Knowledge of Jurisdictional Hook Not Necessary for CWA Conviction

US v. Cooper: Cooper was convicted on 9 counts of violating the Clean Water Act by knowingly discharging a pollutant into the waters of the United States. Cooper ran a trailer park that included a "sewage lagoon" which discharged into a nearby creek. The creek flowed, eventually, into the Roanoke River and into Albemarle Sound. While the discharge from the "lagoon" was treated in some way, but not effectively enough to meet Virginia regulatory requirements. Cooper and the Virginia equivalent of DEP went back and forth for years to resolve the situation. Finally, after Cooper failed to meet the terms of a consent agreement between the parties, DEP revoked his permit to operate the "lagoon." Undaunted, Cooper continued to use the "lagoon" and was eventually charged federally. He received a sentence of 27 months in prison.

On appeal, Cooper made two main arguments, both of which were rejected by the Fourth Circuit. First, Cooper argued that evidence of his dealings with the Virginia DEP - all of which occurred prior to the conduct charged in the federal indictment - was improperly admitted under FRE 404(b). The court concluded that FRE 404(b) was not even implicated in Cooper's case because the evidence was "intrinsic to the story of the crime." In any event, if it was 404(b) evidence it was properly admitted to show knowledge/lack of mistake on Cooper's part. Second, Cooper argued that the Government failed to prove that he knew the creek into which the "lagoon" drained was a "water of the United States" and therefore the Government failed to prove an element of the offense. The court rejected that argument, concluding that the "waters of the United States" element is purely jurisdictional and the defendant need not have knowledge of what makes the offense a federal one (in the same way that a felon in possession of a firearm doesn't need to know it travelled in interstate commerce).

Seach Supported by Evidence Obtained by Third Party

US v. Seldon: Seldon owned a Mazda MPV minivan, which he had modified to include two secret compartments to smuggle drugs. One compartment was in the gas tank. He took the MPV to a local dealership because it was "hard starting" and cutting off after starting. Given the problems, mechanics examined the fuel pump which, in a Mazda MPV, is located in the gas tank. In the course of their diagnosis, the mechanics found the secret compartment in the gas tank, as well as another one, and alerted local police. An officer went to the dealership, observed the compartments, and got information on who brought the minivan in for service. He knew that Seldon was known to local authorities as a major drug dealer. The officer did not pursue the investigation any further at that time.

As it would happen, the same officer pulled Seldon over for speeding in the minivan nine months later. During the stop, the officer noticed various indicia of narcotics trafficking (excessive use of air fresheners, large amounts of cash, Seldon's nervousness) and made the connection with the secret compartments discovered months earlier. The officer searched the minivan and found 500 grams of cocain and 850 grams of marijuana. Seldon was charged with conspiracy to distribute drugs and illegal monetary transactions. He moved to suppress the drugs found in the minivan, arguing that the officer lacked probable cause for the search incident to the traffic stop and that the initial examination at the dealership was also unconstitutional. The district court denied the motion and Seldon pleaded guilty to the charges.

On appeal, the Fourth Circuit affirmed. It rejected Seldon's argument that the initial search at the Mazda dealership violated the Fourth Amendment because the information was revealed by searches conducted by the mechanics prior to the involvement of the police, even if the officer's subsequent examination of the minivan was unlawful. With that information, along with the facts developed during the traffic stop, there was probable cause to search Seldon's vehicle.

Details & Emergency Justify Terry Stop Based on Anonymous Tip

US v. Elston: Police in Roanoke, VA, received a 911 call from a woman reporting that a man named "Jimmy" (Elston) had just left her home in his truck and was intoxicated. In addition, he had a handgun with ammunition and threatened to "let[] them off in somebody." The caller provided a detailed description of both Elston and his truck. The woman identified herself, but asked the 911 operator not to pass along her name to police and the operator complied (although the caller is identified in the opinion). Officers located Elston and stopped the truck. After Elston was removed from his truck and handcuffed on the ground, an officer saw a pistol in the truck. Elston was arrested for being a felon in possession of a firearm. He filed a motion to suppress the gun, on the ground that the 911 call was an anonymous tip that was not sufficiently corroborated to support a Terry stop. In the alternative, he argued that what happened wasn't really a Terry stop, but rather a full-fledged arrest, which the officers lacked probable cause to initiate. The district court denied the motion and Elston entered a conditional plea.

