Trial on 924(c) Charge Doesn't Preclude Acceptance on Related Drug Counts

US v. Hargrove: Hargrove was charged with multiple drug counts and a 924(c) charge. He pleaded guilty to the drug counts and went to trial on the 924(c) charge, for which he was also convicted. At sentencing, Hargrove was denied credit for acceptance of responsibility on the drug counts because he went to trial on the 924(c) charge. The district court concluded that it lacked the authority to give Hargrove credit for acceptance because of the 924(c) trial.

On appeal, the Fourth Circuit reversed, narrowly, 2-1. The court first concluded that the "offense of conviction" to which the acceptance reduction would apply was the grouped drug counts, not the 924(c) charge (which, of course, exists outside the Guidelines anyway). Therefore, the district court had the legal ability to award Hargrove acceptance of responsibility because of his guilty pleas on the drug counts. However, the court went out of its way to make clear that Hargrove was not necessarily entitled to the reduction, only that the district court had the power to award it. The message seems clear - the district court has the legal authority, but it probably shouldn't exercise it on remand. Judge Wilkins dissented, arguing that denying the facts of any charged offense, regardless of grouping, precludes a defendant from receiving credit for acceptance of responsibility.

"When the mother's talk . . ." Miranda Doesn't Apply

US v. Kimbrough: Baltimore police received information that two men were dealing drugs in front of a specific home. Surveillance confirmed that information. Officers approached the men and asked if they lived at the residence. They replied that they were guests of the homeowner, Ms. Kimbrough (defendant's mother). The officers found Ms. Kimbrough and obtained consent to search the home from her, after she denied any knowledge of drugs being inside. After hearing a noise from the basement, officers went there and found Kimbrough (the defendant) cutting cocaine. Kimbrough was arrested. At that point, the officers called Ms. Kimbrough down to the basement to show her what they found. She confronted her son, asking "what is this?" and "is there anything down here?" An officer recited the Miranda warnings and Kimbrough agreed to speak without an attorney. Kimbrough answered his mother that he had a gun stuffed under a couch cushion. Kimbrough was charged with possession of a stolen firearm, possession of cocaine with intent to distribute, and possession of a firearm in connection with another felony offense.

Kimbrough moved to suppress his statements made in response to his mother's questioning in the basement. The district court granted the motion, holding that the Miranda warnings that were given were ineffective and that the officers used Ms. Kimbrough as a proxy to question her son. The district court concluded, "Detective Himes . . . quite candidly in his testimony, [said that] she did his questioning for him, that is, Miss Kimbrough did the question that [O]fficer Himes otherwise would have done. So this was official interrogation." The court ordered Kimbrough's statements, but not the actual gun, suppressed. The Government appealed.

The Fourth Circuit reversed the district court and held that Kimbrough's statements could be used against him. Relying on Rhode Island v. Innis, 446 U.S. 291 (1980), and Arizona v. Mauro, 481 U.S. 520 (1987), the court held that Miranda was not implicated by questioning of a suspect by a family member, absent some indication that she was used as an interrogator for the police. There was no evidence to support that claim, the court held, noting that Ms. Kimbrough has non-law enforcement motives for confronting her son. Because the confrontation in the basement was not a custodial interrogation, Miranda was not implicated and any insufficiency of the warnings given was irrelevant.

No Resentencing Hearing Needed After 2255 Proceeding

US v. Hadden: Hadden was originally convicted by a jury of drug charges and a 18 USC 924(c) charge for using a firearm in relation to those drug offenses. He was sentenced to 228 months in prison - 168 months on the drug counts plus 60 months on the 924(c). Hadden's convictions and sentence were upheld on direct appeal. Hadden then filed a 28 USC 2255 motion in which he alleged, among other things, ineffective assistance of counsel in relation to the 924(c) charge. The district court accepted that argument and vacated the 924(c) conviction. The district court then entered an "amended judgment order" in the criminal case imposing a sentence of 168 months. That order was entered without any resentencing hearing.

Hadden appealed, arguing that the district court erred by not having a hearing prior to imposing the new sentence and that the sentence violated Booker (Hadden's trial, appeal, and 2255 proceedings were ongoing during the Blakely/Hammoud/Booker proceedings). The Fourth Circuit rejected those arguments and affirmed Hadden's sentence.

Before reaching the merits, the court analyzed whether it had jurisdiction to hear the appeal, which turned on whether Hadden's appeal was part of the 2255 proceeding or the underlying criminal case. If the former, the court lacked jurisdiction because neither it nor the district court issued a Certificate of Appealability. If the latter, the court had jurisdiction to review the new sentence as a direct appeal of a newly entered final order. After reviewing precedent and parsing the language of 2255, the court concluded that in this case the sentence that was being appealed was part of the underlying criminal case and it therefore had jurisdiction.

On the merits, however, the court ruled against Hadden. First, it concluded that the district court's imposition of a 168-month sentence was not really a resentencing, but rather a "correction" of sentence under 2255 because it removed the 924(c) sentence and left the rest intact. While the district court could have held a resentencing hearing, nothing in the statute or case law required it to do so. Second, the court rejected Hadden's Booker arguments, holding that there was no Booker statutory error and refusing to take notice of the Booker Sixth Amendment plain error that occurred.

Court Clarifies Duties to Conflicting Clients

US v. Nicholson: Nicholson pleaded guilty to being a felon in possession of a firearm. At the time of his arrest, Nicholson told police that he possessed the gun because he was fearful of Lorenzo Butts, who had previously threatened Nicholson and his family, attempted to kill Nicholson's brother, and had killed Nicholson's step father. Nicholson was sentenced to 189 months in prison as an armed career criminal.

Nicholson filed to vacate his sentence, under 28 U.S.C. 2255, based on ineffective assistance of counsel at sentencing due to his defense counsel's conflict of interest. Specifically, at the time he represented Nicholson, Nicholson's counsel also represented Butts in an unrelated case. Nicholson argued that in order to argue for a downward departure at sentencing based on his fear of Butts because to do so would undermine his attorney's simultaneous representation of Butts. The district court denied Nicholson's petition, holding that Nicholson's attorney suffered from no actual conflict because the simultaneous representation of the two men was in unrelated cases.

