In-Store Movement During Roberry Supports Abduction Enhancement

US v. Osborne: Although the court sets out the facts in great detail, the short version is that Osborne robbed a Walgreen's pharmacy in Virginia. He was driven there, and presumably away, by a co-defendant, McCrae, which whom he discussed the robbery beforehand. During the robbery, Osborne brandished a knife as a means to get the pharmacist and technician to provide him with pills and to accompany him to the front door as he escaped. Both Osborne and McCrae were charged with conspiracy to rob a pharmacy, robbery of a pharmacy, and possession of OxyContin with intent to distribute. Osborne pleaded guilty to the robbery and possession charge, but went to trial on the conspiracy charge and was convicted (as was McCrae on all three counts). He was sentenced to 151 months, the top of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed both his conviction and sentence. Regarding the conviction for conspiracy, Osborne argued that while the evidence was sufficient to support his role in the robbery and possession, it wasn't sufficient to prove that he conspired with McCrae. The Fourth Circuit disagreed, noting evidence of their cooperation before and after the robbery (some of it provided by Osborne's son, who overheard the preparations). As to sentencing, first Osborne argued that his Guideline should not have been enhanced for abducting the pharmacist and technician because he did not take them out of the Walgreens - in other words, to "another location." The court rejected that argument (partly relying on previous unpublished Fourth Circuit authority) and concluded that moving the pair from one part of the store to another met the definition. Second, the court rejected Osborne's argument that a prior conviction for shoplifting should not have been included in his criminal history score.

Office Experience Can Aid in Production of Reasonable Suspicion

US v. McCoy: McCoy & his girlfriend pulled into the parking lot of a grocery store in Loudon County, Virginia, that was under the surveillance of Loconti, an experienced narcotics officer. Loconti knew that a majority of drug deals in Loudon County took place in those kinds of parking lots. A tow truck pulled into the lot near McCoy. The driver of the truck and McCoy exchanged words and eventually drove down the street about 1/4 mile to another grocery store parking lot. Loconti followed. In the new lot, McCoy got out of his car, got in the truck for a few minutes, got out, and returned to his car. Loconti was convinced that a drug deal had just taken place. As McCoy walked back to his car, Loconti approached him and signaled the truck to stop. Instead, it sped away.

Loconti approached McCoy and, eventually, placed him in handcuffs. A pat-down search of McCoy produced nothing, but McCoy's girlfriend helpfully responded to Loconti's query admitting that McCoy had participated in a drug deal. A search of the car produced marijuana and cash, which McCoy admitted were his and that he had crack cocaine concealed in his hindquarters. That evidence was supplemented by a search of McCoy's home several months later. McCoy filed a motion to suppress that evidence after being charged with drug and firearms charges. The district court granted the motion, holding that when Loconti seized McCoy, he lacked reasonable suspicion to believe that criminal conduct was afoot.

The Government appalled and the Fourth Circuit reversed, 2-1. The court held that the district court improperly focused on what the officer didn't know about what was going on, rather than the totality of the information he did have. Particularly important to the court was Loconti's previous experience with drug deals occurring in grocery story parking lots. The myriad of potentially innocent behaviors that Loconti observed were sufficient, with his experience, to support reasonable suspicion. However, the court was quick to note that "[t]his is not to say that a wealth of experience will overcome a complete absence of articulable facts." District Judge Wilson concurred, emphasizing the importance of the fact that the truck sped away when Loconti went to intercept McCoy. Judge Gregory dissented, arguing that the majority's "holding renders law enforcement - not the courts - the sole arbiter of what qualifies as reasonable suspicion."

Exigent Circumstances Don't Save Warrantless Search of Home

US v. Mowatt: Mowatt was at his apartment when police came and knocked on the door. The police were sent there after receiving complaints about loud music and the odor of marijuana. After they knocked, the officers heard someone moving around inside. The music was turned down and they could hear the sound of an aerosol being sprayed. Mowatt talked the officers, but refused to open the door. After being reported ordered to do so, Mowatt cracked the door, but refused to let the officers inside and asked if they had a warrant. Officers were concerned that Mowatt might have a weapon in his hand, as it was shielded from view. They then forced their way into the apartment and wrestled Mowatt to the floor. He wasn't holding anything in his hand. A quick check of the apartment uncovered a gun. By that time, Mowatt struggled with the officer(s) restraining him, which ended when he was thrown against the refrigerator, which conveniently opened. Inside, officers saw several hundred pink pills. They were later seized (pursuant to a search warrant) and determined to be ecstasy. The search also uncovered more guns, body armor, and $20,000 in cash.

