Court Expounds on Reaosnablenss Review for Within the Guidelines Sentence

US v. Johnson: Johnson pleaded guilty to three drug counts of cocaine and crack distribution. Using the grouping rules in USSG 3D1.2, the district court calculated Johnson's advisory Guideline sentencing range to be 97 to 121 months. Johnson objected, arguing that the district court should use its discretion under Booker to not apply the 3D1.2 grouping principles. The district court disagreed and sentenced Johnson to 97 months in prison.

The Fourth Circuit affirmed on appeal. Starting with the observation that the court has twice concluded that a sentence within an advisory Guideline sentencing range is presumptively reasonable, the court noted that in neither case (US v. Green and US v. Moreland) had the sentence at issue been imposed within a properly calculated range. Given that situation in this case, the court took "this opportunity to briefly explore the three justifications [for presumptively reasonable Guidelines] in greater detail." Those justifications are:

"The first reason that Guideline sentences are presumptively reasonable under Booker is the legislative and administrative process by which they were created." "By now," the court concluded, "the Guidelines represent approximately two decades of close attention to federal sentencing policy. It would be an oddity, to say the least, if a sentence imposed pursuant to this congressionally sanctioned and periodically superintended process was not presumptively reasonable." The court did not note that the Guidelines operated for most of those two decades in a fashion that violated the Sixth Amendment.

"[T]he incorporation into the Guidelines of the factors Congress identified in 18 USC 3553(a) as most salient in sentencing determinations." "The conclusion to be drawn," the court writes, "is that the advisory Guidelines are not something separate and apart from Congress's objectives in 3553(a). Rather, they embody many of those objectives." The court does not discuss the various sentencing factors in 3553(a) that the Guidelines not only fail to incorporate, but specifically exclude from consideration.

Finally, "such sentences are based on individualized factfinding and this factfinding takes place in a process that invites defendants to raise objections and requires courts to resolve them."

Because Johnson's sentence falls within a properly calculated Guideline range, it is presumptively reasonable. The court found neither of Johnson's arguments for not applying the Guidelines compelling. First, the court held that if "Johnson believes that 3D1.2's grouping provision is unreasonable or unfair as a general matter, the proper forum in which to raise this issue is Congress or the Sentencing Commission, not a federal court. Second, the court held that the district court provided an adequate examination of the 3553(a) factors.

Failure to Object to PSR Doesn't Waive 6th Amendment Sentencing Rights

US v. Milam: The Milam brothers, Jason and Lee, pleaded guilty to distribution of at least 51 Ecstasy tablets. Their PSRs assigned them considerably higher offense levels based on statements from other sources as well as Jason and Lee themselves.

At sentencing, Lee objected to the relevant conduct calculation and two-level gun enhancement. The district court partially sustained and overruled Lee's objection, produced a sentencing range of 51 to 63 months and imposed a sentence of 51 months.

Jason did not object to the PSR, except to the denial of credit for acceptance of responsibility. At sentencing, Jason's range was 87 to 108 months. He was sentenced to 87 months.

Lee and Jason appealed, arguing that their sentences were increased beyond the facts to which they pleaded guilty, in violation of (initially) Blakely and Booker. The Government conceded that Jason's sentence violated the Sixth Amendment and agreed to remand.

As to Jason, however, the Government argued that because Jason had not objected to the PSR calculations he had "admitted" those facts for Sixth Amendment purposes and his sentence did not violate the Sixth Amendment.

The Fourth Circuit vacated Jason's sentence. It rejected the Government's argument that Rule 32(i)(3)(A) and USSG 6A1.2(b) required a defendant to contest any enhancement in the PSR or risk waiving his Sixth Amendment rights. Noting that facts that increase a defendant's maximum sentence are now (essentially) elements of the offense, the Court held that the defendant's silence at sentencing could no more waive his Sixth Amendment rights then than silence at a guilty plea could constitute waiver of the right to trial. The Court also noted that Rule 32(i)(3)(A), USSG 6A1.2(b), and prior Circuit law (see US v. Terry, 916 F.2d 157, 162 [4th Cir. 1990]) violated prohibitions on burden shifting by forcing the defendant to disprove allegations in the PSR. Therefore, Jason's sentence was vacated and his case remanded for resentencing.
Lee's sentence was also vacated and remanded.

Congrats to CJA panel attorney Jason Parmer (Lee) and your humble narrator (Jason) of the SDWV office on the win!

