Consecutive Sentences Hadn’t Been Served So As to Create Double Jeopardy Problem at Resentencing

US v. Bullis: In 1996, Bullis was convicted for six separate offenses after mailing pipe bombs to his wife’s office (one went off, injuring her, the other was intercepted). Of the six offenses, two were for use of a “firearm” during crimes of violence under §924(c). At sentencing, the district court imposed a 235-month sentence on the other four counts to run concurrently with each other, then imposed a 360-month consecutive sentence on one §924(c) offense and a life sentence on the other, to also run consecutively to the other four. In the wake of the Supreme Court’s decision in Johnson (and its progeny), Bullis filed a §2255 motion that resulted in the two §924(c) counts being vacated.

At the time of resentencing, Bullis had served 331 months in prison. The district court imposed concurrent sentences of 240 months on three counts, but a sentence of 450 months on the other, leaving Bullis approximately 119 months to serve. The district court also attempted to impose conditions of supervised release by referencing “standard” conditions adopted in the district.

On appeal, the Fourth Circuit vacated Bullis’ sentence due to error in imposing conditions of supervised release, but approved of the term of imprisonment imposed at resentencing. Bullis’ primary argument was that the new sentence violated Double Jeopardy because he was resentenced on counts for which his sentence was already complete. The court disagreed, distinguishing between situations where multiple sentences are imposed to run concurrently with each other and those where consecutive sentences are imposed. In the former, each sentence imposed stands on its own, but in the latter the sentences running consecutive to each other form unified “packages.” In Bullis’ case there were two “packages” consisting of each §924(c) offense plus the other terms to which they were ordered to run consecutively. Analyzed that way, Bullis had not fully served either sentence package. Nonetheless, the court had to vacate the sentence due to yet another Rogers error in the imposition of conditions of supervised release.

Evidence of Domestic Abuse Inadmissible Without Pursuing Duress Defense

US v. Nsahlai: Nsahlai’s husband (an “international businessman”) had two businesses incorporated in Virginia which had no employees. Nonetheless, the businesses applied for PPP loans to cover payroll costs, using fraudulent payroll data generated by Nsahlai. She was charged with conspiracy to commit bank fraud and related offenses and went to trial. Prior to trial, the district court granted a Government motion to exclude portions of a recording in which Nsahlai and her sister discussed abuse (violence and threats) Nsahlai suffered at the hands of her husband. Nsahlai stated that she was not pursuing a duress defense, but that she intended to argue that “the overall circumstances of [her abusive] relationship” explained why she engaged in the charged conduct, attacking the mens rea elements of the offenses. The district court clarified that if Nsahlai testified she could go into the abuse somewhat. Nsahlai did not testify and was convicted of all counts at trial.

On appeal, the Fourth Circuit affirmed Nsahlai’s convictions. Nsahlai’s primary argument was that the district court erred by excluding the recording (the court noted that while Nsahlai referred to other evidence of abuse that might have been introduced there was no proffer of what that was). The court found that there was no abuse of discretion in the district court’s ruling, concluding that the recording (which took place after the conduct at issue in the indictment) was “vague” and referred to “events that occurred at an unknown point in time and without context” and thus was not relevant. That was because the court rejected Nsahlai’s argument that the abuse had anything to do with the mens rea elements of the offense, given the lack of duress defense. Even if it was relevant, the court held it would have been properly excluded under Rule 403 as unduly prejudicial and, additionally, harmless given the weight of evidence against Nsahlai.

Shorter Term of Imprisonment With Significantly Longer Term of Supervised Release Is Presumptively Vindictive

US v. Chang: Chang and Campbell were convicted of conspiracy to distribute cocaine. Campbell was sentenced to 72 months in prison, plus a four-year term of supervised release. Chang, sentenced later, received the same sentence. His sentence was vacated, however, because the district court had erred in concluding he wasn’t eligible for safety valve relief. At resentencing, the district court focused on what it called Chang’s “leap into a criminal lifestyle” and ultimately imposed a 69-month term of imprisonment – a slight reduction from the original, but above the now applicable 37-46 month Guideline range – and a ten-year term of supervised release.

