US v. Said: Said was one of several defendants in this consolidated appeal that were convicted of piracy. The convictions arose from not one but two unsuccessful attempts to capture ships that, it turned out, were military craft (a Royal Navy frigate and a US Navy dock landing ship). The second attempt left the pirates' boat destroyed and the pirates in custody of the US Navy. They were brought to the Eastern District of Virginia and charged with (among other things) piracy on the high seas under 18 USC 1651 which carries a mandatory life sentence. After unsuccessfully trying to dismiss that charge (for reasons explained here), Said and all but one of the other pirates were convicted at trial. However, the district court concluded that a life sentence in this case violated the Eighth Amendment's prohibition on cruel and unusual punishment and imposed various terms of months on the defendants. The Government appealed.
On appeal the Fourth Circuit vacated the sentences and remanded the case for the imposition of life sentences. The court concluded that Said couldn't make it past the first prong of the Supreme Court's test for non-capital Eighth Amendment sentences, that "the gravity of the offense and the severity of the sentence produces an inference of gross disproportionality." It noted that the Supreme Court had only found one non-capital sentence to be grossly disproportionate (life as a recidivist after passing a bad check) and that the Fourth Circuit hasn't identified any such sentence since. The court rejected the argument that the defendants' conduct was merely "attempted robbery on the high seas" that didn't result in any serious injury or damage, noting that it was "at least as severe as the cocaine possession" that the Supreme Court held could trigger a life sentence. The statutory life sentence "reflects a rational legislative judgment, entitled to deference" about the danger posed by piracy.
Judge Davis concurred, suggesting that "not all piracy offense are equal in severity" and that Congress might revisit the issue.
Monday, August 31, 2015
Warrant Requires to Get Historical Cell Cite Info
US v. Graham: Graham and his codefendant, Jordan, were involved in a string of commercial robberies that took place in and around Baltimore. They were arrested after the last theft when they were stopped in the truck that served as a getaway vehicle. Among the evidence retrieved from the truck was a pair of cell phones, one subscribed to Jordan and the other to Graham's wife. Investigators obtained court orders, pursuant to the Stored Communications Act, to obtain cell site location information ("CSLI") from the phones. CSLI (I'm grossly simplifying here) can help determine the location of a phone over time as it interacts with various cell towers to send and receive information. Investigators were able to use the CSLI to place the phones (and, by association) Graham and Jordan near robbery sites. Graham and Jordan moved to suppress that data, arguing that investigators were required to get a warrant before obtaining it. The district court denied the motion and Graham and Jordan were convicted at trial of various counts related to the robberies.
On appeal the Fourth Circuit affirmed the convictions and the district court's order denying suppression of the CSLI. However, the court was deeply divided on the rational for doing so. The majority concluded that investigators should have gotten a warrant obtain the CSLI, but concluded that suppression wasn't appropriate because they did comply with existing law when getting a court order under the Stored Communications Act. Specifically, the investigators' inspect of "a cell phone user's historical CSLI for an extended period of time" was a "search" for Fourth Amendment purposes. It wasn't persuaded that Graham and Jordan waived any expectation of privacy based on the fine print of their contract that, the court realized, nobody actually reads. As to the data itself, it looked to the concurring opinions in the Supreme Court's recent Jones and the concerns about being able to harvest vast amounts of data. It also distinguished cases like Jones itself (and the prior beeper cases) that tracked vehicles by pointing out that a phone location is often the location of a person and can include traditionally protected places like the home.
The main fissure between the majority and the dissenting Judge Motz was over the third-party doctrine. The majority concluded that it didn't apply here because "cell phone users do not voluntarily convey their CSLI to their service providers." That is because the data accumulates even when the person isn't using the phone, such as when a text message is received or an incoming phone call isn't answered. Judge Motz, by comparison, argued that the majority's conclusion "flies in the face of the Supreme Court's well-established third-party doctrine" and that the CSLI was the same as the pen register information covered by the Supreme Court's decision in Smith. The majority recognizes that its holding is at odds with decisions of the Fifth and Eleventh Circuits.
However, the end result of both the majority and dissenting opinions are the same - no suppression.
In the midst of all this Judge Thacker wrote a brief concurrence expressing her "concern about the erosion of privacy in this era of rapid technological development" and concludes by saying "this decision continues a time-honored American tradition -- obtaining a warrant is the rule, not the exception."
UPDATE: The Government has filed a petition for rehearing in this case, which the Fourth Circuit has granted. As such, this opinion has been withdrawn.
On appeal the Fourth Circuit affirmed the convictions and the district court's order denying suppression of the CSLI. However, the court was deeply divided on the rational for doing so. The majority concluded that investigators should have gotten a warrant obtain the CSLI, but concluded that suppression wasn't appropriate because they did comply with existing law when getting a court order under the Stored Communications Act. Specifically, the investigators' inspect of "a cell phone user's historical CSLI for an extended period of time" was a "search" for Fourth Amendment purposes. It wasn't persuaded that Graham and Jordan waived any expectation of privacy based on the fine print of their contract that, the court realized, nobody actually reads. As to the data itself, it looked to the concurring opinions in the Supreme Court's recent Jones and the concerns about being able to harvest vast amounts of data. It also distinguished cases like Jones itself (and the prior beeper cases) that tracked vehicles by pointing out that a phone location is often the location of a person and can include traditionally protected places like the home.
The main fissure between the majority and the dissenting Judge Motz was over the third-party doctrine. The majority concluded that it didn't apply here because "cell phone users do not voluntarily convey their CSLI to their service providers." That is because the data accumulates even when the person isn't using the phone, such as when a text message is received or an incoming phone call isn't answered. Judge Motz, by comparison, argued that the majority's conclusion "flies in the face of the Supreme Court's well-established third-party doctrine" and that the CSLI was the same as the pen register information covered by the Supreme Court's decision in Smith. The majority recognizes that its holding is at odds with decisions of the Fifth and Eleventh Circuits.
However, the end result of both the majority and dissenting opinions are the same - no suppression.
In the midst of all this Judge Thacker wrote a brief concurrence expressing her "concern about the erosion of privacy in this era of rapid technological development" and concludes by saying "this decision continues a time-honored American tradition -- obtaining a warrant is the rule, not the exception."
UPDATE: The Government has filed a petition for rehearing in this case, which the Fourth Circuit has granted. As such, this opinion has been withdrawn.
Wednesday, July 29, 2015
Illegal re-entry 16-level bump error
US v. Parral-Dominguez: Mr. Parral-Dominguez was arrested in North Carolina in 2010 in possession of more than an ounce of cocaine. He pleaded guilty in state court to drug trafficking charges, and state authorities informed ICE of his illegal status; he had been previously deported in 2007. He was indicted federally for illegal reentry at the end of 2013, and pleaded guilty in March 2014 without a plea agreement.
Parral-Dominguez made a single objection to the PSR, to a 16-level bump to his offense level for having been convicted previously of a crime of violence, arguing that as a matter of law, the North Carolina state offense of shooting into an occupied building (for which he had been convicted in 2007, which lead to his deportation) did not constitute a crime of violence. The district court disagreed, and imposed the enhancement, and in its sentencing order, it relied heavily on an unpublished decision to conclude that the state offense was a crime of violence. Parral-Dominguez appealed.
The Fourth Circuit resolved the issue in Parral-Dominguez’s favor, finding that the North Carolina state offense of discharging a firearm into an occupied building does not constitute a crime of violence for federal sentencing purposes. The Fourth Circuit applied the categorical approach, finding that the statute at stake does not require that an offender use force against another person in order to complete the crime.
The Fourth Circuit found that this procedural error was not harmless because it could not say that regardless of the calculated Guidelines range, 65 months is the “only” sentence the defendant would have received, and the district court gave no indication that it would have imposed a similar sentence regardless of any procedural error.
Parral-Dominguez made a single objection to the PSR, to a 16-level bump to his offense level for having been convicted previously of a crime of violence, arguing that as a matter of law, the North Carolina state offense of shooting into an occupied building (for which he had been convicted in 2007, which lead to his deportation) did not constitute a crime of violence. The district court disagreed, and imposed the enhancement, and in its sentencing order, it relied heavily on an unpublished decision to conclude that the state offense was a crime of violence. Parral-Dominguez appealed.
The Fourth Circuit resolved the issue in Parral-Dominguez’s favor, finding that the North Carolina state offense of discharging a firearm into an occupied building does not constitute a crime of violence for federal sentencing purposes. The Fourth Circuit applied the categorical approach, finding that the statute at stake does not require that an offender use force against another person in order to complete the crime.
The Fourth Circuit found that this procedural error was not harmless because it could not say that regardless of the calculated Guidelines range, 65 months is the “only” sentence the defendant would have received, and the district court gave no indication that it would have imposed a similar sentence regardless of any procedural error.
Divided panel vacates dismissal
US v. Vinson: The government appealed the district court’s order that granted the defendant’s motion to dismiss the indictment in this case; the defendant had been indicted for being a felon in possession after a consensual search of his residence revealed a rifle and ammunition, and in 2004, he had been convicted of misdemeanor domestic violence in North Carolina. At issue is whether the prior conviction qualified Vinson as a person not to possess a firearm under 18 U.S.C. §922(g)(9).
This case arose from a January 2013 incident in which police received information that Vinson allegedly threatened his wife and children’s lives, and then fled. The police put the kids’ school on lock-down and Vinson’s wife permitted the police to search their home, wherein the gun and ammo were discovered. In making its determination on the motion to dismiss, the district court stated that, under the law, assault and battery charges don’t necessarily connote acts of violence. The district court concluded that Vinson’s prior conviction did not qualify as a misdemeanor crime of domestic violence under the categorical approach. The government appealed.
On appeal, the government argued that contrary to the district court’s conclusion, the modified categorical approach may be applied in this case, as the state statute of Vinson’s prior conviction is divisible because it has elements creating several different crimes, some of which match a generic federal offense. The Fourth Circuit agreed with the government here, vacated the order dismissing the indictment, and remanded with instruction to reinstate the indictment against Vinson.
Judge Gregory dissented, arguing that the majority relied upon “tenuous suppositions, inapposite jury instructions, and the decision of a state intermediate appellate court (at odds with the state supreme court) to hold that assault is a divisible offense in North Carolina.”
This case arose from a January 2013 incident in which police received information that Vinson allegedly threatened his wife and children’s lives, and then fled. The police put the kids’ school on lock-down and Vinson’s wife permitted the police to search their home, wherein the gun and ammo were discovered. In making its determination on the motion to dismiss, the district court stated that, under the law, assault and battery charges don’t necessarily connote acts of violence. The district court concluded that Vinson’s prior conviction did not qualify as a misdemeanor crime of domestic violence under the categorical approach. The government appealed.
On appeal, the government argued that contrary to the district court’s conclusion, the modified categorical approach may be applied in this case, as the state statute of Vinson’s prior conviction is divisible because it has elements creating several different crimes, some of which match a generic federal offense. The Fourth Circuit agreed with the government here, vacated the order dismissing the indictment, and remanded with instruction to reinstate the indictment against Vinson.
Judge Gregory dissented, arguing that the majority relied upon “tenuous suppositions, inapposite jury instructions, and the decision of a state intermediate appellate court (at odds with the state supreme court) to hold that assault is a divisible offense in North Carolina.”
Reversal of order requiring medication by force
US v. John Watson, Jr.: In this appeal, the Fourth Circuit reversed the district court’s order that granted the government’s request to forcibly medicate Watson to attempt to make him competent to stand trial. A divided panel concluded that the government had not met its burden of proving that forcibly medicating Watson, in particular, was substantially likely to restore his competency. Watson had been indicted with several charges after he shot at a Coast Guard helicopter with a handgun.
The issue of whether to forcibly medicate a defendant to render them competent to stand trial is controlled by the Supreme Court’s 2003 decision in Sell v. United States. In Sell, the Supreme Court developed a four-part test; each part must be proven to the “deliberately high” standard of clear and convincing evidence.
On appeal, the first two parts of the Sell test were at issue: whether the government showed important governmental interests at stake; and whether the government showed that involuntary medication would significantly further its interests, requiring proof that the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects which would interest significantly with the defendant’s ability to assist counsel at trial.
The Fourth Circuit held that because the district court had clearly erred in finding that the government met its burden on the second prong of the test, it did not decide whether the district court erred with respect to its conclusions on the first prong of the Sell test. With regard to the second part of the test, the Fourth Circuit discussed the lack of findings below that assessed the likely success of the government’s proposed treatment plan in relation to Watson and his condition in particular; the Fourth Circuit stated that the proper enquiry for courts is not whether the proposed treatment plan will work in general, but whether it will work as applied to a particular defendant. The Fourth Circuit held that the district court did not undertake the searching and individualized assessment of Watson’s likely susceptibility to forcible medication that is required by law.
Further, by resolving the appeal issues in this case by deciding that the government has not justified forcible medication in this case, the Fourth Circuit determined that the district court’s order be reversed, rather than remanding the case to the district court for further proceedings. The Fourth Circuit concluded that the district court had ample opportunity to assemble and defend the evidence necessary to meet its burden here, and it failed to do so.
The issue of whether to forcibly medicate a defendant to render them competent to stand trial is controlled by the Supreme Court’s 2003 decision in Sell v. United States. In Sell, the Supreme Court developed a four-part test; each part must be proven to the “deliberately high” standard of clear and convincing evidence.
On appeal, the first two parts of the Sell test were at issue: whether the government showed important governmental interests at stake; and whether the government showed that involuntary medication would significantly further its interests, requiring proof that the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects which would interest significantly with the defendant’s ability to assist counsel at trial.
The Fourth Circuit held that because the district court had clearly erred in finding that the government met its burden on the second prong of the test, it did not decide whether the district court erred with respect to its conclusions on the first prong of the Sell test. With regard to the second part of the test, the Fourth Circuit discussed the lack of findings below that assessed the likely success of the government’s proposed treatment plan in relation to Watson and his condition in particular; the Fourth Circuit stated that the proper enquiry for courts is not whether the proposed treatment plan will work in general, but whether it will work as applied to a particular defendant. The Fourth Circuit held that the district court did not undertake the searching and individualized assessment of Watson’s likely susceptibility to forcible medication that is required by law.
Further, by resolving the appeal issues in this case by deciding that the government has not justified forcible medication in this case, the Fourth Circuit determined that the district court’s order be reversed, rather than remanding the case to the district court for further proceedings. The Fourth Circuit concluded that the district court had ample opportunity to assemble and defend the evidence necessary to meet its burden here, and it failed to do so.
Monday, July 13, 2015
Former Virginia Governor's convictions affirmed
US v. McDonnell: Despite an impressive group of amici in support of his appeal, the former governor of Virginia, Robert McDonnell, lost the appeal of convictions he received following his five-week trial. The Fourth Circuit affirmed the judgment of the district court.
Two most important issues on appeal: 1) McDonnell argued that the district court’s jury instructions misstated fundamental principles of federal bribery law; and 2) the government’s evidence was insufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act. The Fourth Circuit was unpersuaded by each of McDonnell’s jury instruction claims, e.g. the instructions were over-inclusive, broad, incomplete, misleading, or unprecedented. Further, McDonnell claimed one instruction was a misstatement of the law, a statement with which the Fourth Circuit disagreed, finding the instruction “indisputably correct,” and “not erroneous with respect to the Hobbs Act extortion charges." Further, one instruction that may have been debatable to the Fourth Circuit, that the subjective beliefs of a third party in an honest-services wire fraud case cannot “convert non-official acts into official ones,” was found to be harmless, if indeed an error occurred. The Fourth Circuit held that McDonnell failed to show that the “official act” instructions, taken as a whole, were anything less than a “fair and accurate statement of law.”
