US v. Green: Green and his codefendant, Boyd, were tried together and convicted of a drug conspiracy. Boyd, in addition, was convicted of money laundering. The charges arose from a "family-based, years long" conspiracy to bring drugs from South Florida to the Tidewater area of Virginia. The case against Green and Boyd was made largely on the testimony of other members of the conspiracy who had already pleaded guilty.
Boyd and Green both appealed their convictions, which the Fourth Circuit affirmed. Both of them argued that the district court erred by denying their motions for judgments of acquittal. The court disagreed, holding that there was sufficient evidence to support their various convictions. Boyd raised several addition arguments seeking the reversal of his convictions. First, she argued that the district court should have suppressed $54,000 in cash recovered at Boyd's home during his arrest. The court concluded that the money was discovered in plain view during a lawful protective sweep. Second, Boyd argued that the Government violated Batson by striking all teachers from the jury panel as a proxy for excluding women. The court disagreed, holding that it would not extend Batson beyond strikes that are "intentionally invidiously discriminatory" to those merely "having a discriminatory effect." Third, Boyd argued that the district court erred by not giving her proffered "theory of defense" instruction to the jury. The court disagreed, holding that the essential points of that instruction were covered in other parts of the jury charge. Finally, Boyd argued that the prosecution improperly commented on her counsel's behavior during closing argument. The court disagreed.
Judge Gregory dissented from the court's conclusion that the evidence was sufficient to sustain Boyd's money laundering conviction.
Monday, April 12, 2010
Friday, April 02, 2010
Hand-to-Hand Activity Leads to Reasonable Suspicion, Arrest
US v. Johnson: Johnson was observed on a sidewalk in Baltimore in a neighborhood known for drug activity. An officer saw him make "quick hand-to-hand contact with three different men," which the officer interpreted as being drug transactions. The officer then saw Johnson, with two other men in tow, head for a restaurant, which aroused suspicion because "local dealers sometimes conduct their business in legitimate shops in order to elude police cameras." Officers followed Johnson and another man (the third one kept walking up the street) into the restaurant, identified themselves, and asked Johnson to show his hands. Johnson threw a single heroin gelcap of the restaurant counter. "A struggle ensued," after which Johnson was arrested. Reviewing surveillance videos, officers discovered a car in which they suspected Johnson was storing drugs, which they confirmed when they saw more gelcaps in plain view. A search of the car turned up drugs and a firearm. Johnson pleaded guilty to drug and gun charges after unsuccessfully moving to suppress the evidence discovered as a result of his detention and search of his car.
On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court concluded that it was reasonable, based on his experience, for the officer to infer that Johnson's behavior on the sidewalk was related to drug transactions. It rejected Johnson's contention that the officer's experience, regardless of its depth, could transform his outwardly legal behavior into something suspicious. The court also criticized Johnson for disregarding the factual findings of the district court, noting that "[d]istrict courts offer an unbiased forum to test the conclusions of police, and they possess a perspective that appellate forums cannot match." Second, the court held that Johnson was properly seized by an officer in possession of reasonable suspicion when he threw away the gelcap in the restaurant. Third, the court held that the money recovered from Johnson was found during a search incident to a lawful arrest, for which the officers had probable cause once they saw the gelcap. Finally, the court held that there was probable cause to search Johnson's car.
On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court concluded that it was reasonable, based on his experience, for the officer to infer that Johnson's behavior on the sidewalk was related to drug transactions. It rejected Johnson's contention that the officer's experience, regardless of its depth, could transform his outwardly legal behavior into something suspicious. The court also criticized Johnson for disregarding the factual findings of the district court, noting that "[d]istrict courts offer an unbiased forum to test the conclusions of police, and they possess a perspective that appellate forums cannot match." Second, the court held that Johnson was properly seized by an officer in possession of reasonable suspicion when he threw away the gelcap in the restaurant. Third, the court held that the money recovered from Johnson was found during a search incident to a lawful arrest, for which the officers had probable cause once they saw the gelcap. Finally, the court held that there was probable cause to search Johnson's car.
Uninvited Guest Supports Reckless Endangerment Enhancement
US v. Carter: Carter was spotted engaging in what cops suspected was a drug deal. The followed him to a nearby convenience store and tried to apprehend him. Carter slipped their grasp and ran away, tossing aside a baggie of crack along the way. A 911 call alerted officers that Carter had run into a home, to which the officers responded. The person who lived their was waiting for them outside. The officers went inside and found Carter, who was arrested without incident. At sentencing, after a conviction for possession of crack with intent to distribute, the district court enhanced Carter's offense level for reckless endangerment, on the basis of his flight into someone's home.
On appeal, the Fourth Circuit affirmed the enhancement. First, the court concluded that the district court did not clearly err in deciding that the apartment into which Carter fled was occupied when he did so, based on second-hand hearsay testimony from an officer involved in the case, dismissing a brief handwritten statement of the apartment dweller as "illegible." Second, the court concluded that, regardless of whether the apartment was occupied or not, running into someone else's home uninvited creates a "substantial risk of serious bodily injury or death" so as to trigger the enhancement.
On appeal, the Fourth Circuit affirmed the enhancement. First, the court concluded that the district court did not clearly err in deciding that the apartment into which Carter fled was occupied when he did so, based on second-hand hearsay testimony from an officer involved in the case, dismissing a brief handwritten statement of the apartment dweller as "illegible." Second, the court concluded that, regardless of whether the apartment was occupied or not, running into someone else's home uninvited creates a "substantial risk of serious bodily injury or death" so as to trigger the enhancement.
