Extensive Upward Variance Justified by Nature of Offense, Prior Criminal History

US v. Davis: Police tried to stop Davis for driving while using a “handheld device,” but he didn’t stop and eventually crashed. While being transported following his arrest, Davis “repeatedly complained about his handcuffs” and “continued to move around in the back seat.” After repeated inquiries whether he had anything dangerous on him he admitted to being in possession of a firearm (which officers then recovered). Davis pleaded guilty to being a felon in possession of a firearm.

The PSR initially calculated Davis’ advisory Guideline range to be 57 to 71 months, largely due to prior convictions that were deemed “controlled substance offenses.”  Davis objected, arguing under Campbell that his prior offenses were not controlled substance offenses. The probation officer agreed and revised the advisory Guideline range to 21 to 27 months. At sentencing, the Government argued for a variance up to the 120-month statutory maximum based on Davis’ extensive criminal history, his conduct in fleeing and attempting to access the concealed firearm, and the fact that he would have been exposed to sentencing under the Armed Career Criminal Act had the Government charged it in the indictment. Davis argued for a sentence at the bottom of the Guideline range. The district court did vary upward, but not to the extent requested by the Government, imposing a sentence of 72 months in prison.

On appeal, the Fourth Circuit affirmed Davis’ sentence. Davis argued that his sentence was both procedurally and substantively unreasonable, largely because the district court did not adequately address mitigating arguments related to his traumatic upbringing and the limited nature of his current conduct (simple possession of a firearm for no “nefarious purpose”). The court disagreed, concluding that the district court adequately addressed those arguments but either rejected them (the nature of the offense) or found they were outweighed by other factors. On Davis’ argument about his upbringing, which was based around adverse childhood experiences (“ACEs”), the court criticized Davis for not making the ACE argument more specific to his prior conduct.

“Standard” Conditions of Probation Affirmed After Procedural, Substantive Challenges

US v. Notgrass: Rhonda Notgrass and her husband, Robert, pleaded guilty to misdemeanor fraud after fraudulently obtaining unemployment payments during the COVID lockdown. They pled pursuant to a plea agreement in which they waived their right to appeal their “sentence of imprisonment, fine or term of supervised release” or the “manner in which the sentence was determined.” They were sentenced to 60 months probation, which included numerous conditions, to which they objected to three: (1) that they not leave the district without permissions, (2) that they not possess dangerous weapons (although Rhonda was allowed to possess pepper spray or mace), and (3) that if unemployed they register with Work Force West Virginia (by the time of sentencing, they had relocated to Missouri). Robert additionally objected to a condition mandating participation in mental health treatment if ordered by his probation officer. The district court imposed all of them, largely on the basis that they were “appropriate.”

On appeal, the Fourth Circuit affirmed the imposition of the conditions of probation. First, the court denied the Government’s motion to dismiss the appeal under the appeal waiver from the plea agreement. That, the court held, was explicitly limited by its plain language to sentences of imprisonment and supervised release and made no mention of probation (or conditions thereof). The court then turned to the procedural reasonableness of the contested conditions, concluding that the explanation provided by the district court was adequate. Although none of the conditions were mandatory under the statute, the first two were “standard” conditions set forth in the Guidelines and thus required little explanation from the district court when imposed. The other conditions were more specifically related to the convictions and Robert’s history and characteristics, and thus adequately explained. For largely the same reasons (i.e., they were “standard” conditions and connected to the offenses and history) the court also found that the conditions were substantively reasonable.

NOTE: I was counsel for Rhonda Notgrass in this appeal.

Virginia Robbery Is Not “Crime of Violence” Under Either Elements of Generic Definition of “Robbery”

US v. Parham: Parham pleaded guilty to being a felon in possession of a firearm. In the PSR, his base offense level was enhanced due to a prior conviction for a “crime of violence” – convictions in Virginia for robbery and using a firearm during a robbery, treated as a single prior under the Guidelines. Parham objected, arguing that Virginia robbery was not a crime of violence under White due to the ability to commit the offense by “threatening to accuse the victim of engaging in sodomy.” The Government countered that White was limited to Armed Career Criminal Act situations because the enumerated offense of “robbery” in the Guidelines included the Virginia offense. In the alternative, the firearm offense was a crime of violence, too, leading to the same Guideline calculation. The district court agreed with the Government on the robbery conviction and ultimately imposed a sentence of 84 months in prison, in the middle of the resulting Guideline range.

