US v. Massenburg: Massenburg pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the probation officer concluded that he was an armed career criminal. At sentencing, Massenburg objected on Apprendi/Blakely grounds and also that the prior offenses were all part of the same course of conduct and should be counted as only one qualifying prior conviction. The district court disagreed and sentenced Massenburg to 210 months in prison.
On appeal, Massenburg raised a new argument - that he should be able to withdraw his guilty plea because he was not informed of the possibility of being sentenced as an armed career criminal. Although the court has found such a failure to require reversal in earlier cases, because Massenburg did not make an objection on the issue in the district court he was stuck with plain error review. Under that analysis, although there was error and it was plain, Massenburg could not show a "reasonable probability that, but for the error, he would not have entered the plea."
Thursday, April 30, 2009
Limited Consent to Search Means Limited Consent
US v. Neely: Neely was pulled over late at night in Charlotte, NC, after leaving a parking lot in a high crime area without turning his lights on. After the officer received a valid license and registration, he gave Neely a verbal warning about the lights. He then asked, before returning the license and registration, whether Neely had any "guns, weapons, grenades, bazookas [in the vehicle]." Neely said he did not, but offered to let the officer search the trunk. After Neely searched (in vain) for the trunk release button, the officer ordered Neely out of the car. He complied, giving his keys to the officer, who then patted him down, and had him sit on the hood of the police car. Although the pat down didn't uncover anything, the officer started questioning Neely about why he was out so late at night. When backup arrived, the officer began to search the passenger compartment of the car, but not the trunk. In the passenger compartment, he found a gun. Neely was charged with being a felon in possession of a firearm. After a denial of his motion to suppress, Neely pleaded guilty to that offense.
On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. First, the court concluded that the officer's search exceeded the scope of Neely's consent to search the trunk. Specifically, it rejected the district court's conclusion that Neely's handing of keys, generally cooperative manner, and failure to object to the search of the passenger compartment broadened the scope of his consent to search the trunk. Second, the court concluded that the search was not a proper protective search because the officer could not have reasonably believed that Neely was dangerous when he began the search.
Congrats to the defender office in the WDNC on the win!
On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. First, the court concluded that the officer's search exceeded the scope of Neely's consent to search the trunk. Specifically, it rejected the district court's conclusion that Neely's handing of keys, generally cooperative manner, and failure to object to the search of the passenger compartment broadened the scope of his consent to search the trunk. Second, the court concluded that the search was not a proper protective search because the officer could not have reasonably believed that Neely was dangerous when he began the search.
Congrats to the defender office in the WDNC on the win!
Tuesday, April 28, 2009
District Court Must Explain Why Sentence Is Appropriate to Specific Case
US v. Carter: Carter assisted some friends of his in their licensed firearm sales business. Unfortunately, they were selling short-barrelled rifles at gun shows, which led to an ATF investigation. As part of that investigation, Carter's home was searched and it was learned he was a convicted felon. Charged with multiple firearms offenses, Carter pleaded guilty to one count of being a felon in possession of a firearm. His Guideline range at sentencing was 36 to 46 months, although if his objections to the calculations were sustained, the range would have been 10 to 16 months and in a range that allowed probation. The district court overruled all the objections, but nonetheless varied from the Guidelines and imposed a sentence of probation. The Government appealed.
The Fourth Circuit vacated Carter's sentence and remanded for further proceedings. The court concluded that the district court had not sufficiently explained why the sentence it imposed was appropriate in Carter's case. Although the court made some statements, they did not apply to Carter's case specifically, such that they "could apply to any sentence, regardless of the offense, the defendant's personal background, or the defendant's criminal history." The court continued that "a talismanic recitation of the 3553(a) factors without application to the defendant being sentenced does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review." Finally, the court noted that while in pre-Booker times it could assume that the district court adopted Carter's arguments, the current sentencing scheme prohibits such a presumption. Thus, the sentence was procedurally unreasonable.
The Fourth Circuit vacated Carter's sentence and remanded for further proceedings. The court concluded that the district court had not sufficiently explained why the sentence it imposed was appropriate in Carter's case. Although the court made some statements, they did not apply to Carter's case specifically, such that they "could apply to any sentence, regardless of the offense, the defendant's personal background, or the defendant's criminal history." The court continued that "a talismanic recitation of the 3553(a) factors without application to the defendant being sentenced does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review." Finally, the court noted that while in pre-Booker times it could assume that the district court adopted Carter's arguments, the current sentencing scheme prohibits such a presumption. Thus, the sentence was procedurally unreasonable.
Use of Peer-to-Peer Network Triggers Child Porn Distribution Ehancement
US v. Layton: An informant told cops they say Layton looking at child porn on his computer. Cops went to investigate and questioned Layton, who gave a statement admitting to downloading porn, that there were a few thousand images on his computer, and that he used a peer-to-peer software called WinMX. He pleaded guilty to possession of child porn. At sentencing, he objected to enhancements based on the number of images, their type (i.e., masochistic), and that he "distributed" them via the WinMX software. Layton's arguments were based largely on factual issues that he alleged were left out of the investigators' report of the investigation. The district court rejected all Layton's arguments and sentenced him to 97 months, the bottom of the Guideline range.
