Extensive District Court Involvement in Plea Negotiations Is Plain Error Requiring Reversal

US v. Bradley: Bradley and his co-defendants Jones and Bennett were charged with various drug and firearm offenses relating to a conspiracy to distribute crack in and around Baltimore. Early in the proceedings, Bennett sought to enter a guilty plea, but balked when informed that a charge that he thought had a sentence of 10 years in prison actually exposed him to at least 10 years, and possible life, in prison. Bennett backed out of the deal and the Government obtained a five-count superseding indictment against the three men, charging conspiracy to distribute 50 grams or more of crack, distribution of crack, possession of crack with intent to distribute, and two separate counts of possessing firearms in connection with drug trafficking. Bennett was charged in all five counts, while Bradley and Jones were charged with conspiracy and one firearm count.

Trial began on January 28, 2002, with the first witness testifying the next day. On January 30, before the jury arrived, the district court met privately with the defendants and counsel and encouraged them to consider entering guilty pleas. At one point, the court said "frankly, based on what I am hearing now . . . your clients may be better off pleading guilty to the indictment." The court then called the Government's counsel into the courtroom and discussed the situation with them as well. After a 3-hour adjournment, the Government reported that no plea agreement could be reached because of sentencing issues. Bradley attempted to enter a guilty plea to the indictment, but would not admit that he was guilty of conspiracy, so the district court rejected the plea.

Two weeks passed and the trial continued, until the court again brought up the possibility of the defendants entering plea bargains. After badgering the defendants about pleading guilty, the court asked for a response from the defendants themselves:

Jones objected to 'the way you keep on judging us.' The court responded that the jury would be judging them, not the court. Jones replied: 'You keep telling us to cop out, like we are already guilty.' The court replied, 'I keep telling you that you are presumed innocent.' Jones then stated, 'It don’t seem like it.' Jones went on to state that he was not satisfied with the plea option the Government had presented to him: 'The only deal they give is they tell [us] to cooperate or go to trial. I’m going to trial because I won’t cooperate with them.'

The next day, Bennett indicated that he wanted to plead guilty, but the district court said it would only accept guilty pleas from all three defendants at the same time. Six days later, all three agreed to plead guilty to the indictment. Ironically, when the Government during the Rule 11 proceedings indicated that the two firearm charges against Bennett would have to be run consecutively, producing a 40-year mandatory minimum, Bennett stated that he didn't want to plead guilty to that much time, to which the court responded, "I don't blame you." The Government eventually dropped one of the firearm charges, dropping the mandatory minimum sentence to 20 years. The district court accepted the defendants' pleas and sentenced them to 296 months (Bradley), 720 months (Jones), and life in prison (Bennett).

On appeal, Bradley and company argued that their pleas were involuntary because the district court was impermissibly engaged in the plea negotiations. After first determining that the issue was subject to plain error review, the Fourth Circuit agreed and reversed the convictions. The Government conceded the error and that it was plain, but argued that the error did not affect the defendants' substantial rights and did not seriously affect the fairness and integrity of the judicial proceedings. The Fourth Circuit rejected both arguments, holding that the Government's focus on defense counsel's role in the pleas "totally ignores the applicable standard for determining the effect on substantial rights in cases involving Rule 11 violations." The Fourth also rejected the Government's argument regarding the impact on the fairness and integrity of the proceedings, noting that "[w]e have not found a single case in which the extent of judicial involvement in plea negotiations equalled that in the case at hand."

You really have to read the full facts of the case to get a grasp of how much influence the district court had on these pleas.

Full Court Discusses Sufficiency, Aiding and Abetting While Reversing Panel Reversal of Convictions

US v. Moye: Moye was convicted of being a felon in possession of a firearm and possession of stolen firearms. The counts in which he was charged with those offenses also charged him with aiding and abetting those offenses.

The convictions stemmed from the robbery of a sporting goods store. When police arrived, they spotted Moye crawling out of a side door to the store while two companions fled (the getaway driver took off without waiting for anyone else, while another guy took off on foot). Moye tried to run, but was quickly caught. Lots of guns were found in the vehicle driven by one of Moye's companions when it was stopped. Moye had no weapons on him when he was arrested and none of the weapons recovered in the car had his fingerprints on them.

Nonetheless, he was convicted after a jury trial. The district court gave a "flight as evidence of guilt" instruction as well as an aiding and abetting instruction.

A panel of the Fourth Circuit, 2-1, reversed both of Moye's convictions. First, the court held that there was insufficient evidence to conclude that Moye possessed, even constructively, the firearms in question. Second, the court found that there was insufficient evidence to support giving an aiding and abetting instruction on the felon in possession charge and insufficient evidence to sustain a conviction on the possession of stolen firearms by aiding and abetting charge.

The court vacated its original panel opinion and reheard Moye's case en banc. In an opinion by Senior Circuit Judge Hamilton (the dissenter on the original panel), the court changed course and upheld Moye's convictions. Diving deeply into the facts, the court held that there was sufficient evidence to support the jury's conclusion that Moye actually possessed firearms during the robbery (specifically, the court speculated that Moye was the person inside the store who handed the guns out to his accomplices). While "an argument can be made that Moye was merely present at the same location from which the firearms were stolen . . . it was for the jury, not this court, to determine which version of the events - the government's or Moye's - was more credible."

The court also held that Moye's multiple convictions for possession of the same weapons did not violate the multiplicity principle of Bell v. United States, 349 U.S. 81 (1955), because the charges involved difference subsections of 18 USC 922.

Finally, the court held that the district court did not err in giving an aiding and abetting instruction, even though it was not supported by the facts, because it was a correct statement of law and another theory of liability was presented to the jury in the instructions that was both legally and factually supported.

Judge Motz concurred (along with Judge Michael), agreeing with the majority opinion in all aspects of the case except for the aiding and abetting instruction. Giving the instruction in this case was error, Motz argued, but was harmless because there was sufficient evidence to convict Moye on another theory.

Judge Gregory (who wrote the panel majority opinion) dissented, arguing that the aiding and abetting instruction was erroneous and was not harmless error because it was too confusing to the jury on the elements of being a felon in possession and aiding and abetting. Gregory would have vacated Moye's felon in possession conviction, but upheld the stolen firearms conviction.

It's interesting to note that both Judge Duncan and Judge Gregory (who voted with the majority on the rehearing) changed their positions from the original panel opinion in this case.

Government Expert May Testify About What Other Inmates Say About Defendant

US v. Leeson: Leeson appeared at the VA hospital in Pittsburgh and interacted with the admissions nurse. Concerned with Leeson's use of different names and that a bulge in Leeson's jacket might be a gun, the nurse called police. When police arrived, they talked to Leeson, who claimed to be an FBI agent and was therefore armed. The police let Leeson go to his car to retrieve identification.

Rather than return, Leeson sped away and led a high-speed chase down I-79 into West Virginia. Once apprehended (his car broke down), Leeson was observed with a pistol in a holster and was arrested. During the arrest, Leeson told an officer "easy, I could have made this bad for you." Leeson was indicted for being a felon in possession of a firearm.

Prior to trial, Leeson moved for a mental evaluation and gave notice of the intent to pursue an insanity defense. Leeson was sent to MCC Chicago and evaluated by Dr. Jason Dana, who concluded that Leeson was not mentally ill at the time of the offense and was malingering.

Leeson went to trial on an insanity defense, during which a defense expert testified that Leeson suffered from several mental disorders that came together to render him insane at the time of the offense. Dana testified in rebuttal. While explaining his conclusion that Leeson was malingering, Dana testified that his opinion was partly based on information from two other inmates who told him that Leeson tried to enlist their aid in looking crazy. Leeson objected to the introduction of that testimony, as well as the Government's use of his post-arrest statement. Leeson was convicted.

At sentencing, he was determined to be an Armed Career Criminal and sentenced to 230 months in prison.

On appeal, Leeson argued that the district court erred by allowing two pieces of evidence to go to the jury.

First, Leeson argued that the district court violated FRE 403 by allowing his statement ("easy, I could have made this bad for you") into evidence due to its prejudicial nature. The Fourth Circuit rejected that argument, holding that the statement was relevant to whether Leeson knowingly possessed a firearm, particularly given his insanity defense (although I don't understand the relevance) and that the statement was only "mildly menacing" in nature.

Second, Leeson argued that Dana's testimony about information gleaned from two other MCC Chicago inmates should not have been introduced. The Fourth also rejected that argument, holding that the statements were admissible under FRE 703 (even if the were hearsay) because observations of other inmates are used in determining whether an inmate is mentally ill, that the reliability of those inmates was an issue for jury resolution after cross examination (of Dana, not the inmates) and argument, and that the prejudicial value of the statements were not so great as to warrant exclusion. In a footnote, the court swatted away a Crawford challenge because Leeson's opening brief did not raise the issue, even though Crawford had been decided at that time.

Leeson also challenged his Armed Career Criminal status. Particularly, he argued that two of his three prior qualifying convictions, an armed robbery of a grocery store and an attempted murder of a police officer that occurred in the parking lot of the robbed store, were part of a single criminal episode. The Fourth Circuit disagreed, applying the five-factor test of US v. Letterlough, 63 F.3d 332 (4th Cir. 1995), concluding that all but one of those factors supported the conclusion that the two offenses were distinct "occasions" for ACCA purposes.

Pre-Booker Sentences In Drug & Gun Case Split Court

US v. Sullivan: Convolution, they name is Fourth Circuit. How's this for an opening paragraph:

PER CURIAM:

Pursuant to the following opinions of Judge Widener and Judge King, the convictions of the defendants are hereby affirmed, and their sentences are hereby vacated. Judge Widener’s opinion in these appeals, to the extent that it affirms the convictions of the defendants, is joined by Judge King and Judge Duncan. Judge King’s separate opinion, which agrees with the result reached by Judge Widener as to Sullivan’s sentence, but for different reasons, addresses the sentencing issues only, vacates both defendants’ sentences, and remands for resentencing. It is joined by Judge Duncan. Judge Widener agrees in the result reached by Judge King as to Sullivan’s sentence, but for the reasons expressed in his opinion. He dissents from Judge King’s opinion and the result there reached as to the sentencing of Campbell.