On appeal, the Fourth Circuit vacated Parham’s sentence. The court held that Virginia robbery does not match the generic definition of robbery in the Guidelines for the same reason that it does not meet the elements test – because it covers a broader amount of conduct than generic robbery. Specifically, it can be committed by threatening to accuse the victim of engaging in sodomy. With the robbery conviction addressed, the court concluded it could not address the firearm offense because the record did not show that the district court had made a ruling as to its status as a crime of violence. Parham’s case was remanded for further proceedings.

Congrats to the Defender Office in Eastern Virginia on the win!

First Step Act Credit Exclusion for Offense Where Death Resulted Requires Conviction

Valladares v. Ray: In 2020, Valladares sold fentanyl and related substances to a friend who, after using them, died “from mixed drug intoxication.” Although he was initially charged with a count of distribution of a controlled substance causing death, Valladares eventually pleaded guilty to an information charging him with one count of simple distribution and two counts of possession with intent to distribute. The plea agreement stated that Valladares admitted that “he distributed controlled substances to the victim, and that the death of the victim resulted.” The death played a role in the Guideline calculations and Valladares was sentenced to three concurrent sentences of 144 months in prison.

In prison, Valladares sought to earn time credits under the First Step Act by participating in various programs. The Bureau of Prisons, however, concluded that Valladares was not eligible for such credit because the FSA excludes certain prisoners from its benefits, including those convicted of drug distribution “for which death . . . resulted from the use of such substance.” After unsuccessfully challenging the BOP conclusion administratively, Valladares filed a §2241 habeas corpus action, arguing the exclusion did not apply to him. The district court denied the motion.

The Fourth Circuit reversed. The primary issue was whether the “death resulting” exclusion could be based on underlying facts of the inmates case or whether it was required to be an element of the offence for which the inmate was convicted. Examining the plain meaning of the statute, the court concluded that a categorical approach applied and, therefore, if the offense of conviction did not have a death resulting element the inmate was not excluded from receiving FSA credit. Valladares, in spite of his initial charge and facts relevant to his sentencing, was not convicted of an offense that had a death resulting element, so he could receive credit.

Congrats to the FPD Office in Maryland on the win!

No Clear Error Imposing Leadership Enhancement for Defendant Who Was Middleman in Large Drug Conspiracy

US v. Pilego-Pineda: Pilego-Pineda “coordinated logistics for several muti-kilogram methamphetamine deliveries” as part of a long-term investigation of a large drug conspiracy. Working from Atlanta, Pilego-Pineda served as the middle-man for the transaction, coordinating deliveries and approving transactions with potential buyers (some of whom, naturally, were undercover officers of confidential informants). He pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine mixture and money laundering. At sentencing, he was assessed a three-level organizer for being a manager or supervisor of criminal activity involving more than five participants. Facing an advisory Guideline range of 360 months to life in prison, Pilego-Pineda was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed Pilego-Pineda’s sentence. The court found no clear error in the district court’s conclusion regarding Pilego-Pineda’s role in the offense, noting that “the organization vested Pilego-Pineda with significant authority” that included “whether to trust particular buyers and whether to arrange recurring deals involving large quantities of methamphetamine.” He “served as the organization’s primary contact in Atlanta” and “had a high degree of participating in organizing the offense.”

Court Grants Second 2255 Permission to Pursue Counterman Claim

In re: Rendelman: In 1986, Rendelman was serving a state sentence when he was raped in prison. Over the next 15 years he wrote numerous letters to various officials involved in his case or the judicial system, some of which resulted in a federal sentence (during which he was raped four more times). In 2005, Rendelman was arrested on an outstanding state warrant (based on an old letter), started writing letters again, and was charged with six counts of mailing threatening communications. Proceeding pro se, Rendelman wanted to argue that his letters were not true threat, but “protests.” The district court disagreed, applying an objective reasonable person standard for the relevant jury instructions. Rendelman was convicted and sentenced to 15 years in prison.

After the Supreme Court’s decision in Counterman, Rendelman sought permission from the Fourth Circuit to file a second or successive §2255 petition challenging his conviction, arguing that under Counterman the Government would be required to prove that he acted with intent or at least recklessly in making actual threats. The court agreed and granted permission, rejecting (again) the Government’s argument that Rendelman was required to show a chance of succeeding on the merits. All that was necessary, the court held, was for him to show a new rule of constitutional law that was made retroactive and was “previously unavailable” to the petitioner.

