Cannot Challenge Original Sentence In Supervised Release Revocation Proceeding

US v. Sanchez: Way back when, Sanchez was convicted of being a felon in possession of a firearm and sentenced under ACCA. He was ultimately sentenced to 180 months in prison and a 5-year term of supervised release. Although Johnson came out while Sanchez was still in prison, he did not file a 2255 challenging his sentence. He was released and, ultimately, found himself facing revocation of his term of supervised release. At the revocation hearing, he argued that his ACCA sentence was improper under Johnson, but the district court refused to entertain the challenge, revoked Sanchez, and returned him to prison for 13 months (with more supervised release to follow).

On appeal, the Fourth Circuit affirmed. The court concluded that because Sanchez had not challenged his original sentence in either a direct appeal or 2255 proceeding the district court was correct to reject an attempt to challenge it at a revocation hearing. In doing so, the court reiterated that the place to challenge conditions of supervised release is on direct appeal from imposition of the original sentence, not in revocation proceedings that arise only from the alleged violation of the challenge conditions.

Ocean polluters' convictions upheld

US v. Oceanic:  Two closely related corporate entities, Oceanic and Oceanfleet, had ships wherein the crews ignored the waste disposal procedures required by statute and international convention, and illegally dumped bilge water consisting of large quantities of oily pollutants into the ocean.  Such waste must normally be incinerate onboard the vessel, or offloaded at port to a licensed hauler and disposal facility.  The foregoing proper disposal must be recorded in a ship’s Oil Record Book.  In this case, the appellants’ Oil Record Books were allegedly falsified.  Both companies were charged in nine counts of obstruction, falsification of the Oil Record Book, witness tampering, and lying to the Coast Guard.  The parties went to trial in South Carolina in September 2016.  The two corporations, as well as two chief crew members, were found guilty on all counts.   On appeal, Oceanic and Oceanfleet argued that the evidence was insufficient to prove corporate criminal liability.  Oceanic was ordered to pay $675k in fines plus $225k in restitution to the Gray’s Reef National Marine Sanctuary Foundation; Oceanfleet was ordered to pay $1.35 million in fines plus $450k restitution to the same foundation.  The companies’ ships were also prohibited from using US ports. 

According to the Fourth Circuit, the evidence presented at trial proved that bilge water and sludge was discharged consistently during the appellants’ transoceanic journeys.  Also, the Oil Record Books were falsified, and attempts to conceal the illegal activities were made.  Two Coast Guard investigators testified that they had been tipped off by a spouse of one ship’s third engineer to the illegality.  That engineer agreed to fully cooperate with investigators, which prompted a criminal investigation. 

Under a theory of vicarious liability, the Fourth Circuit held that there was sufficient evidence for the guilty verdicts.  The corporations were criminal liable for the illegal dumping activity taken by the chief and first engineers aboard their ships.  The Fourth Circuit affirmed the convictions and sentences. 

Border search exception clarifications

US v. Kolsuz:  In this appeal, the Fourth Circuit analyzes how privacy rights apply to searches of cell phones seized at an international border.  Kolsuz was stopped by federal agents as he attempted to board a plane at Dulles International, bound for Turkey.  Firearm parts were discovered in his bags.  After arresting Kolsuz, agents seized his smartphone, and took 90 days to conduct forensic analysis on it and generated a report of some 900 pages.  Kolsuz filed a motion to suppress, arguing that the seizure of his phone was a non-routine border search not justified by reasonable suspicion, which motion was denied.  Kolsuz was eventually convicted of attempting to smuggle firearms out of the country and also a conspiracy count.  He appealed, challenging the denial of his motion to suppress, arguing that even under the border exception, a forensic search of a smartphone requires more than reasonable suspicion, and may only be conducted with a warrant based upon probable cause. 

The Fourth Circuit held that the forensic analysis of Kolsuz’s phone was properly categorized as a border search, and it was non-routine, so pursuant to Supreme Court precedent, it required some measure of individualized suspicion.  However, because the agents involved believed no warrant was required, the Fourth Circuit found suppression of the forensic analysis report on the phone was not appropriate, and affirmed the district court. 

In its analysis, the Fourth Circuit discusses how border searches are an exception to the normal rule requiring warrants; at borders, agents can conduct “routine” searches and seizures of people and property with no warrant or individualized suspicion.  However, now the Fourth Circuit requires suspicion for forensic, advanced, searches of cell phones seized at the border.  Basic, or manual, searches can still be conducted without suspicion - these searches do not involve the use of external equipment or software. 

Further, the Fourth Circuit sets out the following test for future cases, requiring the government to identify its border search-related interest justifying that particular search in order to rely on the border search exception.

Bank fraud convictions upheld

US v. Savage:  A conspiracy of folks recruited a Capital One Bank teller to provide them with customer account information, and developed a scheme to defraud the bank.  The teller, Ms. Conteh, went to trial and was later convicted; she was sentenced to 64 months of imprisonment and ordered to pay $36k in restitution.  She decided to enter a proffer agreement with the government, to provide information about the conspiracy on condition that the information would not then be used against her.  Conteh provided investigators with evidence about Savage, which lead to the instant case against him.

Savage went to trial on charges of bank fraud and aggravated identity theft and a jury convicted him.  He appealed on several grounds: the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of bank fraud conspiracy; the district court erred in failing to conduct an in camera review to determine whether some material required disclosure pursuant to the Jencks Act or Brady; the district court erred by not providing his requested jury instruction on accomplice testimony and by giving the jury a copy of an instruction on aiding and abetting liability; and lastly, the district court erred in its application of the guidelines on several grounds.  The Fourth Circuit affirmed the convictions and sentence. 

The Fourth Circuit considered each of Savage’s issues, starting with his challenge to the sufficiency of the evidence of a bank fraud conspiracy.  Largely reliant on Conteh’s testimony, the government  showed Savage’s involvement in the conspiracy and the steps he took to carry out the fraud.  The Fourth Circuit found that Conteh’s testimony alone was sufficient to support Savage’s conviction for bank fraud. 

Savage argued that material gathered by the government in its meetings with Conteh was subject to disclosure under either the Jencks Act or Brady.  The material involved was the prosecutor’s personal notes.  The Fourth Circuit discussed how before a court must conduct an in camera review to determine whether a Brady violation has occurred, the defendant must make a “plausible showing” that the government’s information was material and favorable to the defense.  Further, a Jencks Act review is only required if the defendant provides a proper foundation.  Here, the Fourth Circuit held that Savage did not even attempt to argue a Jencks Act statement existed, or that the defense was entitled to review the prosecutor’s notes; he merely asserted that inconsistent statements might exist, which the Fourth Circuit found insufficient to require the court to conduct an in camera review.

Regarding the jury instructions, the Fourth Circuit found that the district court “substantially covered” Savage’s requested instruction on accomplice testimony because it warned the jury that it had to scrutinize all witness testimony and to take prior inconsistent statements into account.  It found no abuse of discretion.  Also, during deliberations, the jury requested a copy of all the jury instructions, which request the district court rejected, because the full copy of instructions contained the “judge’s interlineations.”  However, the court did provide the jury with a copy of the aiding and abetting liability instruction without any interlineations.  Savage argued that this caused him prejudice by emphasizing the based of conviction without taking measures to dilute any undue suggestiveness.  The Fourth Circuit found no abuse of discretion, finding that the court has discretion whether and how to respond to jury questions.

At sentencing, Savage received several enhancements: for obstruction of justice; for amount of loss; for the use of sophisticated means; and for his role as manager or supervisor.    Savage reportedly  gave perjured statements during his interviews with pretrial services (e.g. failing to give his address in Ohio where he allegedly resides, while providing that he lives in Maryland; concealing international travel to Sierra Leone where members of his family reside).  The Fourth Circuit found no error the application of this enhancement, as only one penjurious statement is necessary to apply  this one.  One the amount of loss, the district court applied the same loss calculation for Savage as it used in Conteh’s sentencing, and the Fourth Circuit found that the sentencing court need only make a “reasonable estimate of loss, given the available information” and found no error.  The Fourth Circuit found that the use of sophisticated means enhancement was not in error by Savage taking several steps to conceal his own identity and distance himself from the scheme, and having the means to store money in Africa and disguising the source of his money.  Finally, the enhancement for managerial role was not in error because of Conteh’s testimony about how he managed her activities, and it was uncontested that the scheme involved five or more participants.

Not a COV: federal crime of conspiracy to commit murder in aid of racketeering

US v. McCollum:  McCollum pleaded guilty to possession of a firearm by a convicted felon.  The PSR indicated McCollum had two prior convictions that qualified as crimes of violence: one for aggravated manslaughter in NJ, and one for conspiracy to commit murder in aid of racketeering.  McCollum objected, and the district court sustained his objection to the NJ conviction, but not the conspiracy conviction.  That conviction elevated his base offense level from 14 to 20.  McCollum raised the issue of whether this prior conviction was a crime of violence. 