After being indicted for drug and firearms offenses, Mowatt moved to suppress the evidence against him, arguing that the officers engaged in an unlawful warrantless search when they barged into his home. The district court denied the motion, holding that the officers had probable cause to arrest Mowatt for marijuana possession and that a warrant wasn't required because they arrived at the apartment to "resolve a noise complaint" rather than search for drugs. Mowatt went to trial, was convicted on all counts, and was sentenced to 197 months in prison.

On appeal, the Fourth Circuit unanimously reversed. First, the court rejected the Government's argument that forcing Mowatt to open his door and thus being able to see inside was not a "search" within the meaning of the Fourth Amendment. Second, the court held that even if the officers had probable cause when the door was opened, they lacked a warrant and there were no exigent circumstances to justify proceeding without one. Third, the court held that the search warrant eventually obtained (after the forced entry, struggle with Mowatt, etc.) was tainted by the illegal entry. Mowatt's convictions were reversed and his case returned to the district court for further proceedings.

Findings Needed to Support 3A1.4 Terrorism Enhancement

US v. Chandia: Chandia was charged with conspiracy and a substantive count of providing material support to terrorists and conspiracy and substantive count of providing material support to a foreign terrorist organization. The charges arose from Chandia's ties to a group called Lashkar-e-Taiba (LET), with whom he attended a training camp in Pakistan. He also provided assistance to an LET member who came to the United States to secure equipment and support for LET. After a jury trial, Chandia was convicted on all counts except the substantive count of providing material support to terrorists. At sentencing, the district court applied the terrorism enhancement under USSG 3A1.4, jumping Chandia's advisory Guideline range from 63-78 months to 360 months to life. The district court imposed the statutory maximum sentence of 180 months in prison.

On appeal, Chandia challenged both his convictions and sentence. The Fourth Circuit rejected the arguments Chandia raised with regards to his conviction. First, the court concluded the affidavits submitted to obtain warrants to search Chandia's home and car were sufficient to support probable cause and that Chandia was not entitled to a Franks hearing on the issue of inaccuracies/omissions from those affidavits (using a plain error standard because Chandia did not specifically request a Franks hearing in the district court). Second, the court rejected several constitutional arguments against the statutes under which Chandia was convicted, relying on the prior resolution of those issues in US v. Hammoud, 381 F.3d 316 (4th Cir. 2004). Third, the court rejected Chandia's argument that the counts on which he was convicted were duplicitous and violated due process. Finally, the court rejected Chandia's argument that the district court erred by allowing the Government to play for the jury excepts of a CD-ROM video glorifying the 9-11 attacks that was found in Chandia's home. Even if it was error (which the court doesn't say), the error would be harmless given the limited roll of the excerpts at trial.

While sustaining Chandia's convictions, the court did vacate his 180-month sentence. The court concluded that, although the district court utilized the Guideline range provided by the 3A1.4 terrorism enhancement, it failed to make specific findings supporting the enhancement. The court rejected the idea that the mere fact that Chandia was convicted of one material support count justified the enhancement. In a footnote, the court noted that it was not resolving the issue of the proper burden of proof for 3A1.4 enhancements (preponderance of the evidence v. clear and convincing evidence), leaving the issue open for a case "where we are presented to relevant findings."

Notice of Variance Must Prompt Parties to Make Arguments

US v. Fancher: Fancher was investigated by police after reports that he had sexually molested a nine-year-old girl. During the investigation, authorities uncovered numerous images of child pornography in Fancher's home. Fancher pleaded guilty to one count of possession of child porn. Due to a previous conviction for sexual abuse of a minor, Fancher's statutory sentence was between 15 and 40 years in prison.

