924(c) Conviction Stands Where Guilty Plea Factually Supported Both Valid and Invalid Predicate Offenses

US v. Crawley: Crawly and “two codefendants invaded a home and robbed an individual they believed to be a drug dealer,” although he was not and no drugs were taken. Nonetheless, Crawly told police the plan was to steal “drug proceeds and half a kilogram of cocaine.” Crawley was charged with conspiracy to commit Hobbs Act robbery, attempt to possess with intent to distribute crack cocaine, using a firearm during a crime of violence (as well as a drug trafficking crime - namely, the crack offense) and being a felon in possession of a firearm. He pleaded guilty to the Hobbs Act conspiracy and use of a firearm counts. Crawly later filed a 2255 motion, arguing that because Hobbs Act conspiracy was no longer a “crime of violence” his firearm conviction was no longer valid. The district court denied the motion, holding that while the Hobbs Act conspiracy could no longer support the firearm offense, the drug trafficking offense could and, therefore, the conviction stood.

A divided Fourth Circuit affirmed the district court’s decision. The court relied on the statement of facts that was part of the plea agreement, in which Crawley admitted that he used the firearm both in relation to a crime of violence and a drug trafficking crime. The district court thus correctly relied on prior Fourth Circuit precedent that a firearm charge conviction after trial remains valid if one of the predicate offenses no longer counted as a crime of violence so long as another predicate still counted. The facts relied on by the district court were not “superfluous” and relying on them did not run afoul of Supreme Court precedent. The could also noted that Crawley “stipulated to the factual basis for the enumerated drug offense” even though he was not convicted of it. The court also concluded that in pleading guilty to a conjunctively charged count he was only admitting the “less serious statutory conduct,” concluding that the statement of facts was “akin to a” special verdict form identifying the factual basis for the conviction.

Judge Thacker dissented, arguing that nothing in the record showed that Crawley admitted to attempted possession of the drugs with the intent to distribute them.

Evidence Sufficient to Sustain Drug Conspiracy Conviction – But Not By Much

 US v. Moody: Moody and his codefendant, Carter, were in a car that was stopped by police. Before the car came to a stop, the officer saw Moody, in the passenger’s seat, reach behind the driver’s seat twice. The officer found cash and a cell phone on Moody, another phone on Carter, as well as firearms under each front seat of the car and a bag behind the driver’s seat with drugs and other paraphernalia. The defendants were charged with conspiracy to possess cocaine with intent to distribute, possession with intent to distribute and possession of firearms in connection with a drug trafficking offense, with Moody additionally charged with being a felon in possession of a firearm. They were convicted on all counts.

On appeal, the Fourth Circuit affirmed the defendants’ convictions. Their primary argument was that there was insufficient evidence to support their convictions. As to the possession of the drugs, the court held that while there were “potentially innocent explanations” for the evidence against Moody, a “reasonable jury could have inferred” that Moody was in the area to sell drugs and that the case was proceeds of those sales. Likewise, the evidence of possession against Carter was sufficient as “if a factfinder determines that a driver had dominion and control over a vehicle, that is sufficient to establish constructive possession of contraband hidden in that vehicle.” The court also found sufficient evidence to sustain the firearm convictions. As to the conspiracy conviction, however, the court, while ultimately affirming the convictions, noted that “we reach this conclusion reluctantly” and noted “the unfortunate breadth of our modern conspiracy law” and the practice of indicting defendants for both conspiracy and the object of the conspiracy where there was little evidence beyond the facts supporting the underlying offense. It was not an “overwhelming” case, but it was enough.

Suspended Sentence Activated On Same Day As Another Sentence Counted Separately

US v. Stuart: Stuart pleaded to mail robbery. At sentencing, he objected to the calculation of his criminal history, arguing that a prior North Carolina sentence that had been suspended initially then was “activated” when he was sentenced for a new offense (also in North Carolina) should be treated as a single sentence along with the term of imprisonment imposed for the newer offense. The district court disagreed and imposed a sentence of 130 months in prison, at the bottom of the resulting advisory Guideline range.

