US v. Simmons: Simmons pleaded guilty to three drug charges after the Government filed an information under 21 USC 851 to enhance his sentence based on a prior conviction. The prior at issue is a 1996 North Carolina conviction for possession with intent. Under North Carolina law, which ties statutory sentencing maximums to criminal history, Simmons could not have been sentenced to a term of more than 12 months in prison for that offense, as needed to trigger the 851 provisions. However, someone with the worst possible criminal history could have received such a sentence. Under Fourth Circuit law at the time of his sentencing, the conviction therefore triggered the provisions of 851.
After Simmons's sentence was affirmed on appeal, the Supreme Court GVR'd in light of Carachuri-Rosendo v. Holder. On remand, the Fourth Circuit held that Carachuri-Rosendo did not undermine the earlier circuit precedent and again affirmed the sentence. Specifically, the court rejected Simmons's argument that Carachuri-Rosendo required the court to abandon its "hypothetic defendant" analysis when examining prior convictions. The court held that the difference in statutory language between the immigration laws at issue in Carachuri-Rosendo and 851 showed the rule of Carachuri-Rosendo could not be imported into the 851 context. Carachuri-Rosendo was simply "inapplicable to our present inquiry." The court also rejected Simmons's argument with regards to whether his prior conviction was obtained in violation of his right to counsel.
UPDATE: See here, reversed en banc.
Wednesday, February 23, 2011
Harmless Error Analysis for Guideline Miscalculation
US v. Savillon-Matute: Savillon-Matute pleaded guilty to illegal reentry. Prior to sentencing, the probation officer recommended an 8-level enhancement because Savillon-Matute's prior Maryland conviction for second-degree assault was an "aggravated felony." The Government objected, arguing that a 16-level enhancement was applicable because that prior offense was a "crime of violence" because the victim was seven years old and force was involved. Savillon-Matute argued that neither enhancement applied. At sentencing, the district court agreed with Savillon-Matute that his Maryland conviction was not a crime of violence, but took judicial notice that the charging documents made the age of the victim and use of force clear. The 8-level enhancement was applied. However, Savillon-Matute was sentenced to 36 months in prison, twice the top of the advisory Guideline range.
On appeal, Savillon-Matute argued that his sentence was unreasonable because the district court incorrectly calculated the advisory Guideline range by using documents outside the scope of those allowed by Shepard to determine the victim's age and use of force. The Fourth Circuit affirmed the sentence, refusing to "wad[e] into the morass of how to apply Shepard in the particular circumstances of this case" because any error in calculating the Guidelines was harmless. Adopting the logic of an 11th Circuit case, the court held that "it would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm." Looking to the statements of the district court in this case, the court concluded that the same sentence would have been applied regardless of the Guideline calculation.
On appeal, Savillon-Matute argued that his sentence was unreasonable because the district court incorrectly calculated the advisory Guideline range by using documents outside the scope of those allowed by Shepard to determine the victim's age and use of force. The Fourth Circuit affirmed the sentence, refusing to "wad[e] into the morass of how to apply Shepard in the particular circumstances of this case" because any error in calculating the Guidelines was harmless. Adopting the logic of an 11th Circuit case, the court held that "it would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm." Looking to the statements of the district court in this case, the court concluded that the same sentence would have been applied regardless of the Guideline calculation.
No Suppression Required for ECPA Violation
US v. Clenney: Clenney pleaded guilty to being a felon in possession of a firearm. The firearm was discovered during a search of his home subsequent to his arrest on state extortion charges. The extortion investigation led officers to Clenney's home. Clenney sought to suppress the gun (and his statement admitting it was his), but the district court denied his motion. He preserved the issue for appeal.
On appeal, Clenney offered two arguments as to why the evidence against him should be suppressed, both of which the Fourth Circuit rejected. First, Clenney argued that the evidence should have been suppressed under Franks due to inaccurate information presented in the applications for the warrants as well as information intentionally left out in order to mislead the issuing judge. The court disagreed, noting that the assertions that Clenney claimed were inaccurate were actually accurate and that the information withheld from the magistrate was not material and would not have changed the probable cause determination.
Second, Clenney argued that information obtained from his cell phone during the search was obtained in violation of the Electronic Communications Privacy Act and Virginia law. The court held that, although the information retrieved from Clenney's phone was covered by those provisions, he had failed to prove it was obtained without following the procedures set forth for obtaining them. In addition, the court held that suppression was not available as a remedy for such a violation because neither of the statutes provided for suppression.
Finally, the court briefly turned away arguments that Clenney's Miranda waiver was not valid and that he was not promptly presented to a magistrate following his arrest.
On appeal, Clenney offered two arguments as to why the evidence against him should be suppressed, both of which the Fourth Circuit rejected. First, Clenney argued that the evidence should have been suppressed under Franks due to inaccurate information presented in the applications for the warrants as well as information intentionally left out in order to mislead the issuing judge. The court disagreed, noting that the assertions that Clenney claimed were inaccurate were actually accurate and that the information withheld from the magistrate was not material and would not have changed the probable cause determination.
Second, Clenney argued that information obtained from his cell phone during the search was obtained in violation of the Electronic Communications Privacy Act and Virginia law. The court held that, although the information retrieved from Clenney's phone was covered by those provisions, he had failed to prove it was obtained without following the procedures set forth for obtaining them. In addition, the court held that suppression was not available as a remedy for such a violation because neither of the statutes provided for suppression.
Finally, the court briefly turned away arguments that Clenney's Miranda waiver was not valid and that he was not promptly presented to a magistrate following his arrest.