Prior to sentencing, the probation officer calculated Fancher's Guideline range to be 180-210 months. The PSR mentioned "mitigating" factors and also that "[g]iven the defendant's criminal history and the ages [of] and relationship to his victims[,] the Court may which to consider a sentence pursuant to [3553(a)] to meet the objectives of sentencing." After the PSR was completed, the probation officer was contacted by the mother of a 16-year-old girl to whom Fancher had been writing letters while incarcerated proclaiming his love for her and requesting (among other things) that she send him pictures. At sentencing, Fancher argued for a 180-month sentence, while the Government sought a 210-month sentence. Concluding that Fancher was beyond rehabilitation, the district court imposed the maximum sentence of 480 months in prison.

On appeal, the Fourth Circuit vacated Fancher's sentence. Applying US v. Spring, 305 F.3d 276 (4th Cir. 2002), the court held that while the language in the PSR was sufficient to meet the notice requirements of Rule 32(h), it was not adequate to prompt the parties to present arguments about the propriety of a variance. In Spring's words, the PSR "informed counsel that it needed to prepare arguments on this issue, but not that they needed to present them." Applying harmless error review (Fancher objected to the lack of notice after sentence was imposed) and concluding that, based on post-sentencing proffers made by counsel, that the district court's concerns would have been addressed (if not alleviated), the court held that the error was not harmless. Fancher's case was remanded for resentencing.

Nice work by the FPD office in the Northern District of WV on the win!

Successive Habeas Rule Clarified

US v. Blackstock: Blackstock was convicted in 1993 and filed a request seeking discovery from the Government in 2001. The district court, without notifying Blackstock, treated that filing as a petition under 28 USC 2255, because it mentioned that Blackstock's conviction was no longer valid under Apprendi. The district court denied the motion. In 2005, Blackstock filed a motion to set aside the district court's order, along with a 2255 petition. The district court denied both, holding that the 2255 petition was a "second or successive" petition and therefore prohibited under the AEDPA.

On appeal, the Fourth Circuit reversed, agreeing with Blackstock that the court's prior decision in US v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), was not consistent with the Supreme Court's later decision in US v. Castro, 540 U.S. 375 (2003). Castro makes notice mandatory in cases like Blackstock's, whereas Emmanuel contained an exception to the notice rule that the district court had applied.

Anonymous Tip Not Sufficiently Corroborated to Support Stop

US v. Reaves: Reaves was stopped in his car on the basis of an anonymous tip that a drug deal had taken place. At the time of the stop, Reaves admitted that he had a gun and was subsequently charged with being a felon in possession of a firearm. He moved to suppress the gun, arguing that the tip wasn't sufficiently corroborated to provide a basis for the stop of his car. The tip was phoned in to 911 by a person who resolutely refused to provide her name. She claimed to have witnessed what she thought was a drug deal and that one of the folks involved had a gun. The gun belonged to a person driving a "plum-colored" Mercedes, which the tipster proceeded to follow and provide updates as to the its location to the 911 dispatcher (who relayed the info to the officer who eventually made the stop). The tip was the sole basis for the stop. The district court denied the motion and Reaves was convicted after a jury trial.

On appeal, the Fourth Circuit reversed. Applying the Supreme Court's decision in Florida v. J.L (as filtered through the Fourth's decision in Perkins), the court easily concluded that the anonymous tip was not sufficiently corroborated to provide a basis for the stop, rejecting several Government arguments to the contrary. First, the court rejected the Government's argument that the caller provided "predictive" details of Reaves's route, correctly noting that "predicting" involves some time of projection into the future, not merely the passing on of information gleaned from following someone. Second, the court rejected the Government's argument that the tip gained reliability from the caller's staying on the line with the dispatcher, even though she wanted to remain anonymous. Finally, the court concluded that the fact that the caller was providing a "nearly contemporaneous" report of criminal activity was not sufficient to support the stop.

Congrats to the FPD office in Baltimore on the victory!

Fourth Lays Out Post-Gall Procedures, Upholds Downward Variance

US v. Pauley: Pauley pleaded guilty to one count of possessing child pornography. The unusual facts of the case involve Pauley, a middle school (later high school) teacher, being approached by a female student who asked whether he was interested in paying her for nude pictures she took of herself. Pauley agreed and pictures were exchanged during successive school years. When both Pauley and the student moved to high school, she proposed to take pictures of herself and another female student. The pictures were taken, but the other student informed authorities, who recovered the pictures.