No Intent Requirement for Aggravated ID Conviction

US v. Montejo: Montejo was convicted under 18 USC 1028A(a)(1) for aggravated identity theft. The conviction stems from Montejo's purchase of a fake Social Security card and fake Alien Registration Number when he illegally entered the country. He later used those documents to secure employment in Norfolk, Virginia. Unknown to Montejo, the number on the Social Security Card and the Alien Registry Number he purchased already belonged to other (separate) people. Having pleaded guilty to two predicate ID theft offenses, Montejo argued that he was not guilty of aggravated ID theft due to his lack of intent to use "a means of identification of another person." The district court disagreed and convicted Montejo (after a bench trial) and imposed the mandatory two-year sentence (consecutive to sentences on the other counts).

On appeal, the Fourth Circuit affirmed. Examining the language of the statute, the court held that the word "knowingly" did not modify "means of identification of another person." The court analogized this statute to 21 USC 861(a)(3), to which the court reached the same conclusion with similar language in US v. Cook, 76 F.3d 596 (4th Cir. 1996).

Consulting Maryland "Statement of Charges" Proper When Applying ACCA

US v. Simms: Simms pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the Government served notice that it would seek an enhanced sentence under the Armed Career Criminal Act (18 U.S.C. 924(e)), based on three prior convictions in Maryland. Two of those convictions were for battery and assault. Simms argued that those two convictions were not "violent felonies" as defined by the ACCA. The district court referred to the statement of charges contained in the charging papers and determined that they were violent felonies. The district court sentenced Simms to a 15-year term of imprisonment.

The Fourth Circuit affirmed. First, the court noted that assault and battery in Maryland are among those offenses that can be committed in so many different ways that their are neither violent felonies per se nor excluded from ACCA consideration. Second, the court held that the district court was correct in looking to the statement of charges to determine the underlying facts of the offenses. The court rejected Simms's argument that such reliance violated Sheppard v. US, 125 S.Ct. 1254 (2005), because the statement of charges was part of the charging document to which Simms pleaded guilty. Maryland law required such a statement as a factual basis for the plea. For that reason, the statement of charges in Maryland is different from the document as issue in Sheppard. Finally, the court held that it was clear that the facts set forth in the statement of charges supported the conclusion that Simms's battery and assault convictions were violent felonies.

Failure to Seek Funds for Expert Leads to Actual Conflict of Interest; Requires Vacation of Sentence

US v. Stitt: Stitt was convicted after a jury trial of three counts of murder related to an ongoing criminal enterprise, as well as related drug and firearm offenses. Following a penalty phase trial, the jury recommended that Stitt be sentenced to death, which he was. He directly appealed his sentence without success.

Stitt filed a petition under 28 USC 2255 seeking a new trial on both guilt and sentencing. The district court denied Stitt relief as to the guilt phase of his trial, but vacated Stitt's sentence. The district court found that Stitt's retained attorney at trial had an actual conflict of interest based on his failure to request the court to appoint an expert to assess Stitt's propensity for future dangerousness. Such a request would have required an examination by the district court of the fee arrangement between Stitt and his attorney, which the attorney sought to avoid (the Government claimed that his fees came from drug money). Applying the standard of Cuyler v. Sullivan, 446 U.S. 335 (1980), that prejudice is presumed when defense counsel has an actual conflict of interest in representing his client, the district court concluded that Stitt was denied his right to effective assistance of counsel.

The Government appealed, conceding that there was an actual conflict of interest between Stitt and his counsel, but that the Sullivan presumption of prejudice applied only to conflicts caused by simultaneous representation of multiple defendants. The Fourth Circuit rejected the Government's argument and affirmed the district court.

UPDATE: Opinion withdrawn and appeal dismissed for lack of jurisdiction.

Downward Variance to Probation Not Justified by District Court Findings

US v. Hampton: Hampton pleaded guilty to being a felon in possession of a firearm, a rifle. His uncontested advisory Guideline sentencing range was 57 to 71 months. At sentencing, Hampton argued for a non-custodial sentence:

Defense counsel explained that Hampton did not know that he could not own a rifle (he believed the law only precluded felons from owning handguns), that he cooperated with the police, that he did not use the gun in any crime, that he did not steal the gun but rather bought it lawfully, that he had no criminal or malicious intent in possessing or discharging the firearm, that he had straightened out his life by joining a church and obtaining full-time employment, and that he was 'a single parent of two minor children, wh[o] he is raising and supporting with the help and assistance of his mother.' For these reasons, Hampton’s counsel argued that 'there would be no purpose served, either for . . . the government or Mr. Hampton to incarcerate him for
any period of time.'

The district court agreed and sentenced Hampton to three years probation. The Government appealed and the Fourth Circuit vacated. The Court held that the record did not demonstrate that the district court considered all of the 3553(a) factors, but rather focused on Hampton's status as a single father and provider for his children. Therefore, the sentence was vacated and remanded for further proceedings.