On appeal, the Fourth Circuit affirmed the district court's rejection of Elston's suppression arguments. First, the court, assuming without deciding that the 911 call was "anonymous," held that the information provided by the caller was sufficiently detailed to support reasonable suspicion, as she "provided a wealth of detail about Elston's appearance, vehicle, weapon, behavior, and state of mind." In addition, the report that Elston was armed and might use his weapon added an element of emergency to the situation not found in prior anonymous tip cases. Second, the court held that the police officers actions in getting Elston out of his truck and handcuffed on the ground did not constitute an arrest and that the encounter was a Terry stop supported by reasonable suspicion. Finally, the court upheld the discovery of the gun in the truck as incident to a protective sweep of the vehicle.

Two-Year Misdemeanor is "Felony Drug Offense"

US v. Burgess: Burgess was convicted of conspiring to distribute more than 50 grams of cocaine base. The Government filed an 851 information to enhanced the mandatory minimum based on Burgess's prior South Carolina conviction for possession of cocaine. For that conviction, a misdemeanor under state law, Burgess received a one-year sentence. The statutory maximum for the offense, however, was two years. Burgess objected, arguing that the definition of "felony drug offense" in 21 USC 802(44), which ties the definition to sentence length regardless of state law classification, must be read in common with the definition of "felony" in 21 USC 802(13), which ties the definition to state law. The district court rejected Burgess's argument and sentenced him to 156 months in prison (following a downward departure for substantial assistance).

Burgess's counsel filed an Anders brief, but the court nonetheless took the case for oral argument. The court upheld Burgess's sentence and rejected his argument regarding the meaning of "felony drug offense." The definition of that term in section 802(44) is unambiguous and has nothing to do with the general definition of "felony" in section 802(13). The court did note that, after Burgess's sentencing, two other Circuits had split on the issue, the First Circuit (US v. Roberson, 459 F.3d 39 [1st Cir. 2006] - adopting Fourth Circuit position) and DC Circuit (US v. West, 393 F.3d 1302 [DC Cir. 2005] - adopting Burgess's argument and applying Rule of Lenity).

18-month Probation Revocation Sentence Not Plainly Unreasonable

US v. Moulden: Moulden was on probation after pleading guilty to conspiracy to commit bank fraud and repeatedly violated the terms of his probation. The violations were mostly minor - failed drug screens, failure to pay restitution, etc. - and the district court did not revoke Moulden's probation the first two times his violations were brought before the court. The court did extend his term of supervision, however, with Moulden's consent. Finally, Moulden's probation officer filed a petition seeking revocation of Moulden's probation for multiple violations relating to drug use, treatment, restitution, and maintaining contact with his probation officer. Moulden admitted the violations and the district court revoked his probation. The sentencing range suggested in the policy statements in Chapter 7 of the Guidelines was three to nine months. The district court imposed a sentence of 18 months.

On appeal, Moulden argued that his sentence was excessive. The Fourth Circuit rejected that argument and upheld the sentence. Along the way, it clarified the standard of review in probation revocation appeals. Moulden argued that the proper standard for reviewing his sentence was the post-Booker reasonableness standard. However, the Government argued, and the Fourth Circuit agreed, that the proper standard was the same one employed in supervised release cases - plainly unreasonable. With that question settled, the Fourth concluded that Moulden's sentence was not plainly unreasonable given his history of probation violations and the district court's prior leniency in dealing with them.