McDonnell’s claim about the sufficiency of the evidence also failed on appeal, with the Fourth Circuit finding ample “official acts” of McDonnell exploiting the power of his office in furtherance of an ongoing effort to influence state university researchers. The Fourth Circuit found his corrupt intent was evidenced by expensive vacations, accepting loans, etc., as well as shopping sprees, cash, golf outings and vacations, all free to McDonnell and his family. These were not goodwill gifts from one friend to another, but gifts in exchange for official acts to help a pharmaceutical company secure independent testing for its product, Anatabloc, and that McDonnell acted in the absence of good faith in receiving them. Thus, McDonnell failed in his efforts to sustain the burden of bringing a sufficiency of the evidence challenge.
Two most important issues on appeal: 1) McDonnell argued that the district court’s jury instructions misstated fundamental principles of federal bribery law; and 2) the government’s evidence was insufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act. The Fourth Circuit was unpersuaded by each of McDonnell’s jury instruction claims, e.g. the instructions were over-inclusive, broad, incomplete, misleading, or unprecedented. Further, McDonnell claimed one instruction was a misstatement of the law, a statement with which the Fourth Circuit disagreed, finding the instruction “indisputably correct,” and “not erroneous with respect to the Hobbs Act extortion charges." Further, one instruction that may have been debatable to the Fourth Circuit, that the subjective beliefs of a third party in an honest-services wire fraud case cannot “convert non-official acts into official ones,” was found to be harmless, if indeed an error occurred. The Fourth Circuit held that McDonnell failed to show that the “official act” instructions, taken as a whole, were anything less than a “fair and accurate statement of law.”
McDonnell’s claim about the sufficiency of the evidence also failed on appeal, with the Fourth Circuit finding ample “official acts” of McDonnell exploiting the power of his office in furtherance of an ongoing effort to influence state university researchers. The Fourth Circuit found his corrupt intent was evidenced by expensive vacations, accepting loans, etc., as well as shopping sprees, cash, golf outings and vacations, all free to McDonnell and his family. These were not goodwill gifts from one friend to another, but gifts in exchange for official acts to help a pharmaceutical company secure independent testing for its product, Anatabloc, and that McDonnell acted in the absence of good faith in receiving them. Thus, McDonnell failed in his efforts to sustain the burden of bringing a sufficiency of the evidence challenge.
Supervised release term of illegal re-entry sentence affirmed
US v. Aplicano-Oyuela: Appellant Aplicano-Oyuela pleaded guilty to illegal re-entry via plea letter he submitted to the court, rather than plea agreement. The PSR included a calculated guidelines range of 10 to 16 months, with the possibility of a supervised release term of up to three years. Aplicano requested that the court impose a sentence of 8 months, but he did not address the suggested supervised release term in the PSR. At sentencing, the district court repeatedly expressed its perceived belief of the likelihood of Aplicano’s recidivism, as well as his likely return to the US after deportation, and it imposed a 13-month term of imprisonment, to be followed by three years of supervised release, so that he could be punished for a long time should he choose to come back to the US and/or commit any further crimes.
On appeal, Aplicano challenged his 3-year term of supervised release, arguing that it is both procedurally and substantively unreasonable, and that his guilty plea was “fatally flawed.” Since Aplicano did not object to his supervised release term until his appeal, the Fourth Circuit reviewed his issues for plain error only. The Fourth Circuit began its analysis with a review of the supervised release system, pertinently how the Guidelines were amended in 2011, so that when an alien is facing post-incarceration removal and supervised release is not required by statute, courts should ordinarily not impose a term of supervised release. While imposing a term of supervised release on removable aliens is not forbidden, the public is “ordinarily” and “adequately” served by a new prosecution alone.
The Fourth Circuit, in non-precedential unpublished decisions, has generally affirmed the imposition of supervised release on aliens likely to be removed post-incarceration. The Fourth Circuit found the imposition of a term of supervised release procedurally reasonable, as the district court believed that it would deter Aplicano from committed future crimes, curb his desire to return to the US again, to protect US citizens, and that Aplicano’s need to be deterred was a great concern than punishing him. Next, the Fourth Circuit held the imposition of supervised release was substantively reasonable because of the district court’s intention to provide deterrence and protection for the community. Finally, with regard to Aplicano’s guilty plea, the Fourth Circuit decided that even if the district court had erred in advising Aplicano of the nature of supervised release, Aplicano did not show that such error affected his substantial rights, nor that but for the error, he would not have entered the plea. The judgment of the district court was affirmed.
On appeal, Aplicano challenged his 3-year term of supervised release, arguing that it is both procedurally and substantively unreasonable, and that his guilty plea was “fatally flawed.” Since Aplicano did not object to his supervised release term until his appeal, the Fourth Circuit reviewed his issues for plain error only. The Fourth Circuit began its analysis with a review of the supervised release system, pertinently how the Guidelines were amended in 2011, so that when an alien is facing post-incarceration removal and supervised release is not required by statute, courts should ordinarily not impose a term of supervised release. While imposing a term of supervised release on removable aliens is not forbidden, the public is “ordinarily” and “adequately” served by a new prosecution alone.
The Fourth Circuit, in non-precedential unpublished decisions, has generally affirmed the imposition of supervised release on aliens likely to be removed post-incarceration. The Fourth Circuit found the imposition of a term of supervised release procedurally reasonable, as the district court believed that it would deter Aplicano from committed future crimes, curb his desire to return to the US again, to protect US citizens, and that Aplicano’s need to be deterred was a great concern than punishing him. Next, the Fourth Circuit held the imposition of supervised release was substantively reasonable because of the district court’s intention to provide deterrence and protection for the community. Finally, with regard to Aplicano’s guilty plea, the Fourth Circuit decided that even if the district court had erred in advising Aplicano of the nature of supervised release, Aplicano did not show that such error affected his substantial rights, nor that but for the error, he would not have entered the plea. The judgment of the district court was affirmed.
Wednesday, July 01, 2015
Erroneous Simmons Fueled ACCA Designation Can Be Attacked In 2255
US v. Newbold: Once again, we have a question of how the Fourth Circuit's decision in Simmons impacts a sentence imposed before that case was decided. In this case, Newbold pleaded guilty to being a felon in possession of a firearm and was sentenced under ACCA to a 225-month sentence. After a convoluted procedural path (the Fourth calls it "miraculous"), Newbold was present before the Fourth Circuit after filing a timely 2255 motion seeking the vacation of his sentence, based on the retroactivity of Simmons.
The Fourth Circuit vacated Newbold's sentence. Although the Government agreed that Simmons was retroactive, the court nonetheless had to "ensure that the sentencing error Newbold seeks to challenge is cognizable on collateral review." It was because, unlike the recent cases involving retroactive Simmons challenges to career offender calculations, the application of ACCA in this case increased Newbold's statutory sentence. Thus this was one of the limited universe of "fundamental defects" that could be corrected in 2255 proceedings. The court then examined Newbold's priors, found that he could not have received sentences of more than one year for them, and concluded he should not have been sentenced under ACCA.
The Fourth Circuit vacated Newbold's sentence. Although the Government agreed that Simmons was retroactive, the court nonetheless had to "ensure that the sentencing error Newbold seeks to challenge is cognizable on collateral review." It was because, unlike the recent cases involving retroactive Simmons challenges to career offender calculations, the application of ACCA in this case increased Newbold's statutory sentence. Thus this was one of the limited universe of "fundamental defects" that could be corrected in 2255 proceedings. The court then examined Newbold's priors, found that he could not have received sentences of more than one year for them, and concluded he should not have been sentenced under ACCA.
Failure To Disclose SEC Fraud Investigation of Key Witness Requires Vacation of Convictions
US v. Parker: Parker, his codefendant/appellee Taylor, and his son Brett (a codefendant below, but not coappellee - he's serving two life terms in South Carolina for multiple murder) were convicted of illegal gambling in an operation including at least five people. Parker and Taylor stipulated that they were engaged in a gambling business and that it included a related operation run by Brett and another man. The key issue at trial was whether there was a fifth person involved. The Government sought to meet that burden via other individuals related to Brett, most critically his (now murdered) wife, Tammy. A witness named Staples provided testimony that Tammy was involved in the gambling operation by managing and spending its proceeds. There was some physical evidence corroborating that testimony. The Government also presented evidence that other individuals ("layoff bookies") were involved in the operation. Finally, there was evidence that Brett received "lines" from a separate bookmaker who could be the fifth person.
On the Friday before trial began, Staples told the Government that he was being investigated by the SEC in Utah for fraud. That information was not disclosed to the defense, who did not cross examine Staples when he testified. The day he testified the Government's civil division received a draft complaint from the Utah SEC office alleging fraudulent conduct on Staples's part. The complaint was filed two days after the jury convicted Parker and his codefendants, who finally learned of the SEC investigation the next day. They moved for a new trial on Brady grounds, which the district court denied because the SEC report "was not material to the jury's determination of the defendants' guilt" because Staples's testimony only related to Tammy's role in the operation and the Government's case didn't rely on her to be the fifth person.
On appeal, the Fourth Circuit reversed. The court found that the SEC investigation constituted impeachment evidence (as well as evidence of untruthfulness under FRE 608) that was material because while the jury could have found that someone other than Tammy was the fifth person in the operation, the evidence most strongly linked Tammy to the operation and thus there was "a reasonable probability that at least one juror would have viewed Tammy as the fifth participant." Aside from Staples's testimony, the other evidence linking Tammy to the operation was "minimal." Furthermore, it rejected the Government's arguments that it was under no duty to disclose evidence of an investigation by another agency and that the defendant's knew or should of known of the conduct underlying the SEC investigation. Having said all that, the court made clear that it was vacating the convictions and remanding for further proceedings, not entering judgments of acquittal, as the evidence presented at trial was sufficient to convict.
On the Friday before trial began, Staples told the Government that he was being investigated by the SEC in Utah for fraud. That information was not disclosed to the defense, who did not cross examine Staples when he testified. The day he testified the Government's civil division received a draft complaint from the Utah SEC office alleging fraudulent conduct on Staples's part. The complaint was filed two days after the jury convicted Parker and his codefendants, who finally learned of the SEC investigation the next day. They moved for a new trial on Brady grounds, which the district court denied because the SEC report "was not material to the jury's determination of the defendants' guilt" because Staples's testimony only related to Tammy's role in the operation and the Government's case didn't rely on her to be the fifth person.
On appeal, the Fourth Circuit reversed. The court found that the SEC investigation constituted impeachment evidence (as well as evidence of untruthfulness under FRE 608) that was material because while the jury could have found that someone other than Tammy was the fifth person in the operation, the evidence most strongly linked Tammy to the operation and thus there was "a reasonable probability that at least one juror would have viewed Tammy as the fifth participant." Aside from Staples's testimony, the other evidence linking Tammy to the operation was "minimal." Furthermore, it rejected the Government's arguments that it was under no duty to disclose evidence of an investigation by another agency and that the defendant's knew or should of known of the conduct underlying the SEC investigation. Having said all that, the court made clear that it was vacating the convictions and remanding for further proceedings, not entering judgments of acquittal, as the evidence presented at trial was sufficient to convict.
Sentence Consecutive to Any Future Federal Sentence Error, But Not Plain
US v. Obey: Obey was initially convicted of multiple drug counts and sentenced to 540 months in prison. His convictions were vacated on Giglio grounds and, on remand, he entered into a plea agreement. He agreed to plead guilty to a single count with a 20-year statutory maximum and the Government would argue for a sentence of 18 years. Sentencing came and the Government argued for an 18-year sentence. However, the Government (in response to the district court's questions) advised the court about Obey's pending state murder trial, confirmed that he was a career offender, but reiterated the 18-year recommendation. The district court denied the Government's "request for a variance" (it's unclear what the actual Guideline range was) and sentenced Obey to 240 months in prison, to be served consecutively to any other sentence, including any federal or state sentence he might receive.
The Fourth Circuit affirmed Obey's sentence on appeal. First, it rejected (reviewing for plain error) his argument that the Government breached its promise in the plea agreement by not being more forceful in its assertion of the 18-year recommendation or by providing sufficient reasons as to why that sentence was appropriate. The court concluded that the Government repeatedly restated its recommendation, did not criticize or undermined that recommendation, and that the plea agreement didn't call for the Government to do any more than make the recommendation. Second, it rejected the argument that the district court erred by ordering Obey's sentence to be served consecutively to any future state or federal sentence. The court concluded that the Supreme Court's holding in Setser that allowed sentences to be consecutive to future state sentences did not extend to future federal sentences as well (per prior Fourth Circuit precedent). However, Obey was stuck with review for plain error and the court found, in light of Setser, that the district court's error was not "plain."
The Fourth Circuit affirmed Obey's sentence on appeal. First, it rejected (reviewing for plain error) his argument that the Government breached its promise in the plea agreement by not being more forceful in its assertion of the 18-year recommendation or by providing sufficient reasons as to why that sentence was appropriate. The court concluded that the Government repeatedly restated its recommendation, did not criticize or undermined that recommendation, and that the plea agreement didn't call for the Government to do any more than make the recommendation. Second, it rejected the argument that the district court erred by ordering Obey's sentence to be served consecutively to any future state or federal sentence. The court concluded that the Supreme Court's holding in Setser that allowed sentences to be consecutive to future state sentences did not extend to future federal sentences as well (per prior Fourth Circuit precedent). However, Obey was stuck with review for plain error and the court found, in light of Setser, that the district court's error was not "plain."
Tuesday, June 16, 2015
Crime of Violence, Recklessness Enhancements Vacated
US v. Shell: Shell was speeding down a highway when he was spied by a police officer going the other direction. By the time the officer turned around he had lost sight of Shell, but quickly found his car wrecked down an embankment. Shell had fled. He was later apprehended and admitted possessing a firearm found in a bag near the car. After pleading guilty to being a felon in possession of a firearm, his sentence was enhanced for having a prior "crime of violence" - a North Carolina conviction for second degree rape - and for recklessly fleeing from a police officer. He was sentenced to the bottom of the resulting Guideline range, 57 months in prison.
On appeal, a divided Fourth Circuit vacated Shell's sentence, finding the district court erred by applying both enhancements. As to the crime of violence (which increased Shell's base offense level from 14 to 20), the court found that the second degree rape in North Carolina is not categorically a crime of violence. Although it can be committed in a way that requires violent force (and therefore would be a crime of violence), it also includes offenses involving victims who are unable to consent (for various reasons) but without violent force. Because it was unclear under which section Shell was convicted, the court concluded the enhancement did not apply. As to the reckless endangerment, the court concluded that it was necessary that any flight be an attempt to flee from the police, not merely conduct that is otherwise reckless. Because the district court did not examine whether Shell was fleeing the officer or merely being generally reckless, it remanded the issue to the district court.
Judge Wilkinson dissented, arguing that the North Carolina conviction was a crime of violence, even under the incapacitated victim section because it required knowledge of such incapacitation and "protects people considered incapable of volitional acts from such callous conduct." He agreed on the law on the reckless conduct enhancement, thought "the district court's discussion has already incorporated the fact of such knowledge," but did not oppose remand on that issue.
Congrats (again!) to the Defender office in Western NC on the win!
