Forced Medication Requries Clear and Convincing Evidence

US v. Bush: Barbara Bush (no, not that one) was charged with two counts of threatening a federal judge. She suffers from "Delusional Disorder, Persecutory Type," which manifests itself in "extreme litigiousness" - she filed more than 100 civil suits since 1995, one of which exploded into this case. As part of that litigation, she wrote a letter to several federal judges whom she believed had wronged her, outlining a theory of self defense (taken from a 1907 treatise) that she concluded would allow her to "slay any of such persons or all of them" (or attempt to "if she misses") who might do her continued harm. A second letter followed shortly thereafter.

After being arrested on the threat charges, Bush was sent to FMC Carswell for an evaluation where she was diagnosed. The evaluation concluded that Bush was incompetent to stand trial but that medication could restore her competency. Bush refused to take the medication, so the Government moved for an order to forcibly medicate her. At one of several hearings, Bush's personal physician agreed with the diagnosis from FMC Carswell, but disagreed that medication would help. One of the FMC Carswell docs testified that despite the "common wisdom" that conditions like Bush's would not respond to medication, he disagreed, partly based a fresh study (done after Bush's evaluation) from FMC Butner. The district court ordered Bush medicated, applying the analysis from Sell v. US.

Bush sought an interlocutory appeal and the district court's order was stayed. On appeal, the Fourth Circuit unanimously reversed the district court and remanded for further proceedings. First, the court held that in order to obtain an order to forcibly medicate a defendant the Government must satisfy all four prongs of the Sell analysis by clear and convincing evidence, rather than a mere preponderance. Applying that standard of proof, the court found the record lacking on the second Sell prong - whether medication will "significantly further" the government's interest in prosecution - and remanded to the district court for further proceedings on that issue. The court also remanded because the district court failed to address whether forced medication was medically appropriate and would serve Bush's best medical interests.

Sex-Related SR Conditions Vacated in Threats Case

US v. Armel: Armel called a local FBI office in Virginia, claiming that the Bureau tried to kill him and owed him money. He called back shortly thereafter and claimed that if he didn't get "paid" the people in the office were "gonna' lose you're [sic] genitalia," that "God promised me he would curse you," and that if "[y]ou come and try to pull on me . . . [y]ou will die." He punctuated the final phone call (of three total) with a warning to "[g]et it straight or fucking die!" Armel was arrested and charged with threatening federal officials under 18 USC 115(a)(1)(B). After being convicted at a bench trial, Armel was sentenced to prison and a term of supervised release term that included special conditions involving pornography, contact with children, and mandated sex offender testing.

Armel appealed both his conviction and his sentence to the Fourth Circuit, which affirmed the conviction but vacated the special conditions of supervised release (Armel's term of imprisonment had ended by the time the case was decided).

On the conviction, the court concluded that there was sufficient evidence to support Armel's conviction, both because the statements at issue were true threats and they were directed to a small group of specific people (the employees in one particular FBI office) even if they were not directed at specific named individuals.

With regards to the supervised release conditions, the court found that, while the district court noted that they were "very rigid," it did not provide any basis for why such conditions were necessary in this case, in light of 3553(a). The conditions were not asked for by the Government, which did not argue that they were appropriate on appeal. Lacking any support in the record, the conditions were vacated and the case remanded for resentencing.

Congrats to the Defender office in the Eastern District of Virginia on the win!

Good Faith Saves Search Based on Anticipatory Warrant

US v. Andrews: Andrews was convicted of being a felon in possession of a firearm after officers recovered a gun during the search of his home pursuant to a warrant. The warrant was issued after a package was intercepted at the local FedEx depot that contained marijuana. Although it was not addressed to Andrews (by name or by street address), circumstances, including a call from the shipper modifying the address (still not Andrews's), led officers to believe it was meant for him. They obtained an anticipatory search warrant set to become effective once Andrews took delivery of the box. Andrews took delivery of the box, took it inside briefly, and then took it to another nearby home. He was arrested at that point and the search, which uncovered the gun, took place.

As before the district court, on appeal Andrews argued that the search of his home violated the Fourth Amendment. The Fourth Circuit disagreed (as did the district court, obviously) and affirmed his conviction. Applying Leon, the court concluded that the facts presented to the issuing magistrate were not so deficient such that they clearly failed to establish probable cause or that the magistrate acted merely as a rubber stamp for the officer. The court also rejected Andrews's argument that the officer who obtained the warrant had misled the issuing magistrate by leaving out relevant information about the location of the search.

Jurisdiction Proper in North Carolina to Prosecute Assault in Afghanistan

US v. Passaro: This case arises from an "interrogation" Passaro, a former special forces medic (apparently a civilian contractor at the time of the incident), inflicted upon an Afghan detainee at a small US base in Afghanistan in 2003. The interrogation consisted mostly of beating and kicking (the suspect died shortly thereafter), which led to Passaro being charged and convicted of assault with a deadly weapon and assault resulting in serious bodily injury (two counts of each) and being sentenced to a 100-month term of imprisonment. The wrinkle is that, while the crime occurred in Afghanistan, it was prosecuted in the Eastern District of NC when Passaro returned to the United States.

On appeal, Passaro challenged his conviction and both he and the Government challenged his sentence. As to the conviction, Passaro first argued that the district court in North Carolina lacked the jurisdiction over acts committed in Afghanistan. The Fourth Circuit disagreed, arguing that the language of 18 USC 7(9) extended jurisdiction to incidents that happened at the US base in Afghanistan. The court also turned away Passaro's argument that the prosecution violated separation of powers principals because the courts were interfering with the executive's foreign policy authority, noting that the executive was the one that brought the prosecution in the first place. In addition, the court concluded that the statute under which Passaro was convicted, 18 USC 113, was not unconstitutionally vague, rejecting his argument that his "battlefield interrogation" could not be an "assault." Passaro's argument that the district court erred in dealing with classified information denied him a fair trial was similarly turned away.

As to sentencing, both Passaro and the Government agreed that the district court's Guideline calculations were wrong (although for slightly different reasons), therefore Passaro's sentence was vacated and the case remanded for resentencing.

DC Use of Presumption of Reasonableness Requires Resentencing

US v. Raby: Raby pleaded guilty to possession of child porn and faced a Guideline range of 210-262 months. Over the course of several sentencing hearings, during which Raby argued for a variance and the Government sang from the Guideline hymnal, the district court judge repeatedly stated that he didn't see how he could impose anything other than a Guideline sentence without getting reversed on appeal. In the end, he imposed a 210-month sentence, explaining that he wasn't at liberty to consider any of the several mitigating factors without being "unreasonable."

Years pass, as the case languishes on appeal. In the interim, the Supreme Court decides Gall and other cases that both uphold the presumption of reasonableness as an appellate review tool, but make clear that district court's cannot apply it at the initial sentencing. The Fourth Circuit, after lots of direct quotations from the numerous sentencing hearings, concluded that the district court erroneously applied the presumption at sentencing and, thus, Raby's sentence was procedurally unreasonable. His sentence was vacated and the case remanded for a new sentencing hearing.

Congrats to the defender office in the SDWV for the win!

Maker of Fake Money Not Necessarily a "Leader" of Operation

US v. Cameron: Cameron was caught trying to pass a counterfeit $20 bill at a store in Dunbar. Police who responded secured a second fake $20 and an admission from Cameron that he intended to pass it. Searches of Cameron's grandmother's home and his sister's home follow, uncovering various implements and equipment that could be used for making counterfeit bills. In particular, officers seized a computer from his sister's house that had, on the hard drive, a single image of a counterfeit $20 bill. Cameron went to trial and was convicted of producing and uttering counterfeit currency.

At sentencing, his offense level was enhanced under USSG 3B1.1(a) for being an "organizer or leader" of the counterfeiting operation. However, at sentencing, the Government's sole witness actually testified that she barely knew Cameron, didn't know much of his role in the operation, that he did not recruit her, nor did he get a cut of the scheme's proceeds. Nonetheless, the district court overruled Cameron's objection and imposed the enhancement. Cameron was sentenced to 46 months in prison.

On appeal, Cameron challenged both his production conviction and the application of the leadership enhancement. The Fourth Circuit affirmed the conviction, concluding that there was sufficient evidence collected from the two searches (there was no testimony from inside the operation at trial) to allow a jury to conclude that the Government met its burden of proof.

However, the Fourth Circuit vacated the sentence because of the application of the leadership enhancement. Reiterating both earlier precedent and Guideline commentary that the enhancement only applies to the supervision of other people, not property. It rejected the Government's argument that because Cameron made the bills he must have exercised some leadership role in the operation. The court also noted that the Guidelines provide a separate enhancement in counterfeiting cases for the person who actually makes the fake bills.

Congrats to the SDWV defender office on the win!

