Guidelines Cannot Supersede Mandatory Minimums

US v. Moore: Moore pleaded guilty to a drug offense that left him facing a 10-year mandatory minimum sentence. At sentencing he argued for a sentence of 113 months – seven months below the mandatory minimum – to offset a seven-month sentence he had served in state court for conduct that was relevant conduct of the current offense, pursuant to USSG 5K2.23. The Government objected, arguing that the Guidelines cannot supersede the statutory penalty. The district court disagreed and imposed the 113-mont sentence.

The Fourth Circuit reversed. The Guideline provision, merely a “recommendation . . . is overridden by the congressionally mandated minimum sentence” and for “the district court to grant a departure solely on the basis of the Guidelines, contrary to a congressional mandate, was error.” The court distinguished USSG 5G1.3, which does allow for a sentence below a statutory mandatory minimum for undischarged sentences because it “is backed by an enabling statute.”

Texts and Phone Call Met Low Burden Needed for Authentication

US v. Davis: Davis was on trial distributing more than 50 grams of methamphetamine. Part of the evidence involved a controlled purchase of methamphetamine from Davis by a confidential informant. Davis was convicted and sentenced to 260 months in prison.

On appeal, Davis raised several evidentiary challenges to his conviction, all related to the controlled buy with the CI. First, Davis argued that the district court erred by allowing a police officer to explain that he recruited the CI because she had previously purchased drugs from Davis. Applying plain error review, and noting that Davis was not challenge similar testimony from another witness, the court concluded that there was no error because the testimony was for “explaining why they solicited” the CI, thus it was not offered for the truth of whether the CI had bought from Davis in the past. Second, Davis contended that the district court erred by concluding that photos of text messages between the CI and people labeled “Joseph Davis” and “Joseph Other” had been properly authenticated. Noting the low hurdle that authentication poses, the court found no error because the “record contains ample contextual evidence to create a prima facie showing that” the CI was texting with Davis, mainly because it was Davis who showed up to complete the sale that the CI was negotiating in the texts. Finally, the court rejected the argument that a phone call between the CI and Davis was not properly authenticated, because the officer who was working with the CI knew Davis’ voice and could identify him.

Uncounseled Misdemeanor Counts, Even When Jail Time Resulted

US v. Hawley: Hawley pleaded guilty to two counts each of being a felon in possession of a firearm and distributing heroin. At sentencing, he was attributed one criminal history point for a prior state misdemeanor conviction where he had validly waived his right to counsel and been sentenced to six months in jail. Counting that sentence put Hawley in Criminal History Category V, rather than IV. He objected that, under Guideline commentary that “prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed,” by its structure, meant that uncounseled sentences were imprisonment was imposed should not count. The district court rejected that argument and sentenced Hawley to 57 months in prison, the bottom of the advisory Guideline range.

On appeal the Fourth Circuit affirmed Hawley’s sentence. The court started by noting that under the language of USSG 4A1.2(c)(1) itself the misdemeanor conviction counted in the criminal history score. It rejected the argument that under “the interpretative canon expression unius est exclusio alterius the “negative implication of Guideline 4A1.2’s background commentary barred the district court from counting prior uncounseled misdemeanor conviction for which imprisonment was imposed – even when, as here, a defendant validly waives his right to counsel.” By contrast, the “background commentary, by its plain language, contemplates that it is providing a non-exhaustive list, an inference of negative implication is inappropriate.” A contrary conclusion, reached by the Second Circuit, was not compelling because that case involved “constitutional problems” related to the waiver of counsel which weren’t present in Hawley’s case.