On appeal, the Fourth Circuit reversed and remanded the case for further proceedings. The court held that Nicholson's counsel did have an actual conflict of interest because the interests of Nichols and Butts were "in total opposition to each other" during the simultaneous representation. The court remanded for a determination of whether the conflict prejudiced Nichols, given that he received a sentence only 9 months higher than the mandatory minimum under the Armed Career Criminal Act.

Variance 480% Greater than Guidelines Unreasonable

US v. Tucker: Tucker pleaded guilty to bank fraud based on the follow scheme:

The Melloul-Blamey Construction Company in Greenville, South Carolina hired Tucker as office manager in October 2000. She began embezzling funds beginning in June 2002, by setting up a company called Hummingbird Marketing, of which she was sole proprietor, and using it as a "dummy vendor." (J.A. at 56.) She would request that a company official at Melloul-Blamey write checks to Bank of America for the purpose of purchasing cashier checks to pay vendors. She then took the company checks to Bank of America, where she exchanged them for certified checks made out to her, to cash, or to Hummingbird Marketing and not to legitimate vendors. Tucker then used the money to pay her personal credit card bills and to make restitution payments to the United States Clerk of Court for two previous fraud convictions.

(emphasis added). Tucker's Guideline range was 24 to 30 months. At sentencing, she argued for a sentence within that range, noting a history of depression that was reflected in the PSR. However, the district court concluded that a sentence in the Guideline range was insufficient to protect the public from further crimes by Tucker because she was a "dedicated embezzler and thief." The court calculated, without showing its work, an underrepresenation of criminal history departure to achieve a Guideline sentence of 60 months, but concluded that was insufficient. The district court finally imposed an upward variance of 144 months in prison.

Tucker appealed the scope of the district court's variance, but did not contest that some variance in her case was appropriate. The Fourth Circuit agreed, and vacated Tucker's sentence. The court initially rejected Tucker's argument that the district court focussed on one of the 18 USC 2553(a) factors - the need to protect the public - to the exclusion of all others, noting that giving one factor greater weight does not necessarily entail disregarding the others. The court then concluded that the district court failed to adequately supports its basis for a 144-month sentence. The court noted that the variance in this case was greater in length and in terms of deviation from the Guidelines than in Davenport and that the district court failed to adequately explain why such a great variance was required (it provided no reason why, for instance, the 60-month sentence it mentioned was not sufficient). Finally, several of the factors noted by the district court were already taken into account by the Guidelines.

Tucker's sentence was vacated and the case remanded for resentencing.

Congrats to the South Carolina FPD office on the win!

Apparent Authority Saves Search of Password-Protected Files

US v. Buckner: Buckner pleaded guilty to multiple wire and mail fraud charges. The evidence of the fraud was discovered by a search of the computer hard drive in Buckner's home, which he shared with his wife. The fraud, stemming from illicit eBay activities, was originally thought to be committed by the wife (the wife's name was on the eBay accounts). She knew nothing about any eBay transactions and admitted that, although the computer was leased in her name, she only used it to play solitaire. When police came to talk to the wife, she volunteered the computer to be searched. That is when Buckner's fraud was uncovered.

Buckner moved to suppress the evidence recovered during the search of the computer's hard drive. He argued that because his files were password protected and his wife could not access them, she could not consent to a search of those files. The Government argued that none of the officers performing the hard drive search knew of the password and there was no need to bypass/defeat it to access the files. The district court denied Buckner's motion and Buckner entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed Buckner's conviction. The court did hold that the wife lacked actual authority to consent to a search of Buckner's password protected files. However, the court concluded that she had apparent authority, particularly because the computer was leased in the wife's name only and the initial reports of fraud contained her name, not Buckner's.

Gang Affiliation Merits Upward Variance

US v. Hernandez-Villaneuva: Hernandez-Villaneuva was convicted of illegal reentry. His Guideline sentence was 0-6 months. The Government argued for an upward variance on grounds that when he returned to the United States Hernandez-Villaneuva associated with a violent Salvadoran street gang, even though there was no evidence that he participated in any illegal activity. The district court imposed a sentence of 18 months in prison, based largely on the gang relationship and the court's conviction that Hernandez-Villaneuva, a former gang member, "has not yet developed or demonstrated a maturity, a backbone, a character to turn things around."

Hernandez-Villaneuva appealed his sentence, which the Fourth Circuit affirmed. The court held that both the need for a variance and the scope of the variance was reasonable, due to the failure of the Guidelines to adequately consider Hernandez-Villaneuva's gang ties.

Highway Star

US v. Hill: The issue in this case was:

whether the stretch of Nider Boulevard between Shore Drive and Gate 4 of the United States Naval Amphibious Base Little Creek, located in Virginia Beach, Virginia, constituted a "highway" under Virginia law on August 10, 2004, the date of the charged conduct in this case.

It is, which required the court to affirm Hill's traffic offense under the Assimilative Crimes Act. The court based its conclusion on the fact that the roadway in question was open to the public and not limited to Naval personnel.

3553(a) Doesn't Require Low End of Guideline Sentence; Court Can't Order Sentence to Run Consecutively to Future Sentences

US v. Smith: Smith pleaded guilty to five counts of bank robbery. After an upward departure, his Guideline sentencing range was 151 to 188 months. The district court sentenced him to 180 months in prison, to be served consecutively to "any other sentence imposed in any other case, or on any other probation revocation or whatever." At the time, Smith had a pending supervised release revocation proceeding in another district. On appeal, Smith raised to objections to his sentence, one of which the Fourth rejected, the other the court accepted and vacated Smith's sentence.

Smith's first objection was that he should have been sentenced to the bottom of the Guideline range - 151 months - because it was "sufficient, but not greater than necessary" to achieve the goals of sentencing. Smith argued that if sentences within the Guideline range are presumptively mandatory because the Guidelines incorporate the 3553(a) factors and 3553(a) requires the court to impose the least harsh sentence possible to achieve those goals, than the harshest sentence that can be imposed is the low end of the Guideline range. The court, while noted that this argument was "clever, [but] has no merit." The Fourth explained that:

rests on a logical fallacy: the fact that a sentence at the lowest end of the guidelines range could be reasonable if the sentencing judge concluded it was sufficient does not mean that the sentencing judge must conclude that it is sufficient. It is the sentencing judge who must initially determine what is sufficient. To hold that the lowest sentence in an applicable guidelines range is always sufficient would rob § 3553(a) of its force.