Layton appealed his sentence, which the Fourth Circuit affirmed. After brushing aside Layton's fact-based claims on the number and types of images he possessed, the court moved on to the issue of whether his offense involved "distribution" of child porn via the file sharing WinMX software under USSG 2G2.2(b)(3). Noting that the other circuits have all concluded that use of peer-to-peer file sharing software constituted distribution, the Fourth Circuit agreed. The court concluded that "[w]hen knowingly using a file-sharing program that allows others to access child pornography files," the enhancement is appropriate. Finally, the court concluded that Layton's sentence was procedurally and substantively reasonable (without reference to the presumption of reasonableness, oddly).
Layton appealed his sentence, which the Fourth Circuit affirmed. After brushing aside Layton's fact-based claims on the number and types of images he possessed, the court moved on to the issue of whether his offense involved "distribution" of child porn via the file sharing WinMX software under USSG 2G2.2(b)(3). Noting that the other circuits have all concluded that use of peer-to-peer file sharing software constituted distribution, the Fourth Circuit agreed. The court concluded that "[w]hen knowingly using a file-sharing program that allows others to access child pornography files," the enhancement is appropriate. Finally, the court concluded that Layton's sentence was procedurally and substantively reasonable (without reference to the presumption of reasonableness, oddly).
Thursday, April 02, 2009
Defendant "Found" By ICE Detainer After State Arrest
US v. Sosa-Carabantes: Sosa-Carabantes was arrested on state charges in North Carolina after illegally reentering the United States. While in state custody, ICE placed a detainer on him via a local officer who had been certified to screen state arrestees for immigration violations. Sosa-Carabantes eventually was convicted and sentenced on the state charge. He was then indicted for illegal reentry in federal court, to which he pleaded guilty. At sentencing, the parties disagreed on whether Sosa-Carabantes's state conviction should figure in the calculation of his criminal history score under the Guidelines. Sosa-Carabantes argued that because he was "found" by ICE prior to the state sentence being imposed, it should not be counted. The district court disagreed and sentenced Sosa-Carabantes to 46 months in prison.
On appeal, the Fourth Circuit vacated Sosa-Carabantes's sentence. The court concluded that the crucial issue was ICE found Sosa-Carabantes. It noted that on the day Sosa-Carabantes was arrested, ICE lodged a detainer with the local authorities that identified him by name, birth date, place of birth, and A-file number. Thus, he was "found" at that point. The court turned away the Government's argument that Sosa-Carabantes could not be found before a full investigation had been completed.
Congrats to the Defender office in WDNC for the win!
On appeal, the Fourth Circuit vacated Sosa-Carabantes's sentence. The court concluded that the crucial issue was ICE found Sosa-Carabantes. It noted that on the day Sosa-Carabantes was arrested, ICE lodged a detainer with the local authorities that identified him by name, birth date, place of birth, and A-file number. Thus, he was "found" at that point. The court turned away the Government's argument that Sosa-Carabantes could not be found before a full investigation had been completed.
Congrats to the Defender office in WDNC for the win!
Notice Required For Trespass Conviction
US v. Madrigal-Valadez: Madrigal-Valadez was convicted after a bench trial of entering a military installation, Fort Lee in Virginia, for a purpose prohibited by law. That purpose, allegedly, was being an alien in the United States illegally. The conviction arose from an incident in which Madrigal-Valadez drove a soldier back to Fort Lee. When his vehicle was stopped to be checked out prior to entry, Madrigal-Valadez could not present the proper identification needed to satisfy Fort Lee's entry requirements. He was arrested at that time.
On appeal, the Fourth Circuit reversed Madrigal-Valadez's conviction. Addressing an issue not before resolved in this circuit, the court concluded, in line with several other circuits, that before a person can be convicted of this trespass offense he must be provided notice that entry onto the military property is prohibited. Although there was a sign on the road to the gate that provided some notice (albeit in English, which Madrigal-Valadez didn't speak), it was not sufficient because once someone turned onto that road they were already on the base. Thus, Madrigal-Valadez's conviction could not stand. The court also rejected the district court's conclusion that Madrigal-Valadez's illegal immigration status could constitute a "purpose prohibited by law" for which he entered the base.
Congrats to the Defender office in the EDVa on the win!
On appeal, the Fourth Circuit reversed Madrigal-Valadez's conviction. Addressing an issue not before resolved in this circuit, the court concluded, in line with several other circuits, that before a person can be convicted of this trespass offense he must be provided notice that entry onto the military property is prohibited. Although there was a sign on the road to the gate that provided some notice (albeit in English, which Madrigal-Valadez didn't speak), it was not sufficient because once someone turned onto that road they were already on the base. Thus, Madrigal-Valadez's conviction could not stand. The court also rejected the district court's conclusion that Madrigal-Valadez's illegal immigration status could constitute a "purpose prohibited by law" for which he entered the base.
Congrats to the Defender office in the EDVa on the win!
Court Affirms Conviction, Death Sentence, Arising from Multi-State Spree
US v. Basham: Basham, along with a co-defendant, escaped from jail in Kentucky and embarked on a multi-state crime spree that stretched from Indiana to South Carolina. Along the way, the two kidnapped one man in Kentucky, who managed to escape, and two women in West Virginia and South Carolina, who were never seen again. Basham was finally apprehended in Kentucky. He was indicted in South Carolina for carjacking that resulted in death and kidnapping that resulted in death, along with other charges. After a jury trial, he was convicted of those offenses and sentenced to death.
