Divided Court Confronts Rogers Error Yet Again

US v. Tostado: Tostado was convicted (of what we don’t learn) and sentenced (to a term of imprisonment we never learn) after entering a plea agreement in which she agreed to “abide and be bound by the supervised release condition of warrantless searches . . . regardless of whether” that condition was “orally pronounced by the court at sentencing so long as” it was included in the written judgment. At sentencing, the district court’s explanation of the sentence was that a probation officer could search without suspicion “sometimes, for a safety issue, for example,” but the written judgment allowed for a search by “any probation officer in the lawful discharge of the officer’s supervision functions.”

On appeal, a divided Fourth Circuit vacated Tostado’s sentence and remanded for resentencing. All agreed that the search condition as explained at sentencing conflicted with the one in the written judgment (by expanding when an officer could search without suspicion), but the Government argued that it was not a “material” difference and therefore did not fall afoul of Rogers. The court disagreed (“we can imagine few more obviously material issues than when someone . . . is subject to searches the Fourth Amendment would otherwise forbid”) and proceeded to reject several other Government arguments as precluded by prior precedent. It also rejected the Government’s argument that any error was harmless (even assuming Rogers error could be harmless) due to the plea agreement provision, noting that it’s the district court, not the parties, that imposes conditions and that Rogers conditions are not “included in the judgement.” The court concluded by resolving an as-yet open question, that defendants do have standing to appeal judgments based on Rogers errors alone.

Judge Rushing dissented, arguing that the written judgement did not conflict with the orally pronounced condition, only clarified the district court’s intent and by looking to what Tostado agreed to in the plea agreement. More broadly, however, Rushing argued that “our Rogers jurisprudence becomes less coherent with each decision we render” and that “[a]t some point, we have to fix this mess.”

Juror’s Statements that He Knew Defendant’s Family and Was Worried if Defendant Wasn’t Convicted Did Not Warrant §2254 Relief

Daugherty v. Dingess: Daugherty was charged in West Virginia court with 16 counts related to four incidents in which he allegedly sexually abused his son. He went to trial on 12 counts (four were dropped prior to trial) and was acquitted on the eight substantive counts of sexual assault and abuse, but was convicted of four counts of sexual abuse by a parent or guardian.

After trial, it was discovered that a juror had said, during deliberations, that he knew Daugherty and his family and that he feared what might happen to he and his family should Daugherty by acquitted (a fear he said his fellow jurors should share). The trial court denied a motion for new trial, concluding that the juror’s statements weren’t extrinsic to the deliberations and not a Sixth Amendment violation. The WV Supreme Court agreed. Daugherty sought relief under §2254 in federal court, but the district court denied the petition, concluding that the WV Supreme Court had not unreasonably applied Supreme Court precedent to the issue.

On appeal, the Fourth Circuit affirmed the denial of Daugherty’s §2254 petition. The court noted that Daugherty’s argument was that the lower courts had erred by considering the juror’s two statements in isolation, rather than as a whole that gave them a certain meaning (i.e., that the juror had outside information based on his knowledge of Daugherty’s family and it informed his fears), but ultimately concluded that it did not need to decide that issue. Rather, regardless of how the statements were considered, they did not meet the Supreme Court’s standard for improper extrinsic influence on jury deliberations. The court concluded that the juror’s statements came from his own mental processes and could not be considered equivalent to information originating from “non-jury figures.”

NOTE: I was counsel for Daugherty in this appeal.

Whether Magazine was “Large Capacity” Was Ambiguous and Allowed Consideration of Guideline Commentary

US v. Holman: Holman was in a car accident, at the scene of which officer recovered a handgun (that had been reported stolen), with a magazine inserted, along with an additional magazine that matched the one in the firearm. Holman pleaded guilty to being a felon in possession of a firearm. In the PSR, the probation officer noted that the two magazines “contained a total of 32 rounds of ammunition” and, on that basis, recommended an enhancement for possession of a firearm with a “large capacity” magazine. The district court imposed the enhancement and sentenced Holman to 66 months in prison.

On appeal, the Fourth Circuit affirmed Holman’s sentence. Applying plain error review, and noting that Holman had not objected to the description of the magazines in the PSR, the court held there was no error in applying the enhancement in this case. The court concluded that “large capacity” is an ambiguous term and allowed resort to the Guideline commentary, which reasonably defined it as capable of accepting more than 15 rounds. The court also concluded that the firearm here was “quite obviously capable of accepting both his magazines,” given that they were the same and one was in the gun when it was recovered. The court went on to hold that any error could not have been plain, have affected Holman’s substantial rights, or been the type of error which the court should notice.