The Fourth Circuit held, under constraint, that conspiracy to commit murder in aid of racketeering is not a crime of violence since it does not require an overt act, while conspiracy under the Guidelines does. It found conspiracy to commit murder in aid of racketeering is broader than generic conspiracy. 

The Fourth Circuit began its analysis with a determination that the categorical approach applies to federal crimes, like conspiracy to commit murder in aid of racketeering, as the Sentencing Commission publications and the guidelines text strongly suggest that it does, and there is no textual or analytical basis in precedent to distinguishing the treatment of state and federal statutes to determine whether a predicate offense is a crime of violence. 

The Fourth Circuit then proceeded to conduct the 4-part categorical approach.  First, it determined the relevant offense of comparison.  Second, it determined the elements of generic conspiracy, and found that generic conspiracy requires an overt act (more than 32 states require an overt act, which it found sufficient to establish the contemporary definition as such).  Third, it compared the elements of the crime of conviction to those of the enumerated offense.  Last, it considered whether the scope of the conduct criminalized by statute is categorically overbroad when compared to the generic definition of the Guideline crime. 

The government did not dispute that McCollum’s conspiracy conviction did not require an overt act.  As such, it criminalizes a broader range of conduct than that covered by generic conspiracy, and it is not categorically a crime of violence. 

Evidence from Facebook in felon in possession trial

US v. Recio:  Two police officers on patrol encountered Recio, whom they knew had outstanding warrants, with a gun visible in his waistband.  Recio fled to police, and tried to throw away the gun, which police recovered.  Recio got away but a month later was arrested.  Before trial, the government moved in limine to introduce a Facebook post, purportedly of Recio’s, with a rap lyric about carrying a firearm.  At a pre-trial hearing, the government sought to admit the Facebook post under two theories: as a direct admission; and as an adoptive admission.  The district court granted the government’s motion.  A jury found Recio guilty, and on appeal, he challenged the admission of the Facebook post, and the refusal to grant a mistrial but instead give an Allen charge. 

Recio challenged the admission of the rap lyric he purportedly posted to his Facebook account, first contending that it was not his statement, but inadmissible hearsay.  The government maintained the Facebook post was not hearsay.  The government pointed to “foundational facts,” such as Recio’s failure to use quotation marks, or attribute the lyric to an artist, or provide any other signal to his Facebook followers that someone else authored the statement.  In addition, he got the lyric slightly wrong.  Based upon these facts, according to the Fourth Circuit, a jury could infer that Recio meant to adopt the lyric as his own words. 

Next, Recio argued that the Facebook post was not relevant.  In its analysis, however, the Fourth Circuit discussed how lyrics posted by a defendant can be relevant when they match details of an alleged crime, making it more probable that a defendant, in fact, had engaged in that conduct.  Further, the Fourth Circuit stated, lyrics can show a defendant’s knowledge or motive.  The Fourth Circuit found the Facebook post relevant here, and that the risk of unfair prejudice did not substantially outweigh the probative value of the evidence.

As to Recio’s argument that the government failed to properly authenticate the Facebook post because it failed to sufficient establish that Recio authored the post, the Fourth Circuit stated that what mattered what not whether Recio did not author the post, but whether the jury could reasonably find that he did, and in light of the government’s evidence of certification by a Facebook records custodian, the Fourth Circuit found the government properly authenticated the post. 

Finally, Recio argued that the Facebook post was inadmissible character evidence.  The Fourth Circuit found that the Facebook post was not evidence of “other acts” from which the jury could make negative inferences about Recio’s character, it was direct evidence of the charged crime itself. 

Scope of traffic stop unlawfully extended

US v. Bowman:  Bowman was convicted of possession with intent to distribute methamphetamine, after police executed a dog sniff on Bowman’s vehicle after completing a traffic stop (Bowman had been stopped for speeding and weaving).  He moved to suppress the evidence obtained from his vehicle, and he was denied at the district court.  The Fourth Circuit held that the police officer had no consent to extend the traffic stop, nor did the police have a reasonable, articulable suspicion of ongoing criminal activity to justify extending the stop, and vacated the conviction.

In its analysis of the case, the Fourth Circuit described in detail the facts of the traffic stop, and how the officer involved issued Bowman a warning for speeding and unsafe movement of the vehicle, and then returned his license and registration, completing the traffic stop.  Unfortunately, the officer then kept Bowman in custody in his police cruiser and continued asking Bowman questions about his activities that evening.  Further, the officer forced Bowman to remain in the police cruiser while the officer proceeded to question Bowman’s passenger.  The Fourth Circuit determined that the officer unlawfully prolonged the completed traffic stop without consent or reasonable suspicion; the officer detained Bowman without his consent in order to interrogate Bowman’s passenger and search the vehicle.

The main question the Fourth Circuit sought to answer in this appeal was whether the officer’s actions during the stop were reasonable under the circumstances, and whether the officer violated Bowman’s Fourth Amendment rights when the otherwise-completed stop was extended.  It found that Bowman did not consent to extending the stop, so the panel moved on to the next question, whether the prolonged seizure was justified by reasonable suspicion.  The Fourth Circuit ticked methodically through each of the factors the police officer mentioned as his basis for suspecting criminal activity and justified the questioning of Bowman’s passenger (i.e., nervousness, the presence of clothing, food, and an energy drink in the vehicle, Bowman’s uncertainty about his passenger’s girlfriend’s address where they had recently been, and Bowman’s statements about purchasing vehicles.  The Fourth Circuit determined that these factors were individually totally innocuous, and even in combination, did not become suspicious.  Thus, it concluded that Bowman’s motion to suppress should have been granted.

SC Involuntary Manslaughter Not Violent Felony; Irby and Reid In Doubt?

US v. Middleton: Middleton was convicted of being a felon in possession of a firearm. The district court determined he qualified for sentencing under the Armed Career Criminal Act based on (among other things) a 1980 conviction in South Carolina for involuntary manslaughter. Middleton was sentenced to 180 months in prison. In 2016, in the wake of the Supreme Court's decision in Johnson, Middleton filed a second 2255 motion to vacate his sentence, arguing that he no longer qualified for ACCA. The district court denied the motion, but issued a certificate of appealability on the involuntary manslaughter issue.

On appeal, the Fourth Circuit reversed, holding that involuntary manslaughter is not a violent felony for ACCA purposes. Although the ultimate result was unanimous, the court divided over the best way to reach that result. Chief Judge Gregory, writing for himself and Judge Harris, focused on whether the offense "sweeps more broadly than the physical force required under the ACCA's force clause" and agreed with Middleton that it did. The court in particular looked to a South Carolina Court of Appeals opinion that affirmed an involuntary manslaughter conviction in a case where an adult sold a minor alcohol, after which the minor drove drunk and was killed in an accident. Thus, as Chief Judge Gregory put it, under the categorical approach "the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force." The Government argued, as they have frequently, that the Supreme Court's decision in Castleman settled this because it rejected the idea that one can be convicted of an offense resulting in death without using violent force. The court turned away that argument, concluding that the Government "ignores the distinction between de minimus force, as discussed in Castleman and violent force" and "erroneously conflates the use of violent force with the causation of injury." The court concluded that "Castleman's discussion of force does not control this case" because the force at issue there was different than the force required under ACCA. As to the concept that "causing injury categorically means violent force was used," the court concluded that the portion of its 2012 decision in Torres-Miguel holding that "a crime may result in death or serious injury without involving the use of physical force" had not been abrogated by Castleman. Subsequent decisions, such as Irby and Reid, did not change that. Those cases "cannot rely on Castleman - for a holding it did not make" to "surmount this Court's prior decision in Torres-Miguel." which remains binding. However, those cases do "confirm[] that a defendant may cause injury indirectly as well as directly for purposes of ACCA's force clause," but that has no impact on this case because the state court decision does not meet that standard.

Judge Floyd concurred in the result, but would have done so on the ground that involuntary manslaughter in South Carolina could not be a violent felony because ACCA "requires a higher degree of mens rea than recklessness" and "an individual can be convicted of involuntary manslaughter in South Carolina based on reckless conduct." However, Judge Floyd spent some time in his concurrence arguing that "[c]ontrary to the majority's attempt to limit Castleman to the MCDV force clause, this Court in Irby and Reid already extended Castleman's reasoning to other force clauses, including the ACCA force clause." Thus, Judge Floyd concluded, "the majority's analysis does not adequately address this Court's post-Castleman decisions." Based on those cases, he "question[s] the viability of distinguishing between use of force and causation of injury." Those cases also, Judge Floyd argues "raise questions as to whether" the distinction the majority draws between the use of force and causation of injury "remains viable."