On appeal, Basham raised six challenges to his conviction and sentence, all of which the Fourth Circuit rejected. Each involves a detailed set of facts that cannot be reported here.
First, Basham argued that the district court should have granted his motion for a new trial when it came to light that the jury foreperson had contacted various local news outlets during the trial. Relying on the evidence developed during countless hearings on the matter, the court concluded that the district court had not abused its discretion in concluding that the Government had rebutted the presumption that the juror's actions were prejudicial.
Second, Basham argued that the district court erred by removing his initially appointed counsel because they might have to be witnesses during trial (due to their role in some searches for the victim's body once Basham was arrested). The court concluded that the district court did not abuse its discretion, even though it later ruled that the testimony of those counsel was not admissible at trial.
Third, Basham argued that the district court erred by allowing the Government to introduce certain "bad act" evidence during the guilt phase. The court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.
Fourth, Basham argued that the district court erred by admitting certain evidence at the penalty phase. As with the trial evidence, the court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.
Fifth, Basham argued that the district court erred by not including the "catch all" mitigator on the verdict form for the penalty phase. The court concluded that, in light of the instructions informing the jury of its ability to rely on any mitigating factor, that the absence of the catch all from the form was not error.
Finally, the court concluded that Basham's sentence was not imposed "under the influence of passion, prejudice, or any other arbitrary factor."
On appeal, Basham raised six challenges to his conviction and sentence, all of which the Fourth Circuit rejected. Each involves a detailed set of facts that cannot be reported here.
First, Basham argued that the district court should have granted his motion for a new trial when it came to light that the jury foreperson had contacted various local news outlets during the trial. Relying on the evidence developed during countless hearings on the matter, the court concluded that the district court had not abused its discretion in concluding that the Government had rebutted the presumption that the juror's actions were prejudicial.
Second, Basham argued that the district court erred by removing his initially appointed counsel because they might have to be witnesses during trial (due to their role in some searches for the victim's body once Basham was arrested). The court concluded that the district court did not abuse its discretion, even though it later ruled that the testimony of those counsel was not admissible at trial.
Third, Basham argued that the district court erred by allowing the Government to introduce certain "bad act" evidence during the guilt phase. The court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.
Fourth, Basham argued that the district court erred by admitting certain evidence at the penalty phase. As with the trial evidence, the court concluded that the district court had not abused its discretion in admitting that evidence, or that any such abuse was harmless error.
Fifth, Basham argued that the district court erred by not including the "catch all" mitigator on the verdict form for the penalty phase. The court concluded that, in light of the instructions informing the jury of its ability to rely on any mitigating factor, that the absence of the catch all from the form was not error.
Finally, the court concluded that Basham's sentence was not imposed "under the influence of passion, prejudice, or any other arbitrary factor."
New DNA Evidence Allows Plea Withdrawal
US v. Thompson-Riviere: Thompson-Riviere pleaded guilty to being an alien who illegally reentered under 8 USC 1326(b)(4) after being deported to his native Panama. He was born in the Canal Zone in 1965. After entering the plea, however, he learned from a newly discovered relative that his actual father was an American citizen. If that was the case, Thompson-Riviere would also be an American citizen and, thus, could not be an "alien" under 1326 (b)(4) and could not be guilty of the offense. He sought to withdraw his plea, but the district court refused to allow him to do so. Thompson-Riviere was sentenced to 87 months in prison.
On appeal, the Fourth Circuit reversed and remanded for further proceedings. The focus of the court's analysis was one of six factors to be considered when a defendant seeks to withdraw his guilty plea, "whether the defendant has credibly asserted legal innocence." The court concluded that the district court abused its discretion in concluding such an assertion had not been made. After a careful analysis of the relevant statutes and a Second Circuit case that dealt with the same language, the court concluded that Thompson-Riviere's evidence, if believed, would render him not guilty of the offense.
Congrats to the Defender office in the EDVa on the win!
On appeal, the Fourth Circuit reversed and remanded for further proceedings. The focus of the court's analysis was one of six factors to be considered when a defendant seeks to withdraw his guilty plea, "whether the defendant has credibly asserted legal innocence." The court concluded that the district court abused its discretion in concluding such an assertion had not been made. After a careful analysis of the relevant statutes and a Second Circuit case that dealt with the same language, the court concluded that Thompson-Riviere's evidence, if believed, would render him not guilty of the offense.
Congrats to the Defender office in the EDVa on the win!
Search, Conviction Upheld, Sentence Vacated in Drugs/Guns Case
US v. Perry: Perry was convicted on drug and gun charges following both a search of his home and a series of controlled buys. Perry unsuccessfully sought to suppress marijuana and firearms found during the search as well as incriminating statements made that day. He was convicted (but not on all counts) after a jury trial and sentenced to 230 months in prison.
On appeal, Perry made several attacks on his conviction, all of which the Fourth Circuit turned away. First, Perry argued that the marijuana and firearms found during the search of his home should have been suppressed because those objects were not specified as the targets of the warrant and the warrant was not supported by probable cause. The court concluded that there was sufficient probable cause to justify the search and that the warrant covered both "other controlled substances" and "firearms and weapons," thus the seizure was within its scope.
