Tuesday, June 01, 2021

Review of Restitution, Forfeiture Amounts Precluded By Appeal Waiver

US v. Boutcher: Boutcher was involved in a “short sale” real estate scheme and eventually pleaded guilty to conspiracy to commit bank fraud. As part of his plea agreement, he waived his right to appeal “any sentence within the statutory maximum,” restitution of at least $7500, and agreed to forfeit all “fraud-related” assets while waiving “all constitutional and statutory challenges to forfeiture in any manner, including direct appeal.” The parties argued about the proper amounts of restitution and forfeiture at sentencing, with the court ultimately imposing obligations of both of over $227k.

Boutcher appealed the district court’s restitution and forfeiture orders, but the Fourth Circuit dismissed the appeal on the Government’s motion. Boutcher did not argue that the appeal waiver was invalid, but that the issues he raised were outside its scope. The court disagreed. As to restitution, the court held that the district court’s clerical error of referencing a restitution act that does not exist did not deprive it of authority to impose restitution. As to the amount, while the means used by the district court might have been erroneous, it was precisely the kind of error (“merely a legal error”) that is covered by the waiver. As to forfeiture, the plain language of the plea agreement prevented Boutcher from seeking review of it.

Removal at Border Just After Crossing Did Not Require Due Process

US v. Guzman: Guzman crossed the Rio Grande and entered the United States in 2016, but was shortly apprehended. He did not seek asylum and “stated that he would return to El Salvador.” As a result, he was issued an order of removal under an expedited procedure and was removed from the United States. A couple of years later, he was arrested following a traffic accident in Virginia and was charged with illegal reentry. He filed a motion to dismiss, arguing that his removal order was not valid because it was obtained in violation of due process. The district court disagreed, denied the motion, and imposed a sentence of probation after Guzman’s guilty plea.

On appeal, the Fourth Circuit affirmed Guzman’s conviction. Although it wasn’t completely clear, the court construed Guzman’s argument as being that his removal order was invalid because the expedited procedure used “failed to provide him with the opportunity to obtain counsel during the interview with the immigration officers who issued the expedited removal order” and “denied him the right to counsel” under the Due Process Clause and the Administrative Procedures Act. This prevented Guzman from agreeing to voluntary removal, which does not count as a “removal order” for illegal reentry purposes. The court held that no right to counsel existed in such expedited proceedings. As to due process, the court held that because Guzman was never “admitted” to the United States then he had only the due process protections Congress had set forth, which do not include a right to counsel. That attaches in immigration proceedings only after someone has been “admitted.” As to the APA, the court held that although the Immigration and Nationality Act was originally related to the APA, it was a standalone statutory scheme and the right to counsel from the APA could not be imported into it.

TN Statutory Rape Conviction Triggers Enhanced Child Pornography Sentence

US v. Hardin: Hardin pleaded guilty to one count of receiving child pornography. The district court applied a statutory enhancement to his sentence based on Hardin’s prior conviction in Tennessee for statutory rape, increasing his potential sentence to 15 to 40 years in prison. The district court then imposed a mandatory minimum sentence of 180 months in prison, followed by a lifetime term of supervised release.

On appeal, a divided Fourth Circuit affirmed Hardin’s sentence of imprisonment, but vacated his term of supervised release and remanded for further proceedings. On the sentence of imprisonment, the court applied the categorical approach and concluded that Hardin’s Tennessee offense matched the requirement that a prior sentence was “relating to . . . abusive sexual conduct involving a minor” to trigger the statutory enhancement. Of particular importance was the “relating to” language, which enveloped the Tennessee offense, even in its most minor form. On the supervised release term, the court held that neither length of the term itself nor several of the special conditions to which Hardin had objected were supported by a sufficient explanation from the district court.

Judge Wynn dissented, disagreeing that the Tennessee statute “relat[es] to abusive sexual conduct involving a minor” and indicating that the decision created a circuit split.

Prior SC Conviction for Possession With Intent to Distribute Crack Is Career Offender Predicate

US v. Williams: Williams pleaded guilty to being a felon in possession of a firearm. At sentencing, his offense level was increased due to two prior convictions that were classified as “controlled substance offenses.” Williams objected, arguing that one of them, a 2003 conviction for possession with intent to distribute crack cocaine in South Carolina, did not meet the definition of controlled substance offense. The district court disagreed, overruled Williams’ objection, and sentenced him to 70 months in prison, a nearly two-year variance from the bottom of the advisory Guideline range. 