Importantly, Judge Motz concurred "to emphasize that a variance of this magnitude is not per se unreasonable."

Leon Saves Search Pursuant to Questionable No-Knock Warrant

US v. Singleton: In 2001, authorities learned that drugs were being sold from an apartment in which Singleton lived. Police used a CI to make two controlled purchases at the apartment, which they used as the basis for obtaining a warrant to search the apartment. The officers applied for, and received, a no-knock warrant under Maryland law, allowing them to enter without first knocking and announcing their presence.

The no-knock warrant was based on Singleton's criminal history, which included a 1987 conviction for second-degree murder. The warrant was obtained on September 26, 2001. On October 3, the CI attempted to make a third controlled buy to make sure Singleton was still living there. On October 9, police executed the warrant, breaking down the front door.

In the house they found Singleton (and others), along with large amounts of crack cocaine and cash and some firearms. Singleton was charged with multiple drug and firearm counts. He moved to have the evidence seized in the house suppressed on the grounds that there were no exigent circumstances to justify a no-knock entry on October 9. The district court disagreed and Singleton was convicted on all counts after a jury trial.

On appeal, the Fourth Circuit affirmed. While doubting that the facts provided to the state magistrate justified the no-knock warrant and subsequent entry, the court held that the "good faith" exception from US v. Leon, 468 U.S. 897 (1984), applied to save the search. Specifically, the court held that the officers had "done all they could do" by getting a no-knock warrant from a magistrate and that penalizing the officers for the magistrates error did not justify suppression. The Court specifically declined to consider whether the delay in execution of a no-knock warrant could lead to the dissipation of the necessity for a no-knock entry.

Singleton's sentence was vacated and remanded in light of Booker and Hughes.

Court Applies Promise/Cotton Analysis to Sixth Amendment Booker Error; Distinguishes Hughes

US v. Smith: Smith, Reep, and Moore were all convicted of being part of a conspiracy to distribute drugs, as well as other offenses. In laundry list fashion, the Fourth Circuit affirmed their convictions, covering the following issues (none of Smith's arguments were directly addressed, although the Court admitted in a footnote that some claims "are so clearly without merit that they do not warrant discussion in this opinion"):

Moore

• Indictment was not unconstitutionally vague where is charged that one count of possession with intent to distribute occurred "in or about Winter, 2000."
• The district court properly admitted testimony of a witness regarding statements made by other unindicted coconspirators, concluding that those were members of the conspiracy and the statements were made in furtherance of that conspiracy.
• Admission of the testimony of Moore's son that he delivered drugs in DC for his father at six years of age did not violate Rule 404(b) and was therefore not plain error.
• The district court improperly excluded a defense witness from testifying after she violated a sequestration order by sitting in the courtroom for two days of the trial. The error was harmless, however.
• Remark made by prosecutor in closing argument regarding guilt of codefendants and witnesses (["t"he only difference is some who sat on that witness stand admitted it and those sitting at these two tables have not") was not plain error.

Reep

• Reep's conviction does not violate double jeopardy, where prior trial was aborted after jury selection due to problem with competency of Government witness where Reep asked the court for a mistrial.
• The district court did not improperly restrict his cross-examination of Government witnesses.
• The district court's sua sponte cutting off of Reep's counsel during cross examination and questioning of some witnesses from the bench did not violate Reep's right to due process.
• The district court did not abuse its discretion by forcing Reep's counsel to decide on the spot whether to call more witnesses or rest his case.
• The district court did not abuse its discretion by cutting Reep's counsel off during closing argument when he began to define reasonable doubt for the fourth time.

As to Moore's sentence, the Court began by noting that his sentence of life in prison is beyond the top of the applicable Guideline range supported by the facts supporting his conviction, in violation of Booker. However, the Court goes on to apply the holdings of Johnson v. US, 520 U.S. 461 (1997), and US v. Promise, 255 F.3d 150 (4th Cir. 2001)(en banc), that it would not notice the error where the evidence regarding the determinations at issue was "overwhelming" and "essentially uncontroverted."

For Smith's sentence, the Court deemed that there was no Sixth Amendment error because he was sentenced as a career offender and his sentence was therefore based on prior criminal history. As to Booker error, the Court held that Smith abandoned that argument by making it in this cursory fashion: "Smith's sentence exceeded the maximum sentence then authorized by the jury alone, in violation of Booker." That was "Smith's entire argument" and not sufficient to raise the issue under Rule 28(a)(9)(A) of the Rules of Appellate Procedure.

Reep was also sentenced as a career offender. The district court upheld his sentence.

