Court Failed to Make Findings That Firearm Used In Homicide Was One Listed in Indictment

US v. Revels: Revels was convicted of being a felon in possession of a firearm following an altercation in which she shot and killed a man (for which he was convicted in state court for manslaughter). The indictment charged him with possession of two shotguns, although it appeared he used a pistol in the actual shooting. The district court imposed a cross reference based on the conclusion that Revels used or possessed a firearm “cited in the offense of conviction in connection with the commission of another offense.” It imposed the statutory maximum sentence of 120 months in prison.

On appeal (for the second time) the Fourth Circuit vacated Revels’ sentence, concluding that the district court had not made sufficient findings to impose the cross reference. Specifically, it failed to link the pistol used in the homicide to the firearms (i.e., shotguns) listed in the indictment. The record did not make the matter “so obvious” as to permit the Fourth Circuit to fill the gaps and resolve the issue itself.

Court Continues the Limitation of Campbell With Delaware Drug Offenses

US v. Starkey: Starkey was convicted of a “federal drug-trafficking crime” and sentenced to 300 months in prison as a career offender. A basis for the career offender designation was to prior Delaware convictions for delivery of controlled substances. The district court rejected Starkey’s argument that those convictions did not constitute “controlled substance offenses,” and thus career offender predicates, under Campbell.

On appeal, the Fourth Circuit affirmed Starkey’s sentence. In a brief five-page opinion, the court put the Delaware statute at issue in the same box as other drug offenses it had previously held were not controlled by Campbell, applying the logic of Groves and other cases. Thus Campbell (to the extent its relevant in light of recent Guideline amendments) remains limited to West Virginia drug offenses.

Virginia Use of a Firearm in Commission of a Felony – Robbery, Specifically – Is Not Crime of Violence

US v. Scott: Scott was convicted of being a felon in possession of a firearm. At sentencing, his base offense level was enhanced due to a prior conviction being classified as a “crime of violence.” That offense was a Virginia conviction for “Use of Firearm in Commission of a Felony,” with the particular felony at issue being robbery. Over Scott’s objection, the district court concluded that the offense required the use or threatened use of force and was, therefore, a crime of violence. Scott was sentenced to 33 months in prison, the bottom of the advisory Guideline range.

On appeal, a divided Fourth Circuit reversed the district court’s decision and vacated Scott’s sentence. At bottom, the court concluded that either the firearm offense itself or the underlying felony (the elements of which must be proven beyond a reasonable doubt) had to require the use or threatened use of force, but neither did in this case. The court primarily focused on the underlying robbery offense, relying on its prior decisions in White and Parham, that held that Virginia robbery is not a crime of violence because of the rare (if not unique) means of potentially committing it by threatening to allege someone of committing sodomy, to conclude that, categorically, there was no requirement of force or the threat of force.

Judge Niemeyer dissented, noting that this decision creates a split with the First Circuit on the issue using a “commonsense reading of the statute.”

Attempted Armed Bank Robbery Is Crime of Violence

US v. Straite: In 2009, Straite and some associates robbed a bank in North Carolina, then returned a few months later to try and rob it again (they were foiled when the bank manager saw them coming and locked them out). He was convicted of armed bank robbery, attempted armed bank robbery (under 18 U.S.C. § 2113(a) and (d)), and two counts of brandishing firearms in connection with those offenses. The district court denied his subsequent §2255 motion seeking to vacate one of the firearm offenses because attempted bank robbery did not qualify as a “crime of violence.”

The Fourth Circuit granted a certificate of appealability on that issue and ultimately affirmed the denial of Straite’s §2255 motion. The court noted that in 1984 it had held that the elements of an attempted bank robbery were only (1) intent to commit such a bank robbery and (2) a substantial step toward the crime – which would not include an element requiring the use or threatened use of force. But it concluded that holding “appears to be in tension with the statutory text” of §2113(a), which states that whoever “by force and violence, or by intimidation takes, or attempts to take, from the presence of another . . ..” The key phrase (“by force and violence, or by intimidation”), the court concluded, modifies both “takes” and “attempts to take,” thus requiring the use or threatened use of force. The court contrasted that to the Hobbs Act, which “very clearly distinguishes between actual robbery and attempt.” In the alternative, §2113(d), under which Straite was also convicted, requires assault with a deadly weapon, which satisfies the force required to make it a crime of violence.

Court Affirms Theft Convictions, While Reversing District Court’s Failure to Order Forfeiture

US v. Mhana: Mahana ran a business in which he “paid in cash and below market value for fraudulently obtained latest-generation . . . electronics, which he then shipped in bulk to buyers overseas.” As part of the scheme, he had the devices “unlocked” so they could be used on any mobile network. He was convicted, after a jury trial, of multiple counts of transporting stolen goods, conspiracy, and money laundering. Although the indictment included a forfeiture provision, and the district court entered a preliminary order of forfeiture (for approximately $3.6 million), the district court ultimately refused to order forfeiture at sentencing.