Failure to Give Justification Defense Requires Reversal of Felon-in-Possession Conviction

US v. Ricks: Ricks's partner, Blue, returned to their home after several days absence, acting strangely. Ricks noticed that Blue had a gun in his hand, so Ricks pinned him against the wall and knocked the gun out of his hand. Ricks then picked up the gun, removed the clip, and tossed the gun and clip away in opposite directions. Blue fled. Ricks picked up the gun and the clip and placed them (without putting the clip back in the gun) on a dresser in their bedroom and returned to the living room to watch TV. About 15 minutes later, Blue returned to the home with two police officers. Ricks admitted there was a gun in the house and admitted he had a prior felony conviction.

Ricks was charged with being a felon in possession of a firearm. At trial, he requested a jury instruction on justification, which the district court denied. The court concluded that such a defense was not available in this circuit, as the Fourth Circuit had never held that the defense existed. However, the district court indicated that, if the defense were available, it would apply in this case. Ricks was convicted at trial.

While he was awaiting sentencing, the Fourth Circuit decided the Mooney case, in which the Fourth Circuit held that failure to inform a defendant that the defense was available constituted ineffective assistance of counsel. The district court held a sue spontehearing as to what application Mooney had to Ricks's case. Reversing itself, somewhat, the district court concluded that although a justification defense was apparently available in the Fourth Circuit, it was not applicable in this case. Therefore, Ricks's conviction stood and he was sentenced to 180 months in prison.

On appeal, the Fourth Circuit unanimously reversed. The parties agreed on appeal that the district court's initial decision that the justification defense was not available in the Fourth Circuit was error. Therefore, the only issue on appeal is whether the facts of the case supported the jury being instructed about the defense. As to that issue, the focus was on what Ricks did with the gun after Blue fled their home. The Government argued that because Ricks left the gun in the home afterwards, he "had other reasonable alternatives to continued possession of the gun." The Fourth Circuit disagreed, essentially concluding that a properly instructed jury could have found otherwise. Critically, the court refused the Government's invitation to hold that the method of dispossessing the firearm in Mooney- turning it over to police as soon as possible - is the only means to do so. The Government also tried to argue that Ricks's constructive possession of the gun extended to the point where the police officers arrived, but the court concluded that there was insufficient evidence to concluded that Ricks intended to exercise continued dominion and control over the gun left in the bedroom.

Ricks's conviction, therefore, was reversed.

Congrats to the FPD office in the WDNC on the win!

Conspiracy Is "Violent Felony" Under ACCA

US v. White: White was convicted of being a felon in possession of a firearm and was sentenced as an Armed Career Criminal. The only issue on appeal was whether one of White's priors - a North Carolina conviction for conspiracy to commit robbery with a dangerous weapon - qualifies as a "violent felony" for ACCA purposes. The Fourth Circuit concluded that it does.

White argued that because conspiracy in North Carolina does not have an overt act as an element, it failed to present the a degree of risk similar to the offenses listed in the definition of violent felony. The court disagreed, noting that a defendant must intend the conspiratorial agreement be carried out in order to be guilty of the offense. In addition, the conspiracy offense is similar in kind to the other enumerated offenses in the ACCA.

Carjacking Conviction Affirmed Over Numerous Objections

US v. Blake: Blake and Tolbert were involved in a carjacking in Maryland, during which the driver of the car was shot in the head, run over, and killed. Tolbert was arrested shortly thereafter and gave a statement basically admitting to being part of the process but putting the gun in Blake's hand and the ideas in Blake's head. That statement provided probable cause to arrest Blake.

Once at the station, Blake demanded a lawyer and was placed in a cell. He received a notice of the charges to be filed against him, which incorrectly stated that he faced the death penalty (at 17, he was too young to qualify in Maryland). The notice of charges also included a summary of what Tolbert had told the officers. At one point, while Blake was in the cell, an officer not otherwise involved in the investigation who was accompanying the lead officer taunted Blake, saying "I bet you want to talk now, huh?" He was escorted out by the lead officer, who said, "no, he doesn't want to talk to us, you can't say anything to him, he asked for a lawyer." Later, when the lead officer went to take Blake some clothes, Blake asked if he could talk to him. Blake was re-Mirandized and gave a statement, admitting to being present during the carjacking, but putting the gun in Tolbert's hands.

Blake was charged in Maryland with murder. He moved to suppress the statements he made after his arrest, arguing that they were made in violation of his already invoked right to counsel. The case bounced around the Maryland courts and was eventually accepted for review by the Supreme Court, which later dismissed the case as having been improvidently granted. As a result, Blake was never convicted of the charges in Maryland. Blake was then charged in federal court of, among other things, carjacking causing death. He was convicted and sentenced to life in prison.

On appeal, Blake made several arguments attacking his conviction, all of which the Fourth Circuit rejected. First, Blake made the same argument that had been successful in the Maryland courts, that his statements should have been suppressed. The court disagreed, holding that the officer's taunt about Blake wanting to talk wasn't interrogation and therefore did not violate Blake's right to counsel. The fact that Blake was re-Mirandized and otherwise cooperative after asking to resume conversations with the lead officer was also key. Second, Blake argued that the federal court lacked jurisdiction over him because he was only 17 at the time of the crime and the Government had not complied with the procedures set forth in the Juvenile Delinquency Act.

The court also concluded that Blake was, in fact, not a juvenile by the time federal charges were brought (three months after his 21st birthday) and therefore the JDA had no application to him. The court also concluded that the trial court did not abuse its discretion by denying Blake's request for a mistrial based on statements made during the Government's opening statement, in allowing evidence about a polygraph examination Blake took, allowing a prosecution witness to testify sooner rather than later at trial, or in excluding as hearsay the testimony of a defense witness. Finally, the court rejected Blake's argument that the district court erred in instructing the jury on the death element of the carjacking offense.

Court Rejects Numerous Challenges to SORNA Conviction

US v. Gould: Gould was convicted of a sex offense in DC in 1985. After his release he moved several times in the states surrounding the District. He finally settled in Maryland in August 2006. He did not register as a sex offender, as required by state law. In July 2007, Gould was charged federally with failing to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"). He moved to dismiss the indictment on various grounds, but the district court declined to do so. He entered a conditional plea and was sentenced to 24 months in prison.

On appeal, the Fourth Circuit affirmed Gould's conviction, rejected several of the arguments he had raised below.

First, Gould had argued that SORNA could not be applied to him because, at the time of his indictment, Maryland had not yet updated its sex offender registration procedure to conform with SORNA requirements. In other words, because he could not register in the way SORNA set forth, he could not be convicted for failing to do so. The court concluded otherwise, holding that the criminal provisions of SORNA are separate and apart from the spending/state mandate provisions of SORNA that requires action from the states. Maryland had a means for registration and Gould's failure to avail himself of it was sufficient. For similar reasons, Gould's ex post facto claim was also rejected.

Second, Gould argued that he could not comply with SORNA's registration requirement because it requires registration before completion of a sentence, which he completed in 2002, prior to SORNA's passage. The court noted that this argument "bootstraps on his first argument" due to Maryland's failure to come up to SORNA standards with its registration scheme. Regardless, because Maryland law required Gould to register when he came to the state, SORNA applied to him. The court also noted that Gould was aware of his general duty to register, as he had done so in other states before he moved to Maryland. He was not in the (very small) category of offenders who wasn't required to register with anybody until SORNA's passage.

Third, Gould argued that it could not be proven that he "knowingly" failed to comply with SORNA registration requirements because the Government never notified him of those requirements, as the law requires. However, the court held that the word "knowingly" modifies "fails to register" and thus relates to the Maryland state requirement that he register, not SORNA's specific requirements. Conviction under SORNA does not require knowing that a failure to register violates federal law.

Fourth, Gould argued that the interim regulations promulgated by the Attorney General clarifying that SORNA applied to defendants convicted before it was enacted violated the Administrative Procedures Act. The regulation was enacted without notice and without the required 30-day waiting notice. The court concluded that the AG had good cause to do so, given the "need for legal certainty about SORNA's 'retroactive' application . . ." Delay "could reasonably be found to put the public safety at greater risk."

Finally, Gould argued that SORNA exceeded the scope of Congressional power under the Commerce Clause. The court noted that one of the elements of a SORNA offense is that the defendant "must travel in interstate commerce" and that the Act applies even when the act of failing to register is purely intrastate. The court pointed out several other statutes that criminalize "local acts" undertaken after interstate travel. As explained by the court, "[t]here must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register." That conclusion is in line with other circuits have decided the issue.

Judge Michael dissented, arguing that the AG's reason for promulgating a rule without following the APA procedures was inadequate. Because Gould's conviction relied upon that regulation, it must be reversed.

Court Affirms Drug, Gun Convictions Against Multiple Claims of Error

US v. Jeffers: Jeffers was involved with crack distribution in western Virginia. After a three-day trial, he was convicted of conspiracy to distribute 50 grams or more of crack and carrying a firearm in connection with that offense. He was sentenced to a total of 302 months in prison. He raised several challenges on appeal to his conviction and sentence, all of which the Fourth Circuit rejected.

First, Jeffers argued that his due process rights were violated when certain proceedings were held but not transcribed by the court reporter, particularly the charge conference. While noting that Jeffers had a due process right to an appeal with a complete transcript, the court concluded that there is no requirement that the charge conference be held in open court and that counsel had ample opportunity to make any objections to the jury instructions on the record.