At sentencing, the district court calculated Pauley's advisory Guideline range to be 78 to 97 months in prison. After hearing arguments from the parties, the district court imposed a sentence of 42 months in prison, for numerous reasons:

(1) in buying the nude photographs each time, Pauley initially was approached by the victim with such a proposal; (2) fewer than two dozen pornographic photographs were taken with the victim’s Polaroid camera; (3) the victim’s face did not appear in any of the photographs; (4) Pauley displayed deep remorse; (5) besides the criminal conduct at issue, Pauley was a model citizen and a good father and teacher; (6) as a result of his conviction, Pauley lost his teaching certificate and his state pension; (7) Pauley agreed to a lifetime of supervised release; (8) no other child pornography was found in Pauley’s house; and (9) the counseling Pauley would receive during incarceration would rehabilitate him, allow him to lead a productive life upon release, and make further crimes by Pauley extremely unlikely.

The Government appealled, arguing that Pauley's sentence was unreasonable. The Fourth Circuit unanimously rejected that argument. In doing so, it set forth the procedure to be used in a post-Gall world:

Recently, the Supreme Court decided two cases which together explain in detail the mechanics of Booker’s remedial holding. See Gall v. United States, No. 06-7949, 2007 WL 4292116 (U.S. December 10, 2007); Kimbrough v. United States, No. 06-6330, 2007 WL 4292040 (U.S. December 10, 2007). In Gall, the Court instructed that the sentencing court should first calculate the applicable Guidelines range. 2007 WL 4292116, at *7. This starting point furthers Congress’ desire for efficient administration and nationwide consistency in sentencing. Id. After calculating the Guidelines range, the sentencing court must give both the government and the defendant 'an opportunity to argue for whatever sentence they deem appropriate.' Gall,
2007 WL 4292116, at *7. The sentencing court should then consider all of the §3553(a) factors to determine whether they support the sentence requested by either party. Id.; see also Kimbrough, 2007 WL 4292040, at *10 (noting that, while § 3553(a) requires the sentencing
court to give due consideration to the Guidelines, Booker allows the sentencing court to fashion the sentence in light of other statutory considerations). In so doing, the sentencing court may not presume that the Guidelines range is reasonable. Gall, 2007 WL 4292116, at *7. In the event the sentencing court decides to impose a variance sentence, i.e., one outside of the recommended Guidelines range, the sentencing court 'must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.' Id. As noted by the Gall Court, it is an 'uncontroversial' proposition that a 'major departure should be supported by a more significant justification than a minor one.' Id.

Reviewing Pauley's sentence, the court held that the district court's variance "is reasonable and premised on the factors set forth in §3553(a)."

Congrats to CJA counsel Ben Baily and Deirdre Purdy on the win!

"Custody" Doesn't Turn on Interogator's Assurance That Defendant Is Not In Custody

US v. Colonna: Colonna was convicted by a jury of two counts related to child pornography. The investigation of Colonna began with an FBI agent infiltrating an online file-sharing service dedicated to child porn, which led to the execution of a search warrant at Colonna's home (where he lived with his parents and sister). It took 23 agents to execute the warrant on this vicious criminal. While the search was ongoing, Colonna was interviewed by two of the agents and made inculpatory statements. At no time was he provided Miranda warnings. Colonna moved to suppress his statements, at which time the district court found:

that Colonna was awakened by armed agents and guarded by agents until the search and interview concluded. The home was inundated with approximately 24 officers who gave Colonna and his family members instructions; that is, they told them where to sit and restricted their access to the home. Colonna did not voluntarily request to speak with Agent Kahn. Instead, Agent Kahn requested that Colonna accompany him to a FBI vehicle to answer questions, wherein a full-fledged interrogation took place. Agent Kahn questioned Colonna for almost three hours, albeit with breaks. But, even during these breaks, Colonna was constantly guarded. Although Colonna was not placed under formal arrest, he was told twice that lying to a federal agent was a federal offense. And, at no time was he given Miranda warnings or informed that he was free to leave.

Nonetheless, the district denied the suppression motion, holding that Colonna was not in custody because (1) the agent interviewing him said so and (2) Colonna was not arrested until nearly two months after the search.