Second, Perry argued that statements he made while the search was ongoing should have been suppressed. Specifically, he argued that he was seized by police and not properly Mirandized when they came to his place of employment and drove him back to the house. The court affirmed the district court and concluded that it had not abused its discretion in concluding that Perry was not seized at that point and thus no Miranda warnings were needed. Third, Perry argued that there was not sufficient evidence to support a conviction under 924(c) based on firearms found in his home. The court disagreed, noting the proximity of the firearms to the marijuana in the house as well as concluding that the guns were part of Perry's plan to "protect his business dealings" along with the video surveillance system used at the house.
Finally, the court rejected Perry's arguments that the 924(c) conviction amounted to an impermissible amendment of the indictment and that the jury instructions on that count were flawed.
As to Perry's sentence, the court turned away Perry's argument that the district court erred by using acquitted conduct as a basis for determining his Guideline range. However, the court did remand Perry's sentence for reconsideration in light of Kimbrough, given that Perry unsuccessfully argued for a variance from the crack-related Guideline range based on the inequities inherent in the 100-to-1 powder/crack ratio.
On appeal, Perry made several attacks on his conviction, all of which the Fourth Circuit turned away. First, Perry argued that the marijuana and firearms found during the search of his home should have been suppressed because those objects were not specified as the targets of the warrant and the warrant was not supported by probable cause. The court concluded that there was sufficient probable cause to justify the search and that the warrant covered both "other controlled substances" and "firearms and weapons," thus the seizure was within its scope.
Second, Perry argued that statements he made while the search was ongoing should have been suppressed. Specifically, he argued that he was seized by police and not properly Mirandized when they came to his place of employment and drove him back to the house. The court affirmed the district court and concluded that it had not abused its discretion in concluding that Perry was not seized at that point and thus no Miranda warnings were needed. Third, Perry argued that there was not sufficient evidence to support a conviction under 924(c) based on firearms found in his home. The court disagreed, noting the proximity of the firearms to the marijuana in the house as well as concluding that the guns were part of Perry's plan to "protect his business dealings" along with the video surveillance system used at the house.
Finally, the court rejected Perry's arguments that the 924(c) conviction amounted to an impermissible amendment of the indictment and that the jury instructions on that count were flawed.
As to Perry's sentence, the court turned away Perry's argument that the district court erred by using acquitted conduct as a basis for determining his Guideline range. However, the court did remand Perry's sentence for reconsideration in light of Kimbrough, given that Perry unsuccessfully argued for a variance from the crack-related Guideline range based on the inequities inherent in the 100-to-1 powder/crack ratio.
Monday, March 16, 2009
Court Reverses SORNA Convictions
US v. Hatcher: This case was a consolidated appeal of several cases where the defendants were convicted of violating the Sex Offender Registration and Treatment Act ("SORNA") by travelling interstate without properly updating their registrations as sex offenders. The defendants all shared the common traits that: (a) they were convicted in state courts of sex offenses in states that require registration; (b) they served their sentences and were released from prison before SORNA was enacted; (b) the travel which took place and became the basis for the charges against them took place after SORNA was enacted, but prior to July 27, 2006. That date is crucial, because that it when the Attorney General promulgated regulations under 42 USC 16913(d) setting forth how particular groups of sex offenders could comply with SORNA. All the defendants moved to dismiss their indictments on several grounds, all of which were denied.
On appeal, the Fourth Circuit reversed,2-1, but narrowly. The court avoided issues of congressional authority, ex post facto, and due process violations by concluding that the defendants weren't covered by the terms of SORNA due to the timing of the events in their cases. Section 16913(d) delegates to the Attorney General the authority to determine how SORNA will apply to those who cannot comply with its requirements going forward, i.e., before their release from prison. The court concluded that a plain reading of that delegation showed that until the Attorney General promulgated regulations, SORNA did not apply to people like the defendants who were already out of prison. There is a circuit split on this issue, with the Eighth and Tenth Circuits finding that the language is ambiguous and interpreting SORNA to apply in such cases. The Fourth joins the Eleventh Circuit in holding otherwise.
Judge Shedd dissented, arguing that the majority read language out of context and that the plain meaning of the statute required compliance from the date of SORNA's enactment.
Congrats to the FPD office in WDVa on the win.
On appeal, the Fourth Circuit reversed,2-1, but narrowly. The court avoided issues of congressional authority, ex post facto, and due process violations by concluding that the defendants weren't covered by the terms of SORNA due to the timing of the events in their cases. Section 16913(d) delegates to the Attorney General the authority to determine how SORNA will apply to those who cannot comply with its requirements going forward, i.e., before their release from prison. The court concluded that a plain reading of that delegation showed that until the Attorney General promulgated regulations, SORNA did not apply to people like the defendants who were already out of prison. There is a circuit split on this issue, with the Eighth and Tenth Circuits finding that the language is ambiguous and interpreting SORNA to apply in such cases. The Fourth joins the Eleventh Circuit in holding otherwise.