Second, Jeffers argued that the evidence was insufficient to sustain the firearm conviction. The court noted that several witnesses linked Jeffers to firearms in relation to drug trafficking and concluded that, in the light most favorable to the Government, the evidence was sufficient.

Third, Jeffers raised several instructional errors relating to the conspiracy charge, including the failure to give a multiple conspiracy instruction, giving an instruction allowing the inference of guilt from attempts to conceal himself after indictment, and the failure to instruct the jury to determine the amount of crack attributable to Jeffers. The court rejected all those argument on a plain error review, as none of them had been preserved at trial.

Fourth, Jeffers challenged two aspects of his sentence: the amount of crack attributed to him and the imposition of a $25,000 fine. The court held that the determination of relevant conduct was amply supported by the evidence in the record and that the fine was not imposed in retaliation for Jeffers not providing financial information to the probation officer on Fifth Amendment grounds.

Finally, Jeffers argued that the Government failed to abide by the discovery provisions in Rule 16 of the Rules of Criminal procedure in that it would not allow him to have copies of certain documents related to controlled buys in the case, although his counsel had access to them at the US Attorney's office. While concluding that the Government failed to abide by the terms of Rule 16, the court held that Jeffers failed to show how he was prejudiced and thus the error was harmless. The court also concluded that Jeffers was not entitled to an acquittal of his convictions under Brady for material that related to several other charges for which he was acquitted.

Evidence Not Sufficient for Enhanced Statutory Drug Penalties

US v. Kellam: Kellam and his codefendant were convicted on multiple drug counts and, on appeal, each alleged multiple errors at trial. Although the Fourth Circuit affirmed their convictions, the court vacated Kellam's life sentence.

That sentence was imposed after the Government filed an information under 21 USC 851 alleging Kellam had prior convictions that made her eligible for an enhanced sentence. In response to the 851 information, Kellam disputed both of the alleged prior convictions and argued that the Government and not proven beyond a reasonable doubt that she had been convicted of them. The Government produced certified copies of the criminal dockets in the two cases, which the district court concluded proved the convictions.

On appeal, the Fourth concluded that it was "unable to conclude" that the Government had met its burden of proof with regards to the prior convictions. The district court made no finding, and the Government made no effort to prove, that Kellam was the same person named in the documents showing the prior convictions. No photographic or fingerprint evidence was produced to link Kellam with the prior convictions. In addition, the district court failed to ask Kellam at the hearing whether she affirmed or denied that she had been previously convicted. In summary, the court concluded that it was possible, "or perhaps probable," that Kellam was convicted of the prior offenses, but such speculation does not satisfy the burden the Government has to prove that fact beyond a reasonable doubt.

No Mistake of Age Defense for Child Porn Manufacture

US v. Malloy: Malloy and a friend twice had sex with a 14-year old girl, one of the times being videotaped by Malloy. He was charged and convicted of sexual exploitation of a minor for the purpose of producing a visual depiction and sentenced to the mandatory minimum sentence of 180 months.

On appeal, the Fourth Circuit affirmed both Malloy's conviction and sentence. As to his conviction, Malloy raised three arguments that the court rejected. First, he argued that a mistake of age defense must be read into section 2251(a) for it to pass First Amendment muster, as without it the statute is overbroad and chills protected speech. Second, he argued that because the indictment charged that he acted "knowingly," although that was not an element of the offense and thus not charged to the jury, the charge against him was constructively amended. Third, he argued that the statute as applied to him exceeded Congress's authority under the Commerce Clause. As to Malloy's sentence, the court rejected his argument that the mandatory minimum penalty violated the Eighth Amendment.

Indicment for Conspiracy Must Define Elements of Underlying Offense

US v. Kingrea: This case arose from a raid on a cockfighting venue in Virginia. Kingrea was there as a vendor of equipment and materials used in the fighting, but did not have an animal involved in the fighting. He was charged with conspiracy to sponsor or exhibit and animal fighting venture and illegal gambling business, conspiracy to sell animal fighting equipment, aiding and abetting the animal fighting operation, and conducing an illegal gambling business. The district court dismissed the substantive animal fighting operation count, but Kingrea was convicted on the other three counts and sentenced to six months in prison and six months of home confinement.

On appeal, the Fourth Circuit reversed Kingrea's conviction on the conspiracy count, while affirming on the other two. On the conspiracy count, the court concluded that the indictment failed to state a necessary element of the offense - that the underlying conspiracy involve "an animal fighting venture" and that the inclusion of that element in the jury instructions amounted to a constructive amendment. The court rejected the Government's argument that because the missing element was part of the object of the conspiracy was not a constitutional error. The court affirmed Kingrea's other two convictions and remanded his case for resentencing.

Court Narrows Understanding of "Best Evidence" Rule

US v. Smith: Smith was charged with (among other things) being a felon in possession of firearms and possessing firearms in connection with a drug trafficking offense. At trial, the Government presented testimony from an ATF agent who explained that all the firearms were manufactured out of state (and therefore traveled in interstate commerce), based upon his review of ATF databases and written reference materials. Smith objected to that testimony, arguing that without entering the materials upon which the agent relied into evidence, allowing his testimony violated the best evidence rule of FRE 1002. The district court disagreed and allowed the testimony. Smith was convicted and sentenced to 197 months in prison.

On appeal, the Fourth Circuit affirmed Smith's conviction. The court concluded that Smith's argument rested on a "misconception" of FRE 1002, namely that it required the Government to produce the "best evidence" of the information to which the agent testified. In fact, FRE 1002 is better understood as the "original document rule," as it is designed to require production of an original document "to prove the content" of it. The Government never sought to prove the contents of the materials upon which the agent relied, only that the firearms at issue moved in interstate commerce.

The Fourth Circuit did vacate Smith's sentence, as the district court employed a presumption of reasonableness for the Guidelines when it imposed sentence.

Non-Governmental Interception of Phone Calls Requires Suppression

US v. Crabtree: Crabtree was on supervised release, living with his girlfriend. When she became suspicious about Crabtree's relationship with his ex-wife, she began taping his phone calls. Among other things, the calls showed Crabtree threatened to burn down the ex's home and truck (I assume - it's difficult to say whether the threat was to the ex or the girlfriend, from the way the opinion is written) and set up a third party to be arrested. The girlfriend called Crabtree's probation officer to report that she was throwing him out of the house and turned over the recordings. Crabtree was charged with 13 supervised release violations, the most serious of which sprang from the recorded phone calls. After considering those recordings, the district court revoked Crabtree's term of supervised release and sentenced him to 24 months in prison.

On appeal, the Fourth Circuit vacated and remanded for further proceedings. First, the court noted that the girlfriend clearly violated the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 because neither Crabtree nor his ex consented to the recording and the girlfriend was not a party to the conversations. Second, the court noted that 18 USC 2515 generally excludes the use of evidence procured in violation of Title III. Finally, the court rejected the district court's reading of a "clean hands" exception into section 2515. Noting that the circuits are split on whether such an exception exists, the Fourth sides with the majority and agrees that it does not. The language of 2515 is clear and has no "gaps or shadows in the language that might leave lurking a clean-hands exception."

Although there were other violations found by the district court, those based on the recordings were the most serious and thus required remand.

Congrats to the defender office in the Western District of Virginia on the win!

Gun On Person Possessed "In Connection With" Simple Possession Felony

US v. Jenkins: Jenkins (aka "Big Tim") was confronted by Charleston, South Carolina, police, while carrying a firearm. After he was arrested, officers noticed "a white rock-like substance between his fingers, later identified as .29 gram[] of cocaine base" while processing him. Jenkins was charged and pleaded guilty to being a felon in possession of a firearm. At sentencing, his offense level was enhanced four levels because he possessed the firearm "in connection with another felony offense" - the possession of cocaine base. Jenkins objected to the enhancement, but the district court applied it and sentenced him to 71 months in prison.

On appeal, the Fourth Circuit affirmed. Jenkins conceded that he committed another felony offense, but argued that his possession of the firearm was not done in connection with it. The court disagreed, concluding that Jenkins's possession of the firearm facilitated, or had the potential to facilitate, his possession of drugs. "[I]t is clear," the court wrote, "that the possession of a firearm can facilitate a simple drug possession offense," as it provides a means for the user to protect his stash and the investment therein. In Jenkins's case, the fact that he took a gun out into the street where a shot had recently been fired showed "there was a heightened need for protection and that the firearm emboldened" him.

Disqualification of Counsel Did Not Vioalte Sixth Amendment; Court May Hear Appeals Filed Outside 10-Day Window

US v. Urutyan: Urutyan was convicted of fraud, conspiracy, and aggravated identity theft, based on a scheme to collect PINs from an ATM at a convenience store where he (and other conspirators) worked. Once they had the numbers, the conspirators withdrew about $600,000 from various accounts and wired the money to Russia and Armenia. Urutyan was initially represented by appointed counsel, but eventually retained a California attorney to represent him. Investigation prior to trial revealed that the attorney was being paid by a nearly anonymous third party, likely from some of the proceeds of the conspiracy, and that the attorney was not properly accounting for the cash payments made with the IRS. After a hearing, the district court disqualified retained counsel. Urutyan went to trial with retained local counsel and was convicted.