On appeal, the Fourth Circuit affirmed Williams’ sentence. Williams first argued that the Government failed to prove that the 2003 conviction was a controlled substance offense because the documents related to that sentencing were unclear. The court concluded that any uncertainty was caused by a clerical error and that was “not sufficient to refute the government’s showing that Williams’ crime of conviction is the offense plainly spelled out on the sentencing sheet.” Williams also argued that the possession-with-intent offense in South Carolina was overly broad because it allowed juries to conclude that possession of “one or more grams” of crack was evidence of possession and, thus, allowed for convictions involving simple possession. The court disagreed, relying on state law that held this was a “permissive inference” that “still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved.”


Abusive Racial Language Didn’t Rise to “Fighting Words” Required for Conviction

US v. Bartow: Bartow is a retired Air Force Colonel who was shopping for boots in the Quantico Marine Corps Exchange. He had a series of aggressive, confrontational conversations with an employee and some other shoppers, culminating with a question using the “N-word.” Although the employee was “taken aback” and others observed a “heated conversation” between the “very animated” Bartow and another customer (there was finger pointing) there was never any violence. The store security officer escorted Bartow out of the store (without incident, apparently) and he was ultimately charged with using “abusive language” under a Virginia statute (made applicable under the Assimilative Crimes Act). He was convicted by a magistrate, who imposed the maximum penalty ($500 fine), with the district court affirming, “seem[ing] to rely on the apparent friction between the white lieutenant colonel and Bartow as a basis for concluding Bartow’s use of the n-word ‘elicited an impending breach of the peace.’”

On appeal, the Fourth Circuit reversed its conviction. The court examined, at length, the Supreme Court’s evolving doctrine on “fighting words” and the way that Virginia courts had incorporated that into their application of the abusive language statute. While noting that Bartow’s speech “constituted extremely abusive language,” the Virginia statute did not (and could not) “criminalize the mere statement of this abhorrent word.” Instead, the Government had to prove that Bartow “individually addressed” the language at issue and that the language was “likely to provoke an immediate violent reaction by that person or a reasonable person in that individual’s position.” There was no evidence of that in this case.

No Exclusionary Rule for Violation of Immigration Statute Requiring Warrant for Arrest

US v. Santos-Portillo: Santos-Portillo was arrested, without a warrant, by an Homeland Security agent who recognized him from when he was previously deported from the United States. After receiving Miranda warnings, Santos-Portillo admitted he was from Honduras, had been removed from the United States before, and did not have permission to return. After he was charged with illegal reentry, Santos-Portillo moved to suppress “all post-arrest evidence” because under 8 USC 1357(a) which allows warrantless arrests in immigration situations only where it is likely that the suspect will escape before a warrant can be obtained. The motion was denied and Santos-Portillo entered a conditional guilty plea before begin sentenced to 15 months in prison.

On appeal, a divided Fourth Circuit affirmed the denial of the motion to suppress. Both parties agreed that there was no risk Santos-Portillo would flee and no warrant was obtained, thus a “legal requirement has . . . been violated.” The only question was “what remedy is available . . . or whether one exists at all for violation of this provision.” The court concluded there was not. It noted that not only was there no exclusionary rule in section 1357, but in other related contexts Congress has provided such a remedy. Likewise, because (Santos-Portillo agreed) the agent had probable cause to make the arrest, there was no Fourth Amendment violation. The court went on to reject Santos-Portillo’s argument that the court had the power to create an exclusionary rule in this situation under the “alleged inherent power to devise remedies for violations of the law by the government.” What may once have been a “freewheeling power . . to create remedies where Congress did not has met only disfavor from the [Supreme] Court itself.” Thus, the “range of cases where courts can on their own suppress evidence for a statutory violation is quite limited.” Even if such authority existed for “egregious or flagrant” violations, such a “vague and open-ended” test would “fail[] on its own terms” here were a “perfectly lawful arrest” was at issue.

Judge Floyd dissented, arguing that the “majority too narrowly views federal courts’ inherent authority to supervise the proceedings before them.”