On appeal, the Fourth Circuit vacated Chang’s sentence and remanded for another resentencing. Chang’s primary argument was that his sentence was vindictive and he was punished as the result of his successful initial appeal. The court agreed that Chang’s sentence was “harsher than his first,” even though it involved a lesser term of imprisonment. While “courts cannot weigh terms of incarceration and supervised release with any mathematical certainty,” with the supervised release term more than doubled this was not a particularly close case. The court then went on to conclude that the district court did not adequately explain its harsher sentence, noting that what the district court did rely on imposing the second sentence was information available to it during the initial sentencing. In other words, there was not new information upon which the district court could base a decision to impose a harsher sentence. Chang’s sentence had to be vacated, even under plain error review (as Change did not object to the harsher sentence when imposed).

Dismissal of Emotionally Fragile Juror Ex Parte Required Reversal of Convictions

US v. Laffitte: Laffitte was charged and stood trial for conspiracy and related fraud counts. During jury deliberation, several notes were received from the jury. Two were from Juror 93, who first explained that they needed medication from home and then that they were “feeling pressured to change my vote.”  The district court stated that it intended to utilize an alternate rather than delay deliberations (Laffitte suggested sending the jury home to start again the next morning). Two additional notes emerged, one from most of the jurors that another juror’s “prior court experience” was influencing their “ability to discuss the trial in a group setting.” The final note, from Juror 88, asked for an alternate because “I am experiencing anxiety and [am] unable to clearly make my decision.”

The district court, “with the consent of the parties” decided to question Juror 88 alone with a court reporter to “create a record.” The district court also said “I’m going to take action.” It then performed an in camera interview with Juror 88, in which they said they could not “perform your duties as a juror.” Therefore, the district court told Juror 88 “I’m going to honor your request and replace you then” and did so without seeking further input from the parties. Lafitte objected to the removal of Juror 88 but “not to the juror that was replaced for medication,” Juror 93. After additional instructions, the jury deliberated for less than an hour before convicting Laffitte on all counts.

On appeal, the Fourth Circuit reversed Laffitte’s convictions, ultimately concluding that the district court should have granted Laffitte’s motion for a new trial. While concluding that the district court did not err by refusing to consider an affidavits from Jurors 88 and 93 under Rule of Evidence 606(b)(1), the court did conclude that the district did err in removing Juror 88 (the court held Laffitte had waived his argument as to Juror 93), for two reasons. First, the dismissal of Juror 88 violated Laffitte’s Sixth Amendment right to an impartial jury because Juror 88’s note and colloquy with the district court showed that the distress they felt was due to their position on Laffitte’s guilt or innocence during deliberations. Second, the dismissal violated Laffitte’s right to be present during a critical stage of his trial, as the decision was made by the district court without input from Laffitte (or the Government, for that matter).

Single-Count Conspiracy Conviction Supports Sentencing for Multiple Counts

US v. Mitchell: In 2021, Mitchell (and codefendants) was charged in an eight-count indictment with conspiracy to commit Hobbs Act robbery and seven substantive robbery counts. Mitchell pleaded guilty to the conspiracy count and one substantive count. In the PSR, the probation officer identified five robberies (or attempted robberies) in which Mitchel was involved (not all of which were substantive counts from the indictment). Applying USSG § 1B1.2(d), the probation officer treated Mitchell as if he had four separate convictions which, because they did not group, led to a four-level multi-count increase in his offense level. The district court adopted those calculations and imposed a sentence of 108 months, below the 120-150 month Guideline range.

On appeal, the Fourth Circuit affirmed Mitchell’s sentence. Before reaching the merits, the court returned to the question of Guideline commentary and the Supreme Court’s decision in Kisor, concluding that under Campbell that Kisor applies to questions of Guideline commentary interpretation (as opposed to the later-decided Moses which concluded it did not). That done, the court § 1b1.2(d) applies to robberies, “even if those underlying robberies would constitute violations of the same statute.” The court did not need to reach the issue of how to determine which other robberies are counted as Mitchell never contested that he committed the four robberies at issue.

Michigan Robbery by Confinement Requires Use of Force, Is “Serious Violent Felony”

US v. Lightfoot: In 2000, Lightfoot was convicted of bank robbery and a firearm offense after having been previously convicted of the same offense in Virginia and Michigan state courts. As a result, Lightfoot was sentenced to a mandatory life term under the “three strikes” provision of 18 U.S.C. § 3559(c), plus a consecutive life sentence for the firearm offense. After Johnson was decided in 2015, Lightfoot filed a §2255 motion arguing that the Michigan bank robbery conviction was no longer a “serious violent felony” under either the enumerated offense clause or force clause. The district court disagreed and denied the motion.