Judge Shedd dissented, arguing that the majority read language out of context and that the plain meaning of the statute required compliance from the date of SORNA's enactment.
Congrats to the FPD office in WDVa on the win.
Divided Court Affirms Stat Max Sentence for Robbery
US v. Heath: Heath pleaded guilty to interference with commerce by robbery and being a felon in possession of a firearm. The facts underlying the conviction included the robbery of a convenience store and a burglary during which Heath stole 10 shotguns and rifles. Heath's advisory Guideline ranges were 100-125 months on the robbery and 100-120 months on the gun charge. The PSR laid out Heath's extensive criminal history, including prior convictions for stabbing someone in the chest and shooting a police officer. It also detailed his disciplinary problems during previous terms of imprisonment. The Government sought an upward departure due to the under representation of Heath's criminal history. The district court agreed and imposed a statutory maximum term of 240 months on the robbery charge, to be served concurrently with a 120-month sentence on the gun charge.
Heath appealed, arguing that his sentence was unreasonable. The Fourth Circuit, 2-1, disagreed and affirmed. The court found no procedural error in the district court's application of sentence. Emphasizing the deference which appellate courts much accord a district court's sentence in a post-Booker world, the court also concluded that the sentence was substantively reasonable. It probably didn't help that defense counsel admitted that heath "has the proverbial record as long as your arm and has acted violently, possessed weapons and, in common parlance, has been a bad actor all his life."
Judge Gregory dissented, arguing that the district court did not sufficiently explain why the statutory maximum sentence was needed in this case. It was another assertion of his "position that substantive reasonableness must encompass more than the rote recitation of 3553(a) factors that the Court has condoned in numerous post-Gall cases, and which it continues to condone today."
Heath appealed, arguing that his sentence was unreasonable. The Fourth Circuit, 2-1, disagreed and affirmed. The court found no procedural error in the district court's application of sentence. Emphasizing the deference which appellate courts much accord a district court's sentence in a post-Booker world, the court also concluded that the sentence was substantively reasonable. It probably didn't help that defense counsel admitted that heath "has the proverbial record as long as your arm and has acted violently, possessed weapons and, in common parlance, has been a bad actor all his life."
Judge Gregory dissented, arguing that the district court did not sufficiently explain why the statutory maximum sentence was needed in this case. It was another assertion of his "position that substantive reasonableness must encompass more than the rote recitation of 3553(a) factors that the Court has condoned in numerous post-Gall cases, and which it continues to condone today."
Monday, March 09, 2009
Alien Using Alias Not "Found" While In State Custody
US v. Uribe-Rios: Uribe-Rios was convicted of illegal reentry following deportation. After his reentry, he was arrested and convicted, under an alias, in North Carolina state court on drug charges in 2001. While serving his state sentencing, ICE lodged a detainer with NC authorities under the alias's name. Once released from state custody, Uribe-Rios admitted to ICE agents who he really was and was charged with illegal reentry. Uribe-Rios moved to dismiss the indictment, arguing that (1) he was "found" for purposes of the illegal reentry statute when arrested by NC officials, therefore the statute of limitations had run; (2) venue in the WDNC was improper because when the ICE detainer was lodged he was in custody in a facility in the EDNC; and (3) the time between his state arrest and conviction amounted unwarranted pretrial delay. The motion was denied, Uribe-Rios pleaded guilty, and was sentenced to 70 months in prison.
On appeal, the Fourth Circuit affirmed Uribe-Rios's conviction and sentence. The court rejected Uribe-Rios's argument about when he was "found," holding that being in state custody is not the same thing as being in federal custody, particularly when the person in custody is using an alias. The court also rejected the venue argument, noting that since Uribe-Rios wasn't "found" until turned over to ICE officials in the WDNC, venue was proper there. With regards to pretrial delay, the court concluded that Uribe-Rios was not prejudiced by not being able to serve his state and federal sentence concurrently, as no such right exists (it also seems to me that the proper time from which to measure "delay" would start with when he was "found" in 2006).
On appeal, the Fourth Circuit affirmed Uribe-Rios's conviction and sentence. The court rejected Uribe-Rios's argument about when he was "found," holding that being in state custody is not the same thing as being in federal custody, particularly when the person in custody is using an alias. The court also rejected the venue argument, noting that since Uribe-Rios wasn't "found" until turned over to ICE officials in the WDNC, venue was proper there. With regards to pretrial delay, the court concluded that Uribe-Rios was not prejudiced by not being able to serve his state and federal sentence concurrently, as no such right exists (it also seems to me that the proper time from which to measure "delay" would start with when he was "found" in 2006).
Monday, February 23, 2009
Applicable 3582 "Sentencing Range" Is Pre-Departure
US v. Donnell: This another retroactive crack case. To be eligible to receive a reduced sentence under 3582(c)(2), a defendant's sentence must be "based on" a sentencing range that was subsequently lowered by the Sentencing Commission. The issue in the pair of cases consolidated here was whether, in situations where the offense level but not the sentencing range changes (because the offense level is so high) and the defendants received a substantial assistance departure at sentencing, are the defendants eligible for a reduced sentence? The district courts said no.