Wednesday, March 31, 2010
Contempt Conviction For Tardiness Reversed
In re: Gates: Gates, a defense attorney, was late for a very important date - his client's guilty plea hearing. The hearing had been moved up a day on the calendar, leading to some confusion on Gates's part as to when it was supposed to take place. When Gates arrived at the hearing 15 minutes late, the district court did not accept his explanation and, referencing "your appearance on other occasions," found Gates in contempt and ordered him to pay a fine of $250.
Gates appealed on two grounds, both of which the Fourth Circuit accepted in reversing his contempt conviction. First, Gates argued that his contemptuous behavior (if it was so) took place outside of court and was thus indirect contempt, rather than direct. As a result, the district court could not summarily find him in contempt without notice and an opportunity to defend himself. The Fourth Circuit agreed, applying plain error, noting that absence from court was not the contemptuous behavior at issue, but rather the reason for the absence was key. Because that behavior does not occur in court, it is only indirect. Second, Gates argued that the court should not merely remand for further proceedings, as the record was bereft of any evidence of criminal intent to be contemptuous. The Fourth Circuit agreed and reversed his conviction.
Gates appealed on two grounds, both of which the Fourth Circuit accepted in reversing his contempt conviction. First, Gates argued that his contemptuous behavior (if it was so) took place outside of court and was thus indirect contempt, rather than direct. As a result, the district court could not summarily find him in contempt without notice and an opportunity to defend himself. The Fourth Circuit agreed, applying plain error, noting that absence from court was not the contemptuous behavior at issue, but rather the reason for the absence was key. Because that behavior does not occur in court, it is only indirect. Second, Gates argued that the court should not merely remand for further proceedings, as the record was bereft of any evidence of criminal intent to be contemptuous. The Fourth Circuit agreed and reversed his conviction.
Generalized Findings Not Enough to Support Enhancements, Restitution
US v. Llamas: Llamas was involved in a telephone "sweepstakes" scam run out of Costa Rica. Initially recruited into the operation to serve as one of the telemarketers contacting "winners," he eventually became a "room boss" and "office manager" at the call center in Costa Rica. Shortly before the whole operation came unravelled (a caller called a "judicial officer" - oops!), Llamas left the operation. Llamas pled guilty, without a plea agreement, to 63 charges stemming from the scheme, including conspiracy, mail fraud, and money laundering. He was sentenced to 132 months in prison and ordered to pay restitution of more than $4 million.
On appeal, Llamas challenged both the calculation of his advisory Guideline range and his order of restitution. His first Guideline argument was that the district court erred by increasing his offense level because of the vulnerable nature of the victims of the scheme. The Fourth Circuit agreed, holding that the district court made only generalized findings that Llamas should have known about the particular characteristics of two victims who testified at sentencing. Those general findings were not sufficient to support the enhancement. Llamas's second Guideline argument was that he was not a manager or supervisor of the scheme and should not have received an enhancement as such. The Fourth Circuit disagreed, holding that the evidence supported that he had a supervisory role. As to restitution, Llamas argued that the district court erred by holding him jointly and severably liable for all of the scheme's $4-plus million dollar loss. The Fourth Circuit agreed, noting that the district court included losses not just from the call center where Llamas worked, but all other similar centers in Costa Rica. Llamas's sentence was thus vacated and his case remanded for further proceedings.
Congrats to the FPD office in Western NC on the win!
On appeal, Llamas challenged both the calculation of his advisory Guideline range and his order of restitution. His first Guideline argument was that the district court erred by increasing his offense level because of the vulnerable nature of the victims of the scheme. The Fourth Circuit agreed, holding that the district court made only generalized findings that Llamas should have known about the particular characteristics of two victims who testified at sentencing. Those general findings were not sufficient to support the enhancement. Llamas's second Guideline argument was that he was not a manager or supervisor of the scheme and should not have received an enhancement as such. The Fourth Circuit disagreed, holding that the evidence supported that he had a supervisory role. As to restitution, Llamas argued that the district court erred by holding him jointly and severably liable for all of the scheme's $4-plus million dollar loss. The Fourth Circuit agreed, noting that the district court included losses not just from the call center where Llamas worked, but all other similar centers in Costa Rica. Llamas's sentence was thus vacated and his case remanded for further proceedings.
Congrats to the FPD office in Western NC on the win!
Court OK's Death Penalty With Non-Violent Priors
US v. Caro: Caro was convicted of drug offenses and given a 30 year sentence. In prison he became a leader in the Texas Syndicate. After being transferred to USP Lee, he was involved with the murder of another inmate and fellow Syndicate member, for which Caro pleaded guilty to conspiracy to commit homicide, received an addition 27-year sentence, and was transferred to SHU. Weeks later, Caro strangled his cell mate in SHU, not for any reason relating to the Syndicate, but because his cell mate "called me mother fucker, that whore, that's why I fucked him up." Caro was charged with first-degree murder and the Government filed a notice that it would seek the death penalty. Caro was convicted and sentenced to death.