On appeal, the Fourth Circuit affirmed Mhana’s convictions, but remanded with instructions for the district court to enter a proper forfeiture order. The court rejected several evidentiary arguments from Mhana. Primarily, Mhana argued that several spreadsheets compiling wireless user data, produced by wireless providers, were not “business records” because they were prepared in anticipation of litigation. The court held that in such situations the business record is the underlying data itself and later-compiled spreadsheets were admissible so long as the data they reflected were generated in the regular course of business. The court also rejected Mhana’s challenge to summary exhibits introduced by the Government which presented only selected data points for a series of transactions, rather than every data point available for those transactions. As to forfeiture, the court that under the applicable statute the court “shall” order forfeiture which “does not convey discretion.” The district court’s concerns of “double payment” of forfeiture and restitution didn’t matter.

Court Affirms – and then Doesn’t – Denial of Guideline-Modified Reduced Sentence on §3553(a) Factors

US v. Davis: In 2021, Davis pleaded guilty to being a felon in possession of ammunition, following his (unsuccessfully resisted) arrest and the recovery of a “privately made firearm” and fentanyl. In 2022 he was sentenced to 70 months, within a Guideline range that was boosted by a Criminal History Category calculation that included “status points” because Davis was on probation at the time of the offense.

In 2024, following retroactive Guideline amendments that limited the application of status points, Davis sought a reduced sentence under 18 U.S.C. § 3582(c)(2). He argued that he was “focused on his rehabilitation” while incarcerated, including pursuing a GED and working as an orderly, as well as completing several courses, but provided no documentation supporting those arguments. The Government argued against a reduction, noting that Davis had received several write ups, including one for threatening officials with bodily harm during an incident in which he was “placed . . . in four-point restraints” and “began yelling loudly in an angry voice” that he would call associates in Richmond “on your and your kids and they’re gonna’ kill you!” The district court (same judge from sentencing) found Davis was eligible for a reduced sentence, but found the relevant §3553(a) factors weight against a reduction.

On appeal, the Fourth Circuit affirmed the denial of Davis’ motion for a reduced sentence. The court found no abuse of discretion, as the district court followed the proper two-step process (determining eligibility then weighing §3533(a) factors) and provided a sufficient explanation for its decision. The court noted that the same judge who sentenced Davis ruled on his reduction motion (and the short time between sentencing and the motion), which meant a less detailed explanation was required. The court also rejected Davis’ argument that, given the reduced Guideline range, his sentence was now an upward variance without proper explanation, holding that “the district court here did not impose a sentence at all” and that the denial of a reduction does not undermine the lawfulness of the initial sentence.

NOTE: Nearly a month after this opinion came out, the court released a second one, stating that while the appeal was pending, Davis completed his term of imprisonment. As a result, “this case became moot and we lacked jurisdiction to opine on the merits.” The court thus vacated the original opinion and dismissed the appeal. I’m leaving the original decision information up for the sake of posterity/curiosity.

Court Sustains Conviction for Possession of Silences Based on Possession of Modifiable “Solvent Traps”

US v. Speed: Speed, a former software engineer and January 6 participant, began “panic buying” more than $40,000 worth of firearms and “related products.” Some of those were “solvent traps,” which can be used to catch solvents used during the firearm cleaning process. They can also be modified to function as silencers. Solvent traps typically cost under $20 and are made of plastic – the ones Speed cost up to $330 and were made of titanium (and weren’t apparently very well suited to work as actual solvent traps). In 2022, an FBI agent met with Speed, who admitted he was “prepping for possible civil unrest” and explained how to convert the traps to silencers. The FBI seized the traps, although they found none of the implements necessary to convert them into silencers. Speed was convicted of possession of three unregistered silencers and sentenced to 36 months in prison.

On appeal, the Fourth Circuit affirmed Speed’s convictions. Speed’s primary argument was that the solvent traps did not meet the legal definition of a silencer (which expressed itself in several issues related to his trial). The court disagreed, holding that the statutory definition of silencer did not require the device to be operable. In addition, there was sufficient evidence to support a jury’s conclusion that Speed knew how the traps could be modified to operate as silencers. Speed’s other overarching argument was that his conviction violated the Second Amendment. The court disagreed, holding that even if silencers were covered by the Second Amendment, “regulating arms through shall-issue licensing regimes is presumptively constitutional in the Fourth Circuit.”

FACE Act Charge Limited to Six-Month Potential Sentence Did Not Require Jury Trial

US v. Lefemine: Lefemine planned to protest abortion by blockading the entry to a local Planned Parenthood clinic – he gave police advanced warning (and was arrested without incident). After he did so, he was charged with a violation of the Freedom of Access to Clinic Entrances Act (“FACE Act”). The Act allows both for a maximum term of imprisonment of one year and a limitation of the maximum sentence to six months for “an offense involving exclusively a nonviolent physical obstruction.” The indictment against Lefemine cited to the one-year penalty provision, but the Government “subsequently filed an amended penalty sheet” invoking the six-month limit. The Government also was able to amend the indictment to change the relevant statutory citations. The district court refused Lefemine’s request for a jury trial, convicted him after a bench trial, and sentenced him to 60 days in prison.

On appeal, the Fourth Circuit affirmed Lefemine’s conviction, concluding that he was not entitled to a jury trial. Noting that the Supreme Court has held that an offense with a six-month or less statutory maximum is “presumptively petty” and therefore not entitled to a jury trial, the court held that the Government’s amendment to the indictment (to which Lefemine did not object) controlled. Nor did the potential $10,000 fine for a FACE Act offense mean that it could not be a petty offense.