Remanding 2255 Proceeding for Hearing Regarding Scope of Investigator’s Misconduct

US v. Paylor: Paylor was charged with being a felon in possession of a firearm, based on evidence provided by Detective Daniel Hersl of Baltimore’s infamous Gun Trace Task Force (as seen in David Simon’s We Own This City). Paylor always claimed (in recorded phone calls from the jail) that the gun, recovered from under a cushion on his front porch, had been planted and that during the arrest Hersl and two other officers stole money from inside the home. After an unsuccessful motion to suppress, Paylor sought from the Government information about allegations of misconduct against Hersl, ultimate a handful of which were turned over. Paylor decided to plead guilty “because counsel did not believe only four complaints were enough to establish a pattern of corruption by Detective Hersl in order to discredit his testimony” about the arrest. Paylor pleaded guilty and was sentenced to 60 months in prison.

Two years later, Hersl was charged (along with others) with extortion, robbery, and other offenses. As part of that case, Paylor testified before a grand jury about his arrest, which produced a superseding indictment against Hersl and a Rule 35 motion for Paylor, which he turned down because of the risk of retaliation from police, that the Government would not entirely vacate his conviction, and the short time left on his sentence. Hersl was eventually convicted on multiple counts after a trial in which the jury specifically found he had falsely arrested and robbed another suspect in circumstances similar to Paylor’s arrest.

Paylor filed a 2255 motion seeking to withdraw his guilty plea, arguing that Hersl’s misconduct “rendered his plea involuntary, and consequently, he should be permitted to withdraw it.” The district court denied the motion, without holding a hearing or permitting Paylor to engage in discovery, as only one of the proven acts of misconduct by Hersl occurred before Paylor’s arrest and it was part of the allegations disclosed to Paylor prior to his plea.

On appeal the Fourth Circuit ordered Paylor’s 2255 motion remanded to the district court. The court noted that in situations like Paylor a petitioner does not have to allege actual innocence, only that “there was egregiously impermissible conduct involved in his prosecution” such that “this misconduct influenced his decision to plead guilty.” The court scolded the Government for its vacillation in Paylor’s case – from arguing he was guilty of the offense, to arguing he was not due to Hersl’s misconduct, and then back to Paylor’s guilt in defending his 2255 motion. Turning to the evidence of Hersl’s misconduct, the court held that the relevant time frame was what happened prior to Paylor’s arrest and that, right now, that included only the incident that was part of Hersl’s guilty verdict (for that reason the court did not reverse the denial of Paylor’s motion). However, Paylor had demonstrated the need for discovery and an evidentiary hearing so that he could attempt to develop further evidence.

Vacating Felon-In-Possession Sentence Due to Pair of Improper Enhancements

US v. Henderson: Police responded to an incident and found Henderson, armed with a rifle, “shove a woman to the ground and point the firearm directly at her.” He fled when confronted, but was quickly captured and the rifle recovered (from a different location). Henderson pleaded guilty to being a felon in possession of a firearm. The probation officer recommended a pair of enhancements that were ultimately applied at sentencing, over Henderson’s objections. The first was a four-level enhancement for possession in connection with another felony offense, particularly possession of a firearm by someone subjected to a Domestic Violence Protective Order. The second was an enhancement for reckless endangerment during flight. The district court imposed a sentence of 60 months in prison, an upward variance from the advisory Guideline range.

On appeal, the Fourth Circuit vacated Henderson’s sentence, finding that the application of both enhancements was error. As to the in-connection-with enhancement, the court noted it had previously held that a defendant cannot be “punished more severely for simultaneously violating multiple provisions of [18 U.S.C.] 922(g) with the same act of possession,” a principle that applies equally to sentencing enhancements. That position is bolstered by Guideline commentary which excludes from the definition of “another felony offense”  offenses such as “explosives or firearms possession or trafficking offenses.” As for flight, the court relied on it’s prior decision in Shivers that flight with a firearm, standing alone, is not enough to justify the enhancement.

No Dismissal Due to Tardy Government Request

US v. Kemp: Kemp was charged with nine counts related to the sexual abuse of his children, eventually pleading guilty to s single count of aggravated sexual abuse. As part of the plea agreement Kemp agreed to “a broad appeal waiver” waiving his right to appeal any sentence so long as it was within the advisory Guideline range. That range was 360 months to life in prison. The district court imposed a sentence of life, followed by a lifetime of supervised release (neat trick!).

