made it suspicious was the officer’s conclusory testimony that it was – the officer was later forced to concede that he saw no drugs or money change hands. In addition, while he testified that drug transactions in this locale typically happen inside vehicles, the suspect handshake here took place outside, in a public place, and in front of security cameras. The court also noted that in months of surveilling Drakeford investigators had not developed any additional evidence of drug trafficking.


Judge Wynn concurred in the decision, writing about the need for district courts to no be overly deferential to officers’ “training and experience” when evaluating reasonable suspicion “often at the expense of the robust judicial scrutiny that the Fourth Amendment demands.”

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

Government Doesn’t Need to Prove Defendant Knew of Ongoing Federal Investigation in Obstruction Prosecution

US v. HasslerHassler was the head nurse at a local jail where two inmates were beaten. One inmate was not examined until several days later (after it became “common knowledge” that law enforcement were investigating the assaults) and found to need emergency care. Hassler wrote a report two days later stating that he had seen the second inmate’s injuries at the time of the assault, but that he had declined medical treatment. Under later questioning by an FBI agent, Hassler admitted he wrote the report “to cover [his] butt” and did not see the second inmate. However, he stated he wasn’t aware of any ongoing investigation at the time. Hassler was eventually convicted of obstruction of justice under 18 U.S.C. 1519 and sentenced to 12 months and 1 day in prison.


On appeal, the Fourth Circuit affirmed Hassler’s conviction. Hassler’s main argument was that under Rehaif the Government had to prove that he intended to impede an investigation that he knew or contemplated would become a federal investigation. Relying on the Supreme Court’s 2015 decision in Yates, the court held that 1519 covers attempts to impede any federal investigation, even one “not even on the verge of commencement.” The jurisdictional language in the statute is not subject to Rehaif because such requirements are subject to lower culpability requirements than other elements of the offense. The district court did not err in not instructing the jury otherwise. Similarly, the evidence was sufficient to sustain Hassler’s conviction.

Aiding and Abetting Crime of Violence is Crime of Violence Under 924(c)

US v. AliAli (and several others) was involved in a series of armed robberies in North Carolina for which he was convicted of being a felon in possession of a firearm, four counts of aiding and abetting Hobbs Act robbery, and four counts of carrying a firearm in connection with a crime of violence. Due primarily to the multiple firearm convictions, he was sentenced to 1195 months in prison.


On appeal, the Fourth Circuit affirmed Ali’s convictions and sentence. Of primary importance, the court rejected Ali’s argument that he had not engaged in a “crime of violence” under 18 U.S.C. 924(c) because the designated crime was aiding and abetting Hobbs Act robbery, rather than the robbery itself. The court concluded that, given that aiding and abetting is a theory of liability and not a stand-alone offense with its own elements, conviction for aiding and abetting here required proof of the elements of Hobbs Act robbery, which requires the use of violent force. Therefore, if the underlying crime is a crime of violence (as with Hobbs Act robbery), then aiding and abetting the commission of that crime is also a crime of violence. The court also held that the district court did not abuse its discretion in handling the issue of witness sequestration, where several of Ali’s coconspirators who were testifying against him were kept in a holding cell near each other before and after their testimony. The court also held there was no abuse of discretion for denying Ali’s motion for new trial due to newly discovered evidence, noting that the evidence was either not newly discovered or went only to impeachment and could not serve as the basis for a grant of a new trial.

US Had Jurisdiction to Convict Overseas Service Member of Online Sex Offense With Victim In Virginia

US v. HarrisHarris was in the Navy, stationed in Japan, when he began a “lengthy and coercive sexual relationship with a young girl in Virginia.” This continued for two years as Harris moved from station to station (including in the United States). As a result, he was charged and convicted at trial of coercing a minor into illegal sexual activity (among other offenses). After an unsuccessful direct appeal, Harris filed a 2255 motion arguing that the district court lacked jurisdiction over actions that happened outside of the United States. The district court denied the motion.

On appeal, the Fourth Circuit affirmed the denial of Harris’ 2255 motion. At issue was the meaning of “within the special maritime and territorial jurisdiction of the United States,” particularly when applied to service members. In 1973, the court had held that the definition included “overseas United States facilities.” However, Congress later amended the definition to exclude “members of the Armed Services subject to  . . . the Uniform Code of Military Justice.” Ultimately, the court avoided resolving any conflict between prior precedent and the amended code language by holding that “the conduct charged in Count 14 that is relevant to [18 U.S.C.] 2422(b)’s focus occurred in the United States, not overseas.” The court noted that not only was the victim in Virginia, but that Harris was in the United States when he sent some of the messages to her.

Court Reverses Judgment of Acquittal and Grant of New Trial In Prosecution Involving Lobbying for Foreign Government

 US v. RafiekianRafiekian worked with Michael Flynn’s lobbying and consulting group. After a failed coup in Turkey, which Turkey’s leader blamed partly on a dissident cleric who resided in Pennsylvania, Rafiekian became involved in various activities related to pressuring the United States to extradite the cleric. This was done in concert with a Turkish businessman and involved a shell organization to do PR and lobby. Ultimately, Rafiekian never disclosed any of these contacts to the Government as required and was charged with conspiracy and acting as a foreign agent without notifying the Attorney General. After a jury trial where he was convicted on both counts, the district court granted a motion for a judgment of acquittal, concluding that there was insufficient evidence that Rafiekian had been operating “subject to the direction or control of that foreign government.” In the alternative, the court granted Rafiekian a new trial on several grounds.

On appeal, the Fourth Circuit reversed the district court in both matters. As to the judgment of acquittal, the court concluded that the district court erred in identifying what the Government was required to prove with regard to acting as a foreign agent. It was enough, the court concluded, to show some degree of “direction” by the foreign government short of a direct employer/employee style relationship and sufficient evidence of that was presented here (it “lassoed enough stars to reveal a distinct constellation”). The court also held that the district court abused its discretion in ordering a new trial. Aside from issues related to the sufficiency of the evidence, the court held that there was no problem with the use of certain hearsay testimony (with appropriate limiting instructions from the district court) or with the lack of instruction related to Flynn’s role in the conspiracy, an issue which Rafiekian had not raised in the first place.

Remand Necessary to Determine Whether Counsel Made Strategic Decision Not to File Motion to Suppress

 US v. PressleyIn 2012 Pressley (and others) were under investigation for drug trafficking. Officers went to talk to Pressley and wound up interrogating him in one of their vehicles, causing him to make incriminating statements. Those statements played a large part in the Pressley’s eventual trial, where he was convicted on 13 counts related to drug trafficking. Pressley later filed a 2255 motion arguing that his trial counsel had been ineffective for failing to move to suppress the statements he made, claiming they were given without Miranda warnings. The district court denied Pressley’s motion without a hearing.

On appeal, the Fourth Circuit ordered the case remanded with instructions for the district court to hold an evidentiary hearing. Pressley’s version of events surrounding the statements, which must be accepted as true in the absence of an evidentiary hearing, showed that a motion to suppress would have had “some substance,” as it suggested the questioning was done in custody and thus Miranda warnings were required. However, the record did not show whether Pressley relayed those facts to his trial counsel or whether counsel made a strategic decision not to file a motion to suppress. As a result, the case had to return to the district court for an evidentiary hearing. However, the court did go ahead and hold Pressley was prejudiced by the use of his statements at trial (assuming they should have been suppressed in the first place).