The Fourth Circuit, again, agreed. The court rejected the defendants' argument that the proper "sentencing range" that must change is the one on which the district court relied after departing downward. Departures, the court concluded, do not result in a new sentencing range. The only sentencing ranges are those produced as the result of Guideline calculations. Therefore, regardless of the method used by the district court to arrive at its departure sentence, that does not constitute a new sentencing range that can be lowered by a future amendment to the Guidelines.
In spite of that holding, the Fourth Circuit did reverse one of the defendants' denials, as it turned out that the district court judge had worked on his original criminal case as an AUSA a dozen years ago. Both defendants also raised the informal brief argument raised in Hood (with similar results).
The Fourth Circuit, again, agreed. The court rejected the defendants' argument that the proper "sentencing range" that must change is the one on which the district court relied after departing downward. Departures, the court concluded, do not result in a new sentencing range. The only sentencing ranges are those produced as the result of Guideline calculations. Therefore, regardless of the method used by the district court to arrive at its departure sentence, that does not constitute a new sentencing range that can be lowered by a future amendment to the Guidelines.
In spite of that holding, the Fourth Circuit did reverse one of the defendants' denials, as it turned out that the district court judge had worked on his original criminal case as an AUSA a dozen years ago. Both defendants also raised the informal brief argument raised in Hood (with similar results).
No 3582 Reduction in Statutory Departure Cases
US v. Hood: This is another case dealing with issues arising from the retroactive application of the amended crack Guidelines. In this case, actually two consolidated cases, the defendants were subject to mandatory minimum sentences of at least 240 months in prison, but received significantly shorter sentences (100 and 108 months) after providing substantial assistance. Each applied for a further reduction under the amended Guidelines. The district courts denied the motions, each holding that the sentences were not "based on" the changed Guideline ranges, but on the mandatory minimum sentence, which was greater than the Guideline ranges.
On appeal, the Fourth Circuit agreed. Even though the district courts referred to Guideline calculations when initially imposing sentence (as part of determining the extent of the departures), the sentences were still "based on" the mandatory minimum, as it became the Guideline approved sentence when the Guideline range was less than the statutory minimum. Furthermore, the only authority for the district courts to depart from the mandatory minimum came from statute, not the Guidelines, and made the scope of substantial assistance the only criterion in determining sentence.
Separately, both defendants argued that the Fourth Circuit's practice of sending 3582(c)(2) appeals to the "informal briefing" calendar under Local Rule 34(b) raises "serious constitutional problems" due to delay or denial of relief. Noting that the informal process may, in fact, be more streamlined (particularly for pro se appellants), the court concluded that in neither of these cases was there significant delay (Hood's case was decided less than six months after fling his notice of appeal) that raised due process concerns.
On appeal, the Fourth Circuit agreed. Even though the district courts referred to Guideline calculations when initially imposing sentence (as part of determining the extent of the departures), the sentences were still "based on" the mandatory minimum, as it became the Guideline approved sentence when the Guideline range was less than the statutory minimum. Furthermore, the only authority for the district courts to depart from the mandatory minimum came from statute, not the Guidelines, and made the scope of substantial assistance the only criterion in determining sentence.
Separately, both defendants argued that the Fourth Circuit's practice of sending 3582(c)(2) appeals to the "informal briefing" calendar under Local Rule 34(b) raises "serious constitutional problems" due to delay or denial of relief. Noting that the informal process may, in fact, be more streamlined (particularly for pro se appellants), the court concluded that in neither of these cases was there significant delay (Hood's case was decided less than six months after fling his notice of appeal) that raised due process concerns.
Court Affirmed "3 Strikes" Sentence
US v. Thompson: Thompson was convicted of bank robbery and sentenced to life in prison under the "three strikes" law, 18 USC 3559(c). The "strikes" in question are convictions for a "serious violent felony." If the defendant has two prior "strikes" and the current conviction is a "serious violent felony," a life sentence is mandatory. However, there is a "safety valve" provision for robbery convictions, allowing the defendant to escape a life sentence if he can prove by clear and convincing evidence that he did not use or threaten to use a dangerous weapon during the robbery.
Thompson admitted that he had two prior strikes, but argued that the current robbery conviction qualified for the safety valve. He also argued that increasing his statutory maximum sentence from 20 years to life on the basis of judicial factfinding violated his constitutional rights.
Both the district court and the Fourth Circuit rejected Thompson's arguments. On the facts of the case, the Fourth Circuit recounted the testimony of five witnesses who testified before the district court. While none of the witnesses could put a gun in Thompson's hand, two testified that he made threats involving shooting and one testified being scared for her life. Given that record, there was no clear error in the district court's determination that Thompson threatened to use a dangerous weapon. On the constitutional issue, the Fourth Circuit concluded there was no violation because the judicial factfinding at sentencing did not increase Thompson's sentence. No constitutional issue is present when the sentencing court, upon the finding of certain facts, can impose a lower sentence.
Thompson admitted that he had two prior strikes, but argued that the current robbery conviction qualified for the safety valve. He also argued that increasing his statutory maximum sentence from 20 years to life on the basis of judicial factfinding violated his constitutional rights.