No Allocution = Plain Error in Booker Remand

US v. Muhammad: Muhammad was convicted of wire fraud and money laundering and setenced to the Guideline maximum 121 months in prison. While on appeal, the Supreme Court decided Booker and Muhammad's case remanded to the district court for resentencing. At resentencing, while Muhammad's counsel was able to make arguments with regards to a new sentence, the district court never directly addressed Muhammad and allowed him to allocute. The district court imposed the same 121 month sentence.

On appeal, the Fourth Circuit vacates Muhammad's sentence for a second time. The court holds that the district court erred by failing to allow Muhammad to allocute, that the error was plain, and that it prejudiced his substantial rights. The court went on to notice the error and vacate Muhammad's sentence. In doing so, the court rejected arguments by the Government (which admitted the error and that it was plain) that Muhammad suffered no prejudice because he fully allocuted at the original sentencing and the district court's top-of-the-Guidelines sentence doesn't support an inference that the district court would have imposed a lesser sentence regardless of what Muhammad said during his allocution.

Congrats to the Raleigh, NC FPD Office on the win!

Sentences Taintied by Perjury and Government Misconduct Upheld

US v. Dyess: Calvin Dyess ("Calvin"), Eric Spencer, and Orange Dyess ("Orange") all pleaded guilty to various offenses related to a large drug conspiracy in Charleston, West Virginia. At sentencing, the district court heard from numerous witnesses, including co-defendant Ursala Rader, Calvin's ex-wife. Rader provided testimony about the extent of the drug conspiracy and Calvin's involvement in it. Calvin received a term of life imprisonment, Spencer a term of 262 months, and Orange a term of 235 months.

While the case was on appeal to the Fourth Circuit (10 days before oral argument, as a matter of fact), the Government disclosed that Rader had been involved in a sexual relationship with William Hart, a police officer investigating the case, The affair began after the initial indictment in the case and continued through sentencing. As part of the relationship, Hart had allowed Rader to retain more than $20,000 in drug proceeds that should have been turned over to investigators. Further investigation showed that Rader, with Hart's help, had perjured herself at the sentencing hearing. The case was remanded to the district court for further proceedings.

Calvin, Spencer, and Orange filed motions asking for an evidentiary hearing regarding Hart & Rader's conduct, dismissal of the indictment due to outrageous Government conduct, withdrawal of their guilty pleas, and resentencing. Prior to the district court holding a hearing, Calvin sought to have three other co-defendants who testified against him at the original sentencing hearing to file affidavits indicating that they, too, had perjured themselves. One of those witnesses refused and reported the scheme to his probation officer.

After holding a hearing, the district court (a different judge from the original sentencing) concluded that Rader's testimony was unreliable and should be disregarded. However, the other testimony at sentencing was sufficient to sustain the Guideline calculations made at that hearing. Therefore, the district court denied any other relief, including resentencing. The district court noted that, if it did resentence Calvin, Spencer, and Orange in the post-Booker advisory Guideline system it would impose the same sentences again.

On appeal, the Fourth Circuit affirmed both the convictions and sentences (2-1) of the defendants.

First, the defendants argued that the indictments against them should be dismissed due to outrageous Government conduct. The court rejected that argument, affirming the district court's conclusion that Hart's motivations in becoming involved with Rader were personal in nature, not professional, and not part of a Government plan to aid the prosecution. In addition, the court held that dismissal was not required when the relationship at issue occurred after the events covered by the indictment took place.

Second, Calvin and Orange argued that they should have been allowed to withdraw their guilty pleas due to ineffective assistance of counsel for allowing them to plead guilty to an offense with a possible life sentence (Calvin) and when he did not understand the elements of the offense (Orange). The court rejected those arguments as well.

Third, all three defendants argued that their sentencing violated Booker because their sentences were increased based on judicially found facts. The court rejected this argument, holding that while the initial sentencing in 1999 would have violated Booker, and harm was obliterated when the district court on remand said that it would resentence the defendants to the same sentences under a post-Booker system.