Guilty Plea Involuntary Due to Government Misconduct Related to Potential Suppression Motion

US v. Garrett: Investigators in North Carolina used a pair of CIs to purchase methamphetamine from a person they thought was McDuffie, but was actually Garrett. Throughout the investigation, investigators called the target of search warrants McDuffie, rather than Garret (even after they knew about the mistake) and consistently avoided disclosing that they used two different CIs (with different backgrounds and credibility issues) during the operation. Garrett and a co-defendant, Cole-Evans, were eventually indicted for gun and drug charges.

Garrett initially moved to suppress evidence discovered during the investigation, relying on the identify confusion between himself and McDuffie. In response, the Government relied on an argument that (as with investigators) collapsed the two CIs into one. Cole-Evans did the same. After briefing on the motions was complete, the Government disclosed 775 pages of information that detailed the flaws in the investigation. Garrett decided to withdraw his motion to suppress rather than risk losing acceptance of responsibility and pleaded guilty to three counts in the indictment. He was sentenced to 240 months in prison. Cole-Evans, however, requested reconsideration of his motion to suppress – after Garrett had been sentenced – based on the multiple-CI details contained in the post-briefing disclosure. The district court granted the motion to reconsider and set a hearing, but before it could take place the Government dismissed the case against Cole-Evans with prejudice.

On appeal, a divided Fourth Circuit agreed with Garrett that his guilty plea was not made knowingly and involuntarily because of the investigator and Government misconduct the preceded it. Applying plain error review, the court concluded that Garrett could show that some “egregiously impermissible” conduct that pre-dated his guilty plea influenced his decision to enter the plea. It recognized that “preventing defendants from challenging pleas based on subsequently discovered misconduct could encourage officers to engage in or conceal misconduct to elicit guilty pleas.” That misconduct resulted in “critical deficiencies which occurred during the initial investigation and pre-plea phase” in the “bedrock of the prosecution’s case.” Nonetheless, the court made clear that “here, it is the newly discovered information that acts as the basis of the involuntary plea.” This was “a rare and extraordinary situation where the prosecution’s actions during the pre-plea process evidence a lack of candor that deprived Garrett of due process.”

Judge Quattlebaum dissented, arguing that because Garrett had the relevant information (from the 775-page data dump) for weeks prior to his guilty plea he could not meet the standard needed to vacate a guilty plea.

NC Special Probation Sentence Aggregates for Guideline Considerations

US v. Edwards: Edwards pled guilty from escaping from a halfway house in North Carolina. In the PSR, the probation officer calculated his criminal history score by including, counting for three points, a prior state sentence for fleeing to elude, for which he had been placed on “special probation” with a credit for 53 days already served and a 12-month sentence suspended; but that probation was revoked, triggering the 12-month sentence. Edwards objected, arguing that the original 53-day term and later 12-month term could not be aggregated to produce a sentence of longer than 12 months that counted for criminal history points. The district court disagreed and imposed a bottom-of-the-Guideline sentence of 24 months (making it clear it would have imposed the same sentence regardless).

On appeal, the Fourth Circuit affirmed Edwards’ sentence. Noting that the North Carolina courts had not directly addressed the issue of how the two periods of incarceration interacted with one another, the court looked to the plain language of the statute and concluded that it was appropriate to aggregate them. That it, the statute authorized both “active” and a “suspended” terms of imprisonment and did not suggest they should not be considered in the aggregate.

Affirming Sentence for Defendant Convicted of Role in Sweepstakes Fraud Scheme

US v. Lawson: Lawson was part of a “telemarketing sweepstakes scheme,” run out of Jamaica in which callers to primarily elderly people (70% of the 179 victims were over age 65) would claim they had won a prize, but could only collect after paying fees and other assorted costs. Lawson (and his mother) were in South Carolina where they collected various forms of payment from the various victims. Lawson pleaded guilty to numerous counts, including conspiracy and fraud. At sentencing the district court applied enhancements based on a total loss of $720,000 and because the offense involved vulnerable victims. It denied Lawson a reduction for a minor role. Ultimately, Lawson was sentenced to 78 months in prison, the top of the applicable Guideline range.