District Court Must Allow Defendant to Withdraw Plea When It Overrides Mandatory Provision
US v. Lewis: Lewis entered into an agreement with the Government to plead guilty to one count of witness tampering (another of those counts and a felon in possession charge would be dropped). Part of the plea agreement stated that the "parties agree that this sentence of imprisonment shall be served concurrent with the state sentence [Lewis] is currently serving . . .." At the plea hearing, the district court explained that it was not bound by any "recommendations" in the plea agreement and that Lewis might be sentenced more severely than the agreement contemplated. Although the district court explained that some agreements could be withdrawn from if the district court did not accept it, this was not one of those agreements. At sentencing, the district court imposed a sentence of 46 months, to be served consecutively to the undercharged state sentence "over the defendant's objection."
On appeal, Lewis argued (first in a pro se brief filed as part of the Anders process and then by subsequent counsel) that the plea agreement with regards to the concurrent/consecutive sentence issue had been breached. The Fourth Circuit agreed. The primary issue, the court said, was whether the plea agreement provision about the concurrent/consecutive sentencing issue made the plea a "binding" one under Rule 11(c)(1)(C). If so, then Lewis should have been allowed to withdraw the plea if the district court would not accept it. If not, Lewis was stuck. The court "readily rejected" the Government's argument (which it also called "nearly frivolous") that the agreement was not meant to be an 11(c)(1)(C) agreement, noting that the concurrent/consecutive sentence provision was phrased in mandatory terms, where other provisions were not. Furthermore, the district court's "conditional approval" at the plea hearing strongly suggested it was that type of plea. Therefore, when the district court did finally reject the agreement, by sentencing Lewis to a consecutive term, it erred by not allowing him to withdraw from the agreement. Because the error was not harmless, the court vacated Lewis's sentence and remanded the case for further proceedings.
On appeal, Lewis argued (first in a pro se brief filed as part of the Anders process and then by subsequent counsel) that the plea agreement with regards to the concurrent/consecutive sentence issue had been breached. The Fourth Circuit agreed. The primary issue, the court said, was whether the plea agreement provision about the concurrent/consecutive sentencing issue made the plea a "binding" one under Rule 11(c)(1)(C). If so, then Lewis should have been allowed to withdraw the plea if the district court would not accept it. If not, Lewis was stuck. The court "readily rejected" the Government's argument (which it also called "nearly frivolous") that the agreement was not meant to be an 11(c)(1)(C) agreement, noting that the concurrent/consecutive sentence provision was phrased in mandatory terms, where other provisions were not. Furthermore, the district court's "conditional approval" at the plea hearing strongly suggested it was that type of plea. Therefore, when the district court did finally reject the agreement, by sentencing Lewis to a consecutive term, it erred by not allowing him to withdraw from the agreement. Because the error was not harmless, the court vacated Lewis's sentence and remanded the case for further proceedings.
Resisting Arrest Is Crime of Violence Under ACCA
US v. Jenkins: Jenkins was convicted of drug distribution and being a felon in possession of a firearm, then sentenced as a career offender. One of his two prior qualifying offenses, according to the district court, was a 1998 conviction for the "Maryland common law offense of resisting arrest." In making that conclusion, the district court relied on a 2009 unpublished Fourth Circuit case, Mullen, which held that resisting arrest was a crime of violence under the Guidelines.
On appeal, Jenkins challenged his designation as a career offender, arguing that the older Fourth Circuit case upon which Mullen was based had been undermined by recent Supreme Court decisions dealing with "violent felonies" under the ACCA - Begay and Chambers. The Fourth Circuit disagreed, holding that resisting arrest is a crime of violence, even in light of Begay and Chambers, because it produces great risk of harm to others and can only be committed intentionally or purposely.
On appeal, Jenkins challenged his designation as a career offender, arguing that the older Fourth Circuit case upon which Mullen was based had been undermined by recent Supreme Court decisions dealing with "violent felonies" under the ACCA - Begay and Chambers. The Fourth Circuit disagreed, holding that resisting arrest is a crime of violence, even in light of Begay and Chambers, because it produces great risk of harm to others and can only be committed intentionally or purposely.
Monday, January 31, 2011
Court Affirms 9-Year Sentence for Conspiracy to Defraud US of Taxes
US v. Thorson: Thorson, an attorney, was involved in a complex scheme to take advantage of a charitable giving tax loophole involving cemetery plots. Over three years, the scheme netted almost $10 million in fraudulent tax deductions. Thorson came up with the legal mechanics of the scheme. For his income from the scheme, Thorson concealed his funds as loans and thus did not report it on tax returns. Then, when the IRS came to audit the partnership running the scheme, Thorson created false documents to thwart the investigation. As a result of all this, Thorson was convicted of conspiring to defraud the United States of tax income. At sentencing, Thorson was hit with enhancements for a leadership role in the offense and obstruction of justice, among others. He was sentenced to 108 months in prison.
On appeal, Thorson challenged both the procedural and substantive grounds, all of which the Fourth Circuit rejected. Procedurally, Thorson first challenged the imposition of the leadership enhancement, arguing that the evidence did not support characterizing his role in that way. The court disagreed, noting that his role was "especially significant" because of the deployment of his legal skills, that he was "critical to the recruitment of investors," and that he supervised and directed much of the paperwork needed to complete the scheme. Second, Thorson challenged the obstruction of justice enhancement, based on false documents provided to the grand jury. Thorson argued that this conduct was part of the offense of conviction and, at any rate, already covered by another enhancement for sophisticated concealment. The court disagreed, holding that the obstructive conduct continued into the criminal investigation and the enhancement was not duplicative. Finally, Thorson argued that his sentence was substantively unreasonable when compared to those received by his codefendants and others similarly situated. The court disagreed, holding that the sentence was reasonable in light of the totality of the circumstances.
