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.