Courts Must Consider Knock-On Effects of Caused by Retroactive Guideline Amendments

US v. Barrett: Barrett was sentenced for drug offenses in 2019. At that time, her final offense level was 33 and Criminal History Category II. She was given two criminal history “status” points for being on probation when committing the instant offense, plus one point for a prior sentence. She received a sentence of 168 months, in the middle of the resulting Guideline range.

In 2023, when the amendment to the status points provision of the Guidelines was made retroactive, the probation office determined that Barrett was eligible for a reduced sentence, as without the two status points she was now in Criminal History Category I with a reduced Guideline range. The Government agreed. Barrett agreed that she was eligible, but argued that her new Guideline range was even lower because now that she only had one criminal history point she was eligible for a two-level offense level reduction under the “safety valve” provision. The district court disagreed and reduced her sentence to 150 months (the middle of the new Guideline range it calculated) rather than 120 months (the middle of the new range Barrett had calculated).

On appeal, the Fourth Circuit vacated the district court’s decision and remanded for additional proceedings. It rejected the Government’s argument that the only thing the district court could do with a retroactive Guideline amendment was look at that particular change in the Guideline calculus. In situations like this, where the retroactive Guideline change has knock-on effects to other calculations, those must be applied as well. The court remanded to allow the district court to make findings as to whether Barrett satisfied the other safety valve requirements.

Congrats to the Defender office in WDVA on the win!

Firearm Made In Same State of Prosecution But That Then Travelled Through Several States Triggers §922(g)(1) Liability

US v. Ervin: Ervin possessed a rifle in North Carolina while he was a convicted felon. On advice of counsel, he pleaded guilty without a plea agreement and he was sentenced to 188 months under the Armed Career Criminal Act. Prior to his plea, Ervin’s counsel had been provided with an ATF report showing that the rifle had been made outside North Carolina, but Ervin later learned that it had actually been made in North Carolina.

Ervin filed a §2255 motion to vacate his conviction, arguing he received ineffective assistance of counsel because his attorney failed to adequately investigate the firearm. In response, the Government provided another ATF report that showed that while the rifle was made in North Carolina, it had been “shipped to a wholesaler in Louisiana before returning to North Carolina” via a retail outlet in Georgia The district court concluded that was sufficient to meet the interstate commerce element of the offense and, therefore, there was no prejudice. The district court denied Ervin’s §2255 motion.

On appeal, the Fourth Circuit affirmed. The court agreed with the district court that even if Ervin’s lawyer should have investigated the origin of the firearm there was no prejudice because evidence showed that it had been possessed “in or affecting commerce” as §922(g)(1) requires. Such a conclusion was required by Supreme Court precedent regarding a prior version of the statute. The court also reached the same conclusion regarding the definition of “interstate or foreign commerce,” concluding that it did not alter the analysis.

Murder Cross Reference Properly Applied in Felon-in-Possession Case

US v. Ellis: Ellis, a previously convicted felon, had a “tumultuous” relationship with his “former fiancé,” who had unsuccessfully tried to extricate Ellis from the life of her and her son, Gross. As Gross left his mother’s South Carolina apartment to go get his car, Ellis confronted him at the bottom of a stairwell. After a brief, and escalating, conversation, Ellis “pulled out a gun and shot Gross once in the abdomen” from about ten feet away. Ellis said it was an accident. After his guilty plea to being a felon in possession of a firearm, the district court applied a Guideline cross reference for attempted murder and sentenced Ellis to 97 months, the top of the resulting Guideline range.

On appeal, the Fourth Circuit affirmed Ellis’ sentence. First, the court concluded that Ellis could not have raised a defense of intoxication for the cross reference. It could apply if Ellis had committed either federal or state attempted murder and in South Carolina and South Carolina only allowed intoxication as a defense if it was the result from a mental condition (which Ellis never asserted). Second, the court could not conclude that the district court clearly erred in crediting the testimony of Gross about the event, over Ellis’ “self-serving” statements, that the shooting was intentional.

Court Vacates Upward Departure Based on Dissimilar Conduct

US v. Nixon: Nixon pleaded guilty to being a felon in possession of a firearm. While awaiting sentencing he “committed several acts of violence, including multiple stabbings” in custody. Nixon’s attorney procured an evaluation from a psychiatrist who detailed Nixon’s mental health issues and how they helped explain his conduct while in custody. The Government sought an upward departure from the 41-51 month Guideline range to the statutory maximum of 120 months to account for his “criminal history,” which included the incidents that occurred prior to sentencing. The district court granted the motion, jumping directly from a Criminal History Category III to VI and an elevated offense level to produce a Guideline range of 100-120 months, then imposed a sentence of 114 months. In doing so, the district court rejected Nixon’s expert opinion, concluding “I don’t need to hear from her. I read her report. I don’t find it credible.”

On appeal, a divided Fourth Circuit vacated Nixon’s sentence, for multiple reasons. First, the court concluded that the district court erred by relying on Nixon’s conduct while awaiting sentencing as a basis for the departure, as it was not based on “prior similar adult criminal conduct” to either conduct at issue in his offense or conviction or criminal history. The court stressed that the Government could have prosecuted Nixon separately for that conduct but, having decided not to, could not use the same conduct to enhance Nixon’s sentence. Second, the district court procedurally erred in its departure, failing to do the step-by-step analysis required, going up one Criminal History Category at a time (although it recognized such a requirement was necessary). Finally, the court held that the district court erred by disregarding Nixon’s expert report given that it was uncontested by the Government, leading to a clearly erroneous finding that Nixon’s conduct was not impacted by it.