On appeal, the Fourth Circuit affirmed Urutyan's convictions, rejecting the only argument presented, that the district court violated his Sixth Amendment right to counsel when it disqualified the California attorney. The court concluded that the district court did not abuse its discretion in disqualifying counsel due to a serious potential conflict of interest, given the investigation into the source of the funds with which he was retained (and the implication that counsel was part of the grander conspiracy).

Before reaching that issue, the Fourth concluded, in line with all other circuits to reach the issue, that the failure to file a timely notice of appeal is not a flaw of jurisdictional dimension, preventing the court from hearing an appeal. Applying recent Supreme Court precedent, the court concluded that the non-statutory 10-day deadline to file a notice of appeal is a claim processing rule, not a jurisdictional requirement.

Plain Error Sinks Unknowing ACCA Plea

US v. Massenburg: Massenburg pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the probation officer concluded that he was an armed career criminal. At sentencing, Massenburg objected on Apprendi/Blakely grounds and also that the prior offenses were all part of the same course of conduct and should be counted as only one qualifying prior conviction. The district court disagreed and sentenced Massenburg to 210 months in prison.

On appeal, Massenburg raised a new argument - that he should be able to withdraw his guilty plea because he was not informed of the possibility of being sentenced as an armed career criminal. Although the court has found such a failure to require reversal in earlier cases, because Massenburg did not make an objection on the issue in the district court he was stuck with plain error review. Under that analysis, although there was error and it was plain, Massenburg could not show a "reasonable probability that, but for the error, he would not have entered the plea."

Limited Consent to Search Means Limited Consent

US v. Neely: Neely was pulled over late at night in Charlotte, NC, after leaving a parking lot in a high crime area without turning his lights on. After the officer received a valid license and registration, he gave Neely a verbal warning about the lights. He then asked, before returning the license and registration, whether Neely had any "guns, weapons, grenades, bazookas [in the vehicle]." Neely said he did not, but offered to let the officer search the trunk. After Neely searched (in vain) for the trunk release button, the officer ordered Neely out of the car. He complied, giving his keys to the officer, who then patted him down, and had him sit on the hood of the police car. Although the pat down didn't uncover anything, the officer started questioning Neely about why he was out so late at night. When backup arrived, the officer began to search the passenger compartment of the car, but not the trunk. In the passenger compartment, he found a gun. Neely was charged with being a felon in possession of a firearm. After a denial of his motion to suppress, Neely pleaded guilty to that offense.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. First, the court concluded that the officer's search exceeded the scope of Neely's consent to search the trunk. Specifically, it rejected the district court's conclusion that Neely's handing of keys, generally cooperative manner, and failure to object to the search of the passenger compartment broadened the scope of his consent to search the trunk. Second, the court concluded that the search was not a proper protective search because the officer could not have reasonably believed that Neely was dangerous when he began the search.

Congrats to the defender office in the WDNC on the win!

District Court Must Explain Why Sentence Is Appropriate to Specific Case

US v. Carter: Carter assisted some friends of his in their licensed firearm sales business. Unfortunately, they were selling short-barrelled rifles at gun shows, which led to an ATF investigation. As part of that investigation, Carter's home was searched and it was learned he was a convicted felon. Charged with multiple firearms offenses, Carter pleaded guilty to one count of being a felon in possession of a firearm. His Guideline range at sentencing was 36 to 46 months, although if his objections to the calculations were sustained, the range would have been 10 to 16 months and in a range that allowed probation. The district court overruled all the objections, but nonetheless varied from the Guidelines and imposed a sentence of probation. The Government appealed.

The Fourth Circuit vacated Carter's sentence and remanded for further proceedings. The court concluded that the district court had not sufficiently explained why the sentence it imposed was appropriate in Carter's case. Although the court made some statements, they did not apply to Carter's case specifically, such that they "could apply to any sentence, regardless of the offense, the defendant's personal background, or the defendant's criminal history." The court continued that "a talismanic recitation of the 3553(a) factors without application to the defendant being sentenced does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review." Finally, the court noted that while in pre-Booker times it could assume that the district court adopted Carter's arguments, the current sentencing scheme prohibits such a presumption. Thus, the sentence was procedurally unreasonable.

Use of Peer-to-Peer Network Triggers Child Porn Distribution Ehancement

US v. Layton: An informant told cops they say Layton looking at child porn on his computer. Cops went to investigate and questioned Layton, who gave a statement admitting to downloading porn, that there were a few thousand images on his computer, and that he used a peer-to-peer software called WinMX. He pleaded guilty to possession of child porn. At sentencing, he objected to enhancements based on the number of images, their type (i.e., masochistic), and that he "distributed" them via the WinMX software. Layton's arguments were based largely on factual issues that he alleged were left out of the investigators' report of the investigation. The district court rejected all Layton's arguments and sentenced him to 97 months, the bottom of the Guideline range.

Layton appealed his sentence, which the Fourth Circuit affirmed. After brushing aside Layton's fact-based claims on the number and types of images he possessed, the court moved on to the issue of whether his offense involved "distribution" of child porn via the file sharing WinMX software under USSG 2G2.2(b)(3). Noting that the other circuits have all concluded that use of peer-to-peer file sharing software constituted distribution, the Fourth Circuit agreed. The court concluded that "[w]hen knowingly using a file-sharing program that allows others to access child pornography files," the enhancement is appropriate. Finally, the court concluded that Layton's sentence was procedurally and substantively reasonable (without reference to the presumption of reasonableness, oddly).

Defendant "Found" By ICE Detainer After State Arrest

US v. Sosa-Carabantes: Sosa-Carabantes was arrested on state charges in North Carolina after illegally reentering the United States. While in state custody, ICE placed a detainer on him via a local officer who had been certified to screen state arrestees for immigration violations. Sosa-Carabantes eventually was convicted and sentenced on the state charge. He was then indicted for illegal reentry in federal court, to which he pleaded guilty. At sentencing, the parties disagreed on whether Sosa-Carabantes's state conviction should figure in the calculation of his criminal history score under the Guidelines. Sosa-Carabantes argued that because he was "found" by ICE prior to the state sentence being imposed, it should not be counted. The district court disagreed and sentenced Sosa-Carabantes to 46 months in prison.

On appeal, the Fourth Circuit vacated Sosa-Carabantes's sentence. The court concluded that the crucial issue was ICE found Sosa-Carabantes. It noted that on the day Sosa-Carabantes was arrested, ICE lodged a detainer with the local authorities that identified him by name, birth date, place of birth, and A-file number. Thus, he was "found" at that point. The court turned away the Government's argument that Sosa-Carabantes could not be found before a full investigation had been completed.

Congrats to the Defender office in WDNC for the win!

Notice Required For Trespass Conviction

US v. Madrigal-Valadez: Madrigal-Valadez was convicted after a bench trial of entering a military installation, Fort Lee in Virginia, for a purpose prohibited by law. That purpose, allegedly, was being an alien in the United States illegally. The conviction arose from an incident in which Madrigal-Valadez drove a soldier back to Fort Lee. When his vehicle was stopped to be checked out prior to entry, Madrigal-Valadez could not present the proper identification needed to satisfy Fort Lee's entry requirements. He was arrested at that time.

On appeal, the Fourth Circuit reversed Madrigal-Valadez's conviction. Addressing an issue not before resolved in this circuit, the court concluded, in line with several other circuits, that before a person can be convicted of this trespass offense he must be provided notice that entry onto the military property is prohibited. Although there was a sign on the road to the gate that provided some notice (albeit in English, which Madrigal-Valadez didn't speak), it was not sufficient because once someone turned onto that road they were already on the base. Thus, Madrigal-Valadez's conviction could not stand. The court also rejected the district court's conclusion that Madrigal-Valadez's illegal immigration status could constitute a "purpose prohibited by law" for which he entered the base.

Congrats to the Defender office in the EDVa on the win!

Court Affirms Conviction, Death Sentence, Arising from Multi-State Spree

US v. Basham: Basham, along with a co-defendant, escaped from jail in Kentucky and embarked on a multi-state crime spree that stretched from Indiana to South Carolina. Along the way, the two kidnapped one man in Kentucky, who managed to escape, and two women in West Virginia and South Carolina, who were never seen again. Basham was finally apprehended in Kentucky. He was indicted in South Carolina for carjacking that resulted in death and kidnapping that resulted in death, along with other charges. After a jury trial, he was convicted of those offenses and sentenced to death.

On appeal, Basham raised six challenges to his conviction and sentence, all of which the Fourth Circuit rejected. Each involves a detailed set of facts that cannot be reported here.