Caro raised several objections to his conviction and sentence on appeal, all of which the Fourth Circuit rejected. First, Caro argued that voir dire was flawed because the district court, in finding "death qualified" jurors, did not adequately explain the offense at issue in the trial or that information of Caro's background could be considered as mitigating evidence. Second, Caro argued that the district court erred, both under Brady and the Rules of Criminal Procedure, in denying his request for BoP records relating to its ability to sufficiently handle Caro in the ADMAX facility at Florence, as relevant to the question of future dangerousness. Third, Caro challenged the constitutionality of the two factors - related to his prior drug convictions - that made him eligible for the death penalty because they were not "rationally related to the question of who should live or die." Fourth, Caro argued that the Government's argument during closing that only a death sentence could "control" him, based on his past history, was improper (which the Fourth called "troubling" but not the cause of such prejudice to warrant reversal). Fifth, Caro argued that the Government's reference to his not showing any remorse was an improper comment on his exercise of his Fifth Amendment right to remain silent. Sixth, Caro argued that the district court erred by refusing to give his proposed jury instruction on mercy. Seventh, Caro argued that the district court erred by admitting evidence relating to the victim and Caro's offer to plead guilty. Finally, Caro argued that there was cumulative error.
Judge Gregory dissented, arguing that the prior convictions which made Caro eligible for a death sentence "distinguished] those who live from those who die in a wholly arbitrary and capricious way." In affirming Caro's sentence, the majority had approved of the imposition of death upon someone who had "only been convicted of relatively minor, nonviolent drug offenses."
Caro raised several objections to his conviction and sentence on appeal, all of which the Fourth Circuit rejected. First, Caro argued that voir dire was flawed because the district court, in finding "death qualified" jurors, did not adequately explain the offense at issue in the trial or that information of Caro's background could be considered as mitigating evidence. Second, Caro argued that the district court erred, both under Brady and the Rules of Criminal Procedure, in denying his request for BoP records relating to its ability to sufficiently handle Caro in the ADMAX facility at Florence, as relevant to the question of future dangerousness. Third, Caro challenged the constitutionality of the two factors - related to his prior drug convictions - that made him eligible for the death penalty because they were not "rationally related to the question of who should live or die." Fourth, Caro argued that the Government's argument during closing that only a death sentence could "control" him, based on his past history, was improper (which the Fourth called "troubling" but not the cause of such prejudice to warrant reversal). Fifth, Caro argued that the Government's reference to his not showing any remorse was an improper comment on his exercise of his Fifth Amendment right to remain silent. Sixth, Caro argued that the district court erred by refusing to give his proposed jury instruction on mercy. Seventh, Caro argued that the district court erred by admitting evidence relating to the victim and Caro's offer to plead guilty. Finally, Caro argued that there was cumulative error.
Judge Gregory dissented, arguing that the prior convictions which made Caro eligible for a death sentence "distinguished] those who live from those who die in a wholly arbitrary and capricious way." In affirming Caro's sentence, the majority had approved of the imposition of death upon someone who had "only been convicted of relatively minor, nonviolent drug offenses."
Penalty at Time of Sentence Controls for ACCA
US v. McNeill: McNeill was convicted of being a felony in possession of a firearm and possession of crack with intent to distribute. As sentencing he was deemed an armed career criminal and given a sentence of 300 months in prison. On appeal, he argued that his prior North Carolina drug convictions were not "serious drug offense" as defined by the ACCA because the current statutory maximum penalty for those offenses was ten years in prison. At the time the sentences were imposed, the statutory maximum was 25 years. The Fourth Circuit concluded, based on the specific language of the North Carolina statutes at issue, that the "statutory maximum" that controlled for ACCA purposes was the one in effect at the time of the original sentence, not the current federal offense. In that case, the priors at issue, with maximum sentences of 25 years, qualified as serious drug offenses under the ACCA.
Monday, March 08, 2010
Court Clarifies Review of Sentences for Improper Guideline Influence
US v. Mendoza-Mendoza: Mendoza-Mendoza was convicted of illegal reentry (he had previously been deported to his native land of Mexico). At sentencing, he argued for a sentence below the advisory Guideline range. The district court concluded that it was "obligated" to impose a sentence within the Guideline range unless "a reason for a departure from those Guidelines, or a variance based on 18 USC 3553" was present. It then sentenced Mendoza-Mendoza to 46 months in prison, the Guideline minimum. In doing so, the district court rejected the Government's argument that Mendoza-Mendoza was a danger to others, but concluded that "I cannot see any reason for a variance."
Mendoza-Mendoza appealed, arguing that his sentence was procedurally unreasonable. The Fourth Circuit agreed and vacated his sentence, remanding the case for further proceedings. At issue was whether the district court utilized what the court called the "Rita presumption" - i.e., that the Guideline range was presumptively reasonable. In reviewing the record, the court warned against "[a]ppellate flyspecking for Rita presumptions." Nonetheless, in this case Mendoza-Mendoza's reading of the district court's reasoning - that it was bound by the Guidelines - was at least as plausible as the contrary reading. Thus, vacation was required. Judge Davis concurred in the result, but wrote (and quoted at length from the transcript) to explain why it was not clear to him that procedural error had occurred.
Congrats to the FPD office in the EDNC on the win!
Mendoza-Mendoza appealed, arguing that his sentence was procedurally unreasonable. The Fourth Circuit agreed and vacated his sentence, remanding the case for further proceedings. At issue was whether the district court utilized what the court called the "Rita presumption" - i.e., that the Guideline range was presumptively reasonable. In reviewing the record, the court warned against "[a]ppellate flyspecking for Rita presumptions." Nonetheless, in this case Mendoza-Mendoza's reading of the district court's reasoning - that it was bound by the Guidelines - was at least as plausible as the contrary reading. Thus, vacation was required. Judge Davis concurred in the result, but wrote (and quoted at length from the transcript) to explain why it was not clear to him that procedural error had occurred.