On appeal, the Fourth Circuit affirmed Lawson’s sentence. In doing so, the court expanded on the nature of review for clear error, centering the district court’s better institutional tools for making factual determinations (“district courts simply have a better yardstick than we do”). Lawson could not show clear error in the calculation of his Guideline range. As to the vulnerable victim enhancement, the court concluded that while it cannot be based solely on the age of victims, age is nonetheless a proper factor to consider when determining whether victims are particularly vulnerable in any particular case. As to the minor role enhancement, the court held that Lawson’s critical role in the scheme was a legitimate factor in determining whether to grant the reduction, as was a record that showed Lawson was, at least, an “average” participant in the scheme. Finally, as to the loss calculation, the court rejected Lawson’s argument that actual and intended loss were “categorically different and mutually exclusive” and concluded that the district court did not err by considering both.

No Plain Error for Illegal Reentry Sentence

US v. Dominguez: Dominguez was “a citizen of Mexico” with “a lengthy record or deportations from and subsequent reentries into the United States.” At least some of those deportations came after convictions for crimes, including possession with intent to distribute drugs in Arizona. In 2022, Dominguez was arrested in North Carolina and pleaded guilty to drug trafficking and resisting arrest in state court and was then charged with illegal reentry following conviction for an aggravated felony (the Arizona conviction). After pleading guilty, he was sentenced to 48 months in prison, an upward variance from the advisory Guideline range of 30 to 37 months.

On appeal, the Fourth Circuit affirmed Dominguez’s conviction & sentence. Reviewing for plain error, the court found no issue with the classification of Dominguez’s Arizona conviction as an aggravated felony. The court sidestepped the merits of the issue, concluding Dominguez could not show any error impacted his substantial rights because the aggravated felony classification only increases the statutory maximum for the offense and his sentence was below the otherwise-applicable maximum. The court also rejected a challenge to the calculation of the advisory Guideline range, concluding that Dominguez had failed to show how his resisting conviction was part of trying to avoid detection for the illegal reentry offense, and thus is could enhance both his offense level and criminal history. Nor was his sentence substantively unreasonable. As to his conviction, the court concluded that Dominguez had waived the ability to make that argument due to his guilty plea.

South Carolina Drug Convictions Remain “Controlled Substance Offenses”

US v. Jackson: In 2021, Jackson pleaded guilty to being a felon in possession of a firearm. He objected to his base offense level being enhanced due to two prior South Carolina convictions for distribution of crack cocaine, arguing under Campbell that they did not meet the definition of “controlled substance offense.” The district court disagreed and imposed a sentence of 115 months, in the middle of the applicable advisory Guideline range.

Jackson took an appeal, arguing both the Campbell issue and that the district court had not adequately explained the basis for the sentence it imposed. The Fourth Circuit vacated the sentence, in an unpublished decision that concluded Campbell did apply to the South Carolina offenses. Prior to Jackson’s resentencing, however, the Fourth Circuit decided Groves and Davis, which severely limited the impact of Campbell. Davis, in particular, addressed the same South Carolina offenses at issue in Jackson’s case, concluded that they did, in fact, qualify as controlled substance offenses. Jackson was again sentenced to 115 months in prison.

On appeal for a second time, the Fourth Circuit again vacated Jackson’s sentence, but only after concluding that the Guideline calculations were correct. The court concluded that the mandate rule did not prevent the district court at resentencing to implementing the holding of the original appeal as to Campbell, as Groves and Davis (both published). Specifically, Davis is not in conflict with Campbell (in which case Campbell would control) because the court in Davis considered Campbell and concluded it did not apply to the South Carolina offenses. However, the court did conclude that the district court, once again, failed to adequately explain the sentence it imposed and vacated the sentence and remanded on that basis.

Indictment for “Felonious” Rather Than “Forcible” Assault Not Defective

US v. Johnson: Johnson was in a car with fellow gang members who thought they wound up in pursuit of a car full of rival gang members – at whom Johnson shot eight times (nobody was hit or hurt). Turns out the car was actually driven by FBI agents. Johnson was charged with a discharging a firearm in connection with a crime of violence and assaulting federal officers in an indictment that charged they had been “feloniously” assaulted rather than “forcibly” assaulted, as 18 U.S.C. §111 states. Johnson was convicted at trial and sentenced to 198 months in prison.