On appeal, a divided Fourth Circuit vacated Shell's sentence, finding the district court erred by applying both enhancements. As to the crime of violence (which increased Shell's base offense level from 14 to 20), the court found that the second degree rape in North Carolina is not categorically a crime of violence. Although it can be committed in a way that requires violent force (and therefore would be a crime of violence), it also includes offenses involving victims who are unable to consent (for various reasons) but without violent force. Because it was unclear under which section Shell was convicted, the court concluded the enhancement did not apply. As to the reckless endangerment, the court concluded that it was necessary that any flight be an attempt to flee from the police, not merely conduct that is otherwise reckless. Because the district court did not examine whether Shell was fleeing the officer or merely being generally reckless, it remanded the issue to the district court.
Judge Wilkinson dissented, arguing that the North Carolina conviction was a crime of violence, even under the incapacitated victim section because it required knowledge of such incapacitation and "protects people considered incapable of volitional acts from such callous conduct." He agreed on the law on the reckless conduct enhancement, thought "the district court's discussion has already incorporated the fact of such knowledge," but did not oppose remand on that issue.
Congrats (again!) to the Defender office in Western NC on the win!
Court Clarifies Supervise Release Revocation Review
US v. Padgett: Padgett was serving a pair of concurrent terms of supervised release when was allegedly involved in an incident in which he fired a gun five times after an argument. As a result, he was charged with violating the conditions of his term of supervised release in various ways. He contested the allegations, but the district court found he committed them and sentenced him to consecutive terms of imprisonment of 10 and 14 months, followed by more (concurrent) terms of supervised release.
On appeal, the Fourth Circuit affirmed Padgett's revocation and sentence. First, it clarified that while the ultimate decision to revoke a term of supervised release, factual determinations about the defendant's conduct were reviewed for clear error. Applying that standard, the court found that the district court did not clearly err by crediting the eyewitness testimony presented by the Government that Padgett possessed a firearm, was in an argument with someone else, and fired the gun in the air. Second, the court concluded that the sentences were within the advisory Guideline range and statutory range and were not plainly unreasonable.
On appeal, the Fourth Circuit affirmed Padgett's revocation and sentence. First, it clarified that while the ultimate decision to revoke a term of supervised release, factual determinations about the defendant's conduct were reviewed for clear error. Applying that standard, the court found that the district court did not clearly err by crediting the eyewitness testimony presented by the Government that Padgett possessed a firearm, was in an argument with someone else, and fired the gun in the air. Second, the court concluded that the sentences were within the advisory Guideline range and statutory range and were not plainly unreasonable.
Ambiguous Offense Dates Can't Support ACCA Enhancement
US v. Span: Span pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government argued that he qualified for an enhanced sentence under ACCA thanks to four prior North Carolina robbery convictions. It provided state court documents - indictments, judgment, and a plea "transcript" (actually a filled in form) - to support its position. Span agreed that the convictions qualified as "violent felonies," but argued that the Government had not proven that they occurred "on occasions different from one another." In particular, the dates of the offenses on the various documents provided by the Government were inconsistent. The district court concluded that ACCA applied based on three of the four priors, that the date discrepancies were likely typographical errors, and that the robberies were "separate criminal episodes" that involved different individual victims (although they all involved the same business). Span was sentenced to the mandatory minimum term of 180 months in prison.
On appeal, a divided Fourth Circuit vacated Span's sentence. Noting that while the ultimate conclusion that ACCA applied was a legal one subject to de novo review, the court reviewed the district court's factual determinations only for clear error. Nonetheless, it found clear error in the district court's conclusion that the three prior convictions occurred on occasions different from one another. Looking to the Government's documents, the court recognized that '[n]o single offense date for any predicate robbery conviction is consisted across all three sources." In light of those discrepancies, the district court clearly erred in its conclusion. Without that factual finding, the legal conclusion that ACCA applied was also incorrect. As a result, Span's sentence was vacated (the court did not reach Span's constitutional challenge to the ACCA finding).
Judge Motz dissented, arguing that the majority had misapplied the clear error standard. She argued that the district court's conclusion about when the offenses occurred was plausible, although possibly incorrect. Given the deference afforded factual determinations on appeal, such a conclusion was not clearly erroneous.
Congrats to the Defender office in Western NC on the win!
On appeal, a divided Fourth Circuit vacated Span's sentence. Noting that while the ultimate conclusion that ACCA applied was a legal one subject to de novo review, the court reviewed the district court's factual determinations only for clear error. Nonetheless, it found clear error in the district court's conclusion that the three prior convictions occurred on occasions different from one another. Looking to the Government's documents, the court recognized that '[n]o single offense date for any predicate robbery conviction is consisted across all three sources." In light of those discrepancies, the district court clearly erred in its conclusion. Without that factual finding, the legal conclusion that ACCA applied was also incorrect. As a result, Span's sentence was vacated (the court did not reach Span's constitutional challenge to the ACCA finding).
Judge Motz dissented, arguing that the majority had misapplied the clear error standard. She argued that the district court's conclusion about when the offenses occurred was plausible, although possibly incorrect. Given the deference afforded factual determinations on appeal, such a conclusion was not clearly erroneous.
Congrats to the Defender office in Western NC on the win!
Tuesday, June 02, 2015
Court Vacates Something for Reasons Unknown - But Is Unhappy With the Government
US v. Adams: Adams was charged with . . . something. Based on a check of the docket sheet on PACER, it was multiple counts of conspiracy, racketeering, and murder. I have no idea what the outcome of the proceedings were, however, because most of the documents below are sealed. But I assume he was convicted of something, since he appealed.
Good news for Adams - he won. On plain error review, no less. But, again, I have no idea how or why, because the court's nearly unanimous opinion is, likewise, sealed (although, to be fair, it urges the district court to revisit whether the documents should stay sealed). What isn't sealed, however, is the Fourth Circuit's sealing order, which has little to do with sealing (on which the panel was unanimous), and everything to do with questioning why the Government put up a fight on appeal.
The opinion, written by Judge King, contains a footnote (set forth in the sealing order) that expresses surprise "that the government failed to confess plain error on appeal and thereby enhance the integrity of judicial proceedings." It invoked Berger v. US and the old chestnut that a prosecutor's first duty was to justice.
Judge Agee joined all of the panel opinion except that footnote. In a concurrence issued as part of the sealing order (and itself partially redacted). He emphasized the Government's "'broad' prosecutorial discretion," that said discretion applies on appeal, and that this "case does not present one of those rare occasions when we should disparage a coordinate branch for doing what the Constitution and its statutory mandate charge it to do." Of course, we have no idea if Judge Agree is correct, since we don't even know what the issue(s?) on appeal was, much less what the Government's argument was.
Senior Judge Davis issued his own concurrence, joining Judge King's opinion "in full." He contrasted himself to Judge Agee, "who apparently believe[s] it is never appropriate for those of us in the Judicial Branch to express reservations or disapproval of manifestly irregular, if not illegal, 'strategic choices' by prosecutors," and instead "believe[s] judges need to say more, not less, to the political deficits in our criminal justice system." He goes on to say (internal citation omitted):
The opinion, written by Judge King, contains a footnote (set forth in the sealing order) that expresses surprise "that the government failed to confess plain error on appeal and thereby enhance the integrity of judicial proceedings." It invoked Berger v. US and the old chestnut that a prosecutor's first duty was to justice.
Judge Agee joined all of the panel opinion except that footnote. In a concurrence issued as part of the sealing order (and itself partially redacted). He emphasized the Government's "'broad' prosecutorial discretion," that said discretion applies on appeal, and that this "case does not present one of those rare occasions when we should disparage a coordinate branch for doing what the Constitution and its statutory mandate charge it to do." Of course, we have no idea if Judge Agree is correct, since we don't even know what the issue(s?) on appeal was, much less what the Government's argument was.
Senior Judge Davis issued his own concurrence, joining Judge King's opinion "in full." He contrasted himself to Judge Agee, "who apparently believe[s] it is never appropriate for those of us in the Judicial Branch to express reservations or disapproval of manifestly irregular, if not illegal, 'strategic choices' by prosecutors," and instead "believe[s] judges need to say more, not less, to the political deficits in our criminal justice system." He goes on to say (internal citation omitted):
Contemporary discord in this country we all love, especially in stressed communities where interaction with the criminal justice system is a regular and dispiriting occurrence for many residents, might well be reduced if we judges better used our voices to inform and educate the political branches about how the decisions they make actually operate down here on the ground floor of the criminal justice system. In an era of mass incarceration such as ours, any fear that restrained judicial commentary on dicey prosecutorial practices or “strategic choices” might result in 'the Government [] becom[ing] a less zealous advocate,' is most charitably described as fanciful.
Tuesday, May 26, 2015
Prior offenses impact grading of supervised release violations
US v. Wynn: Anthony Wynn began a 5-year term of supervised release upon completion of the imprisonment portion of a 150-month drug trafficking sentence. His PO filed a petition for revocation of Wynn’s supervised release after Wynn tested positive for marijuana use 6 times, as well as other allegations, e.g., driving without a license, operating an uninsured vehicle, and tinted windows, failing to submit monthly reports, failure to complete substance abuse treatment, and failing to timely advise his PO of a new arrest. Wynn admitted his violation conduct; the district court found that Wynn had violated his supervised release, and revoked him.
Wynn’s PO calculated a term of imprisonment based on Wynn’s prior drug convictions. Even though his marijuana charges would have been grade C violations absent any consideration of Wynn’s criminal history, the PO counted the violations as grade B violations under a recidivist enhancement. Wynn had prior convictions in state court for possession of heroin, possession with intent to deliver heroin, possession of marijuana, and possession of heroin, and possession of cocaine and marijuana, dating from 1994 through 2002. The district court held that Wynn’s recidivism directly affected the grade of his violations; Wynn challenged the procedural calculations of his revocation sentence on appeal.
The question on appeal was whether the court properly applied a statutory enhancement in calculating the applicable policy statement range, whether Wynn’s conduct of possessing marijuana was a grade B or C violation under the policy statements. The difference between these two violations is the length of the term of imprisonment the offense may by punishable by: grade C violations call for one year or less; grade B violations call for term exceeding one year. Application Note 1 to USSG §7B1.1, according to the panel here, allows the “district court to consider not only conduct for which a defendant is prosecuted in a criminal case, but all of a defendant’s conduct,” whether or not the defendant has been prosecuted for it. The commentary, the panel found, suggests that district courts should consider all conduct that affects the maximum penalties for a violation of supervised release. The Fourth Circuit upheld the determination that this defendant’s possession of marijuana during his supervised release constituted grade B, not grade C, violations.
Wynn’s PO calculated a term of imprisonment based on Wynn’s prior drug convictions. Even though his marijuana charges would have been grade C violations absent any consideration of Wynn’s criminal history, the PO counted the violations as grade B violations under a recidivist enhancement. Wynn had prior convictions in state court for possession of heroin, possession with intent to deliver heroin, possession of marijuana, and possession of heroin, and possession of cocaine and marijuana, dating from 1994 through 2002. The district court held that Wynn’s recidivism directly affected the grade of his violations; Wynn challenged the procedural calculations of his revocation sentence on appeal.
The question on appeal was whether the court properly applied a statutory enhancement in calculating the applicable policy statement range, whether Wynn’s conduct of possessing marijuana was a grade B or C violation under the policy statements. The difference between these two violations is the length of the term of imprisonment the offense may by punishable by: grade C violations call for one year or less; grade B violations call for term exceeding one year. Application Note 1 to USSG §7B1.1, according to the panel here, allows the “district court to consider not only conduct for which a defendant is prosecuted in a criminal case, but all of a defendant’s conduct,” whether or not the defendant has been prosecuted for it. The commentary, the panel found, suggests that district courts should consider all conduct that affects the maximum penalties for a violation of supervised release. The Fourth Circuit upheld the determination that this defendant’s possession of marijuana during his supervised release constituted grade B, not grade C, violations.
Simmons does not shield defendant from 12-level enhancement
US v. Bercian-Flores: In this appeal, Jose Bercian-Flores challenged the sentencing enhancement he received in his illegal re-entry case, a 12-level bump based upon his prior 1997 conviction for unlawfully transporting aliens. Bercian-Flores argued on appeal that Simmons shielded him from this enhancement, as his guidelines range for his 1997 conviction (when the guidelines were mandatory) was zero to 6 months; the Fourth Circuit found, however, that since the sentencing judge in 1997 had the discretion to sentence Bercian-Flores for up to five years then, the enhancement here was not an error. The Fourth Circuit affirmed the sentence.
Bercian-Flores emphasized that he was not punished for more than a year for his 1997 conviction, and the guidelines prescribe a 12-level enhancement for illegal re-entry defendants when such an individual has a prior felony conviction for smuggling other aliens “punishable by imprisonment for a term exceeding one year.” U.S.S.G. §2L1.2. What’s more, the judge who sentenced Bercian-Flores in 1997 had found no aggravating factors, and no factual findings that warranted an upward departure beyond zero to six months. The Fourth Circuit disagreed, finding that the top sentence in a guidelines range is not the maximum term of imprisonment, as determined by the Supreme Court. The statutory maximum sentence as set by Congress controls whether Bercian-Flores’ prior convictions counts as a predicate felony for sentencing enhancement here, not the top sentence in his guidelines range.
Bercian-Flores emphasized that he was not punished for more than a year for his 1997 conviction, and the guidelines prescribe a 12-level enhancement for illegal re-entry defendants when such an individual has a prior felony conviction for smuggling other aliens “punishable by imprisonment for a term exceeding one year.” U.S.S.G. §2L1.2. What’s more, the judge who sentenced Bercian-Flores in 1997 had found no aggravating factors, and no factual findings that warranted an upward departure beyond zero to six months. The Fourth Circuit disagreed, finding that the top sentence in a guidelines range is not the maximum term of imprisonment, as determined by the Supreme Court. The statutory maximum sentence as set by Congress controls whether Bercian-Flores’ prior convictions counts as a predicate felony for sentencing enhancement here, not the top sentence in his guidelines range.
Pretrial motions improperly reduced government's ability to put on case
US v. Bajoghli: In this interlocutory appeal, the Fourth Circuit analyzed the propriety of a district court’s decisions on certain pretrial motions. The Fourth Circuit panel reversed and remanded, and found that the evidence the defendant attempted to strike or exclude was relevant to the government’s ability to prove its case, and it was an abuse of the district court’s discretion to “unduly restrict the latitude reasonably necessary for the government to carry its burden of proof.”
Bajoghli stands accused of healthcare fraud. The government has alleged that over a three-and-one-half-year period, Bajoghli, a dermatologist, orchestrated a scheme of falsely diagnosing patients with cancer, and performing unnecessary procedures on his unsuspecting patients. Bajoghli would also direct “unqualified” medical assistants to perform a variety of procedures without supervision, but he would bill healthcare benefits programs as if he, himself, had performed them, billing the programs at a higher rate.
The government argued in its appeal that in order to prove a healthcare fraud scheme existed, it must be able to prove the “entire scheme,” with evidence that may not be directly related to the 53 charges, yet was relevant to proving the scheme. The district court had ruled that evidence presented at trial must relate to one of the 53 instances of fraud named in the indictment, and Bajoghli argued that evidence of uncharged conduct would only be “loosely relevant” to the charged offenses and should be excluded under Rule 403 as unfairly prejudicial as well as under Rule 404(b)’s notice requirement, as “other acts” evidence. The Fourth Circuit found that evidence of the entire scheme is relevant to proving the 53 charged acts, in proving the “boundaries” of the scheme. Additionally, the Fourth Circuit found that since evidence of conduct not charged in a specific execution may be relevant to the healthcare fraud scheme, Rule 404(b) does not regulate it as “other bad acts.”
