Monday, May 03, 2021

Hearing Required to Determine Due Process Violation Regarding Victim’s Cell Phone

 US v. Johnson: Johnson and Stewart were charged with distribution of heroin causing death. In addition, Johnson was also charged with simple distribution to another person, who also died shortly thereafter. Each defendant reached a plea agreement with the Government to plead guilty to simple distribution charges, but the district court refused to accept it in Johnson’s case, leading Stewart to withdraw his plea as well. 

Before going to trial, the defendants moved to dismiss the causing death count, arguing that the Government had violated their due process rights by not turning over exculpatory evidence from the victim’s cell phone or preserving the phone for further examination. The Government explained that the state police investigator who had the phone had returned it to the victim’s family, who could no longer find it. The district court denied the motion, without hearing any testimony about the matter. The district court also declined to give a spoliation instruction at trial, suggesting (among other things) that would require the jury to be informed of the defendants’ withdrawn guilty pleas. At trial, the district court also allowed the Government to present extensive evidence that the person to whom Johnson had separately sold heroin to had died shortly thereafter. The jury convicted the defendants on all counts, with the district court then sentencing Johnson to 365 months in prison and Steward 293 months.

On appeal, the Fourth Circuit reversed the defendants’ convictions and sentences. As to the due process issue regarding the victim’s phone, the court ultimately concluded that the “record was too meager to render a proper ruling,” holding that there were numerous unanswered questions that required the district court to hold an evidentiary hearing. The court did state that “we also have doubts about the merits of the district court’s decision,” however. The court did not resolve the related instructional issue, but noted that if the district court rejected again the due process argument, “the court should assess anew whether the defendants are entitled to an adverse inference instruction.” With regard to Johnson’s separate conviction, the court concluded that the district court had erred by concluding that Johnson had “opened the door” to extensive testimony about his death by cross examining one of the Government’s witnesses about how the person to whom Johnson allegedly sold heroin was in a parking lot, unsupervised, for hours afterward and could have obtained drugs from other sources during that period.

Congrats to the Defender office in the Northern District of WV on the win!

Hobbs Act Robbery Not “Crime of Violence” Under Guidelines

US v. Green: Green pleaded guilty to Hobbs Act robbery and the parties agreed to a sentence of no less than 120 months in prison. The probation officer classified Green as a career offender, however, raising his advisory Guideline range to 151 to 188 months. Green objected, arguing that his offense of conviction was not a “crime of violence” because that definition was too vague. The district court disagreed, applied the enhancement, and ultimately sentenced Green to 144 months in prison.

On appeal, the Fourth Circuit vacated Green’s sentence. Turning first to the substance of Green’s argument, the court concluded that Hobbs Act robbery does not meet the definition of “crime of violence” used in the Guidelines. In particular, Hobbs Act robbery can be committed by the use of force (or threat thereof) against property, whereas the various crime of violence definitions were limited to the use of force against persons (by contrast to the definition for 18 U.S.C. 924(c), which includes property, meaning Hobbs Act robbery is a crime of violence under that provision). Therefore, it qualified neither under the force clause or under the enumerated offense clause because it was broader than generic robbery. The court then addressed the issue of standard of review, applying de novo review, but concluding that Green would prevail under plain error review as well. It rejected the Government’s argument that plain error should apply because Green’s brief objection in the district court was on different grounds than his arguments on the appeal that the court found persuasive. The court concluded that because Green had raised the claim – that he was not a career offender – before the district court, he could make new arguments in support of that claim on appeal.

Judge Rushing concurred in the judgment, but could have applied plain error review.

Courts Must Reduce First Step Act Eligible Defendants’ Sentences to New Statutory Maximum

US v. Collington: In 2010, just before the Fair Sentencing Act was passed, Collington was sentenced to 30 years in prison after pleading guilty to possession with intent to distribute more than five grams of crack cocaine. That sentence, part of a plea agreement, was below the statutory maximum (and recommended Guideline sentence) of 40 years. After the First Step Act was passed, Collington sought a reduction in his sentence, noting a new statutory maximum of 20 years. The district court concluded that Collington’s conviction was a “covered offense” and that he was eligible for relief, but ultimately determined not to disturb the 360-month sentence due to the “seriousness” of his offense and the fact that the murder cross reference in the Guidelines applied at sentencing.