Kemp filed a notice of appeal that was untimely. In the Fourth Circuit’s order setting a briefing schedule it specifically informed the Government that failure to file a motion to dismiss by the deadline for filing its response brief “may result in waiver of defenses.” Kemp’s appellate counsel filed an Anders brief and the Government, per the order, filed a motion to dismiss based only on the appeal waiver in the plea agreement. After reviewing the case, the Fourth Circuit ordered supplementary briefing related to the validity of Kemp’s guilty plea and Rogers/Singletary error with regards to supervised release conditions. The Government’s brief addressed both the merits and argued that the appeal should be dismissed for being untimely.

The Fourth Circuit vacated Kemp’s sentence, but affirmed his conviction. In doing so, it denied the Government’s motion to dismiss based on untimeliness, noting that the Government had complied with the initial briefing schedule when it filed a motion to dismiss, but because that was limited to the appeal waiver it resulted in the waiver by the Government of the argument that the appeal was untimely. On the merits, the court held that while the guilty plea colloquy was deficient, it was not so deficient as to undermine its voluntariness. On the supervised release conditions, however, the court held that some were erroneously imposed only in writing after the sentencing hearing, a plain error that required remand for a full resentencing.

In a concurrence, Judge Quattlebaum argued that the court should reconsider Rogers and Singletary because their “internal reasoning” was “inconsistent and conflicts with our precedent concerning errors in a written judgment” and that the full sentencing remedy is one which “we do not consistently employ.”

Proper Amount of Restitution Fell Within Scope of Appeal Waiver

US v. Taylor-Sanders: Taylor-Sanders was charged with multiple counts of wire fraud and identity theft. She pleaded guilty to one count of wire fraud, pursuant to a plea agreement in which she waived “all rights to contest the conviction and sentence in any appeal” on grounds other than ineffective assistance of counsel or prosecutorial misconduct. She later moved to withdraw her plea, arguing that she was told she had no choice but to plead guilty and her plea was not voluntary. The district court denied her request finding her “not credible.” She was sentenced to 66 months in prison and ordered to restitution of more than $700,000.

On appeal, Taylor-Sanders sought review of several issues, including the amount of restitution imposed as part of her sentence. On that issue, Taylor-Sanders argued that because the restitution amount included amounts not covered by the Mandatory Victims Restitution Act the restitution as awarded exceeded the scope of the district court’s authority and, therefore, was not covered by the appeal waiver. The court disagreed, noting the distinction between where a district court lacks the legal authority to award restitution and where it makes a legal error as to the amount of restitution owed. The later error is covered by broad appeal waivers, like the one in this case.

No Clear Error In Upward Variance Based on Fentanyl Potency

US v. Roy: Roy was involved in a pair of traffic stops within tens days of each other. In the first he was the driver of a car from which nearly 62 grams of fentanyl was recovered. In the second, he was the driver of (another) car pulled over after a reported shoplifting from which a firearm was recovered. Roy wound up pleading guilty to aiding and abetting the possession with intent to distribute fentanyl and being a felon in possession of a firearm. The district court ultimately varied upward from the Guideline range, imposing a sentence of 120 months in prison. In doing so, the district court emphasized the lethality of fentanyl, complete with an anecdote that a police officer had told him not to handle fentanyl as it could be lethal.

On appeal, the Fourth Circuit affirmed Roy’s sentence. Roy argued that the district court erred by either basing its sentence on clearly erroneous information or evidence that was outside the record. With regard to the general lethality of fentanyl and the prevalence of it in the nationwide overdose epidemic, the court found no clear error and cited numerous sources that supported that conclusion. As to the lethality of fentanyl to the touch, the court pointed to some government reports that might support that conclusion, as well as contrary evidence from scientific sources. In light of the competing evidence, the court held that the district court’s invocation of fentanyl being lethal to the touch (if it drove the sentence at all) could not be clearly erroneous.