First, Basham argued that the district court should have granted his motion for a new trial when it came to light that the jury foreperson had contacted various local news outlets during the trial. Relying on the evidence developed during countless hearings on the matter, the court concluded that the district court had not abused its discretion in concluding that the Government had rebutted the presumption that the juror's actions were prejudicial.

Second, Basham argued that the district court erred by removing his initially appointed counsel because they might have to be witnesses during trial (due to their role in some searches for the victim's body once Basham was arrested). The court concluded that the district court did not abuse its discretion, even though it later ruled that the testimony of those counsel was not admissible at trial.

Third, Basham argued that the district court erred by allowing the Government to introduce certain "bad act" evidence during the guilt phase. The court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.

Fourth, Basham argued that the district court erred by admitting certain evidence at the penalty phase. As with the trial evidence, the court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.

Fifth, Basham argued that the district court erred by not including the "catch all" mitigator on the verdict form for the penalty phase. The court concluded that, in light of the instructions informing the jury of its ability to rely on any mitigating factor, that the absence of the catch all from the form was not error.

Finally, the court concluded that Basham's sentence was not imposed "under the influence of passion, prejudice, or any other arbitrary factor."

New DNA Evidence Allows Plea Withdrawal

US v. Thompson-Riviere: Thompson-Riviere pleaded guilty to being an alien who illegally reentered under 8 USC 1326(b)(4) after being deported to his native Panama. He was born in the Canal Zone in 1965. After entering the plea, however, he learned from a newly discovered relative that his actual father was an American citizen. If that was the case, Thompson-Riviere would also be an American citizen and, thus, could not be an "alien" under 1326 (b)(4) and could not be guilty of the offense. He sought to withdraw his plea, but the district court refused to allow him to do so. Thompson-Riviere was sentenced to 87 months in prison.

On appeal, the Fourth Circuit reversed and remanded for further proceedings. The focus of the court's analysis was one of six factors to be considered when a defendant seeks to withdraw his guilty plea, "whether the defendant has credibly asserted legal innocence." The court concluded that the district court abused its discretion in concluding such an assertion had not been made. After a careful analysis of the relevant statutes and a Second Circuit case that dealt with the same language, the court concluded that Thompson-Riviere's evidence, if believed, would render him not guilty of the offense.

Congrats to the Defender office in the EDVa on the win!

Search, Conviction Upheld, Sentence Vacated in Drugs/Guns Case

US v. Perry: Perry was convicted on drug and gun charges following both a search of his home and a series of controlled buys. Perry unsuccessfully sought to suppress marijuana and firearms found during the search as well as incriminating statements made that day. He was convicted (but not on all counts) after a jury trial and sentenced to 230 months in prison.

On appeal, Perry made several attacks on his conviction, all of which the Fourth Circuit turned away. First, Perry argued that the marijuana and firearms found during the search of his home should have been suppressed because those objects were not specified as the targets of the warrant and the warrant was not supported by probable cause. The court concluded that there was sufficient probable cause to justify the search and that the warrant covered both "other controlled substances" and "firearms and weapons," thus the seizure was within its scope.

Second, Perry argued that statements he made while the search was ongoing should have been suppressed. Specifically, he argued that he was seized by police and not properly Mirandized when they came to his place of employment and drove him back to the house. The court affirmed the district court and concluded that it had not abused its discretion in concluding that Perry was not seized at that point and thus no Miranda warnings were needed. Third, Perry argued that there was not sufficient evidence to support a conviction under 924(c) based on firearms found in his home. The court disagreed, noting the proximity of the firearms to the marijuana in the house as well as concluding that the guns were part of Perry's plan to "protect his business dealings" along with the video surveillance system used at the house.

Finally, the court rejected Perry's arguments that the 924(c) conviction amounted to an impermissible amendment of the indictment and that the jury instructions on that count were flawed.

As to Perry's sentence, the court turned away Perry's argument that the district court erred by using acquitted conduct as a basis for determining his Guideline range. However, the court did remand Perry's sentence for reconsideration in light of Kimbrough, given that Perry unsuccessfully argued for a variance from the crack-related Guideline range based on the inequities inherent in the 100-to-1 powder/crack ratio.

Court Reverses SORNA Convictions

US v. Hatcher: This case was a consolidated appeal of several cases where the defendants were convicted of violating the Sex Offender Registration and Treatment Act ("SORNA") by travelling interstate without properly updating their registrations as sex offenders. The defendants all shared the common traits that: (a) they were convicted in state courts of sex offenses in states that require registration; (b) they served their sentences and were released from prison before SORNA was enacted; (b) the travel which took place and became the basis for the charges against them took place after SORNA was enacted, but prior to July 27, 2006. That date is crucial, because that it when the Attorney General promulgated regulations under 42 USC 16913(d) setting forth how particular groups of sex offenders could comply with SORNA. All the defendants moved to dismiss their indictments on several grounds, all of which were denied.

On appeal, the Fourth Circuit reversed,2-1, but narrowly. The court avoided issues of congressional authority, ex post facto, and due process violations by concluding that the defendants weren't covered by the terms of SORNA due to the timing of the events in their cases. Section 16913(d) delegates to the Attorney General the authority to determine how SORNA will apply to those who cannot comply with its requirements going forward, i.e., before their release from prison. The court concluded that a plain reading of that delegation showed that until the Attorney General promulgated regulations, SORNA did not apply to people like the defendants who were already out of prison. There is a circuit split on this issue, with the Eighth and Tenth Circuits finding that the language is ambiguous and interpreting SORNA to apply in such cases. The Fourth joins the Eleventh Circuit in holding otherwise.

Judge Shedd dissented, arguing that the majority read language out of context and that the plain meaning of the statute required compliance from the date of SORNA's enactment.

Congrats to the FPD office in WDVa on the win.

Divided Court Affirms Stat Max Sentence for Robbery

US v. Heath: Heath pleaded guilty to interference with commerce by robbery and being a felon in possession of a firearm. The facts underlying the conviction included the robbery of a convenience store and a burglary during which Heath stole 10 shotguns and rifles. Heath's advisory Guideline ranges were 100-125 months on the robbery and 100-120 months on the gun charge. The PSR laid out Heath's extensive criminal history, including prior convictions for stabbing someone in the chest and shooting a police officer. It also detailed his disciplinary problems during previous terms of imprisonment. The Government sought an upward departure due to the under representation of Heath's criminal history. The district court agreed and imposed a statutory maximum term of 240 months on the robbery charge, to be served concurrently with a 120-month sentence on the gun charge.

Heath appealed, arguing that his sentence was unreasonable. The Fourth Circuit, 2-1, disagreed and affirmed. The court found no procedural error in the district court's application of sentence. Emphasizing the deference which appellate courts much accord a district court's sentence in a post-Booker world, the court also concluded that the sentence was substantively reasonable. It probably didn't help that defense counsel admitted that heath "has the proverbial record as long as your arm and has acted violently, possessed weapons and, in common parlance, has been a bad actor all his life."

Judge Gregory dissented, arguing that the district court did not sufficiently explain why the statutory maximum sentence was needed in this case. It was another assertion of his "position that substantive reasonableness must encompass more than the rote recitation of 3553(a) factors that the Court has condoned in numerous post-Gall cases, and which it continues to condone today."

Alien Using Alias Not "Found" While In State Custody

US v. Uribe-Rios: Uribe-Rios was convicted of illegal reentry following deportation. After his reentry, he was arrested and convicted, under an alias, in North Carolina state court on drug charges in 2001. While serving his state sentencing, ICE lodged a detainer with NC authorities under the alias's name. Once released from state custody, Uribe-Rios admitted to ICE agents who he really was and was charged with illegal reentry. Uribe-Rios moved to dismiss the indictment, arguing that (1) he was "found" for purposes of the illegal reentry statute when arrested by NC officials, therefore the statute of limitations had run; (2) venue in the WDNC was improper because when the ICE detainer was lodged he was in custody in a facility in the EDNC; and (3) the time between his state arrest and conviction amounted unwarranted pretrial delay. The motion was denied, Uribe-Rios pleaded guilty, and was sentenced to 70 months in prison.

On appeal, the Fourth Circuit affirmed Uribe-Rios's conviction and sentence. The court rejected Uribe-Rios's argument about when he was "found," holding that being in state custody is not the same thing as being in federal custody, particularly when the person in custody is using an alias. The court also rejected the venue argument, noting that since Uribe-Rios wasn't "found" until turned over to ICE officials in the WDNC, venue was proper there. With regards to pretrial delay, the court concluded that Uribe-Rios was not prejudiced by not being able to serve his state and federal sentence concurrently, as no such right exists (it also seems to me that the proper time from which to measure "delay" would start with when he was "found" in 2006).

Applicable 3582 "Sentencing Range" Is Pre-Departure

US v. Donnell: This another retroactive crack case. To be eligible to receive a reduced sentence under 3582(c)(2), a defendant's sentence must be "based on" a sentencing range that was subsequently lowered by the Sentencing Commission. The issue in the pair of cases consolidated here was whether, in situations where the offense level but not the sentencing range changes (because the offense level is so high) and the defendants received a substantial assistance departure at sentencing, are the defendants eligible for a reduced sentence? The district courts said no.