Sullivan and Campbell were tried a convicted of multiple counts related to a crack distribution conspiracy and related firearm offenses. Each defendant got a life sentence, imposed before Blakely and Booker were handed down. The district court reached the appropriate Guideline range to support those sentences via post-trial factfinding, particularly of drug quantity and that both defendants were responsible for two murders during the course of the conspiracy. Both Sullivan and Campbell appealed their sentences and convictions.

Writing, ostensibly, for the court, Judge Widener concluded that Campbell's sentence can be upheld, while Sullivan's must be vacated. As to Campbell, Widener concluded that while some Booker prohibited factfinding could produce his sentence, Campbell's status as a career offender also produced a Guideline range with a maximum sentence of life (the drug conspiracy count involved more than 50 grams of crack, so it had a statutory maximum of life as well). Therefore, because Campbell's sentence was within the Guideline range and statutory range supported by the jury's findings and was "reasonable," Campbell could not meet the plain error requirements of White or Hughes. Sullivan's sentence, on the other hand, was supported only by the district court's post-trial factfinding and thus must be vacated.

While Judge Widener's per curiam opinion spoke of "we" concluding that Campbell's sentence must be upheld, Judges King and Duncan disagreed, in a concurrence/dissent authored by King. In his concurrence, King avoids the question of whether Campbell's sentence was based on Sixth Amendment Booker error (i.e., Hughes error) by pointing out a fact overlooked by Widener - that Campbell (and Sullivan, too, for that matter) objected to the district court's post-trial factfinding under Apprendi at sentencing. Therefore, it wasn't plain error review that should control, but harmless error review of the so-called statutory Booker error. King concluded that the Government could not meet its burden of showing that the district court would have imposed the same sentence on Campbell or Sullivan under an advisory Guideline scheme. Therefore, both sentences required vacation.

On the topic of Sullivan and Campbell's convictions, the court was unanimous in rejecting their arguments. The court turned away Sullivan's sufficiency argument as to the firearm counts of which he was convicted and also rejected his claim that the district court should have given a multiple conspiracy instruction. Campbell's arguments, challenging the admissibility of co-conspirator statements and documents relating to their plea agreements were also rejected.

Sentencing Disparity With Fast Track Districts OK'd

US v. Perez-Pena: In this case, the Fourth Circuit joins in on the issue of variances from the Guidelines in immigration cases in districts that do not have a "fast track" program, which allows for a 4-level reduction for defendants who plead guilty in illegal reentry cases. Perez-Pena illegally entered the US from Mexico in 1993. Six years later, he was convicted of (basically) statutory rape and was deported after serving his sentence. He returned to the US without permission and was arrested after a traffic stop in the Eastern District of NC. EDNC, like the rest of the Fourth Circuit, does not have a fast track program by which an illegal reentry defendant can get a 4-level reduction in his offense level after pleading guilty (on the Government's motion). As sentencing, Perez-Pena argued for a sentence below his 37 to 46 month Guideline range on the ground that such a sentence was produce an unwarranted disparity with similarly situated defendants in fast track districts. The district court agreed and sentenced Perez-Pena to 24 months in prison. The Government appealed.

Joining other circuits that have faced the issue, the Fourth vacated Perez-Pena's sentence. The court concluded that a sentence within Perez-Pena's Guideline range would have been a warranted, rather than unwarranted, disparity with defendants in fast track districts, and therefore permissible. In fact, the PROTECT ACT provisions that allowed for fast track programs shows that Congress explicitly sanctioned such disparities. The Fourth also concluded that the variance was improper as a reflection of Perez-Pena's minor criminal history, as his Guideline calculation already did so.

Court Upholds Conspiracy, Murder Conviction Over Charges of Judicial Bias

US v. Smith: Smith and a co-defendant, Smallwood, were convicted of conspiracy to distribute crack and murder in furtherance of that conspiracy. Smith and Smallwood were part of a large-scale crack distribution operation in and around Washington, DC. During the operation, they suspected one of their regular customers of providing information leading to a robbery at Smith and Smallwood's apartment that they used to process cocaine into crack. Once they tracked down the customer, they took him to an alley in downtown DC and shot him in the head multiple times at close range. They were tried and convicted in the Eastern District of VA and sentenced to life in prison.

The Fourth Circuit rejected all of Smith and Smallwood's arguments on appeal. First, the court brushed aside the contention that the district court was unduly biased towards the prosecution and improperly questioned witnesses and undermined defense strategy. The court held, using a plain error standard of review, that the district court did nothing wrong in questioning some witnesses to clarify matters (the trial lasted two weeks) and did not cast dispersions upon defense witnesses. Second, the court held that venue was proper in the EDVA. Because the underlying offense was conspiracy, and some of the actions of the conspiracy took place in EDVA, venue for both the conspiracy and murder charge was proper there. Third, the court rejected Smallwood's argument that a prior plea agreement with the Government prohibited the Government from prosecuting him in this case. Finally, the court held that neither defendant could show prejudice under White and therefore upheld their sentences under Booker.

Court Rejects Defendant's Attempts to Prevent Substitution of Assets in Forfeiture Proceeding

US v. Alamoudi: Alamoudi pleaded guilty to several charges stemming from a scheme to funnel money to Libya. As part of the plea agreement, Alamoudi agreed to forfeit $910,000 derived from the scheme, including $340,000 already seized by authorities in the UK. A consent order was entered by the district court reflecting that agreement. 18 months after entry of the consent order, the Government moved to seize substitute assets to cover the $570,000 remaining to be forfeited because the Government could not locate any other assets of Alamoudi's. The district court granted the motion.

The Fourth Circuit upheld the district court's decision, rejected three arguments by Alamoudi that the substitution was improper. First, the court rejected the argument that the plea agreement constituted a waiver of the Government's right to seek substitution of assets for forfeiture. Second, the court held that Booker does not apply to forfeiture proceedings (joining the rest of the Circuits to decide the issue) and therefore Alamoudi's Sixth Amendment rights were not violated by the entry of the district court's orders. Finally, the court concluded that the Government had met the prerequisites necessary to seek forfeiture of substitute assets.

Departure Below Mandatory Minimum Requires Explicit 3553(e) Motion by Government

US v. Allen: Allen pleaded guilty to being a felon in possession of a firearm. In the plea agreement, the Government agreed that if Allen provided substantial assistance, it would make a 5K1.1 departure motion. The plea agreement also set forth the possibility that Allen could be classified as an Armed Career Criminal and subject to a 15-year mandatory minimum.

Allen was, in fact, an Armed Career Criminal. At sentencing, pursuant to the agreement, the Government made a motion under 5K1.1 for a one-level offense level reduction, reducing Allen's Guideline range to 151 to 188 months. The Government did not file a motion under 18 USC 3553(e) seeking a departure from the mandatory minimum. Allen argued for a further departure on various grounds, which the district court granted, reducing his Guideline range to 63 to 78 months. The district court sentenced Allen to 63 months in prison.

The Government appealed, arguing that the district court erred in granting Allen's request for a further downward departure and ultimately imposing a 63-month sentence. The Fourth Circuit vacated Allen's sentence, but on different grounds.

The court pointed out that the Government's substantial assistance motion, filed under USSG 5K1.1, could only reduce Allen's Guideline range, not the ACCA mandatory minimum. At oral argument, the Government argued that it intended the 5K1.1 motion to act as a 3553(e) motion as well. Allen agreed, noting that he would not have pleaded guilty if he did not think the Government would only make a 5K1.1 motion. The court refused to "accept the parties' invitation to view the record as suggesting that the Government mad a 3553(e) motion." Therefore, the district court lacked the power to impose any sentence lower than 180 months. The court vacated Allen's sentence and remanded for resentencing.

Drug Conspiracy Convicion, with Life Sentence, Upheld

US v. Smith: Smith was convicted after a jury trial of conspiracy to distribute crack and possession with intent to distribute crack. The evidence showed that Smith was a member of a long-running crack distribution operation in western North Carolina. The government filed a section 851 information to enhance Smith's punishment for the conspiracy offense, resulting in a life term for Smith (life on the conspiracy count, 360 months on the possession count, served concurrently).

On appeal, Smith raised various challenges to his conviction on the conspiracy count, all of which the Fourth Circuit rejected. First, he argued that there was insufficient evidence so support the conviction on the conspiracy count, both because he withdrew from the conspiracy after going to prison (never reentering the conspiracy) and that there were actually multiple small conspiracies proven by the evidence rather than one large conspiracy charged in the indictment. The court rejected both arguments, noting that several witnesses testified that Smith sold them crack after he was released from prison and that the evidence clearly showed one conspiracy.

Next, Smith argued that the district court erred in not granting his motion for new trial, on several grounds. The only ground given meaningful discussion by the court was the district court's limitation on Smith's cross examination of police witnesses related to the destruction of evidence (crack) allegedly seized during two arrests of Smith. While concluding that the district court's restriction was error, the error was harmless given the other evidence against Smith.

Smith also challenged the 851 information used to enhance his sentence on Booker grounds. The court rejected that argument, relying on Almendarez-Torres.

Government May Withdraw Rule 35(b) Motion

US v. Hartwell: Hartwell pleaded guilty to an information charging him with "murder-for-hire resulting in death" (as opposed to murder-for-hire that doesn't result in death?). As part of the plea agreement, he agreed to cooperate with the Government in other cases, while the Government agreed not to seek the death penalty and possibly seek reduction of Hartwell's sentence under Rule 35(b). Hartwell entered his plea, was sentenced to life in prison, and filed no appeal.