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

Cop's Prior Uses of Force Properly Admitted Under 404(b) In Civil Rights Prosecution

US v. Cowden: Cowden was an officer with the Hancock County (WV) Sheriff's Office. One night in January, 2015 he was on duty when a driver, Hamrick, was brought in after being arrested for DUI.  At the scene of the arrest Hamrick "resisted and engaged in a physical altercation" with another officer, but by the time he arrived at the station he was "loud" and had a "drunken demeanor" but was no longer "physically resisting." Nonetheless, Cowden said Hamrick was "not going to act that way with us, this is our house, play by our rules" and another officer called his mood "unusually hostile." Cowden "pulled Hamrick toward the elevator and threw him against the wall" then "pulled Hamrick's head away from the wall and slammed his head and face back into the wall." Cowden again said that this was "our house" and that Hamrick would "play by our rules" in a "tone of voice and use of force that indicated he was losing control." Cowden also punched Hamrick in the back of the head and threw him into the elevator. Hamrick received injuries that needed medical treatment to the tune of $3044. Hamrick was charged with deprivation of rights under the color of law and making a false statement. He was convicted on the first charge, but acquitted on the second. He was sentenced to 18 months in prison and ordered to pay restitution to Hamrick to pay his medical bill.

On appeal the Fourth Circuit affirmed Cowden's conviction. Cowden's primary argument on appeal was that the district court should not have allowed the jury to hear 404(b) evidence about two prior incidents where he used excessive force. The court disagreed, holding that the incidents were relevant to "Cowden's use of force in circumstances when Cowden or others were not actually threatened, but Cowden perceived that an individual was not showing adequate respect to law enforcement officers." That was particularly true because Cowden testified at trial that he "had not intended to punish Hamrick." Finally, while the evidence was "unquestionably . . . prejudicial" it also "provided information about Cowden's actions when dealing with individuals he perceived as manifesting resistance to law enforcement authority." The court also rejected Cowden's arguments that the Government had failed to show that he acted "willfully" in dealing with Hamrick and that he should not have been ordered to pay restitution.

NC Voluntary Manslaughter Is ACCA Violent Felony

US v. Smith: Smith was convicted of being a felon in possession of a firearm and was sentenced under ACCA. The only issue on appeal was whether his prior conviction in North Carolina for voluntary manslaughter was a "violent felony." The offense in North Carolina involves "the unlawful killing of a human being without malice, express or implied, and without premeditation and consideration" and,  according to the state supreme court, "generally . . . occurs when one kills intentionally but does so in the head of passion." The court rejected Smith's argument that the offense could be committed negligently, noting that (quoting a North Carolina appellate court) that voluntary manslaughter is "essentially a first-degree murder, where the defendant's reason is temporarily suspended by legally adequate provocation." Based on this "it is certain that the intent required is sufficient to qualify it as a categorically violent predicate."

Evidence Sufficient to Sustain CP Convictions

US v. Miltier: Investigators downloaded child pornography from an IP address they traced back to Miltier. They later executed a search warrant at his home, seizing a laptop and thumb drive that both contained images of child pornography. The laptop's only logged in email address was Miltier and he admitted that he used it. Several searches on the computer related to his work, his car, and home repairs he was making. He was charged with seven counts of receipt of child pornography and one count of possession. He was convicted on all counts and sentenced to concurrent terms of 120 months in prison and a lifetime term of supervised release.

The Fourth Circuit affirmed Miltier's convictions and sentence. First, he argued that the evidence on all counts was insufficient to show that he knowingly received or possessed the images in question. The court disagreed, noting that the "ten files that form the basis for these charges were found on the [laptop], and significant evidence links the computer to Miltier." He admitted knowing that the laptop included a peer-to-peer file sharing software, which showed evidence of searches relating to terms associated with child pornography. Second, Miltier argued that there was insufficient evidence on two counts to show that the files involved were downloaded from the internet and "thus the government failed to demonstrate the required interstate nexus element." The court rejected that argument, noting that there was evidence that those files had been downloaded by the peer-to-peer program. Third, the court rejected Miltier's argument that the Government was required to prove that the child pornography files themselves, rather than the laptop, had travelled in interstate commerce, concluding that "we find no indication in the statute that Congress intended to limit" the statute in such a way. Finally, the court rejected his argument that instructing the jury in that manner was a constructive amendment of the indictment.

Fourth Circuit weighs in on "Playpen" cases

US v. McLamb:  In this appeal, the Fourth Circuit considered whether the defendant’s motion to suppress evidence was properly denied for an invalid warrant obtained by the FBI in its investigation of a child pornography website known as “Playpen,” a hidden services message board located on the “dark web.”   After seizing Playpen’s servers, the FBI sought a warrant to deploy the Network Investigative Technique (“NIT”) to locate Playpen’s users.  A federal magistrate judge issued the warrant, authorizing use of the NIT on Playpen visitors for 30 days.  The NIT identified thousands of computers across the world that accessed Playpen during this month-long period.  McLamb was one of those thousands.  He moved to suppress evidence on his computer as the fruit of an invalid warrant, challenging the warrant’s particularity and its execution, as well as the jurisdiction of the magistrate who authorized the search.  The district court denied McLamb’s motion, and the Fourth Circuit affirmed, finding that even if the warrant was unconstitutional, the district court properly denied the motion to suppress because the good faith exception from Leon applies. 
Three other circuits (Eighth, First, and Tenth) have analyzed the same NIT warrant at issue here, and each has concluded that even if the warrant violates the Fourth Amendment, the Leon good faith exception precludes the suppression of evidence.  The Fourth Circuit agreed.

Tardy motion to dismiss, in response to tardy pro se notice of appeal, granted

US v. Hyman:  In this appeal, the Fourth Circuit considered whether to grant the government’s motion to dismiss an appeal due to the appellant’s failure to meet the requirement for timely filing.  Hyman, the defendant, had been convicted of one count of crack distribution, and received a sentence of fifty-seven months’ imprisonment on July 27, 2016.  On November 22, 2016, Hyman filed a notice of appeal challenging his sentence.  The Fourth Circuit appointed counsel to Hyman, and he filed his opening brief and joint appendix in February 2017.  The government subsequently filed its motion to dismiss and suspend briefing.  Hyman responded that the Court should allow his appeal because the government unnecessarily delayed filing its motion to dismiss until after Hyman filed his opening brief.  The Fourth Circuit scheduled the motion to dismiss for oral argument.  After oral argument, the Fourth Circuit granted the government’s motion to dismiss.

Because, the Fourth Circuit states, we are required to strictly apply claim-processing rules if they are raised timely, and because the local rules permit a party to raise timeliness at any time, it granted the government’s motion.  To hold otherwise, it argued, would be to sanction the government for adhering to the Fourth Circuit’s rule.  It dismissed Hyman’s appeal.

WV unlawful wounding COV

US v. Covington:  In this appeal, the Fourth Circuit considered whether the West Virginia crime of unlawful wounding was a crime of violence under the guidelines.  As the government did not argue in this case that the predicate offense was an enumerated offense, the Fourth Circuit considered  whether it qualifies as a crime of violence under the force clause only. 

Using the categorical approach, the Fourth Circuit found that the WV statute in question is divisible, in that it listed two separate crimes with different elements and punishments, i.e. unlawful wounding and malicious wounding.  There was no question which part of the statute was at issue here, so the Court moved on to compare the offense of unlawful wounding with the requirements of the force clause.

Considering the elements of the force clause, the Fourth Circuit found that the elements of WV unlawful wounding categorically qualified as a crime of violence under the force clause.  Further, Covington did not identify for the Court a WV case that interprets the offense of unlawful wounding to apply to an individual who uses force that is not “capable of causing physical pain or injury to another person,” whereas the government provided “scores” of cases that seemed to confirm that unlawful wounding in WV only criminalizes the degree of force required under Johnson.

Defendant Who Fails on Plain Error Appellate Review Can Prevail on Ineffective Assistance of Counsel for Failure to Raise Issue

US v. Carthorne: In 2010 Carthorne pleaded guilty to drug and gun charges and was determined, in the PSR, to be a career offender based on a Virginia conviction for assault and battery against a police officer. Trial counsel didn't object to the classification of that offense as a crime of violence or Carthorne's designation as a career offender. He explained at sentencing that he had "labored over that case long" and asked "providence for a lucky break," but conceded that he couldn't find anything to support an argument that Carthorne wasn't a career offender. Counsel admitted "I'm not a good lawyer" and went on to argue for a variance based on the facts of the actual prior offense - Carthorne spit at a cop. The district court varied slightly and imposed a sentence of 300 months, 89 months higher than the top of the non-enhanced Guideline range.