Judge Gregory dissented, arguing that the imposition of the two Guideline enhancements was error. He argued that the district court "took Thorson's conduct as a personal affront" and "Thorson's occupation weighed heavily on the court's mind." Regardless, the "majority today endorses" that approach "and punishes Thorson on no evidentiary basis."
On appeal, Thorson challenged both the procedural and substantive grounds, all of which the Fourth Circuit rejected. Procedurally, Thorson first challenged the imposition of the leadership enhancement, arguing that the evidence did not support characterizing his role in that way. The court disagreed, noting that his role was "especially significant" because of the deployment of his legal skills, that he was "critical to the recruitment of investors," and that he supervised and directed much of the paperwork needed to complete the scheme. Second, Thorson challenged the obstruction of justice enhancement, based on false documents provided to the grand jury. Thorson argued that this conduct was part of the offense of conviction and, at any rate, already covered by another enhancement for sophisticated concealment. The court disagreed, holding that the obstructive conduct continued into the criminal investigation and the enhancement was not duplicative. Finally, Thorson argued that his sentence was substantively unreasonable when compared to those received by his codefendants and others similarly situated. The court disagreed, holding that the sentence was reasonable in light of the totality of the circumstances.
Judge Gregory dissented, arguing that the imposition of the two Guideline enhancements was error. He argued that the district court "took Thorson's conduct as a personal affront" and "Thorson's occupation weighed heavily on the court's mind." Regardless, the "majority today endorses" that approach "and punishes Thorson on no evidentiary basis."
No Leadership Enhancement In Drug Conspiracy
US v. Slade: Slade pleaded guilty to conspiracy to distribute cocaine and crack. His role in the conspiracy:
On appeal, Slade argued that he should not have been subject to an enhancement for a leadership role because there was no evidence that he actually managed or supervised anyone. The Fourth Circuit agreed, holding that the facts set forth above "do not justify imposition of an enhancement for a management or supervisory role." There was no evidence that Slade "actively exercised some authority over other participants" in the conspiracy. Although reviewing for plain error, the court found the error plain, prejudicial, and worthy of notice on appeal. Therefore, the court vacated Slade's sentence (briefly turning away two other Guideline challenges) and remanded for resentencing.
According to the PSR, which the district court adopted, Slade was a 'mid[-] to upper-level' member of the drug conspiracy who sold or delivered cocaine and cocaine base both to his own clientele and to other members of the conspiracy, who, in turn, sold the drugs to their clientele. Certain coconspirators also sold cocaine and cocaine base 'for' Slade on various occasions. The PSR reveals further that an unindicted co-conspirator drove Slade to various locations to deliver cocaine base to his clients.At sentencing, the district court applied a three-level enhancement (among others) for Slade's leadership role in the offense. Slade was sentenced to 365 months in prison, the top of the advisory Guideline range.
On appeal, Slade argued that he should not have been subject to an enhancement for a leadership role because there was no evidence that he actually managed or supervised anyone. The Fourth Circuit agreed, holding that the facts set forth above "do not justify imposition of an enhancement for a management or supervisory role." There was no evidence that Slade "actively exercised some authority over other participants" in the conspiracy. Although reviewing for plain error, the court found the error plain, prejudicial, and worthy of notice on appeal. Therefore, the court vacated Slade's sentence (briefly turning away two other Guideline challenges) and remanded for resentencing.
Skipping Departure for Variance Analysis Not Procedrually Unreasonable
US v. Diosdado-Star: Diosdado-Star was deported in 2002 because he entered the country illegally. He was back within a month, using an alias that matched that of a Border Patrol agent who was under investigation for misconduct. The investigation led to Diosdado-Star, who was discovered to be posing as a Border Patrol agent to others seeking to remain in the country illegally. In the process, Diosdado-Star made about $177,000. When his home was searched, he admitted being a citizen of Mexico, the illegally reentering the US, and to impersonating an agent. As a result, Diosdado-Star was convicted of illegal reentry and possessing a counterfeit resident alien card. Although his advisory Guideline range was only four to 10 months, the district court varied and imposed a sentence of 84 months in prison.
Diosdado-Star appealed his sentence, which the Fourth Circuit affirmed. He first argued that the sentence was procedurally unreasonable, because the district court failed to consider a Guideline departure before imposing a variance sentence. The court disagreed, holding that (the method of deviation from the Guidelines range - whether by a departure or by varying - is irrelevant so long as at least one rationale is justified and reasonable." However, in a footnote, the court "offer[ed] no comment on the observation of several other circuit courts of appeal that the departure provisions of the Guidelines are obsolete." Diosdado-Star also argued that the sentence was substantively unreasonable. The court disagreed, holding that the district court's variance "while substantial, [] does not constitute an abuse of discretion based on the totality of the circumstances."
Diosdado-Star appealed his sentence, which the Fourth Circuit affirmed. He first argued that the sentence was procedurally unreasonable, because the district court failed to consider a Guideline departure before imposing a variance sentence. The court disagreed, holding that (the method of deviation from the Guidelines range - whether by a departure or by varying - is irrelevant so long as at least one rationale is justified and reasonable." However, in a footnote, the court "offer[ed] no comment on the observation of several other circuit courts of appeal that the departure provisions of the Guidelines are obsolete." Diosdado-Star also argued that the sentence was substantively unreasonable. The court disagreed, holding that the district court's variance "while substantial, [] does not constitute an abuse of discretion based on the totality of the circumstances."
Monday, January 24, 2011
"Stipulation" Entered Without Defendant's Consent Not Harmless Error
US v. Williams: Williams was charged with conspiring to possess with intent heroin. The heroin at issue was seized when it came into the country at the Louisville airport in a package. Per the Government's theory, Williams was the end recipient of the package and he would distribute the contents. Williams went to trial. At the trial, the Government presented a stipulation regarding the substance in the package - that it was approximately 98 grams of heroin. Williams refused to sign the stipulation. However, Williams's attorney suggested that she would do so, if the court would allow it. She signed the stipulation, which was read to the jury. During deliberations, the jury asked what amount of drugs was necessary to delineate personal use from distribution. The court referred them to "common sense" and provided them with a copy of the stipulation. The jury convicted Williams.