On appeal, the Fourth Circuit reversed. The court held that the district court had put entirely too much weight on the agent's statement to Colonna that he wasn't in custody during the search, noting that such statements are but one part of the totality of the circumstances to be considered in such cases. Due to the lack of Miranda warnings, Colonna's statements should have been suppressed. The failure to do so was not harmless. Therefore, the case was remanded for a new trial.

Court Joins Majority in Tax Loss Calculation Circuit Split

US v. Delfino: The Delfinos (husband and wife) ran several computer consulting businesses. The income generated by those businesses, rather than being taken directly by the Delfinos, was put into several trusts. Neither the Delfinos nor the trusts paid taxes on that income. After an audit (with which they refused to cooperate), the Delfinos were indicted for mail fraud and attempted tax evasion. At trial, they relied on a good faith defense based on the advise of a "trust promoter and self-described tax consultant." The jury rejected that defense and convicted the Delfinos on all counts. At sentencing, the tax loss was based on the audit with which the Delfinos did not cooperate and did not take into account deductions which they would have been entitled to take had they paid their taxes on time.

On appeal, the Fourth Circuit turned back the Delfinos' challenges to both their convictions and sentences. First, the court rejected the argument that the trial court improperly excluded the testimony of other people who relied on the same "trust promoter" as the Delfinos, holding that because there was no evidence that those witnesses received the same advice as the Delfinos it was irrelevant to the question of the Delfinos' subjective beliefs. Second, the court held that there was sufficient evidence to support the convictions.

Finally, as to sentencing, the court held that the amount of tax loss was properly calculated. Specifically, the court held that potential deductions should not have been subtracted from the amount of loss because the Delfinos failed to file tax returns as required and cooperate with the initial audit, during which they could have claimed the deductions. Those deductions were therefore waived. There is a split in the circuits on this issue, with the Fourth Circuit joining the Seventh and Tenth Circuits in the majority (the Second Circuit disagrees).

True Threats Can Extort State University

US v. Bly: Bly was a long-time doctoral student at the University of Virginia. After he was dropped from the program, he began to write letters and Emails to the UVa administration claiming that he had been treated unfairly and that his work had been plagiarized.

In one letter, addressed to more than 40 people, Bly made a series of demands backed by threats of violence, referencing the ability to "end elements of long standing dispute with the twitch of my index finger." A cover sheet included practice targets from a shooting range and screaming all-caps text attesting to Bly's proficiency with high-powered rifles. Bly was charged under 18 USC 876(b) with attempting to extort UVa with threats of violence. Bly pleaded guilty to that offense, but only after the district court denied a motion to dismiss on grounds that the letter was First Amendment protected "hyperbolic" political speech and that UVa was a "person" that could be the target of an attempted extortion.

On appeal, the Fourth Circuit followed the district court and affirmed Bly's conviction. First, the court concluded that the letter contained true threats that were not entitled to First Amendment protection. Second, the court concluded that UVa was a person that could be the target of extortion.

Factual Basis Insufficient to Sustain Guitly Plea

US v. Mastrapa: Mastrapa pleaded guilty to being part of a conspiracy to distribute 500 grams or more of methamphetamine. However, Mastrapa had consistently denied that he had any real part in the conspiracy and was nabbed with the meth while helping two strangers (the other co-conspirators) carry some grocery bags into their hotel room. At the guilty plea hearing, Mastrapa brought this up, but the district court relied on a DEA affidavit submitted by the Government as a factual basis to accept the plea. The same issue arose at sentencing, where Mastrapa's counsel suggested that the guilty plea had been an Alford plea. The district court sentenced Mastrapa to the mandatory minimum 120 months in prison.

On appeal, Mastrapa's counsel initially filed an Anders brief. Noting concerns about the guilty plea, the Fourth Circuit requested briefing on the issue and appointed new counsel. After arguments the court concluded that the district court plainly erred by finding that there was a factual basis to support Mastrapa's guilty plea. The court concluded that Mastrapa essentially denied the mens rea element of the conspiracy charge and that it was not proven by the affidavit on which the district court relied.