On appeal, the Fourth Circuit affirmed Stuart’s sentence. The court relied on USSG 4A1.2(a)(2), which provides that prior sentences are always counted separately if they were separated by an intervening arrest. In this case, the suspended sentence was initially imposed, then Stuart was arrested on the newer charges, then the suspended sentence was activated and the newer sentence imposed at the same time. As a result, because there was an intervening arrest, the sentences were counted separately.

No Error Allowing Defendant Charged With Impersonating AUSA to Defend Self

US v. Ziegler: Ziegler was involved in a minor car accident, which led to his arrest on suspicion of DUI. In the process, Ziegler claimed he was an Assistant United States Attorney working for Mike Stuart (the US Attorney for the Southern District of WV at the time), that he did not “have time for this,” and that any charges would be dropped. According to the officer, Ziegler also cited “a bunch of U.S. Codes” and “argued that the Supreme Court  that the Supreme Court had ruled that he did not need a driver’s license.” Similar statements made to court employees after his arrest, as well as to the owner of the impound lot where his car was taken, let to Ziegler being charged with two counts of falsely pretending to be a federal officer. He represented himself at trial, was convicted on both counts, and sentenced to a term of time served (with no additional term of supervised release).

On appeal, the Fourth Circuit affirmed Ziegler’s convictions. Ziegler’s primary argument was that the district court erred by concluding that Ziegler was competent to represent himself by not “adequately considering his mental competency” and by not reconsidering its decision based on Ziegler’s conduct during trial. The court found no error in the district court’s decision (much less a plain one, to the extent that plain error review applied), noting that the district court advised Ziegler of the various issues with self-representation and was able to personally observe his conduct. The court also noted that standby counsel made it clear that he had no concerns about Ziegler’s competency. As for Ziegler’s behavior during trial, including his questions to witnesses and arguments to the court and jury, “not every misleading claim or lack of knowledge suggests mental illness.” Indeed, “Ziegler’s performance during trial only confirmed his competency,” the court concluded, observing that “many great trial lawyers are combative and a bit full of themselves, if not outright narcissists.” The court also held that there was sufficient evidence to support Ziegler’s convictions.

Asking If There Was Anything Illegal In Car Within Scope of Traffic Stop

US v. Buzzard: Buzzard and Martin* (charged in separate indictments, but consolidated for appeal) were in a car that was pulled over for a traffic violation just after leaving a gas station at 1:30 in the morning. The officer making the stop radioed in that he was stopping a vehicle with two men in it, then got out and approached the vehicle. He recognized Martin from previous dealings with him. "At some point during the stop," the officer asked if there was anything illegal in the car. Buzzard and Martin both produced drug paraphernalia. Additional officers arrived, Buzzard and Martin were removed from the car, and two pistols (wrapped in socks) were found under the front seats. After both defendants were charged with being a felon in possession of a firearm, they moved to suppress the firearms, arguing that the officer had extended the traffic stop into a criminal investigation without cause. The district court denied the motion. Buzzard entered a conditional guilty plea and Martin was convicted at trial.

On appeal, the Fourth Circuit affirmed the denial of the motion to suppress. The defendants' primary argument was that by asking whether anything illegal was in the car it transformed the traffic stop into a criminal investigation. The court agreed with the district court that asking about "illegal" items in the car (as opposed to "dangerous" ones or weapons) was within the scope of a traffic stop and did not expand it into a criminal investigation, as it related to officer safety. In addition, the court concluded that the question "didn't extend the stop by even a second" because the officer was "mid-stop when he asked" (although this was disputed - the defendants both testified that it was the first thing the officer said as he approached the car) the question and did not yet have the information necessary to complete the routine incidents of a traffic stop.

* Full disclosure, I was part of the team that represented Martin on appeal.

No Prejudice In Failing to Give Statement Evaluation Instruction Where Defendant Didn’t Claim Statement Was Involuntary

US v. Hardy: Hardy was present (along with eight others) in an apartment searched by police. After being given his Miranda warnings, Hardy agreed to talk to police and gave a videotaped statement in which he admitted dealing marijuana and trying to serve as a middleman for a heroin deal. The search of the apartment uncovered a bag with marijuana (which Hardy told them about), as well as heroin and firearms. Hardy made further statements admitting to possession of some of the firearms. He was charged, and ultimately convicted at trial, of possession with intent to distribute marijuana, possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm and was sentenced to 300 months in prison.