Congrats to the FPD office in the EDNC on the win!
Blue Lights. Again.
US v. Rivers: It's another blue light special in the Fourth Circuit. South Carolina has a felony offense of "failure to stop for a blue light" (i.e., not pulling over when the cops signal). In a case decided pre-Begay, the Fourth concluded that convictions for failure to stop for a blue light were "violent felon[ies]" under the Armed Career Criminal Act. In Roseboro, decided in the wake of Begay, the court concluded that convictions for failure to stop for a blue light would only be a violent felony in limited circumstances.
In this case, decided in the wake of the Supreme Court's decision in Chambers, the court finally resolved that "under no circumstances is a violation of South Carolina's blue light statute a violent felony under the ACCA." Specifically, the court held that the South Carolina statute applied to only one type of behavior and was thus not subject to the "modified" categorical approach as it did earlier in Roseboro.
Congrats to the FPD office in South Carolina on the win!
In this case, decided in the wake of the Supreme Court's decision in Chambers, the court finally resolved that "under no circumstances is a violation of South Carolina's blue light statute a violent felony under the ACCA." Specifically, the court held that the South Carolina statute applied to only one type of behavior and was thus not subject to the "modified" categorical approach as it did earlier in Roseboro.
Congrats to the FPD office in South Carolina on the win!
Court Affirms Conviction, 30-year Sentence
US v. Rooks: Rooks was a passenger in a car driven by his brother. They were pulled over because of a cracked windshield. During the stop, the officer detected the aroma of marijuana coming from the car, as well as noticed a cigarette but and plastic bag on the center console. After getting permission from the driver to search that part of the car, the officer confirmed that the cigarette contained marijuana and the bag had marijuana residue. After another officer arrived for backup, the driver was ordered out of the car and detained. When the officer tried to do the same with Rooks, Rooks fled. During the flight, Rooks threw away a plastic bag containing crack cocaine, which the officer recovered. Rooks was apprehended and made some incriminating statements to the officer. Rooks was charged with possession with intent to distribute crack. He unsuccessfully moved to suppress both the drugs and his statements. He also unsuccessfully sought to keep the Government from introducing three prior drug convictions at trial. Rooks was convicted and sentenced to 360 months in prison as a career offender.
On appeal, Rooks raised issues related to both his conviction and sentence, all of which the Fourth Circuit rejected. First, the court rejected Rooks's argument that the seizure of the drugs he threw away during flight violated the Fourth Amendment because the officer who ordered Rooks out of the car to perform a pat down search had reasonable suspicion to believe he was armed and dangerous. Second, the court rejected Rooks's argument that the Government should not have been able to present evidence of his prior convictions, holding that the evidence was relevant to Rooks's "familiarity with the drug distribution business" and therefore his intent to distribute the drugs. Finally, the court rejected Rooks's argument that his prior federal convictions and a state conviction based on the same conduct were part of a "single common scheme or plan" for purposes of determining whether he was a career offender.
On appeal, Rooks raised issues related to both his conviction and sentence, all of which the Fourth Circuit rejected. First, the court rejected Rooks's argument that the seizure of the drugs he threw away during flight violated the Fourth Amendment because the officer who ordered Rooks out of the car to perform a pat down search had reasonable suspicion to believe he was armed and dangerous. Second, the court rejected Rooks's argument that the Government should not have been able to present evidence of his prior convictions, holding that the evidence was relevant to Rooks's "familiarity with the drug distribution business" and therefore his intent to distribute the drugs. Finally, the court rejected Rooks's argument that his prior federal convictions and a state conviction based on the same conduct were part of a "single common scheme or plan" for purposes of determining whether he was a career offender.
Wednesday, February 24, 2010
Court Vacates SR Sentence for Procedural Unreasonableness
US v. Thompson: This appeal arises from a supervised release revocation. While Thompson was on supervision, a petition was filed seeking revocation based on two counts of battery on/obstruction of a police officer and possession of methamphetamine. At the revocation hearing, Thompson conceded that the Government could prove the violations by a preponderance of the evidence. The agreed to advisory Guideline range was 12 to 18 months. Thompson argued for a sentence of six months, followed by more supervised release, based on his history of employment, family obligations, and that these were his first violations while on supervised release. The Government pointed out that the incident underlying the petition involved two police officers and happened at 2:00 in the morning, but did not request a specific sentence. The district court imposed a sentence of 18 months, without explanation. Only when the issue of self reporting arose did the district court explain that while Thompson was not a flight right, he was a danger to the community.
Thompson appealed his sentence, arguing that the district court failed to adequately explain its reasons for imposing the 18-month sentence. The Fourth Circuit agreed, 2-1, and vacated the sentence. First, the court held that, in light of its recent decision in Lynn, Thompson had preserved the issue for appeal and a plainly unreasonable standard of review applied. Second, the court went on to conclude that the sentence was procedurally unreasonable because the district court, while required to make a statement of reasons for the sentence imposed, "provided no such statement here." It rejected the Government's argument that the reasoning behind the sentence was apparent from the context of the case. Third, the court concluded that the sentence was "plainly" unreasonable because the requirement that a district court provide an explanation for its sentence is "settled." Finally, the court noted that the err was not harmless and that the Government did not argue otherwise.