Fourth, the defendants argued that their sentences were not supported by sufficient evidence, a claim the court rejected based on the district court's findings that there was sufficient evidence outside of Rader's perjurious testimony to support the original sentences.

Finally, Calvin argued that the district court failed to properly group his drug and money laundering convictions under the Guidelines. The court rejected that argument, largely because both parties appeared to concede that the drug sentence was so high (life in prison) that the failure to group was harmless.

Judge Gregory dissented from the court's holding on the sentencing issues. Gregory argued that the district court's proceedings on remand were insufficient to provide both the new district court judge and the appellate court a sufficient record from which it could determine whether the sentences imposed violated Booker or were unreasonable.

Upward Departure Vacated for Lack of Sufficient Explanation of Scope

US v. Dalton: Dalton was convicted of credit card fraud based on a scam in which he used other persons' credit cards to purchase computer software which he turned around and sold on eBay. The Guideline range calculated in the PSR was 46 to 57 months. The Government moved for an upward departure based on the underepresentation of Dalton's criminal history in the PSR's calculation of a Criminal History Category of VI. The district court granted the motion and imposed a sentence of 105 months in prison.

On appeal, the Fourth Circuit reversed. Surveying the PSR, the court concluded that the district court properly concluded that an upward departure was appropriate based on Dalton's extensive criminal history, including many prior fraud convictions. In fact, many convictions were for fraudulent schemes that Dalton began just after release from prison (a few even began in prison). However, the court concluded that the district court did not adequately explain the scope of the departure. Specifically, the court failed to failed to employ the incremental departure analysis required by USSG 4A1.3(a)(4)(B) and calculated the departure range by moving horizontally on the sentencing table (i.e., to a higher hypothetical Criminal History Category) rather than vertically (to the next higher offense level).

Warrantless Search of Probationer Upheld

US v. Midgette: Midgette was on probation for two North Carolina convictions when his probation officer received a tip from a police officer that Midgette was in possession of firearms, in violation of the conditions of his probation. Another condition of Midgette's probation was that he submit to warrantless searches of his person, home, or vehicle at the request of his probation officer at reasonable times and if the search was reasonable related to his probation. After a meeting with Midgette, his probation officer ordered two police officers to search Midgette's car. They did so and recovered ammunition. The four of them then went to Midgette's home, where the officers also conducted a search, discovering firearms and marijuana. Midgette was indicted by a federal grand jury for being a felon in possession of a firearm, possession of an unregistered firearm, and possession of marijuana.

Midgette filed a motion to suppress the evidence seized in his home and car, arguing that the warrantless searches violated the Fourth Amendment. Midgette's motion was referred to a magistrate judge, who made findings of fact and recommended that the motion be denied. Midgette filed objections to the magistrate judge's recommendations, specifically arguing that (1) the magistrate improperly assumed he was on probation, (2) the magistrate incorrectly concluded that the meeting that triggered the searches was regularly scheduled, and (3) that the searches were conducted in violation of North Carolina law, which allows probation officers, not police officers, to make such warrantless searches. The district court overruled Midgette's objections and denied the motion to suppress. Midgette pleaded guilty and was sentenced to 46 months in prison.

On appeal, Midgette made three arguments: (1) North Carolina's probation statute violates the Fourth Amendment because it allows warrantless searches without individualized suspicion, (2) the probation officer lacked reasonable suspicion to conduct the search, and (3) that the searches by police officers, rather than probation officers, violated North Carolina law. The Fourth Circuit rejected all those arguments. As to the first two, the court agreed with the Government that Midgette had waived those arguments by failing to present them in the objections to the magistrate judge's recommendations. Specific objections are required to preserve issues in such situations. Regardless, the court went on to note in dicta that those two arguments were not persuasive at any rate, relying on Griffin v. Wisconsin, 483 U.S. 868 (1987), and US v. Knights, 534 U.S. 112 (2001). As to Midgette's third argument, the court held that the searches were conducted in accordance with North Carolina law because they were instigated and directed by the probation officer, even though the police officers did the actual searching.