The Fourth Circuit, again, agreed. The court rejected the defendants' argument that the proper "sentencing range" that must change is the one on which the district court relied after departing downward. Departures, the court concluded, do not result in a new sentencing range. The only sentencing ranges are those produced as the result of Guideline calculations. Therefore, regardless of the method used by the district court to arrive at its departure sentence, that does not constitute a new sentencing range that can be lowered by a future amendment to the Guidelines.

In spite of that holding, the Fourth Circuit did reverse one of the defendants' denials, as it turned out that the district court judge had worked on his original criminal case as an AUSA a dozen years ago. Both defendants also raised the informal brief argument raised in Hood (with similar results).

No 3582 Reduction in Statutory Departure Cases

US v. Hood: This is another case dealing with issues arising from the retroactive application of the amended crack Guidelines. In this case, actually two consolidated cases, the defendants were subject to mandatory minimum sentences of at least 240 months in prison, but received significantly shorter sentences (100 and 108 months) after providing substantial assistance. Each applied for a further reduction under the amended Guidelines. The district courts denied the motions, each holding that the sentences were not "based on" the changed Guideline ranges, but on the mandatory minimum sentence, which was greater than the Guideline ranges.

On appeal, the Fourth Circuit agreed. Even though the district courts referred to Guideline calculations when initially imposing sentence (as part of determining the extent of the departures), the sentences were still "based on" the mandatory minimum, as it became the Guideline approved sentence when the Guideline range was less than the statutory minimum. Furthermore, the only authority for the district courts to depart from the mandatory minimum came from statute, not the Guidelines, and made the scope of substantial assistance the only criterion in determining sentence.

Separately, both defendants argued that the Fourth Circuit's practice of sending 3582(c)(2) appeals to the "informal briefing" calendar under Local Rule 34(b) raises "serious constitutional problems" due to delay or denial of relief. Noting that the informal process may, in fact, be more streamlined (particularly for pro se appellants), the court concluded that in neither of these cases was there significant delay (Hood's case was decided less than six months after fling his notice of appeal) that raised due process concerns.

Court Affirmed "3 Strikes" Sentence

US v. Thompson: Thompson was convicted of bank robbery and sentenced to life in prison under the "three strikes" law, 18 USC 3559(c). The "strikes" in question are convictions for a "serious violent felony." If the defendant has two prior "strikes" and the current conviction is a "serious violent felony," a life sentence is mandatory. However, there is a "safety valve" provision for robbery convictions, allowing the defendant to escape a life sentence if he can prove by clear and convincing evidence that he did not use or threaten to use a dangerous weapon during the robbery.

Thompson admitted that he had two prior strikes, but argued that the current robbery conviction qualified for the safety valve. He also argued that increasing his statutory maximum sentence from 20 years to life on the basis of judicial factfinding violated his constitutional rights.

Both the district court and the Fourth Circuit rejected Thompson's arguments. On the facts of the case, the Fourth Circuit recounted the testimony of five witnesses who testified before the district court. While none of the witnesses could put a gun in Thompson's hand, two testified that he made threats involving shooting and one testified being scared for her life. Given that record, there was no clear error in the district court's determination that Thompson threatened to use a dangerous weapon. On the constitutional issue, the Fourth Circuit concluded there was no violation because the judicial factfinding at sentencing did not increase Thompson's sentence. No constitutional issue is present when the sentencing court, upon the finding of certain facts, can impose a lower sentence.

Non-Forcible Statutory Rape Not "Violent Felony" Under ACCA

US v. Thornton: Thornton was convicted of being a felon in possession of a firearm and body armor and sentenced under the Armed Career Criminal Act. At his initial sentencing, the district court identified four qualifying prior convictions. On remand from the Fourth Circuit, the district court concluded that two of those convictions were not "separate" offenses and that Thornton therefore had three qualifying prior convictions. One of those convictions was a Virginia conviction for "carnal knowledge of a minor" without the use of force. Thornton argued that the Virginia conviction was not a "violent felony" as defined by the Act. The district court disagreed and reimposed the ACCA sentence.

On appeal, applying the analysis from the Supreme Court's recent decision in Begay, the Fourth Circuit reversed the district court. The only issues in dispute where whether the Virginia offense was substantially similar to the offenses listed in the "violent felony" definition and whether it posed a "serious potential risk or physical injury." The Government focused on the risk inherent in the offense, which the court noted "ignores the Supreme Court's reasoning in Begay" that every offense that presents such risks meets the definition of violent felony. The court also rejected the Government's argument that the Virginia offense was similar to the enumerated offenses because it involved "constructive force," based on the inability of the minor to consent. The court noted that the ability to consent cannot change the fact that Virginia enumerates both forcible and nonforcible sexual offenses. To adopt the Government's analysis would be to render that distinction meaningless.

Congrats to the FPD office in Roanoke on the win!

NC Felony Stalking = "Crime of Violence" Under USSG 4B1.2(a)

US v. Seay: Seay was convicted of being a felon in possession of a firearm and sentenced to 96 months in prison. On appeal, he argued that the district court made two errors at sentencing and argued that his sentence was unreasonable. The Fourth Circuit concluded otherwise and affirmed.

On appeal, Seay first argued that his prior conviction for felony stalking in North Carolina was not a "crime of violence," as defined in USSG 4B1.2(a) and applied in 2K2.1. The Fourth Circuit, after first looking to the indictment to see in which of two possible ways Seay violated the statute, concluded that his conduct was "purposely carried out with the intended effect of placing a reasonably prudent person in fear of bodily harm." The statute, the court noted, requires "more than mere harassment," which is sufficient under some similar statutes in other states. Seay then argued that the district court erred in considering a risk assessment report prepared by a police officer based on an interview with Seay (done with permission of counsel). Without concluding whether there was error, the court held that any error would be harmless, as the record showed that the district court did not rely on the report in any meaningful way. Finally, Seay's argument that his sentence, an upward variance, was unreasonable was rejected by the court.

Court Affirms Conviction of Former VRS Member

US v. Vidacak: Vidacak was convicted on four counts of making false statements in immigration applications. The basis for the charges was Vidacak's failure to disclose/admit that he had been a member of the VRS (Army of the Republika Srpska) during the Bosnian Civil War. Part of the evidence against Vidacak at trial came from military documents and the testimony of two immigration officials to whom the false statements were allegedly made, via interpreters. Vidacak objected to the use of that evidence. He did so again on appeal.

The Fourth Circuit affirmed Vidacak's conviction, concluding that the district court did not abuse its discretion by admitting the challenged evidence. As to the military records, introduced into evidence by an investigator with the International Criminal Tribunal for the Former Yugoslavia at The Hague, the court concluded that they were sufficiently authenticated, even though the witness could not testify to being present when those particular documents were seized. The court also concluded that they were properly admitted as public agency records under FRE 803(8). As to the witness testimony, the court rejected Vidacak's argument that they could not testify unless they interpreters who translated at the interviews were present for cross examination.

Court Affirms Adult Prosecution of Juvenile in RICO Case

US v. Juvenile Male: This is an interlocutory appeal involving a juvenile defendant who was 17 when charged. He was later transferred to adult prosecution. The defendant appealed that transfer, on various grounds. He was initially charged by information with conspiring to participate in a racketeering enterprise, based on his alleged involvement with a gang called MS-13. After being transferred for prosecution as an adult, the defendant appealed to the Fourth Circuit, which remanded because the information failed to allege that the offense was a "crime of violence." On remand, the Government filed an amended information, alleging both that the offense was a crime of violence and also providing more detail in the charges. Two weeks later, the district court again transferred the defendant over for prosecution as an adult.

In this, the second appeal of this case, the defendant essentially made three groups of arguments: (1) that the information was constitutionally and/or otherwise insufficient; (2) that the transfer proceeding violated his Constitutional and statutory procedural rights; and (3) that the district court abused its discretion in transferring him for adult prosecution. After determining which specific issues it had jurisdiction to consider, the Fourth Circuit affirmed the actions of the district court. First, it concluded that the severity of the charges in the information demonstrated the "substantial federal interest" in prosecuting a juvenile, even if the information did not explicitly state such. Second, the court concluded that the proceedings did not violate his Sixth Amendment right to confrontation or his Fifth Amendment rights to silence and due process. Finally, the court concluded that the district court did not abuse its discretion by transferring the case for adult prosecution.

Court Sidesteps Guideline Ex Post Facto Issue

US v. Myers: Myers pleaded guilty to being a felon in possession of a firearm. The firearm at issue was one that had been listed in 18 USC 921(a)(30) as part of the assault weapons ban that lapsed in 2004. Applying the 2006 version of the Sentencing Guidelines (which were in effect at sentencing), the district court enhanced Myers's sentence six levels because the firearm was capable of accepting a large capacity magazine. Myers objected, arguing that the 2005 version of the Guidelines, in effect at the time of the offense, should be used. That version of the Guidelines did not have the large magazine enhancement, but applied a six-level enhancement if the firearm was listed in 921(a)(30). Since that section had lapsed before he committed the offense, Myers argued that the 2005 enhancement was no longer in effect and ex post facto prohibitions applied to prevent his sentence from being enhanced. The district court disagreed.