The district court ruled that post-scheme conduct should be excluded as “prior bad acts evidence” governed by 404(b), for which the government failed to provide adequate notice to Bajoghli. The district court also excluded this evidence under Rule 403. In his appeal, Bajoghli argued that Rule 404(b) does apply to this evidence because it would not be “intrinsic” to any of the charged executions of healthcare fraud. However, the Fourth Circuit agreed with the government that this evidence was probative of Bajoghli’s knowledge and intent, which are elements of healthcare fraud, and since Rule 404(b) does not apply to conduct that is “intrinsic” to the charged crime, it was an error for the district court to use it as a basis for the exclusion of this evidence. The district court further misapplied Rule 403 here, according to the panel, because it reflects a misunderstanding of what constitutes unfair prejudice, i.e., evidence that would “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” [Emphasis in original].
Lastly, with respect to the financial gain Bajoghli allegedly earned by charging his healthcare benefits providers for work that Bajoghli allegedly sent off to outside contractors (who completed the work at a fraction of what Bajoghli purportedly received), the Fourth Circuit and the government concurred again, in that this evidence of financial gain was probative of intent to defraud.
Bajoghli stands accused of healthcare fraud. The government has alleged that over a three-and-one-half-year period, Bajoghli, a dermatologist, orchestrated a scheme of falsely diagnosing patients with cancer, and performing unnecessary procedures on his unsuspecting patients. Bajoghli would also direct “unqualified” medical assistants to perform a variety of procedures without supervision, but he would bill healthcare benefits programs as if he, himself, had performed them, billing the programs at a higher rate.
The government argued in its appeal that in order to prove a healthcare fraud scheme existed, it must be able to prove the “entire scheme,” with evidence that may not be directly related to the 53 charges, yet was relevant to proving the scheme. The district court had ruled that evidence presented at trial must relate to one of the 53 instances of fraud named in the indictment, and Bajoghli argued that evidence of uncharged conduct would only be “loosely relevant” to the charged offenses and should be excluded under Rule 403 as unfairly prejudicial as well as under Rule 404(b)’s notice requirement, as “other acts” evidence. The Fourth Circuit found that evidence of the entire scheme is relevant to proving the 53 charged acts, in proving the “boundaries” of the scheme. Additionally, the Fourth Circuit found that since evidence of conduct not charged in a specific execution may be relevant to the healthcare fraud scheme, Rule 404(b) does not regulate it as “other bad acts.”
The district court ruled that post-scheme conduct should be excluded as “prior bad acts evidence” governed by 404(b), for which the government failed to provide adequate notice to Bajoghli. The district court also excluded this evidence under Rule 403. In his appeal, Bajoghli argued that Rule 404(b) does apply to this evidence because it would not be “intrinsic” to any of the charged executions of healthcare fraud. However, the Fourth Circuit agreed with the government that this evidence was probative of Bajoghli’s knowledge and intent, which are elements of healthcare fraud, and since Rule 404(b) does not apply to conduct that is “intrinsic” to the charged crime, it was an error for the district court to use it as a basis for the exclusion of this evidence. The district court further misapplied Rule 403 here, according to the panel, because it reflects a misunderstanding of what constitutes unfair prejudice, i.e., evidence that would “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” [Emphasis in original].
Lastly, with respect to the financial gain Bajoghli allegedly earned by charging his healthcare benefits providers for work that Bajoghli allegedly sent off to outside contractors (who completed the work at a fraction of what Bajoghli purportedly received), the Fourth Circuit and the government concurred again, in that this evidence of financial gain was probative of intent to defraud.
Thursday, May 07, 2015
District Court's Advocacy of Plea Bargain Requires Vacation of Plea
US v. Braxton: Braxton was charged with possession with intent to distribute more than 1 kilogram of heroin. His attorney advised him during plea negotiations that, if he went to trial, the Government could file an information increasing his mandatory minimum sentence if convicted from 10 to 20 years. Braxton at first requested a new attorney, but later withdrew the request. He insisted on going to trial, however, before which the Government filed the information.
On the day of trial, the court memorialized the last plea offer that Braxton rejected (he would admit he possessed the heroin, but he wanted to put the Government to its proof) - the Government would withdraw the information and argue for a sentence of 15 years. Braxton again asked for new counsel or, in the alternative, to represent himself. Both of those requests were denied. Wading into the dispute between Braxton and his attorney, the district court expressed reluctance at letting Braxton go to trial, said Braxton was "hurting [his] own interest," and compared his decision to "put[ting] [your] head in a buzz saw that makes absolutely no sense." After a couple of breaks in the proceedings, Braxton changed his mind and agreed to plead guilty. Braxton said he didn't feel coerced or pressured into pleading, although the district court had expressed its concern that he was "unwisely proceeding to trial before a jury." Braxton unsuccessful tried to withdraw his plea and was sentenced to 138 months in prison.
On appeal, the Fourth Circuit vacated Braxton's conviction. Relying on last year's decision in Sanya, the court concluded that the district court had improperly participated in plea negotiations in violation of Rule 11 of the Rules of Criminal Procedure. As in Sanya, the court's "commentary was extensive and persistent, and continued unabated" through the day of trial. In addition, Braxton's change of heart came after one of the district court's more pointed bits of commentary (opining that he "shouldn't put his head in a vice and face a catastrophic result"). The error was plain, affected Braxton's substantial rights, and had to be noticed. It was irrelevant that Braxton said, at the time, that he was entering the guilty plea voluntarily. The court also rejected the Government's argument that the district court was drawn into the issue by Braxton's request to represent himself, noting that issue was resolved before the district court really got going on why he should enter a guilty plea.
On the day of trial, the court memorialized the last plea offer that Braxton rejected (he would admit he possessed the heroin, but he wanted to put the Government to its proof) - the Government would withdraw the information and argue for a sentence of 15 years. Braxton again asked for new counsel or, in the alternative, to represent himself. Both of those requests were denied. Wading into the dispute between Braxton and his attorney, the district court expressed reluctance at letting Braxton go to trial, said Braxton was "hurting [his] own interest," and compared his decision to "put[ting] [your] head in a buzz saw that makes absolutely no sense." After a couple of breaks in the proceedings, Braxton changed his mind and agreed to plead guilty. Braxton said he didn't feel coerced or pressured into pleading, although the district court had expressed its concern that he was "unwisely proceeding to trial before a jury." Braxton unsuccessful tried to withdraw his plea and was sentenced to 138 months in prison.
On appeal, the Fourth Circuit vacated Braxton's conviction. Relying on last year's decision in Sanya, the court concluded that the district court had improperly participated in plea negotiations in violation of Rule 11 of the Rules of Criminal Procedure. As in Sanya, the court's "commentary was extensive and persistent, and continued unabated" through the day of trial. In addition, Braxton's change of heart came after one of the district court's more pointed bits of commentary (opining that he "shouldn't put his head in a vice and face a catastrophic result"). The error was plain, affected Braxton's substantial rights, and had to be noticed. It was irrelevant that Braxton said, at the time, that he was entering the guilty plea voluntarily. The court also rejected the Government's argument that the district court was drawn into the issue by Braxton's request to represent himself, noting that issue was resolved before the district court really got going on why he should enter a guilty plea.
Erroneous Career Offender Calculation Cannot Be Corrected in 2255 Proceeding
US v. Foote: Recall last year when the Fourth Circuit, in Whiteside, first concluded that an incorrect career offender calculation due to a Simmons error could be remedied in a 2255 proceeding and then, en banc, concluded that it could not. The issue in Whiteside specifically was the technical 2255 issue of whether the motion in that case (filed within a year of Simmons being decided) was timely. Thus, Whiteside didn't technically address the central substantive issue of whether an erroneous career offender designation could be remedied in a 2255 proceeding. Foote takes that issue head on and, unsurprisingly, comes to a similar conclusion.
Foote pleaded guilty to distributing crack. He was classified as a career offender based, in part, on a pair of prior North Carolina drug convictions that, under Fourth Circuit precedent at the time, carried a potential maximum sentence of more than one year in prison. He challenged the career offender determination on appeal (unsuccessfully) and then in a timely 2255 motion. Simmons was decided while Foote's 2255 motion was pending, showing that his priors were not felonies (because he was not subject to a maximum sentence of more than one year) and he was not, therefore, a career offender. The district court denied the motion, but granted a Certificate of Appealability on the issue of whether the error could be remedied in a 2255 proceeding.
On appeal, the Fourth Circuit concluded that it could not and affirmed the denial of the 2255 motion. Noting that a sentencing error (that does not impact constitutional or jurisdictional claims) can only be remedied in a 2255 proceeding if the error is "a fundamental defect which inherently results in a complete miscarriage of justice," the court concluded that "sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet this remarkably high bar." The court noted that, in general, Guideline errors are not subject to 2255 review in the Fourth Circuit. It also recognized that other circuits had drawn a distinction between career offender errors under a mandatory system (2255 applies) and advisory system (2255 doesn't apply). The court rejected Foote's attempt to stretch the Supreme Court's "actual innocence" cases to include sentencing errors (much less advisory Guideline calculation errors). In conclusion, the court expressed "frustration" at the result (pointing out that Foote had done everything correctly in order to challenge his sentence), but that "the guidance of the Supreme Court and Congress is clear" and it "ties our hands."
Foote pleaded guilty to distributing crack. He was classified as a career offender based, in part, on a pair of prior North Carolina drug convictions that, under Fourth Circuit precedent at the time, carried a potential maximum sentence of more than one year in prison. He challenged the career offender determination on appeal (unsuccessfully) and then in a timely 2255 motion. Simmons was decided while Foote's 2255 motion was pending, showing that his priors were not felonies (because he was not subject to a maximum sentence of more than one year) and he was not, therefore, a career offender. The district court denied the motion, but granted a Certificate of Appealability on the issue of whether the error could be remedied in a 2255 proceeding.
On appeal, the Fourth Circuit concluded that it could not and affirmed the denial of the 2255 motion. Noting that a sentencing error (that does not impact constitutional or jurisdictional claims) can only be remedied in a 2255 proceeding if the error is "a fundamental defect which inherently results in a complete miscarriage of justice," the court concluded that "sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet this remarkably high bar." The court noted that, in general, Guideline errors are not subject to 2255 review in the Fourth Circuit. It also recognized that other circuits had drawn a distinction between career offender errors under a mandatory system (2255 applies) and advisory system (2255 doesn't apply). The court rejected Foote's attempt to stretch the Supreme Court's "actual innocence" cases to include sentencing errors (much less advisory Guideline calculation errors). In conclusion, the court expressed "frustration" at the result (pointing out that Foote had done everything correctly in order to challenge his sentence), but that "the guidance of the Supreme Court and Congress is clear" and it "ties our hands."
Thursday, April 16, 2015
NC Second-Degree Kidnapping Is Crime of Violence
US v. Flores-Granados: Flores-Granados was convicted of second-degree kidnapping in North Carolina in 2007, after which he was deported to his native Honduras. In 2013, he was found in Virginia and eventually pleaded guilty to reentering the country illegally. At issue at sentencing was whether his prior conviction was an "aggravated felony" or "crime of violence" under 2L1.2(b)(1), resulting in an enhancement of either 8 or 16 offense levels. The district court concluded that the conviction was a crime of violence, based on the actual facts underlying the conviction (Flores-Granados broke into a home, threatened the use of a gun, and stabbed the victim with a screwdriver) that showed "the type of violent conduct which justifies the 16-point enhancement."
Flores-Granados appealed his sentence, which the Fourth Circuit affirmed. Although it agreed (and the Government conceded) that the district court erred by analyzing the underlying facts of the prior conviction, rather than the elements or (at most) the Shepard-approved documents, the district court's ultimate conclusion was correct. The court noted that kidnapping is a specifically listed "crime of violence" in the Guidelines and that the elements of second-degree burglary as defined by the North Carolina courts, fall within the generic definition of burglary contemplated by the Guidelines. As the court concluded, "[p]ut simply, the statute is what we mean when we say 'kidnapping.'"
Flores-Granados appealed his sentence, which the Fourth Circuit affirmed. Although it agreed (and the Government conceded) that the district court erred by analyzing the underlying facts of the prior conviction, rather than the elements or (at most) the Shepard-approved documents, the district court's ultimate conclusion was correct. The court noted that kidnapping is a specifically listed "crime of violence" in the Guidelines and that the elements of second-degree burglary as defined by the North Carolina courts, fall within the generic definition of burglary contemplated by the Guidelines. As the court concluded, "[p]ut simply, the statute is what we mean when we say 'kidnapping.'"
Convictions for Somali Pirates Affirmed
US v. Beyle: Beyle and his codefendant, Abrar, were involved in a Somali pirate raid against a US sailboat, the Quest, which resulted in the death of four Americans on board and the intervention of the US Navy. Both were convicted of 26 counts related to the raid, including murder within the special maritime jurisdiction of the United States (which includes the "high seas") and discharge of firearms during a crime of violence and sentenced to multiple life sentences (some concurrent, some consecutive).
Beyle and Abrar both appealed their convictions, on different grounds, which the Fourth Circuit affirmed. As to Beyle, he argued that the district court lacked jurisdiction on the murder and firearm charges because they took place not on the "high seas" but in Somali territorial waters. The raid occurred in the middle of the Indian Ocean, but the Quest was turned by the pirates toward the Somali coast and was about 30 miles from the coast when the Navy intervened. While that was within the "exclusive economic zone" of Somalia, it was not within the more narrowly defined "territorial waters, which, by international treaty (to which Somalia is a party), extend only 12 miles from the coast.
As to Abrar, he argued that he was denied Fifth and Sixth Amendment rights with regard to his defense of duress - that he had been kidnapped and forced to take part in the raid. The court concluded that his inability to subpoena witnesses was not the fault of the United States, but simply due to the fact that the witnesses were foreign nationals residing in other countries. In addition, there was no evidence that the witnesses actually existed. Therefore, Abrar was not prevented from developing and presented a duress defense.
Beyle and Abrar both appealed their convictions, on different grounds, which the Fourth Circuit affirmed. As to Beyle, he argued that the district court lacked jurisdiction on the murder and firearm charges because they took place not on the "high seas" but in Somali territorial waters. The raid occurred in the middle of the Indian Ocean, but the Quest was turned by the pirates toward the Somali coast and was about 30 miles from the coast when the Navy intervened. While that was within the "exclusive economic zone" of Somalia, it was not within the more narrowly defined "territorial waters, which, by international treaty (to which Somalia is a party), extend only 12 miles from the coast.
As to Abrar, he argued that he was denied Fifth and Sixth Amendment rights with regard to his defense of duress - that he had been kidnapped and forced to take part in the raid. The court concluded that his inability to subpoena witnesses was not the fault of the United States, but simply due to the fact that the witnesses were foreign nationals residing in other countries. In addition, there was no evidence that the witnesses actually existed. Therefore, Abrar was not prevented from developing and presented a duress defense.
Lifetime Supervised Release Term Reasonable for CP Defendant
US v. Helton: Helton pleaded guilty to being in possession of child pornography. In a statement to police following the seizure of his computer, Helton admitted the possession, denied sharing it with others, and explained that he had "sought treatment in the past." He was sentenced to 60 months in prison, below the advisory Guideline range, and to a lifetime term of supervised release.
On appeal, the Fourth Circuit affirmed Helton's lifetime term of supervised release. First, the court concluded that there were no procedural errors in the imposition of the sentence. It rejected Helton's argument that the district court had not provided sufficient explanation for why a lifetime term of supervised release was "sufficient, but no greater than necessary." In particular, the court stressed that the district court had concluded that a variance for the term of imprisonment was only appropriate "because she knew that Helton would be subject to a lengthy term of supervised release" and that the district court upheld several of Helton's objections to strict optional conditions of supervised release. Second, the court found the lifetime term (which it described as within the statutory and Guideline ranges) was also substantively reasonable, largely for the same reasons.