“Minor” In Enticement Guideline Is Vague Term Properly Defined in Commentary to Include Fictitious Minors

US v. Hodges: Hodges met a woman named “Alice” online, who had two daughter, aged 11 and 13, to whom he expressed his desire to engage in “family sexual relations.” After lots of talk back and forth, Hodges flew from his home in Montana to West Virginia to meet Alice and her children. Only Alice was a police officer and the children were fictional. Hodges was arrested at the airport and eventually pleaded guilty to two counts of enticement. His advisory Guideline range was enhanced based on the use of a computer involving a “minor” and because one “minor” was under 12 years of age. Hodges was sentenced to 324 months in prison, the bottom of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed Hodges’ sentence. His argument (on plain error review) was that the term “minor” was not so ambiguous as to allow resort to the Guideline commentary that define the term to involve fictitious minors (so long as they are portrayed by law enforcement). The court disagreed, finding no error, much less a plain one, in resorting to the commentary, concluding that the term “minor” was ambiguous (at least as to whether it included fictitious minors). To hold otherwise would be contrary to caselaw that allowed convictions for enticement in cases without a real minor and decisions of other circuits on this particular point.

NOTE: I was counsel for Hodges in this appeal.

Revocation of Supervised Release for Violating Rogers Conditions Required Remand

US v. McLaurin: In 2013, McClaurin was sentenced to 120 months in prison, plus five years of supervised release, following a guilty plea to possession with intent to distribute more than 5kg of cocaine. At sentencing, the district court imposed four special conditions of supervised release. In the written judgement, the district court imposed more than a dozen other “standard” conditions, including ones that required McLaurin to notify his probation officer of a chance in residence or employment and submit to visits from his probation officer. McLaurin did not appeal his sentence.

He was released from prison in 2022. In 2024, he was alleged to have violated several conditions of his term of supervised release, including failing to appear for home visits and not provide notice of a chance of address. He admitted to those violations (all others were dismissed) and he was sentenced to 90 days in prison, followed by 42 more months of supervised release. McLaurin did not object to the revocation or sentence.

On appeal, a divided Fourth Circuit vacated the revocation order and remanded for additional proceedings. The conditions to which McLaurin admitted were imposed in violation of Rogers and, thus, nullities. The court rejected several procedural arguments from the Government as to why McLaurin could not challenge his revocation, regardless. First, the court rejected McLaurin’s argument that a waiver provision in his plea agreement covered the appeal, holding that a Rogers claim is “distinct from a challenge to imposed sentences” because such conditions “were never properly imposed.” In other words, “McLaurin is not appealing his sentence or its related conditions” but “the 2024 revocation . . . based on invalid a null conditions.” Second, the court held the appeal was not untimely. Given that Rogers was handed down after McLaurin’s original sentence had become final, this revocation was the first “procedurally appropriate mechanism” for him to challenge it. Finally, the court rejected the Government’s reliance on cases holding that a defendant cannot challenge the substance of a condition in revocation proceedings, noting that none of them involved Rogers errors. Ultimately, the court concluded that prejudicial plain error had occurred that should be noticed and ordered that the case be remanded for resentencing.

Judge Niemeyer dissented, arguing that McLaurin was procedurally barred from raising the issue at this point, adding to the points addressed by the majority that McLaurin had invited error by admitting to violating the challenged conditions in exchange for other allegations being dismissed.

Congrats to the Defender office in Maryland on the win! 

Defendant Had Reasonable Expectation of Privacy in Google Drive Files, But Fourth Circuit Violation Was Too Attenuated

US v. Lowers: A Google Drive user uploaded 156 files to their account. Google’s hashtag-based algorithm flagged them all as child sexual abuse material (“CSAM”) and a Google employee reviewed 31 of them and confirmed that. All 156 files were reported to NCMEC, where an employee reviewed the same 31 files. Eventually , local law enforcement in Virginia got the tip and reviewed at least three other files, finding that the were CSAM.

A warrant based on that information led to a home family in Virginia and eventually their son, Lowers, in North Carolina. Lowers agreed to an interview with authorities and consented to a search of his phone (which revealed additional CSAM files. While Lowers was doing a second interview, authorities executed a warrant (based on “the entire investigation up to that point”) at his home, turning up hundreds of images and dozens of videos of CSAM. Lowers, after being charged with transporting and possessing CSAM, moved to suppress, arguing that the warrantless search of his Google Drive files violated the Fourth Amendment. The district court disagreed, finding Lowers had no expectation of privacy in those files and, even if there was a Fourth Amendment violation, the exclusionary rule should not apply.

On appeal, a divided Fourth Circuit ultimately affirmed the denial of Lowers’ motion to suppress, but on narrower grounds that the district court. Initially, the court held that Lowers did have a reasonable expectation of privacy in his Google Drive files. The court rejected the district court’s conclusions that because the files were CSAM and contraband (so identified by Google’s algorithm) Lowers could have no expectation of privacy in them, as well as the district court’s conclusion that Google’s terms of use would render any expectation unreasonable. That made law enforcement’s search of the additional files (beyond the 31 viewed by a Google employee) a Fourth Amendment violation not covered by the private search exception. Ultimately, however, the court concluded that the exclusionary rule should not apply because the violation was too attenuated from the evidence ultimately seized from Lowers’ home, given the passage of time and his consent to a search of his phone that revealed additional CSAM.

Judge King concurred in the judgment in a one-page opinion arguing that the private search doctrine should have been applied.