District Judge Dever, sitting by designation, dissented on the issue of Moore's sentence. Judge Dever correctly points out that the Court's holding is contrary to United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). He notes that after Hughes:

every panel publishing a Fourth Circuit opinion applying Hughes to a Booker Sixth Amendment violation raised for the first time on direct appeal has exercised its discretion at the fourth step of the plain-error analysis to notice the error, vacate the sentence, and remand for resentencing.

State, Federal Charges Arising from Same Act Are Not "Same Offense" Under Sixth Amendment

US v. Alvarado: Alvarado came to the attention of authorities during surveillance by Virginia police of a potential drug conspiracy. Assisting the Virginia police was an ATF agent. After the state officers arrested Alvarado and another man, the ATF agent questioned Alvarado because the agent spoke Spanish and Alvarado spoke Spanish but not English. Based on the statements from Alvarado and the other man, they were charged in Virginia with possession with intent to deliver cocaine and conspiracy to deliver cocaine. Alvarado asked for and was appointed counsel to represent him in state court. At a preliminary hearing two months later, Virginia dropped the charges against Alvarado.

Once the state charges were dropped, Alvarado was immediately arrested by the ATF agent on a warrant obtained the day before based on a criminal complaint. Alvarado (who, we are told was "glad to see" the ATF agent) gave an incriminating statement after being given Miranda warnings by the ATF agent. Alvarado was eventually indicted for distributing cocaine and conspiring to distribute cocaine. At trial, the ATF agent testified about the incriminating statements Alvarado made following his federal arrest. Alvarado moved to have the statements suppressed, arguing that the federal charges were the "same offense" for Sixth Amendment purposes and the ATF agent should not have questioned him without the attorney appointed in state court present. The district court rejected that argument and the jury convicted Alvarado on both counts.

The Fourth Circuit upheld Alvarado's conviction on several grounds. First, the Court held that the Sixth Amendment right to counsel is case specific and that state and federal prosecutions are, by definition, separate cases, under the separate sovereignty doctrine. The fact that a federal agent was involved in the state arrest and charges is irrelevant, as "such collaborative efforts can hardly be dispositive of government misconduct." Second, the Court held that even if such a categorical rule was not appropriate, an examination of the state and federal charges showed them to be different offenses (the dates of the two charged conspiracies, in particular, were different). Finally, the Court held that Alvarado's Sixth Amendment right to counsel in federal court did not kick in with the filing of a criminal complaint because "[t]he filing of a federal criminal complaint does not commence a formal prosecution" and that the use of "such a complaint is to establish probable cause."

Alvarado's sentence was remanded for resentencing in light of Booker.

Miranda Does Not Apply at Sentencing

US v. Nichols: Nichols was charged with bank robbery, armed bank robbery, and possession of a firearm during a crime of violence after he robbed a bank. During the robbery, he threatened to shoot the teller, but nobody saw a gun. Nichols and his father made arrangements to turn himself in to the police shortly after the robbery, at which time Nichols said he wanted an attorney. He reiterated that request when arrested. Nevertheless, the police secured a Miranda waiver and a statement from Nichols, in which he admitted possessing a gun during the robbery. Nichols motion to suppress the statement was granted, leading the Government to drop the armed robbery and firearm counts and Nichols to plead guilty only to bank robbery. At sentencing, the district court refused to consider Nichols's statement in calculating the Guidelines, resulting in a 46-month sentence.

The Government appealed, arguing that Miranda and its exclusionary rule do not apply in sentencing proceedings. The Fourth Circuit agreed and vacated the sentence. After reviewing the goals of Miranda and the purposes of suppression (deterrence of police misconduct), the court concluded that that purpose was not advanced by suppression of the statement at sentencing. Suppression also would run headlong into the traditional prerogative of the district court to consider any reliable evidence at sentencing. A statement might be suppressed at sentencing, the court suggested, if there was evidence that the Government violated Miranda in order to increase the defendant's sentence or if the statement was actually involuntarily given.

District Courts Cannot Categorically Reject 100:1 Crack/Powder Ratio

US v. Eura: Eura was convicted by a jury of possession with intent to distribute more than five grams of crack and possession of a firearm during a drug trafficking offense. The calculations in the PSR produced an advisory Guideline range of 78 to 97 months on the crack count. At sentencing, the district court concluded that this "is not the kind of case that the guideline does not provide -- the crack guideline does not provide an appropriate, fair, and just punishment, and so the Court will not impose a sentence within the guidelines in this case." The court then imposed the mandatory minimum sentence of 60 months on the crack count, consecutively with the mandatory 60-month sentence on the gun count. The Government appealed the sentence.*

The court vacated Eura's sentence, due to what it saw as the district court's wholesale rejection of the 100-to-1 crack/powder ratio and the advisory Guideline range resulting from it. Specifically, the court noted that:

we are of the opinion that the district court did not adequately and properly consider 18 USC 3553(a)(6) in sentencing Eura. Had the court done so, it most assuredly would have concluded that it could not rely on the Sentencing Commission's recommendations to narrow the 100:1 ratio in imposing sentence.