Judge Gregory wrote a concurring opinion, in which he praised the district court for "display[ing] courage in varying downward" and hoping that "[p]erhaps, in the future, our Guidelines will evolve to become truly proportional to the severity of our crimes."
NOTE: I argued the case on appeal for Helton.
On appeal, the Fourth Circuit affirmed Helton's lifetime term of supervised release. First, the court concluded that there were no procedural errors in the imposition of the sentence. It rejected Helton's argument that the district court had not provided sufficient explanation for why a lifetime term of supervised release was "sufficient, but no greater than necessary." In particular, the court stressed that the district court had concluded that a variance for the term of imprisonment was only appropriate "because she knew that Helton would be subject to a lengthy term of supervised release" and that the district court upheld several of Helton's objections to strict optional conditions of supervised release. Second, the court found the lifetime term (which it described as within the statutory and Guideline ranges) was also substantively reasonable, largely for the same reasons.
Judge Gregory wrote a concurring opinion, in which he praised the district court for "display[ing] courage in varying downward" and hoping that "[p]erhaps, in the future, our Guidelines will evolve to become truly proportional to the severity of our crimes."
NOTE: I argued the case on appeal for Helton.
No Prejudice In Failure to Make Jury Perform Pinkerton Analysis
US v. Rangel: Rangel was convicted at trial of various drug charges, including distribution of more than 1000 kilograms of marijuana, which carried a 120-month mandatory minimum sentence. The jury made a finding that the conspiracy involved that much marijuana, but was not instructed to determine the amount attributable to Rangel himself under a Pinkerton liability analysis. He was sentenced to 121 months in prison, the bottom of the Guideline range. Rangel filed a 2255 motion, arguing that both trial and appellate counsel were ineffective for failing to request a Pinkerton instruction and that trial counsel was ineffective for failing to object to the amount of relevant conduct attributed to Rangel at sentencing. The district court denied the motion.
On appeal, the Fourth Circuit affirmed the dismissal of Rangel's 2255 motion. With regard to the instruction issue, the court agreed (and the Government conceded) that the jury was not properly instructed and should have been required to perform a Pinkerton analysis in rendering a verdict. Therefore, trial counsel's performance fell below the standard required. However, Rangel was unable to show prejudice because he could not show "a reasonable probability of a different result" at sentencing. Reviewing the evidence at trial, the court concluded that "Rangel's sentence would have been the same with a proper jury instruction" in light of the "overwhelming" evidence against him. Furthermore, the district court would have made the same findings with regard to relevant conduct and the Guideline calculation would have been unchanged. The same analysis applied to appellate counsel's performance, as he would have been saddled with plain error review had the issue been raised. Finally, the same prejudice analysis applied to trial counsel's failure to object to the relevant conduct calculations at sentencing.
On appeal, the Fourth Circuit affirmed the dismissal of Rangel's 2255 motion. With regard to the instruction issue, the court agreed (and the Government conceded) that the jury was not properly instructed and should have been required to perform a Pinkerton analysis in rendering a verdict. Therefore, trial counsel's performance fell below the standard required. However, Rangel was unable to show prejudice because he could not show "a reasonable probability of a different result" at sentencing. Reviewing the evidence at trial, the court concluded that "Rangel's sentence would have been the same with a proper jury instruction" in light of the "overwhelming" evidence against him. Furthermore, the district court would have made the same findings with regard to relevant conduct and the Guideline calculation would have been unchanged. The same analysis applied to appellate counsel's performance, as he would have been saddled with plain error review had the issue been raised. Finally, the same prejudice analysis applied to trial counsel's failure to object to the relevant conduct calculations at sentencing.
Tuesday, March 31, 2015
RICO convictions affirmed
US v. Cornell, et al.: In this appeal, three members of the Latin Kings based in Greensboro, North Carolina, challenged their convictions for conspiracy to violate RICO, asserting trial errors in the jury instructions and a lack of sufficient evidence to support their convictions.
The defendants made several joint arguments: 1) that the government failed to establish that the RICO enterprise affected interstate commerce; 2) the jury instruction on RICO was erroneous because, in the defendants’ view, the district court was required to charge the jury that it had to unanimously agree upon the specific acts that the co-conspirators engaged in during their conspiracy; and 3) the district court gave improper Allen charges, the second of which coerced the jury into an unfavorable verdict.
The district court applied the “minimal effects” standard to determine whether a RICO conspiracy existed. The Fourth Circuit panel approved the district court’s approach, based on circuit precedent, despite the defendants’ reliance on a Sixth Circuit case, which held that when a gang is not shown to have conducted considerable economic activity, the government must prove that the RICO enterprise substantially effected interstate commerce. The panel here found that the Sixth Circuit case was not the law, nor did the panel find that case particularly valid in light of a more recent Supreme Court case to the contrary. Further, even if the Sixth Circuit case did apply here, the district court found evidence that the RICO conspiracy here involved multiple acts of bank fraud, from a false check scheme, as well as the fact that the gang used their cell phones and carried guns during multiple robberies; all of which were economic activities that would trigger a connection to interstate commerce, according to the Fourth Circuit.
With regard to predicate acts, the Fourth Circuit held that there was no requirement that the district court had to instruct the jury as to specific acts that the conspirators engaged in during the conspiracy. The panel noted that the Supreme Court has held that the RICO conspiracy statute contains no requirement of some overt or specific act, and that the conspirators merely must agree on the same criminal objective, regardless of whether that objective is acted upon or carried out. So, the panel held that directing a jury to identify what predicate acts occurred is not required.
The defendants argued that the effect of the Allen charges to the jury was improperly coercive. The Fourth Circuit panel found the district court did not abuse its discretion in the Allen charges it gave to the jury, after analyzing the language of the instruction, its incorporation with other instructions, the timing of the instruction, and the length of the jury’s subsequent deliberations. The jury here deliberated some three hours after the second Allen charge before returning a verdict, and the jury returned a split verdict, acquitting three co-defendants and finding predicate acts in 5 out of 9 possible categories submitted for review, indicating that the jury carefully considered the evidence against each defendant.
Two defendants raised separate, individual challenges, regarding trial evidence, specifically the striking of one defense witness’s testimony, the admission of a letter written to one defendant purportedly from a former gang member, as well as whether one defendant, a non-gang-member, was properly included in the conspiracy, and the sufficiency of the evidence supporting a portion of the jury’s verdict. The Fourth Circuit panel found no merit in any of these individual claims of error; it affirmed the judgment of the district court.
The defendants made several joint arguments: 1) that the government failed to establish that the RICO enterprise affected interstate commerce; 2) the jury instruction on RICO was erroneous because, in the defendants’ view, the district court was required to charge the jury that it had to unanimously agree upon the specific acts that the co-conspirators engaged in during their conspiracy; and 3) the district court gave improper Allen charges, the second of which coerced the jury into an unfavorable verdict.
The district court applied the “minimal effects” standard to determine whether a RICO conspiracy existed. The Fourth Circuit panel approved the district court’s approach, based on circuit precedent, despite the defendants’ reliance on a Sixth Circuit case, which held that when a gang is not shown to have conducted considerable economic activity, the government must prove that the RICO enterprise substantially effected interstate commerce. The panel here found that the Sixth Circuit case was not the law, nor did the panel find that case particularly valid in light of a more recent Supreme Court case to the contrary. Further, even if the Sixth Circuit case did apply here, the district court found evidence that the RICO conspiracy here involved multiple acts of bank fraud, from a false check scheme, as well as the fact that the gang used their cell phones and carried guns during multiple robberies; all of which were economic activities that would trigger a connection to interstate commerce, according to the Fourth Circuit.
With regard to predicate acts, the Fourth Circuit held that there was no requirement that the district court had to instruct the jury as to specific acts that the conspirators engaged in during the conspiracy. The panel noted that the Supreme Court has held that the RICO conspiracy statute contains no requirement of some overt or specific act, and that the conspirators merely must agree on the same criminal objective, regardless of whether that objective is acted upon or carried out. So, the panel held that directing a jury to identify what predicate acts occurred is not required.
The defendants argued that the effect of the Allen charges to the jury was improperly coercive. The Fourth Circuit panel found the district court did not abuse its discretion in the Allen charges it gave to the jury, after analyzing the language of the instruction, its incorporation with other instructions, the timing of the instruction, and the length of the jury’s subsequent deliberations. The jury here deliberated some three hours after the second Allen charge before returning a verdict, and the jury returned a split verdict, acquitting three co-defendants and finding predicate acts in 5 out of 9 possible categories submitted for review, indicating that the jury carefully considered the evidence against each defendant.
Two defendants raised separate, individual challenges, regarding trial evidence, specifically the striking of one defense witness’s testimony, the admission of a letter written to one defendant purportedly from a former gang member, as well as whether one defendant, a non-gang-member, was properly included in the conspiracy, and the sufficiency of the evidence supporting a portion of the jury’s verdict. The Fourth Circuit panel found no merit in any of these individual claims of error; it affirmed the judgment of the district court.
Monday, March 30, 2015
Cookie cutter sentences for convenience store robbers rejected
US v. Lymas, et al.: In this appeal, the Fourth Circuit considered procedural and substantive challenges to three 200-month sentences, ordered to three of the four co-conspirators in a convenience store robbery ring. Each of the defendants had different criminal histories. Each had different advisory guidelines ranges. However, each defendant received the exact same sentence, based upon the district court’s position that the sentencing guideline under-punished the crimes. The sentences imposed on each defendant amounted to upward variances ranging from 3 months for one, 15 months for the second, and 62 months for the third.
The Fourth Circuit determined that, except for offering its view of the seriousness of the offense that occurred in this case (i.e., robberies that in some instances involved handguns, in one case a juvenile, and some violence), the sentencing court ignored every other statutory factor, and imposed sentences purely based upon the crime rather than the individual defendants. In imposing these sentences, according to the panel here, the district court rejected not only the Sentencing Commission’s considered judgment as to the appropriate sentence for the crimes, but also the “foundational principles of the Guidelines themselves - - proportionality in sentence, which ‘match[es] punishment with culpability’.” While the imposition of this sentence may technically be permissible post-Booker, the Fourth Circuit determined that this sort of “wholesale rejection” of the Guidelines requires a “significantly more detailed explanation than” the district court gave here. The Fourth Circuit vacated the sentences and remanded to the district court for resentencing.
The Fourth Circuit determined that, except for offering its view of the seriousness of the offense that occurred in this case (i.e., robberies that in some instances involved handguns, in one case a juvenile, and some violence), the sentencing court ignored every other statutory factor, and imposed sentences purely based upon the crime rather than the individual defendants. In imposing these sentences, according to the panel here, the district court rejected not only the Sentencing Commission’s considered judgment as to the appropriate sentence for the crimes, but also the “foundational principles of the Guidelines themselves - - proportionality in sentence, which ‘match[es] punishment with culpability’.” While the imposition of this sentence may technically be permissible post-Booker, the Fourth Circuit determined that this sort of “wholesale rejection” of the Guidelines requires a “significantly more detailed explanation than” the district court gave here. The Fourth Circuit vacated the sentences and remanded to the district court for resentencing.
Monday, March 16, 2015
Robbery conspiracy convictions affirmed - cell phone evidence
US v. Reed, et al.: In this appeal, the four appellants challenged the trial court’s admission of FBI cellular analysis maps from cell phones purportedly belonging to the four, and their service providers’ cell phone towers, as well as the admission other data derived from the appellants’ cell phones. They also raised a sufficiency of the evidence challenge, generally denying that they committed the crimes because there were no eye witnesses who could identify them and the government’s theories could have been mere coincidences. The Fourth Circuit affirmed on all counts.
The appellants committed three robberies in and around the greater metropolitan area of Washington D.C. in December 2012. During their final robbery, they unwittingly took some cash embedded with GPS devices, which lead police directly to the appellants. The four appellants went to trial.
At trial, the government provided the appellants’ names, rather than phone numbers, when showing locations of the cell phones on a variety of maps (which, they also argued, were not drawn to scale) corresponding with locations of each of the robberies that took place. Using a process known as “historical cell-cite analysis,” the FBI can extrapolate an area in which a phone was located over time. This cell phone evidence, admitted at trial, placed at least one of the appellant near the scene of each robbery at the time the robberies occurred. Appellants argued that this evidence was not properly authenticated, irrelevant, and unfairly prejudicial.
The Fourth Circuit reviewed the district court’s admission of this evidence for an abuse of discretion, i.e., whether the admission of the evidence was “arbitrary and irrational,” and it found that the district court properly admitted the evidence, as the government provided adequate reason for the jury to believe that the cell phone data could be used to approximate the phones’ locations at pertinent times and that each cell phone was associated with a particular defendant. In addition to the FBI maps, the photos and text messages, and the labeling of people in the cell phone contacts lists, served to authenticate each phone as belonging to a specific individual.
One of the appellants raised a Sixth Amendment Confrontation Clause challenge, because no everyone in the chain of custody for his purported cell phone testified at trial, i.e., there was no testimony about who initially seized the phone and where it was taken. Again, the stored photos and text messages on the cell phone allowed the government to connect the phone to this appellant, so any error that may have occurred in the introduction of the evidence was harmless beyond a reasonable doubt.
The appellants committed three robberies in and around the greater metropolitan area of Washington D.C. in December 2012. During their final robbery, they unwittingly took some cash embedded with GPS devices, which lead police directly to the appellants. The four appellants went to trial.
At trial, the government provided the appellants’ names, rather than phone numbers, when showing locations of the cell phones on a variety of maps (which, they also argued, were not drawn to scale) corresponding with locations of each of the robberies that took place. Using a process known as “historical cell-cite analysis,” the FBI can extrapolate an area in which a phone was located over time. This cell phone evidence, admitted at trial, placed at least one of the appellant near the scene of each robbery at the time the robberies occurred. Appellants argued that this evidence was not properly authenticated, irrelevant, and unfairly prejudicial.
The Fourth Circuit reviewed the district court’s admission of this evidence for an abuse of discretion, i.e., whether the admission of the evidence was “arbitrary and irrational,” and it found that the district court properly admitted the evidence, as the government provided adequate reason for the jury to believe that the cell phone data could be used to approximate the phones’ locations at pertinent times and that each cell phone was associated with a particular defendant. In addition to the FBI maps, the photos and text messages, and the labeling of people in the cell phone contacts lists, served to authenticate each phone as belonging to a specific individual.
One of the appellants raised a Sixth Amendment Confrontation Clause challenge, because no everyone in the chain of custody for his purported cell phone testified at trial, i.e., there was no testimony about who initially seized the phone and where it was taken. Again, the stored photos and text messages on the cell phone allowed the government to connect the phone to this appellant, so any error that may have occurred in the introduction of the evidence was harmless beyond a reasonable doubt.
Tuesday, March 10, 2015
Drug totals must be proven with facts
US v. Flores-Alvarado: In this appeal, the Fourth Circuit vacated and remanded a life sentence (and concurrent 480-month term) for the defendant’s convictions for his part in a drug trafficking conspiracy that purportedly involved over 30,000 kilos of marijuana equivalent. At issue was whether the district court conducted a sufficient inquiry into the calculation of the defendant’s drug relevant conduct, and the Fourth Circuit determined that it had not, and remanded the case for further specific factual determinations regarding the defendant’s role in the conspiracy, in addition to whether the drug quantities were reasonably foreseeable as to him.