A year later, the Government filed a "placeholder" 35(b) motion to toll the running of the statue of limitations for sentence reductions. The Government and Hartwell agreed to have the district court delay acting on the motion until cooperation was complete. Hartwell agreed that if he failed to live up to his responsibilities under the plea agreement, the Government could withdraw its motion. A year and a half later, at the urging of the district court, the Government filed a memorandum outlining Hartwell's troubled assistance to date (he admittedly perjured himself) and hopes for further cooperation. The Government recommended a sentence reduction to 38 years in prison. A few months later, Hartwell filed a motion with an attached affidavit in which he claimed that the Government has agreed, at the time of his plea, to a reduction to an 18-year sentence. The Government responded by saying that such a promise was never made and sought to withdraw the 35(b) motion. The district court granted the Government's motion to withdraw.

Hartwell appealed. After concluding that it did have jurisdiction to review the case, the Fourth Circuit rejected Hartwell's argument. First, it rejected the argument that the district court had no subject-matter jurisdiction over his case because he was charged in an information, rather than indictment, for a capital crime. Second, the court rejected Hartwell's argument that once the Government filed its Rule 35(b) motion it could not withdraw it. Finally, the court rejected Hartwell's argument that the district court should have held an evidentiary hearing prior to dismissing the Rule 35(b) motion. Judge Williams concurred, but argued that Hartwell waived the information argument by not making it at the time of his plea.

Alternate Sentence Cures Sixth Amendment Violation (Again)

US v. Shatley: Shatley pleaded guilty to vote buying and conspiracy to buy votes in connection with a North Carolina sheriff's race. At his pre-Booker sentencing, his offense level was enhanced after the district court concluded that he was a leader in the vote buying scheme and that he obstructed justice. As a result, his Guideline range jumped from 10 to 16 months to 27 to 33 months. The district court imposed a sentence of 33 months. Following the Fourth's recommendation in Hammoud, the district court imposed an alternate sentence of 33 months as well.

Shatley appealed, arguing that this sentence violated the merits portion of Booker and could not be salvaged by the imposition of an alternate sentence. This was a direct application of the court's decision in Revels from two weeks ago (why it merited a published opinion is beyond me). While the Guideline sentence imposed by the district court violated Booker, the 33-month alternate sentence did not, as the district court had "presciently followed" the procedure for post-Booker sentencing set forth in Hughes to arrive at the alternate sentence. As the court concluded:

it is not the length of the sentence that offends the Sixth Amendment, but rather the process used to determine its length. If the jury had found the facts used to justify the 33-month sentence, Shatley surely would have no complaint [surely not! - JDB]. Similarly, if the sentence range was determined pursuant to facts found by the district court but the Sentencing Guidelines were taken only as advisory, Shatley could have no complaint as long as the sentence was entered under 3553(a).

And so it goes.

Convictions Sustained When 17 Years Old Are "Adult" Convictions for Career Offender Determination

US v. Allen: Allen pleaded guilty to conspiracy to distribute crack and was sentenced as a career offender. Allen objected to the career offender determination, arguing that he did not have the requisite number of prior felonies. Specifically, he argued that three convictions for distribution of cocaine sustained in 1995 in North Carolina when he was 17 were not "adult convictions" and the three consecutive six-to-eight month sentences imposed for those offenses could not be aggregated into a single felony conviction for career offender purposes. On appeal, Allen also argued that his sentence violated Booker.

The Fourth Circuit affirmed Allen's sentence. The court held that Allen's 1995 convictions were supported a career offender determination, for two reasons. First, those convictions were "adult" convictions. Because they were entered in the Superior Court of North Carolina rather than the District Court and only District Courts have jurisdiction over juvenile proceedings, Allen must have been treated as an adult for purposes of his 1995 convictions.

Second, the 1995 convictions were felonies as defined by USSG 4B1.2. Allen argued that the 1995 convictions, sustained when he was 17, could only be considered based on the sentences actually imposed (6-8 months) rather than potential sentence (30 months) under Application Note 7 of USSG 4A1.2 ("for offenses committed prior to age eighteen, only those that resulted in adult sentence of imprisonment exceeding one year and one month are counted"). The court rejected that argument, distinguishing US v. Bacon, 94 F.3d 158 (4th Cir. 1996), and US v. Mason, 284 F.3d 555 (4th Cir. 2002), which held that it was proper to look to the definitions in 4A1.2 when determining career offender status. The court held that there was no need to resort to 4A1.2 in this case because 4B1.2 was clear that qualification for career offender status is based on the maximum sentence that could have been imposed for the offense, rather than the sentence actually imposed. Thus, there was no reason to consult 4A1.2.

The court also rejected Allen's Booker argument, holding that his sentence was not plainly erroneous. The court did conclude that it was error and the error was plain for the district court to consider the proffer of the Government as to what a probation officer would testify to regarding the prior convictions. Specifically, the probation officer spoke with officials in North Carolina who confirmed that Allen's 1995 convictions were treated as adult proceedings. Reliance on such information, the court held, violated Shepard v. US, 544 U.S. 13 (2005), and US v. Washington, 404 F.3d 834 (4th Cir. 2005). However, because the plea documents themselves showed that the 1995 convictions were in adult proceedings, the err did not affect Allen's substantial rights. The court also concluded that Allen did not show that the district court would have imposed a different sentence under a post-Booker advisory Guideline scheme to support remand for resentencing under White.

Alternate Sentence Saves Pre-Booker Enhancement; Defendant Silence OK Basis for Post-Booker Guidelines Enhancement

US v. Revels: Revels robbed a convenience store of $800 at gunpoint. After he turned himself in, he was convicted of being a felon in possession of a firearm. His pre-Booker Guideline calculations included a four-level increase under USSG 2K2.1(a)(2) for possessing the gun in connection with another felony offense (the robbery). Revels objected to the enhancement on Blakely grounds, which the district court overruled. The district court then sentenced Revels to 120 months in prison - the top of the Guidelines and the statutory maximum for the offense. Nonetheless, in accordance with Hammoud, the district court also announced that it would impose an alternate sentence of 120 month in prison treating the Guidelines as mandatory. Revels appealed.

The court affirmed the sentence, although it found that a Booker Sixth Amendment violation had taken place. Specifically, the court applied the recent Milam decision, holding that Revel's Blakely objection and his failure to object to the facts supporting the enhancement could not be used in a pre-Booker mandatory Guidelines scheme to increase his sentence. The maximum sentence which Revels could have received in that system was only 115 months. Nonetheless, the court found the error harmless because of the 120-month alternative sentence set forth by the district court. Judge Luttig concurred, arguing that Milam did not apply because Revels was specifically asked whether he had any objections to the presentence report and answered "no" and thus had not stood silent.

While relying on Milam to conclude that Sixth Amendment error had taken place, the court also took a step to limit the application of Milam in a post-Booker advisory Guidelines scheme. In fn2, the court states:

Nothing in our decision today disables district courts from using undisputed (though not affirmatively admitted) facts in calculating an advisory Guidelines range. Whereas silence may not render a fact admitted for Booker purposes, it will suffice to render a fact undisputed. . . . In other words, nothing about this decision or Milam affects in any way the district court's calculation of an advisory Guidelines range after the Booker decision.

(citations omitted).

Felon-in-Possession Required Armed Career Criminal Sentence

US v. McQueen: Police, responding to a tip from a "reliable informant" found McQueen asleep behind the wheel of a running car outside of a bar in Virginia. The car had a crushed rear bumper and out of state license plates. After rousing McQueen and checking his license and registration, the police asked him for consent to search the car. McQueen granted permission and a firearm was found under the back seat.

McQueen was charged and convicted of being a felon in possession of a firearm, after unsuccessfully seeking to have the gun suppressed as the fruit of unlawful Terry stop. At sentencing, the district court rejected the Government's argument that McQueen was an armed career criminal and sentenced him to 120 months in prison.

Both McQueen and the Government appealed.

McQueen appealed the district court's denial of his suppression motion, arguing that the police lacked reasonable suspicion for a Terry stop. The court disagreed, holding that based on a corroborated tip from a reliable informant and their observations about the car when it was found (running, damaged, McQueen asleep inside, etc.) that the police could reasonable conclude that illegal activity was or was about to be afoot.

The court also rejected McQueen's challenge to the interstate nexus instruction given at trial, which McQueen argued did not differentiate between whether the gun crossed state lines "in or affecting interstate commerce" or simply crossed state lines while in his car. The court that the instruction was not an improper statement of the law, relying on US v. Gallimore, 247 F.3d 134 (4th Cir. 2001)(interstate nexus proven by showing that gun was manufactures outside of state in which it was possessed).

As to the sentence, the court rejected McQueen's challenge to the inclusion of a prior felony in the Guideline calculations, while accepting the Government's argument that McQueen should have been sentenced as an armed career criminal. First, the court rejected McQueen's argument that a 1995 conviction for possession with intent to distribute heroin was acquired in violation of his right to counsel. McQueen started that case with retained counsel, fired that attorney and was appointed counsel to represent him, then fired his appointed counsel and proceeded pro se. McQueen's last minute (morning of trial) change of heart on proceeding pro se was properly rejected by the trial judge as a ploy to stall for more time and thus McQueen's subsequent guilty plea was made after waiving his right to counsel.

Next, the court accepted the Government's argument that McQueen should have been sentenced as an armed career criminal. McQueen argued, and the district court apparently agreed, that McQueen was not an armed career criminal because he had his civil rights restored for one of his prior convictions and therefore lacked three prior qualifying convictions. The court disagreed, holding that McQueen has not been legally able to possess a firearm since 1988, after which he committed several more qualifying felonies.

Accordingly, the court affirmed McQueen's conviction, while vacated his sentence and remanding for resentencing.