The Fourth Circuit affirmed Hardy's conviction on appeal. Hardy argued for the first time that the district court failed to give a jury instruction, required under 18 USC 3501(a), that the jury should "give such weight to the confession as the jury feels it deserves under all the circumstances." While the parties disagreed as to whether the error was plain, the court decided it ultimately did not have to reach the issue, concluding that even if the error was plain it did not affect Hardy's substantial rights. That was partly due to the fact that even had the instruction been given "there would be little reason for the jury to disbelieve Hardy's confession because Hardy made no meaningful challenge at trial to the confession's voluntariness or veracity." Only in a case where the evidence of guilt was "close" and the Government relied heavily on the confession "would we find that such an omission affected the defendant's substantial rights," but "the evidence" in this case "was not close."

RICO Conspiracy Not Crime of Violence; Variance on VICAR Count Required Reversal

US v. Simmons: Simmons and his codefendants were charged in a 38-count indictment that included (as relevant for discussion here) counts for conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), committing violations of the Violent Crimes in Aid of Racketeering statute (VICAR), and possession/use of a firearm in connection with a crime of violence – specifically, conspiracy to violate RICO. After being convicted at trial, the district court granted the defendants’ motion to vacate one of the firearm counts, holding that RICO conspiracy was not a “crime of violence” as defined under 18 USC 924(c). Two of the defendants received multiple life sentences, while one received a sentence of 35 years in prison.

The Government appealed the decision on the RICO conspiracy, while the defendants cross appealed on numerous issues. Ultimately, the Fourth Circuit affirmed the vacation of the firearm charge related to the RICO conspiracy, while also holding that several other convictions needed to be vacated as well. On the RICO conspiracy issue, the court noted that the Government’s argument was limited to RICO conspiracy charged “with aggravating factors.” Nevertheless, the court held that those factors were not additional elements of the RICO conspiracy offense and therefore did not transform it into a crime of violence.

As to the defendants’ arguments, the court agreed that the VICAR counts based on assault had been constructively amended by the district court’s jury instructions. Those instructions correctly instructed the jury on a state offense different from the one charged in the indictment. The jury’s general verdict made it impossible to tell if the defendants were convicted on that basis or the other, correctly identified and instructed, offense. The constructive amendment was plain error that required the court to notice and rectify it. Finally, the court held that one of the VICAR murder counts was based on insufficient evidence.

Review of Restitution, Forfeiture Amounts Precluded By Appeal Waiver

US v. Boutcher: Boutcher was involved in a “short sale” real estate scheme and eventually pleaded guilty to conspiracy to commit bank fraud. As part of his plea agreement, he waived his right to appeal “any sentence within the statutory maximum,” restitution of at least $7500, and agreed to forfeit all “fraud-related” assets while waiving “all constitutional and statutory challenges to forfeiture in any manner, including direct appeal.” The parties argued about the proper amounts of restitution and forfeiture at sentencing, with the court ultimately imposing obligations of both of over $227k.

Boutcher appealed the district court’s restitution and forfeiture orders, but the Fourth Circuit dismissed the appeal on the Government’s motion. Boutcher did not argue that the appeal waiver was invalid, but that the issues he raised were outside its scope. The court disagreed. As to restitution, the court held that the district court’s clerical error of referencing a restitution act that does not exist did not deprive it of authority to impose restitution. As to the amount, while the means used by the district court might have been erroneous, it was precisely the kind of error (“merely a legal error”) that is covered by the waiver. As to forfeiture, the plain language of the plea agreement prevented Boutcher from seeking review of it.

Removal at Border Just After Crossing Did Not Require Due Process

US v. Guzman: Guzman crossed the Rio Grande and entered the United States in 2016, but was shortly apprehended. He did not seek asylum and “stated that he would return to El Salvador.” As a result, he was issued an order of removal under an expedited procedure and was removed from the United States. A couple of years later, he was arrested following a traffic accident in Virginia and was charged with illegal reentry. He filed a motion to dismiss, arguing that his removal order was not valid because it was obtained in violation of due process. The district court disagreed, denied the motion, and imposed a sentence of probation after Guzman’s guilty plea.