Judge Niemeyer dissented, arguing that the court did not afford the proper deference to the district court and that the basis for the sentence was clear from the context of the case.
Congrats to the SDWV Defender office on the win!
Thompson appealed his sentence, arguing that the district court failed to adequately explain its reasons for imposing the 18-month sentence. The Fourth Circuit agreed, 2-1, and vacated the sentence. First, the court held that, in light of its recent decision in Lynn, Thompson had preserved the issue for appeal and a plainly unreasonable standard of review applied. Second, the court went on to conclude that the sentence was procedurally unreasonable because the district court, while required to make a statement of reasons for the sentence imposed, "provided no such statement here." It rejected the Government's argument that the reasoning behind the sentence was apparent from the context of the case. Third, the court concluded that the sentence was "plainly" unreasonable because the requirement that a district court provide an explanation for its sentence is "settled." Finally, the court noted that the err was not harmless and that the Government did not argue otherwise.
Judge Niemeyer dissented, arguing that the court did not afford the proper deference to the district court and that the basis for the sentence was clear from the context of the case.
Congrats to the SDWV Defender office on the win!
Thursday, February 18, 2010
Initial Career Offender Designation Does Not Always Preclude Future Reduction of Sentence
US v. Munn: In 2001, Munn was convicted of distributing more than 50 grams of crack cocaine. Although the Guidelines classified him as a career offender, the district court concluded that designation overstated Munn's criminal history and departed downwards due to that fact (Munn received an additional downward departure for substantial assistance). When the revised crack Guidelines were made retroactive, Munn filed for a reduction in his sentence under 18 USC 3582(c)(2). The district court denied the motion, concluding that because Munn was a career offender the amendments to the crack Guidelines did not change his sentencing range and he therefore was not eligible for a reduced sentence.
A divided Fourth Circuit reversed the district court on appeal. Although defendants sentenced as career offenders are not eligible for a reduction, the circumstances of this case did not fall under the prescription. Noting a split in the circuits on this issue, the court concluded that defendants designated as career offenders are still eligible for a reduced sentence when (1) the district court departs because that status overrepresents the defendant's criminal history, and (2) the extent of the departure is tied to the crack-based Guideline calculations applicable without the career offender enhancement. In doing so, the court rejected the Government's attempt to define what happened to Munn in 2001 based on Guideline definitions of "departures" that were amended afterwards. Judge Duncan dissented, arguing that the applicable "sentencing range" which must change for a defendant to be eligible for a reduced sentence is the one calculated prior to any departure, i.e., the career offender based range.
A divided Fourth Circuit reversed the district court on appeal. Although defendants sentenced as career offenders are not eligible for a reduction, the circumstances of this case did not fall under the prescription. Noting a split in the circuits on this issue, the court concluded that defendants designated as career offenders are still eligible for a reduced sentence when (1) the district court departs because that status overrepresents the defendant's criminal history, and (2) the extent of the departure is tied to the crack-based Guideline calculations applicable without the career offender enhancement. In doing so, the court rejected the Government's attempt to define what happened to Munn in 2001 based on Guideline definitions of "departures" that were amended afterwards. Judge Duncan dissented, arguing that the applicable "sentencing range" which must change for a defendant to be eligible for a reduced sentence is the one calculated prior to any departure, i.e., the career offender based range.
Defendant Eligible for Reduced Sentence After Prior Rule 35 Reduction
US v. Stewart: Stewart was convicted back in 2002 of conspiracy to distribute crack cocaine and sentenced to 235 months in prison. A Rule 35 motion filed afterward reduced his sentence to 187 months. When the revised crack Guidelines were made retroactive, Stewart filed for a reduction in his sentence under 18 USC 3582(c)(2). The new Guidelines reduced his sentencing range to 188 to 235 months. The district court declined to reduce Stewarts sentence any further because the 187-month sentence "remains appropriate."
Stewart appealed and the Fourth Circuit reversed the district court. Interpreting USSG 1B1.10, which applies to such proceedings, the court held that the "original sentence" to which it refers is the sentence being served at the time the defendant seeks a reduction, not necessarily the first sentence imposed. Thus, Stewart's 187-month sentence was the "original" sentence and he was eligible for a further reduction from that sentence (although the district court was not required to grant it). The court did not reach the issue of whether Stewart was entitled to a reduction, but returned the case to the district court.
Stewart appealed and the Fourth Circuit reversed the district court. Interpreting USSG 1B1.10, which applies to such proceedings, the court held that the "original sentence" to which it refers is the sentence being served at the time the defendant seeks a reduction, not necessarily the first sentence imposed. Thus, Stewart's 187-month sentence was the "original" sentence and he was eligible for a further reduction from that sentence (although the district court was not required to grant it). The court did not reach the issue of whether Stewart was entitled to a reduction, but returned the case to the district court.
Unrequested Variance to Probation Vacated
US v. Morace: Morace pleaded guilty to one count of possessing child pornography, after an investigation showed that he was sharing child porn files across an Internet peer-to-peer network. The parties agreed that the advisory Guideline range was 41 to 51 months and, at sentencing, further agreed that a sentence of 41 months in prison was appropriate. Without explanation, the district court continued the hearing. When the hearing resumed two months later, the district court varied from the Guidelines and imposed a sentence of five years probation. The Government objected and appealed.