On appeal, Williams argued that the use of a stipulation without his consent violated hi Sixth Amendment right to confrontation. The Government agreed that it was an abuse of discretion for the district court to allow the stipulation. However, it argued that the error was harmless. The Fourth Circuit first agreed with the parties that Williams's Sixth Amendment rights were violated. It then proceeded to analyze the evidence in the case and concluded that the error was not harmless. The court noted that the stipulation went beyond merely identifying the substance at issue as heroin - it "essentially established an element of the crime" and was used by the jury in determining whether Williams had an intent to distribute the heroin. Thus, the court vacated Williams's conviction and remanded the case to the district court.
District Judge Dever concurred with the majority on the Sixth Amendment violation, but dissented from the conclusion that the error was not harmless. He argued, after a lengthy recitation of the trial facts, that the stipulation had much less of an impact on the ultimate outcome and therefore its admission was harmless.
On appeal, Williams argued that the use of a stipulation without his consent violated hi Sixth Amendment right to confrontation. The Government agreed that it was an abuse of discretion for the district court to allow the stipulation. However, it argued that the error was harmless. The Fourth Circuit first agreed with the parties that Williams's Sixth Amendment rights were violated. It then proceeded to analyze the evidence in the case and concluded that the error was not harmless. The court noted that the stipulation went beyond merely identifying the substance at issue as heroin - it "essentially established an element of the crime" and was used by the jury in determining whether Williams had an intent to distribute the heroin. Thus, the court vacated Williams's conviction and remanded the case to the district court.
District Judge Dever concurred with the majority on the Sixth Amendment violation, but dissented from the conclusion that the error was not harmless. He argued, after a lengthy recitation of the trial facts, that the stipulation had much less of an impact on the ultimate outcome and therefore its admission was harmless.
Court Affirms Multiple Searches In Wake of Shooting
US v. Allen: Allen was shot and wounded (in a shooting that left another wounded and two more dead) in front of his store in Baltimore. An officer responding to the scene followed a trail of blood into the store, to a file cabinet, which he opened. Inside was a pistol. Three search warrants were then executed: the first at the store (recovering the pistol and collecting DNA), the second to procure Allen's DNA, and the third at Allen's home. The searches showed that Allen's DNA was on the pistol found at the store and that ammunition had been recovered at Allen's home. Allen was charged with being a felon in possession of a firearm and ammunition.
Allen moved to suppress the evidence found as a result of all three searches and also requested a Franks hearing based on discrepancies between the affidavits for the first and second warrants. The district court denied the motions. As to the first and second warrants, the district court found that , although the pistol was not in plain view when first seen, it would have inevitably been discovered during a proper search of the crime scene. As to the third warrant, the court concluded that the warrant contained sufficient evidence to demonstrate probable cause that evidence related to the shooting would be found at Allen's home. Allen pleaded guilty to being a felon in possession of ammunition and preserved his right to appeal the denial of his motions to suppress.
On appeal, Allen made three arguments, all of which the Fourth Circuit rejected. First, he argued that he should have been granted a Franks hearing due to the discrepancies between the first two warrant applications, mostly based on whether the pistol was in plain view (first) or not (second). The court concluded that, even without that information, both warrants were based on sufficient evidence to provide probable cause. Second, Allen argued that the first officer to enter the store did so outside any legitimate Fourth Amendment exception. The court concluded that, even if that entry was improper, there was sufficient evidence aside from what was initially discovered in the store to support probable cause. Finally, renewed his argument that the third warrant lacked probable cause to support a search of his home. The court disagreed.
Allen moved to suppress the evidence found as a result of all three searches and also requested a Franks hearing based on discrepancies between the affidavits for the first and second warrants. The district court denied the motions. As to the first and second warrants, the district court found that , although the pistol was not in plain view when first seen, it would have inevitably been discovered during a proper search of the crime scene. As to the third warrant, the court concluded that the warrant contained sufficient evidence to demonstrate probable cause that evidence related to the shooting would be found at Allen's home. Allen pleaded guilty to being a felon in possession of ammunition and preserved his right to appeal the denial of his motions to suppress.
On appeal, Allen made three arguments, all of which the Fourth Circuit rejected. First, he argued that he should have been granted a Franks hearing due to the discrepancies between the first two warrant applications, mostly based on whether the pistol was in plain view (first) or not (second). The court concluded that, even without that information, both warrants were based on sufficient evidence to provide probable cause. Second, Allen argued that the first officer to enter the store did so outside any legitimate Fourth Amendment exception. The court concluded that, even if that entry was improper, there was sufficient evidence aside from what was initially discovered in the store to support probable cause. Finally, renewed his argument that the third warrant lacked probable cause to support a search of his home. The court disagreed.
Court Affirms Tax Evasion Conviction
US v. Cole: Cole was a real estate agent who partnered with three others to purchase commercial real estate. Cole negotiated the purchase price with the sellers and misrepresented the final amount of the sale price to his partners. The difference in the price paid and the seller's actual price demanded was absorbed by Cole, to the tune of $2 million. He also engineered a similar purchase involving a $1 million note financing one of the properties. Those funds Cole appeared to treat as sale commissions, in multiple venues. In 2005, Cole filed tax returns for 2001, 2002, and 2003 - the years during which he acquired these funds - but did not report any taxable income. He argued that the real estate money came from "assignment fees," rather than commissions, which subjected them to favorable tax treatment as capital gains. The nearly $100,000 he received from the sale of the note was omitted altogether - Cole "missed it" due to a bookkeeping error. Cole was charged and convicted of multiple counts of tax evasion and filing false tax returns.
