Withdrawal of Objection to PSR Waives Challenge to Facts Set Forth Therein on Appeal

US v. Fowler: Fowler pleaded guilty to being a felon in possession of a firearm and possessing that firearm in connection with a drug trafficking crime. One issue at sentencing was whether Fowler should be a assessed a criminal history point (and therefore bumped up a criminal history category) for a prior South Carolina domestic violence conviction in which he was sentenced to take part in an intervention program.  While Fowler initially objected to it being scored, the objection was withdrawn at sentencing and his argument focused on an argument for a variance sentence. The district court rejected that argument and sentenced Fowler to 117 months in prison, the bottom of the applicable Guideline range.

On appeal, the Fourth Circuit affirmed Fowler’s sentence. Fowler raised the criminal history calculation issue, but the court ultimately concluded it had been waived when Fowler withdrew his objection at sentencing. In doing so, the court reemphasized that a “defendant has an affirmative duty to make a showing that the information in the presentence report is unreliable” and, if that burden is not met, the Government’s burden of proof is met and “the district court is free to adopt the findings of the presentence report.” Fowler could not rely on the fact that the description of his prior offense (and resolution thereof) was slight and might not have shown that the conviction should have been counted. The court also held that it could consider a document provided by the Government on appeal from South Carolina’s computer record system showing that a sentence was imposed on Fowler in that case. The court also rejected Fowler’s argument that the district court had not given sufficient consideration to his variance argument.

Denial of Compassionate Release Reversed Where District Court Failed to Adequately Consider Defendant’s Worsening Medical Issues

US v. Malone: In 2008, Malone was sentenced to 330 months in prison for drug and gun offenses. At the time he was already suffering from several medical issues, including cancer. In 2014, while successfully seeking a reduction to 288 months in prison due to retroactive Guideline amendments, Malone provided medical records showing additional issues including kidney disease, hypertension, and “other specified disorders of his liver.” In 2019, due to further decline in his health, Malone sought compassionate release. The district court denied that motion, finding that Malone had not met the standard for “extraordinary and compelling” reasons set forth in the Guidelines.

In 2020, after the COVID pandemic hit, the Bureau of Prisons moved Malone to home confinement (at his brother’s home) to serve his sentence. While on home confinement, the district court granted Malone’s motion to have the probation office do a home study of his own home, as the release to his brother’s home was “error” (he was forcing Malone to pay rent). Malone then filed a second motion for compassionate release, restating his lengthy catalog of medical issues. He also argued that if he were returned to prison (given that the home confinement placement is theoretically temporary) he would have severely increased odds of contracting COVID and suffering severe consequences. As to the relevant 3553(a) factors, Malone argued that he was not a danger to the community and had a viable release plan. The district court denied Malone’s motion in a brief order.

On appeal, the Fourth Circuit reversed the district court’s denial of Malone’s motion for compassionate release. The court concluded that the district court failed to fully “reckon with Malone’s numerous, health-related extraordinary and compelling circumstances distinct from the COVID-19 pandemic” as well as the relevant 3553(a) factors. Particularly, the district court’s analysis was linked with its erroneous deference to the Guidelines in the 2019 denial order. Properly analyzed, Malone’s “numerous health conditions undoubtedly establish” a basis for release. Over time, the court concluded, “the balance of Malone’s relevant 3553(a) factors has shifted, and we find that his sentence is no longer just,” due to his “severely degenerated health and advanced age.” Therefore the court reversed “with instructions to grant Malone’s motion for compassionate release.”

Judge Harris concurred, agreeing that the district court’s denial should be reversed, but arguing that the court should remand for further proceedings (“I would do as Malone asks in his brief”), rather than direct that Malone’s motion be granted.

Congrats to the Defender office in Western VA on the win!

