Fugitive Tolling While On Supervised Release

US v. Thompson: Thompson, a citizen of Jamaica, was convicted on drug and gun charges and sentences to (among other things) a five-year term of supervised release, which he began serving in June 2010. One special condition of his supervised release was that he not return to the United States without permission and, if he did return to the US (for any reason), he was required to report to the nearest probation officer within 72 hours.

In 2011, Thompson was found in California and promptly removed back to Jamaica. A petition was filed seeing the revocation of his supervised release was filed, and a warrant issued, but Thompson was deported before it was served. In December 2014, six months before his five-year term of supervised release would end, Thompson returned to the US. He did not notify a probation officer and was arrested in Florida on drug charges in June 2017, two years after his supervision was supposed to end. Thompson argued that the court lacked jurisdiction to revoke his term of supervised release. The district court disagreed, holding that Thompson had been a fugitive from justice, which tolled his term of supervised release beyond the originally projected termination date. Thompson was sentenced to 30 months in prison.

On appeal, the Fourth Circuit vacated Thompson’s revocation, partially. The court rejected Thompson’s argument that because he didn’t know about the original petition filed in 2011 that he could not have actively and knowingly avoided adjudication for it. Fugitive tolling in the supervised release context has nothing to do with whether the supervisee knows there is a petition pending against him, due to the nature of supervised release and Congressional desire that defendants serve their entire term. By failing to report to a probation officer Thompson did not serve his entire supervised release term and that was “the result of Thompson’s own misconduct, in the form of knowingly absconding from supervision.” However, the court noted that it was a more difficult issue to determine precisely when the tolling period ran and therefore remanded the matter to the district court to “consider other possible bases for jurisdiction in this case.” In particular, the court held that once Thompson was in custody in Florida his “fugitive status came to an end for tolling purposes.”

District Court’s Case-Specific Reasons for Rejecting Plea Agreement OK

US v. Walker: Walker was originally charged with three counts of distributing heroin, two counts of distributing fentanyl, and being a felon in possession of a firearm. The parties negotiated a plea agreement to allow Walker to plead guilty to a single-count information of possession with intent to distribute heroin. The district court accepted the guilty plea, but delayed accepting the plea agreement pending the completion of the PSR. When sentencing began, with Walker facing a Guideline range of 21 to 27 months, the district court announced it was rejecting the plea agreement. It did so based on Walker’s prior criminal history (including prior lenient punishments), as well as concerns about the ongoing opioid crisis in West Virginia, the lack of jury trials, and the disregard for the charges returned by the grand jury. Walker withdrew his guilty plea.

The Government returned a superseding indictment charging Walker with two counts of distributing heroin, one count of distributing fentanyl, and being a felon in possession of a firearm. Walker pleaded guilty, without a plea agreement, to the drug counts and went to trial on the gun charge. During jury selection the district court overruled Walker’s Batson objection when the Government struck the only African-American member of the jury venire. Walker was convicted at trial and was eventually sentenced to 120 months in prison, based partly on a finding that the gun at issue had been stolen.

On appeal the Fourth Circuit affirmed Walker’s convictions and sentence. First, the court rejected Walker’s argument that the district court abused its discretion by rejecting his initial plea agreement based on “a vague policy that generally disfavors plea agreements” that “interferes with the prerogatives of prosecutors and defense lawyers,” and was based on “empirical grounds” that were “not factually sound.” Instead, the court concluded that the district court “centered its analysis on whether the particular plea . . . was too lenient and on whether it served the public interest,” which was squarely within the district court’s purview. The court did not dig into any of the policy bases expounded upon by the district court. Second, the court concluded that there had been no Batson error because Walker failed to rebut the Government’s non-race-based grounds for dismissing the juror in question. Finally, the court held that the district court’s reliance on an NCIC report to conclude that the gun at issue was stolen was not error, at least where Walker could not show that the information in the report was inaccurate.

Armed Flight “Plus” Constitutes Reckless Endangerment

US v. Dennings: Dennings, armed with a firearm, tried to rob someone. The man resisted (he hit Dennings in the face) and the gun went off twice, attracting the attention of a nearby police officer. The officer gave chase as Dennings fled, with his right hand “not empty and freely swinging like his left hand” and the officer “unable to determine if Dennings was digging in his pocket or holding onto something.” The officer caught Dennings when he fell, but Dennings continued to resist and was “hesitant to relinquish control” of his right arm. The officer recovered a firearm from Dennings’ jacket pocket. For his trouble Dennings was convicted of being a felon in possession of a firearm. At sentencing, he was assessed a two-level enhancement for reckless endangerment based on his flight from the officer and was sentenced to 110 months in prison.

On appeal the Fourth Circuit affirmed the application of the two-level enhancement. Dennings argued that because “instinctive flight” is not enough to warrant application of the enhancement, such flight while possessing a firearm (but not doing anything with it) should not, either, because such flight is the safest way to flee while armed. The court disagreed, concluding that situations where a party is armed, or there is evidence he might be armed, still present a sufficient risk of harm to justify imposing the enhancement. The court did stress that it was not address pure armed instinctive flight, because Dennings’ “situating involved flight-plus-something more,” particularly the shots fired and the other elements of the chase.