On appeal, Cole made several arguments attacking his convictions, none of which was successful. First, the Fourth Circuit rejected his argument that the evidence was insufficient to convict him because the charges against him required "willfulness," but the commission/assignment fee distinction was "uncertain as a matter of tax law" and therefore he could not act willfully. In doing so the court declined Cole's invitation to hold that, as a matter of law, when an expert accountant testifies (without objection) to the confused nature of the tax law at issue, willfulness cannot exist as a matter of law. Second, the court concluded that, although it was error for the district court to allow introduction of evidence that Cole had lied previously on ATF forms related to firearms purchases, that error was harmless. Nor was there any error in allowing into evidence Cole's lavish spending during the time in question, as it went to his motive. Finally, the court rejected Cole's argument that the district court should have granted a continuance during trial (prior to Cole's cross-examination) due to Cole being "disoriented or incapable of focusing."
On appeal, Cole made several arguments attacking his convictions, none of which was successful. First, the Fourth Circuit rejected his argument that the evidence was insufficient to convict him because the charges against him required "willfulness," but the commission/assignment fee distinction was "uncertain as a matter of tax law" and therefore he could not act willfully. In doing so the court declined Cole's invitation to hold that, as a matter of law, when an expert accountant testifies (without objection) to the confused nature of the tax law at issue, willfulness cannot exist as a matter of law. Second, the court concluded that, although it was error for the district court to allow introduction of evidence that Cole had lied previously on ATF forms related to firearms purchases, that error was harmless. Nor was there any error in allowing into evidence Cole's lavish spending during the time in question, as it went to his motive. Finally, the court rejected Cole's argument that the district court should have granted a continuance during trial (prior to Cole's cross-examination) due to Cole being "disoriented or incapable of focusing."
Involuntary Manslaughter Not "Crime of Violence"
US v. Peterson: Peterson was convicted on multiple drug and gun counts. He was sentenced as a career offender, a status based partly on his 2001 conviction in North Carolina for involuntary manslaughter, arising from "an incident in which Peterson accidentally shot his close friend . . . while the two were playing with what they believed (mistakenly) was an unloaded pistol." Peterson objected to the career offender classification, arguing that the involuntary manslaughter conviction was not a "crime of violence" as defined by the Guidelines. The district court disagreed and sentenced him to 420 months in prison.
On appeal, the Fourth Circuit agreed with Peterson and vacated his sentence. The court first concluded that generic "manslaughter" - which is specifically included in the definition of crime of violence - requires either that the defendant acted "recklessly" or "intentionally if under the influence of extreme mental or emotional disturbance." The North Carolina offense of involuntary manslaughter did not fit within that definition because it's required mental state - "thoughtless disregard" - is a lesser requirement than recklessness, as defined by the Model Penal Code. Peterson's conviction, therefore, was not explicitly included in the definition of crime of violence. The court then turned to the issue of whether his conviction was one that "presents a serious potential risk of physical injury to another" under the crime of violence definition's "otherwise" clause, concluding that it was not because the North Carolina statute covered negligent and unintentional conduct.
On appeal, the Fourth Circuit agreed with Peterson and vacated his sentence. The court first concluded that generic "manslaughter" - which is specifically included in the definition of crime of violence - requires either that the defendant acted "recklessly" or "intentionally if under the influence of extreme mental or emotional disturbance." The North Carolina offense of involuntary manslaughter did not fit within that definition because it's required mental state - "thoughtless disregard" - is a lesser requirement than recklessness, as defined by the Model Penal Code. Peterson's conviction, therefore, was not explicitly included in the definition of crime of violence. The court then turned to the issue of whether his conviction was one that "presents a serious potential risk of physical injury to another" under the crime of violence definition's "otherwise" clause, concluding that it was not because the North Carolina statute covered negligent and unintentional conduct.
Nature of Prior Conviction Determination Requires Only Preponderance
US v. Washington: Washington was convicted of being a felon in possession of a firearm. At sentencing, the issue was whether he qualified for an enhanced sentenced under the ACCA. For his third qualifying predicate offense, the Government identified a 1999 Maryland conviction for the "generic" offense " of "possession of a controlled dangerous substance with intent to distribute." Although the maximum sentence for the offense is based on the type of drug involved, drug type is not an element of the offense. The district court concluded that Washington's prior conviction was an ACCA predicate because it involved cocaine and therefore carried a 20-year maximum sentence (rather than the 5-year max applicable to lesser drugs).
Washington appealed, arguing that the district court erred by making its determination based on a preponderance of the evidence, rather than beyond a reasonable doubt. Relying on Shepard, he argued that the Supreme Court's references to "conclusive" records and "certainty" implies a higher standard for making determinations about the nature of prior convictions than a simple preponderance. The Fourth Circuit disagreed, holding that a preponderance standard was appropriate and that Shepard did not suggest otherwise. Shepard was about the types of documents a district court could use when evaluating the nature of a prior conviction, not the standard of proof applied during that analysis. The court then went on to reject Washington's argument that the Government had not met its burden in his case, even under a preponderance standard.
Washington appealed, arguing that the district court erred by making its determination based on a preponderance of the evidence, rather than beyond a reasonable doubt. Relying on Shepard, he argued that the Supreme Court's references to "conclusive" records and "certainty" implies a higher standard for making determinations about the nature of prior convictions than a simple preponderance. The Fourth Circuit disagreed, holding that a preponderance standard was appropriate and that Shepard did not suggest otherwise. Shepard was about the types of documents a district court could use when evaluating the nature of a prior conviction, not the standard of proof applied during that analysis. The court then went on to reject Washington's argument that the Government had not met its burden in his case, even under a preponderance standard.