On appeal, the Fourth Circuit vacated Morace's sentence. Although the Government conceded that some variance might be warranted in this case, and that a variance to probation could be appropriate in some child porn cases, it nonetheless argued that the variance in this case was too great. Morace, the court concluded, was a "mine-run" defendant, as demonstrated by his agreement that a 41-month sentence was appropriate and the district court's "commonplace reasons" for imposing a sentence of probation. Without request, the district court had "imposed the most extreme downward variance possible." Thus, the court vacated Morace's sentence and remanded for further proceedings, without concluding that a new sentence of probation would necessarily be unreasonable.
On appeal, the Fourth Circuit vacated Morace's sentence. Although the Government conceded that some variance might be warranted in this case, and that a variance to probation could be appropriate in some child porn cases, it nonetheless argued that the variance in this case was too great. Morace, the court concluded, was a "mine-run" defendant, as demonstrated by his agreement that a 41-month sentence was appropriate and the district court's "commonplace reasons" for imposing a sentence of probation. Without request, the district court had "imposed the most extreme downward variance possible." Thus, the court vacated Morace's sentence and remanded for further proceedings, without concluding that a new sentence of probation would necessarily be unreasonable.
Conviction Affirmed, Sentence Vacated, In Crack Possession Case
US v. Herder: Herder was confronted in a parking lot by an officer who had followed his vehicle from a "park and ride" commuter lot known for drug activity. Herder's driving was suspicious because it was "overcautious" - "keeping under the speed limit and signalling well in advance of turns." Herder consented to a search of his car, which uncovered 21 bags of crack cocaine and some marijuana in false bottom containers. Herder was in possession of more than $1000 in cash. He was charged with possession of marijuana and more than five grams of crack, both with intent to distribute. He was convicted on both counts, although the jury found only 3.8 grams of crack were involved, at trial and sentenced to 41 months prison and the forfeiture of the cash in his possession at the time of his arrest.
On appeal, Herder challenged his convictions, sentence, and order of forfeiture. The Fourth Circuit affirmed his convictions and order of forfeiture, while vacating the sentence. As to the convictions, Herder made two arguments. First, he argued that the evidence was not sufficient to establish that he knowingly possessed the drugs found in his car. At trial, Herder presented testimony from his fiance that the car was used to make deliveries for their T-shirt business and, as a result, collects a lot of "junk" and that he had made such a delivery shortly before the search. The court rejected that argument, calling the evidence "more than ample" to sustain the convictions. Second, Herder argued that the district court erred by failing to give his requested instruction with regards to possession, particularly that the presence of drugs in a car driven by the defendant was not alone sufficient to establish possession. The court concluded that the district court's charge to the jury "substantially covered" Herder's request.
As to his sentence, Herder argued it was procedurally unreasonable because the district court did not understand its ability to vary from the Guidelines at sentencing. The court agreed that the district court held that mistaken belief and, further, had imposed sentence before Herder had a chance to argue the matter. Finally, as to the forfeiture, the court formally adopted the "substantial connection" standard test to determine whether property is subject to forfeiture and concluded that the evidence was sufficient to demonstrate that connection in this case.
Judge Niemeyer dissented on the sentencing issue, arguing that the record did not show that the district court failed to consider or did not know it had the authority to deviate from the Guideline range.
Congrats to the EDVA Defender office on the win!
On appeal, Herder challenged his convictions, sentence, and order of forfeiture. The Fourth Circuit affirmed his convictions and order of forfeiture, while vacating the sentence. As to the convictions, Herder made two arguments. First, he argued that the evidence was not sufficient to establish that he knowingly possessed the drugs found in his car. At trial, Herder presented testimony from his fiance that the car was used to make deliveries for their T-shirt business and, as a result, collects a lot of "junk" and that he had made such a delivery shortly before the search. The court rejected that argument, calling the evidence "more than ample" to sustain the convictions. Second, Herder argued that the district court erred by failing to give his requested instruction with regards to possession, particularly that the presence of drugs in a car driven by the defendant was not alone sufficient to establish possession. The court concluded that the district court's charge to the jury "substantially covered" Herder's request.
As to his sentence, Herder argued it was procedurally unreasonable because the district court did not understand its ability to vary from the Guidelines at sentencing. The court agreed that the district court held that mistaken belief and, further, had imposed sentence before Herder had a chance to argue the matter. Finally, as to the forfeiture, the court formally adopted the "substantial connection" standard test to determine whether property is subject to forfeiture and concluded that the evidence was sufficient to demonstrate that connection in this case.
Judge Niemeyer dissented on the sentencing issue, arguing that the record did not show that the district court failed to consider or did not know it had the authority to deviate from the Guideline range.
Congrats to the EDVA Defender office on the win!
Court Affirms Loss Calculations Based on Sampled Data
US v. Mehta: Mehta was a tax preparer in Maryland who would prepare tax returns for clients that contained phantom deductions beyond those which the clients related to him. He would then submit the returns electronically to the IRS and, via BankOne, participate in a program whereby the bank cut a check for the taxpayer, with the bank later taking possession of the actual refund from the IRS. Mehta was convicted at trial of multiple counts of aiding and abetting the preparation of false tax returns and wire fraud. He was sentenced to 48 months in prison.
On appeal, Mehta challenged both his wire fraud convictions and his sentence. The Fourth Circuit affirmed on all counts. First, Mehta argued that the district court should have granted his motion for acquittal as to the wire fraud counts both because the evidence was insufficient to support convictions and that there was a variance between the indictment and the proof at trial. After reviewing the evidence, the court concluded that it was sufficient to sustain the convictions. As for the variance, the court concluded that the discrepancy as to which particular states the defrauded wires travelled through was not prejudicial to Mehta.