Appeal Alleging Rogers Error Subject to FRAP 4 Time Limits

US v. Brantley: Brantley pleaded guilty to drug and firearm charges and at sentencing was told by the district court that he would be “subject to the standard conditions of supervised release” in the district, but the written judgment “contained several special conditions of supervised release not mentioned in the oral pronouncement” that “were no minor alterations.” Under the Fourth Circuit’s decision in Rogers, this was error.

Brantley filed a notice of appeal 223 days after the entry of judgment. The Government moved to dismiss the appeal as untimely and the Fourth Circuit agreed and dismissed the appeal. The court noted that the time limits in Rule 4 of the Rules of Appellate Procedure are not jurisdictional and can be waived if not timely raised, but the Government raised the matter here. Because the time limits are “not subject to equitable extension” and the court must “strictly apply them” once invoked, dismissal was required. The nature of the alleged error did not make a difference. Even though conditions like the one at issue might be “nullities” it “does not make the written judgment entered here invalid.”

VICAR Assault With a Deadly Weapon is 924(c) Crime of Violence

US v. Thomas: Thomas pleaded guilty to racketeering and possessing a firearm in connection with a crime of violence, VICAR assault with a deadly weapon. In the wake of Johnson and subsequent cases he filed a 2255 motion challenging his firearm conviction on the ground that VICAR assault no longer qualified as a crime of violence under 18 USC 924(c). The district court denied the motion.

On appeal, the Fourth Circuit affirmed. The court noted that one of the elements of VICAR assault with a deadly weapon is that “the defendant have committed an assault with a deadly weapon” and that the court’s “precedents establish that the inclusion of a dangerous-weapon element . . . elevates an assault to a crime of violence.” It rejected Thomas’ argument that it should also look to the underlying state offenses that were included in the VICAR definition.

Rule 60(b) Motion Based on Failures of Earlier Counsel Is Second 2254 Motion

Bixby v. Sitrling: Bixby was convicted of two counts of murder and sentenced to death following an incident where he shot two police officers during a property dispute. After exhausting his state appellate and post-conviction remedies, he filed a 2254 motion in federal court. Although represented by counsel. Bixby’s motion was largely lifted from prior state pleadings. Both the magistrate, in recommending denial, and the district court, in adopting that recommendation, commented on the unimpressive nature of the motion.

Newly appointed counsel for Bixby’s appeal to the Fourth Circuit was also appointed for further proceedings in the district court and filed a motion under Rule 60(b) of the Rules of Civil Procedure to seek relief from the district court’s judgment because Bixby “did not receive meaningful, ethical representation.” The district court denied the motion, concluding that the Rule 60(b) motion was really an attempt at an unauthorized second or successive 2254 motion.

Alleged Fifth Amendment Violation at Sentencing Doesn’t Escape Waiver

US v. Carter: Carter was involved in a pair of robberies along with an accomplice who was never caught. He eventually pleaded guilty to one count of Hobbs Act robbery for one robbery and brandishing a firearm in connection with a crime of violence for the other. As part of a plea agreement, Carter agreed to waive his right to challenge his sentence “on any ground” on direct appeal. At sentencing, the district court asked Carter to identify the mystery accomplice, stating it was “a very critical part of this Court’s decision.” Carter declined, and counsel noted there was no cooperation requirement in the plea agreement. The district court rejected Carter’s request for a variance and imposed a sentence of 147 months in prison, the top of the advisory Guideline range.

Carter filed an appeal, arguing that the district court improperly enhanced Carter’s sentence in violation of his Fifth Amendment right to remain silent. The Fourth Circuit dismissed the appeal. After initially concluding that the appeal waiver was valid, the court then went on to conclude that it was enforceable in this case. The court noted that the “real disagreement” in the case was “whether the Fifth Amendment challenge constitutes one of the limited grounds for which Carter retained appellate rights.” Ultimately, the court found that Carter could not show either a violation of a constitutional right that was “firmly established” at sentencing or the use of a “constitutional impermissible factor.” Particularly, the court held that Carter had not been placed in a “classic penalty situation” where he had to choose between remaining silent and getting a harsher sentence because “the district court did not expressly state, nor did it even imply, that Carter’s assertion of his privilege . . . would lead to a harsher sentence.” In addition, the district court “had no substantial reason to believe that Carter’s identification of his accomplice would be incriminating beyond the plea itself.”