Allowing district courts to substitute their own ratios for the Guidelines's would result in unwarranted sentencing disparities, the court concluded (citing to the number of district courts that had applied various ratios post-Booker). The court did not deal with the argument that the 100:1 ratio itself causes unwarranted disparities and may, therefore, violate 3553(a)(6), as well. The court did not foreclose the possibility of variances from the Guideline ranges produced by the 100:1 ratio:

We certainly envision instances in which some of the 3553(a) factors will warrant a variance from the advisory sentencing range in a crack cocaine case. However, a sentencing court must identify the individual aspects of the defendant's case that fit within the factors listed in 18 USC 3553(a) and, in reliance on those findings, impose a non-Guidelines sentence that is reasonable.

(emphasis in original). The Sentencing Commission's "recommendations," however, "cannot be used as a basis to vary from the advisory sentencing range." Because the court in this case "did not mention any facts concerning Eura as an individual that would have warranted a sentence outside the sentencing range," his sentence was unreasonable. As with Moreland, the court vacates the sentence and remands "For resentence at the low end of the sentencing range."

Judge Michael concurred in the judgment and opinion, but wrote separately to explain the value of the Sentencing Commission's findings regarding the 100:1 ratio. He specifically endorses using those findings in support of arguments that specific individuals in unique cases should receive below the Guidelines sentences.

* Eura appealed the denial of a suppression motion prior to trial. Officers search his home pursuant to a warrant, finding several guns but no drugs. An "unspecified woman at the residence" told the officers that two cars parked out front belong to Eura. A dog sniff uncovered crack and ecstasy in the center console of one of the cars. Eura argued that the officers should not have been allowed to do the dog sniff after coming up empty on the search of the house. The Fourth Circuit rejected that argument, without (somewhat staggeringly) ever mentioning Caballes.

Doug Berman's thoughts on Eura can be found here.

20-year Variance from Career Offender Guideline Not Reasonable

US v. Moreland: Moreland was convicted by a jury of two counts of possession of cocaine base with intent to distribute.* The PSR correctly showed that Moreland was a career offender and subject to an advisory Guideline range of 360 months to life in prison. The Government also filed a section 851 information, triggering a 10-year mandatory minimum. Nonetheless, the district court varied from that range and imposed a sentence of 120 months -- 20 years less than the advisory Guideline minimum and equal to the statutory mandatory minimum.

Moreland's two prior convictions (which triggered the career offender sentence) were (1) for delivering a marijuana cigarette to a prison inmate and (2) possessing with intent to distribute 6.92 grams of crack. Examining the "nature and circumstances of the offense and . . . the defendant," the district court concluded that Moreland's offenses of conviction involved a relatively small amount of crack (7.85g), did not involve violence, and did not involve a firearm. Looking at the prior convictions, the district court came to the same conclusion. The district court concluded that Moreland "has the ability and potential to become a productive member of society." Turning to the 3553(a)(2) factors, the district court concluded that the career offender classification swept too broadly and that Moreland's offenses "hardly constitute the type and pattern of offenses that would indicate that Mr. Moreland has made a career out of drug trafficking."

The Fourth Circuit reversed, employing a two-step analysis: (1) was it reasonable for the district court to vary from the advisory Guideline range? and (2) if so, was the amount of the variance reasonable?

To the first question, the court answered "yes," a variance in this case was reasonable (the Government apparently admitted as much at oral argument).

To the second question, however, the court answered "no." The court noted that "to the extent that the sentence imposed by the district court rests on a rejection of congressional policy with respect to repeat drug offenders, it is subject to reversal on that basis alone." However, even assuming that no "outright rejection occurred," the variance was still too large to be reasonable. While the court admitted that Moreland appears to be a small-time dealer, he is "nonetheless, a repeat drug offender who appears to have come to West Virginia for the sole purpose of selling cocaine base." The court also discounted Moreland's "desultory pursuit of his education and his spotty employment history."

The court concludes,

[i]f Moreland's circumstances are so compelling as to warrant a two-thirds reduction from the bottom of the advisory guideline range, it is difficult to imagine any meaningful limit on the discretion of the district court.

The court vacated Moreland's sentence and remanded the case for the imposition sentence of "no less than 20 years imprisonment."