As did the Fourth Circuit. The court noted that Myers's ex post facto argument only made sense if the lapsing of the assault weapons ban automatically invalidated the 2005 Guideline enhancement provision. But that was not the case, as the Sentencing Commission has the authority to enhance sentences for conduct that is not criminal. Furthermore, the language of the 2005 enhancement only required that a particular weapon be listed in 921(a)(30), not that it be illegal to possess under the assault weapons ban.

In a footnote, the court explained that its resolution of the issue on that ground made it unnecessary to address the Government's argument about the scope of ex post facto protections in a post-Booker world (a topic on which some other courts have split).

Failure to Impose Fine Not Clear Error

US v. Fields: In 2006, Fields was initially sentenced to a term of 12 months in prison (following a conviction for making a false loan application) and a $2000 fine, in spite of the district court concluding that Fields did not have the ability to pay a fine. He appealed and the Fourth Circuit vacated the sentence and remanded for resentencing.

At resentencing, the district court imposed the same 12-month sentence and made the same finding about Fields's ability to pay a fine. However, the district court did not reimpose the $2000 fine. Four days later, the district court sua sponte convened a new sentencing hearing and imposed a $2000 fine. Over Fields's objection, the district court explained that it knew "exactly what [it] had in mind" and that it "intended to impose a fine" at resentencing. The district court cited Rule 35(a) of the Rules of Criminal Procedure as the basis for fixing its "clear error."

Fields appealed the imposition of the fine. The Fourth Circuit vacated the sentence and remanded with specific instructions to impose the first sentence imposed at resentencing - without the fine. The court explained that the "clear error" conceived by Rule 35(a) is a narrow class and, at the least, requires some act that would be reversible error on appeal. No such error occurred at the resentencing hearing when the district court failed to impose a fine. However, the court recognized that had the district court made clear its intent to impose the fine at the resentencing hearing, the failure to do so might have fallen into the Rule 35(a) exception.

Congrats to the FPD office in South Carolina on the win!

Court OKs Warrantless Cell Phone Search, Auto Inventory Search

US v. Murphy: Murphy was convicted of conspiracy to distribute narcotics. The evidence against him consisted largely of items found following a traffic stop of a car in which Murphy (and two others) were riding. Murphy sought to have two pieces of evidence suppressed - information taken from his cell phone and more than $14,000 in cash recovered from a bag in the car's trunk. The district court denied Murphy's motion to suppress.

On appeal, the Fourth Circuit affirmed the district court and Murphy's conviction. As for the cell phone, the court first concluded that it was lawfully seized from Murphy during a search incident to a lawful arrest. Second, the court concluded that due to the potential loss of information from the cell phone, its contents could be viewed by the officers without waiting for a warrant to be obtained to search its contents. As for the currency, the court rejected Murphy's argument that the search of the vehicle was not a proper inventory stop.

Appeal Waiver Precludes Booker Relief

US v. Linder: A cautionary tale on the long arm of appeal waivers. Linder pleaded guilty to a drug charge with a plea agreement that included a waiver of any appellate rights. The guilty plea was entered before Blakely, but sentencing was delayed until the Fourth had incorrectly concluded that Blakely didn't apply to the Guidelines. Consistent with the Fourth's decision in Hammoud, the district court rejected Linder's Sixth Amendment objections to the Guidelines calculations and imposed a sentence of 262 months and announced an alternative sentence of only 120 months.

Linder appealed, seeking relief under Booker, but the Fourth rejected his arguments due to the appellate waiver. Linder then filed a motion under 28 USC 2255 (that right had not been waived), asking the district court to impose the alternate sentence. The district court denied to do so, concluding that Booker did not apply to Linder's case.

On appeal, the Fourth Circuit affirmed the district court, though on different reasoning. The court concluded that Booker did apply to Linder's case, because it was not "final" until after Booker was decided. The appeal waiver provisions of the plea did not change the fact that Linder's appeal was pending when the Supreme Court acted. Nonetheless, applying Shea v. Louisiana, 470 US 51 (1985), the court concluded that the appeal waiver provision that required denying the direct appeal continued to foreclose relief. In other words, because the issue was properly dealt with on direct appeal, it could not be raised again in the 2255 proceeding.

No Fourth Amendment Protection from Video Surveillance in Open Fields

US v. Vankesteren: Fourth Amendment cases come with the oddest sets of facts. Vankesteren was charged and convicted of taking or possessing a migratory bird without a permit. Part of the evidence against him came from surveillance cameras set up to record action on Vankesteren's land where a trap was set. Vankesteren sought to have that evidence suppressed, arguing that it violated his expectation of privacy in his property. The district court disagreed and Vankesteren was sentenced to a fine of $500.

On appeal, the Fourth Circuit affirmed the conviction and the district court's decision not to suppress the video evidence. The court concluded that the trap at issue was located in an "open field," as it was outside the curtilage of Vankesteren's home, although it was on Vankesteren's property. Thus, Vankesteren lacked a reasonable expectation of privacy and could not invoke the protections of the Fourth Amendment. The court also rejected Vankesteren's argument that a higher standard of scrutiny should apply in cases where hidden video surveillance is used.

Convictions (on Fourth Attempt) Don't Violate Double Jeopardy

US v. Hall: Hall and his codefendant, Handy, were repeatedly prosecuted by the Government for their roles in a complex drug trafficking scheme. Twice they were tried in the District of Columbia, but the jury either acquitted or hung on the charges and mistrials were declared. The prosecution shifted to Maryland, where the defendants were tried twice. The first trial resulted in a mistrial after another hung jury. A second trial, at which the defendants were pro se, they were convicted on multiple counts, including conspiracy, use of a communications facility during a drug trafficking crime, and possession with intent to distribute.

On appeal, the defendants raised numerous procedural challenges to their conviction, all of which were rejected by the Fourth Circuit. First, the court concluded that the defendants were not subject to double jeopardy during the repeated prosecutions because the offenses of which they were ultimately convicted were not the same as the charges of which they were acquitted during the trials in DC. The court also concluded that there was no other double jeopardy violation in the multiple retrials. The court also turned away a collateral estoppel challenge to the conspiracy conviction, concluding that no facts essential to that conviction were previously resolved in the defendants' favor during the DC proceedings. Finally, the court concluded that there was no improper delay between the charging and conviction of the defendants.

Post-Sentence Confinement Statute Struck Down

US v. Comstock: This was a challenge to 18 USC 4248, a portion of the Adam Walsh Act that allows the Government to commit someone indefinitely who is a "sexually dangerous" person prior to the expiration of a federal criminal sentence. Comstock and the other defendants in this consolidated case had all been detained past the end of their criminal sentence under the law. The district court concluded that the law exceeded Congress's authority and intruded on powers reserved to the states.

On a Government appeal, the Fourth Circuit (as the first Circuit Court to deal with the issue) unanimously agreed with the district court and struck down the law. Relying on the Supreme Court's decisions in Lopez and Morrison, the court concluded that Congress's authority under the Commerce Clause did not extend so far as to reach the civil incarceration of people with no connection to interstate commerce. "Morrison," the court stated, "forecloses any such argument." The court also turned away the Government's argument that the Necessary and Proper Clause gave Congress the authority to enact the law as part of its general ability to maintain a criminal justice and penal system.

Congrats to the FPD office in Raleigh for the win!

Begay Trumps James

US v. Roseboro: Remember US v. James from 2003, in which the Fourth concluded that a conviction in South Carolina for "failing to stop for a blue light" was a "violent felony" under the ACCA? In this case, the court jettisons James in the wake of the Supreme Court's Begay decision and comes to the opposite conclusion. Roseboro had three prior convictions under the South Carolina statute, which (under James) made him an Armed Career Criminal and increased his Guideline range from 84 to 105 months up to 262 to 327 months.

Examining Begay, the Fourth Circuit concluded that it was "markedly different" from the analysis in James and the court was bound to apply the Supreme Court's analysis. Doing so, the court noted that the South Carolina statute allows convictions both for intentional and unintentional violations of the statute and therefore does not involve the "purposeful, violent, and aggressive conduct" which triggers "violent felony" status. Noting that other circuits had come to the same conclusion, the court concluded that "when a statute does not require deliberate or purposeful conduct, a conviction under such a statute will not be considered a violent felony . . .."

Judge Niemeyer dissented, on two grounds. First, he argued that Begay did not, in fact, overrule James, due to the differences between the state statutes at issue in the two cases. Second, he argued that, even applying the Begay analysis, the South Carolina offense is still a violent felony for ACCA purposes.

Congrats to the Federal Defenders of Western NC for the win!