Smith's second objection was that the district court exceeded its authority by ordering his sentence to be served consecutively to future sentences not yet imposed. Reviewing 18 USC 3584, the Fourth agreed, noting that the statutory language clearly allowed the district court to impose consecutive sentences only where it was imposing multiple sentences at the same time or where the defendant was already subject to an incomplete term of incarceration. The court rejected the Government's argument that the 3584(a) presumption that sentences imposed at different times run consecutively trumps the rest of the statute, holding that such a reading would ignore the limitations already noted and would effectively abrogate the sentencing authority of one federal judge (the one imposing a sentence in the future) in favor of another.

Smith's sentence was vacated and his case remanded for resentencing.

2423(a) Conviction Does Not Require Defendant's Knowledge of Victim's Age

US v. Jones: Jones was convicted by a jury of conspiracy to transport a minor across state lines for the purposes of prostitution and three substantive counts transportation. Jones and a buddy in Ohio found a 13-year-old runaway from Wheeling, West Virginia, whom they drafted into a prostitution scheme where they would drive the girl to a truck stop in West Virginia in order to service truckers.

The Fourth Circuit upheld Jones's convictions against two attacks. First, Jones argued that the Government was required to prove that he knew the girl involved was under 18, arguing that the "knowingly" requirement in section 2423(a) applies to the age of the victim, not (or in addition to) the transportation. The Fourth rejected this argument, noting that the other Circuits were unanimous in not adopting Jones's reading. Second, the court rejected Jones's argument that statements made by the AUSA during closing arguments prejudiced his case. One statement - "if [the defense] had real evidence, don't you think they would have presented it to you?" - was not an impermissible comment on Jones's exercise of his Fifth Amendment rights, because during closing argument Jones had suggested an "alternate scenario" of events that was not supported by defense witnesses (7 of whom testified) or cross-examination of Government witnesses. The other statement - "[Y]ou can be confident that [a witness] is telling the truth about this conspiracy. You know why? Because he pled to it." - was not improper vouching because it did not convey any indication of the AUSA's personal belief in the witnesses veracity.

Updward Departure Based on Criminal History Violates Booker

US v. Guyon: Guyon pleaded guilty to several fraud charges and faced a post-Blakely/pre-Booker Guideline range of 140 to 175 months. At sentencing, the Government moved for an upward departure because the Guideline range did not adequately reflect Guyon's criminal history, the similarity of his present offense to prior ones, and his likelihood of recidivism. Guyon objected on Sixth Amendment grounds, arguing that such a departure would depend on facts found by the district court beyond those to which Guyon pleaded guilty. The district court rejected Guyon's argument and sentenced him to 180 months in prison.

The Fourth Circuit vacated Guyon's sentence, holding that it violated Booker. Most notably, the court shot down the Government's argument that because the departure dealt with criminal history, it was covered by the Almendarez-Torres exception to the Apprendi/Blakely/Booker rule.

Pain-Management Related Convictions Upheld

US v. McIver: McIver was a South Carolina doctor who specialized in pain management. After concerns were raised about McIver's prescription practices, the DEA began investigating. Eventually, McIver was charged with conspiracy to distribute various narcotic pain medications, distribution of those drugs, and distribution of controlled substances resulting in death (one of this patients overdosed on oxycodone). McIver was convicted by a jury of conspiracy, distribution, and distribution resulting in death and sentenced to 240 months in prison for the conspiracy and distribution counts and 360 months (concurrent) on the distribution resulting in death counts. McIver challenged his conviction on numerous grounds on appeal.

In an opinion that covers similar ground to Alerre from this time last year, the Fourth Circuit affirmed McIver's convictions. First, the court rejects McIver's argument that the district court's jury instructions, fueled by the Government's expert witness testimony about whether McIver's actions were "outside the parameters of legitimate medical practice," lowered the burden of proof for the Government to a negligence standard. Second, the court rejected the argument that the Government's expert improperly offered inadmissible legal conclusions during his testimony. Finally, the court upholds McIver's convictions as being supported by sufficient evidence.

18 USC 3553(b)(2) Violates Booker

US v. Hecht: Hecht pleaded guilty to possession of child pornography. At sentencing, the district court rejected Hecht's argument that 18 USC 3553(b)(2), which requires a Guideline sentence in certain sex offense cases, violated Booker. As a result, the district court applied a two-level enhancement under USSG 2G2.2(b)(2)(E) (2003) for distribution of child pornography. He was sentenced to 33 months in prison, the bottom of the Guideline range.

On appeal, the Fourth easily concludes that 3553(b)(2)'s mandatory Guideline sentence provision violates the Sixth Amendment as explained in Booker (thanks to the Government's concession, in part). The court recognized that all other Circuits to deal with the issue have reached the same conclusion. Furthermore, the court concluded that vacation of Hecht's sentence was required because be properly objected to being sentenced under a mandatory Guideline scheme and the record was not sufficiently clear to show lack of prejudice. Hecht also challenged the two-level distribution enhancement, arguing that his act of using a web camera to transmit images of child pornography displayed on his computer did not meet the definition of "distribution." The Fourth Circuit disagreed and concluded that the enhancement applied in this case.

Court Upholds Conviction in Police Beating of Motorist

US v. Perkins: Perkins was an off-duty Petersburg, VA, cop who somehow appeared at the scene of an incident involving three other officers and a motorist. The motorist had run away when police pulled over his vehicle. Once the motorist was caught, one of the cops began stomping on his head and kicking him in the stomach. When he arrived, Perkins decided to join in the fun, stomping the motorist on the head and delivering more kicks. Perkins was charged with depriving the motorist of his right to be free from excessive force, in violation of 18 USC 242, and convicted following a jury trial.