* Moreland also made three challenges to his conviction - (1) that police lacked consent to enter the home in which he was arrested, (2) that the district court erred in admitted the drugs bought and recovered from Moreland because of chain of custody issues, and (3) that the district court should have struck the testimony of the Government's expert witness as to drug type and weight - all of which were quickly rejected by the court.

Guideline Sentence = Presumptively Reasonable

US v. Green: Finally, nearly a year after Booker, the Fourth Circuit decides to discuss exactly what "reasonableness" means in the context of sentencing appeals. Sort of.

The bottom line is this:

• To sentence a defendant, the district court must: (1) properly calculate the Guideline sentencing range; (2) determine whether a sentence "within that range and within statutory limits serves the factors set forth in [18 USC] 3553(a) and, if not, select a sentence that does serve those factors; (3) implement the mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a non-Guideline sentence is appropriate.
• The Fourth Circuit joins several others (see Doug Berman's discussion here) in holding that a sentence within the advisory Guideline range is "presumptively reasonable." That doesn't mean that a non-Guideline sentence is therefore "ipso facto unreasonable."
• A sentence will be unreasonable if it is (a) within the advisory Guideline range but there was an error in applying or construing the Guidelines, or (b) if the sentence is imposed outside of the Guideline range "and the district court provides an inadequate statement of reasons or relies on improper factors in departing from the Guidelines' recommendation."
• Finally, when reviewing an outside the Guidelines sentence to determine "whether a sentence . . . serves the purpose of sentence established by Congress in [18 USC 3553(a), 28 USC 991 (a), and 28 USC 994], we defer to the district court's sentencing judgments, correcting only for an abuse of discretion.
  

Having said all that, the court is able to deal with the sentence in this case simply by concluding that the Guidelines were improperly applied. Green pleaded guilty to conspiracy to distribute more than 50 grams of crack. The PSR showed, and the parties agreed, that Green was a Career Offender. Nevertheless, the district court concluded that while Green "technically fit the definition of Career Offender, the label "did not fit Mr. Green." On the request of defense counsel, the district court calculated the Guideline range without the Career Offender enhancement, then reduced the offense level for acceptance of responsibility and substantial assistance. Green received 87 months in prison (down from a Career Offender range of 262-327 months).

The Fourth Circuit vacated that sentence, finding it unreasonable because it was based on an improper application of the Guidelines. Specifically, the court found that the district court erred in several ways to conclude that the Career Offender label did not fit Green. The court did not reach the issue of whether an 87-month sentence was reasonable under the 3553(a) factors or whether a sentence within the Career Offender-fueled Guideline range would have been reasonable.

Doug Bermans's thoughts on Green can be read here.

All Quiet on the Richmond Front

No fear, loyal readers, the Fourth Circuit Blog still lives. Alas, there is little to report from Richmond, as the court has not handed down a published criminal case since January 17. Rest assured that once they do, you'll read about it here first!

2J1.7 Enhancement in Failure to Appear Cases OK'd; Does Not Violate Double Jeopardy

US v. Fitzgerald: Fitzgerald pleaded guilty to mail fraud and wire fraud and was released on bail pending sentencing. He fled prior to sentencing and was arrested and charged with failure to appear under 18 USC 3146. Fitzgerald pleaded guilty to that offense and proceeded to sentencing. The PSR recommended that Fitzgerald's offense level be increased three levels under USSG 2J1.7 and 18 USC 3147 for committing another offense while on release. Fitzgerald objected, arguing that the enhancement amounted to double punishment and violated the rule of lenity. The district court disagreed, applied the enhancement, and imposed a sentence of 27 months, to be served consecutively to the sentence imposed for the fraud charges.

The Fourth Circuit affirmed, 2-1. Noting that this was a question of first impression in the circuit, the court looked to the Sixth Circuit's decision in US v. Benson, 134 F.3d 787 (1998), for guidance. The court followed Benson's logic and concluded that the statutory language at issue was not ambiguous and therefore the rule of lenity was not applicable. The court also rejected Fitzgerald's Double Jeopardy argument, holding that the Supreme Court has never applied Double Jeopardy guarantees to sentencing proceedings, relying on Monge v. California, 524 U.S. 721 (1998).

Judge King dissented, arguing that the majority's Double Jeopardy argument is contrary to the Supreme Court's decision in Simpson v. US, 435 U.S. 6 (1978), and that the statutory language at issue is ambiguous and requires application of the rule of lenity. As Judge King put it, "[t]he end result in this scenario simply makes no sense."