Failure to Disclose Non-Witness Grand Jury Testimony Requires New Trial
US v. King: King was convicted of drug and firearm offenses arising from two separate incidents in North Carolina. In the first, officers surveiled a car that a tipster said was going to be used to transport heroin. Officers followed the car to a laundromat where the two men in the car went inside. They returned shortly thereafter, along with King, who put a green gym bag in the car. The car was stopped and the bag searched. It contained "100 dosage units of heroin." King, and the other two men, was arrested. A search of King's home uncovered more heroin, other drug paraphernalia, and a firearm. King admitted ownership of the heroin and the firearm. He was charged and released on bail. Eight months later, a man named Bilal, who shared an apartment with King, told officers that King kidnapped and assaulted him. Officers executed a search warrant at the apartment, recovering drugs and a firearm from a bedroom, in which they also found documentation with King's address. King denied doing anything to Bilal and also denied ownership of any of the items found in the apartment.
King was charged with six counts - two sets of three for each incident: possession with intent to distribute, being a felon in possession of a firearm, and possession of a firearm during a drug trafficking offense. Prior to trial, King moved to have the Government disclose information related to Bilal's cooperation with them, including his grand jury testimony. The district court denied the request without reviewing the testimony. At trial, King testified in line with his statements to police - accepting ownership of the items related to the first incident, but denying ownership of those in the second incident - but added that the firearms were not related to any drug activity. The jury convicted him on four counts, all three from the first incident and being a felon in possession from the second. The district court sentenced him to 408 months in prison (enhanced, in part, based on the alleged kidnapping of Bilal).
King raised several challenges to his convictions on appeal. With regards to the three convictions related to the first incident, the Fourth Circuit rejected his arguments and upheld those convictions. Specifically, the court held that the drug and firearm-in-connection-with-a-trafficking offenses were duplicitous, that the firearm count failed to charge him with an offense, and that the evidence on each count was insufficient to convict him. However, with regards to the felon in possession conviction from the second incident, the court did find error that required reversal of that conviction. Specifically, the court held that the district court erred by failing to order the Government to turn over Bilal's grand jury testimony, even though he did not testify at trial, because his relationship with King was relevant to King's defense. The court noted that King had consistently denied that any of the items found during the second search belonged to him.
King was charged with six counts - two sets of three for each incident: possession with intent to distribute, being a felon in possession of a firearm, and possession of a firearm during a drug trafficking offense. Prior to trial, King moved to have the Government disclose information related to Bilal's cooperation with them, including his grand jury testimony. The district court denied the request without reviewing the testimony. At trial, King testified in line with his statements to police - accepting ownership of the items related to the first incident, but denying ownership of those in the second incident - but added that the firearms were not related to any drug activity. The jury convicted him on four counts, all three from the first incident and being a felon in possession from the second. The district court sentenced him to 408 months in prison (enhanced, in part, based on the alleged kidnapping of Bilal).
King raised several challenges to his convictions on appeal. With regards to the three convictions related to the first incident, the Fourth Circuit rejected his arguments and upheld those convictions. Specifically, the court held that the drug and firearm-in-connection-with-a-trafficking offenses were duplicitous, that the firearm count failed to charge him with an offense, and that the evidence on each count was insufficient to convict him. However, with regards to the felon in possession conviction from the second incident, the court did find error that required reversal of that conviction. Specifically, the court held that the district court erred by failing to order the Government to turn over Bilal's grand jury testimony, even though he did not testify at trial, because his relationship with King was relevant to King's defense. The court noted that King had consistently denied that any of the items found during the second search belonged to him.
Thursday, December 30, 2010
Intermediate Scrutiny for Second Amendment Review of MCDV Cases
US v. Chester: Police were called to Chester's home during a dispute with his then wife. A search of the home uncovered a pistol and a shotgun, which Chester admitted belonged to him. He was charged with possession of firearms after being convicted of a misdemeanor crime of domestic violence, based on an earlier incident involving his daughter. Chester moved to dismiss the charge, arguing that it violated his Second Amendment right to keep and bear arms, as set forth in the Supreme Court's Heller decision. The district court denied the motion, and Chester pleaded guilty, reserving his ability to appeal the denial of the motion to dismiss.
On appeal, the Fourth Circuit initially vacated Chester's conviction in an unpublished opinion, remanding for the district court to identify a specific level of scrutiny and apply it. The Government sought rehearing, which the panel granted. In this published opinion, the court identifies the correct level of scrutiny, but vacates Chester's conviction to remand for application of that standard. The court adopted the two-step process set forth in the first opinion, based on the panel decision in US v. Skoien, 587 F.3d 803 (7th Cir. 2009), although that decision was later vacated by an en banc court.
As a first step, the court assumed (because the historical evidence was unclear) that Chester's possession fell within the general parameters of the Second Amendment. The court then held that the proper level of scrutiny to apply was intermediate scrutiny, analogizing to the lesser protections under the First Amendment for commercial speech and time, place, manner restrictions. On this record, the court could not conclude that the Government met its burden under that standard, noting that while the Government "has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal . . . it has not attempted to offer sufficient evidence to establish a relationship between [this prohibition] and an important government goal." Therefore, the court remanded to the district court for further proceedings.
Judge Davis concurred in the judgment, but took the majority to task for relying too heavily on analogies between the First and Second Amendments. He endorses the result of the en banc decision in Skoien and argues that the district court will have no trouble concluding that Chester is not protected from conviction by the Second Amendment.
On appeal, the Fourth Circuit initially vacated Chester's conviction in an unpublished opinion, remanding for the district court to identify a specific level of scrutiny and apply it. The Government sought rehearing, which the panel granted. In this published opinion, the court identifies the correct level of scrutiny, but vacates Chester's conviction to remand for application of that standard. The court adopted the two-step process set forth in the first opinion, based on the panel decision in US v. Skoien, 587 F.3d 803 (7th Cir. 2009), although that decision was later vacated by an en banc court.