Court Addresses Prior Convictions in Travel With Intent Case

US v. Kelly: Kelly was a long-haul trucker who routinely hauled loads between North Carolina and the Midwest. He frequently stopped at a truck stop in Charleston, West Virginia, where he became associated with a prostitute named Carder. Over the course of several visits, Carder alleged that Kelly wanted her to procure a young girl with which he could have sex. Carder took these allegations to the local police, with whom she was familiar from various legal problems. Eventually, when Kelly stopped in Charleston on a haul, Carder took money from him to procure the child, in a transaction that produced an audio recording. Kelly was arrested and charged with interstate travel with intent to have sex with a minor. At trial, the Government introduced evidence that Kelly had been convicted of attempted rape of a 12 year old in 1984. Meanwhile, Kelly was not allowed to impeach Carder with a prior conviction from Florida for passing a worthless check. Kelly was convicted and sentenced to 63 months in prison.

On appeal, the Fourth Circuit upheld Kelly's conviction and sentence. First, the court held that the district court properly admitted Kelly's prior conviction under FRE 414 and that it was not unduly prejudicial under FRE 403. Second, the court held that not allowing Kelly to introduce evidence of Carder's prior conviction, if it was error at all, was harmless given the other myriad ways that Carder was impeached at trial. Third, the court rejected Kelly's argument that the evidence was insufficient to prove that his intent to when he traveled to West Virginia on that particular trip was to have sex with a minor. Finally, the court stepped in line with the rest of the Circuit Courts and held that no actual child victim is necessary to sustain a conviction for interstate travel with intent to have sex with a minor. The court also concluded that Kelly's sentence was reasonable.

Plea Agreement Bars Subsequent Prosecutions

US v. Jordan: Jordan and co-defendant Gordon were convicted by a jury of conspiring to commit multiple drug, firearm, and murder offenses arising from the killing of a drug courier (the defendants "forcibly abducted [the victim], took him to another location, and set him on fire."). The conspiracies allegedly took place between 2002 and 2004. Prior to trial, Gordon, moved to dismiss the indictment against him because it was barred under a plea agreement he entered into with the Government in 2002. The district court denied that motion. It also overruled both defendants' objections to the use of hearsay testimony from a deceased co-conspirator during trial.

On appeal, the Fourth Circuit reversed as to Gordon but affirmed Jordan's convictions.

As to Gordon, the court concluded, 2-1, that the 2002 plea agreement barred his prosecution. The agreement was ambiguous as to whether its non-prosecution provision applied only to crimes committed by Gordon at that time or any conduct in which he was engaged. Construing the ambiguity against the Government, the court held that it applied to all conduct, which included the charged conspiracies in the instant case. Therefore, Gordon's convictions were vacated. District Judge Wilson, sitting by designation, would have remanded for further proceedings to determine if extrinsic evidence would show a "mutually agreed upon meaning" to the ambiguous language.

As to Jordan, the statements at issue were made by a co-conspirator who was involved in the murder setup to a friend with whom she lived for a while afterwards. The court held that the statements were not barred under Crawford because they were not testimonial because the co-conspirator would not have reasonably believed her friend would eventually testify about those statements in court. In addition, the court concluded that the statements were admissible as statements against penal interest because they related to the co-conspirator's role in the crime.

Hospital Questioning Not "Custodial"

US v. Jamison: Jamison was driven to the hospital by two friends. When he arrived, he told a police officer hanging around near the front door that he'd been shot. While he was being treated for his wound, Jamison was questioned by that officer regarding how he got shot. The officer had Jamison's hands bagged so they could be tested for evidence of gun shot residue. A detective, who responded to the hospital after word of a shooting had gone out, then questioned Jamison about what happened. Jamison told a different story than he originally told the officer. The detective then examined Jamison's wound and clothing and concluded that they did not match up with Jamison's story. After further questioning, Jamison eventually admitted that he shot himself. He was charged with being a felon in possession of a firearm.

Prior to trial, Jamison sought to suppress his statements at the hospital because he had never been given Miranda warnings while being questioned in police custody. The district court agreed and suppressed the statements. The Government appealed.