Court Rejects Numerous Challenges to Pipe Bomb Convictions

US v. Uzenski: Uzenski was convicted by a jury of two counts of manufacturing an unregistered firearm and two counts of possessing an unregistered firearm. The "firearms" at issue were pipe bombs. Uzenski was a local police officer in North Carolina. On March 25, 2002, Uzenski reported to a fellow officer that he was in need of urgent assistance on a local highway. When the officer arrived, he saw Uzenski straddling over what appeared to be a pipe bomb. Indeed, it was a pipe bomb and was subsequently defused by the state bomb squad. The next day, after Uzenski and other officers returned to the site, a second pipe bomb was found and eventually defused. Investigation led to a videotape of Uzenski at a local hardware store purchasing several of the items that made up the bombs. Authorities also obtained a warrant to search Uzenski's home and uncovered various items that could be linked to the building of pipe bombs.

Uzenski appealed his conviction on several grounds, all of which the Fourth Circuit rejected.

• First, he argued that the evidence was insufficient to prove that the objects in question were "destructive devices" because they lacked the functional parts which made them capable of exploding. The court rejected that argument, holding that the testimony of the Government's expert witness, who testified about how the bombs could have exploded while they were taken apart due to sparks that would be generated, was sufficient to meet the Government's burden on that element.
• Second, Uzenski argued that statements he made to investigators prior to being given Miranda warnings should have been suppressed. The court agreed with the district court that Uzenski was not in custody at the time of those statements, and therefore was not entitled to Miranda warnings.
• Third, Uzenski argued that the evidence seized from his home should have been suppressed because the officers executing the search warrant seized items that were beyond the scope of the warrant. The court held that blanket suppression of everything recovered from the home was inappropriate.
• Fourth, Uzenski argued that the district court should have excluded the testimony of the Government's expert witness as to the pipe bombs because the Government never provided him with the expert's notes. The court held that Uzenski's counsel failed to properly request the notes and therefore the testimony should not have been excluded.
• Finally, Uzenski argued that the district court erred by allowing the Government to elicit testimony about his prior statements regarding pipe bombs and a prior bad act of making a false report.

Uzenski's sentence was vacated and remanded under Booker / Hughes.

Disparity Between Federal Defendants, Not Federal and State Defendants, Is Target of 3553(a)(6)

US v. Clark: Clark was convicted of conspiracy to distribute crack in the Eastern District of Virginia. Her advisory Guideline range was 46 to 57 months. At sentencing, the district court asked the parties to brief the issue of what sentence Clark would be facing in Virginia state court for the same offense. The Government argued for a range of 36 to 49 months. Clark agreed, but noted that all but 6 to 12 months of that time would likely be suspended. After hearing unsworn testimony from the probation officer as to her conversations with a state PO about the potential Virginia sentence, the district court sentenced Clark to 8 months in prison. The Government appealed and the Fourth Circuit reversed, in three separate opinions.

Judge Luttig wrote the court's opinion. He began by noting that it was difficult to tell from the district court's statements at sentencing whether it (1) considered the need to avoid unwarranted sentencing disparities at all, (2) whether it considered that factor but the proper comparison was with state sentences, rather than other federal sentences, or (3) whether it considered the need to avoid disparity among federal sentences but felt that need was trumpted by a need to avoid disparity between federal and state sentences. Regardless, Luttig says, the district court erred in applying 18 USC 3553(a)(6). First, 3553(a)(6) clearly requires the consideration of sentencing disparity. Second, the disparity at issue is among federal sentences: "The sole concern of section 3553(a)(6) is with sentencing disparities among federal defendants." (emphasis in original). For example, tying federal sentences to state equivalents would end up creating disparity between similarly situated federal defendants based on the geography of their conviction. Creation of such disparity is unreasonable and, thus, so is Clark's sentence. Luttig did admit that there will be some "unusual cases" where state sentencing factors may influence a sentence that is reasonable under 3553(a) but that this case isn't one of them.

Judge Motz concurred in the judgment and discussed what those "unusual cases" might be. Specifically, Motz would limit them to cases of either assimilative jurisdiction, as in 18 USC 13(a), or where the federal offense is defined with some relation to state law, as in 18 USC 1960(b)(1)(A). That is because Congress itself has decided to have the courts look to state law in those cases.

Judge King also concurred in the judgment and agreed "with what Judge Motz has written." However, King leaves open the possibility that the district court could impose the same sentence on Clark after a thorough analysis of all the 3553(a) factors.

Doug Berman over at Sentencing Law & Policy has these thoughts on Clark.

