Court Rejects Offense Conduct Approach for FSA/1SA Eligibility

US v. Wirsing: In 2007 Wirsing pleaded guilty to being a felon in possession of a firearm and possessing with intent to distribute “approximately 16 grams” of crack. However, in the plea agreement he stipulated that the amount of crack involved was 60.135 grams. He was sentenced, as a career offender, to 188 months in prison (plus a 120-month concurrent sentence for the gun). After the passage of the First Step Act (“1SA”), Wirsing sought a reduction of his sentence under the Act’s provisions making the provisions of the Fair Sentencing Act (“FSA”) retroactive. While the Government agreed that Wirsing was eligible for a reduction and that he should get a reduction down to the bottom of his new Guideline range (which would mean immediate release), the district court denied Wirsing’s motion because the amount of crack attributed to him in the stipulation would not have reduced his Guideline range. Proceeding under 18 U.S.C. 3582(c)(2), the district court concluded Wirsing was not eligible for relief.

The Fourth Circuit unanimously disagreed and reversed the district court in its first major pronouncement on the 1SA/FSA. After the Government flip-flopped to arguing Wirsing was not eligible (because relevant conduct), then flipped again to arguing he was eligible, the court first concluded that 3582(c)(1), rather than (c)(2), was the proper mechanism for processing 1SA/FSA claims. That was so because (c)(2) is tied directly to Guideline changes, while (c)(1) is tied to specific statutory authority to revisit sentences, as found in the 1SA. Then the court moved on to the question of eligibility, adopting Wirsing’s position that the language of the 1SA a person is eligible for a reduced sentence if “before August 3, 2010, he committed a violation” of section 841 “the statutory penalties” for which “were modified by” the FSA.

Congrats to the Defender office in the Northern District of WV on the win!

Warrant Sufficient to Allow Search In Wake of Threats

US v. Jones: Jones was pulled over by a Martinsburg, West Virginia, police officer for driving on a suspended license. In the wake of this, Jones took to social media and made repeated claims such as that he was “on a cop manhunt,” was looking for that officer in particular, and warning officers (whom he called “pigs”) not to come to his home because he was “going to pull this trigger, bang, bye” and that they should “be careful.” Officers got a warrant to search Jones’ home looking for evidence of the West Virginia offense of making “terrorist threats,” and found ammunition. Jones was charged with being a felon in possession of ammunition and unsuccessfully moved to have that ammunition suppressed.

The Fourth Circuit affirmed the denial of Jones’s motion to suppress. First, the court rejected the argument that the warrant application did not sufficiently allege that Jones had committed the particular West Virginia offense, relying on two state supreme court decisions to conclude that his alleged conduct fell within its ambit. Second, the court rejected the argument that Jones was entitled to a Franks hearing on the basis of the omission of other social media posts that showed that Jones was not a threat to officers, but was rather suicidal. Although that understanding of those statements was “implausible on its face,” the court nonetheless held that even if they could be read that way and included in the warrant application there was still probable cause to issue the warrant.

Witness Retaliation Can Be ACCA Predicate

US v. Allred: Allred was convicted of being a felon in possession of a firearm. He was sentenced to 264 months under the Armed Career Criminal Act because, among other things, of a prior conviction under 18 USC 1513 for retaliation against a witness by causing bodily injury. That was in 1995. In 2016, after Johnson, Allred filed a 2255 motion arguing that his 1513 conviction was no longer a “violent felony” because it did not require the use of force. The district court agreed and resentenced Allred to 120 months in prison.

On the Government’s appeal, the Fourth Circuit reversed the district court’s grant of the 2255 motion. The court first had to decide whether 1513 was a divisible statute or not. The court ultimately concluded that it was, laying out four different offenses, at least one of which (because it involves property) would clearly not be an ACCA predicate anymore. However, once that finding was made, a check of Allred’s indictment showed he was charged and convicted under the version of the offense that involved causing bodily injury. The court then looked to whether that satisfied ACCA’s force clause and concluded, based on Castleman that it did. Indirect force was enough to satisfy the clause and the offense at issue here could not be committed negligently or recklessly. Therefore, Allred still qualified for sentencing under ACCA.