On appeal, the Fourth Circuit reversed. The court held that there was no requirement that Jamison be given Miranda warnings because he was never "in custody" of the police. Instead, the restraints on Jamison's liberty that allowed him to be questioned were ones directly related to medical treatment that he sought ("Absent police-impose restraint, there is no custody."). Furthermore, the questioning by police was the type that a reasonable person would expect to occur when he reports that he has been the victim of a violent crime. As for the bagging of the hands, the officer testified that it was a routine procedure done to both potential victims and perpetrators of shootings.

South Carolina Youthful Offender Sentence Is "Serious Drug Offense" Under ACCA

US v. Williams: Williams pleaded guilty to being a felon in possession of a firearm. In the PSR, the probation officer recommended that Williams be treated as an Armed Career Criminal because of three prior qualifying convictions. Williams did not dispute the convictions, but argued that a prior South Carolina drug conviction, for which he was sentenced under the Youthful Offender Act, did not meet the definition of "serious drug offense" in the ACCA, because the maximum term to be served as a Youthful Offender is six years in prison. The district court disagreed and sentenced Williams to 180 months in prison.

On appeal, the Fourth Circuit affirms. The court notes that the ACCA's definition of "serious drug offense" includes only those drug offenses with a statutory maximum penalty of more than 10 years in prison. The South Carolina statute under which Williams was previously convicted provides for a maximum sentence of 15 years. However, if the court exercises its discretion under the Youthful Offender Act, the maximum sentence is only six years. The Fourth Circuit concluded that, for ACCA purposes, the maximum potential sentence was the 15-year term in the violated statute, not the six-year Youthful Offender term. The Youthful Offender designation is entirely discretionary on the state sentencing court's part and the plea colloquy in Williams's case showed that the court could have declined that designation. Therefore, the maximum sentence to which Williams was exposed by that conviction was 15 years, making it a serious drug offense under the ACCA.

Court Upholds Convictions, Sentences In Large Drug Conspiracy Case

US v. Foster: Foster, Moses, and Taylor were all involved in a massive conspiracy to sell drugs in West Baltimore (the statement of facts makes it sound exactly like something out of Homicide: Life on the Street or The Wire). The conspiracy lasted for three years and included multiple murders and a kidnapping. In the end, all three defendants were convicted at trial of conspiracy to distribute more than 50 grams of crack. Foster was also convicted of witness tampering, a 924(c) violation, and carjacking; Moses of three counts of murder in relation to a drug trafficking crime and one 924(c) violation; and Taylor of one count of murder and one count of witness tampering. All three were sentenced to life in prison on the conspiracy count, with concurrent sentences imposed for the other offenses, including life on the murder charges (the jury after the capital sentencing phase recommended life rather than death).

On appeal, the defendants raise many issues that were quickly rejected by the Fourth Circuit. First, the court rejected the argument that the Government, through a statement during closing argument, constructively amended the indictment to widen the scope of the charged conspiracy. Second, the court rejected a claim by Taylor and Moses that the district court's response to a jury question during deliberations regarding who they could have aided and abetted with in relation to one of the murders. Third, the court rejected sufficiency of the evidence arguments raised by all three defendants. Finally, the court rejected the argument that the district court erred by only having the jury determine the amount of drugs attributable to the conspiracy as a whole, rather than to each defendant specifically.

Identity Evidence Suppressable

US v. Oscar-Torres: Oscar-Torres was arrested as part of a project to round up illegal immigrants who were also alleged gang members. It went like this:

On July 22, 2005, ICE agents and Raleigh police officers went to the Fox Ridge Manor apartment complex in Raleigh, the last known address of a number of suspected gang members. Several teams of officers went to individual apartments seeking to arrest specific gang members. One team stationed itself at the only entrance to the complex and stopped all vehicles entering and leaving in order to question the occupants.

The officers stationed at the entrance stopped and questioned Oscar-Torres, among others. In response to their questions, he admitted to being an illegal alien and, at their request, lifted his shirt to display a tattoo that they believed signified gang membership. Without a warrant, the officers then arrested Oscar-Torres and transported him to ICE headquarters . . ..

There he was fingerprinted and interrogated (sans Miranda warnings), during which it was discovered that Oscar-Torres had been previously deported for entering the country illegally. He was charged with illegal reentry.