Time of Day Doesn't Matter When Executing Drug-Related Search Warrant

US v. Rizzi: Rizzi was an ex-con who came under investigation of Baltimore police for dealing drugs. When local officers relayed their information about Rizzi to federal authorities, the feds informed them that Rizzi could no longer posses firearms. Baltimore PD officers then obtained a warrant from a state judge to search Rizzi's home for "drugs, firearms, money, records, and other drug-related paraphernalia." The warrant commanded officers to execute it "forthwith." It was obtained on July 7, 2004. On July 9, 2004, at 4:30 in the morning, 24 officers executed the warrant at Rizzi's home. They knocked and announced their presence, waited 15-20 seconds, then broke into the house. Rizzi met them and admitted possessing firearms that were recovered from the basement. He was charged with being a felon in possession of a firearm.

Rizzi filed a motion to suppress the guns, on the grounds that the warrant did not specify that a night-time search could be conducted. Specifically, Rizzi argued that Rule 41(e)(2)(B) controls and suppression was required because the police had not shown, and the issuing judge did not find, good cause for execution of a night-time warrant. The Government contended that 18 USC 879 trumpted Rule 41 because the search involved drugs and that the warrant was sufficient to authorize the search. The district court rejected the Government's argument, concluding that Rule 41 and section 879 "dovetailed" to make the search illegal and ordered the evidence suppressed. The Government appealed.

The Fourth Circuit reversed the district court, adopting the Government's argument as to the relationship between Rule 41 and 879, leaning heaving on Gooding v. United States, 416 U.S. 430 (1974), to do so. The court concluded that because Rule 41 deals with search warrants in general, while section 879 deals with warrants specifically in drug cases, that the more specific statutory rule controlled. Section 879, according to the Fourth Circuit, requires no particular finding by the judge issuing the warrant that a night-time search is warranted. The court concluded:

At bottom, we hold that when a search warrant involves violations of drug crimes, the warrant can be served day or night so long as the warrant itself is supported by probable cause. And to the extent that section 879 might be found to conflict with the general requirement of showing good cause for nighttime searches contained in Rule 41(e), we hold that section 879 exclusively.

The court also rejected Rizzi's argument that, as interpreted, section 879 violated the Fourth Amendment.

Forced Medication for Sentencing is Plain Error, but Doesn't Require Resentencing

US v. Baldovinos: Baldovinos was convicted by a jury of four drug and firearm counts. Prior to sentencing, he filed motion seeking a competency evaluation at FCI Butner to determine his competency to be sentenced. The district court granted the motion and sent Baldovinos to Butner. Over the course of the next year, physicians at Butner diagnosed Baldovinos as suffering from catatonia and schizophrenia and sought court permission to forcibly medicate him. The district court agreed. The medication never completely "cured" Baldovinos, but physicians began to suspect he was malingering and was thus actually competent to be sentenced. The district court held a sentencing hearing and imposed a 120-month sentence, the statutory minimum given the offenses of which Baldovinos was convicted. Baldovinos failed to object to the imposition of sentence.

Baldovinos appealed, arguing that the district court erred by forcibly medicating him and seeking resentencing.* The Fourth Circuit first concluded that the proper analysis of the issue was under Sell v. US, 539 U.S. 166 (2003), which set forth the ability of courts to forcibly medicate a defendant to render him competent for trial, rather than Washington v. Harper, 494 U.S. 210 (1990), which allowed for the forcible medication of defendants for their own safety. Given that conclusion, the Government admitted error which was plain. However, the Fourth Circuit declined to notice the error, holding that because Baldovinos received the lightest sentence possible he suffered no prejudice and his sentence did not "seriously affect the fairness, integrity or public reputation of judicial proceedings."

*Baldovinos also argued ineffective assistance of counsel, but the court quickly rejected that issue as being "unreviewable at this stage."

Blakely Objection Preserves Statutory Booker Claim

US v. Rodriguez: Rodriguez pleaded guilty to illegal reentry after having been deported because of an aggravated felony under 8 USC 1326(a) and (b)(2). The PSR recommended that his offense level be increased 16 levels because the prior felony was a crime of violence. Rodriguez objected under Blakely that only an 8-level enhancement was applicable based on the plea. The district court disagreed, applied the 16-level enhancement and sentenced Rodriguez to the bottom of the resulting Guideline range, 46 months.

The Fourth Circuit reversed, holding that Rodriguez adequately preserved his challenge to his sentence under the mandatory Guidelines by objecting under Blakely (he was sentenced pre-Booker). The court further concluded that the Government could not prove that the imposed sentence was harmless. This brings the Fourth Circuit into line with all the other circuits that have considered whether an objection under Blakely preserves a Booker statutory error claim for appellate review.

Congrats to Geremy Kamens and crew from the ED Va. on the win!