Judge Harris, dissented, arguing that the limitation in the Guidelines related to the departure was not so narrow, that the district court both recognized the need for a step-by-step process and said it did so, and there was no clear error in the treatment of the expert report. Finally, Judge Harris argued that any error was harmless, as the district court said it would impose the same sentence regardless of the departure.

Court Vacates Supervised Release Revocation Based on Unconfronted Hearsay

US v. Wheeler: Wheeler was on supervised release when he had an altercation in a hotel lobby with Mobley, who accused Wheeler of assaulting and strangling her. After his probation officer sought a modification as a  result, the district court “ordered the probation officer to initiate supervised release revocation proceedings instead.” Mobley did not appear for the revocation hearing after failed attempts by the probation officer to contact her and successfully serve a subpoena on her. Over Wheeler’s objection, the district court proceeded with the revocation hearing, with the Government presenting several witnesses, including some who repeated Mobley’s allegations as related to them. Wheeler’s term of supervised release was revoked and he was sentenced to six months in prison and additional supervised release, but was released on bond because, the district court found, “this was a close case” and Wheeler “should have an opportunity for his cause to be heard” on appeal.

On appeal a divided Fourth Circuit reversed the revocation of his term of supervised release. Central to the appeal was whether the district court erred by considering Mobley’s hearsay statements after her failure to appear to testify. The court concluded that it had because it did not properly apply the balancing test required for determining whether such testimony is admissible. The district court is required to balance “the defendant’s interest in confrontation against the Government’s good cause,” which did not occur here. The court also noted that the burden is on the Government to show good cause to admit evidence, not on the defendant to show the evidence is inadmissible. The court also included that the Government did not provide a sufficient explanation for its failure to secure Mobley’s presence and that neither error was harmless.

Judge King’s dissent reads, in its entirety: “Because I am fully satisfied that the very able presiding judge did not abuse his broad discretion in making the challenged evidentiary ruling, I would affirm the judgment of the district court. As a result, I respectfully dissent.”

Congrats to the Defender office in WDNC on the win!

Court Affirms Convictions, Sentences, Versus Various Challenges

US v. Williams: A marijuana supplier disappeared and suspicion fell on Scott Williams and his son, Taeyan, who “operated a large-scale enterprise selling drugs to college students” supplied by the missing supplier. His body was never found, but a search of Scott’s home uncovered a large amount of cash, firearms, sizable amounts of multiple kinds of drugs, and “a drug ledger found under the mattress in Scott’s room.” The Williams’ were charged with numerous counts, including conspiracy to distribute drugs and kidnapping resulting in death. A jury found them guilty of some drug counts (but acquitted on the kidnapping, among others) and Scott guilty of possession with intent to distribute methamphetamine and conspiracy to destroy evidence. Scott was sentenced to a term 276 months in prison, Taeyan to 150 months.

On appeal, the Fourth Circuit affirmed the Williams’ convictions and sentences. Taeyan’s only argument was that there was insufficient evidence that he possessed with intent to distribute the marijuana and cocaine found in Scott’s home. The court disagreed, noting the difficult standard of review (“it is not enough for Taeyan to assert a non-frivolous argument” or show “there is some evidence that supports his position”), and pointing to evidence of his constructive possession of the drugs, noting that whether Taeyan lived there or not (he claimed he did not) was not determinative.

As to his conviction, Scott argued that the evidence found in his home should have been suppressed because the search warrant was executed without knocking. Recognizing this was not a basis for suppression under Hudson v. Michigan, Scott relied on 18 U.S.C. § 3109 as the basis for exclusion. The court did not decide the issue, concluding instead that the police had exigent circumstances that justified the no-knock search in the first place. As to his term of imprisonment, the court refused to decide that Scott was eligible for a two-point reduction under the “zero point” amendment to the Guidelines, leaving it for Scott to pursue via a § 3582(c)(2) motion. Finally, the court concluded that a condition of supervised release requiring Scott take part in mental health treatment, which left to the probation officer the nature and location of such treatment, was not an improper delegation of judicial authority.

No Error Where District Court Asked Questions During Allocution, Wouldn’t Let Defendant Read Letter to His Mother

US v. Jennings: Jennings pleaded guilty to being a felon in possession of a firearm after police arrived at a party responding to a noise complaint and heard shots fired (recovered casings matched the gun Jennings had in his possession). At sentencing, Jennings allocated by speaking “at length about how alcoholism had impacted his life and contributed to his criminality,” after which he “read a poem he had written to the court,” as well as a “prepared speech wherein he thanked his defense attorney and again explained how alcohol contributed to his criminal history.”

The district court interrupted Jennings twice to ask clarifying questions. When Jennings said he “don’t hurt or bother or disrespect random people,” the district court interjected “you shot somebody . . . What does it mean you don’t bother random people?” Then, during Jennings’ poem, the district court stopped him to ask, after one particular line, “Wait a minute. Did you just say emotion, clothes, weather, money?” The district court asked more questions, after which Jennings “asked to read a letter he had written to his mother.” The district court declined (“you’ll see your mother”) and imposed a statutory maximum sentence of 120 months in prison.

On appeal, the Fourth Circuit affirmed Jennings’ sentence. It rejected the argument that the district court’s questioning, and refusal to let Jennings read the letter to his mother, was an abuse of discretion that restricted the right to allocution. The court concluded that the district court’s questions did not “terminate” the allocution and that the district court asked “clarifying questions” and “allowed [Jennings] to continue speaking after these questions and did not cut him off.” As for the letter, it was “not addressed the court” and did not include anything that Jennings had not already said.