Court Has Jurisdiction to Review Sentence Within Guideline Range for Reasonableness

US v. Montes-Pineda: Montes-Pineda pleaded guilty to unlawfully returning to the United States after having been deported following an aggravated felony. His advisory Guideline range (after a 16-level bump for the prior aggravated felony) was 46 to 57 months. Montes-Pineda argued for a sentence of 24 months. The district court imposed a sentence of 46 months and Montes-Pineda appealed, arguing that the sentence was unreasonable.

The Government moved to have the appeal dismissed for lack of jurisdiction, arguing that because the sentence fell within a properly calculated Guideline range (all facts were agreed upon by the parties) it was not "imposed in violation of law" under 18 USC 3742(a)(1). The Fourth Circuit roundly rejected that argument (as have the other Circuits that have dealt with it) as contrary to Booker. The court also rejected the Government's premise that "all sentences within a properly calculated Guidelines range are necessarily lawful." Finally, the Court rejected the Government's leger de main argument that unreasonable sentences weren't unlawful per se, only if the sentence was achieved due to some other error such as an incorrect Guideline calculation.

As to the substance of Montes-Pineda's appeal, the court affirmed the 46-month sentence. The court held that the sentence was reasonable, given Montes-Pineda's status as a "chronic offender," which was not sufficiently outweighed by any mitigating factors (Montes-Pineda's prior conviction was 14 years old and he returned to the US to seek medical treatment). However, the court did rather cryptically state that "we need not resolve here whether [those mitigating factors] would suffice to demonstrate the reasonableness of a below-Guidelines sentence in another case."

The court also rejected Montes-Pineda's argument that the sentence was unreasonable because of the disparity between it and a lesser sentence for the same offense handed out in a "fast-track" district. The court generally deferred to discretionary fast-track scheme set up by Congress, but did indicate that "[t]his is not to say that a district court may never consider the disparities" between the two kinds of sentences.

Finally, the court held that the district court sufficiently explained its reasons for imposing the 46-month sentence.

Court Finds Above-the-Guidelines Sentence Unreasonble; Notice Required Before Court Varies

US v. Davenport: Davenport pleaded guilty to fraudulent use of an access device after swiping a credit card from a woman while boarding a shuttle bus at Baltimore-Washington International Airport. He made one fraudulent purchase and was caught, along with three other guys. The conduct occurred pre-Booker.

The calculations in the PSR produced an advisory sentencing range of 30 to 37 months at his post-Booker sentencing hearing. Davenport argued for a 24-month sentence because of his limited role in the offense. By contrast, the Government argued for a Guideline sentence because Davenport was actually the leader of a "nationwide pickpocket ring" that travelled the country's major events looking for victims (they were in Baltimore for the Preakness Stakes).

The district court disagreed with Davenport's characterization of his role and sentenced him to 120 months in prison. Davenport was also ordered to pay $8738.76 in restitution to various financial institutions and persons whose credit cards had been taken.

On appeal, the Fourth Circuit vacated. Initially, the court rejected Davenport's argument that the ex post facto clause prevented the district court from imposing a sentence greater than 37 months. However, the court concluded that the 120-month sentence was wrongly imposed, for two reasons.

First, the district court imposed a the above the Guidelines sentence without providing notice of its intent to do so. The notice requirement survives Booker and is still a "critical part" of sentencing. However, the court did not determine whether the lack of notice actually prejudiced Davenport, because it vacated the sentence on another ground.

The other ground was that the 120-month sentence was unreasonable. In a mirror image of Moreland, the court concluded that an upward departure/variance was proper, but that the 120-month sentence was too great an increase. Therefore, the court vacated Davenport's sentence.

The court also vacated Davenport's order of restitution, holding that the district court failed to make adequate factual findings to support the order. The court also held that the district court erred by labeling the persons whose cards had been stolen as "victims," as the term in this case could apply only to the credit card companies liable for the fraudulent charges (which, the court pointed out, amounted to only $58.85 on the current record).

Murder Evidence Not Unduly Prejudicial to Felon-in-Possession Trial

US v. Williams: Williams was convicted of being a felon in possession of a firearm by a jury. Most of the evidence at trial related to a murder Williams allegedly committed with the firearm in question (it was never recovered). The Fourth Circuit rejected several challenges Williams made to his conviction.

First, the court held that introduction of evidence of the murder at trial was not unduly prejudicial. Noting that it had perviously held that evidence of a shooting was a proper way to show that a defendant possessed a firearm, the court refused to make an exception where the shooting resulted in death. In addition to showing possession, the evidence also went to prove that the firearm was operational and that there was a nexus with interstate commerce (via an examination of the fatal bullet).

Second, the court concluded that the district court did not err by allowing into evidence testimony that Williams was silent when asked by his drug supplier whether he killed someone. While the court agreed with Williams that the silence was not an adoptive admission that could be introduced into evidence as an admission of a party opponent, the court went on to conclude that because the silence was not offered to prove the truth of the matter asserted it was not hearsay at all. Even if it was improperly admitted, the court concluded that any error would be harmless. On a related note, the court held that the Government's reference to that silence during closing argument could not be construed as a comment on Williams's failure to testify at trial.

Finally, the court held that the district court did not err in denying Williams a continuance to have more time to investigate the Government's main witness to the murder.

This case presents an interesting Booker situation, as it was tried between the time the Fourth Circuit handed down Hammoud and the Supreme Court handed down Booker. In spite of Hammoud's holding that the Guidelines did not violate the Sixth Amendment, the Government charged numerous sentencing factors (the murder, most notably) in the indictment and the jury returned findings regarding those factors. Based on the jury's findings, the district court cross-referenced to the murder Guideline and sentenced Williams to life in prison. While the court concluded that there was no Sixth Amendment Booker error due to the jury's findings, the court nonetheless vacated Williams's sentence on statutory Booker grounds because he objected to being sentenced under a mandatory system and the district court provided no insight as to whether it would have imposed the same sentence in an advisory scheme.

Greater Sentence OK After Booker Remand

US v Williams: Williams pleaded guilty to conspiracy to possess counterfeit securities, stemming from a scheme in which he and others (not codefendants) stole commercial checks from businesses, altered them, and cashed them at various locations. At sentencing, the Guideline sentencing range, largely driven by the amount of loss, was 77 to 96 months for an offense with a statutory maximum of 60 months. Williams objected to the sentencing enhancements under Blakely. The district court agreed and imposed a "statutory sentence" of 36 months. Both Williams and the Government appealed. When Booker came down, the Government moved to remand for resentencing. That motion was granted. At resentencing, the district court made the same Guideline calculations and imposed the statutory maximum term of 60 months in prison. Williams appealed.

The Fourth Circuit affirmed, briefly shooting down three arguments. First, the court held (finally, in a published opinion) that applying the remedial post-Booker "advisory" Guideline scheme to persons whose conduct took place prior to Booker does not violate due process or ex post facto principles. Second, the court held that the increased sentence was not evidence of vindictiveness. "In short," the court concluded, "we hold that there is no vindictiveness in a post-Booker sentence that exceeds the original pre-Booker sentence solely because Booker changed the law." Finally, the court held that the 60-month sentence was not unreasonable.

Court Expounds on Reaosnablenss Review for Within the Guidelines Sentence

US v. Johnson: Johnson pleaded guilty to three drug counts of cocaine and crack distribution. Using the grouping rules in USSG 3D1.2, the district court calculated Johnson's advisory Guideline sentencing range to be 97 to 121 months. Johnson objected, arguing that the district court should use its discretion under Booker to not apply the 3D1.2 grouping principles. The district court disagreed and sentenced Johnson to 97 months in prison.

The Fourth Circuit affirmed on appeal. Starting with the observation that the court has twice concluded that a sentence within an advisory Guideline sentencing range is presumptively reasonable, the court noted that in neither case (US v. Green and US v. Moreland) had the sentence at issue been imposed within a properly calculated range. Given that situation in this case, the court took "this opportunity to briefly explore the three justifications [for presumptively reasonable Guidelines] in greater detail." Those justifications are:

"The first reason that Guideline sentences are presumptively reasonable under Booker is the legislative and administrative process by which they were created." "By now," the court concluded, "the Guidelines represent approximately two decades of close attention to federal sentencing policy. It would be an oddity, to say the least, if a sentence imposed pursuant to this congressionally sanctioned and periodically superintended process was not presumptively reasonable." The court did not note that the Guidelines operated for most of those two decades in a fashion that violated the Sixth Amendment.

"[T]he incorporation into the Guidelines of the factors Congress identified in 18 USC 3553(a) as most salient in sentencing determinations." "The conclusion to be drawn," the court writes, "is that the advisory Guidelines are not something separate and apart from Congress's objectives in 3553(a). Rather, they embody many of those objectives." The court does not discuss the various sentencing factors in 3553(a) that the Guidelines not only fail to incorporate, but specifically exclude from consideration.

Finally, "such sentences are based on individualized factfinding and this factfinding takes place in a process that invites defendants to raise objections and requires courts to resolve them."

Because Johnson's sentence falls within a properly calculated Guideline range, it is presumptively reasonable. The court found neither of Johnson's arguments for not applying the Guidelines compelling. First, the court held that if "Johnson believes that 3D1.2's grouping provision is unreasonable or unfair as a general matter, the proper forum in which to raise this issue is Congress or the Sentencing Commission, not a federal court. Second, the court held that the district court provided an adequate examination of the 3553(a) factors.

Failure to Object to PSR Doesn't Waive 6th Amendment Sentencing Rights

US v. Milam: The Milam brothers, Jason and Lee, pleaded guilty to distribution of at least 51 Ecstasy tablets. Their PSRs assigned them considerably higher offense levels based on statements from other sources as well as Jason and Lee themselves.

At sentencing, Lee objected to the relevant conduct calculation and two-level gun enhancement. The district court partially sustained and overruled Lee's objection, produced a sentencing range of 51 to 63 months and imposed a sentence of 51 months.