At trial, several officers testified about Perkins's actions and whether they were reasonable acts for a police officer to take given the situation. two of the officers who were present for the beating, but who did not participate, testified based on their first-hand knowledge of the events. Others testified based on statements made by Perkins and others. One officer, who taught courses in defensive tactics, testified as a "force expert" for the Government. Perkins moved for a judgment of acquittal, arguing that the evidence was insufficient to determine whether his blows, as opposed to the ones visited upon the motorist (who ended up in a coma, but responsive to pain) before he arrived. The district court (obviously) denied that motion. Perkins was sentenced to 51 months in prison.*

On appeal, Perkins made several arguments, all of which were rejected by the Fourth Circuit. First, he argued that the testimony from several of the officers regarding the appropriateness of his actions was improperly admitted expert testimony. Because Perkins failed to specifically object to that, the Fourth reviewed for plain error. The court concluded that the testimony of the two officers who were eyewitnesses to Perkins's actions was properly admitted, while the testimony based on second-hand knowledge was not. However, the improper introduction of that evidence did not affect the outcome of the trial. Second, Perkins argued that officers (including the properly utilized expert) testifying about the "reasonableness" of his actions were improperly offering legal conclusions in their testimony. The Fourth disagreed, concluding that such testimony was admissible under FRE 704(a). Finally, the court upheld the district court's rejection of Perkins's motion for a judgment of acquittal, holding that the evidence was sufficient to show that Perkins's actions caused "bodily injury" to the motorist.

* The cop who started the beating pleaded guilty to the same charge and got 108 months in prison.

Presumption of Reasonableness Goes to the Supremes

According to the New York Times, last Friday the Supreme Court granted cert in two cases involving major post-Booker sentencing issues. One, Rita v. US, comes out of the Fourth Circuit via an unpublished opinion. According to the Times:

The defendant in the first case, from North Carolina, is a 57-year-old retired marine named Victor A. Rita Jr., who was convicted of making false statements in connection with a federal investigation into the sale of kits for making machine guns.

While Mr. RitaÂ’s sentence, 33 months, was within the range provided by the sentencing guidelines, he argued on appeal to the United States Court of Appeals for the Fourth Circuit that the sentence was unreasonably long, given his poor health and unblemished record of federal service, both as a marine and in two civilian agencies.

But the Fourth Circuit, which is based in Richmond, Va., and includes North Carolina, is one of the federal circuits that have adopted a presumption of reasonableness for sentences within the guidelines range. The appeals court consequently rejected his appeal in a brief unpublished opinion.

Congrats to the MWDNC PD's office for having their petition granted.

The other case granted on Friday was from the Eighth Circuit, Claiborne v. US, involves what a district court must do to justify a below-the-Guidelines sentence:

Mr. ClaiborneÂ’s Supreme Court appeal, Claiborne v. United States, No. 06-5618, thus presents the other side of the coin: not whether it is presumptively reasonable to issue a sentence within the guidelines range, but whether it is presumptively unreasonable not to do so.

No indication on when the Court is scheduled to hear these cases.

UPDATE: The cert petition and other docs in the Rita case can be found here.

Edited to fix a link ancongratulatete the correct office.

Court Upholds Government's Failure to Move for Third-Point Reduction Under 3E1.1

US v. Chase: Chase pleaded guilty to distributing drugs within 1000 feet of a school, based on several controlled buys. When he was arrested on state charges, the name he gave to the officers was actually his brother's, which led to his brother's brief term of custody upon being arrested when the federal indictment came down in the brother's name. Chase entered into a plea agreement in which the Government agreed to move for the third point under USSG 3E1.1 if Chase (1) paid his $100 special assessment within 40 days of entering his plea, and (2) fully cooperated with the Government.

At sentencing, the Government refused to move for the third point because the special assessment was not paid and Chase was not completely forthcoming about his offense (for instance, he could only name his source as "a white guy named Steve"). Chase recognized that the district court could not sua sponte award the third point, but asked for a sentence which "nonetheless reflects the additional one level." The district court sentenced Chase to 210 months in prison, the bottom of the Guideline range.

On appeal, Chase argued that the Government breached the plea agreement by refusing to move for the third point. The Fourth rejected that argument, noting that Chase failed to pay the assessment (protestations of inability to pay notwithstanding) and that successful cooperation was determined by the Government, which concluded that Chase was not fully forthcoming about his dealings. The court also rejected Chase's contention that the district court could award the third point without a motion from the Government.

New Rules

There are several changes to the Rules of Criminal Procedure, Appellate Procedure, and Evidence. They will take effect on December 1, 2006, unless Congress intervenes.

Criminal Procedure

• Rules 5(c), 32.1, and 41 have been amended to allow for the filing of certain documents (warrants and orders related to out-of-district arrests) with a magistrate judge by "reliable electronic means"
• Rule 6 has been amended stylistically, only to conform with the conventions adopted during the recent overhaul of the Rules
• Rule 40 has been amended to allow a magistrate judge to set bond for a person arrested for violating bond conditions set in another district (the current rule precluded release except, oddly, if the violation was for failing to appear)
• Rule 41 has been amended, setting forth procedural guidance for the issuance of tracking device warrants
• Rule 58 has been amended to clarify that a defendant's right to a preliminary hearing is governed by Rule 5.1 and is not limited to those in custody
  

Appellate Procedure

• Rule 25 has been amended to allow the Circuits to allow filing by electronic means
• Rule 32.1 has been added dealing with citation to "unpublished" decisions. Prohibitions on citation to such opinions will no longer be valid for opinions handed down after January 1, 2007. However, the rule does not require the Circuits to give such opinions any precidential weight (or prohibit them from doing so).
  

Evidence

• Rule 404 has been amended to clarify the use of character evidence in civil cases
• Rule 408 has been amended to resolve several conflicts among the Circuits. Of relevance to criminal practice (perhaps), the amended rule prohibits statements made by a party during settlement negotiations from being used to impeach a witness as a prior inconsistent statement.
  
• Rule 606 has been amended to provide that testimony from jurors regarding their verdict is proper only when there is an allegation of "mistake in entering the verdict onto the verdict form."
• Rule 609 has been amended to provide that automatic impeachment of a witness via prior convictions is proper only "if it is readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
  

All these rules (along with Bankruptcy and CivPro rules) can be found here in one big whopping PDF file.