On appeal, the Fourth Circuit affirmed Guzman’s conviction. Although it wasn’t completely clear, the court construed Guzman’s argument as being that his removal order was invalid because the expedited procedure used “failed to provide him with the opportunity to obtain counsel during the interview with the immigration officers who issued the expedited removal order” and “denied him the right to counsel” under the Due Process Clause and the Administrative Procedures Act. This prevented Guzman from agreeing to voluntary removal, which does not count as a “removal order” for illegal reentry purposes. The court held that no right to counsel existed in such expedited proceedings. As to due process, the court held that because Guzman was never “admitted” to the United States then he had only the due process protections Congress had set forth, which do not include a right to counsel. That attaches in immigration proceedings only after someone has been “admitted.” As to the APA, the court held that although the Immigration and Nationality Act was originally related to the APA, it was a standalone statutory scheme and the right to counsel from the APA could not be imported into it.

TN Statutory Rape Conviction Triggers Enhanced Child Pornography Sentence

US v. Hardin: Hardin pleaded guilty to one count of receiving child pornography. The district court applied a statutory enhancement to his sentence based on Hardin’s prior conviction in Tennessee for statutory rape, increasing his potential sentence to 15 to 40 years in prison. The district court then imposed a mandatory minimum sentence of 180 months in prison, followed by a lifetime term of supervised release.

On appeal, a divided Fourth Circuit affirmed Hardin’s sentence of imprisonment, but vacated his term of supervised release and remanded for further proceedings. On the sentence of imprisonment, the court applied the categorical approach and concluded that Hardin’s Tennessee offense matched the requirement that a prior sentence was “relating to . . . abusive sexual conduct involving a minor” to trigger the statutory enhancement. Of particular importance was the “relating to” language, which enveloped the Tennessee offense, even in its most minor form. On the supervised release term, the court held that neither length of the term itself nor several of the special conditions to which Hardin had objected were supported by a sufficient explanation from the district court.

Judge Wynn dissented, disagreeing that the Tennessee statute “relat[es] to abusive sexual conduct involving a minor” and indicating that the decision created a circuit split.

Prior SC Conviction for Possession With Intent to Distribute Crack Is Career Offender Predicate

US v. Williams: Williams pleaded guilty to being a felon in possession of a firearm. At sentencing, his offense level was increased due to two prior convictions that were classified as “controlled substance offenses.” Williams objected, arguing that one of them, a 2003 conviction for possession with intent to distribute crack cocaine in South Carolina, did not meet the definition of controlled substance offense. The district court disagreed, overruled Williams’ objection, and sentenced him to 70 months in prison, a nearly two-year variance from the bottom of the advisory Guideline range. 

On appeal, the Fourth Circuit affirmed Williams’ sentence. Williams first argued that the Government failed to prove that the 2003 conviction was a controlled substance offense because the documents related to that sentencing were unclear. The court concluded that any uncertainty was caused by a clerical error and that was “not sufficient to refute the government’s showing that Williams’ crime of conviction is the offense plainly spelled out on the sentencing sheet.” Williams also argued that the possession-with-intent offense in South Carolina was overly broad because it allowed juries to conclude that possession of “one or more grams” of crack was evidence of possession and, thus, allowed for convictions involving simple possession. The court disagreed, relying on state law that held this was a “permissive inference” that “still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved.”

 

Abusive Racial Language Didn’t Rise to “Fighting Words” Required for Conviction

US v. Bartow: Bartow is a retired Air Force Colonel who was shopping for boots in the Quantico Marine Corps Exchange. He had a series of aggressive, confrontational conversations with an employee and some other shoppers, culminating with a question using the “N-word.” Although the employee was “taken aback” and others observed a “heated conversation” between the “very animated” Bartow and another customer (there was finger pointing) there was never any violence. The store security officer escorted Bartow out of the store (without incident, apparently) and he was ultimately charged with using “abusive language” under a Virginia statute (made applicable under the Assimilative Crimes Act). He was convicted by a magistrate, who imposed the maximum penalty ($500 fine), with the district court affirming, “seem[ing] to rely on the apparent friction between the white lieutenant colonel and Bartow as a basis for concluding Bartow’s use of the n-word ‘elicited an impending breach of the peace.’”