Trial on 924(c) Charge Doesn't Preclude Acceptance on Related Drug Counts

US v. Hargrove: Hargrove was charged with multiple drug counts and a 924(c) charge. He pleaded guilty to the drug counts and went to trial on the 924(c) charge, for which he was also convicted. At sentencing, Hargrove was denied credit for acceptance of responsibility on the drug counts because he went to trial on the 924(c) charge. The district court concluded that it lacked the authority to give Hargrove credit for acceptance because of the 924(c) trial.

On appeal, the Fourth Circuit reversed, narrowly, 2-1. The court first concluded that the "offense of conviction" to which the acceptance reduction would apply was the grouped drug counts, not the 924(c) charge (which, of course, exists outside the Guidelines anyway). Therefore, the district court had the legal ability to award Hargrove acceptance of responsibility because of his guilty pleas on the drug counts. However, the court went out of its way to make clear that Hargrove was not necessarily entitled to the reduction, only that the district court had the power to award it. The message seems clear - the district court has the legal authority, but it probably shouldn't exercise it on remand. Judge Wilkins dissented, arguing that denying the facts of any charged offense, regardless of grouping, precludes a defendant from receiving credit for acceptance of responsibility.

"When the mother's talk . . ." Miranda Doesn't Apply

US v. Kimbrough: Baltimore police received information that two men were dealing drugs in front of a specific home. Surveillance confirmed that information. Officers approached the men and asked if they lived at the residence. They replied that they were guests of the homeowner, Ms. Kimbrough (defendant's mother). The officers found Ms. Kimbrough and obtained consent to search the home from her, after she denied any knowledge of drugs being inside. After hearing a noise from the basement, officers went there and found Kimbrough (the defendant) cutting cocaine. Kimbrough was arrested. At that point, the officers called Ms. Kimbrough down to the basement to show her what they found. She confronted her son, asking "what is this?" and "is there anything down here?" An officer recited the Miranda warnings and Kimbrough agreed to speak without an attorney. Kimbrough answered his mother that he had a gun stuffed under a couch cushion. Kimbrough was charged with possession of a stolen firearm, possession of cocaine with intent to distribute, and possession of a firearm in connection with another felony offense.

Kimbrough moved to suppress his statements made in response to his mother's questioning in the basement. The district court granted the motion, holding that the Miranda warnings that were given were ineffective and that the officers used Ms. Kimbrough as a proxy to question her son. The district court concluded, "Detective Himes . . . quite candidly in his testimony, [said that] she did his questioning for him, that is, Miss Kimbrough did the question that [O]fficer Himes otherwise would have done. So this was official interrogation." The court ordered Kimbrough's statements, but not the actual gun, suppressed. The Government appealed.

The Fourth Circuit reversed the district court and held that Kimbrough's statements could be used against him. Relying on Rhode Island v. Innis, 446 U.S. 291 (1980), and Arizona v. Mauro, 481 U.S. 520 (1987), the court held that Miranda was not implicated by questioning of a suspect by a family member, absent some indication that she was used as an interrogator for the police. There was no evidence to support that claim, the court held, noting that Ms. Kimbrough has non-law enforcement motives for confronting her son. Because the confrontation in the basement was not a custodial interrogation, Miranda was not implicated and any insufficiency of the warnings given was irrelevant.

No Resentencing Hearing Needed After 2255 Proceeding

US v. Hadden: Hadden was originally convicted by a jury of drug charges and a 18 USC 924(c) charge for using a firearm in relation to those drug offenses. He was sentenced to 228 months in prison - 168 months on the drug counts plus 60 months on the 924(c). Hadden's convictions and sentence were upheld on direct appeal. Hadden then filed a 28 USC 2255 motion in which he alleged, among other things, ineffective assistance of counsel in relation to the 924(c) charge. The district court accepted that argument and vacated the 924(c) conviction. The district court then entered an "amended judgment order" in the criminal case imposing a sentence of 168 months. That order was entered without any resentencing hearing.