Defendant Who Previously Showed Prejudice in IAC Claim Fails to Show Deficient Performance on Remand

US v. Murillo: Carillo Murrillo (who goes by Carillo) pled guilty, pursuant to a plea agreement, to a cocaine conspiracy offense in 2016. An issue running through the plea negotiations was the immigration impact any conviction would have on Carillo – he refused, for instance, to agree not to contest his removal as part of the plea agreement. The district accepted his guilty plea “after confirming that Carillo understood he may be deported.” He was sentenced to 24 months in prison and (months later) learned he would be deported after serving his sentence.

Carillo filed a §2255 motion, arguing he received ineffective assistance of counsel because his attorney had not told him he would be subject to mandatory deportation as a result of his conviction. Without holding a hearing, the district court denied the motion, holding that Carillo could not show the required prejudice. The Fourth Circuit reversed on appeal, holding that Carillo had shown prejudice – noting that, without a hearing a factual findings, it was required to take Carillo’s assertions as true – and remanding for a hearing on whether counsel had rendered deficient performance.

On remand, Carillo argued that counsel had failed to advise him that, as a result of his plea, “he would be subject to ‘mandatory discrimination’ or ‘presumptively mandatory deportation’ . . . and would be statutorily ineligible for the discretionary relief of cancellation of removal.” The Government countered that it was enough that counsel informed Carillo he was “deportable,” relying on the fact that changed circumstances either in his home country (such as the outbreak of civil war) or in the executive (ultimately responsible for the deportation decision) made it impossible for defense counsel to say, with certainty, a person would absolutely be deported. The district court agreed and, again, denied Carillo’s §2255 motion.

On appeal, a divided Fourth Circuit affirmed the denial of Carillo’s §2255 motion. Noting that Carillo did not take issue with any factual findings made by the district court, the Fourth Circuit first rejected his argument that its initial holding that he had demonstrated prejudice “necessarily proved” deficient performance. The court held that it could assume deficient performance to address prejudice, which is what it did. The court then distinguished this case from prior precedent where counsel’s advice on deportation had been clearly incorrect, which was not the case here. Ultimately, the court held that counsel had performed her job properly by informing Carillo that a conviction would make him “deportable” and nothing more certain was required.

Judge Thacker dissented, arguing that prior precedent, from the Fourth Circuit and Supreme Court, compelled a finding of deficient performance.

Ruan Argument Sufficiently Available at Time of Plea That Failure to Raise It Procedurally Defaulted Claim

US v. Dimkpa: Dimkpa was a physician who, in 2019, pleaded guilty to six counts of unauthorized distribution of oxycodone (all counts involving the same patient who was addicted to opioids and was given prescriptions after having tested positive for heroin or cocaine). In doing so, he was informed that the law (at the time) required only proof that his practices were outside of the usual course of professional practice, not that he knew they were. He was sentenced to 46 months in prison.

Years later, following the Supreme Court’s 2022 decision in Ruan, Dimkpa filed a §2255 motion arguing that his plea was invalid because the district court failed to inform him that the Government would have to prove he knew his prescriptions were outside the usual course of professional practice. The Government argued that Dimkpa’s claim was procedurally defaulted and the district court agreed, denying the motion.

On appeal, the Fourth Circuit affirmed the denial of Dimkpa’s §2255 motion, agreeing with the district court that Dimkpa could not show cause for his procedural default. Specifically, although Ruan announced a new rule that overruled then-existing Fourth Circuit precedent, it was not the kind of new rule that excused Dimkpa’s earlier failure to object. That is because, while any Ruan-style argument would have been unsuccessful, it was nonetheless “available” to counsel. This was particularly true as the Supreme Court’s decision in Rehaif, on which Ruan was partly based, had come down month prior to Dimkpa’s sentencing.

Court Affirms Contempt Conviction of Mother Whose Son Did Not Report to Serve Revocation Sentence

US v. Jameson: Steven Jamerson was on supervised release in 2023 when he was charged with violating several conditions. After his arrest, the court released Steven on bond, with his mother, Connie Jameson, as a third-party custodian. Connie was present at the bond hearing, agreed to be her son’s custodian, and that she “became responsible for his compliance with various conditions of release.” She also agreed that failure to do so could leave her “subject . . . to adverse consequences.”

Steven’s term of supervised release was revoked and he was sentenced to four months in prison, plus another eight months of supervised release. Rather than being immediately detained, Steven was ordered to self-surrender when instructed by the US Marshals Service. He was told at the revocation hearing that he was “released under the same terms of bond that you had when you came here to today.” Connie was in the courtroom for that hearing.

Steven and Connie were made aware of his report date, but Steven did not report as directed (he was arrested about a month later). Connie “did not take any action to ensure that the self-surrender occurred” and told investigators that “her son was a ‘grown person’ who was ‘old enough to be . . . responsible for himself.’” On the Government’s motion, Connie was held in criminal contempt and sentenced to three days in jail (stayed during the pendency of her appeal).

On appeal, the Fourth Circuit affirmed Connie’s contempt conviction. The court rejected her argument that, as of the revocation, there was no longer a “valid court order in pace” that required her to act as Steven’s custodian, holding that the Bail Reform Act allowed courts to extend bond to person following revocation and provide for self-surrender. The court also held that the bond order itself was clear enough to support a conviction for criminal contempt.