Both the district court and the Fourth Circuit rejected Thompson's arguments. On the facts of the case, the Fourth Circuit recounted the testimony of five witnesses who testified before the district court. While none of the witnesses could put a gun in Thompson's hand, two testified that he made threats involving shooting and one testified being scared for her life. Given that record, there was no clear error in the district court's determination that Thompson threatened to use a dangerous weapon. On the constitutional issue, the Fourth Circuit concluded there was no violation because the judicial factfinding at sentencing did not increase Thompson's sentence. No constitutional issue is present when the sentencing court, upon the finding of certain facts, can impose a lower sentence.
Wednesday, February 04, 2009
Non-Forcible Statutory Rape Not "Violent Felony" Under ACCA
US v. Thornton: Thornton was convicted of being a felon in possession of a firearm and body armor and sentenced under the Armed Career Criminal Act. At his initial sentencing, the district court identified four qualifying prior convictions. On remand from the Fourth Circuit, the district court concluded that two of those convictions were not "separate" offenses and that Thornton therefore had three qualifying prior convictions. One of those convictions was a Virginia conviction for "carnal knowledge of a minor" without the use of force. Thornton argued that the Virginia conviction was not a "violent felony" as defined by the Act. The district court disagreed and reimposed the ACCA sentence.
On appeal, applying the analysis from the Supreme Court's recent decision in Begay, the Fourth Circuit reversed the district court. The only issues in dispute where whether the Virginia offense was substantially similar to the offenses listed in the "violent felony" definition and whether it posed a "serious potential risk or physical injury." The Government focused on the risk inherent in the offense, which the court noted "ignores the Supreme Court's reasoning in Begay" that every offense that presents such risks meets the definition of violent felony. The court also rejected the Government's argument that the Virginia offense was similar to the enumerated offenses because it involved "constructive force," based on the inability of the minor to consent. The court noted that the ability to consent cannot change the fact that Virginia enumerates both forcible and nonforcible sexual offenses. To adopt the Government's analysis would be to render that distinction meaningless.
Congrats to the FPD office in Roanoke on the win!
On appeal, applying the analysis from the Supreme Court's recent decision in Begay, the Fourth Circuit reversed the district court. The only issues in dispute where whether the Virginia offense was substantially similar to the offenses listed in the "violent felony" definition and whether it posed a "serious potential risk or physical injury." The Government focused on the risk inherent in the offense, which the court noted "ignores the Supreme Court's reasoning in Begay" that every offense that presents such risks meets the definition of violent felony. The court also rejected the Government's argument that the Virginia offense was similar to the enumerated offenses because it involved "constructive force," based on the inability of the minor to consent. The court noted that the ability to consent cannot change the fact that Virginia enumerates both forcible and nonforcible sexual offenses. To adopt the Government's analysis would be to render that distinction meaningless.
Congrats to the FPD office in Roanoke on the win!
Monday, February 02, 2009
NC Felony Stalking = "Crime of Violence" Under USSG 4B1.2(a)
US v. Seay: Seay was convicted of being a felon in possession of a firearm and sentenced to 96 months in prison. On appeal, he argued that the district court made two errors at sentencing and argued that his sentence was unreasonable. The Fourth Circuit concluded otherwise and affirmed.
On appeal, Seay first argued that his prior conviction for felony stalking in North Carolina was not a "crime of violence," as defined in USSG 4B1.2(a) and applied in 2K2.1. The Fourth Circuit, after first looking to the indictment to see in which of two possible ways Seay violated the statute, concluded that his conduct was "purposely carried out with the intended effect of placing a reasonably prudent person in fear of bodily harm." The statute, the court noted, requires "more than mere harassment," which is sufficient under some similar statutes in other states. Seay then argued that the district court erred in considering a risk assessment report prepared by a police officer based on an interview with Seay (done with permission of counsel). Without concluding whether there was error, the court held that any error would be harmless, as the record showed that the district court did not rely on the report in any meaningful way. Finally, Seay's argument that his sentence, an upward variance, was unreasonable was rejected by the court.
On appeal, Seay first argued that his prior conviction for felony stalking in North Carolina was not a "crime of violence," as defined in USSG 4B1.2(a) and applied in 2K2.1. The Fourth Circuit, after first looking to the indictment to see in which of two possible ways Seay violated the statute, concluded that his conduct was "purposely carried out with the intended effect of placing a reasonably prudent person in fear of bodily harm." The statute, the court noted, requires "more than mere harassment," which is sufficient under some similar statutes in other states. Seay then argued that the district court erred in considering a risk assessment report prepared by a police officer based on an interview with Seay (done with permission of counsel). Without concluding whether there was error, the court held that any error would be harmless, as the record showed that the district court did not rely on the report in any meaningful way. Finally, Seay's argument that his sentence, an upward variance, was unreasonable was rejected by the court.
Court Affirms Conviction of Former VRS Member
US v. Vidacak: Vidacak was convicted on four counts of making false statements in immigration applications. The basis for the charges was Vidacak's failure to disclose/admit that he had been a member of the VRS (Army of the Republika Srpska) during the Bosnian Civil War. Part of the evidence against Vidacak at trial came from military documents and the testimony of two immigration officials to whom the false statements were allegedly made, via interpreters. Vidacak objected to the use of that evidence. He did so again on appeal.