Hadden appealed, arguing that the district court erred by not having a hearing prior to imposing the new sentence and that the sentence violated Booker (Hadden's trial, appeal, and 2255 proceedings were ongoing during the Blakely/Hammoud/Booker proceedings). The Fourth Circuit rejected those arguments and affirmed Hadden's sentence.

Before reaching the merits, the court analyzed whether it had jurisdiction to hear the appeal, which turned on whether Hadden's appeal was part of the 2255 proceeding or the underlying criminal case. If the former, the court lacked jurisdiction because neither it nor the district court issued a Certificate of Appealability. If the latter, the court had jurisdiction to review the new sentence as a direct appeal of a newly entered final order. After reviewing precedent and parsing the language of 2255, the court concluded that in this case the sentence that was being appealed was part of the underlying criminal case and it therefore had jurisdiction.

On the merits, however, the court ruled against Hadden. First, it concluded that the district court's imposition of a 168-month sentence was not really a resentencing, but rather a "correction" of sentence under 2255 because it removed the 924(c) sentence and left the rest intact. While the district court could have held a resentencing hearing, nothing in the statute or case law required it to do so. Second, the court rejected Hadden's Booker arguments, holding that there was no Booker statutory error and refusing to take notice of the Booker Sixth Amendment plain error that occurred.

Court Clarifies Duties to Conflicting Clients

US v. Nicholson: Nicholson pleaded guilty to being a felon in possession of a firearm. At the time of his arrest, Nicholson told police that he possessed the gun because he was fearful of Lorenzo Butts, who had previously threatened Nicholson and his family, attempted to kill Nicholson's brother, and had killed Nicholson's step father. Nicholson was sentenced to 189 months in prison as an armed career criminal.

Nicholson filed to vacate his sentence, under 28 U.S.C. 2255, based on ineffective assistance of counsel at sentencing due to his defense counsel's conflict of interest. Specifically, at the time he represented Nicholson, Nicholson's counsel also represented Butts in an unrelated case. Nicholson argued that in order to argue for a downward departure at sentencing based on his fear of Butts because to do so would undermine his attorney's simultaneous representation of Butts. The district court denied Nicholson's petition, holding that Nicholson's attorney suffered from no actual conflict because the simultaneous representation of the two men was in unrelated cases.

On appeal, the Fourth Circuit reversed and remanded the case for further proceedings. The court held that Nicholson's counsel did have an actual conflict of interest because the interests of Nichols and Butts were "in total opposition to each other" during the simultaneous representation. The court remanded for a determination of whether the conflict prejudiced Nichols, given that he received a sentence only 9 months higher than the mandatory minimum under the Armed Career Criminal Act.

Variance 480% Greater than Guidelines Unreasonable

US v. Tucker: Tucker pleaded guilty to bank fraud based on the follow scheme:

The Melloul-Blamey Construction Company in Greenville, South Carolina hired Tucker as office manager in October 2000. She began embezzling funds beginning in June 2002, by setting up a company called Hummingbird Marketing, of which she was sole proprietor, and using it as a "dummy vendor." (J.A. at 56.) She would request that a company official at Melloul-Blamey write checks to Bank of America for the purpose of purchasing cashier checks to pay vendors. She then took the company checks to Bank of America, where she exchanged them for certified checks made out to her, to cash, or to Hummingbird Marketing and not to legitimate vendors. Tucker then used the money to pay her personal credit card bills and to make restitution payments to the United States Clerk of Court for two previous fraud convictions.

(emphasis added). Tucker's Guideline range was 24 to 30 months. At sentencing, she argued for a sentence within that range, noting a history of depression that was reflected in the PSR. However, the district court concluded that a sentence in the Guideline range was insufficient to protect the public from further crimes by Tucker because she was a "dedicated embezzler and thief." The court calculated, without showing its work, an underrepresenation of criminal history departure to achieve a Guideline sentence of 60 months, but concluded that was insufficient. The district court finally imposed an upward variance of 144 months in prison.