Major New Sex Offense Bill

Congress recently passed, and the President signed, "The Adam Walsh* Child Protection and Safety Act of 2006." Here are some highlights of the Act, which has as its primary purpose the development of state sex offender registries and a federal database to collect the information therein. All section references are to the Act, not the US Code:

• Section 141 creates a new offense, failing to register as a sex offender, at 18 USC 2250. The penalizes a person who "knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act" where that person has either (a) been convicted of certain sexual offenses in federal court or (b) "travels in interstate or foreign commerce, or enters or leave, or resides in, Indian country." Penalties for conviction are 0-10 years in prison or 5-30 years if the person commits a crime of violence.
• Section 141 also increases the punishment in false statement cases (18 USC 1001) to 8 years if the matter at issue related to a specifically listed federal sex offense.
• Section 141 also makes changes to supervised release terms for sex offenses. First, it requires the supervised release term in sex offense cases to be at least 5 years long (up to life). Second, if a person on SR is supposed to be a registered sex offender and he commits a crime that is one of the listed federal offenses, the court is required to revoke his term of supervised release and imposed a minimum sentence of 5 years, regardless of other limitations on imprisonment for SR violations.
• Section 201 specifically provides a sentence of 0-20 years in prison for distribution of "date rape drugs" (as defined by the Act) over the Internet.
• Section 202 sets forth mandatory minimum sentences for persons "convicted of a Federal offense that is a crime of violence" against a minor. If the crime of violence is murder, the minimum is 30 years; kidnapping or maiming receives a 25-year minimum; any other crime of violence that involves serious bodily injury or a dangerous weapon produces a 10-year minimum. These mandatories apply unless greater mandatory minimums are provided elsewhere.
• Section 203 increases the penalty for violations of 18 USC 2422(b) (coercion and enticement) to 10 years to life in prison.
• Section 204 increases the penalty for violations of 18 USC 2423(a) (child prostitution) to 10 years to life in prison.
• Section 205 changes the penalty for violations of 18 USC 2242 (sexual abuse) from 0-20 years to "any term of years or for life."
• Section 206 creates a mandatory minimum of 30 years in prison for violations of 18 USC 2241(c) (sexual abuse). Is also creates a 30-year mandatory minimum for violations of 18 USC 2251(e) where death results.
• Section 210 allows a district court to impose as a condition of supervised release that a registered sex offender submit to warrantless searches by law enforcement or probation officers "at any time." However, such searches still require "reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct." Whether that matters under Samson, anyway, is unknown.
• Section 213 expands federal jurisdiction for kidnapping offenses.
• Section 214 directs a committee of the Judicial Conference to review whether the "marital communication and adverse spousal privileges" should be abolished in child abuse, spousal abuse, or child custody cases.
• Section 216 amends the Bail Reform Act by adding to the cases in which the Government may seek detention "any felony that is not otherwise a crime of violence that involves a minor victim or involves the possession of a firearm or destructive device, or any other dangerous weapon . . .."
• Section 504 regulates the reproduction of child porn for discovery purposes.
• Section 701 creates the offense of a "child exploitation enterprise" and provides a 20-life penalty for those engaged in such enterprises.
• Section 702 provides a 10-year mandatory minimum, to be imposed consecutively to any other penalty, in cases where a person required to register under the Act commits one of the listed federal sex offenses.
  

In addition, Section 704(b) provides for an increase of "not less than 200 the number of attorneys in the United States Attorneys' Offices" who shall be assigned to prosecute "offenses relating to the sexual exploitation of children.

*Adam Walsh was the son of John Walsh, of America's Most Wanted fame, whose abduction led to the show.

District Court Cannot Rescind Resitution Obligation Under MVRA

US v. Roper: Roper and Butler (not a co-defendant, but the appeals were consolidated, apparently) were each convicted of various bank fraud charges and ordered to pay restitution. Both served prison terms and began their terms of supervised release. Both violated the conditions of their supervised releases, resulting in additional prison time. At the same time that the district court sent Roper and Butler back to prison, it made findings that they were unable to pay their restitution obligations and rescinded them. The district court also rescinded Roper's special assessment for the same reason.

The Government appealed, arguing that under the Mandatory Victim Restitution Act (18 USC 3663A and 3664), the district court at the original sentencings were bound to impose restitution obligations upon Roper and Butler and the mandatory nature of the MVRA did not provide for future rescinding of those obligations. The Fourth Circuit agreed and vacated the district court's rescinding of the restitution orders. The Fourth Circuit did the same for Roper's special assessment, also because it was mandatory and statute provided no means to rescind it.

Indictment Charging "Cocaine Base" Includes All Types, Even if "Crack" Specifically Mentioned

US v. Ramos: Ramos was convicted by a jury of several counts of distributing cocaine base and use of a firearm during a drug trafficking offense. On appeal, he made several arguments based on the theory that the Government was required to prove specifically that the drugs at issue were "crack" cocaine, as opposed to some other form of cocaine base, based on the on the indictment's charging him with distributing "cocaine base, commonly known as crack." The Fourth rejected all of those arguments, holding that the "commonly known as crack" language was surplusage and that the statute dealt with any substance with a detectable amount of cocaine base. The court also held that Ramos was not entitled to an entrapment instruction at trial and was not the victim of sentencing entrapment.

Court Upholds Multiple Convictions, Sentences in Terrorism Case; Vacates Below-the-Guidelines Sentence

US v. Kahn: Kahn and his codefendants (Chapman and Abdur-Raheem) were convicted after a bench trial of multiple offenses "related to a conspiracy to wage armed conflict against the United States" and "a country with whom the United States is at peace." Starting in 1999, the group engaged in training for a "jihad" that included overly rigorous paintball exercises, ties to a Pakistani terrorist organization, and (in some cases) participation in military actions against India in Kashmir.