No Variances in 3582(c)(2) Proceedings

US v. Dunphy: Dunphy pleaded guilty to possession with intent to distribute in 2003 and was sentenced to 135 months in prison, the bottom of the Guideline range. After the 2007 crack amendments to the Guidelines were made retroactive, she sought a reduction in her sentence under 18 USC 3582(c)(2). The bottom of the new Guideline range was 108 months, but Dunphy argued for a larger reduction, arguing that the district court was not limited to imposing a sentence somewhere within the new Guideline range. The district court disagreed and imposed a sentence of 108 months.

On appeal, the Fourth Circuit affirmed the sentence, concluding that the district court's authority was limited to imposing a new sentence within the newly calculated Guideline range. It rejected both of the arguments Dunphy presented arguing otherwise.

First, it rejected Dunphy's argument that under Booker, the district court must treat the Guidelines as advisory, not mandatory, in sentence reduction cases. The court noted that Booker's excision of specific parts of the sentencing statutes did not impact 3582(c)(2) and that the Guidelines were already advisory in such cases (due to the fact that a court was not required to reduce a sentence at all).

Second, it rejected Dunphy's argument that a full consideration of the 3553(a) factors was not possible with the limitations in a system in which the district court could not impose a sentence below the Guideline range.

Request for Money + Metion of Gun = Bank Robbery

US v. Ketchum: Ketchum walked into a North Carolina bank and handed a teller a note which read "[t]hese people are making me do this." He then told the teller that "[t]hey are forcing me and have a gun. Please don't call the cops. I must have at least $500." The teller gave Ketchum $1686 and he left the bank, only to be arrested shortly thereafter. He was charged with one count each of bank robbery and bank larceny. The parties agreed on the factual basis for a guilty plea, but not which charge it proved. The district court concluded that Ketchum's statement to the teller constituted "intimidation" under 18 USC 2113(a) and found him guilty of bank robbery.

On appeal, Ketchum argued that there was not sufficient evidence to sustain a conviction for bank robbery because there was no evidence of intimidation. Specifically, he argued that the statement "[t]hey are forcing me and have a gun" indicated that Ketchum himself, if anyone, was at risk, not the teller. The Fourth Circuit disagreed and upheld the conviction. The court concluded that the combination of a demand for money (which, the court notes "alone may be sufficient") and the mention of a gun was sufficient to prove intimidation.

Recommended Sentence in Plea Agreement Doesn't Prevent Reduction

US v. Dews: This is the first of two recent cases dealing with issues arising from the retroactive application of the amended crack Guidelines.

In this case (actually a pair of consolidated cases), the defendants both pleaded guilty via a plea agreement under FRCrP 11(e)(1)(C). The plea agreement included a recommendation that 168 months in prison, the bottom of the Guideline range, was the appropriate sentence in each case. When the Guidelines were amended and made retroactive, both defendants moved the court to reduce their sentences based on the newly calculated (and lower) Guideline range. The district court declined to do so, concluding that because the plea agreements called for a specific sentence, that sentence was not "based on" the Guidelines.

On appeal, the Fourth Circuit rejected that argument and ruled in favor of the defendants. The court concluded that the Guidelines played a substantial role in fashioning the sentences and that neither Rule 11 nor the plea agreements themselves precluded a reduction. Judge Agee dissented and agreed with the district court that the sentences were based on the plea agreement, not the Guidelines.

Congrats to the Maryland FPD office on the win!

UPDATE: The Government sought rehearing in this case, which the court granted, thus vacating this opinion per Local Rule 35(c). However, the case was dismissed as moot before the rehearing took place.

Court Rejects First Amendment Challenges to Child Related Obscenity Charges

US v. Whorley: Whorley was charged with a whole boatload of obscenity and child pornography charges after his receipt of that material was discovered on a publically accessible computer. Specifically, he was charged with 20 counts of receiving obscene Japanese cartoons depicting children; 20 counts of doing so after having been previously convicted of possessing child pornography; 15 counts of possession of child pornography (based on photographs); and 20 counts of sending or receiving obscene Emails describing children in interstate commerce. He was convicted by a jury on 74 of the 75 counts (one of the child porn counts was dismissed) and sentenced to 240 months in prison.

On appeal, Whorley challenged the obscenity convictions - those involving the Emails and cartoons - and the enhanced sentence for the cartoon charges, arguing that they violated the First Amendment, in several ways. The Fourth Circuit affirmed, shooting down all those arguments. First, the court disagreed that because 18 USC 1642 did not make an exception for the private receipt or possession of obscene material it violated the First Amendment as interpreted in Stanley v. Georgia. As the court points out, the Supreme Court has repeatedly held that just because Stanley protects the private possession of obscene materials there does not exist a related right to receive obscene material. Second, the court rejected the argument that section 1642 was impermissibly vague. Third, the court rejected Whorley's as applied challenges to 1642, for largely the same reasons as it rejected the facial challenges. Specifically, it rejected the argument that the text Emails or cartoons could be obscene. Finally, the court rejected the argument that the enhancement provisions of 18 USC 1466A(a)(1) was unconstitutional as applied to the cartoons at issue because they did not depict actual children. The court also rejected (and briefly discussed) Whorley's challenges to some trial issues and his sentence.

Judge Gregory dissented on the issue of whether the Emails could be obscene and the sentencing enhancements. With regards to the Emails, he did so based on an argument admittedly not raised by Whorley, that the Emails "were pure speech protected by the First Amendment." Judge Gregory contends that the majority's note that the Supreme Court has held that words can be obscene "is not sufficient, on its own, to criminalize pure speech." However, Judge Gregory never defines what "pure speech" is and how it is distinguishable from words that can be obscene. His dissent seems to be more an objection to Supreme Court holdings that obscenity lies outside the protection of the First Amendment (an objection I share, BTW). As for the sentence enhancements, Judge Gregory reads the applicable statutes to require the pictures at issue to depict an actual child, so the cartoons at issue in this case do not apply.

UPDATE: My apologies - apparently "pure speech" is a term of art in First Amendment cases with which I was not familiar. It refers to speech that is not bound up with conduct and is thus "pure."

Arrestee's Information Reliable Enough to Supprt Arrest

US v. White: A gentleman named Ali arrived in Charleston, West Virginia, and was arrested for possession of crack. He cooperated with investigators and agreed to set up a controlled purchase of cocaine from White later the same day. Ali set up the deal on the phone (while investigators watched) and said that White agreed to sell him nine ounces of cocaine at the Family Dollar parking lot. A vehicle, which Ali identified as White's, appeared at the Family Dollar parking lot, briefly, before it drove to a nearby house. White called Ali and told him that he had to move the deal because the parking lot was "too hot" and designated another location. On the way there, White was pulled over. He refused consent to search the car. After a second drug dog alerted on the driver's door of White's car, officers searched the trunk and found 89.5 grams of cocaine.

White sought to suppress the cocaine recovered during the search of the car. The district court denied the motion, concluding that Ali's information provided to the investigators was reliable and that they had probable cause to believe White was transporting drugs when he was stopped (alternatively, that they had reasonable suspicion to make a Terry stop, which ripened into probable cause). White pleaded guilty to one count of possession with intent to distribute cocaine and was sentenced to 240 months in prison.

On appeal, the Fourth Circuit affirmed the district court's suppression ruling and the sentence imposed. It agreed with the district court that Ali was a reliable source and that the investigators had probable cause to support White's arrest and a search of his car. As the court noted, "every bit of information that Ali provided was quickly borne out by actual events." The court dismissed White's claim of sentencing error in a footnote.

Agent's Assertions Save Warrant Under Leon

US v. Williams Williams and a codefendant, Thomas, were charged with drug crimes. They moved to suppress evidence found at their residences pursuant to state search warrants procured by a DEA agent.

In each case, the affidavit set forth in some detail the fruits of the investigation into Williams and Thomas, including details of controlled purchases, tips from CIs, etc. to establish a conspiracy to distribute narcotics. However, neither warrant affidavit included any evidence that any sales or other drug-related activity took place at either man's residence. Instead, the affidavit's explained that, based on the agent's experience, those involved in the drug trade frequently kept evidence of it (cash, registers, possibly a "stash" of product) in their home. On that basis, the warrants were issued.

The district court granted Williams and Thomas's motion to suppress the fruits of those searches. The Government conceded the lack of probable cause, but relied on the Leon good-faith exception to save the search. The district court disagreed and concluded that the warrants were based on bare bones affidavits that did not clearly demonstrate probable cause to believe there would be evidence at the locations searched. It also concluded that there was no basis on which to determine whether Williams and Thomas were actually residing at those locations.

The Government appealed and the Fourth Circuit unanimously reversed. Applying Leon (and avoiding the question of whether the Government could not argue the probable cause issue it conceded below), the court concluded that the affidavits were not bare boned after all. The court held that warrants to search a home are proper if (1) there is probable cause to support a charge of criminal activity and (2) the reasonable suspicion that drug dealers store evidence in their homes. Thus, it was error for the district court to disregard the agent's experience on the second prong. Had it properly considered the agent's statement, it could not have concluded that the affidavits were bare boned. The court also concluded that the agent's uncorroborated statement that the homes search were the defendants' residence was enough to save the affidavits from being bare boned.