Jason did not object to the PSR, except to the denial of credit for acceptance of responsibility. At sentencing, Jason's range was 87 to 108 months. He was sentenced to 87 months.

Lee and Jason appealed, arguing that their sentences were increased beyond the facts to which they pleaded guilty, in violation of (initially) Blakely and Booker. The Government conceded that Jason's sentence violated the Sixth Amendment and agreed to remand.

As to Jason, however, the Government argued that because Jason had not objected to the PSR calculations he had "admitted" those facts for Sixth Amendment purposes and his sentence did not violate the Sixth Amendment.

The Fourth Circuit vacated Jason's sentence. It rejected the Government's argument that Rule 32(i)(3)(A) and USSG 6A1.2(b) required a defendant to contest any enhancement in the PSR or risk waiving his Sixth Amendment rights. Noting that facts that increase a defendant's maximum sentence are now (essentially) elements of the offense, the Court held that the defendant's silence at sentencing could no more waive his Sixth Amendment rights then than silence at a guilty plea could constitute waiver of the right to trial. The Court also noted that Rule 32(i)(3)(A), USSG 6A1.2(b), and prior Circuit law (see US v. Terry, 916 F.2d 157, 162 [4th Cir. 1990]) violated prohibitions on burden shifting by forcing the defendant to disprove allegations in the PSR. Therefore, Jason's sentence was vacated and his case remanded for resentencing.
Lee's sentence was also vacated and remanded.

Congrats to CJA panel attorney Jason Parmer (Lee) and your humble narrator (Jason) of the SDWV office on the win!

No Intent Requirement for Aggravated ID Conviction

US v. Montejo: Montejo was convicted under 18 USC 1028A(a)(1) for aggravated identity theft. The conviction stems from Montejo's purchase of a fake Social Security card and fake Alien Registration Number when he illegally entered the country. He later used those documents to secure employment in Norfolk, Virginia. Unknown to Montejo, the number on the Social Security Card and the Alien Registry Number he purchased already belonged to other (separate) people. Having pleaded guilty to two predicate ID theft offenses, Montejo argued that he was not guilty of aggravated ID theft due to his lack of intent to use "a means of identification of another person." The district court disagreed and convicted Montejo (after a bench trial) and imposed the mandatory two-year sentence (consecutive to sentences on the other counts).

On appeal, the Fourth Circuit affirmed. Examining the language of the statute, the court held that the word "knowingly" did not modify "means of identification of another person." The court analogized this statute to 21 USC 861(a)(3), to which the court reached the same conclusion with similar language in US v. Cook, 76 F.3d 596 (4th Cir. 1996).

Consulting Maryland "Statement of Charges" Proper When Applying ACCA

US v. Simms: Simms pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the Government served notice that it would seek an enhanced sentence under the Armed Career Criminal Act (18 U.S.C. 924(e)), based on three prior convictions in Maryland. Two of those convictions were for battery and assault. Simms argued that those two convictions were not "violent felonies" as defined by the ACCA. The district court referred to the statement of charges contained in the charging papers and determined that they were violent felonies. The district court sentenced Simms to a 15-year term of imprisonment.

The Fourth Circuit affirmed. First, the court noted that assault and battery in Maryland are among those offenses that can be committed in so many different ways that their are neither violent felonies per se nor excluded from ACCA consideration. Second, the court held that the district court was correct in looking to the statement of charges to determine the underlying facts of the offenses. The court rejected Simms's argument that such reliance violated Sheppard v. US, 125 S.Ct. 1254 (2005), because the statement of charges was part of the charging document to which Simms pleaded guilty. Maryland law required such a statement as a factual basis for the plea. For that reason, the statement of charges in Maryland is different from the document as issue in Sheppard. Finally, the court held that it was clear that the facts set forth in the statement of charges supported the conclusion that Simms's battery and assault convictions were violent felonies.

Failure to Seek Funds for Expert Leads to Actual Conflict of Interest; Requires Vacation of Sentence

US v. Stitt: Stitt was convicted after a jury trial of three counts of murder related to an ongoing criminal enterprise, as well as related drug and firearm offenses. Following a penalty phase trial, the jury recommended that Stitt be sentenced to death, which he was. He directly appealed his sentence without success.

Stitt filed a petition under 28 USC 2255 seeking a new trial on both guilt and sentencing. The district court denied Stitt relief as to the guilt phase of his trial, but vacated Stitt's sentence. The district court found that Stitt's retained attorney at trial had an actual conflict of interest based on his failure to request the court to appoint an expert to assess Stitt's propensity for future dangerousness. Such a request would have required an examination by the district court of the fee arrangement between Stitt and his attorney, which the attorney sought to avoid (the Government claimed that his fees came from drug money). Applying the standard of Cuyler v. Sullivan, 446 U.S. 335 (1980), that prejudice is presumed when defense counsel has an actual conflict of interest in representing his client, the district court concluded that Stitt was denied his right to effective assistance of counsel.

The Government appealed, conceding that there was an actual conflict of interest between Stitt and his counsel, but that the Sullivan presumption of prejudice applied only to conflicts caused by simultaneous representation of multiple defendants. The Fourth Circuit rejected the Government's argument and affirmed the district court.

UPDATE: Opinion withdrawn and appeal dismissed for lack of jurisdiction.

Downward Variance to Probation Not Justified by District Court Findings

US v. Hampton: Hampton pleaded guilty to being a felon in possession of a firearm, a rifle. His uncontested advisory Guideline sentencing range was 57 to 71 months. At sentencing, Hampton argued for a non-custodial sentence:

Defense counsel explained that Hampton did not know that he could not own a rifle (he believed the law only precluded felons from owning handguns), that he cooperated with the police, that he did not use the gun in any crime, that he did not steal the gun but rather bought it lawfully, that he had no criminal or malicious intent in possessing or discharging the firearm, that he had straightened out his life by joining a church and obtaining full-time employment, and that he was 'a single parent of two minor children, wh[o] he is raising and supporting with the help and assistance of his mother.' For these reasons, Hampton’s counsel argued that 'there would be no purpose served, either for . . . the government or Mr. Hampton to incarcerate him for
any period of time.'

The district court agreed and sentenced Hampton to three years probation. The Government appealed and the Fourth Circuit vacated. The Court held that the record did not demonstrate that the district court considered all of the 3553(a) factors, but rather focused on Hampton's status as a single father and provider for his children. Therefore, the sentence was vacated and remanded for further proceedings.

Importantly, Judge Motz concurred "to emphasize that a variance of this magnitude is not per se unreasonable."

Leon Saves Search Pursuant to Questionable No-Knock Warrant

US v. Singleton: In 2001, authorities learned that drugs were being sold from an apartment in which Singleton lived. Police used a CI to make two controlled purchases at the apartment, which they used as the basis for obtaining a warrant to search the apartment. The officers applied for, and received, a no-knock warrant under Maryland law, allowing them to enter without first knocking and announcing their presence.

The no-knock warrant was based on Singleton's criminal history, which included a 1987 conviction for second-degree murder. The warrant was obtained on September 26, 2001. On October 3, the CI attempted to make a third controlled buy to make sure Singleton was still living there. On October 9, police executed the warrant, breaking down the front door.

In the house they found Singleton (and others), along with large amounts of crack cocaine and cash and some firearms. Singleton was charged with multiple drug and firearm counts. He moved to have the evidence seized in the house suppressed on the grounds that there were no exigent circumstances to justify a no-knock entry on October 9. The district court disagreed and Singleton was convicted on all counts after a jury trial.

On appeal, the Fourth Circuit affirmed. While doubting that the facts provided to the state magistrate justified the no-knock warrant and subsequent entry, the court held that the "good faith" exception from US v. Leon, 468 U.S. 897 (1984), applied to save the search. Specifically, the court held that the officers had "done all they could do" by getting a no-knock warrant from a magistrate and that penalizing the officers for the magistrates error did not justify suppression. The Court specifically declined to consider whether the delay in execution of a no-knock warrant could lead to the dissipation of the necessity for a no-knock entry.

Singleton's sentence was vacated and remanded in light of Booker and Hughes.

Court Applies Promise/Cotton Analysis to Sixth Amendment Booker Error; Distinguishes Hughes

US v. Smith: Smith, Reep, and Moore were all convicted of being part of a conspiracy to distribute drugs, as well as other offenses. In laundry list fashion, the Fourth Circuit affirmed their convictions, covering the following issues (none of Smith's arguments were directly addressed, although the Court admitted in a footnote that some claims "are so clearly without merit that they do not warrant discussion in this opinion"):

Moore

• Indictment was not unconstitutionally vague where is charged that one count of possession with intent to distribute occurred "in or about Winter, 2000."
• The district court properly admitted testimony of a witness regarding statements made by other unindicted coconspirators, concluding that those were members of the conspiracy and the statements were made in furtherance of that conspiracy.
• Admission of the testimony of Moore's son that he delivered drugs in DC for his father at six years of age did not violate Rule 404(b) and was therefore not plain error.
• The district court improperly excluded a defense witness from testifying after she violated a sequestration order by sitting in the courtroom for two days of the trial. The error was harmless, however.
• Remark made by prosecutor in closing argument regarding guilt of codefendants and witnesses (["t"he only difference is some who sat on that witness stand admitted it and those sitting at these two tables have not") was not plain error.

Reep

• Reep's conviction does not violate double jeopardy, where prior trial was aborted after jury selection due to problem with competency of Government witness where Reep asked the court for a mistrial.
• The district court did not improperly restrict his cross-examination of Government witnesses.
• The district court's sua sponte cutting off of Reep's counsel during cross examination and questioning of some witnesses from the bench did not violate Reep's right to due process.
• The district court did not abuse its discretion by forcing Reep's counsel to decide on the spot whether to call more witnesses or rest his case.
• The district court did not abuse its discretion by cutting Reep's counsel off during closing argument when he began to define reasonable doubt for the fourth time.