On appeal, the Fourth Circuit reversed the district court’s denial of relief. In doing so, the court was required to “consider the limits of a court's discretion in disposing of First Step Act motions,” including “whether courts can retain a sentence above the retroactive statutory maximum.” After a thorough review of its First Step Act cases to date, the court concluded that Congress’ intention was to give “retroactive effect to the new statutory maximums imposed by the Fair Sentencing Act” and that, as a result, the district court must reduce an eligible defendant’s sentence to at least the top of the newly applicable Guideline range. That First Step Act relief is generally discretionary did not matter, as it was the new statutory ranges in the Fair Sentencing Act that controlled. Therefore, where Collington would face no more than a 20-year sentence “[i]f sentenced today” for his offense of conviction, the “district court erred by not resentencing Collington to – at most – twenty years’ imprisonment.” Secondarily, the court also held that First Step Act sentencing decisions would be reviewed using the same reasonableness standards as other sentences.

Congrats to the Defender office in South Carolina on the win!

Restitution Following Slavery Conviction Requires Liquidated Damages

US v. Edwards: Edwards “pleaded guilty to forced labor” under the Trafficking Victims Protection Act after “effectively enslave[ing]” an intellectually disabled man for five years at the restaurant Edwards managed (the man had worked there for 19 years prior while being paid). After imposing a sentence of 120 months, the district court ordered Edwards to pay restitution of approximately $273,000, representing the unpaid wages, but declined to include an “additional equal amount as liquidated damages.”

On appeal, the Fourth Circuit reversed the restitution order. The court noted that the TVPA requires restitution in the “full amount of the victim’s losses” and defines that with reference to the Fair Labor Standards Act. That Act specifically requires the payment of liquidated damages when an employer fails to meet minimum wage and overtime requirements. The court also recognized that “awarding liquidated damages for violations of the FLSA’s minimum-wage and overtime provisions is the norm.” Therefore, the district court erred by not including liquidated damages in the restitution aware imposed upon Edwards.

Terrorism Enhancement Upheld for Silencer Possession Case

US v. Kobito: After Kobito appeared at a North Carolina mosque to “ask about an inflammatory video of a Imam that was circulating on social media,” a confidential informant contacted him to ask whether he was planning any actions related to the mosque. They met in person, where Kobito explained part of the local federal building was “a front for the” NSA and that he needed to figure out “the exact floor” it was on to “dump shots into the building.” As part of his discussion, Kobito explained that he knew how to make a “poor man’s silencer” using an automotive air filter. After additional discussions with the informant about silencers and Kobito’s plans, investigators executed a search warrant at his home and recovered two of the silencers. After pleading guilty to possession of an unregistered silencer, Kobito’s offense level was enhanced under USSG 3A1.4 for a “felony that involved, or was intended to promote, a federal crime of terrorism,” which includes destroying or injuring any structure “within the special maritime and territorial jurisdiction of the United States.” The district court imposed the enhancement, resulting in a statutory maximum Guideline range of 120 months, but ultimately imposed a sentence of 60 months.

On appeal, the Fourth Circuit affirmed Kobito’s sentence. Rejecting (on plain error grounds) Kobito’s argument that the Government failed to prove that the federal building was within the proper jurisdiction, the court held that such proof was not required in the first instance. The enhancement applies when the offense was “‘intended to promote’ a federal crime of terrorism, even if it didn’t ‘involve’ such a crime.” There was no need to prove that Kobito had completed, attempted, or conspired to commit such a crime. All that matters is the defendant’s purpose “and if that purpose is to promote a terrorism crime, the enhancement is triggered.”