As a first step, the court assumed (because the historical evidence was unclear) that Chester's possession fell within the general parameters of the Second Amendment. The court then held that the proper level of scrutiny to apply was intermediate scrutiny, analogizing to the lesser protections under the First Amendment for commercial speech and time, place, manner restrictions. On this record, the court could not conclude that the Government met its burden under that standard, noting that while the Government "has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal . . . it has not attempted to offer sufficient evidence to establish a relationship between [this prohibition] and an important government goal." Therefore, the court remanded to the district court for further proceedings.
Judge Davis concurred in the judgment, but took the majority to task for relying too heavily on analogies between the First and Second Amendments. He endorses the result of the en banc decision in Skoien and argues that the district court will have no trouble concluding that Chester is not protected from conviction by the Second Amendment.
Watson's New Rule Applies Retroactively
US v. Thomas: Thomas was convicted of methamphetamine possession and possession of a firearm in connection with a drug trafficking offense. He received a total sentence of 90 months in prison. He did not appeal. After Thomas was sentenced, the Supreme Court handed down the Watson decision, in which it held that a person doesn't "use" a firearm under the statute if he receives it in trade for drugs. Thomas filed a pro se 2255 motion seeking to vacate his sentence. Although it was filed after the normal 1-year statute of limitations had run, it was filed within one year of Watson being decided. The district court dismissed Thomas's motion, holding that Watson did not announce a new rule of constitutional law and, at any rate, was not retroactive.
On appeal, the Fourth Circuit disagreed and overruled the district court's decision. The Government conceded that Watson announced a new rule and was retroactive. However, it argued that Thomas defaulted on the issue by not raising it on direct appeal. Turning first to the impact of Watson, the court agreed with other circuits that it may determine retroactivity, rather than waiting for the Supreme Court to do so. It then concluded that Watson announced a new rule and that rule applied retroactively, thus obliterating the district court's basis for denying Thomas's motion. However, because that dismissal came before the Government responded to the motion, and due to some ambiguity in the motion itself, the court declined to decide the waiver issue raised by the Government and simply remanded the case to the district court for further proceedings.
On appeal, the Fourth Circuit disagreed and overruled the district court's decision. The Government conceded that Watson announced a new rule and was retroactive. However, it argued that Thomas defaulted on the issue by not raising it on direct appeal. Turning first to the impact of Watson, the court agreed with other circuits that it may determine retroactivity, rather than waiting for the Supreme Court to do so. It then concluded that Watson announced a new rule and that rule applied retroactively, thus obliterating the district court's basis for denying Thomas's motion. However, because that dismissal came before the Government responded to the motion, and due to some ambiguity in the motion itself, the court declined to decide the waiver issue raised by the Government and simply remanded the case to the district court for further proceedings.
Possession of Sawed-Off Shotgun Is Crime of Violence
US v. Hood: Hood was convicted of drug and gun offenses and sentenced as a career offender. He objected to that classification, arguing that a prior North Carolina conviction for "possession of a weapon of mass death and destruction" (actually a sawed-off shotgun) was not a crime of violence. The district court disagreed and the Fourth Circuit affirmed.
Holding that earlier precedent on the issue was obsolete in light of Begay, the court nevertheless found that possession of a sawed off shotgun was a crime of violence. Distinguishing the Guideline issue from the related Armed Career Criminal Act definition of "violent felony" (the court has held, in an unpublished case, that possession of a sawed-off shotgun is not a violent felony), the court noted that Guideline commentary specifically includes possession of a sawed-off shotgun in the definition of crime of violence. Therefore, it qualified as such, even under a Begay analysis.
Holding that earlier precedent on the issue was obsolete in light of Begay, the court nevertheless found that possession of a sawed off shotgun was a crime of violence. Distinguishing the Guideline issue from the related Armed Career Criminal Act definition of "violent felony" (the court has held, in an unpublished case, that possession of a sawed-off shotgun is not a violent felony), the court noted that Guideline commentary specifically includes possession of a sawed-off shotgun in the definition of crime of violence. Therefore, it qualified as such, even under a Begay analysis.
Tuesday, December 28, 2010
District Court Must ID Statutory Basis for Restitution Order
US v. Leftwich: Leftwich was convicted of mail fraud and making false claims, after participating in a scheme that saw the IRS pay out more than $2 million in false tax refunds. An issue at sentencing was whether the district court would order restitution. At the guilty plea hearing, the district court noted it had the authority to order restitution, but did not indicate the source of that authority. Prior to sentencing, Leftwich filed a memorandum arguing that the Mandatory Victims Restitution Act did not apply in his case and that, while the Victim Witness Protection Act did apply, the statutory factors to be considered under that Act negated an award of restitution. The Government did not respond to that argument at all (leading to a written lashing from the Fourth Circuit). At sentencing, the district court ordered restitution, but did not indicate its statutory basis for doing so.
On appeal, the Fourth Circuit vacated the order of restitution. The court held that without the district court identifying on what basis it ordered restitution, the court could not review that order for abuse of discretion. The MVRA and VWPA each have different procedural and substantive nuances which must be taken into account before ordering restitution. The court vacated and remanded to the district court for further proceedings as to the basis for the restitution issue.
On appeal, the Fourth Circuit vacated the order of restitution. The court held that without the district court identifying on what basis it ordered restitution, the court could not review that order for abuse of discretion. The MVRA and VWPA each have different procedural and substantive nuances which must be taken into account before ordering restitution. The court vacated and remanded to the district court for further proceedings as to the basis for the restitution issue.