As to Moore's sentence, the Court began by noting that his sentence of life in prison is beyond the top of the applicable Guideline range supported by the facts supporting his conviction, in violation of Booker. However, the Court goes on to apply the holdings of Johnson v. US, 520 U.S. 461 (1997), and US v. Promise, 255 F.3d 150 (4th Cir. 2001)(en banc), that it would not notice the error where the evidence regarding the determinations at issue was "overwhelming" and "essentially uncontroverted."

For Smith's sentence, the Court deemed that there was no Sixth Amendment error because he was sentenced as a career offender and his sentence was therefore based on prior criminal history. As to Booker error, the Court held that Smith abandoned that argument by making it in this cursory fashion: "Smith's sentence exceeded the maximum sentence then authorized by the jury alone, in violation of Booker." That was "Smith's entire argument" and not sufficient to raise the issue under Rule 28(a)(9)(A) of the Rules of Appellate Procedure.

Reep was also sentenced as a career offender. The district court upheld his sentence.

District Judge Dever, sitting by designation, dissented on the issue of Moore's sentence. Judge Dever correctly points out that the Court's holding is contrary to United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). He notes that after Hughes:

every panel publishing a Fourth Circuit opinion applying Hughes to a Booker Sixth Amendment violation raised for the first time on direct appeal has exercised its discretion at the fourth step of the plain-error analysis to notice the error, vacate the sentence, and remand for resentencing.

State, Federal Charges Arising from Same Act Are Not "Same Offense" Under Sixth Amendment

US v. Alvarado: Alvarado came to the attention of authorities during surveillance by Virginia police of a potential drug conspiracy. Assisting the Virginia police was an ATF agent. After the state officers arrested Alvarado and another man, the ATF agent questioned Alvarado because the agent spoke Spanish and Alvarado spoke Spanish but not English. Based on the statements from Alvarado and the other man, they were charged in Virginia with possession with intent to deliver cocaine and conspiracy to deliver cocaine. Alvarado asked for and was appointed counsel to represent him in state court. At a preliminary hearing two months later, Virginia dropped the charges against Alvarado.

Once the state charges were dropped, Alvarado was immediately arrested by the ATF agent on a warrant obtained the day before based on a criminal complaint. Alvarado (who, we are told was "glad to see" the ATF agent) gave an incriminating statement after being given Miranda warnings by the ATF agent. Alvarado was eventually indicted for distributing cocaine and conspiring to distribute cocaine. At trial, the ATF agent testified about the incriminating statements Alvarado made following his federal arrest. Alvarado moved to have the statements suppressed, arguing that the federal charges were the "same offense" for Sixth Amendment purposes and the ATF agent should not have questioned him without the attorney appointed in state court present. The district court rejected that argument and the jury convicted Alvarado on both counts.

The Fourth Circuit upheld Alvarado's conviction on several grounds. First, the Court held that the Sixth Amendment right to counsel is case specific and that state and federal prosecutions are, by definition, separate cases, under the separate sovereignty doctrine. The fact that a federal agent was involved in the state arrest and charges is irrelevant, as "such collaborative efforts can hardly be dispositive of government misconduct." Second, the Court held that even if such a categorical rule was not appropriate, an examination of the state and federal charges showed them to be different offenses (the dates of the two charged conspiracies, in particular, were different). Finally, the Court held that Alvarado's Sixth Amendment right to counsel in federal court did not kick in with the filing of a criminal complaint because "[t]he filing of a federal criminal complaint does not commence a formal prosecution" and that the use of "such a complaint is to establish probable cause."

Alvarado's sentence was remanded for resentencing in light of Booker.

Miranda Does Not Apply at Sentencing

US v. Nichols: Nichols was charged with bank robbery, armed bank robbery, and possession of a firearm during a crime of violence after he robbed a bank. During the robbery, he threatened to shoot the teller, but nobody saw a gun. Nichols and his father made arrangements to turn himself in to the police shortly after the robbery, at which time Nichols said he wanted an attorney. He reiterated that request when arrested. Nevertheless, the police secured a Miranda waiver and a statement from Nichols, in which he admitted possessing a gun during the robbery. Nichols motion to suppress the statement was granted, leading the Government to drop the armed robbery and firearm counts and Nichols to plead guilty only to bank robbery. At sentencing, the district court refused to consider Nichols's statement in calculating the Guidelines, resulting in a 46-month sentence.

The Government appealed, arguing that Miranda and its exclusionary rule do not apply in sentencing proceedings. The Fourth Circuit agreed and vacated the sentence. After reviewing the goals of Miranda and the purposes of suppression (deterrence of police misconduct), the court concluded that that purpose was not advanced by suppression of the statement at sentencing. Suppression also would run headlong into the traditional prerogative of the district court to consider any reliable evidence at sentencing. A statement might be suppressed at sentencing, the court suggested, if there was evidence that the Government violated Miranda in order to increase the defendant's sentence or if the statement was actually involuntarily given.

District Courts Cannot Categorically Reject 100:1 Crack/Powder Ratio

US v. Eura: Eura was convicted by a jury of possession with intent to distribute more than five grams of crack and possession of a firearm during a drug trafficking offense. The calculations in the PSR produced an advisory Guideline range of 78 to 97 months on the crack count. At sentencing, the district court concluded that this "is not the kind of case that the guideline does not provide -- the crack guideline does not provide an appropriate, fair, and just punishment, and so the Court will not impose a sentence within the guidelines in this case." The court then imposed the mandatory minimum sentence of 60 months on the crack count, consecutively with the mandatory 60-month sentence on the gun count. The Government appealed the sentence.*

The court vacated Eura's sentence, due to what it saw as the district court's wholesale rejection of the 100-to-1 crack/powder ratio and the advisory Guideline range resulting from it. Specifically, the court noted that:

we are of the opinion that the district court did not adequately and properly consider 18 USC 3553(a)(6) in sentencing Eura. Had the court done so, it most assuredly would have concluded that it could not rely on the Sentencing Commission's recommendations to narrow the 100:1 ratio in imposing sentence.

Allowing district courts to substitute their own ratios for the Guidelines's would result in unwarranted sentencing disparities, the court concluded (citing to the number of district courts that had applied various ratios post-Booker). The court did not deal with the argument that the 100:1 ratio itself causes unwarranted disparities and may, therefore, violate 3553(a)(6), as well. The court did not foreclose the possibility of variances from the Guideline ranges produced by the 100:1 ratio:

We certainly envision instances in which some of the 3553(a) factors will warrant a variance from the advisory sentencing range in a crack cocaine case. However, a sentencing court must identify the individual aspects of the defendant's case that fit within the factors listed in 18 USC 3553(a) and, in reliance on those findings, impose a non-Guidelines sentence that is reasonable.

(emphasis in original). The Sentencing Commission's "recommendations," however, "cannot be used as a basis to vary from the advisory sentencing range." Because the court in this case "did not mention any facts concerning Eura as an individual that would have warranted a sentence outside the sentencing range," his sentence was unreasonable. As with Moreland, the court vacates the sentence and remands "For resentence at the low end of the sentencing range."

Judge Michael concurred in the judgment and opinion, but wrote separately to explain the value of the Sentencing Commission's findings regarding the 100:1 ratio. He specifically endorses using those findings in support of arguments that specific individuals in unique cases should receive below the Guidelines sentences.

* Eura appealed the denial of a suppression motion prior to trial. Officers search his home pursuant to a warrant, finding several guns but no drugs. An "unspecified woman at the residence" told the officers that two cars parked out front belong to Eura. A dog sniff uncovered crack and ecstasy in the center console of one of the cars. Eura argued that the officers should not have been allowed to do the dog sniff after coming up empty on the search of the house. The Fourth Circuit rejected that argument, without (somewhat staggeringly) ever mentioning Caballes.

Doug Berman's thoughts on Eura can be found here.

20-year Variance from Career Offender Guideline Not Reasonable

US v. Moreland: Moreland was convicted by a jury of two counts of possession of cocaine base with intent to distribute.* The PSR correctly showed that Moreland was a career offender and subject to an advisory Guideline range of 360 months to life in prison. The Government also filed a section 851 information, triggering a 10-year mandatory minimum. Nonetheless, the district court varied from that range and imposed a sentence of 120 months -- 20 years less than the advisory Guideline minimum and equal to the statutory mandatory minimum.

Moreland's two prior convictions (which triggered the career offender sentence) were (1) for delivering a marijuana cigarette to a prison inmate and (2) possessing with intent to distribute 6.92 grams of crack. Examining the "nature and circumstances of the offense and . . . the defendant," the district court concluded that Moreland's offenses of conviction involved a relatively small amount of crack (7.85g), did not involve violence, and did not involve a firearm. Looking at the prior convictions, the district court came to the same conclusion. The district court concluded that Moreland "has the ability and potential to become a productive member of society." Turning to the 3553(a)(2) factors, the district court concluded that the career offender classification swept too broadly and that Moreland's offenses "hardly constitute the type and pattern of offenses that would indicate that Mr. Moreland has made a career out of drug trafficking."

The Fourth Circuit reversed, employing a two-step analysis: (1) was it reasonable for the district court to vary from the advisory Guideline range? and (2) if so, was the amount of the variance reasonable?

To the first question, the court answered "yes," a variance in this case was reasonable (the Government apparently admitted as much at oral argument).

To the second question, however, the court answered "no." The court noted that "to the extent that the sentence imposed by the district court rests on a rejection of congressional policy with respect to repeat drug offenders, it is subject to reversal on that basis alone." However, even assuming that no "outright rejection occurred," the variance was still too large to be reasonable. While the court admitted that Moreland appears to be a small-time dealer, he is "nonetheless, a repeat drug offender who appears to have come to West Virginia for the sole purpose of selling cocaine base." The court also discounted Moreland's "desultory pursuit of his education and his spotty employment history."