On appeal, a divided Fourth Circuit affirmed the denial of Lightfoot’s §2255 motion. The court first concluded that the Michigan robbery statute was divisible and that Lightfoot had been convicted of the version of the offense known as “assaultive bank robbery.” The court then concluded that the offense fell under the enumerated offense clause because it shared the “essence of robbery in the federal statutes.” It rejected Lightfoot’s argument that because the offense could be committed by “confinement” it was not sufficiently similar to federal bank robbery, concluding that Michigan law showed that “confinement requires force or intimidation, just like all the other assaultive acts listed in the robbery statute.” The court noted that Lightfoot “has not identified any case where confinement without force or fear was the basis of an assaultive bank robbery conviction” under Michigan law.

 Judge Benjamin dissented, arguing that Michigan assaultive bank robbery “in its lease culpable form, can be accomplished without the use or threat of physical force.”

Completed Carjacking Remains Crime of Violence

US v. Fulks: Fulks and his codefendant, Basham, escaped from prison together and went on a multi-state crime spree that resulted in a kidnapping, rape, and murder in West Virginia (which is not the subject of this appeal) and a similar kidnapping, rape, and murder in South Carolina (which is the subject of this appeal). They were both charged with numerous offenses, including kidnapping, carjacking, and use of a firearm in connection with a crime of violence and conspiracy to use a firearm during a crime of violence. Fulks pleaded guilty to all counts, while Basham was convicted at trial on all counts. Both were sentenced to death (plus 744 months in prison). They challenged, via a second or successive §2255 motion, whether their firearm convictions were invalid after Johnson and its progeny because the alleged crimes of violence in which the firearms were used no longer qualified as such. The district court denied their motions.

On appeal, the Fourth Circuit affirmed the denial of Fulks’ and Basham’s §2255 motions. The parties agreed that, under Fourth Circuit precedent, kidnapping could no longer serve as a predicate crime of violence. Fulks and Basham argued the carjacking statute was indivisible and that because attempted carjacking could not be a crime of violence (as the Supreme Court held that attempted Hobbs Act robbery was not) then carjacking categorically was not a crime of violence. The court disagreed on both fronts. First, the court concluded that the carjacking statute was divisible between completed and attempt offenses. Second, the court held that it was clear that what Fulks and Basham were convicted of was completed carjacking, not attempt. Third, the court held that because completed carjacking requires the use or threatened use of force it was a crime of violence that could sustain Fulks’ and Basham’s convictions. Finally, the court held that the record was clear that their convictions were based on both a valid (carjacking) and invalid (kidnapping) predicate and therefore could not be vacated.

No Breach of Plea Agreement by Government Arguing for Upward Variance on Remand

US v. Johnson: In 2018, Johnson was charged with a drug conspiracy count and possession with intent count and entered into a plea agreement with the Government to plead guilty to the possession-with-intent count. The parties stipulated to the relevant conduct and that Johnson was entitled to a reduction for acceptance of responsibility. Johnson agreed to waive his right to appeal “from a sentence in excess of the applicable Guideline range that is established at sentencing,” while the Government reserved the ability to “make a sentence recommendation” and present additional evidence to respond to arguments made by Johnson. The probation officer concluded that Johnson was a career offender and calculated his Guideline range accordingly. At sentencing, the district court varied down from the career offender Guideline range and imposed a sentence of 128 months in prison.

Johnson appealed, initially arguing that one of his prior conviction upon which the career offender designation was based had been modified in state court “such that it no longer qualified as a felony.” The Fourth Circuit granted a motion to remand the case for resentencing. The probation officer recalculated the Guideline range as 57 to 71 months in prison. The Government filed a motion for an upward departure or variance, arguing the court should reimpose the original 128-month sentence. The district court imposed a sentence of 120 months.

The Fourth Circuit affirmed Johnson’s 120-month sentence. Johnson argued that by arguing for the upward departure/variance the Government had breached the plea agreement. The court disagreed, noting first that Johnson had not made that argument in the district court, so it was reviewing for plain error. Regardless, the court rejected Johnson’s argument that “reading the agreement as a whole, the Guidelines Stipulation must be interpreted to limit the Government’s sentencing recommendation rights,” holding that no such agreed-to-limit was present in the agreement. In addition, the reservation of the ability to “make a sentence recommendation” was broad, “but that doesn’t make it ambiguous or vague.”