Defendant Not In Custody When Found Trespassing In Closed Public Park

US v. Leggette: After closing time, a police officer notice a car parked in a parking lot of a park. As being in the park after closing constituted trespassing, the officer investigated and found Leggette and a friend who were “just ‘hanging’ in the park.” While the officer walked with Leggette and his friend back to the parking lot, another officer found a gun in a bag in a trash can. Leggette was then patted down and asked about the gun. After twice denying the gun was his (but volunteering he “just did 15 years” in prison), Leggette eventually admitted the gun was his. He was arrested and, after being Mirandized, “confessed again.” After unsuccessfully moving to suppress his statement in the park, Leggette pleaded guilty to being a felon in possession of a firearm and was sentenced to 180 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Leggette’s motion to suppress. At issue was whether the officer should have given Miranda warnings to Leggette before questioning him in the park. The court concluded that although Leggette was not free to leave at that time, that did not mean he was in “custody” so as to require Miranda warnings. The court noted that only one officer questioned him, asked only a few questions, and never had to physically restrain Leggette (or threaten to). It all happened in a short period of time, in a public (albeit closed) park, in the presence of Leggette’s friend.

Reversing Denial of Compassionate Release Where District Court Failed to Address Defendant’s COVID-Based 3553(a) Argument

US v. Mangarella: In 2008 Mangarella was convicted of conspiracy and fraud and sentenced to 600 months in prison, which was eventually reduced to 360 months (the 600-month sentence was determined to be a de facto life sentence, in violation of diplomatic assurances made to Costa Rica when it extradited Mangarella and his coconspirator). In 2019, Mangarella filed a motion for compassionate release based on his advancing age and medical conditions, which was denied. In 2020, Mangarella moved for the district court to reconsider its denial in light of the emerging COVID epidemic, which the district court also denied. Later that year, Mangarella filed another motion for reconsideration based on a large COVID outbreak at the facility where he was incarcerated. With regard to the relevant 3553(a) factors, he argued that while the severity of his offense called for a severe sentence, it did not call for one that included “exposure to a life-threatening illness.” The Government initially supported Mangarella’s motion, but after pushback from the judge, changed course. The district court again denied the motion, resting its decision on an analysis of the 3553(a) factors, but notably not addressing Mangarella’s COVID-based argument.

On appeal, the Fourth Circuit reversed the district court’s denial of Mangarella’s motion for compassionate release. The court recognized that the district court’s 3553(a) analysis was “relatively thorough” and that its failure to directly address the COVID-related argument “does not by itself” show the district court did not consider it. However, in its berating of the Government’s initial position in support of the motion the district court “appeared to take the view that it was in appropriate to consider COVID-19 or Mangarella’s particular susceptibility” in both the eligibility and 3553(a) portions of the case. Therefore, remand was required.

Court Could Consider Benefits of Plea Bargain When Resolving Compassionate Release Request

US v. Bond: After a series of robberies in 2015, Bond was charged with multiple counts of Hobbs Act robbery that would have resulted in an advisory Guideline range of more than 1000 months in prison. He wound up pleading guilty to two counts of brandishing a firearm during a crime of violence and was sentenced to 84 months on one and 300 months on the other as the result of the “stacking” providing then in force. Ultimately, Bond moved for compassionate release based on the First Step Act’s changes to the stacking provisions. While the district court agreed that the change in the law constituted “extraordinary and compelling” reasons for relief, it ultimately denied Bond’s motion after weighing the relevant sentencing factors. One of those factors was that the district court would not “disregard the dismissed counts and the benefits” Bond got from the plea agreement, concluding that Bond got “the exact sentence bargained for.”

On appeal, the Fourth Circuit affirmed the denial of Bond’s motion for compassionate release. The court rejected Bond’s argument that the district court erred by considering the plea agreement amongst the applicable sentencing factors. It also rejected Bond’s attempts to rely on the First Step Act’s change in the stacking provisions, noting that “timing matters” and that his sentence “was properly calculated when imposed.” At any rate, the ultimate issue in compassionate release was not whether the original sentence was correct, but whether the sentencing factors counseled for or against a reduction given new, extraordinary circumstances.