On appeal, the Fourth Circuit affirmed his convictions and sentence. In particular, the court rejected Johnson’s challenge to the indictment. Johnson argued that the indictment was defective because, rather than use the “forcibly” language of the statute, it used the term “feloniously.” Applying plain error, court found there was no error because the indictment adequately put Johnson on notice of the charge against him, the district court instructed the jury properly (i.e., it used “forcibly” language), and the jury’s verdict on the firearm charge, which included a finding “that Johnson fired eight shots . . . inherently included a finding that Johnson assaulted the officers with force.” The Government conceded that there was error and it was plain, but argued Johnson’s substantial rights had not been violated, with which the court also agreed.

Defendant Sufficiently Alleged Facts to Require Hearing on §2255 Motion

US v. McNeil: In 2018, police, after observing a car stop in front of McNeil’s house, pulled the car over (“for an unspecified ‘regulatory violation’”) and “recovered a small bag of marijuana.” Police went back to McNeil’s home, knocked, and spoke to two “juvenile subjects” who said McNeil was not home. Officers then walked into the backyard to a “small shed” where they found McNeil and smelled marijuana. A search of the she uncovered money and firearms. McNeil pleaded guilty to drug and firearm charges and was sentenced to 114 months.

McNeil filed a §2255 motion arguing that he had received ineffective assistance of counsel because his trial counsel had failed to file a motion to suppress the evidence found in the shed and failed to engage in any plea negotiations with the Government. Without a hearing, the district court denied the motion, concluding that any motion to suppress would have been “frivolous” and that McNeil had affirmed he was happy with the performance of counsel during his Rule 11 hearing.

The Fourth Circuit reversed and remanded the case for an evidentiary hearing. On each basis that the district court denied relief the court concluded that the record was insufficient to determine whether McNeil’s claims had merit. Taking the facts set forth by McNeil in his motion as true, the court indicated that a motion to suppress may have had some merit, but that further factual development (including whether McNeil told counsel about relevant facts and whether counsel made a reasoned decision not to file such a motion) was required and the district court should have held a hearing. As to the plea negotiations, the court noted that portions of McNeil’s Rule 11 hearing involved multiple defendants answering questions at the same time and the record did not clearly demonstrate that McNeil expressed satisfaction with his counsel’s performance.

Remand Required Where District Court Failed to Address Defendant’s Disparity-Based Variance Argument

US v. Shields: Shields was arrested in West Virginia on an outstanding warrant from Ohio and found to be in possession of a firearm. He pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government objected that the probation officer had failed to enhance Shields’ base offense level by four levels for a prior Ohio conviction that met the definition of “controlled substance offense.” Shields conceded that he was unaware of any caselaw supporting a contrary conclusion, but argued in the alternative for a variance sentence within the originally calculated Guideline range because had Shields sustained the same conviction across the river in West Virginia it would not have been a controlled substance offense under Campbell. The district court imposed a sentence of 51 months, the bottom of the Guideline range, without addressing Shields’ argument.

On appeal, the Fourth Circuit vacated Shields’ sentence and remanded for resentencing. The court noted that while the district court had addressed Shields’ prior conviction in the context of Guideline calculations, it did not go further and address Shields’ argument for a variance. That argument was not frivolous, as it was based on the need to avoid unwarranted disparities and that such disparities – produced when different states treat similar conduct different ways – “is the kind of disparity a district court could consider under §3553(a)(6).” The court also rejected the Government’s argument that any error was harmless.

NOTE: My office represented the defendant in this case.

17-Day Time-Served Sentence Substantively Unreasonable in Large ID Theft and Child Pornography Case

US v. Fitzgerald: Fitzpatrick created and ran an online marketplace that dealt with stolen identification information, to the point that “it became the largest English-language data-breach forum ever, featuring over 14 billion individual records.” Seizure of his devices led to the discovery of child pornography. Fitzpatrick eventually pleaded guilty to two counts related to trafficking in stolen identification information and possession of child pornography. After his guilty plea, while on bond, he violated numerous conditions of release by (among other things) using a VPN to connect with the internet and proclaim his continued innocence. Bond was revoked prior to sentencing. At sentencing, the district court imposed a term of time served (17 days) based on concerns about Fitzgerald’s age (21 years old) and mental health concerns (autism spectrum disorder), concluding that “this young man in general population I think would just be a disaster.”