Denial of Compassionate Release Request Doesn’t Require Lengthy Explanation

US v. High: In 2019, High was sentenced to 84 months in prison following his conviction for distributing crack cocaine. In 2020, he filed a motion for compassionate release, arguing that he had a history of heart conditions that left him particularly vulnerable to serious effects of COVID-19 and that it was likely he would contract the disease in the institution where he was incarcerated. The district court denied the motion, relying on the 3553(a) factors and noting that High had only begun to serve his sentence, that the sentence was still “sufficient, but not greater than necessary” to support the purposes of sentencing, and that having “reviewed and considered the relevant factors” relief was not warranted.

The district court affirmed the denial of High’s request for compassionate release. In doing so, the court noted that High’s appeal “does not take serious issue with the substance of the district court’s decision but rather focuses on the procedure the court followed in explaining its decision.” Applying recent Supreme Court precedent, the court concluded that there was no requirement in such proceedings that the district court acknowledge and address all arguments made by the defendant. In this case, the same district court judge who denied the motion was the one who imposed the original sentence, the district court “implicitly responded to High’s straightforward motion,” and it identified “rational and legitimate” reasons for rejecting High’s request. The court distinguished it’s recent Martin decision by pointing out that there was no similar “mountain of new mitigating evidence” in this case, given that a short amount of time had passed since High was sentenced.

Court Must Calculate Guidelines Under Current Law in First Step Act Proceeding

US v. Lancaster: In 2009, Lancaster pleaded guilty to a conspiracy involving more than 50 grams of crack cocaine, subjecting him to a mandatory minimum sentence of 120 months in prison. He was classified as a career offender at sentencing and ultimately received a sentence of 180 months in prison. In 2020, he filed a motion under the First Step Act’s retroactive application of the Fair Sentencing Act, seeking a sentence of time served, based on the argument that he was no longer a career offender. The district court denied the motion in a brief, one-paragraph order, concluding that it would have imposed the same sentence had the Fair Sentencing Act been in effect.

On appeal, the Fourth Circuit reversed the denial of relief under the First Step Act. While the district court’s ultimate conclusion that no relief should be granted might end up being correct, it did not properly analyze Lancaster’s request. Critically, the district court failed to recalculate the Guideline range in light of “intervening case law.” At the time of Lancaster’s conviction his offense of conviction – conspiracy – was a “controlled substance offense,” but that is no longer the case. Remand was required for the district court to perform that analysis and, ultimately, determine whether relief was appropriate.

Judge Wilkinson concurred in the result, agreeing that it was required by prior Fourth Circuit precedent. However, he noted that “to say these holdings exacerbate a circuit split greatly understates the matter” and that the issue “is an altogether serious one in sentencing, and I respectfully request that the sooner the Supreme Court resolves the fractured views concerning it, the better of we all will be.”

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

Gant Applies Beyond Search of Automobiles

US v. Davis: Davis was pulled over for overly tinted windows. After officers discovered that Davis “had a history of felony drug charges and convictions,” Davis drove off while they were still in possession of his license and proof of insurance. A high-speed chase followed in a residential neighborhood until Davis “reached a dead-end cul-de-sac, drove in between two houses and into someone’s backyard,” at which point he got out of the car carrying a backpack and started running into a swamp. Davis eventually got stuck and officers caught up. After they drew their weapons, Davis “complied by returning to dry land, dropping the backpack, and lying down on his stomach.” Davis was patted down (they found cash), handcuffed, and placed under arrest. At that point, an officer opened the backpack and found cash and cocaine. A search of Davis’ car uncovered more cash and other items, while a handgun was found along the path of Davis’ flight. The district court denied Davis’ motion to suppress the contents of the backpack and his car and was ultimately convicted of drug and firearm counts and sentenced to 420 months in prison. 

On appeal, the Fourth Circuit reversed the denial of Davis’ motion to suppress. The court addressed the issue of whether Arizona v. Gant, in which the Supreme Court addressed searches of vehicles pursuant to lawful arrests, applied outside the context of vehicles. The court concluded that it did, because while Gant involved an automobile search, the prior cases upon which it was based were not limited to that situation. As a result, police “can conduct warrantless searches of non-vehicular containers incident to a lawful arrest only when the arrestee is unsecured and within reaching distance of the [container] at the time of the search.” With that in mind, the district court erred by denying Davis’ motion to suppress, because when the backpack was searched Davis was handcuffed and not within reaching distance of it. The court contrasted this situation, where Davis was “face down on the ground win this hands behind his back” with an earlier decision approving a similar search where the defendant was “milling about” while handcuffed. Without the evidence found in the backpack the officers lacked probable cause to search the car (although they had reasonable suspicion).