First Step Act Denials Reviewed for Unreasonableness, Too

US v. Swain: In 2008, Swain pleaded guilty to conspiracy to possess with intent to distribute more than 50 grams of crack cocaine and sentenced to 324 months in prison, the bottom of the applicable Guideline range. In 2019, he moved for a reduced sentence under the First Step Act, arguing that his Guideline range had dropped to 210 to 262 months (probation calculated it as 262 to 327 months. The district court concluded Swain was eligible for a reduction, but exercised its discretion not to give one after “completely review[ing] the entire record, the parties’ arguments, the new advisory guideline range [Swain’s, the court assumed], and all relevant factors under 18 USC 3553(a).”

On appeal, the Fourth Circuit vacated the district court’s decision. To start, the court had to determine the proper standard of review, with Swain arguing it was for reasonableness and the Government arguing it was for abuse of discretion. The Government’s argument attempted to limit the court’s decision in Collington to similar factual scenarios, where the un-reduced sentence was greater than the newly applicable statutory maximum. The court disagreed, concluding that “substantive reasonableness review applies to all section 404 proceedings.” Applying that standard, the court noted that “here, the district court did not explicitly acknowledge it was effectively retaining a variant sentence, let alone why it believed such a large upward variance was warranted.” The exercise of discretion to deny relief under the First Step Act “must be reviewed in light of the First Step Act’s remedial purpose.” Because the district court “relied largely on the same factual basis to deny [Swain]’s motion for a reduced sentence as it did to impose its initial bottom-of-the-Guidelines sentence,” its decision was substantively unreasonable.

Congrats to the Defender officer in EDNC on the win!

Confrontation Clause Error in CP Prosecution Harmless

US v. Arce: Police tracked an IP address involved with sharing child pornography to a house in Virginia Beach. They arrived to execute a search warrant and found Arce there, house sitting for his sister. While the search was in progress, officers spoke to Arce outside in their vehicle, questioning him about his use of peer-to-peer software. He eventually admitted to viewing child pornography and gave consent to search his apartment, where officers recovered two cell phones, on one of which “four pornographic thumbnail images” were found. Arce was charged with four counts of receipt and one count of possession of child pornography. After unsuccessfully moving to suppress his statements, Arce went to trial and was convicted on all counts. The district court sentenced him to 130 month in prison and a term of supervised release, including conditions that effectively imposed a lifetime ban on computer usage.

On appeal, the Fourth Circuit affirmed Arce’s convictions, but vacated his sentence with regard to some of the conditions of supervised release. The court first rejected Arce’s argument that his statements to police were taken without proper Miranda warnings, concluding that the district court’s factual findings that he was not in custody at the time were not clearly erroneous. Next, the court addressed the testimony of one of the investigators, who testified as a lay witness about “several Cellebrite Reports that reflected information extracted from Arce’s electronic devices.” Arce claimed that testimony violated the Confrontation Clause because the use of hash values in that report, which were matched up with database results that showed the images were known child pornography images, was testimonial. The court agreed, but found the error harmless as it was “duplicative of the actual evidence,” that is the images themselves, as well as the investigator’s “lay-opinion testimony that he viewed these images and found them to be child pornography.” Finally, the court struck down the supervised release conditions “implementing a ban on internet and computer use,” finding that while they were related to Arce’s offenses there were less restrictive alternatives that could be used. The court also noted that a complete internet ban is “always excessive for ‘non-contact child pornography activity, or similar conduct’ where there was no actual contact with the victim.” The court affirmed a ban on accessing pornography (of any kind), noting Arce’s “self-admitted pornography addition, which eventually escalated into viewing child pornography.

Maintaining Drug House Enhancement Applies Where Defendant Used Another’s Home as Base of Operation

US v. Barnett: Barnett was charged and convicted of conspiring to distribute and possessing with intent to distribute various types of drugs. According to testimony at trial, he did so largely in and around the “Calvary Street house,” in a residential neighborhood. Barnett’s cousin lived there and the two “worked together selling illegal drugs” at the home and at other locations in the neighborhood. When a search warrant was executed at the Calvary Street house, officers noticed “multiple lookups up and down the street,” and, as a result, Barnett ran “from the front yard into the front door of the house and then out of a side door,” but was captured. Drugs and other evidence was found in the house. Then, during an arraignment on state charges, Barnett claimed all responsibility for the drugs in the Calvary Street house, exonerating his cousin. As a result, Barnett was assessed a two-level enhancement for maintaining a premises for the purpose of distributing drugs and sentenced to 276 months in prison.