The court was more divided, in reasoning but not outcome, with regards to the proper calculation of Mehta's advisory Guideline range. At sentencing, the district court based Mehta's tax loss amount (which drove the Guideline range) on an IRS audit of only a portion of the total number of returns at issue. Specifically, the loss was based on the amount of additional tax owed that the taxpayers involved agreed to pay to the IRS. First, Mehta argued that district court should not have relied on those agreements by taxpayers to determine the amount of loss. The court concluded that those agreements were sufficient evidence to use in the loss calculation. Second, Mehta argued that the district court erred by taking the average tax liability from the IRS sample and multiplying it by the total number of fraudulent returns in order to determine loss. The court agreed, but found the error to be harmless, as the record still supported a loss amount sufficient to trigger the same advisory Guideline range. Judge Shedd concurred as to the result, but argued that there was no error.
On appeal, Mehta challenged both his wire fraud convictions and his sentence. The Fourth Circuit affirmed on all counts. First, Mehta argued that the district court should have granted his motion for acquittal as to the wire fraud counts both because the evidence was insufficient to support convictions and that there was a variance between the indictment and the proof at trial. After reviewing the evidence, the court concluded that it was sufficient to sustain the convictions. As for the variance, the court concluded that the discrepancy as to which particular states the defrauded wires travelled through was not prejudicial to Mehta.
The court was more divided, in reasoning but not outcome, with regards to the proper calculation of Mehta's advisory Guideline range. At sentencing, the district court based Mehta's tax loss amount (which drove the Guideline range) on an IRS audit of only a portion of the total number of returns at issue. Specifically, the loss was based on the amount of additional tax owed that the taxpayers involved agreed to pay to the IRS. First, Mehta argued that district court should not have relied on those agreements by taxpayers to determine the amount of loss. The court concluded that those agreements were sufficient evidence to use in the loss calculation. Second, Mehta argued that the district court erred by taking the average tax liability from the IRS sample and multiplying it by the total number of fraudulent returns in order to determine loss. The court agreed, but found the error to be harmless, as the record still supported a loss amount sufficient to trigger the same advisory Guideline range. Judge Shedd concurred as to the result, but argued that there was no error.
Juvenile Priors Without Jury Right Can Trigger ACCA
US v. Wright: Wright got involved in a fight at a nightclub in South Carolina, which led the crowd inside to pour out into the parking lot. Wright grabbed an AK-47 from a car and "sprayed 22 rounds" into the parking lot, wounding one person and killing another (who was asleep in his car at the time). Wright was convicted of being a felon in possession of a firearm, determined to be an Armed Career Criminal, and sentenced to life in prison.
On appeal, Wright raised several challenges to his sentence, all of which the Fourth Circuit rejected. First, Wright argued that prior juvenile convictions that were used to trigger the ACCA enhancement violated Apprendi because the juvenile proceedings did not involve the right to a jury trial. Because a jury trial is not Constitutionally required in juvenile proceedings, there was no error in using the results of those proceedings to increase a later sentence. Second, Wright argued that his prior juvenile convictions, in which he committed burglaries during which he stole firearms, did not involve "the use or carrying of a firearm" - as required to be ACCA predicates - because the act of burglary was complete before he possessed the firearms. The court disagreed, concluding that such burglaries "involve" the firearms. Finally, Wright argued that district court erred by applying the cross-reference to the first degree murder Guideline. The court concluded that Wright acted "willfully, deliberately, maliciously, and with premeditation" and thus the cross-reference applied. Judge Gregory dissented on the last point, arguing that there was no evidence that Wright "had a premeditated design to effect the death of any person."
On appeal, Wright raised several challenges to his sentence, all of which the Fourth Circuit rejected. First, Wright argued that prior juvenile convictions that were used to trigger the ACCA enhancement violated Apprendi because the juvenile proceedings did not involve the right to a jury trial. Because a jury trial is not Constitutionally required in juvenile proceedings, there was no error in using the results of those proceedings to increase a later sentence. Second, Wright argued that his prior juvenile convictions, in which he committed burglaries during which he stole firearms, did not involve "the use or carrying of a firearm" - as required to be ACCA predicates - because the act of burglary was complete before he possessed the firearms. The court disagreed, concluding that such burglaries "involve" the firearms. Finally, Wright argued that district court erred by applying the cross-reference to the first degree murder Guideline. The court concluded that Wright acted "willfully, deliberately, maliciously, and with premeditation" and thus the cross-reference applied. Judge Gregory dissented on the last point, arguing that there was no evidence that Wright "had a premeditated design to effect the death of any person."
Court Sets Standard for Preservation of Procedural Sentencing Error
US v. Lynn: This is actually three apparently unrelated sentencing appeals (one involves codefendants, however) collected in one place to resolve one issue - the proper standard of review when a party argues on appeal that the district court committed procedural error in selecting the sentence it imposed. The Fourth Circuit concluded that the correct standard is abuse of discretion (aka "reasonableness"), followed by an examination of harmless error if the district court did abuse its discretion. That is if the party arguing on appeal properly preserved the issue in the first place, else they are stuck with plain error review. Reviewing FRCrPr 52, the court concluded that the appealing party does not have to make a post-imposition objection in order to preserve the issue on appeal. All that is needed is for the party to seek a particular ruling from the district court (i.e., a particular sentence based on the 3553(a) factors) and have the court rejected that plea. As for the individual cases:
- US v. Peake: Peake, the court concluded, did not adequately preserve the issue and was subject to plain error review. After the district court calculated the Guideline range, Peake's counsel did not argue for a specific sentence and admitted that the PSR fairly set out the circumstances of Peake's offense (felon in possession) and background. The district court imposed a sentence at the bottom of the Guideline range. There was no error, or at least none that affected Peake's substantial rights. Sentence affirmed.