Allegations of IAC Regarding Sentencing Exposure Prior to Plea Required Hearing; Cannot Raise Restitution Challenge

US v. Mayhew: Mayhew was convicted on numerous counts of fraud (and related offenses) and sentenced to 320 months in prison, along with a restitution obligation of more than $2 million. After his conviction was final, Mayhew filed a motion under 28 USC 2255 alleging that he received ineffective assistance of counsel on two grounds: that counsel misadvised him as to his sentencing exposure under the Guidelines which caused him to turn down a favorable plea bargain and that counsel failed to object to the inclusion of restitution amounts related to dismissed counts. The district court denied Mayhew’s motion without having a hearing.

On appeal, the Fourth Circuit concluded that the district court erred by not holding a hearing on Mayhew’s claims. The Government admitted that it made an offer for Mayhew to plead guilty to a single conspiracy count that would have capped his statutory maximum sentence at 60 months. Mayhew rejected this because his attorney allegedly told him if he was convicted at trial he would only face a sentence of two to five years. With no evidence contradicting that allegation in the record, Mayhew was entitled to an evidentiary hearing. The court also held that the record did not show a lack of prejudice, as any advisories from the district Mayhew had about sentencing exposure came after he rejected the favorable plea agreement. In addition, while the court held that a defendant could not challenge a restitution award in a 2255 proceeding, it concluded that Mayhew’s issue went also to the loss calculations under the Guidelines, which can be raised under the banner of ineffective assistance of counsel.

No Seizure Without Acquiescence to Authority (Reasonable Suspicion Supported Anyway)

US v. Cloud: Officers were patrolling a high-crime area when they spotted a red Dodge Avenger, with four people inside, sitting outside Room 110 of a nearby motel. The officers parked their car behind the Dodge, in a way that left no “clear path for the car’s driver to back out of the parking spot.” An officer, both in uniform, went to either side of the Dodge. One saw the driver’s side rear passenger “holding what I believed to be . . .a firearm.” The person in the seat, when the officer shined his flashlight inside, acted “really nervous” and attempted to conceal the firearm.

While those conversations were taking place, Cloud and his girlfriend emerged from Room 110. He told officers he was not staying at the motel, indicated that the front seat passenger of the Dodge was his daughter, then got in the driver’s seat of the car and “turned his head and acted like he wanted to back out.” Nonetheless, he did not try and back out. The officer on the driver’s side then asked the passenger whey he put under the seat, to which the passenger he had dropped a cigarillo. When he asked Cloud if there were any drugs or guns in the car, Could said there were not. As other officers arrived, Could got out of the car, began “pacing up and down the sidewalk” outside the motel and called his mother. An officer asked him to “come back” and “hang out” with the officers, but Cloud did not. Eventually, all of the passengers in the car got out and were “paired with an officer.”

An officer tried to explain to Cloud why they were there, but Cloud “refused to listen and instead handed [the officer] his phone and asked [the officer] to speak with his mother.” The officer took the phone, briefly, but never talked to Cloud’s mother before returning it. Cloud started talking on the phone again, at which point he “walked towards, and eventually past” the officer. Cloud denied permission to search the car, but an officer “frisked” it anyway, finding the firearm in the floor of the backseat. Cloud was then detained, after a struggle, and was found to be in possession of a separate stolen firearm. That firearm formed the basis of Cloud’s conviction for being a felon in possession of a firearm.

The Fourth Circuit affirmed Cloud’s conviction, holding that the district court had correctly denied his motion to suppress the firearm found after he was detained. The court agreed that Cloud never acquiesced to the shows of authority the officers made and, therefore, the Fourth Amendment was not implicated. The parking of the car, though it effectively blocked the Dodge from leaving, was “of no constitutional significance” to Cloud because it occurred while he was still inside Room 110. However, once Cloud was in the car and being questioned without a real option to leave, that could have been a seizure, had Cloud acquiesced to the officers’ authority. But he did not, as his merely “remaining in the vicinity of the motel and answering their questions” was not enough. Alternately, the court held that even if Cloud was seized earlier in the encounter, officers had reasonable suspicion to support a seizure.