Tucker appealed the scope of the district court's variance, but did not contest that some variance in her case was appropriate. The Fourth Circuit agreed, and vacated Tucker's sentence. The court initially rejected Tucker's argument that the district court focussed on one of the 18 USC 2553(a) factors - the need to protect the public - to the exclusion of all others, noting that giving one factor greater weight does not necessarily entail disregarding the others. The court then concluded that the district court failed to adequately supports its basis for a 144-month sentence. The court noted that the variance in this case was greater in length and in terms of deviation from the Guidelines than in Davenport and that the district court failed to adequately explain why such a great variance was required (it provided no reason why, for instance, the 60-month sentence it mentioned was not sufficient). Finally, several of the factors noted by the district court were already taken into account by the Guidelines.

Tucker's sentence was vacated and the case remanded for resentencing.

Congrats to the South Carolina FPD office on the win!

Apparent Authority Saves Search of Password-Protected Files

US v. Buckner: Buckner pleaded guilty to multiple wire and mail fraud charges. The evidence of the fraud was discovered by a search of the computer hard drive in Buckner's home, which he shared with his wife. The fraud, stemming from illicit eBay activities, was originally thought to be committed by the wife (the wife's name was on the eBay accounts). She knew nothing about any eBay transactions and admitted that, although the computer was leased in her name, she only used it to play solitaire. When police came to talk to the wife, she volunteered the computer to be searched. That is when Buckner's fraud was uncovered.

Buckner moved to suppress the evidence recovered during the search of the computer's hard drive. He argued that because his files were password protected and his wife could not access them, she could not consent to a search of those files. The Government argued that none of the officers performing the hard drive search knew of the password and there was no need to bypass/defeat it to access the files. The district court denied Buckner's motion and Buckner entered a conditional guilty plea.

On appeal, the Fourth Circuit affirmed Buckner's conviction. The court did hold that the wife lacked actual authority to consent to a search of Buckner's password protected files. However, the court concluded that she had apparent authority, particularly because the computer was leased in the wife's name only and the initial reports of fraud contained her name, not Buckner's.

Gang Affiliation Merits Upward Variance

US v. Hernandez-Villaneuva: Hernandez-Villaneuva was convicted of illegal reentry. His Guideline sentence was 0-6 months. The Government argued for an upward variance on grounds that when he returned to the United States Hernandez-Villaneuva associated with a violent Salvadoran street gang, even though there was no evidence that he participated in any illegal activity. The district court imposed a sentence of 18 months in prison, based largely on the gang relationship and the court's conviction that Hernandez-Villaneuva, a former gang member, "has not yet developed or demonstrated a maturity, a backbone, a character to turn things around."

Hernandez-Villaneuva appealed his sentence, which the Fourth Circuit affirmed. The court held that both the need for a variance and the scope of the variance was reasonable, due to the failure of the Guidelines to adequately consider Hernandez-Villaneuva's gang ties.

Highway Star

US v. Hill: The issue in this case was:

whether the stretch of Nider Boulevard between Shore Drive and Gate 4 of the United States Naval Amphibious Base Little Creek, located in Virginia Beach, Virginia, constituted a "highway" under Virginia law on August 10, 2004, the date of the charged conduct in this case.

It is, which required the court to affirm Hill's traffic offense under the Assimilative Crimes Act. The court based its conclusion on the fact that the roadway in question was open to the public and not limited to Naval personnel.

3553(a) Doesn't Require Low End of Guideline Sentence; Court Can't Order Sentence to Run Consecutively to Future Sentences

US v. Smith: Smith pleaded guilty to five counts of bank robbery. After an upward departure, his Guideline sentencing range was 151 to 188 months. The district court sentenced him to 180 months in prison, to be served consecutively to "any other sentence imposed in any other case, or on any other probation revocation or whatever." At the time, Smith had a pending supervised release revocation proceeding in another district. On appeal, Smith raised to objections to his sentence, one of which the Fourth rejected, the other the court accepted and vacated Smith's sentence.