The court concludes,

[i]f Moreland's circumstances are so compelling as to warrant a two-thirds reduction from the bottom of the advisory guideline range, it is difficult to imagine any meaningful limit on the discretion of the district court.

The court vacated Moreland's sentence and remanded the case for the imposition sentence of "no less than 20 years imprisonment."

* Moreland also made three challenges to his conviction - (1) that police lacked consent to enter the home in which he was arrested, (2) that the district court erred in admitted the drugs bought and recovered from Moreland because of chain of custody issues, and (3) that the district court should have struck the testimony of the Government's expert witness as to drug type and weight - all of which were quickly rejected by the court.

Guideline Sentence = Presumptively Reasonable

US v. Green: Finally, nearly a year after Booker, the Fourth Circuit decides to discuss exactly what "reasonableness" means in the context of sentencing appeals. Sort of.

The bottom line is this:

• To sentence a defendant, the district court must: (1) properly calculate the Guideline sentencing range; (2) determine whether a sentence "within that range and within statutory limits serves the factors set forth in [18 USC] 3553(a) and, if not, select a sentence that does serve those factors; (3) implement the mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a non-Guideline sentence is appropriate.
• The Fourth Circuit joins several others (see Doug Berman's discussion here) in holding that a sentence within the advisory Guideline range is "presumptively reasonable." That doesn't mean that a non-Guideline sentence is therefore "ipso facto unreasonable."
• A sentence will be unreasonable if it is (a) within the advisory Guideline range but there was an error in applying or construing the Guidelines, or (b) if the sentence is imposed outside of the Guideline range "and the district court provides an inadequate statement of reasons or relies on improper factors in departing from the Guidelines' recommendation."
• Finally, when reviewing an outside the Guidelines sentence to determine "whether a sentence . . . serves the purpose of sentence established by Congress in [18 USC 3553(a), 28 USC 991 (a), and 28 USC 994], we defer to the district court's sentencing judgments, correcting only for an abuse of discretion.
  

Having said all that, the court is able to deal with the sentence in this case simply by concluding that the Guidelines were improperly applied. Green pleaded guilty to conspiracy to distribute more than 50 grams of crack. The PSR showed, and the parties agreed, that Green was a Career Offender. Nevertheless, the district court concluded that while Green "technically fit the definition of Career Offender, the label "did not fit Mr. Green." On the request of defense counsel, the district court calculated the Guideline range without the Career Offender enhancement, then reduced the offense level for acceptance of responsibility and substantial assistance. Green received 87 months in prison (down from a Career Offender range of 262-327 months).

The Fourth Circuit vacated that sentence, finding it unreasonable because it was based on an improper application of the Guidelines. Specifically, the court found that the district court erred in several ways to conclude that the Career Offender label did not fit Green. The court did not reach the issue of whether an 87-month sentence was reasonable under the 3553(a) factors or whether a sentence within the Career Offender-fueled Guideline range would have been reasonable.

Doug Bermans's thoughts on Green can be read here.

All Quiet on the Richmond Front

No fear, loyal readers, the Fourth Circuit Blog still lives. Alas, there is little to report from Richmond, as the court has not handed down a published criminal case since January 17. Rest assured that once they do, you'll read about it here first!

2J1.7 Enhancement in Failure to Appear Cases OK'd; Does Not Violate Double Jeopardy

US v. Fitzgerald: Fitzgerald pleaded guilty to mail fraud and wire fraud and was released on bail pending sentencing. He fled prior to sentencing and was arrested and charged with failure to appear under 18 USC 3146. Fitzgerald pleaded guilty to that offense and proceeded to sentencing. The PSR recommended that Fitzgerald's offense level be increased three levels under USSG 2J1.7 and 18 USC 3147 for committing another offense while on release. Fitzgerald objected, arguing that the enhancement amounted to double punishment and violated the rule of lenity. The district court disagreed, applied the enhancement, and imposed a sentence of 27 months, to be served consecutively to the sentence imposed for the fraud charges.

The Fourth Circuit affirmed, 2-1. Noting that this was a question of first impression in the circuit, the court looked to the Sixth Circuit's decision in US v. Benson, 134 F.3d 787 (1998), for guidance. The court followed Benson's logic and concluded that the statutory language at issue was not ambiguous and therefore the rule of lenity was not applicable. The court also rejected Fitzgerald's Double Jeopardy argument, holding that the Supreme Court has never applied Double Jeopardy guarantees to sentencing proceedings, relying on Monge v. California, 524 U.S. 721 (1998).

Judge King dissented, arguing that the majority's Double Jeopardy argument is contrary to the Supreme Court's decision in Simpson v. US, 435 U.S. 6 (1978), and that the statutory language at issue is ambiguous and requires application of the rule of lenity. As Judge King put it, "[t]he end result in this scenario simply makes no sense."

Court Rejects Numerous Challenges to Pipe Bomb Convictions

US v. Uzenski: Uzenski was convicted by a jury of two counts of manufacturing an unregistered firearm and two counts of possessing an unregistered firearm. The "firearms" at issue were pipe bombs. Uzenski was a local police officer in North Carolina. On March 25, 2002, Uzenski reported to a fellow officer that he was in need of urgent assistance on a local highway. When the officer arrived, he saw Uzenski straddling over what appeared to be a pipe bomb. Indeed, it was a pipe bomb and was subsequently defused by the state bomb squad. The next day, after Uzenski and other officers returned to the site, a second pipe bomb was found and eventually defused. Investigation led to a videotape of Uzenski at a local hardware store purchasing several of the items that made up the bombs. Authorities also obtained a warrant to search Uzenski's home and uncovered various items that could be linked to the building of pipe bombs.

Uzenski appealed his conviction on several grounds, all of which the Fourth Circuit rejected.

• First, he argued that the evidence was insufficient to prove that the objects in question were "destructive devices" because they lacked the functional parts which made them capable of exploding. The court rejected that argument, holding that the testimony of the Government's expert witness, who testified about how the bombs could have exploded while they were taken apart due to sparks that would be generated, was sufficient to meet the Government's burden on that element.
• Second, Uzenski argued that statements he made to investigators prior to being given Miranda warnings should have been suppressed. The court agreed with the district court that Uzenski was not in custody at the time of those statements, and therefore was not entitled to Miranda warnings.
• Third, Uzenski argued that the evidence seized from his home should have been suppressed because the officers executing the search warrant seized items that were beyond the scope of the warrant. The court held that blanket suppression of everything recovered from the home was inappropriate.
• Fourth, Uzenski argued that the district court should have excluded the testimony of the Government's expert witness as to the pipe bombs because the Government never provided him with the expert's notes. The court held that Uzenski's counsel failed to properly request the notes and therefore the testimony should not have been excluded.
• Finally, Uzenski argued that the district court erred by allowing the Government to elicit testimony about his prior statements regarding pipe bombs and a prior bad act of making a false report.

Uzenski's sentence was vacated and remanded under Booker / Hughes.

Disparity Between Federal Defendants, Not Federal and State Defendants, Is Target of 3553(a)(6)

US v. Clark: Clark was convicted of conspiracy to distribute crack in the Eastern District of Virginia. Her advisory Guideline range was 46 to 57 months. At sentencing, the district court asked the parties to brief the issue of what sentence Clark would be facing in Virginia state court for the same offense. The Government argued for a range of 36 to 49 months. Clark agreed, but noted that all but 6 to 12 months of that time would likely be suspended. After hearing unsworn testimony from the probation officer as to her conversations with a state PO about the potential Virginia sentence, the district court sentenced Clark to 8 months in prison. The Government appealed and the Fourth Circuit reversed, in three separate opinions.

Judge Luttig wrote the court's opinion. He began by noting that it was difficult to tell from the district court's statements at sentencing whether it (1) considered the need to avoid unwarranted sentencing disparities at all, (2) whether it considered that factor but the proper comparison was with state sentences, rather than other federal sentences, or (3) whether it considered the need to avoid disparity among federal sentences but felt that need was trumpted by a need to avoid disparity between federal and state sentences. Regardless, Luttig says, the district court erred in applying 18 USC 3553(a)(6). First, 3553(a)(6) clearly requires the consideration of sentencing disparity. Second, the disparity at issue is among federal sentences: "The sole concern of section 3553(a)(6) is with sentencing disparities among federal defendants." (emphasis in original). For example, tying federal sentences to state equivalents would end up creating disparity between similarly situated federal defendants based on the geography of their conviction. Creation of such disparity is unreasonable and, thus, so is Clark's sentence. Luttig did admit that there will be some "unusual cases" where state sentencing factors may influence a sentence that is reasonable under 3553(a) but that this case isn't one of them.

Judge Motz concurred in the judgment and discussed what those "unusual cases" might be. Specifically, Motz would limit them to cases of either assimilative jurisdiction, as in 18 USC 13(a), or where the federal offense is defined with some relation to state law, as in 18 USC 1960(b)(1)(A). That is because Congress itself has decided to have the courts look to state law in those cases.

Judge King also concurred in the judgment and agreed "with what Judge Motz has written." However, King leaves open the possibility that the district court could impose the same sentence on Clark after a thorough analysis of all the 3553(a) factors.

Doug Berman over at Sentencing Law & Policy has these thoughts on Clark.

Time of Day Doesn't Matter When Executing Drug-Related Search Warrant

US v. Rizzi: Rizzi was an ex-con who came under investigation of Baltimore police for dealing drugs. When local officers relayed their information about Rizzi to federal authorities, the feds informed them that Rizzi could no longer posses firearms. Baltimore PD officers then obtained a warrant from a state judge to search Rizzi's home for "drugs, firearms, money, records, and other drug-related paraphernalia." The warrant commanded officers to execute it "forthwith." It was obtained on July 7, 2004. On July 9, 2004, at 4:30 in the morning, 24 officers executed the warrant at Rizzi's home. They knocked and announced their presence, waited 15-20 seconds, then broke into the house. Rizzi met them and admitted possessing firearms that were recovered from the basement. He was charged with being a felon in possession of a firearm.