On appeal, the Fourth Circuit reversed its conviction. The court examined, at length, the Supreme Court’s evolving doctrine on “fighting words” and the way that Virginia courts had incorporated that into their application of the abusive language statute. While noting that Bartow’s speech “constituted extremely abusive language,” the Virginia statute did not (and could not) “criminalize the mere statement of this abhorrent word.” Instead, the Government had to prove that Bartow “individually addressed” the language at issue and that the language was “likely to provoke an immediate violent reaction by that person or a reasonable person in that individual’s position.” There was no evidence of that in this case.

No Exclusionary Rule for Violation of Immigration Statute Requiring Warrant for Arrest

US v. Santos-Portillo: Santos-Portillo was arrested, without a warrant, by an Homeland Security agent who recognized him from when he was previously deported from the United States. After receiving Miranda warnings, Santos-Portillo admitted he was from Honduras, had been removed from the United States before, and did not have permission to return. After he was charged with illegal reentry, Santos-Portillo moved to suppress “all post-arrest evidence” because under 8 USC 1357(a) which allows warrantless arrests in immigration situations only where it is likely that the suspect will escape before a warrant can be obtained. The motion was denied and Santos-Portillo entered a conditional guilty plea before begin sentenced to 15 months in prison.

On appeal, a divided Fourth Circuit affirmed the denial of the motion to suppress. Both parties agreed that there was no risk Santos-Portillo would flee and no warrant was obtained, thus a “legal requirement has . . . been violated.” The only question was “what remedy is available . . . or whether one exists at all for violation of this provision.” The court concluded there was not. It noted that not only was there no exclusionary rule in section 1357, but in other related contexts Congress has provided such a remedy. Likewise, because (Santos-Portillo agreed) the agent had probable cause to make the arrest, there was no Fourth Amendment violation. The court went on to reject Santos-Portillo’s argument that the court had the power to create an exclusionary rule in this situation under the “alleged inherent power to devise remedies for violations of the law by the government.” What may once have been a “freewheeling power . . to create remedies where Congress did not has met only disfavor from the [Supreme] Court itself.” Thus, the “range of cases where courts can on their own suppress evidence for a statutory violation is quite limited.” Even if such authority existed for “egregious or flagrant” violations, such a “vague and open-ended” test would “fail[] on its own terms” here were a “perfectly lawful arrest” was at issue.

Judge Floyd dissented, arguing that the “majority too narrowly views federal courts’ inherent authority to supervise the proceedings before them.”

Denial of Compassionate Release Request Doesn’t Require Lengthy Explanation

US v. High: In 2019, High was sentenced to 84 months in prison following his conviction for distributing crack cocaine. In 2020, he filed a motion for compassionate release, arguing that he had a history of heart conditions that left him particularly vulnerable to serious effects of COVID-19 and that it was likely he would contract the disease in the institution where he was incarcerated. The district court denied the motion, relying on the 3553(a) factors and noting that High had only begun to serve his sentence, that the sentence was still “sufficient, but not greater than necessary” to support the purposes of sentencing, and that having “reviewed and considered the relevant factors” relief was not warranted.

The district court affirmed the denial of High’s request for compassionate release. In doing so, the court noted that High’s appeal “does not take serious issue with the substance of the district court’s decision but rather focuses on the procedure the court followed in explaining its decision.” Applying recent Supreme Court precedent, the court concluded that there was no requirement in such proceedings that the district court acknowledge and address all arguments made by the defendant. In this case, the same district court judge who denied the motion was the one who imposed the original sentence, the district court “implicitly responded to High’s straightforward motion,” and it identified “rational and legitimate” reasons for rejecting High’s request. The court distinguished it’s recent Martin decision by pointing out that there was no similar “mountain of new mitigating evidence” in this case, given that a short amount of time had passed since High was sentenced.