Carthorne appealed his career offender designation, but was stuck with plain error review. The Fourth Circuit affirmed, finding that the Virginia prior was not a crime of violence, and thus there was an error, but that the error was not plain because existing precedent didn't require that result. Carthorne then filed a 2255 motion alleging that his trial counsel had been ineffective for failing to object to the career offender designation on the ground that his prior conviction wasn't a crime of violence. The district court denied the motion. While Carthorne could easily show prejudice - had he been on de novo review on appeal he would have prevailed - the court concluded that he could not show that his counsel's performance had been deficient "essentially for the same reasons that the Fourth Circuit found not plain (i.e., obvious) error on direct appeal."

On appeal the Fourth Circuit reversed the denial of Carthorne's 2255 motion. The court concluded that the plain error standard and the Strickland ineffective assistance standard are fundamentally different and based in different sources - Federal rules and the Sixth Amendment, respectively. Therefore, they serve "different, yet complementary, purposes" and involve different variants of prejudice. While plain error looks only to settled law, effective assistance of counsel frequently requires "that counsel raise material issues even in the absence of decisive precedent." At the time of Carthorne's original sentencing although there was no precedent directly on point there were cases that "strongly suggested at the time that [the offense] did not qualify as a crime of violence." The sentencing transcript showed that counsel didn't really understand the crime of violence analysis and there was no strategic reason for failing to make an objection to the career offender determination. Therefore, Carthorne had demonstrated deficient performance of counsel, as well as prejudice, and was entitled to be resentenced.

Court Can Sua Sponte Dismiss Untimely Appeals, But Should Do So Sparingly

US v. Oliver: Oliver pleaded guilty to drug charges in 2011. The next year he filed a timely 2255 motion challenging his sentence. The district court ultimately denied the motion in 2015. Three months later, Oliver filed a pro se notice of appeal - from the 2011 original judgment in his case. Counsel was appointed, who filed an Anders brief. The Government didn't file a response brief and Oliver did not file a pro se brief.

There was no doubt that Oliver's notice of appeal was filed years after the 14-day deadline in the Rules of Appellate Procedure. This does not deprive the Fourth Circuit of jurisdiction, because the deadline is merely a claims processing rule, but would generally result in dismissal if the Government asked for it. Since the Government did not, the issue was whether the court could dismiss the appeal sua sponte. The court concluded that it could, given "the potential consequences of adjudicating untimely criminal appeals," including situations - like this one - where the defendant has already unsuccessfully sought collateral review. Having said that, the importance of preserving the adversary system "and its benefits weigh heavily against" invoking that authority. This case, however, was one in which that authority could be exercised, particularly because Oliver had already sought collateral review of his conviction. In doing so he relied upon the finality of his conviction and could not later go back and seek to undermine it. The court dismissed Oliver's appeal.

Court Allows Serial Revocation, Sentencing, of Supervised Release Violations

US v. Harris: Harris was serving a term of supervised release when he was subject to a traffic stop that uncovered guns and drugs. He was arrested and a petition to revoke was filed alleging that he had violated the law by possessing those items. Addenda were filed with additional allegations (after the Government learned that Harris was part of a state murder investigation), including failing to notify his probation officer after contact with law enforcement and new state criminal charges. At a revocation hearing the district court concluded Harris had violated by failing to report, revoked Harris, and sentenced him to a month in prison, followed by 40 more months of supervised release. The other allegations were held in abeyance pending the outcome of proceedings in state court. While in prison, Harris was indicted federally for being a felon in possession of a firearm during the traffic stop. The Government filed another addendum based on that indictment and sought to dismiss the remaining allegations. The district court granted that motion, then revoked Harris a second time, imposing a 36-month term of imprisonment and a further 24-month term of supervised release.

On appeal, the Fourth Circuit affirmed Harris's revocations and sentences. The court noted that it "it well-established that a revocation does not end a term of supervised release" and that "[a]fter revocation, the defendant continues to serve his term of supervised release, but does so in prison." Previously, the court had held that "the district court's jurisdiction over the supervised release continues past revocation" and "the district court's supervisory authority continues as well." As a result, it does not matter that the second revocation was based on an allegation that was made after the first revocation, but involving conduct that occurred before the first revocation. Furthermore, the court found that the combined sentences imposed for Harris's revocations did not exceed the statutory maximum because those limits apply to every revocation and do not aggregate. Thus, with regard to the total new supervised release terms imposed - 64 months, beyond the 60-month statutory maximum - the court held that 18 USC 3583(e)(3) "does not require the district court to credit time previously served on post-release supervision" and so the "district court could sentence Harris up to 60 months of supervised release upon his second revocation without giving credit for any of the time that he had already served." The same is true for the terms of imprisonment. The court also rejected Harris's argument that the second revocation was "additional punishment for his already-revoked, original term" because that "theory would convert per-revocation maximums into per-term of supervised release maximums" which is "contrary to Congress's intent to create a per-revocation maximum."

Use of Peer-to-Peer Software Constitutes Distribution for CP Cases

US v. Stitz: Stitz entered into a plea agreement with the Government to plead guilty to distribution of child pornography. He agreed to a stipulation which set forth that the FBI had used the ARES peer-to-peer file sharing network to download images of child pornography from Stitz's computer (three times). The stipulation also set forth that Stitz told the FBI that he knew "his computer was sharing child pornography files on the ARES network." At sentencing, Stitz argued that he did not intend to distribute any images and his distribution was "passive." In light of that, and other sentencing factors, the district court varied and imposed a sentence or 121 months in prison.

On appeal, the Fourth Circuit affirmed Stitz's conviction. In spite of the plea agreement and stipulation, Stitz argued that there was no factual basis to support a plea of guilty to distribution of child pornography. Reviewing for plain error, the court found not error in the district court accepting Stitz's guilty plea, plain or otherwise. The court noted that the only mens rea requirement for distribution of child pornography is that it was done knowingly, not with bad or evil intent. The record contained multiple instances where Stitz admitted that he knew the files on his computer were being shared with others. The court went on to conclude that the use of a peer-to-peer file sharing system constitutes distribution of child pornography, so long as files are actually available to others. The court had already reached the same conclusion with regard to distribution under the Guidelines and every other Circuit that has decided the issue has reached the same conclusion.

Forcing Minor to Masturbate to Collect Evidence Violates Fourth Amendment

Sims v. Labowitz: This is a 1983 civil rights case arising from a state child pornography investigation in Virginia. 17-year old Sims got in trouble for sending a video of his erect penis to his 15-year old girlfriend. While investigating that an officer, Abbott (who died before the suit - Labowitz his the administrator of his estate), with the aid of a prosecutor, obtained a search warrant allowing him to take pictures of Sims's penis, including while erect. Abbot snatched up Sims, took him to a juvenile detention center and, in a room with two other officers, took pictures. During the process he instructed Sims to "use his hand to manipulate his penis" in order to get a picture of it while erect. Sims couldn't meet the challenge. Undeterred, Abbot got a second warrant and told Sims's attorney that if Sims couldn't perform again he would be "taken to a hospital to give him a an erection-producing injection." The second warrant was never executed and the more-senior prosecutor agreed not to use any of the pics taken pursuant to the first warrant. Sims was basically given a pretrial diversion, with the charges dismissed if he performed well on probation. Once his probation term was over (and the charges gone), Sims sued on two grounds: (1) that the execution of the warrant violated his Fourth Amendment rights, and (2) that under 18 USC 2255(a)(1) he was a victim of the production of child pornography. The district court dismissed the case.

On appeal the Fourth Circuit reversed the dismissal, 2-1, on the Fourth Amendment issue. First, the court found that Abbot's search did violate Sims's Fourth Amendment rights. Walking through a four-step analysis, the court concluded that both the scope of the intrusion and the manner in which the search was convicted were unreasonable, noting that sexually suggestive searches are "terrifying, demeaning, and humiliating." Furthermore, the place where the search was conducted contributed to the violation. Finally, the court held that there was no legitimate evidentiary purpose behind the warrant (so far as I can tell there's nothing suggesting that someone - the victim, presumably - was going to identify Sims based on some particular characteristic of his anatomy). In fact, the court concluded that it "cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others." Second, the court concluded that Abbot was not entitled to qualified immunity because a reasonable officer in his position would have known such a search was unreasonable, even in light of the warrant authorizing it. The court affirmed the dismissal of the production of CP count (because Abbot wasn't doing what he did for "lascivious" reasons) and remanded the case to the district court for further proceedings on the 1983 claim.

Judge King dissented on the Fourth Amendment issue, arguing that there was no violation and, even if there was, Abbot was entitled to qualified immunity.