On appeal, the Fourth Circuit vacated the sentence and remanded. The Government argued that the 17-day sentence was substantively unreasonable and the court agreed. It concluded that the district court had focused only on Fitzgerald’s age and mental health, without appropriate consideration of other sentencing factors, including deterrence and the seriousness of his offenses. In particular, the court rejected the district court’s reliance on non-record assertions that the Bureau of Prisons could not adequately treat Fitzgerald if sentenced to a term of incarceration.

Rejecting Plain Error Argument Where No Other Court Had Found Error

US v. Jackson: Jackson was an ear/nose/throat doctor in North Carolina who built a specialty performing ballon sinusplasty surgery (to treat chronic sinusitis). The procedure required a particular device that was “designed for single use and is labeled by the Food and Drug Administration as being approved only for single use.” Jackson and her staff used the devices repeatedly and created intense incentives for office staff to attract new patients/customers. Jackson was eventually charged with numerous offenses related to fraud, as well as “holding for resale adulterated medical devices” – the device used to perform the sinusplasty surgery. She was convicted on all charges and sentenced to 300 months in prison and $5.7 million dollars in restitution.

On appeal, the Fourth Circuit affirmed Jackson’s convictions and sentence. Of primary interest was Jackson’s challenge to her adulterated medical device count, on which Jackson made several arguments, most of which “are raised here for the first time on appeal.” Particularly, Jackson argued that, at most, she held the devices for use, but not for sale. Applying plain error because none of the argument presented below “challenge any aspect of the ‘held for sale’ element,” the court concluded that any error could not be plain. The only Circuit Court to have dealt with the issue rejected Jackson’s argument. Even if that decision was incorrect it means Jackson could not show an error that was “clear or obvious.” As the court noted, it had previously held that a district court does not plainly err when it follows the decision of another Circuit Court on an issue where the Fourth Circuit has not yet ruled.

Conviction for Engaging in a Child Exploitation Enterprise Can Be Based on Aggregation of Three Other Individuals Involved

US v. Kuehner: Kuehner (and others) was charged with knowingly engaging in a child exploitation enterprise, based on conduct online where he had “encouraged and pressured minors to post child sexual abuse material.” At trial, Kuehner argued that someone was impersonating him in these matters, but the court disagreed and found him guilty. He was sentenced to 20 years in prison and a 20-year term of supervised release.

On appeal, the Fourth Circuit affirmed Kuehner’s conviction. His primary argument on appeal focused on the requirement that to prove a child exploitation exercise the statute required that a defendant commits certain acts “in concert with three or more other persons.” Kuehner argued that each offense (of which there must be at least three) each required the participation of three or more other persons. The court disagreed, holding (in accordance with other Circuit Courts to consider the issue) that the three or more persons requirement can be satisfied in the aggregate.

Maryland Robbery Remains Violent Felony Under ACCA

US v. Shanton: After committing a pair of bank robberies in 2007, Shanton pleaded guilty to (among other things) two counts of being a felon in possession of a firearm. At sentencing, he was sentenced under the Armed Career Criminal Act on those two counts and received a total sentence of 608 months in prison. In an already pending §2255 motion, Shanton argued (after the Supreme Court’s decision in Johnson) that two of his prior convictions, for robbery in Maryland, no longer qualified as “violent felonies.” The district court disagreed and dismissed the §2255 motion.

On appeal, the Fourth Circuit affirmed the denial of Shanton’s §2255 motion. The court noted that in 2019 it had held that Maryland robbery still qualified as a violent felony after Johnson. Shanton argued that the Supreme Court’s decision in Borden rendered that decision inapplicable because robbery in Maryland could be committed with a mens rea or recklessness and thus not qualify as a violent felony. The court disagreed, holding that the mens rea of common-law robbery applies not only to the larceny element of the offense but to the use of force (or threat thereof) itself.

First-Time-On-Appeal Challenge to Factual Basis of Guilty Plea Rejected

US v. Pittman: In 2020 Pittman pleaded guilty to an information to aiding and abetting the malicious damage by fire of the Market House, a historic building in Fayetteville, North Carolina. Prior to sentencing, Pittman filed a motion to dismiss that count, arguing that 18 U.S.C. §844(f) required a nexus between federal financial assistance and the property damaged and that the information itself was invalid for failing to allege such nexus. Pittman did not move to withdraw his guilty plea. The motion to dismiss was denied and Pittman was sentenced to 60 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Pittman’s motion to dismiss, upholding his conviction and sentence. The court rejected Pittman’s argument, based on the Supreme Court’s decision in Class, that his guilty plea did not waive his challenge to the scope of the statute, holding that Pittman’s unconditional guilty plea “necessarily admitted that his conduct violated the statute.” While the unconditional guilty plea also arguably waived Pittman’s as-applied constitutional challenge to the statute, the court held that it “need not resolve that issue” because Pittman could not meet the requirements of plain error review. Specifically, any error that might have occurred was not plain.