Court Must Calculate Guidelines Under Current Law in First Step Act Proceeding

US v. Lancaster: In 2009, Lancaster pleaded guilty to a conspiracy involving more than 50 grams of crack cocaine, subjecting him to a mandatory minimum sentence of 120 months in prison. He was classified as a career offender at sentencing and ultimately received a sentence of 180 months in prison. In 2020, he filed a motion under the First Step Act’s retroactive application of the Fair Sentencing Act, seeking a sentence of time served, based on the argument that he was no longer a career offender. The district court denied the motion in a brief, one-paragraph order, concluding that it would have imposed the same sentence had the Fair Sentencing Act been in effect.

On appeal, the Fourth Circuit reversed the denial of relief under the First Step Act. While the district court’s ultimate conclusion that no relief should be granted might end up being correct, it did not properly analyze Lancaster’s request. Critically, the district court failed to recalculate the Guideline range in light of “intervening case law.” At the time of Lancaster’s conviction his offense of conviction – conspiracy – was a “controlled substance offense,” but that is no longer the case. Remand was required for the district court to perform that analysis and, ultimately, determine whether relief was appropriate.

Judge Wilkinson concurred in the result, agreeing that it was required by prior Fourth Circuit precedent. However, he noted that “to say these holdings exacerbate a circuit split greatly understates the matter” and that the issue “is an altogether serious one in sentencing, and I respectfully request that the sooner the Supreme Court resolves the fractured views concerning it, the better of we all will be.”

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

Gant Applies Beyond Search of Automobiles

US v. Davis: Davis was pulled over for overly tinted windows. After officers discovered that Davis “had a history of felony drug charges and convictions,” Davis drove off while they were still in possession of his license and proof of insurance. A high-speed chase followed in a residential neighborhood until Davis “reached a dead-end cul-de-sac, drove in between two houses and into someone’s backyard,” at which point he got out of the car carrying a backpack and started running into a swamp. Davis eventually got stuck and officers caught up. After they drew their weapons, Davis “complied by returning to dry land, dropping the backpack, and lying down on his stomach.” Davis was patted down (they found cash), handcuffed, and placed under arrest. At that point, an officer opened the backpack and found cash and cocaine. A search of Davis’ car uncovered more cash and other items, while a handgun was found along the path of Davis’ flight. The district court denied Davis’ motion to suppress the contents of the backpack and his car and was ultimately convicted of drug and firearm counts and sentenced to 420 months in prison. 

On appeal, the Fourth Circuit reversed the denial of Davis’ motion to suppress. The court addressed the issue of whether Arizona v. Gant, in which the Supreme Court addressed searches of vehicles pursuant to lawful arrests, applied outside the context of vehicles. The court concluded that it did, because while Gant involved an automobile search, the prior cases upon which it was based were not limited to that situation. As a result, police “can conduct warrantless searches of non-vehicular containers incident to a lawful arrest only when the arrestee is unsecured and within reaching distance of the [container] at the time of the search.” With that in mind, the district court erred by denying Davis’ motion to suppress, because when the backpack was searched Davis was handcuffed and not within reaching distance of it. The court contrasted this situation, where Davis was “face down on the ground win this hands behind his back” with an earlier decision approving a similar search where the defendant was “milling about” while handcuffed. Without the evidence found in the backpack the officers lacked probable cause to search the car (although they had reasonable suspicion).

Hearing Required to Determine Due Process Violation Regarding Victim’s Cell Phone

 US v. Johnson: Johnson and Stewart were charged with distribution of heroin causing death. In addition, Johnson was also charged with simple distribution to another person, who also died shortly thereafter. Each defendant reached a plea agreement with the Government to plead guilty to simple distribution charges, but the district court refused to accept it in Johnson’s case, leading Stewart to withdraw his plea as well. 

Before going to trial, the defendants moved to dismiss the causing death count, arguing that the Government had violated their due process rights by not turning over exculpatory evidence from the victim’s cell phone or preserving the phone for further examination. The Government explained that the state police investigator who had the phone had returned it to the victim’s family, who could no longer find it. The district court denied the motion, without hearing any testimony about the matter. The district court also declined to give a spoliation instruction at trial, suggesting (among other things) that would require the jury to be informed of the defendants’ withdrawn guilty pleas. At trial, the district court also allowed the Government to present extensive evidence that the person to whom Johnson had separately sold heroin to had died shortly thereafter. The jury convicted the defendants on all counts, with the district court then sentencing Johnson to 365 months in prison and Steward 293 months.