Court OK's Assault Enhancement & Felony Enhancement Arising From Flight From Police
US v. Hampton: Hampton was a passenger in a car that was stopped for a broken taillight. During the stop, officers noticed that he was "exhibiting signs of nervousness." When the driver was arrested on an outstanding warrant, Hampton was ordered out of the car. He complied, but then pushed the officer closest to him and fled. He was captured, and, after a struggle, a pistol was found in his pants pocket. One of the officers was injured during the struggle. Hampton was charged with being a felon in possession of a firearm and ammunition. After an unsuccessful motion to suppress, Hampton was convicted and sentenced to 300 months in prison.
On appeal, Hampton challenged the calculation of his advisory Guideline range on several grounds.* First, he argued that an enhancement under USSG 3A1.2(c)(1) for assault of a police officer during flight was not appropriate. Specifically, he argued that his conduct did not create a substantial risk of serious bodily injury, as required to trigger the enhancement. The Fourth Circuit disagreed, holding that Hampton assaulted a police officer during the struggle to subdue him and that assault resulted in serious bodily injury. Second, Hampton argued that his conduct did not constitute another felony offense, so as to trigger the enhancement under USSG 2K2.1(b)(6). The court disagreed, holding that because Hampton assaulted an officer during the struggle, he committed a felony under South Carolina law. Finally, Hampton argued that the application of both enhancements (for a total of 10 levels) was impermissible double counting. The Fourth Circuit disagreed, holding that there was nothing in the Guidelines to change the presumption that double counting is acceptable.
* Hampton also challenged the district court's denial of his motion to suppress, but conceded that his argument was precluded by Fourth Circuit precedent and was presented only to preserve it for further review.
On appeal, Hampton challenged the calculation of his advisory Guideline range on several grounds.* First, he argued that an enhancement under USSG 3A1.2(c)(1) for assault of a police officer during flight was not appropriate. Specifically, he argued that his conduct did not create a substantial risk of serious bodily injury, as required to trigger the enhancement. The Fourth Circuit disagreed, holding that Hampton assaulted a police officer during the struggle to subdue him and that assault resulted in serious bodily injury. Second, Hampton argued that his conduct did not constitute another felony offense, so as to trigger the enhancement under USSG 2K2.1(b)(6). The court disagreed, holding that because Hampton assaulted an officer during the struggle, he committed a felony under South Carolina law. Finally, Hampton argued that the application of both enhancements (for a total of 10 levels) was impermissible double counting. The Fourth Circuit disagreed, holding that there was nothing in the Guidelines to change the presumption that double counting is acceptable.
* Hampton also challenged the district court's denial of his motion to suppress, but conceded that his argument was precluded by Fourth Circuit precedent and was presented only to preserve it for further review.
Divided Court OKs Extension of Traffic Stop
US v. Mason: Mason was driving on Interstate 20 in Georgia when he was pulled over due to having illegally tinted windows. Prior to writing Mason a warning, the officer talked with him and his passenger, who told different stories about where they had been and why. The officer, suspecting they were involved in drug activity (I-20 is a know drug corridor and Atlanta, the direction from which Mason was travelling, a source city) radioed for a K9 unit to assist him. When the K9 unit arrived, the dog alerted, first on the outside of the car and then by leaping inside an open window and further alerting. A search of the trunk revealed 10 kilograms of cocaine. Mason was charged and convicted, following an unsuccessful motion to suppress, of trafficking in more than five kilograms of cocaine and was sentenced to a mandatory sentence of life in prison.
On appeal, Mason challenged both the denial of his motion to suppress and his life sentence. As to the motion to suppress, Mason argued that the officer lacked reasonable suspicion to prolong the stop past the issuance of the warning ticket and that the dog's entry into the car violated the Fourth Amendment. On the first argument, the Fourth Circuit disagreed, holding that the officer had sufficient evidence to conclude that criminal activity was afoot. Although several of the facts were consistent with innocent travel, when taken as a whole the facts rose to the level of reasonable suspicion. As to the dog, the court noted that once the dog alerted to the presence of drugs outside the car there was probable cause to search the vehicle, so the dog's entry did not violate the Fourth Amendment. The court also held, addressing an argument that appeared only during oral argument, that the officer's questions prior to issuing the warning did not unduly lengthen the stop. As to Mason's sentence, the court held that he had not carried his burden of showing that two prior state convictions were obtained without counsel, even if the statute of limitations in 21 USC 851(e) did not prevent review of the issue.
Judge Gregory dissented on the search issue. He argued that the officer did not have reasonable suspicion to extend the traffic stop, after "supplementing and clarifying some key facts . . . that are omitted by the majority."
On appeal, Mason challenged both the denial of his motion to suppress and his life sentence. As to the motion to suppress, Mason argued that the officer lacked reasonable suspicion to prolong the stop past the issuance of the warning ticket and that the dog's entry into the car violated the Fourth Amendment. On the first argument, the Fourth Circuit disagreed, holding that the officer had sufficient evidence to conclude that criminal activity was afoot. Although several of the facts were consistent with innocent travel, when taken as a whole the facts rose to the level of reasonable suspicion. As to the dog, the court noted that once the dog alerted to the presence of drugs outside the car there was probable cause to search the vehicle, so the dog's entry did not violate the Fourth Amendment. The court also held, addressing an argument that appeared only during oral argument, that the officer's questions prior to issuing the warning did not unduly lengthen the stop. As to Mason's sentence, the court held that he had not carried his burden of showing that two prior state convictions were obtained without counsel, even if the statute of limitations in 21 USC 851(e) did not prevent review of the issue.
Judge Gregory dissented on the search issue. He argued that the officer did not have reasonable suspicion to extend the traffic stop, after "supplementing and clarifying some key facts . . . that are omitted by the majority."
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