On appeal, the Fourth Circuit affirmed the sentence, including the premises enhancement. Noting that his “lack of a possessory interest in the Calvary Street house is not dispositive,” the court relied on his “control over the premises and the activities occurring there” to support the enhancement. The court noted that he had “claimed ownership of the bulk drugs stored inside the house alongside the accoutrements of drug trafficking,” although he tried to walk that back at sentencing, and that Barnett had “frequented the Calvary Street house, apparently for the primary – if not sole – purpose of accessing the drugs he stored there in order to sell them.” In light of that, there was no clear error in the district court imposing the enhancement.

Vacating Illegal Reentry Conviction Based on Flawed Deportation Proceedings

US v. Sanchez: Sanchez, a native of Mexico, was deported from the United States in 2011 “following a four-minute removal hearing.” At that hearing, the immigration judge did not inform Sanchez of his eligibility for voluntarily removal or his right to appeal. However, in a written order, the judge stated that Sanchez had actually waived his right to appeal. In 2018, Sanchez was found in the United States and charged with illegal reentry. He successfully moved to dismiss the indictment on the grounds that the immigration judge’s failure to inform Sanchez of voluntary removal made his deportation proceeding fundamentally unfair.

The Government appealed and, while the case was pending, the Fourth Circuit decided a case which “effectively rejected the district court’s reasoning.” Nonetheless, Sanchez argued he was entitled to relief on an alternate ground, that the immigration judge had denied his right to appeal. The Fourth Circuit agreed and affirmed the district court’s grant of the motion to dismiss. The court found that the Government had waived the issue of whether Sanchez’s “uninformed and illusory waiver of his right to appeal violated his due-process rights” by failing to address it until its supplemental reply brief (and even then by doing so only in a “passing shot” single sentence). The court then rejected the Government’s argument that the failure had not prejudiced Sanchez, concluding that he had shown that, but for the immigration judge’s error, Sanchez would not have been deported.

No Error In Partial Courtroom Closure, but Rehaif Error Requires Vacation

US v. Barronette: Barronette (and several codefendants) were part of an organization that “distributed drugs and engaged in countless acts of violence using firearms” in West Baltimore, for which they were charged with offenses including conspiracy to commit racketeering, murder, a drug distribution conspiracy, substantive drug distribution counts, and several firearm offenses, including being a felon in possession of a firearm. At trial, the district court limited the number of spectators in the courtroom (sending the rest to an overflow room) do to “extremely serious security concerns” including “fights in the gallery, knives being found in the gallery . . . the fact that government witnesses in the case had been murdered, and an alleged request from Barronette while imprisonment for people to pack the courtroom when government witnesses were testifying.” The defendants were convicted on all charges and sentenced to lengthy terms imprisonment, including life.

On appeal, the Fourth Circuit affirmed most of the convictions, rejecting numerous arguments raised by various defendants. Two issues stand out. First, all the defendants argued that their right to a public trial had been violated by the restriction on spectators in the courtroom. The court disagreed, noting that “the courtroom was never completely closed to the public” and that the “district court advanced overriding interests of maintaining order and preventing witness intimidation.” The restriction was properly tailored to serve those needs and the district court had considered reasonable alternatives. Second, two defendants, Wilson and Pulley, argued that their felon-in-possession convictions had to be vacated in the wake of the Supreme Court’s decision in Rehaif. The court agreed with Pulley, but not Wilson. The difference between the two was that Pulley’s prior convictions were for “state-law misdemeanors” that, nonetheless, fit within the federal definition of “felony” for this offense. In light of the sentences he had been given, “there is a lack of record evidence that Pulley knew that he was convicted of a state crime for which the punishment was for more than two years, especially when his crimes were labelled as misdemeanors.” The court found error, that the error was plain and prejudicial, and ordered Pulley’s conviction vacated. For Wilson, however, the court denied relief because, in comparison to Pulley, he “had been convicted of robbery with a dangerous weapon, which is a felony under Maryland law” and therefore the “presumption that he would ordinarily know he was a felon applies.”