On appeal, the Fourth Circuit reversed the defendants’ convictions and sentences. As to the due process issue regarding the victim’s phone, the court ultimately concluded that the “record was too meager to render a proper ruling,” holding that there were numerous unanswered questions that required the district court to hold an evidentiary hearing. The court did state that “we also have doubts about the merits of the district court’s decision,” however. The court did not resolve the related instructional issue, but noted that if the district court rejected again the due process argument, “the court should assess anew whether the defendants are entitled to an adverse inference instruction.” With regard to Johnson’s separate conviction, the court concluded that the district court had erred by concluding that Johnson had “opened the door” to extensive testimony about his death by cross examining one of the Government’s witnesses about how the person to whom Johnson allegedly sold heroin was in a parking lot, unsupervised, for hours afterward and could have obtained drugs from other sources during that period.

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

Hobbs Act Robbery Not “Crime of Violence” Under Guidelines

US v. Green: Green pleaded guilty to Hobbs Act robbery and the parties agreed to a sentence of no less than 120 months in prison. The probation officer classified Green as a career offender, however, raising his advisory Guideline range to 151 to 188 months. Green objected, arguing that his offense of conviction was not a “crime of violence” because that definition was too vague. The district court disagreed, applied the enhancement, and ultimately sentenced Green to 144 months in prison.

On appeal, the Fourth Circuit vacated Green’s sentence. Turning first to the substance of Green’s argument, the court concluded that Hobbs Act robbery does not meet the definition of “crime of violence” used in the Guidelines. In particular, Hobbs Act robbery can be committed by the use of force (or threat thereof) against property, whereas the various crime of violence definitions were limited to the use of force against persons (by contrast to the definition for 18 U.S.C. 924(c), which includes property, meaning Hobbs Act robbery is a crime of violence under that provision). Therefore, it qualified neither under the force clause or under the enumerated offense clause because it was broader than generic robbery. The court then addressed the issue of standard of review, applying de novo review, but concluding that Green would prevail under plain error review as well. It rejected the Government’s argument that plain error should apply because Green’s brief objection in the district court was on different grounds than his arguments on the appeal that the court found persuasive. The court concluded that because Green had raised the claim – that he was not a career offender – before the district court, he could make new arguments in support of that claim on appeal.

Judge Rushing concurred in the judgment, but could have applied plain error review.

Courts Must Reduce First Step Act Eligible Defendants’ Sentences to New Statutory Maximum

US v. Collington: In 2010, just before the Fair Sentencing Act was passed, Collington was sentenced to 30 years in prison after pleading guilty to possession with intent to distribute more than five grams of crack cocaine. That sentence, part of a plea agreement, was below the statutory maximum (and recommended Guideline sentence) of 40 years. After the First Step Act was passed, Collington sought a reduction in his sentence, noting a new statutory maximum of 20 years. The district court concluded that Collington’s conviction was a “covered offense” and that he was eligible for relief, but ultimately determined not to disturb the 360-month sentence due to the “seriousness” of his offense and the fact that the murder cross reference in the Guidelines applied at sentencing.

On appeal, the Fourth Circuit reversed the district court’s denial of relief. In doing so, the court was required to “consider the limits of a court's discretion in disposing of First Step Act motions,” including “whether courts can retain a sentence above the retroactive statutory maximum.” After a thorough review of its First Step Act cases to date, the court concluded that Congress’ intention was to give “retroactive effect to the new statutory maximums imposed by the Fair Sentencing Act” and that, as a result, the district court must reduce an eligible defendant’s sentence to at least the top of the newly applicable Guideline range. That First Step Act relief is generally discretionary did not matter, as it was the new statutory ranges in the Fair Sentencing Act that controlled. Therefore, where Collington would face no more than a 20-year sentence “[i]f sentenced today” for his offense of conviction, the “district court erred by not resentencing Collington to – at most – twenty years’ imprisonment.” Secondarily, the court also held that First Step Act sentencing decisions would be reviewed using the same reasonableness standards as other sentences.