Court Affirms Enhancement for Permanent Scarring, Vacates for Vulnerable Victim

US v. Thuy Luong: Luong, a native of Vietnam who became a United States citizen and was fluent in both English and Vietnamese, ran a nail salon in North Carolina. She hired Victim (it’s the only way she’s identified in the opinion), also a native of Vietnam who was not particularly fluent in English, to work at the salon, then subjected her to various forms of intimidation, extortion, and physical abuse. As a result, Luong was convicted at trial of forced labor. At sentencing, the district court imposed an enhancement for vulnerable victim and for permanent scarring, based on injuries Victim suffered at Luong’s hands. Luong was sentenced to 180 months in prison.

On appeal, the Fourth Circuit vacated Luong’s sentence. The court concluded that the district court had erred in imposing the vulnerable victim enhancement, holding that the findings the district court made were not sufficiently specific to Victim. Instead, the district appeared to believe it sufficient that Victim was part of a “susceptible class” (an immigrant with limited English fluency) without “any particularized facts about the impact of that culture on the Victim.” Nor was there sufficient evidence in the PSR to show what “made the victim unusually vulnerable and why.” However, the court also concluded that the enhancement for permanent scarring was appropriately applied, finding the district court’s findings – based on Government assertions made a year prior to sentencing – were sufficient. The court remanded the case for resentencing.

Probable Cause Supported Arrest, In Spite of Misidentification

US v. Mayberry: Davis was the passenger in a car that was pulled over for speeding. He told officers that he was headed to a hotel to meet a man he knew as “Red” to purchase four pounds of methamphetamine. Officers showed Davis a picture of another man, Phillips, who he identified as Red. Using Davis’ cell phone, officers texted with Red, who was on his way to the hotel. Shortly thereafter, a pickup truck entered the parking lot and Davis got a text from Red saying that he had arrived.

The driver of the truck – Mayberry, not Phillips – got out (with a young child) carrying a red, white, and blue bag and entered the side door of the hotel. Officers intercepted Mayberry on the second floor, without the bag. The bag was found behind a door in the stairwell Mayberry had used. It was found to contain about 4.4 pounds of methamphetamine. After a motion to suppress was denied, Mayberry pleaded guilty to drug and firearm charges and was sentenced to 414 months in prison.

The Fourth Circuit affirmed Mayberry’s conviction and sentence. The district court rejected two arguments with regard to the motion to suppress. First, the court concluded that Mayberry’s statements made after his arrest should not have been suppressed because the police had probable cause to make the arrest. It specifically rejected Mayberry’s reliance on the fact that Davis identified someone else as Red, pointing to the accuracy of the other information Davis provided that was “supported independently by the officers’ real-time observations of Mayberry” after they started texting with Red. Second, the court agreed with the district court that Mayberry had abandoned the bag with the methamphetamine in it and therefore could not challenge its search.

Court Erred By Not Determining Scope of Jointly Undertaken Conduct

 US v. Bright: Bright was involved with others in the sale of drugs, largely using two middlemen to meet with the CI to whom Bright would eventually sell drugs. Along with seven others, Bright was indicted for conspiracy to possess with intent to possess multiple types of drugs, although Bright’s conduct was limited to fentanyl. Bright pleaded guilty. At sentencing, the district court imposed a three-level enhancement for aggravating role in the conspiracy, concluding that “the criminal activity involved five or more participants.” Bright argued only a two-level enhancement should apply since his conduct only involved supervising two others. The district court imposed a sentence of 97 months, the top of the resulting Guideline range.

On appeal, the Fourth Circuit vacated Bright’s sentence. Relying on last year’s decision in Evans, the court concluded that the district court had made the same error here, in that it failed to first determine Bright’s specific role in the conspiracy before determining the extent of the activity that he supervised. Nor did the district court make a determination that that conduct was “otherwise extensive,” as the enhancement required.