North Carolina Robbery Matches "Generic" Robbery Listed In Guidelines

US v. Gattis: Gattis was convicted of being a felon in possession of a firearm. Of the many Guideline calculation issues in his case the primary one was whether his prior conviction for robbery in North Carolina was a "crime of violence" that would drive up his base offense level. Gattis was sentenced under the current/post-Johnson Guidelines, so to qualify as a crime of violence it either had to involve as an element the use of force or match one of the offenses specifically set forth in the Guidelines - which now includes robbery. The district court concluded it did qualify as a crime of violence and sentenced Gattis accordingly.

On appeal, the Fourth Circuit affirmed. The court recognized that, based on Gardner, robbery in North Carolina does not require the use of "violent force" and could not qualify as crime of violence under the force clause. Therefore, the court dove into, for the first time so far as I can tell, defining what "generic" robbery under the Guideline meant. The court ultimately rejected the Model Penal Code formulation in favor of the one used by Professor LeFave. This is because the MPC version - which requires "serious bodily injury" (or the threat thereof) has "not been widely adopted" in the states. Instead, relying on LeFave, the court concluded that "generic robbery is defined as the 'misappropriation of property under circumstances involving [immediate] danger to the person.'" The court went on to concluded that "immediate danger" is "categorically satisfied by the taking of property 'from a person or a person's presence by means of force or putting in fear.'" It distinguishes robbery from larceny from the person as occurring "only when the offender takes property by using force or by threatening immediate physical harm." Such a threat "may be express or implicit but it must be sufficient to include the victim to part company with the property." Applying this definition, North Carolina robbery was a "clean match" where "North Carolina common law robbery is thus subsumed within - and is a categorical match with - generic robbery." The amount of force necessary to match the generic offense is less than needed under the force clause.

Fraudulent mortgage lending conspiracy convictions affirmed

US v. Raza, et al.:  Four former employees of SunTrust Mortgage in Annadale, Virginia, appealed their wire fraud and conspiracy to commit wire fraud convictions, specifically, the jury instructions on materiality and intent to defraud instructions.  Additionally, the defendants argued that the district court failed to instruct the jury that it had to individually assess the guilt of each of the defendants as to each count.  The Fourth Circuit, finding no errors, affirmed the convictions.

In its reasoning, the Fourth Circuit noted that the defendants’ proposed instruction for the wire fraud offense required proof of five elements that the court tracked in its charge to the jury.  The Fourth Circuit found several similarities between this case and one from the 9th Circuit, wherein it concluded that adopting a subjective test of materiality, as defendants urged here, would “essentially grant blanket absolution to low-level fraudsters because of the widespread sins of the mortgage industry.”  Further, the Fourth Circuit discussed the controlling import of its earlier cases, finding that the correct test for materiality is an objective one, “which measures a misrepresentation’s capacity to influence an objective ‘reasonable lender,’ not a renegade lender with a demonstrated habit of disregarding materially false information.”

As to the intent instruction, the Fourth Circuit found that its earlier decision in Wynn explained how the district court’s instruction in this case was correct, that is, the government had to prove more than an intent to deceive; it also had to prove an intent to harm “in some sense.”

With the last challenge, the defendants claimed that the district court’s instructions allowed the jury to find guilty by association.  During the jury’s three days of deliberations, the jury sent a question to the court to clarify if they found the defendants guilty of the conspiracy, was guilt to be assumed, then, for all other counts, and the district court advised them that no, the jury had to look at each count facing each defendant.  The Fourth Circuit found the instructions and the supplement, as well as the separate verdict forms for each defendant, with the counts listed separately, appropriately gave individual consideration to each count alleged. 

Jury instruction challenge fails in sex trafficking appeal

US v. Banker:  In this appeal, the Fourth Circuit heard Banker’s appeal of his convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity.  Chiefly, he contended that his jury had been instructed improperly on the scienter element of each offense because they require proof that he knew the victim was a minor.  Secondly, he argued the insufficiency of the evidence.  The Fourth Circuit affirmed.

To reach its decision, the Fourth Circuit agreed with the government’s arguments that unpublished opinions from this Circuit and sister circuits have held that the element of age can be proven by either “knowledge” or “reckless disregard,” a position consistent, according to the Fourth Circuit, with the wording and punctuation of the pertinent statutes.  Accordingly, the Fourth Circuit held that the district court did not err in its instructions to the jury as to the scienter elements of the offenses.  Further, the government had to prove only that the victim was a minor, not that the defendant had actual knowledge of that fact. 

With respect to the sufficiency of evidence at trial, the Fourth Circuit found that Banker could not meet his burden to disrupt the jury’s verdict, as testimony from his co-conspirator and victim, as well as “numerous” other pieces of evidence, including Facebook posts, supported a finding that Banker recklessly disregarded the victim’s age.  The evidence at trial, according to the Fourth Circuit, readily satisfied the standard, i.e., supported a rational determination of guilty beyond a reasonable doubt. 

Any Materiality Error in Health Care Fraud Prosecution Harmless

US v. Palin: Palin owned an operated a drug testing facility (assisted by her co-defendant, Webb), which used two kinds of tests: a less expensive "quick-cup" test and a more expensive "analyzer" test. They ran a system whereby uninsured patients who paid cash were only given the quick-cup tests, while insured patients were given both tests, with insurers (including Medicare) being billed for both. As a result, insurers were billed for additional and more expensive tests that were not medically necessary. Palin and Webb were convicted after a bench trial of health care fraud and conspiracy. After the Supreme Court's decision in Universal Health Services, they filed a motion for acquittal or a new trial arguing that the case had changed the standard for materiality in such cases and the court had not found that element proven by the Government. The court denied the motion.

On appeal, the Fourth Circuit affirmed Palin and Webb's convictions. Accepting the Government's concession that materiality was an element of health care fraud, the court held that even if the district court overlooked materiality (it's initial opinion convicting Palin and Webb didn't mention it at all), any error was harmless because the record showed that the insurers wouldn't have paid for the more expensive tests had they known they weren't medically necessary. As for Palin and Webb's argument that Universal Health Services require the use of a more stringent materiality standard, the court did not decide whether that was correct, but concluded that the standard was met, anyway. The court distinguished Universal Health Services, where the victim of the fraud knew the requirements for the payments it made were being violated, there was no such evidence in the record of this case.

North Carolina Assault Inflicting Serious Bodily Injury Crime of Violence Under Residual Clause

US v. Thompson: Thompson pleaded guilty to being a felon in possession of a firearm and drug possession with intent to distribute. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - North Carolina assault inflicting serious bodily injury ("AISBI"). He was sentenced to 120 months in prison. On appeal, Thompson argued that AISBI was not a crime of violence. The Fourth Circuit held the case in abeyance pending Beckles. Once that case was decided, it ordered additional briefing on whether AISBI was still a crime of violence under the residual clause of the crime of violence definition.

The Fourth Circuit ultimately concluded it was a crime of violence under the residual clause and affirmed Thompson's sentence. In doing so, the court was forced to determine what the Supreme Court's 2015 decision in Johnson meant for Guideline residual clause analysis going forward. The court concluded that Johnson did not overrule the Begay "similar in kind" test the court adopted before Johnson, but it did clarify that the analysis is to be based on "the ordinary case" in both the similar in kind and "degree or risk" assessments. Noting that under state law AISBI involves assaults that are "especially violent and result in the infliction of extremely serious injuries" and therefore had a degree of risk similar to the enumerated offenses in USSG 4B.2. The court rejected Thompson's argument that North Carolina's case law was so broad as to make it impossible to identify the "ordinary case" of AISBI, concluding that it requires actual intent and thus is similar in kind to the "purposeful, violent, and aggressive" offenses enumerated in the Guideline.

26-month CP Sentence Substantively Unreasonable

US v. Zuk: Zuk began collecting and sharing child pornography while in high school, then continued when he began college. As part of his involvement with CP, he corresponded with a 16-year old in Texas who was sexually abusing his 5-year old cousin. Among other things, Zuk had this person produce CP images of the cousin as his specific request. Eventually, Zuk was charged with multiple counts related to CP, including possession, receiving, and distributing. Pursuant to a plea agreement, he pled to one count of possession. Although his advisory Guideline range was 324 to 405 months, his plea capped his statutory maximum at 240 months, with no mandatory minimum. After a two-day sentencing hearing, which included testimony from multiple experts on Zuk's mental issues and potential for treatment, the district court imposed a sentence of time served (26 months) and a lifetime term of supervised release "contingent on his successful completion of [a] residential treatment program."

The Government appealed and the Fourth Circuit vacated Zuk's sentence.

First, the court concluded that the Government could, in fact, appeal the sentence. Zuk waived his right to appeal on any grounds other than ineffective assistance of counsel, which he argued meant that the Government had "implicitly" waived similar rights. However, in this plea agreement the Government explicitly reserved its appeal rights. The court found there was no great asymmetry in this, as the Government gave up a lot (dismissing the other charges, all of which included mandatory minimums higher than the sentence Zuk received). That distinguished this case from one where the plea agreement was silent on the Government's appeal rights.