An investigation into the trafficking organizations, which involved multiple sources of both marijuana and cocaine, lead to two main seizures of drugs from houses in Stokesdale, North Carolina and Lexington, Kentucky, described briefly in the PSR. During two separate sentencing hearings, the Government did not call any witnesses or present any other evidence about the drug quantities in either of these seizures. The district court relied upon the recitation of events from the PSR, which attributed all seized quantities to the defendant. At both sentencing hearings, Flores-Alvarado objected to the drug quantities attributed to him, to no avail.
The Fourth Circuit found that the district court clearly erred in failing to resolve the dispute about whether the events as described in the PSR supported attributing the seized amounts to Flores-Alvarado, and it did not make the necessary factual findings to attribute those amounts to him. When dealing with drug conspiracies, the Fourth Circuit requires lower courts to “make particularized findings with respect to both the scope of the defendant’s agreement and the foreseeability of [the conduct at issue].” The Fourth Circuit concluded that the PSR did not contain facts sufficient to show that the seized drug quantities were within the scope of Flores-Alvarado’s criminal activity, that the district court failed to make any findings on that “critical” point, and consequently, the Fourth Circuit was unable to review the issue.
An investigation into the trafficking organizations, which involved multiple sources of both marijuana and cocaine, lead to two main seizures of drugs from houses in Stokesdale, North Carolina and Lexington, Kentucky, described briefly in the PSR. During two separate sentencing hearings, the Government did not call any witnesses or present any other evidence about the drug quantities in either of these seizures. The district court relied upon the recitation of events from the PSR, which attributed all seized quantities to the defendant. At both sentencing hearings, Flores-Alvarado objected to the drug quantities attributed to him, to no avail.
The Fourth Circuit found that the district court clearly erred in failing to resolve the dispute about whether the events as described in the PSR supported attributing the seized amounts to Flores-Alvarado, and it did not make the necessary factual findings to attribute those amounts to him. When dealing with drug conspiracies, the Fourth Circuit requires lower courts to “make particularized findings with respect to both the scope of the defendant’s agreement and the foreseeability of [the conduct at issue].” The Fourth Circuit concluded that the PSR did not contain facts sufficient to show that the seized drug quantities were within the scope of Flores-Alvarado’s criminal activity, that the district court failed to make any findings on that “critical” point, and consequently, the Fourth Circuit was unable to review the issue.
Tuesday, March 03, 2015
Denial of Mens Rea Can Lead to Loss of Acceptance
US v. Burns: Burns got in a beef with Poole at a convenience store. The next day, according to Burns's fiance, he wanted "to kill" Poole for "jumping him at the store." Burns (and his fiance) was in a parked car later that day when he saw Poole (and others) in another car. According to the fiance, Burns got out, confronted Poole, returned to the car and got his gun, telling her "I'm going to shoot him." She also testified that Burns either said "I'm going to shoot that motherfucker" or said to Poole, "motherfucker, I'm going to kill you." After one of Poole's passengers got out of the car, Burns shot once into the car (no one was hurt). Poole sped away, initially pursued by Burns, who later broke off the chase.
Burns pleaded guilty to being a felon in possession of a firearm. The PSR recommended that his Guideline range be calculated based on a cross reference to murder Guideline. With a reduction for acceptance of responsibility, his Guideline range was 92-115 months. Burns objected to those calculations. Although he admitted possessing the gun and firing it in the car, he denied having the mens rea needed to support an (attempted) murder cross reference, as opposed to aggravated assault. The district court not only overruled that objection and applied the murder cross reference, but concluded that Burns had falsely denied relevant conduct and did not award a reduction for acceptance of responsibility. As a result, Burns's Guideline range was 120 months - the statutory maximum. That was the sentence he received.
On appeal, the Fourth Circuit affirmed Burns's sentence. The court styled the issue by asking "is acting with a particular mental state relevant conduct within the meaning of USSG 1B1.3(a)(1)(A)?" The court concluded that it was, rejecting Burns's argument to restrict relevant conduct to only physical actions. That reading was inconsistent with earlier Fourth Circuit law approving of cross references for attempt (which is all about mens rea) based on "acts or omissions" of the defendant. Thus, "when Burns denied his 'acts and omissions' including shooting with intent to kill, he denied relevant conduct attributable to him."
Burns pleaded guilty to being a felon in possession of a firearm. The PSR recommended that his Guideline range be calculated based on a cross reference to murder Guideline. With a reduction for acceptance of responsibility, his Guideline range was 92-115 months. Burns objected to those calculations. Although he admitted possessing the gun and firing it in the car, he denied having the mens rea needed to support an (attempted) murder cross reference, as opposed to aggravated assault. The district court not only overruled that objection and applied the murder cross reference, but concluded that Burns had falsely denied relevant conduct and did not award a reduction for acceptance of responsibility. As a result, Burns's Guideline range was 120 months - the statutory maximum. That was the sentence he received.
On appeal, the Fourth Circuit affirmed Burns's sentence. The court styled the issue by asking "is acting with a particular mental state relevant conduct within the meaning of USSG 1B1.3(a)(1)(A)?" The court concluded that it was, rejecting Burns's argument to restrict relevant conduct to only physical actions. That reading was inconsistent with earlier Fourth Circuit law approving of cross references for attempt (which is all about mens rea) based on "acts or omissions" of the defendant. Thus, "when Burns denied his 'acts and omissions' including shooting with intent to kill, he denied relevant conduct attributable to him."
Court Rejects Jury Instructions In Marriage Fraud Case
US v. Sonmez: Sonmez came to the United States on a tourist visa in 2000 but remained past its expiration date. In 2008 he wed Eckloff and sought a green card based on marriage to a US citizen. The green card was never awarded and eventually an investigation led to Albrecht, who told investigators of a scheme where citizens would marry nationals from the Middle East in order favorably impact their immigration status. She had introduced Eckloff to Sonmez, who were married two weeks later. Both Sonmez and Eckloff were charged with marriage fraud, but Eckloff pleaded guilty and testified against Sonmez. She testified that received $2000 for marrying Sonmez and that they never had a romantic or sexual relationship with each other. Sonmez testified that the relationship was real, had lasted six months prior to marriage, and the marriage was "real" for him. He was convicted and sentenced to a year in prison.
On appeal, the Fourth Circuit affirmed Sonmez's conviction. Sonmez argued that the district court had erred by not giving two requested instructions to the jury, one that required the Government to prove that Sonmez's "only reason" for marrying was the obtain a green card and one that required proof that he and Eckloff had "no intent to establish a life together." Instead, the court instructed the jury that the Government had to prove that the marriage was "entered into for the purpose of evading" US immigration laws. The court found that Sonmez's requested instructions were properly rejected because they were improper statements of the law.
On appeal, the Fourth Circuit affirmed Sonmez's conviction. Sonmez argued that the district court had erred by not giving two requested instructions to the jury, one that required the Government to prove that Sonmez's "only reason" for marrying was the obtain a green card and one that required proof that he and Eckloff had "no intent to establish a life together." Instead, the court instructed the jury that the Government had to prove that the marriage was "entered into for the purpose of evading" US immigration laws. The court found that Sonmez's requested instructions were properly rejected because they were improper statements of the law.
Analysis of SORNA Priors Involves Fact-Intensive Approach
US v. Price: Price pleaded guilty 2010 to "assault and batter of a high and aggravated nature" in South Carolina. The basis for the charge was the claim that Price had forced a 12-year old girl to perform oral sex on him, as set forth during the plea hearing. After his sentence was finished, Price moved to several different states, eventually returning to South Carolina. Generally, during this time, he was not registering as a sex offender. As a result, he was charged in South Carolina with failing to register under SORNA. Price moved to dismiss, arguing that his prior conviction wasn't a "sex offense" as defined by SORNA. Looking to the facts of the prior conviction the district court denied the motion. Price entered a conditional guilty plea and was sentenced to 24 months in prison and a lifetime term of supervised release.
On appeal, the Fourth Circuit affirmed Price's conviction by vacated his sentence. On the conviction the court framed the issue as whether the categorical or circumstance-specific approach was appropriate in determining whether a prior offense was a "sex offense" under SORNA (the modified categorical approach was out because the court had earlier found the relevant South Carolina offense indivisible). The court concluded the circumstance-specific approach - which allows the district court (or jury) to examine the underlying facts of the offense - was appropriate for two reasons. First, the text, structure, and purpose of SORNA supported that conclusion because of it's references to "conduct" and the "nature" of the offense, rather than elements of a generic conviction. Second, the Sixth Amendment concerns that animated the categorical approach in sentencing contexts was not present here because the Government bore the burden of proving a prior offense was a "sex offense" to a jury if the defendant went to trial. On the sentence, the court applied the recent Collins decision, concluding that the district court incorrectly concluded that the supervised release Guideline range was life and remanding for resentencing.
On appeal, the Fourth Circuit affirmed Price's conviction by vacated his sentence. On the conviction the court framed the issue as whether the categorical or circumstance-specific approach was appropriate in determining whether a prior offense was a "sex offense" under SORNA (the modified categorical approach was out because the court had earlier found the relevant South Carolina offense indivisible). The court concluded the circumstance-specific approach - which allows the district court (or jury) to examine the underlying facts of the offense - was appropriate for two reasons. First, the text, structure, and purpose of SORNA supported that conclusion because of it's references to "conduct" and the "nature" of the offense, rather than elements of a generic conviction. Second, the Sixth Amendment concerns that animated the categorical approach in sentencing contexts was not present here because the Government bore the burden of proving a prior offense was a "sex offense" to a jury if the defendant went to trial. On the sentence, the court applied the recent Collins decision, concluding that the district court incorrectly concluded that the supervised release Guideline range was life and remanding for resentencing.
Monday, February 02, 2015
Proper consideration of rehab at sentencing
US v. Lemon - In this appeal, the Fourth Circuit heard a sentencing challenge from Appellant Lemon, who argued that the district court plainly erred when it considered her rehabilitative needs during sentencing, or violated the Tapia rule. In 2008, Lemon pled guilty to conspiracy to commit securities fraud, and she received a 30-month prison sentence, to be followed by three years of supervised release. Five months into her term of supervision, police arrested Lemon for several instances of forging checks.
The violation report completed by Lemon’s probation officer recommended imprisonment for 24 months, based on the guidelines and the nature of the violations. At her final revocation hearing, the district court adopted the government’s recommendation of a within-guidelines sentence of 24 months, discussing its perception of Lemon’s mental health, that she must “have a serious emotional problem” with the repetitive nature of Lemon’s criminal activity, and that Lemon needed rehabilitative mental health treatment.
In interpreting Tapia, the Fourth Circuit has held that courts may consider rehabilitation, as long as the court is not imposing or lengthening a sentence to further rehabilitation. The Fourth Circuit has also held that Tapia applies in the supervised release context.
Here, the panel held that there was no error committed, because the district court did not indicated that its concern for Lemon’s mental health was a factor in determining the length of her sentence, that the court stated it was not even sure that Lemon could receive mental health treatment as a part of her incarceration, and that the rationale for her sentence had nothing to do with Lemon’s mental health, but her tendency to re-offend, and protect the public from further crimes. The Fourth Circuit affirmed her 24-month supervised release revocation sentence, advising district courts to separate any discussion of rehabilitative needs from its discussion of the factors that influence sentencing.
The violation report completed by Lemon’s probation officer recommended imprisonment for 24 months, based on the guidelines and the nature of the violations. At her final revocation hearing, the district court adopted the government’s recommendation of a within-guidelines sentence of 24 months, discussing its perception of Lemon’s mental health, that she must “have a serious emotional problem” with the repetitive nature of Lemon’s criminal activity, and that Lemon needed rehabilitative mental health treatment.
In interpreting Tapia, the Fourth Circuit has held that courts may consider rehabilitation, as long as the court is not imposing or lengthening a sentence to further rehabilitation. The Fourth Circuit has also held that Tapia applies in the supervised release context.
Here, the panel held that there was no error committed, because the district court did not indicated that its concern for Lemon’s mental health was a factor in determining the length of her sentence, that the court stated it was not even sure that Lemon could receive mental health treatment as a part of her incarceration, and that the rationale for her sentence had nothing to do with Lemon’s mental health, but her tendency to re-offend, and protect the public from further crimes. The Fourth Circuit affirmed her 24-month supervised release revocation sentence, advising district courts to separate any discussion of rehabilitative needs from its discussion of the factors that influence sentencing.
Mandatory consecutive life sentence under 18 U.S.C. sect. 924(j) affirmed
US v. Bran - Appellant Bran, alleged leader of a violent MS-13 clique, was convicted of three counts related to the murder of one person, and two further counts in relation to the attempted murder of a second person. In his appeal, Bran challenged the sufficiency of the evidence of Count 3, which charged him with conspiracy to commit murder under 18 U.S.C. sect. 924(j), and for the district court’s imposition of a mandatory consecutive life sentence for that conviction.
In count 3, Bran was charged under three criminal statutes, 18 U.S.C. sects. 924(c)(1)(A), 924(j)(1) and 2; the first of these prohibits the use or carrying of a firearm in relation to a drug trafficking offense or crime of violence, or possession of a firearm in furtherance of one of those crimes, and violation of the statute carries a minimum of five years’ imprisonment, which must run consecutively to any other sentence. Under the second statute, 924(j), any person who causes the death of another through the use of a firearm in the course of committing a violation of the first statute, 924(c), could receive the death penalty or imprisonment for 10 years to life.
With respect to the relationship between sects. 924(c) and 924(j), the Fourth Circuit held that because Congress made 924(j) separate from 924(c), it must have intended for 924(j) to have the effect of enhancing the sentence imposed for a conviction under 924(c). To interpret otherwise, according to the panel, would lead to the conclusion that a person with a 924(c) conviction which resulted in murder could receive a more lenient sentence than if the murder never occurred. Further, the panel held that four out of the five circuits that considered this issue have held that 924(j) requires mandatory consecutive sentencing.
In contrast, the dissent of this case disagreed with the majority about the nature of the relationship between these two statutes, finding that 924(j) is discrete from 924(c), and the express statutory mandate of 924(c) should not be applied to 924(j). Secondly, Congress enacted 924(j) to “extend the death penalty to second-degree murders,” which does not result in a more lenient sentencing scheme, so 924(j) should not be interpreted as requiring mandatory consecutive sentencing.
In count 3, Bran was charged under three criminal statutes, 18 U.S.C. sects. 924(c)(1)(A), 924(j)(1) and 2; the first of these prohibits the use or carrying of a firearm in relation to a drug trafficking offense or crime of violence, or possession of a firearm in furtherance of one of those crimes, and violation of the statute carries a minimum of five years’ imprisonment, which must run consecutively to any other sentence. Under the second statute, 924(j), any person who causes the death of another through the use of a firearm in the course of committing a violation of the first statute, 924(c), could receive the death penalty or imprisonment for 10 years to life.
With respect to the relationship between sects. 924(c) and 924(j), the Fourth Circuit held that because Congress made 924(j) separate from 924(c), it must have intended for 924(j) to have the effect of enhancing the sentence imposed for a conviction under 924(c). To interpret otherwise, according to the panel, would lead to the conclusion that a person with a 924(c) conviction which resulted in murder could receive a more lenient sentence than if the murder never occurred. Further, the panel held that four out of the five circuits that considered this issue have held that 924(j) requires mandatory consecutive sentencing.
In contrast, the dissent of this case disagreed with the majority about the nature of the relationship between these two statutes, finding that 924(j) is discrete from 924(c), and the express statutory mandate of 924(c) should not be applied to 924(j). Secondly, Congress enacted 924(j) to “extend the death penalty to second-degree murders,” which does not result in a more lenient sentencing scheme, so 924(j) should not be interpreted as requiring mandatory consecutive sentencing.