Prior to trial, Oscar-Torres moved to suppress the evidence against him that was secured as a result of his arrest, including his statements and the fingerprints. The district court concluded that the arrest was illegal and ordered Oscar-Torres's statement suppressed. However, the court refused to suppress the fingerprints, holding that evidence of identity could never be suppressed.

On appeal, the Fourth Circuit reversed. It noted that there was a split in the circuits (and within the Ninth Circuit, apparently) on the issue of whether evidence of identity could be suppressed, stemming from different interpretations of language in INS v. Lopez-Mendoza, 468 US 1032 (1984). The Fourth Circuit adopted the view that the language in Lopez-Mendoza only stands for the proposition that courts are not deprived of jurisdiction over a defendant because of an illegal arrest. It therefore reversed the district court's blanket rule and remanded for further proceedings. On remand, the court is to examine whether the fingerprints were taken with investigatory purposes in mind (not OK) or as part of the administrative arrest/booking process (OK).

Photo Array Impersmissibly Suggestive, but ID Still Reliable

US v. Saunders: Saunders and two other men robbed a liquor store in Baltimore. After they fled the store, the van in which they made their getaway was stopped by police. Saunders got out of the van and fled. As he exited the van, a gun dropped to the ground by the vehicle. During the ensuing chase, Saunders was seen throwing away what appeared to be other weapon. Once Saunders was apprehended, police recovered three pistols - two from the scene near the van and one from along Saunders's route of flight. Officers brought the store clerk to the police station, where he was shown photo arrays containing pictures of the suspects. He identified Saunders, but not the other suspect then in custody. The photo array in which Saunders picture was displayed contained six pictures - the five not of Saunders were all shot against a light background with overhead lighting, whereas Saunders's picture was not. As a result, his photograph was darker than the others in the array.

Burton was charged with being a felon in possession of a firearm for possession of all three pistols recovered on the night of the robbery. Prior to trial, he moved to suppress the clerk's identifications, both from the photo array and in court, because the array was so suggestive that it violated his right to due process. The district court denied that motion and the jury convicted him. After receiving a four-level enhancement for possessing the firearm(s) in connection with another felony offense (the robbery), Saunders was sentenced to 120 months in prison.

Saunders unsuccessfully raised several arguments on appeal. First, the court agreed with the argument that the photo array was impermissibly suggestive, both because Saunders's picture looked so different from the other pics in the array and the police failed to follow their own internal policies regarding arrays (to tell the witness that the suspect may or may not be in the array, etc.). However, the district court did not err in failing to suppress the identification because, after applying five factors to determine the reliability of an out-of-court identification, the court held that the identification in this case was reliable. Second, the court rejected Saunders's argument that the failure of the district court to provide a special verdict form on which the jury could indicate which (if any) of the three pistols Saunders possessed was error, noting that the jury instructions overall were sufficient. Finally, the court rejected Saunders's sufficiency arguments regarding his conviction and the four-level sentencing enhancement.

Defendant Cannot Withdraw Plea "Provisionally" Accepted by District Court

US v. Battle: Battle was charged with being a felon in possession of a firearm and decided to plead guilty. At his guilty plea hearing, the district court "provisionally accepted" Battle's guilty plea "pending receipt" of the PSR. The district court deferred "final acceptance" of the plea agreement and "final adjudication of guilt" until the parties reviewed the PSR. Battle moved to withdraw his plea after reviewing the PSR based on the high sentence recommended therein. The district court denied the motion under Rule 11's "fair and just reason" standard and imposed the Guideline minimum and statutory maximum sentence of 120 months.

On appeal, Battle argued that the district court applied the wrong standard to his plea withdrawal motion because the plea had not actually been accepted at the time he made the motion. Noting this was a case of first impression in the Fourth Circuit, the court, 2-1, rejected Battle's argument. The court held that the district court accepted Battle's guilty plea at his plea hearing, provisional language notwithstanding, noting that under Rule 11 pleas are "inherently conditional" and not final until sentence is imposed. Allowing withdrawal for any reason would undermine the importance of the plea colloquy. Judge Gregory dissented, arguing that the district court's clear language at the plea hearing showed that the plea had not been accepted and thus Battle had the right to withdraw it for any reason prior to sentencing.

The court also rejected several minor sentencing arguments made by Battle.