Khan was specifically convicted of conspiracy to enlist in armed combat against the United States, conspiracy to level war against the United States, conspiracy to contribute services to the Taliban, conspiracy to provide material support to the Pakistani terrorist group, and four counts of conspiracy to use firearms in relation to crimes of violence. Chapman was convicted of conspiracy to violate the Neutrality Act, conspiracy to provide material support to the Pakistani terrorist group, and three 924(c) charges. Abdur-Raheem was convicted on the same charges as Chapman, except he was convicted of only one 924(c) count.

On appeal, the Fourth Circuit upheld all the convictions against Kahn, Chapman, and Abdur-Raheem against various challenges.

• First, the court held that there was sufficient evidence to support all the charges.
  
• Second, the court rejected Chapman and Abdur-Raheem's argument that their trial should have been severed from Kahn's, due to the overwhelmingly prejudicial nature of the evidence against Kahn involving aid to the Taliban and Al-Qaeda.
  
• Third, the court held that it was not necessary to secure a waiver of the defendants' trial rights under Rule 23(a) from the defendants themselves, rather than counsel.
  
• Fourth, the court held that two of the conspiracy charges, involving conspiring to injure persons or property in a foreign country and conspiring to use firearms in connection with a conspiracy to commit crimes of violence, were valid and were not "conspiracies to conspire," as argued by the defendants.
  
• Fifth, the court held that the Government could use statements made by Chapman without Miranda warnings and after Chapman was "in near solitary confinement for weeks," because the statements were voluntarily made.
  
• Finally, the court rejected claims of selective prosecution, based on the theory that the Government had not aggressively prosecuted other terrorist organizations.

As to sentences, the court upheld Kahn's and Chapman's sentences, fueled by 924(c) mandatory minimums. First, the court rejected their arguments that the district court erred by imposing multiple 924(c) sentences because the firearm possession all related to a single criminal episode. Second, the court rejected the argument that the stacking of Kahn's and Chapman's 924(c) mandatory minimums produced sentences that violated the Eighth Amendment. Amazingly, the court performs this analysis without ever setting forth what the total sentences are for Kahn or Chapman.

The court does, however, go on to hold that Abdur-Raheem's sentence of 52 months is an unreasonable variance from the Guideline range of 97 to 121 months. The district court concluded that Abdur-Raheem's conduct was similar to that of another codefendant, Surratt, who pleaded guilty and received a 46-month sentence. The district court's rationale, according to the Fourth Circuit, provided undue weight to the need to avoid sentencing disparities between similarly situated defendants. It therefore vacated Abdur-Raheem's sentence.

District Judge Goodwin (sitting by designation), dissented from the court's opinion as to Kahn's sentence (he agrees on Chapman's sentence). Goodwin sets forth that Kahn received consecutive sentences of 120 months, 300 months, and life in prison. He quotes the district court judge as noting that she was required to impose those sentences and "there are murderers who get far less time than this, and I have sentence Al-Qeada members who were planning real attacks on these shores for far less time . . . and I have to tell you that this is sticking in my craw." Goodwin argues that Kahn's firearm possession in this case constituted one continuing act and his convictions should be merged and the imposed sentence limited to 120 months.

Doug Berman has these thoughts on Kahn.

Court Vacates Below-the-Guidelines Sentence Without Government Post-Sentence Objection

US v. Curry: Curry sold gold coins on eBay. Problem was, he "sold" coins which he never had in his possession. When the deals began to fall apart and jilted buyers complained, the FBI came calling. Curry was charged and convicted by a jury of multiple counts of mail fraud, wire fraud, and unlawful monetary transactions. At sentencing, Curry's Guideline range came out to be 41 to 51 months. However, the district court imposed a sentence of 12 months on each count (served concurrently), along with 12 months of home confinement, following Curry's argument for a Booker variance. The Government appealed the sentence and Curry cross-appealed the district court's denial of his motion for acquittal.

The Fourth rejected Curry's challenges to his conviction, while upholding the Government's challenge to the sentence. The court held that the evidence was sufficient to sustain Curry's convictions, rejecting his arguments that the Government failed to prove the specific state date of his fraudulent scheme and that he acted in good faith, as he intended to pay all the jilted buyers back. As to the sentence, the court followed Green and concluded that a variance for the reasons noted by the district court (that Curry didn't begin his eBay sales with malicious intent and his presentence efforts at restitution) was unreasonable.

Most notably, the court held that the proper standard of review for the sentence was unreasonableness, rather than plain error, even though the Government failed to object to the sentence once imposed. The Government had made it clear what it's position on sentencing was (within the Guideline range, of course) and any objection after the district court announced sentence would be futile.

Doctor's Good Faith Relevant in Drug Cases; Objective Standard Required

US v. Hurwitz: Hurwitz was a physician in Virginia who specialized in treatment of pain, particularly through the use of various narcotics. After some of his patients were busted for selling prescription medications, the investigation led back to Hurwitz. He was charged in a massive indictment with a drug trafficking conspiracy, engaging in a continuing criminal enterprise, healthcare fraud, two counts each of drug distribution resulting in death and serious bodily injury, and 54 other distribution counts.

Prior to trial, Hurwitz sought to suppress evidence seized during the search of his office because the specific items to be seized were not set forth in the warrant itself, but in an attachment to the warrant application, and that the seizure of patient files was beyond the scope of the warrant. The district court denied the motion. At trial, Hurwitz argued that he acted in good faith towards his patients and was therefore not guilty of the charges. The district court declined to give Hurwitz's instruction regarding good faith on the drug charges, but did give one on the health care fraud charges and specifically instructed the jury not to consider good faith on the other charges. Hurwitz was convicted of most of the charges related to drug distribution, but was acquitted on the healthcare fraud charges.

On appeal, Hurwitz raised objections to the district court's denial of his motion to suppress and its failure to give a good faith instruction on the drug charges

The Fourth Circuit rejected the search issue, holding that the particular items to be seized were adequately set forth in an attachment to the warrant application that was incorporated by reference into the warrant. Specifically, the court held that it did not matter that the attachment was not present with the warrant when the search took place.