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

Restitution Following Slavery Conviction Requires Liquidated Damages

US v. Edwards: Edwards “pleaded guilty to forced labor” under the Trafficking Victims Protection Act after “effectively enslave[ing]” an intellectually disabled man for five years at the restaurant Edwards managed (the man had worked there for 19 years prior while being paid). After imposing a sentence of 120 months, the district court ordered Edwards to pay restitution of approximately $273,000, representing the unpaid wages, but declined to include an “additional equal amount as liquidated damages.”

On appeal, the Fourth Circuit reversed the restitution order. The court noted that the TVPA requires restitution in the “full amount of the victim’s losses” and defines that with reference to the Fair Labor Standards Act. That Act specifically requires the payment of liquidated damages when an employer fails to meet minimum wage and overtime requirements. The court also recognized that “awarding liquidated damages for violations of the FLSA’s minimum-wage and overtime provisions is the norm.” Therefore, the district court erred by not including liquidated damages in the restitution aware imposed upon Edwards.

Terrorism Enhancement Upheld for Silencer Possession Case

US v. Kobito: After Kobito appeared at a North Carolina mosque to “ask about an inflammatory video of a Imam that was circulating on social media,” a confidential informant contacted him to ask whether he was planning any actions related to the mosque. They met in person, where Kobito explained part of the local federal building was “a front for the” NSA and that he needed to figure out “the exact floor” it was on to “dump shots into the building.” As part of his discussion, Kobito explained that he knew how to make a “poor man’s silencer” using an automotive air filter. After additional discussions with the informant about silencers and Kobito’s plans, investigators executed a search warrant at his home and recovered two of the silencers. After pleading guilty to possession of an unregistered silencer, Kobito’s offense level was enhanced under USSG 3A1.4 for a “felony that involved, or was intended to promote, a federal crime of terrorism,” which includes destroying or injuring any structure “within the special maritime and territorial jurisdiction of the United States.” The district court imposed the enhancement, resulting in a statutory maximum Guideline range of 120 months, but ultimately imposed a sentence of 60 months.

On appeal, the Fourth Circuit affirmed Kobito’s sentence. Rejecting (on plain error grounds) Kobito’s argument that the Government failed to prove that the federal building was within the proper jurisdiction, the court held that such proof was not required in the first instance. The enhancement applies when the offense was “‘intended to promote’ a federal crime of terrorism, even if it didn’t ‘involve’ such a crime.” There was no need to prove that Kobito had completed, attempted, or conspired to commit such a crime. All that matters is the defendant’s purpose “and if that purpose is to promote a terrorism crime, the enhancement is triggered.”

Allegations of IAC Regarding Sentencing Exposure Prior to Plea Required Hearing; Cannot Raise Restitution Challenge

US v. Mayhew: Mayhew was convicted on numerous counts of fraud (and related offenses) and sentenced to 320 months in prison, along with a restitution obligation of more than $2 million. After his conviction was final, Mayhew filed a motion under 28 USC 2255 alleging that he received ineffective assistance of counsel on two grounds: that counsel misadvised him as to his sentencing exposure under the Guidelines which caused him to turn down a favorable plea bargain and that counsel failed to object to the inclusion of restitution amounts related to dismissed counts. The district court denied Mayhew’s motion without having a hearing.

On appeal, the Fourth Circuit concluded that the district court erred by not holding a hearing on Mayhew’s claims. The Government admitted that it made an offer for Mayhew to plead guilty to a single conspiracy count that would have capped his statutory maximum sentence at 60 months. Mayhew rejected this because his attorney allegedly told him if he was convicted at trial he would only face a sentence of two to five years. With no evidence contradicting that allegation in the record, Mayhew was entitled to an evidentiary hearing. The court also held that the record did not show a lack of prejudice, as any advisories from the district Mayhew had about sentencing exposure came after he rejected the favorable plea agreement. In addition, while the court held that a defendant could not challenge a restitution award in a 2255 proceeding, it concluded that Mayhew’s issue went also to the loss calculations under the Guidelines, which can be raised under the banner of ineffective assistance of counsel.