Second, the court concluded that Zuk's sentence was substantively unreasonable. That was primarily because the district court "focused almost entirely on Zuk's autism spectrum" diagnosis. That was particularly problematic because the record didn't support a conclusion that Zuk's condition caused his criminal behavior (he admitted, when caught, that he knew what he was doing was illegal). That was a legitimate consideration in determining sentence, but couldn't be the driving factor. In addition, Zuk's sentence created serious issues of disparity with similarly situated defendants - including the 16-year old in Texas who got 50 years in state court for his role and the "other members of his online community [who] received sentences of 96 to 222 months' imprisonment." Zuk's sentence was also much lower than the Guidelines recommended for a non-aggravated possession conviction.

WV Aggravated Robbery Requires Use of Force

US v. Salmons: Salmons was convicted of being a felon in possession of a firearm. In the PSR, his offense level was enhanced because he had a prior conviction for a "crime of violence" - West Virginia aggravated robbery. Salmons objected, back in the pre-Beckles days, that his prior didn't involve the use of force and therefore couldn't be a crime of violence. The district court disagreed and denied the objection, calculating Salmons's Guideline range to be 30 to 37 months. The district court imposed a sentence of 12 months and 1 day.

Salmons appealed his sentence, which the Fourth Circuit affirmed. The court held that "aggravated" robbery - which requires strangulation, suffocation, striking, beating, or other violence to the person, or the threat or presentment of firearms or "other deadly weapon or instrumentality whatsoever" qualified as a crime of violence under the force clause. "These are brutal acts," the court concluded. The court found no distinction between this prior and SC strong-arm robbery and federal bank robbery, all of which require "violent force" as defined by the Supreme Court. The court noted that West Virginia distinguishes between regular and aggravated robberies "to expressly delineate the more violent forms of the offense." Furthermore, Salmons couldn't point to any WV case suggesting the offense could be committed by something other than the use of force.

Following conviction, substitute assets not available to pay for appellate counsel

US v. Marshall:  Marshall petitioned the court to permit him to use funds in a credit union account not specified as part of the government’s forfeiture order, filed after his convictions for several drug-related crimes.  The government then filed a second order of forfeiture for the funds in Marshall’s credit union account, classifying them as substitute assets under § 853(p).   Marshall filed a separate motion to use the untainted funds in the credit union account to hire appellate counsel. 

The Fourth Circuit considered Marshall’s arguments that 1) the Constitution required the release of substitute assets forfeited by a defendant after conviction if the funds are needed for appellate representation, and 2) the government violated a rule of criminal procedure by failing to seek forfeiture for several months after Marshall’s convictions for the credit union funds. 

The Fourth Circuit discussed how defendants are entitled to effective counsel on appeal, but not the right to counsel of choice on appeal.  The Supreme Court has plainly foreclosed Marshall’s request to use his forfeited funds to hire appellate counsel.  When a defendant’s forfeited property is connected to a crime, title to the forfeited property vests in the government at the time of the criminal act that gives rise to the forfeiture.  In contrast, the government may not freeze untainted assets (i.e., those assets not connected to crimes charged) before trial that a defendant needs to hire counsel of choice. 

Marshall’s case involved the restraint of untainted assets post-conviction.  The Fourth Circuit concluded that based on the Supreme Court’s holdings that Marshall may not use his forfeited assets to hire appellate counsel (title to substitute property vests in the government upon order by the district court after conviction, at the latest).  Marshall’s funds ceased to be his upon issuance of the district court’s forfeiture order following his conviction.  The Court will appoint counsel if the forfeiture renders him indigent or he cannot secure pro bono counsel.

Procedurally flawed revocation sentence vacated

US v. Slappy:  Slappy received a supervised release revocation sentence of 36 months; she appealed, arguing that the sentence was plainly unreasonable because the sentencing court failed to address any of her non-frivolous arguments in support of a within-guidelines range sentence, or to explain at all why it imposed the statutory maximum sentence upon her.  The government countered that the court provided enough explanation and that it was not required to address mitigating evidence if it didn’t think a lower sentence was appropriate.  The Fourth Circuit vacated Slappy’s sentence and remanded for resentencing.

The Fourth Circuit reasoned that the district court committed procedural error by failing to address her arguments in favor of a sentence within-policy-statement range, and that the Fourth Circuit and the Supreme Court have both made clear that in imposing revocation sentences, like original sentences, the court must address arguments like Slappy’s, and if it rejects them, it must explain why.
 
The Fourth Circuit held here that a district court, when imposing a revocation sentence, must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if it rejects these arguments, the court must explain why with sufficient detail that the appellate court can meaningfully consider the procedural reasonableness of the sentence imposed.

No Johnson Relief for Pre-Booker Defendants

US v. Brown: Brown was convicted on drug and gun charges and sentenced as a career offender back in the pre-Booker mandatory Guideline era. One of his prior convictions was for assaulting a police officer while resisting arrest in South Carolina. After Johnson was decided in 2015, Brown filed a 2255 motion arguing that Johnson made the residual clause of the "crime of violence" definition inactive and that his assault conviction didn't otherwise require the use of force. The district court denied the motion.

The Fourth Circuit affirmed the denial, 2-1. We know that after Beckles defendants sentenced after Booker came out are doomed, because the Supreme Court held that advisory Guidelines are not subject to challenge as being unconstitutionally vague. But what about pre-Booker defendants like Brown? Brown argued that Beckles didn't address that issue and that a close reading of Johnson, Booker, and Beckles shows that the Supreme Court has recognized the right he is trying to assert - to not be sentenced pursuant to a unconstitutionally vague mandatory Guideline range. The Fourth Circuit concluded that was precisely the problem - by leaving the question open, the Supreme Court has not actually recognized the right Brown needs to take advantage of. As a result, there is no new declaration of a right that restarts the 1-year limitation on filing 2255 motions. As a result, Brown's motion was untimely because it was filed well after his conviction became final in 2003.

Chief Judge Gregory dissented, arguing that a newly recognized right it not just the "four corners of that holding" in which it is announced, but "is more sensibly read to include the reasoning and principles that explain it."

Trial Judge's Comments About Immigration Program (and the People Who Use It) Require Reversal

US v. Lefsih: Lefsih came to the United States from Algeria via the Diversity Immigrant Visa Program ("DIVP") - a program that provides chances for people from countries without a lot of immigration to the United States to qualify for a lottery and, if they win the lottery, to legally enter the United States. After five years in the United States, Lefsih sought citizenship. On an application form he answered "no" to a question about whether he had "ever been arrested, cited, or detained" by law enforcement. In truth, he had received multiple traffic citations while working as a cab driver. Lefsih claimed that he didn't think such tickets fit the definition of "arrested, cited, or detained" and didn't knowingly provide a false answer. Lefsih was charged with two counts each of making a false statement and immigration fraud and went to trial.

At trial the Government presented testimony from an immigration officer who explained how the DIVP worked. During his testimony the district court repeatedly interjected with its feelings on the program, expressing its amazement that such a thing existed: "Do you think anybody in American knows about this, other than the Committee that sent it through Congress? Probably not."; "Don't you love Congress? I mean, unbelievable, unbelievable. I'm sitting here 32 years, first time I ever heard this." The district court later asked if the witness was "talking about the hundred countries that nobody could name," which were "the bottom hundred," such as Mauritania or Moldova. The court contrasted immigration policies involving "countries that send a lot of people here" and where "you have to show you're . . . someone who is going to contributed to the well-being of the"country with those in the DIVP who "don't have to be a back surgeon or anything."  Finally, the court asked "if you get luck and win the lottery and get a card to come to America you can drag along you ten kids and four wives or what?" Lefsih didn't object to any of this and was eventually convicted on all counts. The district court dismissed the two false statement counts to avoid double jeopardy issues and imposed a sentence of time served (Lefsih was turned over to ICE custody for deportation).

The Fourth Circuit reversed Lefsih's convictions. Although the court found that Lefsih's convictions were supported by sufficient evidence, the court concluded that the district court's repeated interjections about the DIVP denied Lefsih of his right to a fair trial (even applying plain error review). The district court's interjections had the effect of "unfairly lending credibility to the government's case." That was particularly true because the comments went beyond isolated statements about DIVP itself to include criticism of the people who took advantage of the program, like Lefsih. The problem was not "the extent of the judicial participation at trial, but instead the actual content of the court's questions and comments." Lefsih was able to demonstrate prejudice because the Government's case was "substantially weaker" than the "compelling and overwhelming" evidence in similar cases. Furthermore, the district court's belated instruction to the jury that anything it says should not impact their decision was insufficient to cure the prejudice.