On the instruction issue, the Fourth Circuit held that the district court erred and reversed Hurwitz's conviction. First, the court held that held that good faith generally is relevant to prosecutions of doctors for drug violations where whether the doctor's actions were not for legitimate medical purposes was an issue. Second, the court held that Hurwitz's proposed instruction was an incorrect statement of law and properly rejected by the court because it propounded a subjective, rather than objective, standard of good faith. However, the court held that the district court still erred because it limited the good faith instruction it did give to the healthcare fraud charges. Finally, the court held that the error was not harmless and required reversal.

Judge Widener dissented on the good faith issue, arguing that "I do not believe good faith should be objective; the two terms are contradictory, it seems to me." He would have approved the instruction offered to the district court by Hurwitz.

UPDATE: The Washington Post has coverage of the case here.

No Mens Rea for State Violations in 18 USC 1960

US v. Talebnejad: The Talebnejads (father, mother, and son) were all charged with conducting an unlicensed money transmitting business, and conspiring to do so, under 18 USC 1960(b)(1)(A). That section makes it a crime to operate a money transmitting business that affects interstate commerce, that is unlicensed under state law when state law requires a license and state law punishes the lack of a license as a misdemeanor or felony. The Talebnejads ran two money transmitting business in Maryland without the required state licenses. It is a crime to do so in Maryland "knowingly and willfully." The district court dismissed the indictment, holding that 1960(b)(1)(A) requires that the Government prove that the Talebnejad's acted knowingly and willfully, but that the indictment did not make that allegation.

The Government appealed and the Fourth Circuit reversed. The court held that 2001 amendments to section 1960 removed proof of mens rea for the state offenses from the elements of the offense. In concluding, the court held that proof of mens rea applied only to the "factual elements" of the offense, not the "legal elements" of the offense. In addition, the court concluded that a change to the relevant Maryland statutes during the course of the Talebnejad's charged offenses did not render the indictment deficient. In a partial dissent, Judge Gregory argued that the 2001 amendments to section 1960 removed only the scienter requirement for a purely federal offense (violating federal registration regulations), not offenses based on state regulation requirements.

If the Fanny Pack Does Not Fit, You Must (Not) Acquit

US v. Williams: Williams was tried and convicted of being a felon in possession of a firearm. At trial, two police officers testified that they approached Williams outside of a Baltimore apartment complex when they suspected him of selling bootleg CDs and DVDs. Williams was placed under arrest because he lacked a vendor's license and was searched. During the search, according to one officer, Williams was wearing a fanny pack around his waist. When the officer removed the pack, he noticed a bulge in Williams's waistband that contained a firearm.

At trial, Williams stipulated to his prior felony convictions and did not intend to testify. However, he wanted to demonstrate to the jury that the fanny pack seized by the police was too small to fit him. The Government objected, arguing that if such a demonstration took place, Williams would have to be subject to cross-examination. The district court agreed, holding that such a demonstration would be "testimony" and require Williams to waive his Fifth Amendment right to be silent. Williams eventually did testify about the encounter with police, denying he possessed a gun (it was left by a man who fled when police approached, as he was the real bootlegger), and put on the fanny pack (it was too small - just like OJ's glove). During cross examination, the Government elicited the nature of Williams's prior convictions, including one for illegally possessing a firearm.

On appeal, Williams argued that the district court erred by considering the demonstration to be the equivalent of testimony requiring cross-examination and the waiver of his Fifth Amendment rights. The Fourth Circuit agreed with this argument, noting that the purpose of cross examination is to probe the capability for recall, bias, etc. of a witness and that such considerations weren't applicable to demonstration evidence (although they would be relevant to the testimony of someone who said the demonstration resembled the real act). However, given the strength of the Government's case, the error was harmless. In addition, the negative evidence that came out during the cross-examination of Williams came not from questions about the demonstration, but from Williams's decision to testify about the encounter with police. Had he limited the scope of his testimony, cross-examination would have been similarly limited. Williams's conviction was affirmed.

Appeal of Restitution Calculation Barred By Waiver of "Sentence Imposed"

US v. Cohen: Cohen pleaded guilty to mail fraud and conspiracy to commit health care fraud. As part of his plea agreement, he waived his right to appeal "whatever sentence is imposed." Nonetheless, Cohen appealed, challenging the amount of loss calculation under the Guidelines and for restitution purposes. He argued that the appeal waiver was not valid and that even if it was, the restitution issue was outside the scope of the waiver and could be considered.

The Fourth Circuit rejected Cohen's arguments and dismissed the appeal based on the waiver. First, it held that the record did not show that Cohen's ADHD prevented him from entering a knowing and voluntary waiver of appellate rights. Second, the court held that the Government did not violate the agreement by arguing for the amount of loss it did as there was nothing in the written agreement committing the Government to a certain loss figure. Finally, the court held that Cohen was not in an unequal bargaining position with the Government during the making of the agreement. As to the restitution loss calculation, the court rejected Cohen's argument that restitution was not part of the "sentence imposed" and was therefore outside the scope of the waiver. However, the court did entertain (and reject) an argument that the district court's restitution order exceeded the scope of its statutory authority.

No Jurisdiction to Hear Appeals of Order Vacating Sentence Prior to Resentencing

US v. Stitt: The Fourth issued a decision in Stitt back in March, in which it affirmed the district court's vacation of Stitt's sentence in a 2255 proceeding. However, prior to issuing the mandate, the court discovered some Supreme Court precedent that indicated that it did not have jurisdiction to hear the appeal. Sure enough - because Stitt had not yet been resentenced, the district court had not entered a final order that was appealable. Accordingly, the court retracted its earlier opinion in the case and dismissed the Government's appeal of the district court's vacation of Stitt's sentence.

Court Vacates Life Sentences Under Booker

US v. Robinson: Robinson (aka "Heavy") and his codefendants Schuyler ("Sleepy") and Parros were all convicted of conspiracy to distribute cocaine base (as well as substantive offenses) in 1999. Based on judicially found facts, the district court imposed life sentences on Robinson and Schuyler and a 360-month sentence on Parros. While their cases were on appeal, the Supreme Court decided Apprendi. The Fourth considered the application of Apprendi to Robinson & crew's sentences under plain error review and vacated.