- US v. Tucker: The main issue at Tucker's sentencing (also a felon in possession - shot himself in the leg) was the district court's desire to depart upward to the statutory maximum because the Guidelines underrepresented Tucker's criminal history (the district court had sustained Tucker's objection to being classified as a career offender). Tucker argued against the departure, noting the three-year gap between the incident and the federal charge, during which time he had done nothing to get himself into trouble. The district court, without addressing that argument, departed and imposed a sentence of 101 months. The Fourth Circuit concluded that Tucker had preserved the procedural reasonableness issue for appeal, found that the district court abused its discretion, and could not conclude that the error was harmless. Sentence vacated.
- US v. Lynn: Lynn and his codefendant, Rhodes, were convicted of conspiracy to distribute and possession to distribute more than 100 grams of heroin. At sentencing, Lynn was classified as a career offender. He argued for a downward variance, on grounds that he was "at the very margins of career offender status." Without addressing his claims, the district court imposed a within the Guideline sentence. The Fourth Circuit concluded that Lynn properly preserved the procedural reasonableness issue, that the district court abused its discretion, and that the Government could not show that the error was harmless. Rhodes, apparently, did not challenge his sentence (both challenged the denial of motions to suppress, those arguments being rejected by the court in a footnote).
Monday, February 08, 2010
Court Declines to Find Exception to Auto Exception
US v. Kelly: Kelly was the subject of an investigation into drug dealing in the Hampton Roads, Virginia, area. Officers obtained a warrant to search Kelly's home, although not any vehicles that were there. When police executed the search warrant, a green Lexus that was known to be Kelly's was one of three vehicles outside the house. When Kelly was told that a drug dog was on its way, he acknowledge that there were drugs in one or more of the vehicles, but did not specify which ones. The drug dog alerted at the Lexus's driver's door, but a search of the passenger compartment revealed nothing. Officers then searched the trunk, in which they found cocaine and ecstasy. Kelly sought to suppress that evidence, but the district court concluded that there was probable cause to believe there were drugs in the Lexus, including in the trunk, and that no warrant was required under the automobile exception. Kelly was convicted by a jury of conspiracy and substantive drug charges.
On appeal, Kelly advanced three arguments to overturn his convictions, all of which the Fourth Circuit rejected. First, the court concluded that the district court properly denied Kelly's motion to suppress. The automobile exception to the warrant requirement applied, even though the Lexus was under police control and there was no danger of evidence being removed from it prior to a search. Furthermore, there was probable cause to search the entirety of the car. Second, the court rejected Kelly's arguments that the prosecutor had engaged in misconduct by referring to two earlier arrests during trial but offering evidence only relating to one of them and, thus, coerced Kelly to testify on his own behalf. Finally, the court affirmed that the evidence was sufficient to sustain Kelly's convictions.
On appeal, Kelly advanced three arguments to overturn his convictions, all of which the Fourth Circuit rejected. First, the court concluded that the district court properly denied Kelly's motion to suppress. The automobile exception to the warrant requirement applied, even though the Lexus was under police control and there was no danger of evidence being removed from it prior to a search. Furthermore, there was probable cause to search the entirety of the car. Second, the court rejected Kelly's arguments that the prosecutor had engaged in misconduct by referring to two earlier arrests during trial but offering evidence only relating to one of them and, thus, coerced Kelly to testify on his own behalf. Finally, the court affirmed that the evidence was sufficient to sustain Kelly's convictions.
Decision to Agree to Mistrial Is Counsel's to Make, Not Defendant's
US v. Chapman: In this 2255 action, Chapman challenged the effectiveness of his counsel at trial. In particular, Chapman argued that when the Government went beyond the scope of certain evidentiary rulings with relation to FRE 404(b) evidence, his counsel was ineffective for moving only for a mistrial with prejudice, which the district court denied. The district court "offered" to grant a mistrial without prejudice, but trial counsel declined the invitation. Chapman argued, unsuccessfully before the district court, that counsel's failure to accept the offer when Chapman told him to do so was ineffective assistance.
On appeal, the Fourth Circuit affirmed the district court's conclusion that Chapman's counsel was not ineffective. The court agreed with the Government that decisions about whether to seek a mistrial, and on what grounds, are tactical decisions that belong to counsel, not the defendant.
Judge Michael concurred in the judgment, but wrote separately and argued that the court should have resolved the appeal on the narrow facts of the case, rather than announcing a broader rule of general application.
On appeal, the Fourth Circuit affirmed the district court's conclusion that Chapman's counsel was not ineffective. The court agreed with the Government that decisions about whether to seek a mistrial, and on what grounds, are tactical decisions that belong to counsel, not the defendant.
Judge Michael concurred in the judgment, but wrote separately and argued that the court should have resolved the appeal on the narrow facts of the case, rather than announcing a broader rule of general application.
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