Court Affirms Revocation Based on Violation of PO’s Instructions Regarding Supervised Release

US v. Amin: In 2015, Amin (then 17 years old) pleaded guilty to conspiracy to provide material support to ISIS based partly on his online presence and use of a computer. Among the conditions of supervised release imposed as part of his sentence was that he “follow the instructions of the probation officer,” that he not “associate with any person convicted of a felony” without permission, and that he be “subject to any screening or monitoring of internet use, as directed by the probation officer.” When he began supervision, he received additional instructions from his PO that required Amin to submit to computer monitoring, obtain permission before conversing online in a language other than English, not possess any material that reflects extremist or terrorist views, and have no contact with any known extremist. Amin, pro se, challenged the instructions, which the Government in response moved to have made formal conditions of supervision. The district court denied all requests, concluding that the PO’s instructions did not do anything new, only clarified the already imposed conditions.

Amin violated the conditions/instructions in several ways (including, for example, using Linux for an operating system, which defeated probation’s tracking software, and communicating with “American Taliban” John Walker Lindh) and the Government sought the revocation of his term of supervised release based on some (but not all) of the alleged violations. The district court agreed, revoked Amin’s term of supervised release, and sentenced him to one year in prison and reimposed the lifetime term of supervised release from his original sentence.

On appeal, the Fourth Circuit affirmed Amin’s revocation and sentence, rejecting various arguments Amin made about the nature of the conditions and instructions he violated (there was no factual dispute that he violated them). For example, the court rejected Amin’s argument that the PO’s instructions amounted to additional conditions of supervised release that were not properly imposed by the district court, agreeing with the district court that they merely clarified and gave effect to conditions imposed at sentencing. The court also rejected as applied challenges to the underlying conditions, reinforcing its holding that such challenges must come in the direct appeal of the initially imposed sentence. As to any as-applied challenges to the any vagueness in the PO’s instructions, the court held that Amin had multiple means to seek clarity if there was confusion about their scope but did not.

Waiver of Appellate Rights Covered Sentence Eight Times Longer than Government Wanted

US v. Toebbe: Diana Toebbe’s husband, Jonathan, was a nuclear engineer with the US Navy’s Reactor Engineering Division, with high-level clearance to handle “restricted material.” In 2020, Jonathan offered restricted material related to Virginia-class nuclear submarines to a foreign nation, which notified the FBI. Subsequently, Jonathan delivered several SD cards with restricted material on them via dead drops during which Diana would act as a lookout, in return for payments in cryptocurrency. Each were charged (in separate cases, it appears) with conspiracy to communicate restricted data and two counts of aiding and abetting the communication of restricted data.

Diana entered into a binding plea agreement with the Government under Rule 11(c)(1)(C) of the Rules of Criminal Procedure in which she agreed to plead guilty to conspiracy in return for a sentence of no greater than three years in prison. At the plea hearing, the Government described Diana’s role as “limited” and “passive” in a “scheme led be her husband,” and that her “offense boils down to acting as a cover and a lookout on three occasions in a three-month period. Nothing more than that. Nothing less.” The district court rejected the plea agreement, calling the 36-month sentence “strikingly deficient” given the nature of the offense and the danger it posed to US naval forces. The district court noted that the probation officer had calculated the advisory Guideline range as 151 to 188 months and “found no justifiable reasons for accepting a plea agreement that would bind it to impose a sentence that far below that range.”

Diana and the Government then entered into another Rule 11(c)(1)(C) plea, in which she again agreed to plead guilty to conspiracy. This agreement bound the district court to impose a sentence of “not more than the low end of the applicable Guideline range,” which would be determined by the district court. The parties agreed to an advisory Guideline range of 108 to 135 months, based on a 3-level departure for substantial assistance and acceptance of responsibility. The plea agreement contained a waiver of Diana’s right to appeal any sentence imposed pursuant to the language above. After the agreement was reached, the probation officer, on their own initiative, contacted the jail where the Toebbes had been detained and learned that Diana had tried to send Jonathan a pair of letters making “attempts to induce her husband to . . . provide statements to authorities affirming her ignorance of his criminal scheme.”

At sentencing, the district court denied the Government’s motion for substantial assistance, assessed a two-level enhancement based on the letters, and declined to award a reduction for acceptance of responsibility, producing an advisory Guideline range of 262 to 327 months. Diana argued for a variance sentence “in the range of 3 to 4.9 years,” arguing that Jonathan “was the principal actor” who came “up with the idea to do this” and that a 262-month sentence would be an unwarranted disparity compared to other espionage cases. The Government argued for a three-year sentence, arguing that it was “universally accepted” that the “person with the access . . . should be punished more severely than someone who might have helped in some way.” It urged the district court to not give excess weight to the letters and reiterated the assistance that Diana had given, which was considered “significant” by both the FBI and the Navy. The district court imposed a sentence of 262 months, noting that this offense was “one of the most serious it had ever seen” and concluding that far from being a minor participant “it was most probably Mrs. Toebbe that was driving the bus.” The district court sentenced Jonathan to 232 months.