Court Affirms Restitution, Non-Recusal In Mortgage Fraud Case

US v. Stone: Stone ran a mortgage fraud scheme, where she "convinced financially distressed homeowners to engage her services as a real estate agent to negotiate 'short sales' with the mortgage holders on behalf of those homeowners." She would buy the properties at an artificially low price, then "flip" the houses, selling them to "predetermined buyers" for much higher prices. As a result, she was charged with numerous fraud offenses as well as conspiracy. Prior to trial she filed a pro se (and "largely unintelligible") motion for the district court to recuse itself because he "sits in consort with the accuser(s)." At a hearing on the motion, Stone (still acting pro se on this issue, although she was represented by counsel) asked if the court had stock or other interests in any of the banks involved in the mortgages. The court responded that "if there was a conflict I wouldn't be here," repeatedly, and denied the motion. Stone was found guilty by a jury on all counts. Prior to sentencing, the PSR calculated the losses of the various mortgage lenders to be just over $2.3 million. Stone objected to that figure for sentencing purposes, but not restitution, arguing that it inflated the true losses suffered and "gives the lenders and windfall the never would have realized." The district court adopted the PSR's calculation, sentenced to Stone to 60 months in prison and required her to pay the full amount in restitution.

While the appeal was pending. Stone filed a motion for a new trial, arguing that the district court should have recused himself due to "an alleged conflict of interest stemming from its ownership of stock in some of the victim banks." The court denied the motion, but did admit that it "did have a financial interest in some of the victim banks" but that still did not require recusal.

On appeal, the Fourth Circuit affirmed Stone's conviction and sentence. Reviewing the amount of restitution for plain error, the court found no error at all, concluding that the "preponderance of evidence shows that Stone fraudulently induced the lenders to approve the short sales and forego the full value of the mortgages." Particularly, Stone had not presented any evidence to support her argument that the lenders wouldn't have gotten the full value of the mortgages in the regular course of business anyway. For the same reason, the court also concluded that the district court did not clearly err in calculating the loss amount for purposes of calculating the advisory Guideline range.  On the recusal, the court found that the "district court's ownership of stock in the victim lenders is not a . . . financial interest" that required recusal because "the victim lenders here are not parties to the action; this is a criminal case between Stone and the Government." Moreover, any financial interest involved is so small as to be practically nil where the $2.3 million in restitution "will have a negligible effect, if any, on the value of these lenders, each of which is worth many hundreds of millions - if not billions - of dollars."

Adam Walsh Act Has Low Standard for Hearing on Motion to Release

US v. Maclaren: In 2009 the Government declared that Maclaren was a "sexually dangerous person" and subject to indefinite detention under the Adam Walsh Act (the opinion doesn't report what his initial conviction was for, but a footnote states he is "believed to have sexually abused" over 38 children over  period of more than 40 years). In 2013, the district court found the Government had met its burden and ordered Maclaren committed. In 2015, Maclaren filed a motion seeking a hearing on whether he should be discharged pursuant to a conditional release plan. The district court denied the motion, holding that Maclaren had not shown in his motion that his condition had improved since his commitment and he had failed to provide information about a release plan.

On appeal the Fourth Circuit reversed the district court's decision, but not on the merits. Rather, the issue was what showing a person like Maclaren had to show in such a motion to get a hearing, not get release. The court agreed with Maclaren that "a successful motion for a discharge hearing need only plausibly allege that the detainee is entitled to discharge." The district court erred by treating the motion as an vehicle for reaching the substantive issue of whether Maclaren should be released, not whether he was entitled to a hearing on whether he should be released.

Congrats to the Defender office in the ED North Carolina on the win!

Flight crew interference not categorically COV

US v. Diaz:  In this appeal, the Fourth Circuit considered whether the Victim and Witness Protection Act (VMPA) or the Mandatory Victims Restitution Act (MVRA) applied in the defendant, David Diaz’ case, after he pleaded guilty to interfering with the flight crew on a cross-country flight he tried to take in 2015.  Diaz, who self-medicated his declining mental health, got drunk before a flight that he was supposed to take to move from his father’s home in Northern Virginia, to his mother’s home in Texas.  Approximately 45 seconds after take off, an inebriated Diaz left his seat and rushed the cockpit, and resisted attempts to restrain him.  After the plane landed back in D.C. a short 13 minutes later, the flight crew refused to get back on the plane, the flight was canceled and passengers booked onto other flights.  United Airlines lost approximately $22k as a result.

After Diaz pleaded guilty, the PSR noted United’s losses but did not indicate a statutory basis for restitution.  Diaz argued that his offense fell within the scope of the VMPA and restitution was not mandatory, but he suggested that he could more readily afford a slightly lesser amount of restitution, in light of his financial situation.  At sentencing, the government argued for the application of the MVRA and mandatory restitution.  The district court agreed with the government, and did not rule on whether flight crew interference was a crime of violence.  Diaz appealed the restitution order.

The issue for the Fourth Circuit was whether it is possible for a crime presumptively covered by the VWPA to instead fall within the scope of the MVRA, and the court says yes.  It is clear that the MVRA may apply in determining restitution for a defendant who interferes with a flight crew, but only if it is also determined that flight crew interference falls within the scope of a statutory list of certain crimes.  If it is not a crime of violence, it won’t fit on the list.  The Fourth Circuit did a categorical approach analysis of whether flight crew interference is a crime a violence and determined the statute is indivisible, that it did not qualify as a crime of violence under the force clause (and the government, by failing to address the argument, waived the residual clause possibility).  It concluded that the appropriate statute to apply in Diaz’s case for determining the restitution question here was the VWPA.

Survivor's benefits are "things of value"

US v. Kiza:  Social Security survivor’s benefits are benefits paid to eligible surviving spouses and children, and they come from a trust fund established by Congress.  To oversee the trust, Congress created a Board of Trustees that reports to Congress on its operation and “actuarial status,” recommends improvements to its administration, and notifies Congress when the amounts in the fund grew too small.

In this case, Kiza began receiving survivor’s benefits as the representative payee for his two children, after representing to the Social Security Administration that his minor children were entitled to benefits upon the death of their father.  Except he wasn’t dead, just created a fake identity, his “twin brother.”  In total, Kiza received survivor’s benefits around $51,860.  

Kiza was indicted for theft of government property and he went to trial.  The jury found Kiza guilty of the sole charge against him.  He appealed, arguing that the survivor’s benefits were not “things of value.”  In Kiza’s argument, the benefits he received from the trust were money from individual citizens, not money from the U.S. Government.  The Fourth Circuit agreed with the government’s position that the money originated from the government, were regulated and accounted for by the government, so the benefits were a thing of value.  The Fourth Circuit upheld the verdict against him.

(Decided 5/1/17).

Residual Clause of career offender guideline valid for MD robbery with dangerous weapon

US v. Riley:  On appeal, Riley challenged his classification as a career offender, arguing that his prior conviction for Maryland robbery with a dangerous weapon was not a predicate “crime of violence” to enhance his sentence (from a guidelines range of 21-27 months to a whopping 210-262 months).  Riley did not object at the time of sentencing, so the Fourth Circuit reviewed Riley’s issue for plain error, instead of review de novo.

The Fourth Circuit held that the district court did not err in classifying Riley as a career offender, as Maryland robbery with a dangerous weapon “fits comfortably” within the residual clause’s definition of a crime of violence.  Despite Johnson and because of Beckles, the Fourth Circuit concluded, the residual clause of the career offender guideline remains valid.

(Decided 5/9/17).

16-level bump affirmed

US v. Walker:  In this case, a Jamaican national pleaded guilty to illegal reentry, and the district court that sentenced him found him to have been previously convicted of an aggravated felony.  This prior offense was a drug conviction from Ohio, which the district court concluded was a “drug trafficking offense” which called for a 16-level enhancement of Walker’s sentence, yielding an advisory guidelines range for Walker of 46-57 months.  The district court imposed a 30-month sentence, and Walker appealed the issue of whether his drug crime was a “drug trafficking offense.”

The Fourth Circuit affirmed the application of the enhancement to Walker’s sentence, after concluding that his prior drug conviction from Ohio qualified as a “drug trafficking offense” under the illegal reentry guideline, then in effect.  In 2004, Walker pleaded guilty to a charge of drug trafficking under Ohio law.  Walker argued that the conviction should not qualify as a “drug trafficking offense” because the statute required only that the defendant act knowingly, rather than with specific intent, as he argued was required by the guidelines.  The Fourth Circuit disagreed, finding that Walker misread the guidelines’ definition of “drug trafficking offense,” and that the absence of a specific-intent requirement in the Ohio statute does not prevent the 2004 conviction from qualifying as a drug trafficking offense under the guidelines.