Unintentional Distribution of CP Enough to Preclude Guideline Reduction

US v. Miltier: Miltier pleaded guilty to receiving and possessing child pornography. Agents found Miltier by tracing the IP address of a computer that was offering child pornography for download on a peer-to-peer network. Miltier lived at the same residence and “admitted responsibility for the images agents downloaded but denied intentionally sharing” the images or any others. At sentencing, he argued his offense level should be reduced under USSG 2G2.2(b)(1) because his conduct was limited to receipt and he “did not intend to traffic in, or distribute, such material.” The district court rejected that argument and sentenced Miltier within the resulting Guideline range. 

On appeal, the Fourth Circuit affirmed Miltier’s sentence. The court noted that 2G2.2(b)(1) “expressly excludes all ‘conduct’ that goes beyond mere ‘receipt or solicitation.’” Any distribution, regardless of whether it was intentional or not, takes the conduct outside of that provision’s scope. The court rejected Miltier’s argument that such a reading rendered language about intent to distribute superfluous, as that only came into play if the conduct itself did not include distribution. In addition, it did not matter that such unknowing distribution would be insufficient to sustain a conviction for distribution of child pornography.

Implicit Acceptance of Plea Agreement Possible, Gives Effect to Appeal Waiver

US v. Soloff: Soloff agreed to plead guilty to the receipt of child pornography as part of a plea agreement in which he agreed to waive certain appellate rights. Both a magistrate judge and district court judge provisionally approved the plea agreement pending review of the Presentencing Investigation Report. At sentencing, there were no objections to the Guideline calculations and the district court ultimately imposed a sentence at the bottom of the advisory Guideline range. While noting the “existence of the plea agreement” and the appeal waiver and imposing restitution “in accordance with the terms and conditions of Defendant’s plea agreement,” it did not specifically adopt the plea agreement. 

Soloff challenged his sentence on appeal. The Government moved to dismiss the appeal, arguing that the waiver provision of the plea agreement applied. The Fourth Circuit agreed and dismissed the appeal. There was no dispute that the issues raised by Soloff on appeal fell within the waiver’s scope, only whether the waiver was binding. The court rejected Soloff’s argument that the waiver never gained effect because the district court failed to adopt it, holding that such adoption can be implicit, rather than explicit. All that is needed is evidence that the district court acted in accordance with the plea agreement, as it did here. Still, explicit adoption is the best practice.


No Abuse of Discretion for Denial of Compassionate Release

US v. Kibble: Kibble pleaded guilty to travelling in interstate commerce with the intent to engage in illicit sexual conduct and was sentenced to 57 months in prison. He reported to being serving that sentence on February 14, 2020. Shortly thereafter, Kibble filed a motion for compassionate release, arguing that his health conditions – a heart defect and non-alcohol related cirrhosis – left him more vulnerable to the effects of COVID-19, which was running rampant through FCI Elkton, where he was housed. The district court concluded that Kibble had satisfied the necessary procedural requirements for filing the motion and that he presented “extraordinary and compelling reasons” for relief, but ultimately denied relief on the grounds that Kibble was a danger to others and that the 3553(a) sentencing factors did not support release.

The Fourth Circuit affirmed the district court’s denial of relief. Reviewing for abuse of discretion, the court initially concluded that the district court erred by relying on Kibble’s danger to others, a factor set forth in the Sentencing Guidelines, as a basis for denying relief, as those factors are not binding in compassionate release proceedings at this time. However, the court found no abuse of discretion in the district court’s reliance on the 3553(a) factors. Particularly, the court concluded that the district court did not put undue weight on the fact that Kibble had only served a small part of his sentence and had fully considered the relevant factors.

Judge Gregory concurred in the judgment, writing to “express my additional views on the court’s analysis and, more broadly, on the range of permissible considerations for motions for compassionate release.