On appeal, the Fourth Circuit granted the Government’s motion to dismiss the appeal without reaching the merits of any of Diana’s arguments. She argued that the district court’s rejections of the parties’ position as to a departure and acceptance, and the Government’s ultimate support for a three-year sentence, resulted in a sentence she could not have anticipated at the time the plea agreement was signed. The Government argued that the language of the plea agreement covered the arguments Diana sought to make. The court agreed, ultimately concluding that the sentence was at the bottom of the Guideline range found to apply by the district court, who the plea agreement recognized had the ultimate authority on such calculations.

Trial Delay Primarily Based on COVID Conditions Doesn’t Require Granting Motion to Dismiss

US v. Pair: Pair was charged with two counts of distribution of fentanyl on January 31, 2020 – the same day the first case of COVID-19 was confirmed in the United States. He was convicted of both counts at a trial that began 401 days later, after unsuccessfully moving to have his case dismissed for violations of the Speedy Trial Act and Sixth Amendment speedy trial rights. With the exception of time excluded due to defense counsel illness and the need for new counsel, most of the time was due to district-wide general orders continuing trials due to COVID or case-specific orders due to COVID. The district court found all that time excludable due to the ends of justice and found no Sixth Amendment denial of rights.

On appeal, the Fourth Circuit affirmed Pair’s convictions and the denial of his motion to dismiss. As to the Speedy Trial Act analysis, the court first found that the delay caused be counsel’s illness and the need for new counsel was properly excluded, even though Pair himself objected to any such continuance, as was the time needed to resolve Pair’s motion to dismiss. The court then addressed the COVID-fueled delays and ultimately found that they were all excludable, both those directly related to the general orders and those caused by specific orders entered in Pari’s case (which nonetheless incorporated the findings of the general orders regarding COVID). In those orders it was “clear that the district court contemporaneously balanced” the relevant factors and that the “result of this balancing was not in error.” “It would,” the court concluded, “be the worst kind of hindsight to say that this judgment was in error.” As for the Sixth Amendment analysis, while the 401-day delay was presumptively prejudicial (the Government agreed), the other factors did not favor Pair. In particular, the court rejected Pair’s defense was adversely impacted by his pretrial detention, noting that “were such prison conditions to establish a Sixth Amendment violation . . . entire facilities could be substantially depopulated, a result that [the Supreme Court] in no way countenanced.”

Coram Nobis Claim Fails on Failure to Prove Underlying Offense Subsection

US v. McDaniel: In 1993, McDaniel was involved with a robbery that turned into a chase in which he (the front seat passenger in a car) “leaned from a car window and fired at least two pistol shots” at the pursuing US Marshal. He eventually pleaded guilty to an information charging him with using a firearm in relation to a crime of violence – “an assault on a deputy marshal” and was sentenced to 36 months in prison. In 2005, McDaniel was charged in a multi-count indictment with  (among other things) another firearm possession offense, this time in connection with a drug trafficking crime. Due to his 1993 conviction, McDaniel was subject to the 25-year mandatory minimum on that charge because it was his second such conviction.

In the wake of Johnson and other cases narrowing the relevant definition of “crime of violence,” McDaniel sought relief, either through a 28 USC 2255 motion or a writ of coram nobis, arguing that his 1993 conviction was invalid because his assault offense did not meet the definition of crime of violence. The district court denied relief, on the 2255 because he was no longer in custody related to that offense, and on the coram nobis because McDaniel had failed to prove that the version of assault for which he was convicted was not a crime of violence.

On appeal, the Fourth Circuit affirmed the district court’s denial of relief. McDaniel proceeded only on the coram nobis theory, arguing that the version of assault for which he was convicted did not require the necessary level of force to qualify as a crime of violence. The Fourth Circuit agreed that the relevant statute, 18 USC 111, set forth different offenses in subsection (a) and (b), with the first no longer qualifying as a crime of violence. The court rejected McDaniel’s argument that the firearm enhancement in subsection (b) could be committed recklessly. Under the standard for obtaining coram nobis relief, however, McDaniel had to prove with certainty which version of the offense he had been convicted of committing. The relevant documents were not sufficiently clear to support that burden.

Maryland Assault with a Firearm Not ACCA Violent Felony

US v. Redd: In 2008, Redd was convicted of being a felon in possession of a firearm and sentenced to the 180-month statutory maximum under the Armed Career Criminal Act. Two of the prior convictions that served as ACCA predicates were convictions from Maryland for first-degree assault. In 2016, Redd filed a second 2255 motion arguing that those convictions no longer met the definition of “violent felony” under ACCA. The district court denied relief, holding that because the Fourth Circuit affirmed the sentence on direct appeal Redd’s argument was foreclosed.

On appeal, the Fourth Circuit reversed the denial of relief for Redd. Examining the statutory text of the applicable Maryland statute, the court concluded that it was indivisible, setting out only one offense. The conclusion was reinforced by how Maryland courts had dealt with the statute and by charging practices for that offense. Looking to the elements of the offense, the court first concluded that the offense could be committed recklessly, as it was merely second-degree assault (simple common-law assault) “plus a statutorily defined aggravating factor, such as the use of a firearm.” The court then concluded that there was no added mens rea requirement related to the aggravating factor. Thus, the court ultimately concluded that the offense was not a violent felony.

Judge Quattlebaum concurred, but got “there following a slightly different path.”