Smith's first objection was that he should have been sentenced to the bottom of the Guideline range - 151 months - because it was "sufficient, but not greater than necessary" to achieve the goals of sentencing. Smith argued that if sentences within the Guideline range are presumptively mandatory because the Guidelines incorporate the 3553(a) factors and 3553(a) requires the court to impose the least harsh sentence possible to achieve those goals, than the harshest sentence that can be imposed is the low end of the Guideline range. The court, while noted that this argument was "clever, [but] has no merit." The Fourth explained that:

rests on a logical fallacy: the fact that a sentence at the lowest end of the guidelines range could be reasonable if the sentencing judge concluded it was sufficient does not mean that the sentencing judge must conclude that it is sufficient. It is the sentencing judge who must initially determine what is sufficient. To hold that the lowest sentence in an applicable guidelines range is always sufficient would rob § 3553(a) of its force.

Smith's second objection was that the district court exceeded its authority by ordering his sentence to be served consecutively to future sentences not yet imposed. Reviewing 18 USC 3584, the Fourth agreed, noting that the statutory language clearly allowed the district court to impose consecutive sentences only where it was imposing multiple sentences at the same time or where the defendant was already subject to an incomplete term of incarceration. The court rejected the Government's argument that the 3584(a) presumption that sentences imposed at different times run consecutively trumps the rest of the statute, holding that such a reading would ignore the limitations already noted and would effectively abrogate the sentencing authority of one federal judge (the one imposing a sentence in the future) in favor of another.

Smith's sentence was vacated and his case remanded for resentencing.

2423(a) Conviction Does Not Require Defendant's Knowledge of Victim's Age

US v. Jones: Jones was convicted by a jury of conspiracy to transport a minor across state lines for the purposes of prostitution and three substantive counts transportation. Jones and a buddy in Ohio found a 13-year-old runaway from Wheeling, West Virginia, whom they drafted into a prostitution scheme where they would drive the girl to a truck stop in West Virginia in order to service truckers.

The Fourth Circuit upheld Jones's convictions against two attacks. First, Jones argued that the Government was required to prove that he knew the girl involved was under 18, arguing that the "knowingly" requirement in section 2423(a) applies to the age of the victim, not (or in addition to) the transportation. The Fourth rejected this argument, noting that the other Circuits were unanimous in not adopting Jones's reading. Second, the court rejected Jones's argument that statements made by the AUSA during closing arguments prejudiced his case. One statement - "if [the defense] had real evidence, don't you think they would have presented it to you?" - was not an impermissible comment on Jones's exercise of his Fifth Amendment rights, because during closing argument Jones had suggested an "alternate scenario" of events that was not supported by defense witnesses (7 of whom testified) or cross-examination of Government witnesses. The other statement - "[Y]ou can be confident that [a witness] is telling the truth about this conspiracy. You know why? Because he pled to it." - was not improper vouching because it did not convey any indication of the AUSA's personal belief in the witnesses veracity.

Updward Departure Based on Criminal History Violates Booker

US v. Guyon: Guyon pleaded guilty to several fraud charges and faced a post-Blakely/pre-Booker Guideline range of 140 to 175 months. At sentencing, the Government moved for an upward departure because the Guideline range did not adequately reflect Guyon's criminal history, the similarity of his present offense to prior ones, and his likelihood of recidivism. Guyon objected on Sixth Amendment grounds, arguing that such a departure would depend on facts found by the district court beyond those to which Guyon pleaded guilty. The district court rejected Guyon's argument and sentenced him to 180 months in prison.

The Fourth Circuit vacated Guyon's sentence, holding that it violated Booker. Most notably, the court shot down the Government's argument that because the departure dealt with criminal history, it was covered by the Almendarez-Torres exception to the Apprendi/Blakely/Booker rule.