4th Circuit considers privacy interests in one's home during term of supervision
US v. Hill, et al. - In this appeal, three folks on terms of supervised release raised a Fourth Amendment challenge to a probation officer’s walk-through and a dog-sniff of an apartment where one of the folks had purportedly moved. A United States Probation officer suspected supervisee Eric Barker of moving without notification, and obtained an arrest warrant for Barker, executing it at his alleged new apartment. Once there, the probation officer discovered Barker and two others living or staying there, both also serving terms of supervised release, and conducted a protective sweep. After all three folks were arrested and the sweep concluded, the probation officers conducted a further walk-through and dog sniff, during which time the dog alerted and the officers found further evidence of supervised release violations.
Barker and the two others, Robert Hill and Megan Dunigan, claimed on appeal that the walk-through and dog sniff violated the individuals’ rights under the Fourth Amendment, and under Fourth Circuit precedent, a search warrant should have been obtained before the advanced searches, beyond the protective sweep, were conducted. The Fourth Circuit agreed. Though all three individuals were subject to the standard condition that required them to “permit a Probation Officer to visit him or her at any time, at home or elsewhere, and [to] permit confiscation of any contraband observed in plain view,” probation officers must comply with the Fourth Amendment’s warrant requirement.
As the legal basis for its decision, the Fourth Circuit panel used United States v. Bradley from 1978, wherein defendant Bradley was on parole with a condition requiring him allow his parole officer to visit his home or place of employment, and no parole condition required Bradley to consent to searches. Acting on a tip, Bradley’s parole officer went to Bradley’s boarding house, searched his room, and located a firearm. The Fourth Circuit held that the parole officer should have obtained a search warrant, even where the parolee has consented to periodic and unannounced visits by the parole officer. Hence, there was an agreement to home visits by a probation officer, but not warrantless searches. Further, the Fourth Circuit panel found here that Bradley still controls, and that law enforcement officers may not search the home of an individual on supervised release who is not subject to a warrantless search condition, unless the officers have a warrant supported by probable cause.
The Fourth Circuit remanded the case to the district court for an evaluation of whether the information gained during the illegal searches affected the officer’s decision to seek a warrant.
Barker and the two others, Robert Hill and Megan Dunigan, claimed on appeal that the walk-through and dog sniff violated the individuals’ rights under the Fourth Amendment, and under Fourth Circuit precedent, a search warrant should have been obtained before the advanced searches, beyond the protective sweep, were conducted. The Fourth Circuit agreed. Though all three individuals were subject to the standard condition that required them to “permit a Probation Officer to visit him or her at any time, at home or elsewhere, and [to] permit confiscation of any contraband observed in plain view,” probation officers must comply with the Fourth Amendment’s warrant requirement.
As the legal basis for its decision, the Fourth Circuit panel used United States v. Bradley from 1978, wherein defendant Bradley was on parole with a condition requiring him allow his parole officer to visit his home or place of employment, and no parole condition required Bradley to consent to searches. Acting on a tip, Bradley’s parole officer went to Bradley’s boarding house, searched his room, and located a firearm. The Fourth Circuit held that the parole officer should have obtained a search warrant, even where the parolee has consented to periodic and unannounced visits by the parole officer. Hence, there was an agreement to home visits by a probation officer, but not warrantless searches. Further, the Fourth Circuit panel found here that Bradley still controls, and that law enforcement officers may not search the home of an individual on supervised release who is not subject to a warrantless search condition, unless the officers have a warrant supported by probable cause.
The Fourth Circuit remanded the case to the district court for an evaluation of whether the information gained during the illegal searches affected the officer’s decision to seek a warrant.
Tuesday, December 23, 2014
Simmons-Fueled Career Offender Error Cannot Be Vacated By 2255 Motion
US v. Whiteside: Whiteside was sentenced as a career offender based on a pair of North Carolina convictions. After Simmons, those convictions are no longer felonies. Whiteside filed a 2255 motion within a year after Simmons was decided seeking to vacate his sentence. The district court denied the motion, for various reasons. On appeal, a panel of the Fourth Circuit reversed, finding that Whiteside had not waived his right to file the motion, that it was timely because it was filed within a year of Simmons and, at any rate, equitable tolling applied. The panel also concluded that Whiteside prevailed on the merits and ordered his sentence vacated.
The Government sought rehearing and the full Fourth Circuit reversed the panel, affirming the denial of Whiteside's motion. In doing so, the en banc court (Judge Wilkinson writing the opinion) did not reach the merits, but concluded that Whiteside's motion was not timely filed. Although it was filed within a year of Simmons, the court concluded that Simmons only stated new law, and would not constitute a new "fact" which restarted the one-year statute of limitations in 2255. The court distinguished between a situation where a prior conviction itself was vacated - it's nonexistence is a "fact" - and a legal change that renders the still extant conviction different in kind. The en banc court also concluded that equitable tolling did not apply, noting that although it might have been futile for Whiteside to file a 2255 on these grounds before Simmons, other defendants had done so (Simmons, for one).
Judge Gregory dissented, joined by Judge Davis, arguing that the majority had misconstrued its ability to act equitably (in light of recent Supreme Court precedent) and that it "is simply unjust to deny someone the opportunity to receive a properly calculated sentence." He also argues that the majority places too much weight on concerns about finality, noting the recent waves of amendments to the Guidelines that have been made retroactive. Judge Wynn also dissented, arguing (by quoting Judge Wilkinson from 2012) that the opinion would "drive citizens to rub[] their eyes and scratch[] their heads" and that if the "objectively reasonable person on the street" was asked whether a court could fix this mistake the "response would be 'Of course. Why do you ask?'"
The Government sought rehearing and the full Fourth Circuit reversed the panel, affirming the denial of Whiteside's motion. In doing so, the en banc court (Judge Wilkinson writing the opinion) did not reach the merits, but concluded that Whiteside's motion was not timely filed. Although it was filed within a year of Simmons, the court concluded that Simmons only stated new law, and would not constitute a new "fact" which restarted the one-year statute of limitations in 2255. The court distinguished between a situation where a prior conviction itself was vacated - it's nonexistence is a "fact" - and a legal change that renders the still extant conviction different in kind. The en banc court also concluded that equitable tolling did not apply, noting that although it might have been futile for Whiteside to file a 2255 on these grounds before Simmons, other defendants had done so (Simmons, for one).
Judge Gregory dissented, joined by Judge Davis, arguing that the majority had misconstrued its ability to act equitably (in light of recent Supreme Court precedent) and that it "is simply unjust to deny someone the opportunity to receive a properly calculated sentence." He also argues that the majority places too much weight on concerns about finality, noting the recent waves of amendments to the Guidelines that have been made retroactive. Judge Wynn also dissented, arguing (by quoting Judge Wilkinson from 2012) that the opinion would "drive citizens to rub[] their eyes and scratch[] their heads" and that if the "objectively reasonable person on the street" was asked whether a court could fix this mistake the "response would be 'Of course. Why do you ask?'"
Friday, December 19, 2014
Court Affirms Denial of 2255 Motion With Selective Prosecution Claim
US v. Mason: Mason was driving a car in Georgia when it was stopped for having overly tinted windows. The trooper also suspected that Mason and his passenger were up to something because he did not pull over immediately, there was a strong air freshener smell from the car, their stories about where they were going differed, and "there was no visible luggage." The trooper requested back up and a drug dog, noting that "these guys are spooky, spooky." He later said that he "felt like we were fixing to have a violent confrontation" because Mason and his passenger were "older black males that are not in good shape" and they were likely "ready to shoot it out." Mason refused to consent to search. The drug dog arrived (after Mason got a ticket for the tint), alerted and 10 kilograms of cocaine was found in the trunk.
Mason was charged in South Carolina was conspiracy to possess with intent to distribute more than five kilograms of cocaine. After the district court denied his motion to suppress, he went to trial, where the passenger was the primary witness against him. In addition, a recording of a conversation between Mason and the passenger in the back seat of the cop car was introduced. During closing argument, the Government argued that in the conversation Mason didn't express much surprise at the cocaine being found in the trunk. The jury convicted Mason and he was sentenced to life in prison. His conviction and sentence were affirmed on appeal. Mason filed a 2255 motion alleging that his trial and appellate attorney had been ineffective, which the district court denied.
On appeal, the Fourth Circuit affirmed the denial of Mason's 2255 motion. The court rejected Mason's argument that counsel was ineffective for not pursuing a claim that he was subject to "racially selective law enforcement," calling such a claim "a long shot," particularly when compared to the Fourth Amendment argument that counsel did raise. Mason could point to no Supreme Court or Fourth Circuit cases where such a claim had been successful. Nor did the district court err by not holding an evidentiary hearing on the issue. The court also rejected Mason's argument that trial counsel was ineffective for not properly challenging the Government's use of his post-arrest behavior during closing argument. The recorded conversation was done after Miranda warnings were given, was not custodial, and had no police involvement at all.
Judge Gregory concurred and dissented, arguing that Mason's trial counsel was ineffective for not even investigating the potential equal protection claim, based on the testimony of the officer during the suppression hearing.
Mason was charged in South Carolina was conspiracy to possess with intent to distribute more than five kilograms of cocaine. After the district court denied his motion to suppress, he went to trial, where the passenger was the primary witness against him. In addition, a recording of a conversation between Mason and the passenger in the back seat of the cop car was introduced. During closing argument, the Government argued that in the conversation Mason didn't express much surprise at the cocaine being found in the trunk. The jury convicted Mason and he was sentenced to life in prison. His conviction and sentence were affirmed on appeal. Mason filed a 2255 motion alleging that his trial and appellate attorney had been ineffective, which the district court denied.
On appeal, the Fourth Circuit affirmed the denial of Mason's 2255 motion. The court rejected Mason's argument that counsel was ineffective for not pursuing a claim that he was subject to "racially selective law enforcement," calling such a claim "a long shot," particularly when compared to the Fourth Amendment argument that counsel did raise. Mason could point to no Supreme Court or Fourth Circuit cases where such a claim had been successful. Nor did the district court err by not holding an evidentiary hearing on the issue. The court also rejected Mason's argument that trial counsel was ineffective for not properly challenging the Government's use of his post-arrest behavior during closing argument. The recorded conversation was done after Miranda warnings were given, was not custodial, and had no police involvement at all.
Judge Gregory concurred and dissented, arguing that Mason's trial counsel was ineffective for not even investigating the potential equal protection claim, based on the testimony of the officer during the suppression hearing.
District Court "Repeated and Direct" Urging that Defendant Accept Plea Bargain Is Plain Error
US v. Sanya: Sanya ran a credit card fraud scheme, to which he pleaded guilty in federal court July 2012. He was released on bond pending sentencing. Six weeks later he was arrested after having restarted the fraud scheme. He was charged in federal court again, this time with multiple charges including access device fraud and aggravated identity theft. The Government quickly offered a plea bargain that would allow the sentencings for the original conviction and the new charges to take place at the same time. Sanya rejected the offer initially, but after the district court opined at a detention hearing about the benefits of doing so, Sanya changed his mind. After entering a guilty plea, he was sentenced to a total (on both convictions) of 212 months in prison.
On appeal, the Fourth Circuit vacated his second set of convictions because of the district court's insertion of itself into plea negotiations. Applying plain error review, the court found that the district court erred (as the Government conceded) and that the error was plain (as the Government did not). As to whether the error affected Sanya's substantial rights, the court concluded that the record showed a "reasonable probability that, but for the error, he would not have entered the plea," including his initial refusal of the offer, the breadth of the district court's commentary, and the swiftness with which Sanya changed his mind (he signed a plea agreement five days after the hearing). The court distinguished the Government's reliance on cases taken from other jurisdictions, raised mostly in a series of five Rule 28(j) letters filed in three weeks ("perhaps a record," the court notes). Finally, the court concluded that the error was of the kind that it should notice, observing that the district court's comments were "repeated and direct" and that its "exhortations saturated the hearing."
On appeal, the Fourth Circuit vacated his second set of convictions because of the district court's insertion of itself into plea negotiations. Applying plain error review, the court found that the district court erred (as the Government conceded) and that the error was plain (as the Government did not). As to whether the error affected Sanya's substantial rights, the court concluded that the record showed a "reasonable probability that, but for the error, he would not have entered the plea," including his initial refusal of the offer, the breadth of the district court's commentary, and the swiftness with which Sanya changed his mind (he signed a plea agreement five days after the hearing). The court distinguished the Government's reliance on cases taken from other jurisdictions, raised mostly in a series of five Rule 28(j) letters filed in three weeks ("perhaps a record," the court notes). Finally, the court concluded that the error was of the kind that it should notice, observing that the district court's comments were "repeated and direct" and that its "exhortations saturated the hearing."
Thursday, December 18, 2014
Labyrinthine sex offender registration requirements confound another defendant
US v. Collins - In this appeal, Dwaine Collins challenged his failure to register conviction on the grounds that the government failed to prove that he knew he had an obligation to register.
Collins, an illiterate man, committed the offense that triggered his 10-year registration obligation in 1998 in North Carolina. After his release from prison, Collins relocated to Ohio where he registered. In 2002, Collins failed to register, and moved to Parkersburg, WV. Nine years later, he was arrested in Ohio for an attempted theft, and he received a state failure to register charge dating back to 2002. A state court judge in Ohio had suggested to Collins in his state court proceeding that the time period for registration could have expired. After serving a state sentence in Ohio, Collins returned to WV, where he did not register. Approximately a year and a half later, he received the instant federal indictment for failing to register under SORNA.
The district court determined that Collins knowingly failed to register, finding ample evidence of Collins’ knowing avoidance of his obligation to register. It held that the knowledge element of the SORNA offense was satisfied as long as Collins knew that he had to register under some scheme, federal or state, but not SORNA specifically. The district court also determined that the state court judge was merely advising Collins, not giving him a binding legal opinion on Collins’ registration requirements going forward. The Fourth Circuit affirmed the district court’s findings.
Collins also appealed the reasonableness of his sentence. He received a sentence of 30 months’ imprisonment, to be followed by a term of supervised release of 10 years. Pursuant to the Sentencing Commission’s recent clarifying amendment that the supervised release term associated with a SORNA offense is not a “sex offense,” the Fourth Circuit vacated the supervised release portion of Collins’ sentence and remanded for further proceedings.
Collins, an illiterate man, committed the offense that triggered his 10-year registration obligation in 1998 in North Carolina. After his release from prison, Collins relocated to Ohio where he registered. In 2002, Collins failed to register, and moved to Parkersburg, WV. Nine years later, he was arrested in Ohio for an attempted theft, and he received a state failure to register charge dating back to 2002. A state court judge in Ohio had suggested to Collins in his state court proceeding that the time period for registration could have expired. After serving a state sentence in Ohio, Collins returned to WV, where he did not register. Approximately a year and a half later, he received the instant federal indictment for failing to register under SORNA.
The district court determined that Collins knowingly failed to register, finding ample evidence of Collins’ knowing avoidance of his obligation to register. It held that the knowledge element of the SORNA offense was satisfied as long as Collins knew that he had to register under some scheme, federal or state, but not SORNA specifically. The district court also determined that the state court judge was merely advising Collins, not giving him a binding legal opinion on Collins’ registration requirements going forward. The Fourth Circuit affirmed the district court’s findings.
Collins also appealed the reasonableness of his sentence. He received a sentence of 30 months’ imprisonment, to be followed by a term of supervised release of 10 years. Pursuant to the Sentencing Commission’s recent clarifying amendment that the supervised release term associated with a SORNA offense is not a “sex offense,” the Fourth Circuit vacated the supervised release portion of Collins’ sentence and remanded for further proceedings.