The Fourth Circuit affirmed Vidacak's conviction, concluding that the district court did not abuse its discretion by admitting the challenged evidence. As to the military records, introduced into evidence by an investigator with the International Criminal Tribunal for the Former Yugoslavia at The Hague, the court concluded that they were sufficiently authenticated, even though the witness could not testify to being present when those particular documents were seized. The court also concluded that they were properly admitted as public agency records under FRE 803(8). As to the witness testimony, the court rejected Vidacak's argument that they could not testify unless they interpreters who translated at the interviews were present for cross examination.
The Fourth Circuit affirmed Vidacak's conviction, concluding that the district court did not abuse its discretion by admitting the challenged evidence. As to the military records, introduced into evidence by an investigator with the International Criminal Tribunal for the Former Yugoslavia at The Hague, the court concluded that they were sufficiently authenticated, even though the witness could not testify to being present when those particular documents were seized. The court also concluded that they were properly admitted as public agency records under FRE 803(8). As to the witness testimony, the court rejected Vidacak's argument that they could not testify unless they interpreters who translated at the interviews were present for cross examination.
Court Affirms Adult Prosecution of Juvenile in RICO Case
US v. Juvenile Male: This is an interlocutory appeal involving a juvenile defendant who was 17 when charged. He was later transferred to adult prosecution. The defendant appealed that transfer, on various grounds. He was initially charged by information with conspiring to participate in a racketeering enterprise, based on his alleged involvement with a gang called MS-13. After being transferred for prosecution as an adult, the defendant appealed to the Fourth Circuit, which remanded because the information failed to allege that the offense was a "crime of violence." On remand, the Government filed an amended information, alleging both that the offense was a crime of violence and also providing more detail in the charges. Two weeks later, the district court again transferred the defendant over for prosecution as an adult.
In this, the second appeal of this case, the defendant essentially made three groups of arguments: (1) that the information was constitutionally and/or otherwise insufficient; (2) that the transfer proceeding violated his Constitutional and statutory procedural rights; and (3) that the district court abused its discretion in transferring him for adult prosecution. After determining which specific issues it had jurisdiction to consider, the Fourth Circuit affirmed the actions of the district court. First, it concluded that the severity of the charges in the information demonstrated the "substantial federal interest" in prosecuting a juvenile, even if the information did not explicitly state such. Second, the court concluded that the proceedings did not violate his Sixth Amendment right to confrontation or his Fifth Amendment rights to silence and due process. Finally, the court concluded that the district court did not abuse its discretion by transferring the case for adult prosecution.
In this, the second appeal of this case, the defendant essentially made three groups of arguments: (1) that the information was constitutionally and/or otherwise insufficient; (2) that the transfer proceeding violated his Constitutional and statutory procedural rights; and (3) that the district court abused its discretion in transferring him for adult prosecution. After determining which specific issues it had jurisdiction to consider, the Fourth Circuit affirmed the actions of the district court. First, it concluded that the severity of the charges in the information demonstrated the "substantial federal interest" in prosecuting a juvenile, even if the information did not explicitly state such. Second, the court concluded that the proceedings did not violate his Sixth Amendment right to confrontation or his Fifth Amendment rights to silence and due process. Finally, the court concluded that the district court did not abuse its discretion by transferring the case for adult prosecution.
Tuesday, January 20, 2009
Court Sidesteps Guideline Ex Post Facto Issue
US v. Myers: Myers pleaded guilty to being a felon in possession of a firearm. The firearm at issue was one that had been listed in 18 USC 921(a)(30) as part of the assault weapons ban that lapsed in 2004. Applying the 2006 version of the Sentencing Guidelines (which were in effect at sentencing), the district court enhanced Myers's sentence six levels because the firearm was capable of accepting a large capacity magazine. Myers objected, arguing that the 2005 version of the Guidelines, in effect at the time of the offense, should be used. That version of the Guidelines did not have the large magazine enhancement, but applied a six-level enhancement if the firearm was listed in 921(a)(30). Since that section had lapsed before he committed the offense, Myers argued that the 2005 enhancement was no longer in effect and ex post facto prohibitions applied to prevent his sentence from being enhanced. The district court disagreed.
As did the Fourth Circuit. The court noted that Myers's ex post facto argument only made sense if the lapsing of the assault weapons ban automatically invalidated the 2005 Guideline enhancement provision. But that was not the case, as the Sentencing Commission has the authority to enhance sentences for conduct that is not criminal. Furthermore, the language of the 2005 enhancement only required that a particular weapon be listed in 921(a)(30), not that it be illegal to possess under the assault weapons ban.
In a footnote, the court explained that its resolution of the issue on that ground made it unnecessary to address the Government's argument about the scope of ex post facto protections in a post-Booker world (a topic on which some other courts have split).
As did the Fourth Circuit. The court noted that Myers's ex post facto argument only made sense if the lapsing of the assault weapons ban automatically invalidated the 2005 Guideline enhancement provision. But that was not the case, as the Sentencing Commission has the authority to enhance sentences for conduct that is not criminal. Furthermore, the language of the 2005 enhancement only required that a particular weapon be listed in 921(a)(30), not that it be illegal to possess under the assault weapons ban.
In a footnote, the court explained that its resolution of the issue on that ground made it unnecessary to address the Government's argument about the scope of ex post facto protections in a post-Booker world (a topic on which some other courts have split).
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