At resentencing in 2003, Robinson, et. al., argued that Apprendi prohibited the district court from enhancing their sentences based on judicially found facts. The district court rejected that argument and reimposed the original sentences. On appeal for the second time, in the wake of Blakely, Robinson and friends made the same argument to the Fourth Circuit, which rejected it under Hammoud. The Supreme Court vacated the Fourth Circuit's decision in the wake of Booker, remanding for further considerations.

On remand, the Fourth again vacated the sentences. First, the court concluded that the defendants avoided plain error review because they raised Apprendi/Sixth Amendment objections to the district court's fact finding at their 2003 resentencing hearing. Second, the court held that the district court's enhancement of their sentences based on judicially found facts constituted Sixth Amendment Booker error. Third, the court rejected the Government's argument that the error was harmless, specifically rejecting the Government's attempt to bring Cotton's "overwhelming" and "essentially uncontroverted" standard outside the plain error context. In a concurrence, Judge Neimeyer argued that plain error was the proper standard of review because the defendants had not raised an Apprendi objection at their original trial or sentencing proceedings (as, indeed, they couldn't since Apprendi had not yet been decided). Nevertheless, he joined the majority holding because even under plain error review the sentence required vacation.

"Plainly Unreasonable" Review for Supervised Release Revocation Sentences

US v. Crudup: In this case, the court resolves the issue of what the proper standard of review is for supervised release sentences in a post-Booker world.

Crudup repeatedly violated the terms of his supervised release, eventually leading the district court to revoke Crudup's supervised release and sentence him to the statutory maximum sentence of 36 months in prison.

On appeal, Crudup argued that his sentence was unreasonable, given the 5 to 11 month sentence suggested by the Policy Statements in Chapter 7 of the Guidelines. Before reviewing the sentence itself, the court considered whether that review should be undertaking using an "unreasonableness" standard from Booker or the "plainly unreasonable" standard found in 18 USC 3742(a)(4). After noting that other courts have either utilized the Booker standard or found no substantive difference between the two, the court held that "plainly unreasonable" is the proper standard of review for sentences, such as those imposed for violation of supervised release conditions, that do not have an applicable Guideline. Thus, review of sentences imposed following the revocation of supervised release is unaffected by Booker.

After noting the correct standard of review, the court concluded that Crudup's sentence was not plainly unreasonable.

Repeated Criminal Violations Precludes 5K2.20 Departure

US v. Hillyer: Hillyer was brought in by a construction company to take over a troubled bridge building project over Croatan Sound in North Carolina. The project was running long and was over budget when Hillyer took over, but he got things back on track and completed the bridge.

Once complete, the company needed to remove a temporary bridge that aided the construction process in order to relocated it to another site. Unable to dislodge the temporary bridge's pilings from the bottom of the sound, Hillyer ordered that a channel be dug around the pilings to facilitate their removal. That contravened the Corps of Engineers permits for the project. Hillyer persisted with this "prop dredging" operation, even after being told to stop by the CoE. Hillyer even organized the work to be done under cover of darkness.

For his troubles, Hillyer was convicted after a guilty plea of conspiracy to violate the Clean Water Act and Rivers and Harbors Act of 1899 as well as violating the Rivers and Harbors Act.

At sentencing, Hillyer's final offense level was 13, producing a sentencing range of 12 to 18 months. Hillyer argued for a departure for aberrant behavior under 5K2.20, which the Government opposed. The district court, without explanation, sentenced Hillyer to three years of probation, 300 hours of community service, and a $10,000 fine. In a later written order, the court explained that it was granting Hillyer's departure motion, but did not specify the size of the departure or the resulting Guideline range. The Government appealed.

The Fourth Circuit reversed Hillyer's sentence. After noting that the district court failed to adequately calculate a departure and resulting Guideline range, the court went on to conclude that Hillyer did not qualify for a 5K2.20 departure anyway. Specifically, his criminal conduct was not a "single criminal occurrence," but was rather an ongoing series of illegal acts.

The court vacated, without addressing whether a similar sentence applied after a proper Guideline calculation and Booker variance would be unreasonable.

Court Upholds Death Sentence For Multi-State Crime Spree

US v. Fulks: Fullks and his codefendant Basham (trials and appeals were severed) met while incarcerated in a jail in Kentucky awaiting sentencing on various charges. They escaped and embarked on a multi-state crime spree that took them from Indiana to West Virginia to the Carolinas (and back) and left one man tied to a tree and two women dead in the process. They were apprehended in Indiana and brought to South Carolina to face federal charges, including carjacking resulting in death and kidnapping resulting in death for the second murder victim (who was taken from South Carolina to North Carolina and killed).

The Government sought the death penalty. Fulks pleaded guilty to the carjacking and kidnapping (as well as others) charges and proceeded to trial on the issue of whether he should be sentenced to death. After more than a month of trial proceedings, the jury returned a verdict recommending that Fulks be put to death. The district court, after denying a motion for new trial, sentenced Fulks to death on both the kidnapping and carjacking counts and 744 months on the other charges (to be served consecutively to the death sentences, for good measure).* Fulks appealed his death sentence.

In a lengthy opinion (that can't really be adequately summarized in a blog post), the Fourth Circuit affirmed Fulks's sentence. In doing so, the court rejected arguments that:

• the district court erred by not excluding the testimony of two witnesses who were not on the Government's witness list prior to trial;
• the district court erred by not striking from the jury three jurors who were unconsitutionally prone to impose the death penalty;
• the district court erred in denying the motion for new trial based on revelations that one of the jurors failed to answer a question during voir dire that her husband had been murdered
• the district court erred by not striking two other jurors whose personal experiences biased them against Fulks
• the district court erred by not allowing Fulks to introduce evidence of three polygraph exams he took
• the district court erred by allowing the victim's sister to read a 14-year old letter the victim wrote to her about leaving her abusive husband; and
• that the Federal Death Penalty Act is unconstitutional because of its lax evidentiary standards.

Judge Williams concurred, disagreeing with the court on whether the district court properly allowed two witnesses to testify who were not on the Government's witness list. While he felt that the district court erred on that issue, the error was harmless.

* Fulks also pleaded guilty in relation to the other murder in the Southern District of West Virginia and received a life sentence.

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).