Appellant liable as both principal and accessory after the fact
US v. White - In this case, Appellant White received three 78-month concurrent terms of imprisonment for his part(s) in the intentional burning of a two-unit apartment building he owned. He received convictions for conspiracy to commit arson and mail fraud, aiding and abetting arson, and accessory after the fact to arson. White made two sufficiency of the evidence challenges: 1) that the government failed to establish the interstate commerce nexus required to sustain the arson convictions of counts 1 and 2; and 2) that the evidence did not establish that he assisted an uncharged co-conspirator in evading apprehension and punishment for the accessory-after-the-fact conviction. White further challenged his sentence, that the court should not have considered the two-unit apartment house a “dwelling”, which increased his base offense level. The Fourth Circuit affirmed, 2-1, with a dissent from Justice Wynn, finding that, as a matter of law, a person should not be held criminal liable as both a principal and an accessory after the fact to him or herself, and the defendant’s conviction for being an accessory after the fact constitutes clear legal error.
In upholding the conviction for accessory after the fact, the Fourth Circuit discussed the government’s case, that it presented evidence of White’s false and misleading statement to an insurance representative to help an unnamed co-conspirator to avoid apprehension, which satisfying the elements of the crime. It based its decision on a 1999 case from the 5th Circuit, which, according to Justice Wynn, “failed to acknowledge, let alone analyze, the conundrum of allowing a principal to be convicted of acting as an accessory after the fact to himself.”
(Decided November 17, 2014).
In upholding the conviction for accessory after the fact, the Fourth Circuit discussed the government’s case, that it presented evidence of White’s false and misleading statement to an insurance representative to help an unnamed co-conspirator to avoid apprehension, which satisfying the elements of the crime. It based its decision on a 1999 case from the 5th Circuit, which, according to Justice Wynn, “failed to acknowledge, let alone analyze, the conundrum of allowing a principal to be convicted of acting as an accessory after the fact to himself.”
(Decided November 17, 2014).
Change in law after sentencing would likely have resulted in lesser sentence
US v. Archie - In this appeal, the Fourth Circuit reviewed two sentencing issues: 1) whether the district court sentenced the defendant in violation of the 6th Amendment as set forth in Alleyne; and 2) whether the district court relied incorrectly on insufficient evidence in enhancing the defendant’s sentence under ACCA. The Fourth Circuit affirmed.
Appellant Sherwin Archie pleaded guilty to charges arising from his part in the armed robbery of a Family Dollar store. In anticipation of sentencing, the Probation Officer drafted a PSR, designating Archie an armed career criminal, based on three prior felony convictions: 1977 3rd degree robbery conviction from New York; 1983 attempted burglary conviction from New York; and a 1994 conviction from North Carolina for assault. There was also evidence that Archie “brandished” a weapon in the armed robbery, and the district court made a judicial finding of brandishing, which raised the statutory minimum for Archie’s sentence.
Archie’s main issue on appeal is whether he waived the right to argue that his sentence was improperly enhanced by the district court’s determination that he brandished a weapon during the armed robbery, with the appellate waiver in his plea agreement. Archie’s sentencing occurred just prior to the publication of the Supreme Court’s case Alleyne, which held that because mandatory minimum sentences increase the penalty for crimes, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to a jury.
The Fourth Circuit found that, at the time of Archie’s sentencing, that the district court correctly applied the law that judicial factfinding that increases a mandatory minimum was permissible under the 6th Amendment. Even though Alleyne soon overruled this position, the post-sentencing change in the law did not invalidate Archie’s appeal waiver, according to the Fourth Circuit. The panel determined that Archie assumed the risk that the law under which he was sentenced could change later on, and that Archie’s appeal issue was buyer’s remorse. Further, the Fourth Circuit has invalidated some appellate waivers in the past, but it chose not to do so here because the sentencing court did not violate “a fundamental constitutional or statutory right that was firmly established at the time of sentencing.”
Next, Archie argued that there was insufficient evidence to prove the existence of the 1977 3rd degree robbery conviction, as the court had relied upon computerized records to establish the fact of this conviction. Of the four records the district court considered, one of the records had an inconsistent date. The district court disagreed and determined that the records provided established by a preponderance the conviction. On appeal, the Fourth Circuit determined that it had previously considered the issue of what records a district court may consider in determining the fact of a prior conviction and that certified computer printouts, such as the ones submitted here by the Government, were sufficient to prove the fact of a prior conviction.
(Decided November 17, 2014).
Appellant Sherwin Archie pleaded guilty to charges arising from his part in the armed robbery of a Family Dollar store. In anticipation of sentencing, the Probation Officer drafted a PSR, designating Archie an armed career criminal, based on three prior felony convictions: 1977 3rd degree robbery conviction from New York; 1983 attempted burglary conviction from New York; and a 1994 conviction from North Carolina for assault. There was also evidence that Archie “brandished” a weapon in the armed robbery, and the district court made a judicial finding of brandishing, which raised the statutory minimum for Archie’s sentence.
Archie’s main issue on appeal is whether he waived the right to argue that his sentence was improperly enhanced by the district court’s determination that he brandished a weapon during the armed robbery, with the appellate waiver in his plea agreement. Archie’s sentencing occurred just prior to the publication of the Supreme Court’s case Alleyne, which held that because mandatory minimum sentences increase the penalty for crimes, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to a jury.
The Fourth Circuit found that, at the time of Archie’s sentencing, that the district court correctly applied the law that judicial factfinding that increases a mandatory minimum was permissible under the 6th Amendment. Even though Alleyne soon overruled this position, the post-sentencing change in the law did not invalidate Archie’s appeal waiver, according to the Fourth Circuit. The panel determined that Archie assumed the risk that the law under which he was sentenced could change later on, and that Archie’s appeal issue was buyer’s remorse. Further, the Fourth Circuit has invalidated some appellate waivers in the past, but it chose not to do so here because the sentencing court did not violate “a fundamental constitutional or statutory right that was firmly established at the time of sentencing.”
Next, Archie argued that there was insufficient evidence to prove the existence of the 1977 3rd degree robbery conviction, as the court had relied upon computerized records to establish the fact of this conviction. Of the four records the district court considered, one of the records had an inconsistent date. The district court disagreed and determined that the records provided established by a preponderance the conviction. On appeal, the Fourth Circuit determined that it had previously considered the issue of what records a district court may consider in determining the fact of a prior conviction and that certified computer printouts, such as the ones submitted here by the Government, were sufficient to prove the fact of a prior conviction.
(Decided November 17, 2014).
960-month sentence survives 8th Amendment challenge
US v. Dowell - In this appeal, the Fourth Circuit considered the propriety of a 960-month sentence, and whether the sentence violates the 8th Amendment’s prohibition against cruel and unusual punishment on the grounds that the sentence was disproportionate to the severity of his crimes, and secondly, whether the district court correctly applied an enhancement for a “vulnerable victim” here.
The Fourth Circuit recently rejected a similar as-applied 8th Amendment challenge in Cobler, where it had upheld a 1440-month sentence on a child porn offender whose appeal argument was indistinguishable from Dowell’s here. Cobler had, in fact, been convicted of fewer counts than Dowell. In Cobler, the Fourth Circuit determined that Cobler’s “shocking and vile conduct...failed to substantiate the threshold inference of gross disproportionality” and that Cobler’s crimes were “at least as grave” as possession of 672 grams of cocaine, which the Supreme Court had considered sufficiently egregious to justify a similar sentence (see Harmelin v. Michigan). The Fourth Circuit decided not to change that course in this case. Moreover, the 960-month sentence imposed was within the guidelines range of life imprisonment.
The Fourth Circuit found that the application of the “vulnerable victim” enhancement here was in error, but it was a harmless one. The district court applied the enhancement relying solely on age-related factors, which was an error. However, the application of the enhancement here did not affect Dowell’s ultimate sentence, so the Fourth Circuit found the error was harmless.
(Decided November 13, 2014).
The Fourth Circuit recently rejected a similar as-applied 8th Amendment challenge in Cobler, where it had upheld a 1440-month sentence on a child porn offender whose appeal argument was indistinguishable from Dowell’s here. Cobler had, in fact, been convicted of fewer counts than Dowell. In Cobler, the Fourth Circuit determined that Cobler’s “shocking and vile conduct...failed to substantiate the threshold inference of gross disproportionality” and that Cobler’s crimes were “at least as grave” as possession of 672 grams of cocaine, which the Supreme Court had considered sufficiently egregious to justify a similar sentence (see Harmelin v. Michigan). The Fourth Circuit decided not to change that course in this case. Moreover, the 960-month sentence imposed was within the guidelines range of life imprisonment.
The Fourth Circuit found that the application of the “vulnerable victim” enhancement here was in error, but it was a harmless one. The district court applied the enhancement relying solely on age-related factors, which was an error. However, the application of the enhancement here did not affect Dowell’s ultimate sentence, so the Fourth Circuit found the error was harmless.
(Decided November 13, 2014).
Illegal reentry sentence enhancement affirmed
US v. Avila - In this appeal, the Fourth Circuit considered two procedural challenges the appellant made after his sentencing for illegal reentry. First, he argued that the 8-level sentencing enhancement he received for having a prior conviction for 1st degree burglary in California was incorrect; and second, he argued that the district court’s explanation for his sentence was insufficient. The Fourth Circuit affirmed.
Avila argued that the California 1st degree burglary should not qualify as an aggravated felony for the 8-level enhancement because it is not a crime of violence under Descamps’ analysis. The Fourth Circuit found that under ACCA, this offense may not qualify as a predicate offense; however, for the enhancement here under a different statutory scheme than ACCA (to wit, 18 U.S.C. § 16), it does qualify as the definition of crime of violence in this context is more general. Further, other courts have come to the conclusion that 1st degree burglary in California is a crime of violence, as it requires entry into an inhabited dwelling, and it presents a substantial risk of force with or without unlawful entry.
With regard to Avila’s second appeal issue, the Fourth Circuit found that the district court sufficiently explained its reasons for his sentence, by considering his history and characteristics, and that the safety of the public was the “driving reason” for the sentence it chose.
(Decided November 4, 2014).
Avila argued that the California 1st degree burglary should not qualify as an aggravated felony for the 8-level enhancement because it is not a crime of violence under Descamps’ analysis. The Fourth Circuit found that under ACCA, this offense may not qualify as a predicate offense; however, for the enhancement here under a different statutory scheme than ACCA (to wit, 18 U.S.C. § 16), it does qualify as the definition of crime of violence in this context is more general. Further, other courts have come to the conclusion that 1st degree burglary in California is a crime of violence, as it requires entry into an inhabited dwelling, and it presents a substantial risk of force with or without unlawful entry.
With regard to Avila’s second appeal issue, the Fourth Circuit found that the district court sufficiently explained its reasons for his sentence, by considering his history and characteristics, and that the safety of the public was the “driving reason” for the sentence it chose.
(Decided November 4, 2014).
Friday, December 05, 2014
Life Plus 60-Month Sentence Substantively Unreasonable
US v. Howard: Howard sold PCP in North Carolina, as evidenced by a string of controlled buys made from him by police. He was charged, tried, and convicted of conspiracy to distribute, substantive distribution (nine counts), and possession of a firearm in furtherance of drug trafficking. All while on supervised release for a prior federal conviction. In the PSR, Howard's advisory Guideline range was calculated as 78 to 97 months, although he faced a mandatory minimum 120-month sentence due to his prior conviction.
But Howard's sentence only rose from there. First, the district court attributed more PCP to Howard, bumping his Guideline range up to 120 to 121 months. Next, the Government requested a variance based on the Guidelines' undrerepresentation of Howard's criminal history, up to a Criminal History Category VI, bumping the range to 140 to 175 months. The district court, "not satisfied," decided sua sponte that Howard was a de facto career offender and, after applying that Guideline, bumped Howard's range up to 420 months to life. The district court sentenced Howard to life in prison on the drug counts, followed by a consecutive 60-month sentence on the gun count. He also received a consecutive 60-month sentence following the revocation of his supervised release.
Howard appealed, challenging the substantive reasonableness of his sentence when requested to do so by the court.* The Fourth Circuit found that Howard's sentence - life plus 60 months - was substantively unreasonable. The "extent of the upward departure is unwarranted and amounts to an abuse of discretion" and "is not justified by consideration of the 3553(a) factors as articulated by the district court." Specifically, the district court "abused its discretion by focusing too heavily on Howard's juvenile criminal history." That history showed that "most of his serious criminal convictions occurred when he was eighteen years old or younger." Looking to the Supreme Court's recent cases dealing with juvenile death penalties, the court noted that "in the sentencing context, the diminished culpability of juvenile offenders, given their lack of maturity, vulnerability to social pressures, and malleable identities." The district court failed to address those issues. The court also rejected the district court's conclusion that Howard's chance of recidivism was "[a]bsolutely 100 percent" by looking to his age, the age at which he might be released, and noting that recidivism declines as a person ages. Finally, the court noted that the sentence imposed by the district court was well above what the Government recommended. While not controlling, the experience of AUSAs can help achieve one of the key goals of the Sentencing Reform Act - avoiding unwanted disparities.
The court vacated Howard's sentence and remanded for further proceedings. In doing so, it pointed out that it "goes without saying, then, that our holding is limited to the facts of this case."
* Although he initially appealed the supervised release sentence as well, Howard withdrew that issue and that appeal was dismissed. Howard also challenged the sufficiency of the evidence supporting his convictions, an argument the court rejected.
But Howard's sentence only rose from there. First, the district court attributed more PCP to Howard, bumping his Guideline range up to 120 to 121 months. Next, the Government requested a variance based on the Guidelines' undrerepresentation of Howard's criminal history, up to a Criminal History Category VI, bumping the range to 140 to 175 months. The district court, "not satisfied," decided sua sponte that Howard was a de facto career offender and, after applying that Guideline, bumped Howard's range up to 420 months to life. The district court sentenced Howard to life in prison on the drug counts, followed by a consecutive 60-month sentence on the gun count. He also received a consecutive 60-month sentence following the revocation of his supervised release.
Howard appealed, challenging the substantive reasonableness of his sentence when requested to do so by the court.* The Fourth Circuit found that Howard's sentence - life plus 60 months - was substantively unreasonable. The "extent of the upward departure is unwarranted and amounts to an abuse of discretion" and "is not justified by consideration of the 3553(a) factors as articulated by the district court." Specifically, the district court "abused its discretion by focusing too heavily on Howard's juvenile criminal history." That history showed that "most of his serious criminal convictions occurred when he was eighteen years old or younger." Looking to the Supreme Court's recent cases dealing with juvenile death penalties, the court noted that "in the sentencing context, the diminished culpability of juvenile offenders, given their lack of maturity, vulnerability to social pressures, and malleable identities." The district court failed to address those issues. The court also rejected the district court's conclusion that Howard's chance of recidivism was "[a]bsolutely 100 percent" by looking to his age, the age at which he might be released, and noting that recidivism declines as a person ages. Finally, the court noted that the sentence imposed by the district court was well above what the Government recommended. While not controlling, the experience of AUSAs can help achieve one of the key goals of the Sentencing Reform Act - avoiding unwanted disparities.
The court vacated Howard's sentence and remanded for further proceedings. In doing so, it pointed out that it "goes without saying, then, that our holding is limited to the facts of this case."
* Although he initially appealed the supervised release sentence as well, Howard withdrew that issue and that appeal was dismissed. Howard also challenged the sufficiency of the evidence supporting his convictions, an argument the court rejected.
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