Rizzi filed a motion to suppress the guns, on the grounds that the warrant did not specify that a night-time search could be conducted. Specifically, Rizzi argued that Rule 41(e)(2)(B) controls and suppression was required because the police had not shown, and the issuing judge did not find, good cause for execution of a night-time warrant. The Government contended that 18 USC 879 trumpted Rule 41 because the search involved drugs and that the warrant was sufficient to authorize the search. The district court rejected the Government's argument, concluding that Rule 41 and section 879 "dovetailed" to make the search illegal and ordered the evidence suppressed. The Government appealed.

The Fourth Circuit reversed the district court, adopting the Government's argument as to the relationship between Rule 41 and 879, leaning heaving on Gooding v. United States, 416 U.S. 430 (1974), to do so. The court concluded that because Rule 41 deals with search warrants in general, while section 879 deals with warrants specifically in drug cases, that the more specific statutory rule controlled. Section 879, according to the Fourth Circuit, requires no particular finding by the judge issuing the warrant that a night-time search is warranted. The court concluded:

At bottom, we hold that when a search warrant involves violations of drug crimes, the warrant can be served day or night so long as the warrant itself is supported by probable cause. And to the extent that section 879 might be found to conflict with the general requirement of showing good cause for nighttime searches contained in Rule 41(e), we hold that section 879 exclusively.

The court also rejected Rizzi's argument that, as interpreted, section 879 violated the Fourth Amendment.

Forced Medication for Sentencing is Plain Error, but Doesn't Require Resentencing

US v. Baldovinos: Baldovinos was convicted by a jury of four drug and firearm counts. Prior to sentencing, he filed motion seeking a competency evaluation at FCI Butner to determine his competency to be sentenced. The district court granted the motion and sent Baldovinos to Butner. Over the course of the next year, physicians at Butner diagnosed Baldovinos as suffering from catatonia and schizophrenia and sought court permission to forcibly medicate him. The district court agreed. The medication never completely "cured" Baldovinos, but physicians began to suspect he was malingering and was thus actually competent to be sentenced. The district court held a sentencing hearing and imposed a 120-month sentence, the statutory minimum given the offenses of which Baldovinos was convicted. Baldovinos failed to object to the imposition of sentence.

Baldovinos appealed, arguing that the district court erred by forcibly medicating him and seeking resentencing.* The Fourth Circuit first concluded that the proper analysis of the issue was under Sell v. US, 539 U.S. 166 (2003), which set forth the ability of courts to forcibly medicate a defendant to render him competent for trial, rather than Washington v. Harper, 494 U.S. 210 (1990), which allowed for the forcible medication of defendants for their own safety. Given that conclusion, the Government admitted error which was plain. However, the Fourth Circuit declined to notice the error, holding that because Baldovinos received the lightest sentence possible he suffered no prejudice and his sentence did not "seriously affect the fairness, integrity or public reputation of judicial proceedings."

*Baldovinos also argued ineffective assistance of counsel, but the court quickly rejected that issue as being "unreviewable at this stage."

Blakely Objection Preserves Statutory Booker Claim

US v. Rodriguez: Rodriguez pleaded guilty to illegal reentry after having been deported because of an aggravated felony under 8 USC 1326(a) and (b)(2). The PSR recommended that his offense level be increased 16 levels because the prior felony was a crime of violence. Rodriguez objected under Blakely that only an 8-level enhancement was applicable based on the plea. The district court disagreed, applied the 16-level enhancement and sentenced Rodriguez to the bottom of the resulting Guideline range, 46 months.

The Fourth Circuit reversed, holding that Rodriguez adequately preserved his challenge to his sentence under the mandatory Guidelines by objecting under Blakely (he was sentenced pre-Booker). The court further concluded that the Government could not prove that the imposed sentence was harmless. This brings the Fourth Circuit into line with all the other circuits that have considered whether an objection under Blakely preserves a Booker statutory error claim for appellate review.

Congrats to Geremy Kamens and crew from the ED Va. on the win!

Fourth Upholds Murder-for-Hire, Firearm Convictions; Another Hughes Remand

US v. Cardwell: Cardwell and Hinson were convicted after a jury trial of charges related to a murder-for-hire scheme. Hinson was also convicted of being a felon in possession of a firearm. Hinson and Eric Brown were under investigation for drug trafficking. Brown was arrested and agreed to cooperate with the investigation against Hinson, who soon learned of Brown's status as CI.

Another drug dealer, Thomas Cole, who had previously dealt with Hinson and Cardwell, also agreed to assist investigators after he was arrested. Cole, Hinson, and Cardwell had a meeting in which they discussed the need to kill Brown because of his work with investigators. Cole agreed to do the job, while Cardwell agreed to provide the address and picture of Brown and his wife (who needed to be killed, too) to Cole.

Months passed, during which talks about murdering the Browns continued, but nothing was done. Investigators, frustrated by the lack of progress, had Cole bypass Cardwell deal directly with Hinson. Hinson told Cole where to find the Browns and gave him $1000 "traveling money." A fake news story in the local paper about the disappearance of the Browns convinced Hinson that the deal was done, so he paid the remaining debt to Cole in cash and cocaine.

Police went to Hinson's home to arrest him and during a subsequent search uncovered a firearm. Hinson was Mirandized at his home, but later told investigators on the way to the jail that if he had known the cops were coming he would have gotten the gun and started a gunfight because he would rather die than go to jail.

Hinson and Cardwell challenged their convictions on various grounds, all of which the Fourth Circuit rejected.

First, Hinson argued that the felon in possession charge against him was improperly joined with the murder-for-hire charges and that it should have been severed. The Fourth held that Hinson's possession of the gun, and his statement about using it, was related to the murder-for-hire charges because it indicated that he would have used it to prevent arrest on those charges, analogizing to a felon-in-possession charge based on a gun seized from a robbery suspect shortly following the robbery. In addition the could held that the district court properly denied Hinson's motion to sever because he suffered no prejudice on the murder-for-hire counts from the introduction of the fact of his prior felony on the gun charge. Next, Hinson argued that his statement about what he would do with the gun was introduced in violation of Miranda. The Fourth disagreed, holding that Hinson was given Miranda warnings, admitted that he understood his right to remain silent, and never invoked it.

Cardwell challenged the sufficiency of the evidence on the two charges of which he was convicted, conspiracy to commit murder and solicitation to commit murder. On the conspiracy charge, the court held that it was not necessary for Cardwell to have performed an overt act in furtherance of the conspiracy as long as some member of the conspiracy did so. On the solicitation charge, the court held that even though Cardwell was eventually bypassed by Cole because the deal to murder the Browns was not materializing, solicitation required only that the defendant persuade another to commit a crime, which Cardwell did.

Both Cardwell and Hinson challenged their sentences under Booker and Hughes and won remands for resentencing.

December Opinions of Note

Trying to play a little bit of catch-up, here are three earlier published opnions from this month.

US v. Alerre: Alerre and his co-defendants were doctors in South Carolina who were convicted of conspiracy, money laundering, and various drug distribution charges stemming from a prescription-selling and fraudulent medical practice. They were convicted on various charges after a jury trial. On appeal, Alerre and company argued that both that their defense attorneys were ineffective and the AUSAs had engaged in misconduct. That accusation was based largely on the use of the wrong "standard for criminal liability" when applied to the way their medical practice operated. Specifically, Alerre and company argued that the parties utilized a civil standard and that they were actually convicted of civil medical malpractice, not criminal distribution of drugs. The Fourth Circuit affirmed, rejecting that argument. Alerre and company's sentences were vacated and remanded per Booker and Hughes.

US v. Nunez: Jenny and Carlos Nunez were convicted by a jury of various drug conspiracy and distribution charges. Jenny gave a statement to DEA investigators prior to trial in which she implicated herself, Carlos, and others. Carlos filed a motion to sever the trials, arguing that a redacted statement would not sufficiently protect his Sixth Amendment rights. The district court disagreed and proceeded to a joint trial. At trial, the district court limited the use of the DEA report containing Jenny's statement due to Crawford. It was not introduced into evidence, although a DEA agent testified about what he heard Jenny say during her statement. After the jury began to deliberate, it asked for a copy of the DEA report of Jenny's interview. The Government moved to reopen evidence and introduce the report, which the court allowed, because it had been "extensively used" during direct examination of the DEA agent. The Nunezes objected. The jury got the report and convicted both Jenny and Carlos. On appeal, the Fourth Circuit reversed, holding that the district court erred in reopening the evidence after jury instructions had been given and after deliberations had begun.

US v. El Shami: El Shami was deported in 1994 after being convicted of two felonies in New Jersey. At the time he was a lawful permanent resident and married to a United States citizen. He returned to the US without permission and was discovered in Virginia in May 2003 and charged with unlawful reentry. El Shami moved to dismiss the charge against him, arguing that his deportation proceedings did not provide him with adequate due process protections. Specifically, he did not receive notice of his final deportation hearing and learned of his deportation nine months after it was ordered when INS agents arrested him. The district court denied the motion, holding that even if El Shami's due process rights were violated, he suffered no prejudice. The Fourth Circuit, 2-1, reversed. It noted that there was no evidence presented that El Shami received notice of his deportation hearing, in spite of residing continually at the address which he provided to INS when deportation proceedings were begun. In addition, he was prejudiced because there were sufficient mitigating factors to suggest that he may have avoided deportation had he been provided with judicial review. Judge Widener dissented, arguing that El Shami had not proven that he had a chance of remaining in the US.

Congrats to the Defender office in the Eastern District of VA for the wins in Nunez and El Shami!