The Fourth Circuit analyzed the Ohio statute using the categorical approach, stating that the Ohio statute qualifies as a drug trafficking offense only if all of the ways of violating the statute, including the least culpable, satisfy the definition of “drug trafficking offense.”  The 10th circuit considered the same Ohio statute and found that it qualified as a “controlled substance offense” under the career-offender guideline, concluding that all the acts prohibited by the Ohio statute qualified as “distribution.”  The Fourth Circuit agreed with 10th Circuit and concluded here that Walker’s conviction from Ohio qualified as a “drug trafficking offense” and the 16-level enhancement to his sentence was proper.

(Decided 5/24/17).

NC robbery with a dangerous weapon qualifies as ACCA predicate under force clause

US v. Burns-Johnson:  The mandatory minimum 15-year term of imprisonment imposed here was upheld by the Fourth Circuit, which found that even though robbery is not an enumerated offense, statutory armed robbery in North Carolina qualifies as a violent felony under the force clause of the ACCA.  Under a categorical approach, the Fourth Circuit held that robbery with a dangerous weapon categorically qualified as a violent felony under the ACCA force clause.

Burns-Johnson argued on appeal that his prior conviction did not qualify as a violent felony because the crime did not require the use of violent physical force “capable of causing physical pain and injury to another person,” e.g. administering poison.  The Fourth Circuit disagreed, holding that Torres-Miguel was not dispositive here, and even if NC statutory armed robbery could by committed by use of poison, the crime would still entail the use, attempted use, or threatened use of violent physical force under the ACCA, based on its holding in In re Irby and the Supreme Court’s holding in Castleman.

Burns-Johnson also argued that his prior conviction did not constitute a violent felony because it did not explicitly require that a person intentionally use or threaten to use force, which argument the Fourth Circuit foreclosed in its recent decision, United States v. Doctor.  The Fourth Circuit found that it would require the exercise of pure “legal imagination” to suppose that NC appellate courts would apply this statute when a robbery occurred with the unintentional use of a dangerous weapon.

Mandate Rule and Sentencing Package Doctrine in Re-sentencing appeal

US v. Ventura:  The Fourth Circuit granted Ventura relief from one count of seven for which he had received convictions, and remanded his case to the district court for re-sentencing.  Originally, he received a sentence of 420 months for his part in operating several brothels in Annapolis and Easton, Maryland, and in Portsmouth, Virginia.  On re-sentencing, Ventura received a sentence of 420 months again.  He appealed, arguing that the district court violated the mandate rule, arguing that the district court acted vindictively in sentencing him a second time to 420 months, even though one of his convictions had been overturned.  Third, he argued the new sentence was unreasonable because the court considered facts related to the count that had been vacated as well as some of his conduct while he was incarcerated with the BOP.  The Fourth Circuit affirmed.

In its analysis, the Fourth Circuit determined that the mandate rule was not violated because the lower court was permitted to consider the issue de novo and it could entertain any relevant evidence on that issue that it could have heard at the first hearing.  Additionally, pursuant to the Sentencing Package Doctrine, when a court of appeals vacates and remands a case for re-sentencing, the original sentence becomes void in its entirety and the district court is free to revisit any rulings from the initial sentencing.  The Fourth Circuit found that the sentencing package doctrine controlled the result in this case.  Moreover, the Fourth Circuit determined that its remand did not automatically entitle Ventura a 60-month reduction merely because his count seven conviction had been vacated; rather, the mandate left plenty of room for the district court to recalculate the sentences for the other six convictions that were not vacated.  The Fourth Circuit held that the district court did not exceed the mandate in the First Decision (appeal).  

Regarding the vindictiveness challenge, the Fourth Circuit held that Ventura’s challenge failed because he did not receive an increase in his aggregate sentence upon re-sentencing; the district court imposed the same term.  Under the “aggregate package” approach, courts compare the total original sentence to the total sentence after re-sentencing.  If the new sentence is greater than the original sentence, the new sentence is considered more severe.  Since Ventura received the same sentence, 420 months in prison, his attempt to establish a presumption of vindictiveness fails.

Finally, Ventura’s reasonableness challenges fail because the district court was permitted to consider Ventura’s violent conduct and alleged possession of firearms in crafting his sentence, and secondly, the factual underpinnings of the vacated count against Ventura were nonetheless proved by a preponderance of the evidence and could be considered in connection with Ventura’s re-sentencing.  With regard to Ventura’s conduct while in BOP custody, the Fourth Circuit held that a re-sentencing court could account for and decrease a sentence based on a defendant’s rehabilitation, or, by the same token, potential misdeeds.

No credit for time on improper release from jail

US v. Grant:  In this case, Briceton Grant pled guilty to an information that charged him with possession of PCP, and received a sentence that included one year of supervised probation.   A mere four days later, Grant received an additional charge of PWID marijuana and a schedule I/II drug.  His PO filed a petition to revoke his supervised probation.  A magistrate judge found Grant in violation and revoked his probation, and remanded Grant to the marshals for 15 days of incarceration as punishment for the violation.

The marshals erroneously allowed Grant to be released eleven days too early.  Grant’s attorney contacted the government to determine how to proceed given the error.  Grant’s PO filed a petition to have Grant remanded to serve the additional days, and Grant surrendered to the marshals.  Grant filed a motion to receive credit for the 10 days during which time he was mistakenly release.  After the magistrate denied the motion, Grant filed the instant appeal.

According to the Fourth Circuit, there appeared to have been a federal common law right to credit for time erroneously spent at liberty that dated back to the 1930s, and since then, some sister circuits have recognized a federal common law right to credit for time erroneously spent at liberty.  Some circuits award this credit when the government has been shown to have acted maliciously.  Other courts award credit whenever the government errs, even if it was merely negligent.  The Court notes that it is not certain at all that a federal common law right to credit for time erroneously spent at liberty currently exists.  Grant played no role in causing the premature release, and the government did not act with malice when it negligently released him.  Yet, the Fourth Circuit held that the district court did not abuse its discretion in denying Grant his credit for time erroneously at liberty because Grant had paid only 1/3 of his debt to society, he could serve his time on weekends to accommodate his employment, the ten days will not disrupt his life in a way that months or years of re-incarceration might do, and the government promptly recognized its mistake.  The Fourth Circuit affirmed the district court’s judgment.

Indirect Force Enough to Sustain ACCA Sentence

US v. Reid: Reid was convicted of being a felon in possession of a firearm. He had three prior conviction in Virginia for inflicting bodily injury on a correctional officer. The district court concluded that these were "violent felonies" for ACCA purposes and sentenced Reid to 15 years in prison.

The Fourth Circuit affirmed the sentence. Applying the categorical approach, the court concluded that the Virginia offense was a violent felony and, therefore, the ACCA mandatory minimum was triggered. It rejected Reid's argument that although the offense requires the causing of bodily injury, it did not meet the meaning of "force" (as the Supreme Court set forth in 2010's Johnson) because such injuries could be sustained by "indirect means." In other words, Reid relied on Torres-Miguel and it's conclusion that just because an offense requires a particular level of energy does not mean it has an element requiring the use of force. The court adopted the Government's position that the Supreme Court's decision in Castleman eclipses Torres-Miguel ("while the holding may still stand . . . it's reasoning can no longer support" the argument) and, therefore, indirect force is good enough. The court cites Irby, but does note that it doesn't apply directly to ACCA. Again, there doesn't seem to be any engagement with the idea that the language of Castleman (and Voisine) itself limits its reach to misdemeanor crime of domestic violence situations.

Only Assistance Itself Is Relevant to Guideline-Based Substantial Assistance Departure

US v. Concha: Concha was convicted of conspiracy to distribute cocaine on the basis of 43 kilos of cocaine that were found in his tractor trailer. After his arrest, Concha worked with law enforcement to deliver his cargo, thus leading to the arrest of his co-conspirators. At sentencing, his advisory Guideline range was 168 to 210 months in prison. The Government moved for a departure for substantial assistance, "viewed Concha's assistance very favorably," and asked the court to depart 50% from the bottom of the Guideline range. The district court granted the departure, but balked at the 50% request due to "his involvement in these drug crimes, and it's huge" and a recognition that he was able to provide such valuable assistance precisely because he was so deep in the conspiracy. The district court eventually imposed a sentence of 126 months, a 40% reduction from the top of the advisory Guideline range.

The Fourth Circuit vacated Concha's sentence. Noting that it's review was based on the district court's error of law in giving the departure, not the amount of the departure itself, the court distinguished between assistance departures under Rule 35 and the Guidelines. Under Rule 35, a court may only consider the defendant's assistance in deciding whether to grant a departure, but may consider other factors in determining the extent of the departure. Under the Guidelines, however, the sentencing court may only consider assistance related factors when determining the extent of the departure. In Concha's case, the district court considered factors beyond his assistance in deciding the extent of the departure. Those factors were appropriate for the determination of what the non-departure sentence would have been (top of the Guideline range), but not the extent of a subsequent departure.